United States v. Youssef Saleh (88-1200), Hassan Serhan (88-1230)

875 F.2d 535, 1989 U.S. App. LEXIS 6968, 1989 WL 51351
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 18, 1989
Docket88-1200, 88-1230
StatusPublished
Cited by8 cases

This text of 875 F.2d 535 (United States v. Youssef Saleh (88-1200), Hassan Serhan (88-1230)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Youssef Saleh (88-1200), Hassan Serhan (88-1230), 875 F.2d 535, 1989 U.S. App. LEXIS 6968, 1989 WL 51351 (6th Cir. 1989).

Opinions

RYAN, Circuit Judge.

In consolidated appeals, defendants-appellants Youssef Saleh and Hassan Serhan seek reversal of their convictions for attempting the unreported export of United States currency in excess of ten thousand dollars, a violation of 31 U.S.C. §§ 5316 and 5322. They argue

1) that they were improperly charged under a “fatally defective” duplicitous indictment which improperly charged two separate offenses “against two separate persons in a single count,” in violation of Fed.R.Crim.P. 8(a), and
2) that the district court abused its discretion in refusing to sever the defendants’ cases for trial because their joint indictment violated Fed.R.Crim.P. 8(b).

We agree that the indictment improperly joined the defendants; however, we find that no prejudice arose from the joint indictment or resulting joint trial. Consequently, we affirm.

I.

On September 17, 1987, customs inspectors at Detroit’s Metropolitan Airport arrested both Youssef Saleh and Hassan Ser-han as they attempted to board a Brit[537]*537ish Airways aircraft bound for London, England. When they were arrested, each was carrying in excess of ten thousand dollars in unreported United States currency. The government charged both defendants in the same single count indictment with failure to report the export of monetary instruments in violation of 31 U.S.C. §§ 5316 and 5322. The indictment read:

THE GRAND JURY CHARGES:

COUNT ONE
(31 U.S.C. § 5316 — Failure to Report Export of Monetary Instruments)
That on or about September 17, 1987, in the Eastern District of Michigan, Southern Division, defendants YOUSSEF SA-LEH and HASSAN SERHAN were each knowingly about to transport monetary instruments of more than $10,000 at one time, from a place in the United States to a place outside the United States, and, defendants willfully failed to file a report of that export as required by Title 31, United States Code, Section 5316, all in violation of Title 31, United States Code, Sections 5316 and 5322. The monetary instruments about to be transported by defendants may be seized and forfeited to the United States Government pursuant to Title 31, United States Code, Section 5317.

At defendants’ request, the court struck the last sentence of the indictment as sur-plusage. The defendants’ motions to dismiss the indictment as duplicitous and to sever the trial were denied.

The evidence adduced at their joint jury trial indicated that Saleh and Serhan, both experienced international travelers, had entered the United States together on September 11, 1987, and were attempting to leave together when they were arrested. When they arrived in Detroit, both were exposed to the statutory currency reporting requirement through English and Arabic warnings appearing in the customs declarations provided on the plane and displayed prominently on posters in the airport. Both were required to walk past the same posters when they attempted to leave.

Different customs inspectors stopped each of the men at the same time and place in the airport. The inspector who stopped Saleh orally informed him of the federal currency reporting requirement, after which Saleh responded: “$10,000, no I do not have.” Upon further questioning he twice told inspectors that he carried $9,000. A search of his clothing turned up $15,237.

A second inspector orally informed Ser-han of the currency reporting requirement and also handed him a warning written in Arabic detailing the requirement. Serhan denied having more than $10,000, eventually telling the inspectors he carried $6,000. A search of his clothing revealed $10,135.

II. Rule 8(a)

Appellants first argue that the district court should have dismissed the indictment because it was “defective on its face.” The claimed defect is that the indictment is duplicitous and in violation of Fed.R.Crim. P. 8(a)1 because it charges two separate offenses in a single count; one against each of the defendants. See United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir.), cert. denied, 454 U.S. 875, 102 S.Ct. 351, 70 L.Ed.2d 183 (1981).

The familiar rule prohibiting duplicitous pleading that was addressed in Robinson is that an indictment may not join in a single count two or more distinct and separate offenses. United States v. Ellis, 595 F.2d 154 (3d Cir.1979).

The vice of duplicity is that a jury may find a defendant guilty on the count without having reached a unanimous verdict on the commission of any particular offense. United States v. UCO Oil, 546 F.2d 833 (9th Cir.1976), cert. denied, 430 [538]*538U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977).

We reject the defendants’ Rule 8(a) argument for two reasons. First, as Robinson and UCO Oil make clear, the rule prohibiting duplicitous pleading in a criminal case is designed to preclude a jury from convicting a defendant under a single count indictment which charges more than one offense without agreeing, unanimously, on the defendant’s guilt of the same offense. That could not have occurred in this case because here the single count indictment grouped defendants rather than multiple offenses against a single defendant.

Second, case law firmly establishes that the propriety of joinder of multiple defendants in an indictment is tested under Rule 8(b), not under Rule 8(a). United States v. Franks, 511 F.2d 25 (6th Cir.), cert. denied, 422 U.S. 1042, 95 S.Ct. 2654, 45 L.Ed.2d 693 (1975); United States v. Jackson, 562 F.2d 789 (D.C.Cir.1977); 1 C.W. Wright, Federal Practice and Procedure, § 144, at 494 (2d ed. 1982). Rule 8(a) is inapplicable here.

III. Rule 8(b)

Appellants also argue that the indictment Violates Rule 8(b), and that the joint trial that resulted from the alleged 8(b) violation was prejudicial.

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875 F.2d 535, 1989 U.S. App. LEXIS 6968, 1989 WL 51351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-youssef-saleh-88-1200-hassan-serhan-88-1230-ca6-1989.