U.S. v. Warren

• Decision Date: 11 February 1980
• Docket Number: No. 75-4368,75-4368
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John L. WARREN, Jr., David DeFina, Des E. Schick and Thomas A. Warren, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 887

612 F.2d 887

UNITED STATES of America, Plaintiff-Appellee, v. John L. WARREN, Jr., David DeFina, Des E. Schick and Thomas A. Warren, Defendants-Appellants.

No. 75-4368.

United States Court of Appeals Fifth Circuit.

Feb. 11, 1980.

Daniel S. Pearson (court-appointed), Miami, Fla., for John L. Warren.

Sky E. Smith (court-appointed), Miami, Fla., for David DeFina.

Alan Medof (court-appointed), Miami, Fla., for Des E. Schick.

Stewart E. Parsons (court-appointed), Chattahoochee, Fla., for Thomas A. Warren.

Jamie L. Whitten, Asst. U. S. Atty., Miami, Fla., Lewis M. Fischer, Atty., Appellate Section, Crim. Div., Andrew S. Gordon, Washington, D. C., for defendants-appellants.

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

Before COLEMAN, Chief Judge, BROWN, GOLDBERG, ^* AINSWORTH, GODBOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE and KRAVITCH, Circuit Judges. ^**

JOHN R. BROWN, Circuit Judge:

We granted this second rehearing en banc in order to consider policy factors bearing on the use of the concurrent sentence doctrine, ¹ by which we avoided passing upon the correctness of the defendants' currency violation convictions and the underlying correctness of our earlier decisions in United States v. Granda, 1978, 565 F.2d 922, and United States v. Schnaiderman, 1978, 568 F.2d 1208. We have carefully considered the arguments set out in the briefs, but conclude that since the full Court agrees with those decisions this case is no longer a vehicle for consideration of the policies underlying the concurrent sentence doctrine. Thus we express no opinion whatsoever on the use of the concurrent sentence doctrine in this Circuit. We simply reverse on the merits the currency violation convictions of John and Thomas Warren. ²

The Warrens were convicted of transporting more than $5,000 beyond a United States border without filing the report required by 31 U.S.C.A. § 1101(a)(1) (A), in violation of 31 U.S.C.A. § 1058. Those statutes require that the proscribed acts be done "knowingly" and "willfully", respectively. Panels of this Court have held that those words make it necessary that the defendant have Actually known of the currency reporting requirement and have voluntarily and intentionally violated that known legal duty in order to be convicted of the crime. United States v. Granda, 5 Cir., 1978, 565 F.2d 922; United States v. Schnaiderman, 5 Cir., 568 F.2d 1208, Rehearing and rehearing en banc denied, 1978, 573 F.2d 1039. Thus where defendants have not been specifically warned of the reporting requirement prior to being arrested for the crime, the resulting convictions have been reversed as a matter of law. We approve of this interpretation of the currency reporting statutes. The only substantial difference between the instant case and those previously interpreting the statutes is that this case involves the surreptitious transportation of currency across the border at other than a permanent customs checkpoint. We find this difference to be immaterial, and accordingly reverse the Warrens' currency violations as a matter of law.

The relevant facts are adequately described in our prior opinions. ³ The Warrens were stopped after sailing across the border and were found in possession of $41,500 in United States currency and 46,800 Colombian pesos, none of it reported. The record is clear that prior to their arrest the Warrens were not advised of the existence of the reporting requirement, ⁴ nor did the Government introduce any evidence at trial to show that they already knew of the requirement, nor were they given the opportunity to subsequently file a report concerning the currency.

Granda and Schnaiderman reversed currency violation convictions where money had been transported into the United States by way of border checkpoints in airports. Cases in other circuits have been in accord with our holdings in Granda and Schnaiderman, but they too involved only currency transportation by way of a regular border checkpoint. United States v. San Juan, 2 Cir., 1976, 545 F.2d 314 (entered by bus from Canada, passing through regular border checkpoint); United States v. Rodriguez, 9 Cir., 1979, 592 F.2d 553 (entry through international airport); United States v. Shui-Yee Shirley Chen, 9 Cir., 1979, 605 F.2d 433 (entry through international airport).

Because the Warrens set sail from Florida without passing through any regular border checkpoints, this case is the first in which it is arguably impossible for the Government to Easily place travelers on notice of the currency reporting requirement. But the words "knowingly" and "willfully" as read by us apply to ingress and egress of currency alike, and nowhere does the statute distinguish between the ways in which the border is crossed.

In enacting the currency reporting statutes, moreover, Congress sought to avoid damage to international trade and commerce. ⁵ Incident to that concern was an appreciation that travelers are both a part of and creators of international trade and commerce.

Furthermore, requiring notice of the responsibility to report the existence of currency before imposing criminal consequences fits in with the statutory scheme. The act of taking money in excess of $5,000 out of the country "is not illegal or even immoral. What is required is merely a filing of the proper form." Granda, supra at 926. In most cases, the mere transportation of money is an Innocent act, more akin to being present in a city ⁶ than to transferring weapons. ⁷ See United States v. San Juan, supra at 319 (". . . these reporting provisions . . . require the registration of an otherwise innocent item, . . . on which duty is not generally collected.") ⁸

Since the full Court now adopts Granda and Schnaiderman, the currency violation convictions of John and Thomas Warren are reversed, and the District Court is directed to enter a judgment of acquittal as to those convictions. In all other respects and as to all other defendants, our previous en banc disposition is reaffirmed.

The mandate shall issue forthwith for the Warrens' narcotics convictions.

REVERSED IN PART, AFFIRMED IN PART.

RONEY and JAMES C. HILL, Circuit Judges, with whom CHARLES CLARK, FAY and VANCE, Circuit Judges, join, concurring in part and dissenting in part:

We concur in the result reached in this case, but we dissent from the majority's failure to address the concurrent sentence doctrine.

Little useful can be done by a minority opinion because application of a concurrent sentence doctrine is a matter of judicial policy about which the Court has a good deal of discretion. We would join a majority in setting that policy. Nevertheless, it may be useful to summarize the precise arguments presented on rehearing in this case, to set forth briefly the history and prior use of the concurrent sentence doctrine in this Court and its application in other circuits, and to suggest some problems which the Court needs to confront, and should have settled here.

In an unusual procedure on a case already once heard En banc, we granted a rehearing solely "on the concurrent sentence issue." United States v. Warren, 589 F.2d 254 (5th Cir. 1979).

In the original En banc opinion, convictions for violation of 31 U.S.C.A. §§ 1058, 1101, were affirmed under the concurrent sentence doctrine, even though there were previous decisions by this Court that would have required reversal. See United States v. Warren, 578 F.2d 1058, 1076-77 (5th Cir. 1978). Supplemental briefing was requested and extensive briefing was received on three issues:

(1) What guidelines should be applied by the Court of Appeals in deciding whether or not to review a conviction on which the sentence received is concurrent with a sentence received on another conviction, which either has not been appealed or has been affirmed on appeal?

(2) Applying these guidelines to this case, should the Court review the conviction of Thomas A. Warren and John L. Warren, Jr. for violation of 31 U.S.C. §§ 1058, 1101 (1970)?

(3) Assuming that those convictions are to be reviewed, what are the merits of the appeal?

After all this, the Court does nothing whatsoever to resolve the uneven application of the concurrent sentence doctrine in this Circuit. It does, however, review and reverse the convictions, saying only that since the full Court agrees the convictions should be reversed under two prior precedents, it will simply reverse the convictions and express no opinion on the use of the concurrent sentence doctrine.

Thus, the En banc Court seemingly has set this precedent: when the law of the Circuit clearly mandates reversal of any criminal conviction, that conviction should be reviewed and reversed, even though the sentence therefor was concurrent with other valid convictions, without regard to whether adverse consequences would flow from the concurrent sentence.

Because the briefs argue that adverse collateral consequences would result from the sentences, however, the majority opinion's silence on the point makes it impossible to know how this argument may have affected the judgment of members of the Court. The Court, it seems to us, has failed on two scores: first, it has failed to definitely articulate the premise of its decision so that it can serve as a sure precedent; second, in an area of the law that is confused by uneven precedents, it has failed to provide needed guidance for application of the admittedly discretionary concurrent sentence doctrine.

Guidelines Suggested by Parties

In the briefs submitted to this En banc Court, defendants argue their currency convictions should be reviewed despite the concurrent sentence doctrine, or, to be more precise, should be reviewed under certain suggested guidelines for the use of the doctrine. A brief summary of defendants' proposals suggests a broad range of concurrent sentence issues. The following are guidelines under which defendants contend their concurrent...