U.S. v. Milian-Rodriguez

• Decision Date: 28 September 1987
• Docket Number: MILIAN-RODRIGUE,D,No. 86-5036,86-5036
• Citation: 828 F.2d 679
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ramonefendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 679

828 F.2d 679

UNITED STATES of America, Plaintiff-Appellee, v. Ramon MILIAN-RODRIGUEZ, Defendant-Appellant.

No. 86-5036.

United States Court of Appeals, Eleventh Circuit.

Sept. 28, 1987.

Fred A. Schwartz, Entin, Schwartz, Barbakoff & Schwartz, Lorraine C. Holmes, North Miami Beach, Fla., for defendant-appellant.

Leon B. Kellner, U.S. Atty., Linda Collins Hertz, Stephen Schlessinger, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before TJOFLAT and EDMONDSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

I.

A.

Ramon Milian-Rodriguez, the appellant in this case, is a Florida-based certified public accountant who served as the registered agent of Cambios Monetarios Internacional, S.A. (Cambios), a Panamanian company engaged in currency trading, exchange, and investment. In his capacity as Cambios' registered agent in the United States, appellant was empowered to conduct business on behalf of that company. Beginning in November 1982, agents assigned to Operation Greenback, a Miami-based federal task force investigating currency violations, received information from law enforcement authorities in Panama that appellant was traveling frequently to Panama with extremely large sums of United States currency. Upon checking government records, federal agents found that neither Cambios nor appellant had filed Currency Transaction Reports (CTRs) and Currency and Monetary Instrument Reports (CMIRs), as required by federal law, see 31 U.S.C. Secs. 5313, 5316 (1982). ¹ Accordingly, the Government began an investigation of appellant and placed him under scrutiny.

On two occasions in April 1983, federal agents observed appellant departing for Panama aboard his Lear jet, which had been loaded with suspicious cargo. They subsequently confirmed that the cargo consisted of large quantities of United States currency, for which none of the requisite disclosure forms had been filed. On the morning of May 4, 1983, federal agents, who had reason to believe that appellant would be making another trip to Panama, saw appellant's plane being loaded in precisely the same manner as on the two previous occasions. After appellant arrived at the airport and boarded the plane, the airport control tower personnel received the Lear jet's flight plan, which indicated that the plane would be traveling non-stop to Panama. Appellant had not filed a CMIR in connection with this flight, although he could have complied with that law at any time before boarding the plane. See United States v. Rojas, 671 F.2d 159, 162-63 (5th Cir. Unit B 1982). ²

When appellant's jet proceeded to the runway for takeoff, federal agents stopped the plane, escorted the passengers and crew away from the aircraft, and searched the cabin. The cabin search revealed approximately twenty boxes containing almost $5.5 million in United States currency. In addition, the agents found appellant's attache case in the cabin. This case contained detailed records concerning appellant's money-laundering activities and documenting his transportation of approximately $146 million to Panama between August 1982 and April 1983.

While the search was taking place, the agents took appellant to an office located in the airport complex. Federal agents informed him that he was not under arrest. Nonetheless, while awaiting the completion of the search, appellant told an agent that he wished to speak with the individual who was in charge of the investigation. Two senior Customs agents then met with appellant in the airport office of his company, Consolidated Courier Service. He offered his full cooperation, at which time the Customs agents summoned an Assistant United States Attorney and read appellant his rights.

Apparently seeking to become a government informant, appellant proceeded to admit his deep involvement in an international narcotics and money-laundering network, describing himself as the biggest money launderer in the country and characterizing his clientele as the "who's who" of the South Florida drug underworld. In addition, appellant signed a written consent authorizing Operation Greenback agents to search his business office in Coconut Grove, Florida.

Beginning that evening, federal agents conducted a thorough search of appellant's business premises, during which they encountered a locked closet in appellant's office. Appellant had told the agents that the key to the closet was in the attache case that the agents had already seized from the Lear jet, but the agents decided to pick the lock and open the closet instead of retrieving the key. The closet contained a number of bags, two of which contained several firearms, including an Uzi semi-automatic assault rifle. Another bag contained approximately sixty-two pounds of highly pure cocaine, next to which the agents found a scale and a device used to measure the purity of substances such as cocaine.

After discovering these items, the agents proceeded to appellant's home, where they placed him under arrest. He asked what had prompted the arrest and, after being informed about the cocaine, he stated that he had forgotten that his office closet contained the illicit drugs. Appellant then consented to a search of his home, in which the agents found additional firearms and a substantial amount of counterfeit currency.

B.

The Government brought a sixty-two count indictment against appellant in the United States District Court for the Southern District of Florida. The indictment charged appellant with racketeering, unlawful transportation of drug proceeds, failure to file CTRs and CMIRs, possession of cocaine with intent to distribute, and unlawful possession of counterfeit currency. Appellant moved to suppress virtually all the evidence that had been uncovered in the course of the investigation. The district court held that the stop and search of appellant's plane was lawful, but suppressed as being beyond the scope of the consensual search the evidence that the Government had obtained by opening the locked office closet. The court also suppressed the evidence the agents had obtained from appellant's home after his arrest, finding that the agents should have obtained a search warrant. The Government appealed the district court's suppression order, see 18 U.S.C. Sec. 3731 (1982) (authorizing Government appeal of suppression orders), and a panel of this court reversed. United States v. Milian-Rodriguez, 759 F.2d 1558 (11th Cir.), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 112 (1985). We held that appellant had consented to the search of his office closet and that his warrantless arrest and the subsequent search of his home was justified by several exigent circumstances, including the possibility that he might flee, pose a danger to arresting officers or to the public, or destroy or remove evidence.

On remand, appellant brought a renewed motion to suppress evidence obtained from the search of his plane, based on United States v. Chemaly, 741 F.2d 1346 (11th Cir.1984), vacated, 741 F.2d 1363, reinstated, 764 F.2d 747 (11th Cir.1985) (en banc). The district court denied the motion both because it was untimely and because it was meritless. The jury thereafter returned guilty verdicts on all counts of the indictment except the charge of possession of cocaine with intent to distribute, on which the jury was unable to reach a verdict, and the charge concerning possession of counterfeit currency, on which the jury acquitted appellant. By stipulation of the parties and with the consent of the district court, the cocaine possession count was submitted to the trial judge for adjudication based on the pre-existing trial record. Subsequently, the court found appellant guilty on that count. Appellant then brought this appeal, challenging his convictions on five grounds, only two of which warrant discussion. We affirm.

II.

Appellant's primary claim of error is that the district court failed to suppress the fruits of the warrantless outgoing border search of his Lear jet. According to appellant, the warrantless search of his plane violated 31 U.S.C. Sec. 5317 (1982), as this court interpreted that statute in United States v. Chemaly, 741 F.2d 1346 (11th Cir.1984), vacated, 741 F.2d 1363, reinstated, 764 F.2d 747 (11th Cir.1985) (en banc). Section 5317(a) provides as follows:

The Secretary of the Treasury may apply to a court of competent jurisdiction for a search warrant when the Secretary reasonably believes a monetary instrument is being transported and a report on the instrument under section 5316 of this title has not been filed or contains a material omission or misstatement. The Secretary shall include a statement of information in support of the warrant. On a showing of probable cause, the court may issue a search warrant for a designated person or a designated or described place or physical object. This subsection does not affect the authority of the Secretary under another law.

In Chemaly, this court observed that section 5317 imposed a statutory warrant requirement to protect tourists and other travelers from "random, warrantless searches" by law enforcement officers seeking evidence of federal currency reporting violations. Chemaly, 741 F.2d at 1350. In response to the government's contention that the "border exception" to the fourth amendment's warrant requirement rendered warrantless searches lawful, the court held that the border exception does not relieve the government of the section 5317 warrant requirement in the case of an outgoing border search involving possible currency reporting violations. Id. at 1351-52. We stated as follows:

To construe the statute as suggested by the government would render it meaningless. Individuals traveling out of the country violate the currency reporting requirements at the border, if at all. Congress manifested its intent to preserve the privacy of...