U.S. v. Hassan, 89-2559

• Decision Date: 06 March 1991
• Docket Number: No. 89-2559,89-2559
• Citation: 927 F.2d 303
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gbemi Ramata HASSAN, also known as Shade Adetola, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 303

927 F.2d 303

UNITED STATES of America, Plaintiff-Appellee, v. Gbemi Ramata HASSAN, also known as Shade Adetola, Defendant-Appellant.

No. 89-2559.

United States Court of Appeals Seventh Circuit.

Argued Oct. 30, 1990.

Decided March 6, 1991.

Sergio E. Acosta, Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Steven O. Ross, Chicago, Ill., for defendant-appellant.

Gbemi R. Hassan, Chicago, Ill., pro se.

Before WOOD, Jr., COFFEY and KANNE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant Gbemi Ramata Hassan, also known as Shade Adetola, pleaded guilty to count two of an indictment that charged her with knowingly and willfully failing to report attempted transportation of more than $10,000 in United States currency, in violation of Title 31, United States Code, sections 5316(a) and 5322(a). The district court sentenced Hassan to thirty-three months imprisonment and three years supervised release, imposed a fine of $13,112 and a special assessment of $50. This sentence was based on the adjusted offense level of twenty with a criminal history category of I, as calculated under the United States Sentencing Guidelines ("Guidelines"). Hassan now challenges the district court's sentencing determination on the grounds that the district court drew unreasonable inferences from the record and the presentence report, thus violating her fifth amendment due process rights. We affirm.

I. BACKGROUND

On December 29, 1988, Gbemi Hassan went to Chicago's O'Hare International Airport where she planned to board a KLM flight to the Netherlands, final destination Nigeria. That same day United States Customs Service agents were conducting an outbound currency operation at the terminal at which the passengers for the KLM flight were boarding. An outbound currency operation is a means of securing compliance with federal currency reporting requirements. ¹ Loud speaker announcements reported the required disclosure of currency, as did posted signs that advised passengers of the requirements. In addition, the agents interviewed some individual passengers and inquired as to how much United States currency they were carrying.

Agents stopped Hassan as she attempted to board. When questioned about the amount of currency she was carrying in her purse, she told the agents she had $8,000. A search of one of her bags revealed that she in fact had $9,000. As the agents questioned Hassan further, they learned that she did not have a passport. She initially told the agents that her name was Shade Adetola, the name also on her airline ticket. After the agents discovered a temporary resident alien card (green card) for Gbemi Hassan and a photograph on that card that strongly resembled the defendant, she admitted that her name was Gbemi Hassan. Shortly before a female agent searched Hassan's person, Hassan revealed that she had an additional $4,000 United States currency hidden in her undergarments.

After collecting all of Hassan's money, the agents placed it in a box and subjected it to narcotics detection by a trained dog. In a room full of similar boxes, the dog was strongly attracted to the box containing Hassan's currency, indicating the presence of narcotics on the money.

Hassan was arrested and charged with knowingly and willfully making false, fictitious and fraudulent statements or representations to the United States Customs Service, in violation of 18 U.S.C. Sec. 1001. Following a detention hearing before a magistrate, the magistrate found a serious risk that Hassan might flee and ordered that she be detained. The magistrate based the decision on the multiple aliases and social security numbers used by Hassan, the false answers given to government agents at her arrest, and the magistrate's finding that the testimony given by Hassan at the hearing was difficult to believe and implausible.

The grand jury indicted Hassan on two counts. Hassan pleaded guilty to the second count--knowingly and willfully failing to report attempted transportation of United States currency of more than $10,000, in violation of 31 U.S.C. Secs. 5316(a), 5322(a). The presentence investigation report recommended a sentencing level of thirteen--the base offense level as agreed upon by the parties in the plea agreement. U.S.S.G. Sec. 2S1.3(a)(1). The government requested an increase of five levels, as provided in the Guidelines for the situation in which a defendant knew or believed that the funds were criminally derived. U.S.S.G. Sec. 2S1.3(b)(1).

The district court judge imposed a sentence of thirty-three months imprisonment, three years supervised release, a fine of $13,162 and a special assessment of $50, after determining the offense level to be twenty. Starting with the base offense level of thirteen, the court then added the requested five levels pursuant to Guidelines section 2S1.3(b)(1) because it determined that Hassan knew or believed the funds she was carrying were criminally derived. The district court increased the sentence an additional two levels pursuant to Guidelines section 3C1.1, based on its conclusion that Hassan obstructed justice by testifying untruthfully at the detention and sentencing hearings.

II. ANALYSIS

Hassan asserts that the district court did not give proper consideration to the facts of the case in making its sentencing determination, and therefore violated her fifth amendment due process rights. We note that the "due process clause requires courts to use procedures adequate to reach informed and accurate decisions in the main; it does not guarantee that all decisions will be correct or persuasive to the accused." United States v. Escobar-Mejia, 915 F.2d 1152, 1154 (7th Cir.1990) (citations omitted). In reviewing a district court's sentencing determination, this court "shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. Sec. 3742(e). See United States v. Gant, 902 F.2d 570, 571 (7th Cir.1990); United States v. Vopravil, 891 F.2d 155, 157 (7th Cir.1989).

A. Criminally Derived Property

Guidelines section 2S1.3(b)(1) states, "[i]f the defendant knew or believed that the funds were criminally derived, increase by 5 levels." U.S.S.G. Sec. 2S1.3(b)(1). ² In its objection to the presentence report filed by Hassan's probation officer, the government presented its reasons for requesting the section 2S1.3(b)(1) increase in Hassan's offense level. The government contended that the money Hassan attempted to transport was derived from illegal drug trafficking. The government listed the evidence that it viewed as indicative of Hassan's knowledge or belief that the currency she failed to declare was criminally derived.

The government's presentence objection included eight major reasons for the requested increase. First, a narcotics dog reacted positively to the money taken from Hassan upon her arrest. Second, Hassan's bank account records showed a series of large deposits and large withdrawals in 1988. ³ Hassan also made a deposit of $1,500 on December 19, 1988, after an earlier trip to Nigeria, and a withdrawal of $1,400 on December 28, 1988, the day before her attempted return. Third, in July 1988, Hassan exchanged $7,000 in United States currency, all in less than one hundred dollar denominations, for $7,000 in larger denominations of United States currency. Fourth, during the period in which Hassan deposited over $12,000 to her bank account, she earned a total of $3,600 to $4,100 from her job at a nursing home. Fifth, Hassan had been unemployed for the three months prior to her arrest. During that time she had twice purchased tickets to Nigeria, paying $1,150 in cash for the second trip alone. She also was renting an apartment for $74 per month. Sixth, Hassan maintained a relationship with Abbey Ogundipe, a man whose wife maintained that he was a heroin dealer and whose seemingly drug-related murder bolstered that assertion. Hassan lived in his house for a short time. Seventh, following her arrest, customs officials intercepted a package sent to Hassan which contained a Nigerian passport in her name, bearing her signature and picture. Eighth, when arrested, Hassan had concealed $4,000 in her undergarments, ⁴ and she lied to the customs officials about the amount of money she was carrying. In addition, at her detention hearing she lied about the source of the money, her bank accounts, and the $7,000 currency exchange.

Hassan asserts that "extenuating circumstances" explain the conduct that she feels the government mischaracterized, and she claims that she revealed the reasons for her behavior in her testimony at both the detention and sentencing hearings. Because of the importance of these claimed "extenuating circumstances" to the sentencing determination, we include some of the highlights.

Hassan testified that she came to the United States in 1978. She entered the country illegally and initially used the name Gbemi Ogbara. She stopped using that name and began using her real name, Gbemi Hassan, when she applied for amnesty in 1988. At the detention hearing, Agent Koszola stated that when he questioned Hassan on December 29, 1988, she said that she had not left the United States for twelve years. Koszola later revealed that Hassan's Nigerian passport, found in the package intercepted by customs officials, showed that earlier in December 1988, Hassan traveled to Nigeria. Upon her return to the United States from that trip, she filled out a currency disclosure form.

In her testimony at the detention hearing, Hassan denied having told the agent that she had not left the country for twelve years. She explained that she made the earlier December journey to Nigeria to visit...