United States v. John L. Warren, Jr., David Defina, Des E. Schick and Thomas A. Warren

612 F.2d 887, 1980 U.S. App. LEXIS 20627

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 11, 1980
• Docket: 75-4368
• Status: Published

Opinions

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 surrepti- ; tious transportation of currency across the i 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 Schnaider-man, 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 city⁶ 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.

1 . Our previous en banc opinion invoked the concurrent sentence doctrine in order to preter-mit review of the currency violation of which defendants John and Thomas Warren were convicted and sentenced concurrently with their violations of the narcotics laws. United States v. Warren, 5 Cir., 1978, 578 F.2d 1058, 1076-77 (Warren II), rev’g, 5 Cir., 1977, 550 F.2d 219 (panel decision) (Warren I).

2 . We expressly reaffirm all portions of Warren II, except for the small portion pertaining to the use of the concurrent sentence doctrine. In particular, our reversal of the currency violation convictions has no effect on the narcotics convictions, see 578 F.2d at 1077 n. 17, nor does it affect Warren Is disposition of the convictions of David DeFina and Des Schick, see id. at 1077.

For the sake of completeness, a brief history of the proceedings in this case since Warren II is appropriate. On January 24, 1979, we granted a second rehearing en banc, 589 F.2d 254, solely to consider the concurrent sentence doctrine and its application here. But because of the independent nature of the previously affirmed narcotics convictions, we refused to stay the mandate as to those convictions. Our unpublished order of February 2, 1979, stated that . the Court’s decision on the reserved issues will have no affect on the confinement under the other convictions which were affirmed by the Court’s earlier en banc decision.” The Warrens then petitioned this Court for a rehearing on the mandate decision, and that petition was denied by unpublished order of March 2, 1979. Then the Warrens applied to the Supreme Court for a stay. Mr. Justice Rehnquist, in his capacity as acting Circuit Justice, responded in the Warrens’ favor. He ordered that “. . . the application [for a stay] be treated as an application for continuance of bail, which application is granted pending disposition of the issue now pending on rehearing and shall terminate automatically upon final disposition of that issue. After disposition of that issue, and in the event cer-tiorari may be sought, application for bail should first be made in the Court of Appeals.” Warren v. United States, No. A-905 (May 10, 1979) (unpublished order).

3 . The testimony of Customs Patrol Officer Wallace is not recounted by prior opinions, yet is relevant to the Warrens’ currency violation convictions. The relevant testimony concerns the questioning of the Warrens soon after boarding of their vessel by the Coast Guard, and reveals that the Warrens were not specifically nor adequately warned of the currency reporting requirement prior to being arrested and charged with the crime:

Well, I thought somebody must have some money here, and I believe I asked John Warren and he said he just had a negligible amount also.

I asked Tommy Warren and he said he had a couple of thousand dollars.

I said, “Well, you know, what do you consider a couple of thousand dollars?”

He said, “Well, you know, I might have $5,000;” or 1 forget the specific amounts. So I asked him — I said, “Well, do you have more than $5,000?”

He said, “Well, I might have $7,000.”

I asked him if he reported it and filled out the proper forms for taking the money out of the country and he advised me he did not.

At this time I asked him if I could see the money.

Other witness accounts are substantially identical. It is also significant that by the time that Officer Wallace made his vague reference to the currency reporting statutes, the currency had already been transported outside of the United States.

4 . The Schnaiderman panel stated that even the defendant’s “acknowledged awareness of ‘U.S. currency laws’ is too vague and unspecific to satisfy the Granda standards.” 568 F.2d at 1212.

5 . The legislative history states:

In devising legislation to repair this huge gap in law enforcement, your committee considered it of high importance . . not to create obstacles to the free flow of legitimate . international trade and commerce.

H.R.Rep.No.975, 91st Cong., 2d Sess. [hereinafter cited as House Report], reprinted in [1970] U.S.Code Cong. & Admin.News, pp. 4394, 4398.

6 . Lambert v. California, 1957, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (without proof of scienter, felon cannot be convicted of being in Los Angeles for more than five days without registering). See United States v. Freed, 1971, 401 U.S. 601, 608, 91 S.Ct. 1112, 1118, 28 L.Ed.2d 356, 362 (“Being in Los Angeles is not per se blameworthy.”)

7 . United States v. Freed, supra (no need to show scienter where grenade involved); United States v. Mayo, 1974, 162 U.S.App.D.C. 171, 498 F.2d 713 (sawed-off shotgun).

8 . The legislative history points out:

The bill imposes no legal limitation on the export of U.S. currency from the United States to foreign jurisdictions. Those leaving the United States have always been free to take with them such mounts of cash or other forms of money as they choose.

House Report, supra, [1970] U.S.Code Cong. & Admin.News at p. 4398.