U.S. v. Woodward

• Decision Date: 29 February 1984
• Docket Number: No. 81-1140,81-1140
• Citation: 726 F.2d 1320
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Noel WOODWARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1320

726 F.2d 1320

UNITED STATES of America, Plaintiff-Appellee, v. Charles Noel WOODWARD, Defendant-Appellant.

No. 81-1140.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Sept. 11, 1981.

Withdrawn from Submission June 18, 1982.

Resubmitted July 9, 1982.

Decided Aug. 5, 1983.

As Modified on Denial of Rehearing and Rehearing En Banc

Feb. 29, 1984.

Andrea Sheridan Ordin, U.S. Atty., Carolyn Turchin, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Terry Amdur, Pasadena, Cal., for defendant-appellant.

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

Before KASHIWA, ^* Court of Claims Judge, FLETCHER, and NORRIS, Circuit Judges.

FLETCHER, Circuit Judge:

Woodward appeals from a conviction on two counts for failing to report approximately $22,000 in United States currency he was carrying as he entered the country. We affirm his conviction under 31 U.S.C. Sec. 1058 (1976), the second count, but reverse his conviction under 18 U.S.C. Sec. 1001 (1976), the first count, because we conclude that the section 1001 offense merges into the section 1058 conviction pursuant to the statutory interpretation rule of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

FACTS

On March 1, 1980, Charles Noel Woodward, the defendant and appellant, arrived with his wife Diane at Los Angeles International Airport on an incoming flight from Brazil. Woodward filed a U.S. Customs declaration form on which he stated that neither he nor any member of his family was carrying monetary instruments in excess of $5,000 into the United States. Under 31 U.S.C. Sec. 1101 (1976), Woodward was required to report any such currency in excess of $5,000.

While the Woodwards were being processed through customs, Customs inspectors determined that Woodward was a fugitive from prosecution in Greece. The inspectors also noticed an unnatural-looking bulge under Diane Woodward's clothing. When they told Woodward that his wife would be taken to a private room for a secondary Following the discovery of the money, Woodward was interviewed by Customs Agents Donald Shruhan and Robert Olson in a small search room at the airport. The agents asked Woodward to explain the circumstances surrounding his transportation of the unreported currency. Woodward told him that the money came from an insurance settlement relating to a burglary he had suffered while in Belgium. During this interview, Woodward also said that while he was in Belgium, an unidentified person at the U.S. Embassy had informed him that he was required to declare the currency to customs officials. But Woodward added that he did not report the currency because he thought that the requirement applied only to "personal money," and that "insurance money" was separate.

search, Woodward admitted that he and his wife were carrying about $22,000 in unreported United States currency. A subsequent search of Diane Woodward revealed $10,000 in $100 denomination bills concealed in a money belt secured about her waist. Charles Woodward produced approximately $12,000, which he had hidden in his boot.

Following the interview, which according to Agent Olson lasted between fifteen and twenty minutes, Woodward was permitted to leave the airport. Customs officials retained all but $1,560 of the unreported funds, however, pending forfeiture proceedings pursuant to 31 U.S.C. Sec. 1102(a)(1976). Later, Woodward undertook a series of efforts to obtain remission of the seized funds, pursuant to the authority of 31 U.S.C. Sec. 1104 (1976). He wrote to the Director of Customs, and on March 27, 1980, he met with two customs agents in his apartment. In November, 1980, Woodward visited the office of Ronald Edelstein, Chief of Fines, Penalties, and Forfeitures for the Customs Service, in San Pedro, California. Edelstein advised Woodward to contact Assistant United States Attorney Steven Petersen in Los Angeles to obtain information about the status of his case.

On December 11, Woodward met with Petersen in Petersen's office. Woodward volunteered the entire story of the unreported currency. In contrast to the story Woodward told the customs investigators at the airport, however, Woodward told Petersen that he did not declare the currency on the form because a vice-consul in South Africa had told him that insurance proceeds could be declared orally.

At no time during his airport detention and interrogation or subsequent conversations with Government officials was Woodward informed that he could be subject to criminal prosecution and that any statement he made could be used against him in such a proceeding. Yet the Justice Department on December 16, 1980 filed a two-count indictment charging Woodward with violating 18 U.S.C. Sec. 1001 and 31 U.S.C. Sec. 1101 by failing to declare the currency in excess of $5,000 that he was carrying. At trial, the Government relied upon the inconsistencies among Woodward's statements to help establish that he had known of the reporting requirement.

Woodward was convicted on both counts. On the 18 U.S.C. Sec. 1001 count, he was sentenced to six months in prison; on the 31 U.S.C. Sec. 1058 count (which punishes violations of 31 U.S.C. Sec. 1101 (1976)), he received a consecutive sentence of three years of probation. Also, Woodward was ordered to inform any future employer of this criminal record. From these convictions, Woodward now appeals.

I

Merger of 18 U.S.C. Sec. 1001 and 31 U.S.C. Sec. 1058.

The two counts of Woodward's indictment charged him with two separate offenses based on the exact same conduct: His false declaration that he was not carrying over $5,000 in United States currency. ¹

The first count charged that Woodward had willfully made a false statement to the Government when he submitted the false Customs declaration, in violation of 18 U.S.C. Sec. 1001, the statute that punishes fraud against the United States Government. The second in effect alleged that the submission of the false declaration violated the currency reporting statute, 31 U.S.C. Sec. 1101, and was therefore punishable under 31 U.S.C. Sec. 1058, which provides criminal sanctions for such violations. Due to the unusual combination of criminal charges pressed against Woodward stemming from the same overt act, we withdrew the case from submission and requested additional briefs in order to consider two questions: (1) whether 18 U.S.C. Sec. 1001 can properly be applied to convict a traveler who violates the currency reporting statute, and (2) if so, whether a defendant can be separately and cumulatively punished for section 1001 and section 1101 violations arising from the same occurrence.

The first question has since been answered in the affirmative. In United States v. Duncan, 693 F.2d 971, 975 (9th Cir.1982), this circuit ruled that a defendant may be charged and convicted under 18 U.S.C. Sec. 1001 even though 31 U.S.C. Sec. 1058 expressly prohibits the same conduct. But Duncan did not involve, and thus did not decide, the question whether multiple punishments under both section 1001 and section 1058 may be aggregated consistently with the rule of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). ² We now answer that question in the negative.

In Blockburger v. United States, 284 U.S. at 304, 52 S.Ct. at 182, the Supreme Court laid down the basic rule that still governs the question whether a defendant can be punished cumulatively for one instance of conduct that violates two statutory provisions. "[T]he test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact that the other does not." Accord, Dixon v. Dupnik, 688 F.2d 682, 684 (9th Cir.1982); United States v. Goodheim, 686 F.2d 776, 780 (9th Cir.1982); United States v. Sanford, 673 F.2d 1070, 1073 (9th Cir.1982). ³ Where analysis under 18 U.S.C. Sec. 1001, ⁵ as applied to a person who fails to properly declare currency in excess of $5,000, requires proof of elements strikingly similar to those necessary to procure a criminal conviction under the currency reporting statutes, 31 U.S.C. Secs. 1101 ⁶ and 1058. ⁷ A section 1001 conviction requires proof that the defendant (1) willfully falsified (2) a material fact (3) in a statement made with regard to any matter within the jurisdiction of a United States agency. See United States v. Rose, 570 F.2d 1358, 1363 (9th Cir.1978). A conviction under 31 U.S.C. Sec. 1058 necessarily entails proof of all of these elements. 31 U.S.C. Sec. 1052(k)(1976) expressly states that "[f]or the purposes of section 1001 of Title 18 the contents of reports required under any provision of this chapter are statements and representations in matters within the jurisdiction of an agency of the United States." And in United States v. Masters, 612 F.2d 1117, 1122 (9th Cir.1979), cert. denied, 449 U.S. 847, 101 S.Ct. 134, 66 L.Ed.2d 57 (1980), we held that the concealed fact that a defendant was carrying over $5,000 in unreported currency was "material" for purposes of section 1001. Finally, section 1058 provides only for punishment of "willful" violations of the section 1101 reporting requirement.

                the Blockburger rule reveals that two statutory provisions describe the same offense, the Supreme Court has consistently held that the two provisions will not be construed to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.    See Missouri v. Hunter, --- U.S. ----, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983);  Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 1437-38, 63 L.Ed.2d 715 (1980).  We must therefore examine the elements of 18 U.S.C. Sec. 1001 and 31 U.S.C. Sec. 1058 to determine whether each requires proof of a fact that the other does not. 4
                

In our view, the only "fact" that an 18 U.S.C. Sec. 1001 conviction might possibly require, but that a 31 U.S.C. Sec. 1101...