U.S. v. Salas-Camacho

• Citation: 859 F.2d 788
• Decision Date: 19 October 1988
• Docket Number: D,No. 87-5341,SALAS-CAMACH,87-5341
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vapsi Akiramefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 788

859 F.2d 788

111 A.L.R.Fed. 779

UNITED STATES of America, Plaintiff-Appellee, v. Vapsi Akiram SALAS-CAMACHO, Defendant-Appellant.

No. 87-5341.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 2, 1988.

Decided Oct. 19, 1988.

Edmundo Espinoza, San Diego, Cal., for defendant-appellant.

William Q. Hayes, Asst. U.S. Atty., argued, Roger W. Haines, Jr. and William Q. Hayes, Asst. U.S. Attys., on the brief, San Diego, Cal., for plaintiff-appellee.

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

Before WALLACE, FARRIS and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Vapsi Akiram Salas-Camacho appeals his conviction for smuggling goods into the United States, in violation of 18 U.S.C. Sec. 545, and making two false denials that he was bringing merchandise into this country, in violation of 18 U.S.C. Sec. 1001. He claims that because he declared the goods at the secondary inspection station, he cannot be convicted of smuggling. He also argues the district court erred in rejecting jury instructions to that effect. We need also to decide if the appellant can be convicted twice of making the same denial to Customs officials. We affirm.

BACKGROUND

On May 4, 1987, Salas-Camacho attempted to enter the United States from Mexico at the port of entry at San Ysidro, California. He was driving a white Chevrolet pickup truck and was accompanied by a friend. He stopped at the primary inspection station and customs inspector Thomas Morin asked the appellant his citizenship, where he lived, how long he had been in Mexico, and if he was bringing anything back from Mexico. He replied that he had made no purchases and was not bringing anything with him from Mexico. Appellant also volunteered information which had not been requested by Inspector Morin and appeared to be rambling. During his questioning of appellant, Inspector Morin observed that he was nervous and overly friendly. Because of these observations, Inspector Morin referred appellant to the secondary inspection area.

There, customs inspector John Davidson approached the truck and asked appellant what he was bringing from Mexico. He replied that he had nothing to declare. Appellant testified that Inspector Davidson never asked him if he had anything to declare. At any rate, Inspector Davidson removed a referral slip from the windshield of appellant's car and entered his name in the Department of Treasury computer system. Inspector Davidson learned from the search that appellant had been previously arrested at the San Ysidro port of entry in possession of undeclared steroids. Inspector Davidson returned to the vehicle and requested that appellant exit the truck. Inspector Davidson confronted appellant with his prior stop for failing to declare steroids, at which point appellant admitted that he had been stopped before and that he presently had steroids in his truck. Three boxes of steroids were retrieved from the vehicle.

On May 15, 1987, a grand jury indicted appellant for one count of illegal importation of merchandise, in violation of 18 U.S.C. Sec. 545, and two counts of making false statements to a federal officer in violation of 18 U.S.C. Sec. 1001. He was convicted of all counts on September 23, 1987. On November 9, 1987, appellant was sentenced on count 1 to a suspended sentence and was placed on probation for a period of three years on the condition that he be confined in a jail-type institution for six months and then returned to Mexico. On counts 2 and 3, the appellant received the same sentence, both to be served concurrently. Appellant timely appeals. We have jurisdiction by virtue of 28 U.S.C. Sec. 1291. Appellant has been released from custody, and is now serving his probation.

DISCUSSION

I. The Smuggling Count

The relevant portion of 18 U.S.C. Sec. 545 provides that "[w]hoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law" shall be guilty of a crime, and that "[p]roof of defendant's possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section." Id. Appellant claims that he cannot be convicted under this section because he did, indeed, declare the steroids at the secondary inspection area. We review this question of law de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

This argument has no merit. An importer has an obligation to stop and declare items intended for entry into the United States. United States v. Davis, 597 F.2d 1237, 1239 (9th Cir.1979); United States v. Mirenda, 443 F.2d 1351, 1356-57 (9th Cir.), cert. denied sub nom. Verdugo-Medina v. United States, 404 U.S. 966, 92 S.Ct. 343, 30 L.Ed.2d 286 (1971); see also 19 U.S.C. Sec. 1461 (1982). Courts have required, moreover, that an importer take the first opportunity to declare the goods in their possession. This matter was settled in United States v. Ritterman, 273 U.S. 261, 47 S.Ct. 371, 71 L.Ed. 636 (1927), where the defendant, after being asked numerous times if he had anything to declare, only made a declaration while being searched. Id. at 266, 47 S.Ct. at 371. The Court concluded that the defendant

could not purge himself of the consequences of his fraud by confessing when he saw that he was on the point of being discovered or, as might have been found, after he had been. The argument that in such circumstances he was entitled to ... change his mind and make entry of the goods, seems to us extravagant. Repentance came too late.

Id. at 269, 47 S.Ct. at 372. This rule has been consistently applied in this circuit and in other courts. See United States v. Elksnis, 528 F.2d 236, 239 (9th Cir.1975); Newman v. United States, 276 F. 798, 799-800 (2d Cir.1921), cert. denied, 258 U.S. 623, 42 S.Ct. 317, 66 L.Ed. 796 (1922); Rogers v. United States, 180 F. 54, 60-61 (6th Cir.1910); United States v. 218 1/2 Carats Loose Emeralds, 153 F. 643, 647-48 (S.D.N.Y.), aff'd, 154 F. 839 (2d Cir.1907).

Appellant relies, nonetheless, on language in United States v. 66 Pieces of Jade, 760 F.2d 970 (9th Cir.1985), which stated that the defendant "had the opportunity to declare the jewelry when ... asked whether anyone was bringing anything into the country, and the opportunity to amend his declaration when [he] entered the secondary inspection area...." Id. at 974. 66 Pieces of Jade was, however, a civil forfeiture case under 19 U.S.C. Sec. 1497, and the court there found that a traveler had failed to declare merchandise after being asked twice, but did not rule that a traveler has two separate opportunities to declare goods. Id. Because appellant did not avail himself to the first opportunity to declare the steroids in his possession, he was properly convicted of smuggling merchandise into the United States in violation of 18 U.S.C. Sec. 545.

II. The False Statements

The appellant was indicted on two counts for making a false statement to a government official in violation of 18 U.S.C. Sec. 1001. One count was for making a denial that he had any goods to declare to the primary customs inspector, Thomas Morin. The second was for making the same denial to the secondary customs inspector, John Davidson. At the outset, it should be noted that the jury's guilty verdict on the second count of a false statement to Inspector Davidson resolved the factual dispute of whether Davidson actually questioned appellant about whether he had any goods to declare. Nothing in the record, save for defendant's own testimony, indicates that Davidson failed to question him on that point.

We need to consider whether an importer can be subject to separate counts for making false statements to customs officials for every denial that he has anything to made exactly the same oral denial to the same Secret Service agent twice and then signed a document embodying the same denial. The repetition of Olsowy's initial false statement did not further impair the operations of the government. Once he misled the agent, repeating the lie adds little or nothing to the harm caused to the Secret Service's inquiry. Therefore, we hold that where identical false statements, in either oral or written form, are made in response to identical questions, the declarant may be convicted only once.

                declare.  In United States v. Olsowy, 836 F.2d 439 (9th Cir.1987),cert. denied, --- U.S. ----, 108 S.Ct. 1299, 99 L.Ed.2d 509 (1988), we held that two separate statements made by a claimant to the same Secret Service agent could not be the subject of multiple convictions.  Id. at 443.    The court adopted the earlier reasoning of Gebhard v. United States, 422 F.2d 281, 289-90 (9th Cir.1970), which held that the government could not obtain multiple perjury convictions against a defendant who repeated the very same lie to a grand jury in response to the same question.  The court in Olsowy reasoned that the defendant in their case
                

Id. at 443.

The holding in Olsowy provides a two-part test for determining whether multiplicitous counts...