U.S. v. San Juan

• Decision Date: 10 November 1976
• Docket Number: No. 284,D,284
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Delia Aguilar SAN JUAN, Defendant-Appellant. ocket 76-1300.
• Court: U.S. Court of Appeals — Second Circuit

Page 314

545 F.2d 314

UNITED STATES of America, Plaintiff-Appellee, v. Delia Aguilar SAN JUAN, Defendant-Appellant.

No. 284, Docket 76-1300.

United States Court of Appeals, Second Circuit.

Argued Oct. 5, 1976.

Decided Nov. 10, 1976.

Samuel Gruber, Stamford, Conn. (James W. Murdoch, Burlington, Vt., on the brief), for defendant-appellant.

Jerome F. O'Neill, Asst. U.S. Atty., Rutland, Vt. (George W. F. Cook, U.S. Atty. for the District of Vermont, Rutland, Vt., John R. Hughes, Jr., Asst. U.S. Atty., on the brief), for plaintiff-appellee.

Before LUMBARD, FEINBERG and MESKILL, Circuit Judges.

FEINBERG, Circuit Judge:

In this unusual case, Delia Aguilar San Juan appeals from a judgment of conviction in the United States District Court for the District of Vermont after a jury trial before Judge Albert W. Coffrin on a charge of violating 31 U.S.C. §§ 1058, 1101(a), (b), and regulations adopted thereunder. ¹ These sections, which were enacted as part of the Bank Secrecy Act of 1970, 84 Stat. 1121 (1970), make it a crime willfully to transport into the United States monetary instruments exceeding $5,000 without filing a report thereof. Appellant raises a host of constitutional and other objections to her conviction. We need not deal with most of them because we find that the manner in which this case was tried worked a fundamental unfairness on appellant, and that a jury could not determine beyond a reasonable doubt that she had committed a crime. Accordingly, we reverse and, for reasons set forth below, also direct dismissal of the information.

I

In March 1975, appellant was a passenger on a bus coming from Canada into the United States through a port of entry at Highgate Springs, Vermont. She had with her $77,500 in cash in two brown packages in her valise. Customs Inspector Robert M. Johnson checked appellant's passport on the bus and asked her whether "she had purchased or acquired any items she bought in Canada or bringing any items in from Canada?" She replied that she had bought some candy for her children. Johnson did not ask appellant whether she had money with her in excess of $5,000, and appellant made no reference to the cash in her bag. Johnson did not give appellant Customs Declaration Form 6059-B, which included the question, "Are you . . . carrying over $5,000 in coin, currency or monetary instruments?" with a box to be checked for a "Yes" or "No" answer. Johnson then examined appellant's luggage and noticed her nervousness when she opened the bag and he saw the brown packages. Appellant said they were books.

Suspecting that the packages contained contraband, Johnson asked appellant to leave the bus and come to the nearby customs house. The packages were opened in the presence of Johnson and another inspector, Joan McClatchey, and were found to contain 775 bills of $100 each and letters indicating that the money was to be used for underground political purposes in the Philippines. Johnson then took the contents of the packages to the Port Director; none of it was returned to appellant. Appellant became very upset but eventually quieted down. In the course of the next few hours, Johnson presented appellant with Form 4790, entitled "Report of International Transportation Currency or Monetary Instruments" and told her that the form had to be filled out by anyone crossing the border with more than $5,000 in currency. Johnson was also joined by two Special Agents. Appellant asked for permission to telephone her husband to clarify the form. This was denied. Mrs. San Juan was given Miranda warnings and answered a number of questions. At the end of the interrogation, appellant was told that whether she signed the form or not, the Government was going to keep the money. Finally, when it became clear that appellant was not going to sign the form, she was allowed to call her husband and to leave.

In October 1975, an information was filed ² charging appellant with violating 31 U.S.C. §§ 1058, 1101(a), (b), and 31 C.F.R. §§ 103.23(a), 103.25(b), relevant portions of which are reproduced in the margin. ³ The information did not state whether the alleged crime occurred on the bus or in the customs house. Appellant moved to dismiss the information on the ground that the statute and regulations, which were allegedly violated, were unconstitutional. Appellant also moved to suppress the cash and documents taken from her at the customs station. ⁴ In its memorandum in opposition to the latter motion, the Government took the position that the alleged crime occurred on the bus when Mrs. San Juan "failed to declare the monetary instruments." ⁵ In late December 1975, Judge Coffrin denied the motion to dismiss and the motion to suppress. His opinion, reported at D.C., 405 F.Supp. 686, discussed at length the constitutional issues raised by defendant, some of which are quite substantial.

In January 1976, Mrs. San Juan moved to dismiss the information on the ground that, when read together with the Government's position referred to above, the information did "not charge an offense under the Bank Secrecy Act." ⁶ In its memorandum in opposition to that motion, the Government reiterated its theory

that the violation took place on the bus at the time that the defendant failed to declare the monetary instruments to Inspector Johnson. ⁷

At argument on the motion, the judge inquired whether the Government's claim was that

the offense occurred when the defendant failed to make a declaration on the bus. There isn't any question about that, is there?

The prosecutor replied:

No, there isn't, your Honor, that is no problem. The Assistant United States Attorney here stated that is his concept of the case.

The judge denied the motion to dismiss on the grounds that it was premature and that the information did charge an offense. When defense counsel then sought permission to file a motion for a bill of particulars, the judge denied it as "untimely."

At trial, the Government proceeded on its theory that the crime was committed on the bus. This was made clear in the prosecutor's opening statement to the jury, in his argument on the admissibility of evidence, in his response to defendant's motion for judgment of acquittal, and in the prosecutor's closing argument to the jury. For example, the following colloquy took place during the trial in argument over the admission of certain letters:

Mr. O'Neill (for the Government). Your Honor, for purpose of the record, I don't think I need to go into this again, but we made it clear as snow. We filed a bill of particulars. ⁸ The violation, as far as we are concerned, took place on the bus. The jury is not making a determination that she refused to sign the form.

The Court. To elaborate more, the Government has steadfastly insisted the violation took place on the bus. In what respect do you claim it took place on the bus?

Mr. O'Neill. We contend the violation took place on the bus at the point in time when Mrs. San Juan declined to inform the customs inspector she had material with her. She indicated she wasn't filing any type of report. She lied about what the material was. Our position is to that point in time.

The Court. This is the only time of the violation, as far as the Government is concerned?

Mr. O'Neill. We believe there are violations when she declined to sign it inside. However, we indicated we are not charging her with doing that at this point in time. This information is intended to point to the refusal on the bus, not refusal inside. We believe she can be charged with that, however, but we are not charging her with that incident in this case.

Similarly, in closing, the prosecutor argued:

To clarify one thing in the things Mr. Gruber (defense counsel) charges as to where did the violation take place, it took place on the bus. To follow any other theory is to render that statute totally meaningless. Mrs. San Juan, at that point in time, made no attempt to file the written report. If she had said to the officer on the bus "You asked if I purchased anything, yes, I have $77,500" and he said "Well, you have to file a report," we wouldn't be here today. That violation took place right there on that bus and no written report was filed.

In response to this repeated claim, defense counsel continually stressed that no crime was committed on the bus primarily because the statute did not cover oral declarations and because defendant at that time had no idea she had to file a report.

During the trial, the judge seemed to accept the Government's theory of the case. In ruling that the letters referred to above were admissible, the judge cautioned the jury:

You will recall this is when she came into the country that the Government claims the report should have been filed, and further, the Government claims that the offense occurred when she failed to report when she had this money in her possession at the time she was on the bus and she was first asked about it. ⁹

Now she is charged with no other offense in this matter, and you are not to consider these letters in connection with any other offense. I know of no other offense, as a matter of fact.

The judge's charge addressed this issue to some extent, as follows:

(Y)ou will remember that defendant's counsel conceded in his opening statement that his client, in fact, did not file the report. You will also recall that the attorney for the United States, in his opening statement, advised that it is the Government's contention that the violation with which the defendant is charged occurred on the bus when she arrived in this country. In this regard, there was testimony that when questioned on the bus by a customs officer, the defendant failed to state or advise him that she was carrying a large amount of currency or monetary instruments as they are referred to in the statute. This testimony, if believed by you, standing alone does not constitute proof of the offense charged, as the statute and regulations do not require oral statements...