United States v. Carlomagno Gonzalez Medina, 797 F.2d 1109, 1st Cir. (1986)

797 F.
2d 1109
UNITED STATES of America, Plaintiff, Appellant,

v.
Carlomagno GONZALEZ MEDINA, Defendant, Appellee.
No. 85-1694.
United States Court of Appeals,

First Circuit.
Argued Feb. 4, 1986.
Decided July 30, 1986.
Everett M. de Jesus, Trial Atty., U.S. Dept. of Justice with whom Jose A.
Quiles, Acting U.S. Atty., was on brief, for plaintiff, appellant.
Alberto F. Tellechea with whom Ambrette & Tellechea and Francisco
Lopez Romo, was on brief, for defendant, appellee.
Before CAMPBELL, Chief Judge, BREYER and TORRUELLA, Circuit
Judges.
TORRUELLA, Circuit Judge.
In this case, the United States appeals from the district court's dismissal of a
two-count indictment charging defendant-appellee Carlomagno GonzalezMedina with (1) failing to file a report on the transportation of ten certificates
of deposit from a place outside the United States to a place in the United States,
in violation of 31 U.S.C. Sec. 5316, and (2) making a materially false
representation in a matter within the jurisdiction of an agency of the United
States, in violation of 18 U.S.C. Sec. 1001.
United States customs officers arrested the defendant on January 13, 1985 upon
his arrival in Puerto Rico aboard a commercial airline flight from the
Dominican Republic. The arrest occurred after a customs inspection revealed
appellee's possession of ten certificates of deposit with an aggregate face value
of $1,265,000. Customs officers conducted the inspection after the defendant
denied having transported monetary instruments into the United States. The
district court dismissed the indictment, reasoning (1) that whether a monetary
instrument existed under 31 U.S.C. Sec. 5316 depended on whether that

instrument was negotiable under state law, and (2) that the certificates at issue
did not meet negotiability requirements set forth by Puerto Rico's Uniform
Negotiable Instruments Act (the Act), 19 L.P.R.A. Sec. 1 et seq. For the
reasons set forth below, we affirm.
3
Section 5316 requires individuals transporting monetary instruments with a

value greater than $10,000 into the United States to report the transporting of
the instruments upon arrival in the United States. 1 The parties agree with the
district court that the characterization of the seized certificates as monetary
instruments under Sec. 5316 hinges upon whether the certificates are
negotiable under Puerto Rico law. A conclusion that the instruments are not
negotiable would require affirmance, since under such circumstances no crime
would have been committed pursuant to either 31 U.S.C. Sec. 5316 or 18
U.S.C. Sec. 1001. See United States v. Anzalone, 766 F.2d 676, 680-83 (1st
Cir.1985).2
For an instrument to be negotiable in Puerto Rico it must (1) be in writing and

signed by the maker or drawer; (2) contain an unconditional promise or order to
pay a sum certain of money; (3) be payable on demand, or at a fixed or
determinable future date; (4) be payable to order or to bearer, and (5) if
addressed to a drawee, that same be named or indicated with reasonable
certainty. 19 L.P.R.A. Sec. 2; B. Santiago-Romero, Tratado de Instrumentos
Negociables, Editorial Universitaria, Rio Piedras, 1981, p. 46. Failure to
comply with any of the aforestated requirements defeats negotiability. Walla
Corporation v. Banco Comercial de Mayaguez, 114 D.P.R. 216, 219 (1983).
The district court held that the certificates are not negotiable because they do
not contain an unconditional promise to pay a certain sum of money.3 The court
relied on the second sentence of the "Notice to Assignees" section of the
Spanish version of the certificates, to wit:
5
Citibank
reserves the right to set off any indebtedness due to it from any named
payee, including any indebtedness which may have matured prior to the bank's
acknowledging receipt of the assignment.
6
(Our translation) (emphasis added). 4 The district court reasoned that the term
"named payee" (beneficiario designado ) refers to the depositor or original
obligee. It noted that the clause at issue would place a third-party assignee of
the instrument in the same position as that of the original depositor-obligee, by
forcing the former to lose by way of set off money owed to the bank by the
latter. The district court found that the set off clause conditions the bank's
promise to pay, and, therefore, destroys negotiability under the Act.5
The government agrees that "beneficiario designado" (named payee) refers to

the original obligee. Yet it argues that the "set off" clause is assertable only
against the third-party assignee who attempts to collect on the instrument, but
not against, or with respect to, the debts of the original depositor/obligee. That
is, the government argues that the bank can only exercise its right of set off
with respect to the debts owed to the bank by the third-party assignee
attempting to collect on the instrument. Thus, under the government's theory, a
third-party assignee could collect the full face value of the instrument so long
as he personally owed no debts to the bank. To support its view, the
government relies on the English text of the set off clause, viz:
8
Citibank
reserves the right to set off any indebtedness due to it from any payee,
including any indebtedness which may have matured prior to the Bank's
acknowledging receipt of the assignee.
9
The English version of the clause does not contain the modifier "named,"
contrary to the Spanish version relied upon by the district court. Moreover, the
English version of the first two sentences on the back of the certificates use the
term "named payees," while subsequent sentences--including the set off clause
and the provision for assignment--use the term "payee." In the government's
view, this shows (1) that "named payee" and "payee" are not the same person;
and (2) that since "named payee" is used in relation to deposits, then the term
"named payee" refers to the original depositor, and not to subsequent thirdparty assignees.6 Accordingly, the government argues that the set off clause
does not allow the bank to assert against a third party a defense assertable
against the original party to the instrument, and that, therefore, negotiability is
not defeated.
10
The chief effect of an instrument being negotiable is that a holder in due course
can generally enforce it unaffected by any defense which may exist between the
original parties to the contract. Tratado de Instrumentos Negociables, supra at
24. Were the Spanish version of the clause applicable here, the bank would be
conditioning its promise to pay a third-party holder of the certificate upon the
absence of any debts owed to the bank by the original depositor/assignor. This
would amount to a conditioning of promised payment that would defeat
negotiability under the Act, precisely because holders in due course would not
be protected from the bank's assertion of a defense against the original
depositor. See R. Anderson, Anderson on the Uniform Commercial Code, 2d
Ed., Rochester, The Lawyers Co-operative Pub. Co., 1971, Vol. 2, Sec. 3-112,
cited with approval in Walla Corp. v. Banco Comercial de Mayaguez, supra at
219; see also F.K. Beutel, Brannan's Negotiable Instruments Law Annot., 7th
Ed., Cincinnati, The W.H. Anderson Co. 1948, p. 823 ("In the hands of a
holder in due course, a negotiable instrument is not subject to set offs between
maker and the payee."); Cf. Thomas v. Ford Motor Credit Co., 48 Md.App.
617, 429 A.2d 277, 280-82 (1981) (provision that holder of contract was
subject to claims and defenses which debtor could assert against assignee
conditioned promise to pay and destroyed negotiability). Were the English
version followed, however, the bank would only be allowed to offset the debts
of the assignee attempting to collect on the instrument, and not those of the
original depositor. Such a clause would not seem to destroy negotiability, since
the protection given to the holder in due course of a negotiable instrument
essentially encompasses defenses between parties with whom the holder has not
dealt, but not those referring to the holder itself. See 10 C.J.S. Bills & Notes
Sec. 511 at 1130; see generally Tratado de Instrumentos Negociables, supra at
166. Thus, the question is which version is applicable in the present case.
11
The parties have cited no Puerto Rico authority--and we have found none-addressing the effect of irreconciliable English and Spanish texts on the
negotiability of an instrument under 19 L.P.R.A. Sec. 2. It does seem that the
conflict has been resolved in ordinary contracts by favoring the debtor when the
creditor has drafted the contract. See, e.g., S.I.F. v. Pena-Plaza, 100 P.R.R. 637,
644 (1972). Here, however, Citibank is both the debtor and the one which
drafted the terms of the agreement. In any event, Puerto Rico's Civil Code
directs that the conflict between the Spanish and the English version of a
statute be resolved in favor of Spanish, 31 L.P.R.A. Sec. 13. See Republic
Security Corp. v. Puerto Rico Aqueduct and Sewer Authority, 674 F.2d 952,
956 (1st Cir.1982). Yet the Puerto Rico legislature has neither adopted nor
rejected the same approach for cases involving ordinary contracts, or for cases
involving the question whether an instrument is negotiable under the Act. In
view of the foregoing, we cannot determine which of the two versions is
applicable here.
12
Negotiability must be determined by looking at the face of the instrument so as

to maximize the effectiveness of negotiable paper in business transactions.
Tratado de Instrumentos Negociables, supra at 47, 56. Ambiguity as to whether
an instrument is negotiable hinders the utility of negotiability. Thus, when a
writing is ambiguous with respect to negotiability, the conclusion to be reached
is that it is not negotiable. Anderson on the Uniform Commercial Code, supra
at Sec. 3-104:4. A perusal of the record shows that there is no way of
determining whether the certificates are negotiable solely by looking at the text
of the instruments; it is impossible to determine which text--Spanish or English-is applicable in the present case. Accordingly, we cannot say that the
certificates fall within the scope of negotiability encompassed by the Act.
13
The government nonetheless urges a finding of negotiability because only the

"set off" clause can defeat negotiability here, and Puerto Rico's Civil Code
prohibits set off "when any of the debts arise from a deposit, or from the
obligations of the depositary ..." 31 L.P.R.A. Sec. 3226. Appellant claims that
as the bank's debt arose from a deposit, set off would not be appropriate, and,
accordingly, cannot defeat negotiability in this case.
14
A contract of deposit (also referred to as depositum ) "is constituted from the

time a person receives a thing belonging to another with the obligation of
keeping and returning it." 31 L.P.R.A. Sec. 4621. Thus, the depositary is
obliged to keep the thing bailed, and, when required, to return it. Treasurer v.
Banco Comercial de Puerto Rico, 46 P.R.R. 298, 300 (1934); J. Puig Brutau,
Fundamentos de Derecho Civil, Barcelona, Ed. Bosch, 1977, T. II, V. II, p.
523, 539. The depositum does not confer upon the depositary the ownership of
the things delivered thereunder. Id. at 544.
15
In cases of currency, however, the distinguishing marks of the depositum

would vanish if the contract were to require a bank depositary to return, not the
things bailed, but an equivalent of the same specie and quality. J. Garrigues,
Contratos Bancarios, Madrid, 1958, p. 378. In such cases, the depositary has
the authority to use and dispose of the bailed objects. Fundamentos de Derecho
Civil, supra. As the depositor would (1) lose ownership of the objects
deposited, and (2) obtain a credit against the depositary, id., the relationship
between the parties amounts to one between a creditor and a debtor not subject
to the set off constraints of 31 L.P.R.A. Sec. 3226. Contratos Bancarios, supra
at 374-75, 384, 393. Thus, unless it were specifically required that the bank
return the same objects originally deposited, a certificate of deposit cannot be
construed to encompass a depositum contract within the purview of section
3226. See Fundamentos de Derecho Civil, supra. Accord: Treasurer v. Banco
Comercial de Puerto Rico, supra at 300.
16
The record shows that the certificates at issue do not require the bank to return
the same objects originally received when the contract was executed. The
relationship between the parties is one between a creditor and a debtor not
limited by 31 L.P.R.A. Sec. 3226. See Treasurer v. Banco Comercial de Puerto
Rico, supra; see also Walla Corporation v. Banco Comercial de Mayaguez,
supra at 223. Accordingly, contrary to the government's view, the "set off"
clause does not violate Puerto Rico's Civil Code.
17
Finally, we should not lose sight of the fact that we are dealing with a criminal
prosecution, which thus requires strict construction of the laws in question.
United States v. Anzalone, supra at 680. The gross ambiguities surrounding the
negotiability of the seized certificates simply cannot justify the prosecution of
this case. Thus, we agree with the district court's decision to dismiss the
indictment.
18
Affirmed.
APPENDIX
19
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT

VIEWABLE
There is no dispute that the seized certificates exceed $10,000 in value

Section 5316 provides in part:
(a.) ... [A] person or an agent or bailee of the person shall file a report under
subsection (b) of this section when the person agent, or bailee knowingly-(1.) transports or has transported, or attempts to transport or have transported,
monetary instruments of more than $10,000 at one time-(A) from a place in the United States to or through a place outside the United
States; or
(B) to a place in the United States from or through a place outside the United
States.
According to 31 U.S.C. Sec. 5312, "monetary instruments" which must be

reported include:
(A.) United States coins and currency; and
(B.) as the Secretary may prescribe by regulation, coins and currency of a
foreign country, travelers checks, bearer negotiable instruments, bearer
investment securities, bearer securities, stock on which title is passed on
delivery, and similar material.
Title 31, Sec. 103.11 of the Code of Federal Regulations expands this list to
include:
Coins or currency of the United States or of any other country, travelers'
checks, money orders, investment securities in bearer form or otherwise in such

form that title passes upon delivery, and negotiable instruments (except
warehouse receipts or bills of lading) in bearer form or otherwise in such form
that title passes upon delivery. The term bank checks, travelers' checks and
money orders which are signed but on which the name of the payee has been
omitted, but does not include bank checks, travelers' checks or money orders
made payable to the order of a named person which have not been endorsed or
which bear restrictive endorsements.
3
A copy of one of the seized certificates is reproduced in the appendix. Although

the certificates state that they are "Not Negotiable," the district court correctly
held that a certificate's label or a party's description of it is of no consequence in
determining whether an instrument is negotiable under 19 L.P.R.A. Sec. 2.
Walla Corp. v. Banco Comercial de Mayaguez, supra at 219; Tratado de
Instrumentos Negociables, supra at 46
As shown in the appendix, the certificates are written in both English and
Spanish. The Spanish version of the set off clause reads:
Citibank se reserva el derecho de compensacion en cuanto a cualquier deuda
con el Citibank de cualquier beneficiario designado en este certificado,
incluyendo aquellas deudas que hayan vencido antes de acusar recibo de la
cesion.
The district court correctly rejected the argument that the first sentence of the
certificates' "Notice to Assignees" section, post, defeats negotiability. As noted
by the district court, said sentence does not require the bank's approval for an
assignment to take place. See Walla Corporation v. Banco Comercial de
Mayaguez, supra
This interpretation makes sense since the terms of a contract should be

interpreted as a whole, and not out of the context of all the other terms. 31
L.P.R.A. Sec. 3475. See generally E. Vazquez-Bote, Derecho Civil de Puerto
Rico, Barcelona, Ediciones Juridicas Generales S.A., 1973, T. III, V. I, p. 468;
Accord: Martin v. The Vector Co., 498 F.2d 16, 23 (1st Cir.1974)

United States v. Carlomagno Gonzalez Medina, 797 F.2d 1109, 1st Cir. (1986)

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797 F.

UNITED STATES of America, Plaintiff, Appellant,

United States Court of Appeals,

instrument existed under 31 U.S.C. Sec. 5316 depended on whether that

Section 5316 requires individuals transporting monetary instruments with a

For an instrument to be negotiable in Puerto Rico it must (1) be in writing and

The government agrees that "beneficiario designado" (named payee) refers to

Negotiability must be determined by looking at the face of the instrument so as

The government nonetheless urges a finding of negotiability because only the

A contract of deposit (also referred to as depositum ) "is constituted from the

In cases of currency, however, the distinguishing marks of the depositum

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT

There is no dispute that the seized certificates exceed $10,000 in value

According to 31 U.S.C. Sec. 5312, "monetary instruments" which must be

checks, money orders, investment securities in bearer form or otherwise in such

A copy of one of the seized certificates is reproduced in the appendix. Although

This interpretation makes sense since the terms of a contract should be

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