U.S. v. Granda, 77-5027

Citation565 F.2d 922
Decision Date09 January 1978
Docket NumberNo. 77-5027,77-5027
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Araceli Cremata GRANDA, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Karl J. Leib, Jr., Miami, Fla., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., Charles A. Intriago, David Geneson, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, RONEY and FAY, Circuit Judges.

FAY, Circuit Judge:

On November 29, 1976, Araceli Cremata Granda was found guilty of knowingly and willfully transporting monetary instruments in an amount exceeding $5,000.00 into the United States in violation of 31 U.S.C. §§ 1058 and 1101. Her appeal raises the issue of what significance the words knowingly and willfully have in the context of these statutes.

Title 31 U.S.C. § 1101 provides in part:

(a) Except as provided in subsection (c) of this section, whoever . . . knowingly

(1) transports or causes to be transported monetary instruments

(A) from any place within the United States to or through any place outside the United States, or

(B) to any place within the United States from or through any place outside the United States, or

(2) receives monetary instruments at the termination of their transportation to the United States from or through any place outside the United States

in an amount exceeding $5,000 on any one occasion shall file a report or reports in accordance with subsection (b) of this section.

The report to be filed by a traveler covered by § 1101 is known as Form 4790, and is entitled "Report of International Transportation Currency or Monetary Instruments." Subsection (b) of § 1101 sets forth the information which the filed report should contain, and it provides specifically:

(b) Reports required under this section shall be filed at such times and places, and may contain such of the following information and any additional information in such form and in such detail, as the Secretary may require:

(1) The legal capacity in which the person filing the report is acting with respect to the monetary instruments transported.

(2) The origin, destination, and route of the transportation.

(3) Where the monetary instruments are not legally and beneficially owned by the person transporting the same, or are transported for any purpose other than the use in his own behalf of the person transporting the same, the identities of the person from whom the monetary instruments are received, or to whom they are to be delivered, or both.

(4) The amounts and types of monetary instruments transported.

The criminal penalties for failure to file a report required by § 1101 are provided for in 31 U.S.C. § 1058 which states:

Whoever willfully violates any provision of this chapter or any regulation under this chapter shall be fined not more than $1,000, or imprisoned not more than one year, or both.

In our case, Mrs. Granda was charged with the violation of these statutes when she returned to the United States from a trip to Panama. Upon arrival at the Miami International Airport she presented a customs official her "Customs Declaration" card (known as Customs Form 6059-B), which she apparently was not responsible for filling out, but which she did sign. 1 Question 10 on Form 6059-B asks whether "you or anyone else in your party (is) carrying over $5,000.00 in coin, currency, or negotiable instruments." The box "no" on defendant's form was checked. During the routine examination of the defendant's belongings, the customs officer saw $5,000 in an unsealed envelope in the defendant's purse. Another $5,000 was found in the defendant's wallet. The defendant claimed that $5,000 of the money belonged to her traveling companion, but her companion could not be found to verify this. The defendant also claimed that she was unaware of the reporting requirements of § 1101. Mrs. Granda was cooperative during this whole ordeal; and at no time did the customs officials advise her of, or present her with, a Form 4790 to complete in order to comply with § 1101. The customs officials eventually seized the $10,000 and placed the defendant under arrest.

Our task today is to determine the significance of the terms knowingly and willfully as used in these statutes. The defendant contends that since § 1101 requires a knowing violation and § 1058 requires a willful violation, the mere failure to comply with terms of the statutes is not a crime unless it can be shown that the defendant had knowledge of the reporting requirements and acted with the specific intent to circumvent those requirements. On the other hand, the government contends that we are not dealing with a specific intent crime, and that the terms knowing and willful require only that the person charged with the duty know what he is doing and that he act deliberately. The government argues that the statutes do not require that the defendant be aware of the fact that he is breaking the law.

Our research has uncovered no case law in the Fifth Circuit defining these terms as applied to §§ 1058 and 1101. There is, of course, a tremendous amount of case law in every court defining these terms as used in the context of other federal criminal statutes. Not surprisingly, however, these terms have defied any consistent interpretation by the courts. 2 The Second Circuit is the only Court of Appeals directly to confront the meaning of these terms as used in the statutes before us. In United States v. San Juan, 545 F.2d 314 (2d Cir. 1976), the defendant, a Mrs. San Juan, entered the United States from Canada by bus. At the port of entry, a customs official questioned Mrs. San Juan about the contents of two brown packages she was carrying. Mrs. San Juan claimed that the packages contained books. Examination of the packages revealed that they in fact contained $77,500. Mrs. San Juan, unlike the defendant in our case, was never given the Customs Declaration Form 6059-B which includes the question, "Are you . . . carrying over $5,000.00 in coin currency or monetary instruments?" After discovery of the money, the contents of the packages were given to the entry port director. Over a course of a few hours, the defendant was presented with the Form 4790, but was told that the government would keep the money regardless of whether she signed the form. Mrs. San Juan refused to sign the form. During the trial of the case, the government took the position that the crime of transporting more than $5,000 into the United States without filing a report was completed on board the bus before the Form 4790 was offered to Mrs. San Juan. The Second Circuit reversed Mrs. San Juan's conviction. The Court reasoned that, "(w)ithout proof of any knowledge of, or notice to Mrs. San Juan of the reporting requirements, a jury could not determine beyond a reasonable doubt that she had the requisite willful intent." Id. at 318. The Court also said that:

It must be remembered that Mrs. San Juan was not charged with carrying the cash across the border but with failing to file a report while doing so. And proof of the necessary intent to do the latter was remarkably weak.

Id. The Court concluded by saying:

As a result, in order to prove willfulness, the government should make some effort to bring the reporting requirement to the traveler's attention.

Id. at 319.

We agree with the position taken by the Second Circuit, 3 and hold that the terms knowing and willful require proof of the defendant's knowledge of the reporting requirement and his specific intent to commit the crime. Congress, by adding these terms, took this regulatory statute out of the ranks of strict liability type crimes. To us, this makes sense because the failure to report, when one is without knowledge of the reporting requirement, must be classified as a "nonfeasance" as opposed to a "misfeasance". Since the purpose of all law, and the criminal law in particular, is to conform conduct to the norms expressed in that law, no useful end is served by prosecuting the "violators" when they have no knowledge of the law's provisions. By so holding, we are prompting the reversal of this case for two reasons. Initially it is because the trial court failed to properly instruct the jury on specific intent. In a case such as this, the proper instruction would include some discussion of the defendant's ignorance of the law since the defendant's alleged ignorance of the reporting requirements goes to the heart of his or her denial of the specific intent necessary to commit the crime. See United states v. Schilleci, 545 F.2d 519, 524 (5th Cir. 1977). Failure of the defendant to have the benefit of this instruction was plain error.

The second reason this case requires reversal is that we feel as a matter of law that it is impossible to prove beyond a reasonable doubt that the defendant acted with knowledge of the reporting requirements. The...

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61 cases
  • U.S. v. Baytank (Houston), Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 13 Junio 1991
    ...in order to prove a criminal violation of the currency transaction reporting requirements. 31 U.S.C. Sec. 5322; United States v. Granda, 565 F.2d 922, 926 (5th Cir.1978) (construing Sec. 5322's predecessor, 31 U.S.C. Sec. 1058. 31 Unlike the currency reporting statutes, however, the statute......
  • Ivers v. U.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 18 Septiembre 1978
    ...an essential element of a violation of 31 U.S.C. § 1058 and that a specific intent to commit the crime must be shown. United States v. Granda, 565 F.2d 922 (5th Cir. 1978); United States v. San Juan, 545 F.2d 314 (2d Cir. 1976). The transcript of the proceedings before the United States Mag......
  • U.S. v. Warren
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 24 Agosto 1978
    ...the report required by 31 U.S.C. § 1101 (1970). United States v. Schnaiderman, 568 F.2d 1208 (5th Cir. 1978), and United States v. Granda, 565 F.2d 922 (5th Cir. 1978), construed the language in section 1101 requiring that the failure to report be "knowing," and that in section 1058 calling......
  • U.S. v. Anderez, 80-5720
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 16 Noviembre 1981
    ...the well developed exculpatory no doctrine. Citing United States v. Schnaiderman, 568 F.2d 1208 (5th Cir. 1978), and United States v. Granda, 565 F.2d 922 (5th Cir. 1978), Anderez argues that, because he was not told by Nerren that it was legal to bring more than $5,000 into the country bef......
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8 books & journal articles
  • Financial institutions fraud.
    • United States
    • American Criminal Law Review Vol. 49 No. 2, March 2012
    • 22 Marzo 2012
    ...(5th Cir. 1978) (reversing conviction where government failed to make reporting requirements known); see also United States v. Granda, 565 F.2d 922, 926 (5th Cir. 1978) (holding that proof of knowledge "is almost impossible unless affirmative steps are taken by the government to make the la......
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    • United States
    • American Criminal Law Review No. 58-3, July 2021
    • 1 Julio 2021
    ...met the notice requirement and that a written reporting form with instructions was not required); see also United States v. Granda, 565 F.2d 922, 926 (5th Cir. 1978) (holding that proof of knowledge “is almost impossible unless aff‌irmative steps are taken by the government to make the laws......
  • Financial institutions fraud.
    • United States
    • American Criminal Law Review Vol. 46 No. 2, March 2009
    • 22 Marzo 2009
    ...(5th Cir. 1978) (reversing conviction where government failed to make reporting requirements known); see also United States v. Granda, 565 F.2d 922, 926 (5th Cir. 1978) (holding that proof of knowledge "is almost impossible unless affirmative steps are taken by the government to make the la......
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    • United States
    • American Criminal Law Review Vol. 44 No. 2, March 2007
    • 22 Marzo 2007
    ...defendant's "knowledge of reporting requirements from his behavior and all of the facts in evidence"). But see United States v. Granda, 565 F.2d 922, 926 (5th Cir. 1978) (holding that proof of knowledge "is almost impossible unless affirmative steps are taken by the government to make the l......
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