U.S. v. One (1) Lot of Twenty-Four Thousand Nine Hundred Dollars ($24,900.00) in U.S. Currency, TWENTY-FOUR

• Decision Date: 17 September 1985
• Docket Number: No. 84-5207,TWENTY-FOUR,84-5207
• Citation: 770 F.2d 1530
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. ONE (1) LOT OFTHOUSAND NINE HUNDRED DOLLARS ($24,900.00) IN U.S. CURRENCY, Defendant, Robert Chemaly, Claimant-Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1530

770 F.2d 1530

UNITED STATES of America, Plaintiff-Appellant, v. ONE (1) LOT OF TWENTY-FOUR THOUSAND NINE HUNDRED DOLLARS

($24,900.00) IN U.S. CURRENCY, Defendant,

Robert Chemaly, Claimant-Defendant-Appellee.

No. 84-5207.

United States Court of Appeals, Eleventh Circuit.

Sept. 17, 1985.

Stanley Marcus, U.S. Atty., Michael W. Burnbaum, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellant.

Lawrence Rosen, Miami, Fla., for claimant-defendant-appellee.

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

Before GODBOLD, Chief Judge, HILL, Circuit Judge, and PECK ^*, Senior Circuit Judge.

JAMES C. HILL, Circuit Judge:

Appellant United States appeals a district court order dismissing its complaint for forfeiture in rem, brought under 31 U.S.C. Sec. 5317(b). The district court held that the complaint failed to state a claim under 31 U.S.C. Sec. 5317(b) because it did not allege that Robert Chemaly, the traveler who allegedly failed to report the currency in compliance with 31 U.S.C. Sec. 5316, acted with knowledge of the currency reporting requirements. We affirm, holding that such knowledge is an element of a civil forfeiture action brought pursuant to 31 U.S.C. Sec. 5317(b). ¹

FACTS

In 1982, the United States Customs Service seized $24,900 from Robert Chemaly at Miami International Airport. Chemaly A complaint for forfeiture in rem was filed against the defendant currency. Chemaly filed a claim of possession to the currency and a motion to dismiss the complaint on the ground that it failed to allege that he acted with knowledge of the reporting requirements of 31 U.S.C. Sec. 5316. The district court granted the motion. The United States filed notice of appeal. ³

                who was attempting to leave the United States for Aruba with the currency on his person, failed to report his exportation of currency in excess of $5000, as then required by 31 U.S.C. Sec. 5316. 2   Chemaly subsequently was indicted and convicted of violating 18 U.S.C. Sec. 1001 and former 31 U.S.C. Sec. 1101 (1976) (recodified at 31 U.S.C. Sec. 5316).  That conviction has been overturned by this court.   United States v. Chemaly, 741 F.2d 1346 (11th Cir.1984)
                

DISCUSSION

At the time the currency was seized, 31 U.S.C. Sec. 5316 required, among other things, that a person file a currency transaction report when that person "knowingly ... transports ... monetary instruments of more than $5000 at one time ... from a place in the United States to or through a place outside the United States...." ⁴ Civil forfeiture statute, 31 U.S.C. Sec. 5317(b), provided that "[a] monetary instrument being transported may be seized and forfeited to the United States Government when a report on the instrument under [31 U.S.C.] section 5316 ... had not been filed...." ⁵

The government argues that specific knowledge of the reporting requirement of section 5316 is not an element of a section 5317 civil forfeiture action. According to the government, the term "knowingly," as used in section 5316, applies only to transportation of the currency, not to the reporting requirements. The only knowledge requirement is that the traveler know he or she is importing the currency.

This is a question of first impression in our circuit. Not too long ago, the former Fifth Circuit, whose precedent binds us, faced a similar question in the context of a criminal prosecution for violation of the reporting requirements of former section 1101 (now section 5316). Under former 31 U.S.C. Sec. 1058 (now 31 U.S.C. Sec. 5322), a person is subject to criminal penalties for "willfully violating" the reporting requirements of section 1101 (now section 5316). ⁶ The former Fifth Circuit held that "the terms knowing [in the reporting statute] and willful [in the criminal statute] require proof of the defendant's knowledge of the reporting requirement and his specific intent to commit the crime." United States v. Granda, 565 F.2d 922, 925-26 (5th Cir.1978) (emphasis in original). See also United States v. Warren, 612 F.2d 887 (5th Cir.) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980); United States v. Schnaiderman, 568 F.2d 1208 (5th Cir.1978). ⁷

It is clear that the terms of a statute cannot have one meaning when a criminal prosecution is brought and another when a civil action is brought. United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943). This would indicate that if the terms "knowingly transport," in section 5316, require knowledge of the reporting requirements in the context of a criminal action, they do so in the context of a forfeiture action as well. However, appellant United States argues that the decision in Granda and the other criminal cases is not controlling, or even applicable, because the criminal provision requires that the violation of the reporting requirements be a "willful" one, while the forfeiture provision has no such "willfulness" requirement. It requires only a failure to file a report.

This distinction, based on the "willfulness" requirement of the criminal statute, was rejected by the only other circuit court to address the issue we now face. In United States v. $48,595, 705 F.2d 909, 914 (7th Cir.1983) (emphasis in original), the Seventh Circuit stated, "[i]t is not clear that this distinction is warranted in light of the Fifth Circuit's reliance on the language of both Sections 1058 ["willfulness"] and 1101 [now 5316] ["knowingly"] ". See, e.g., Granda, 565 F.2d at 925-26 (emphasis in original) ("We ... hold that the terms knowing and willful require proof of the defendant's knowledge of the reporting requirements and his specific intent to commit the crime"); Schnaiderman, 568 F.2d at 1211 ("This court [in Granda] ... held that since 31 U.S.C.A. Sec. 1101 requires 'knowing' transportation and since Sec. 1058 requires a 'willful' violation, there must be proof of the defendant's knowledge of the reporting requirement and his specific intent to commit the crime"). Relying on Granda, the Seventh Circuit indicated that knowledge of a reporting requirement is an element in a forfeiture case. ⁸

At least one court has suggested that, in Granda, the Fifth Circuit seemingly derived the knowledge requirement from the term "knowingly" in section 5316 and the specific intent requirement from the term "willfully" in the criminal provision. ⁹ United States v. $40,500, Case No. 78-3029 Civ-CA, slip op. at 7 (S.D.Fla. June 26, 1980). We further note that the terms "willful" and "knowing" often are construed as synonymous. E.g., United States v. Murdock, 290 U.S. 389, 394, 54 S.Ct. 223, 225, 78 L.Ed. 381 (1933); United States v. Kelley, 546 F.2d 42, 42 (5th Cir.1977); Townsend v. United States, 95 F.2d 352, 357 (D.C.Cir.1938). See also Black's Law Dictionary 1012 (4th ed. 1951) (defines "knowingly" as "[w]ith knowledge; consciously; intelligently, willfully; intentionally"). Whatever the Granda court's reason for relying on the "knowingly" language, as well as the "willfully" language, the crucial fact is that the court did so. This cannot be ignored.

Appellant United States also argues that Granda and the other criminal cases are not controlling because the rationale of these decisions rested in large part on the fact that the statute being interpreted was a criminal statute. It is true that the court in Granda, 565 F.2d at 926, stated,

Congress, by adding these terms ["knowing" and "willful"], 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.

We do not find this passage or any other comments in Granda to indicate that involvement of a criminal statute was essential to the decision. The same rationale applied in Granda can be applied to the forfeiture statute, since the legislative history indicates that Congress intended for the reporting requirements of section 5316 and the forfeiture provisions of section 5317 to motivate travelers to file currency reports. See discussion infra pp. 1534 - 1535.

For the foregoing reasons, we find Granda and the other criminal cases probably controlling, and, at the very least, persuasive authority. ¹⁰ However, we need not, and do not, rest our decision on these cases alone. The legislative history of section 5316 and the civil forfeiture provision indicates that Congress intended knowledge of the reporting requirements to be an element of a forfeiture action.

Section 5316 and the civil forfeiture provision are part of the Currency and Foreign Transactions Reporting Act of 1970. The purpose of the Act is to require reports of foreign transactions where such reports would be helpful in investigations of criminal, tax and regulatory violations. Senate Committee on Banking and Currency, S.Rep. No. 1139, 91st Cong., 2d Sess. 7 (1970) (hereinafter cited as Senate Report); House Committee on Banking and Currency, H.R.Rep. No. 975, 91st Cong., 2d Sess. 19-20, reprinted in 1970 U.S.Code Cong. & Ad.News 4404-05 (hereinafter cited as House Report). The Act is aimed solely at obtaining reports of certain transactions. See id.; Senate Report at 7. There is nothing illegal in transporting currency across the border. Only the failure to report gives rise to any liability. See Warren, 612 F.2d at 891; Granda, 565 F.2d at 926. Particularly when the Act was first passed, travelers were not likely to know about the requirements or even to suspect there may be any such reporting requirements. Thus, the purpose of the Act--obtaining reports--could only be achieved if travelers were made aware of the reporting...