“Here, as in many other areas, honesty remains the best policy.” U.S. v. Tatoyan, 474 F.3d 1174 (9th Cir. 2007) (criminal prosecution for failure to declare more than $10,000 in cash the defendants were carrying).
On February 13, 2018, Customs and Border Protection (CBP) officers were conducting an inspection of a private plane at the Honolulu International Airport. The plane was carrying 2 crewmembers and 4 passengers, including one who reportedly claims to be the “Appointed Son of God” and FSS, the alleged “business manager” of their religious organization. (Didn’t you know that religion is a business?) They were destined for the Philippines. A CBP officer provided the passengers with a currency reporting form. Passenger FSS declared she was carrying $40,000 in U.S. currency. Another CBP officer then provided FSS a FinCEN Form 105. FSS completed the FinCen Form 105 and declared $40,000 U.S. Currency and 1,000 PH Pesos. See U.S. District Court for the District of Hawaii. MAG. NO. 18-0130 KSC.
A supervisor and another officer inspected a black rolling carry-on luggage inside the plane and found numerous black socks neatly bundled. They opened the socks and found stacks of $100.00 bills within the socks. The officers asked the passengers to identify their luggage. FSS identified a blue purse and the black rolling carry-on luggage as her property. Officers counted $335,000 and $9,000 Australian dollars inside the black rolling carry-on luggage. None of that money was reported by FSS to the CBP officers as required by 31 U.S. Code § 5316.
31 U.S. Code § 5316 provides that a person or an agent or bailee of the person shall file a report when they transport, or about to transport, or has transported monetary instruments of more than $10,000 at one time, from a place in the United States to or through a place outside the United States, or to a place in the United States from or through a place outside the United States; or receives monetary instruments of more than $10,000 at one time transported into the United States from or through a place outside the United States. The report is filed on a form issued by the Department of the Treasury’s Financial Crimes Enforcement Network - FinCEN Form 105. https://fincen-form-105.pdffiller.com/
The following day, Valentine’s Day, a CBP officer filed a Criminal Complaint against FSS with the U.S. District Court for the District of Hawaii. MAG. NO. 18-0130 KSC, alleging, among others that on February 13, 2018, in the District of Hawaii, FSS, with intent to evade a currency reporting requirement under 31 U.S. Code § 5316, did knowingly conceal more than $10,000 in currency, namely, approximately $335,00 in U.S. dollars and $9,000 in Australian dollars, in an article of luggage and did attempt to transport such currency from a place within the United States to a place outside the United States, in violation of 31 USC § 5332(a).
31 USC § 5332 provides: (a) (1) Whoever, with the intent to evade a currency reporting requirement under section 5316, knowingly conceals more than $10,000 in currency or other monetary instruments on the person of such individual or in any conveyance, article of luggage, merchandise, or other container, and transports or transfers or attempts to transport or transfer such currency or monetary instruments from a place within the United States to a place outside of the United States, or from a place outside the United States to a place within the United States, shall be guilty of a currency smuggling offense and subject to punishment pursuant to subsection (b).
Penalty for currency smuggling
A person convicted of a currency smuggling offense under subsection (a), or a conspiracy to commit such offense, shall be imprisoned for not more than 5 years. In addition, the court, in imposing sentence under paragraph (1), shall order that the defendant forfeit to the United States, any property, real or personal, involved in the offense, and any property traceable to such property.
I discussed this case on our radio show, the Tipon Report, on KNDI last February 15. A number of listeners asked how I would defend such a case. I told them to better ask my son, Noel Tipon, since he has experience in this kind of case and saved his clients from going to jail and recovered almost all of the money that was seized.
CBP officers will want to ask the suspect a lot of questions. From whom did you get the money? To whom do you intend to give the money? Why were you carrying cash? Who are involved with you? Did you report this money to the IRS? Have you ever done this before? Etc.
CBP officers will ask proof of your claims. If you claim you earned the money, they will want to see your income statement.
The most important thing for a person whose money has been seized is to follow Senator Gene Magsaysay’s motto: “Less talk, less mistake. No talk, no mistake.” Ask the officers to give you an opportunity to talk to a lawyer before you answer their questions.
Unfortunately, many lawyers will take the line of least resistance and advise you to plead guilty or no contest even without reviewing the evidence and evaluating the case. Does the lawyer you have interviewed know the elements of the offense that must be proved by the government beyond a reasonable doubt? Does he know whether it must be proven that the alleged offender “knowingly concealed” or simply “concealed” the money? Does he know whether the government must prove “willfulness” or not?
Does the lawyer know whether the alleged offender can introduce evidence of the apparently legitimate source of the confiscated money or the benevolent purpose of such money, like Valentine’s Day gifts? Can the alleged offender introduce evidence that she had no evil intent? Is that a defense? See U.S. v. Tatoyan, 474 F.3d 1174 (9th Cir. 2007).
Can the alleged offender claim that the money in her luggage was not hers and claim ignorance of how the money got there?
Will the complaint be amended to include the other passengers in the private jet? Will the complaint be amended to include additional charges, like violation of 31 USC 5316 (currency reporting requirement) or 18 U.S.C. § 1001 (making false statements)? Will the private jet be forfeited to the U.S. government?
Crime involving moral turpitude?
Is dollar smuggling a crime involving moral turpitude, thereby subjecting the offender to deportation? There is an unreported decision of the Board of Immigration Appeals saying that it is not.
If you plan to hire a lawyer, interview him/her well and determine the knowledge and experience he has and whether he is the “abogado de plead guilty” variety. If the lawyer spends more time convincing you to surrender rather than fight, say “adios” and look for another.
Remember that the penalty is imprisonment for 5 years, not imprisonment or fine. The court is not authorized to impose just a fine.
ATTY. TIPON has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: firstname.lastname@example.org. Website: www.bileckilawgroup.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen