United States v. Kenneth C. Fitzgibbon, A/K/A Michael Coe, 576 F.2d 279, 10th Cir. (1978)

576 F.
2d 279
UNITED STATES of America, Plaintiff-Appellee,

v.
Kenneth C. FITZGIBBON, a/k/a Michael Coe, DefendantAppellant.
No. 77-1520.
United States Court of Appeals,

Tenth Circuit.
Argued and Submitted April 21, 1978.
Decided May 9, 1978.
Rehearing Denied June 9, 1978.
Richard S. Henderson, San Diego, Cal., for defendant-appellant.

Rod W. Snow, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S.
Atty., Denver, Colo., with him on the brief), for plaintiff-appellee.
Before BARRETT, DOYLE and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
Kenneth C. Fitzgibbon appeals his conviction by a jury of knowingly and

willfully making a false statement in violation of 18 U.S.C. 1001, in
connection with bringing foreign currency through U. S. Customs.
On appeal the appellant makes a number of claims: the indictment was

defective; he was charged under the wrong statute; the evidence was
insufficient to support the verdict; he was the victim of an illegal search; the
jury was improperly instructed; and the Act involved here is unconstitutional.
Defendant-appellant Fitzgibbon entered the United States at Denver on a flight

from Calgary, Canada. Upon arrival at U. S. Customs Fitzgibbon tendered to
the official on duty, Joseph Lockhart, the "Customs Declaration" Form 6059-B,
which is given during flight to all passengers coming into the United States
from abroad. A question on the form asks "Are you or anyone in your party
carrying over $5,000.00 in coin, currency, or monetary instruments?"

Fitzgibbon had checked a "no" answer to that question. The official asked
Fitzgibbon that question again orally during his inspection, as is apparently
done routinely. Fitzgibbon's answer again was "no."
4
Fitzgibbon had come under suspicion on a tip, the investigation of which

showed he had purchased a ticket from Denver to Calgary, Canada, and a return
on the same flight forty minutes later. He had in fact returned the following
morning. Lockhart testified that he did not recognize Fitzgibbon's name or
appearance as one for whom he was to watch, but noticed Fitzgibbon was
hesitant in answering "no" to the question about money. He stated that he then
asked Fitzgibbon if he acquired anything in Canada and again the answer was
"no." As Lockhart examined Fitzgibbon's baggage, his testimony was that the
defendant appeared nervous. Lockhart then motioned to a supervisor for a
secondary examination. Fitzgibbon was taken to a search room and, in the
presence of another Customs official, Lockhart "padded down" Fitzgibbon as a
safety precaution and requested that the defendant empty his pockets. In
Fitzgibbon's wallet was a relatively small amount of Canadian and Mexican
money. Lockhart asked Fitzgibbon if this was the only currency the defendant
had on his person and Fitzgibbon answered "yes." Defendant was then asked to
remove his boots. In doing so he mumbled something about "investment," and
as he removed each boot he reached into it and pulled out a bundle of Canadian
currency, amounting in total to approximately $9,800.00 Canadian (worth
slightly more than that total in U. S. dollars).
Fitzgibbon was then read his Miranda rights and taken to another room where
he volunteered to Customs Agent H. R. King that he had acquired the money in
Canada and wanted to avoid a hassle with the United States Internal Revenue
Service because part of the money was not his; he was to send $5,410.72 of the
money to an attorney in New Jersey. The remainder he said he earned in doing
some construction work on a home in Washington state belonging to a
Canadian resident. Fitzgibbon produced a slip of Canadian hotel notepaper
from an envelope with the figure 5410.72 written on it.
In questioning Fitzgibbon, Customs Agent King took down information

contained on a Wisconsin driver's license produced by Fitzgibbon. At trial the
Director of Driver Control for Wisconsin testified that the number on the
license was fictitious. Another agent testified that he checked the address given
on the license and was unable to find any such location.
The indictment in this case reads as follows:
On or about March 31, 1977, at Denver, in the State and District of Colorado,
8
KENNETH C. FITZGIBBON, also known as Michael Coe, did knowingly and
willfully make a false statement and representation and make use of a document, towit: a Customs Declaration Form 6059-B, which contained a false statement and
entry, to the effect that KENNETH C. FITZGIBBON, aka Michael Coe, did not
possess more than $5,000.00 in currency when in fact KENNETH C.
FITZGIBBON, aka Michael Coe, did possess approximately $10,000.00 in Canadian
currency, such declaration or report being required by Title 31, United States Code,
Section 1101, under the auspices of the United States Customs Service of the United
States Department of Treasury, all in violation of Title 18, United States Code,
Section 1001.
9
The statutory provision underlying the charge, 31 U.S.C. 1101, states:
.10. . whoever, whether as principal, agent, or bailee, or by an agent or bailee,

knowingly
(1) transports or causes to be transported monetary instruments
11
12 to any place within the United States from or through any place outside the
(B)
United States, . . .
13 an amount exceeding $5,000 on any one occasion shall file a report or reports in
in
accordance with subsection (b) of this section.
14
31 U.S.C. 1052(l ) defines monetary instruments as:
15 and currency of the United States, and in addition, such foreign coin and
coin
currencies, . . . as the Secretary may by regulation specify for the purposes of the
provision of this chapter to which the regulation relates.
16
These provisions are implemented by regulations found in 31 C.F.R.

103.23(a),1 and C.F.R. 103.11 defines the meaning of the term "currency" to
include "(t)he coin and currency of the United States or of any other country,
which circulate in and are customarily used and accepted as money in the
country in which issued. . . ."
17
We will consider appellant's contentions on appeal in the order in which they

are presented in his brief.
18
1. Fitzgibbon claims the indictment is defective because it is not specific

enough. The argument is somewhat difficult to follow but he seems to contend
it should have used the term "monetary instruments" instead of "currency,"

should have stated specifically that the report requirement encompasses
Canadian currency, and should have cited specifically the regulation defining
monetary instruments to include Canadian currency. Also he alleges the
Customs form referred to is a "baggage declaration" and that is not a proper
form.
19
We find no merit in these arguments. Fed.R.Crim.P. 7(c)(1) requires only a

"plain, concise and definite written statement of the essential facts constituting
the offense charged." The test of the sufficiency of the indictment has been
stated many times in the cases, and is whether the indictment contains the
elements of the offense charged and apprises the accused of the nature of the
offense. A guilty verdict will not be set aside for mere technical defects unless
it is apparent the defendant is prejudiced. United States v. Mason, 440 F.2d
1293, 1296 (10th Cir. 1971), cert. denied, 404 U.S. 883, 92 S.Ct. 219, 30
L.Ed.2d 165 (1971). The indictment here sufficiently apprises the defendant as
to the nature of the offense. He is charged with knowingly and willfully making
a false statement on a specific Form 6059-B, in violation of a specific statute.
The statute creating the reporting duty is also cited. The date of the act
constituting the violation is set forth, and the currency which was being carried
is recited. The precise regulation need not be mentioned expressly. It was
incumbent upon the government to prove beyond a reasonable doubt that
defendant knowingly made the false statement, hence that he knew Canadian
currency was within the intent of the reporting requirement. But it is not
essential that the indictment do more than state that his carrying in of Canadian
currency was a violation, in order to advise him of the charge.
20
As to the complaint that Customs Form 4790 is the proper form instead of the
one recited in the indictment, we note that Form 6059-B was in normal use
given to incoming passengers to ascertain whether a report on Form 4790 was
required, and the defendant's only answer was on Form 6059-B, as charged.
21
2. We see no merit in appellant's argument that he should have been charged

under 31 U.S.C. 1058-59 and 31 C.F.R. 103.49 rather than under 18 U.S.C.
1001. We recently dealt with a similar contention in United States v. Ready,
574 F.2d 1009 (10th Cir. 1978) and held that which of two applicable statutes
will be made the basis of an indictment is the decision of the government
prosecutors.
22
Appellant contends, however, that in enacting 1058-59 Congress intended to

preempt prosecution under 18 U.S.C. 1001. We are cited nothing to support
the argument that Congress intended 1058-59 to be the exclusive provisions
available to prosecute Title 31 violators; in fact, 31 U.S.C. 1052(k) suggests

Congress contemplated prosecution under 18 U.S.C. 1001 by reciting:
23 the purposes of 1001 Title 18 the contents of reports required under any
For
provision of this chapter are statements and representations in matters within the
jurisdiction of an agency of the United States.
24
3. Did the evidence support a finding that defendant reasonably knew that
Canadian currency was meant to be included in the reporting requirement? Here
reliance is placed mostly upon the fact that the large posters in the passenger
approaches to the terminal contain a picture of the American flag plus "$5,000,"
advising passengers to report negotiable instruments and currency over the
amount of $5,000.
25
Certainly it is relevant whether defendant reasonably knew he should report

Canadian money. The form did not expressly refer to Canadian or foreign
currency. It did not, however, expressly refer to U. S. currency either, unless
that is the required inference from use of the sign "$" before the figure
"5,000.00." And if the Canadian currency is considered merely a commodity
there is a further statement on the form as follows:
26 addition, the laws of the United States require that you declare ALL articles
In
acquired abroad (whether worn or used, whether dutiable or not, and whether
obtained by purchase, as a gift, or otherwise ) which are in your or your family's
possession at the time of arrival. Furthermore, Repairs made abroad must also be
declared.
27
Nonresidents
may make an oral declaration. Returning Residents may make an oral
declaration if the total price of articles declared (price actually paid or, if not
purchased, fair retail price in country where obtained ) is not more than the sum of
$100 per person. Otherwise You Must List In Writing On The Reverse Of This
Form All Articles And Repairs Acquired Abroad Which You Are Now Bringing
Through Customs. (See additional instructions on reverse.)
28 your baggage (including handbags and hand-carried parcels) may be examined.
All
False Statements Made To A Customs Officer Are Punishable By Law. Consult "U.
S. Customs Hints" and your inspector for full information.
29
We cannot read appellant's mind, so we have to infer his knowledge of

reporting requirements from his behavior and all of the facts in evidence. In this
connection we do not have to rely upon the posters or even Form 6059-B which
he signed. He made a statement from which it could reasonably be inferred he
knew of the requirement when he said he wanted to avoid a hassle with the
United States Internal Revenue Service. Further, the fact he carried the money
in his boots rather than in his wallet or in his pockets supports the inference he
was attempting to hide it. His possession of a false driver's license, and his "no"
answers to repeated questions about whether he acquired anything in Canada
and whether he had money would support the conclusion he knew of the
reporting requirement.
30
As to the contention that he might have reasonably supposed his agency

relationship as to part of the money would excuse the reporting, we need only
read the precise wording of the question he answered "no."
31
It stated, "Are you or anyone in your party carrying over $5,000 in coin,
currency or monetary instruments?" That clearly requires an agent or one acting
partly as agent, carrying such amounts as involved here, to give an affirmative
reply.
32
4. It is asserted that the money was obtained in violation of defendant's Fourth

Amendment rights against unreasonable searches. Obviously U. S. Customs
inspectors make searches of the person and baggage of people entering the
United States, as a part of their routine duties. It has been held that to conduct a
strip search involving a serious invasion of a person's privacy the Customs
official must have a "real suspicion" based upon " objective, articulable facts."
United States v. Guadalupe-Garza, 421 F.2d 876 (9th Cir. 1970). The Circuit
which formulated that standard has ruled against appellant's contention in a
"boot" case. In United States v. Chase,503 F.2d 571, 574 (9th Cir.), cert.
denied, 420 U.S. 948, 95 S.Ct. 1332, 43 L.Ed.2d 427 (1975), it was stated:
33 suspicion should, therefore, limit searches only when there is a similar danger
Real
of embarrassment: where, in short, the suspect is forced to disrobe to a state which
would be offensive to the average person. Judged by this standard, the removal of a
boot is surely not a "strip." Rather, it is like one removing an overcoat or a suit jacket
relatively innocuous. . . .
34
The case before us is an easy one compared to Chase. There the party was
required to remove other articles of clothing also, and yet the search was
considered lawful. Here defendant was taken to an area where strip searches
were made, but was asked only to remove his boots. While one inspector
testified that he would not say whether the search might have gone farther,
there is no question but that it did stop with the boot removal. We hold that the
search was lawful.
35
5. While we believe a cautionary instruction to the jury would have been

warranted here as to the driver's license, none was requested. No complaint was
made at the time about the jury instructions given by the judge, and defendant
presented no additional suggestions that were rejected by the Court. We have
reviewed the instructions given and believe they are not prejudicial and state
the issues to be decided clearly enough. We find no " manifest injustice" which
requires reversal. United States v. Hagen, 470 F.2d 110 (10th Cir. 1972), cert.
denied, 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 970 (1973); McMurray v.
United States, 298 F.2d 619 (10th Cir. 1961), cert. denied, 369 U.S. 860, 82
S.Ct. 950, 8 L.Ed.2d 18 (1962).
36
6. Appellant contends that the portions of the Bank Secrecy Act, 84 Stat. 1114,
involved here (31 U.S.C. 1101-1105) violate his First, Fourth and Fifth
Amendment rights and should be declared unconstitutional.
37
The contentions regarding the First and Fourth Amendments have been rejected
by the U. S. Supreme Court in California Bankers Ass'n v. Shultz,416 U.S. 21,
94 S.Ct. 1494, 39 L.Ed.2d 812 (1974) and United States v. Miller, 425 U.S.
435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976).
38
Fitzgibbon's Fifth Amendment objection is directed to the power of the

government to compel persons crossing our national borders to file reports of
information which might later be used as incriminating evidence in a criminal
prosecution. The constitutional issues raised by appellant here have been
considered and resolved against appellant's position in United States v. San
Juan, 405 F.Supp. 686 (D.Vt.1975), rev'd on other grounds, (without discussion
of these constitutional issues) 545 F.2d 314 (2d Cir. 1976). We do not here
decide the constitutional questions raised because they are not properly before
us. Fitzgibbon was convicted of filing a false statement, under 18 U.S.C.
1001. The Supreme Court has held in several cases "that one who furnishes
false information to the Government in feigned compliance with a statutory
requirement cannot defend against prosecution for his fraud by challenging the
validity of the requirement itself." United States v. Knox, 396 U.S. 77, 79, 90
S.Ct. 363, 365, 24 L.Ed.2d 275 (1969).
39
Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 360, 24 L.Ed.2d 264
(1969) stated the principle as follows:
40
Notwithstanding
the fact that the Government has proved the elements necessary for
a conviction under 1001, the petitioner would have us say that the invalidity of
9(h) would provide a defense to his conviction. But after Dennis (Dennis v. United
States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973) it cannot be thought that as a
general principle of our law a citizen has a privilege to answer fraudulently a
question that the Government should not have asked. Our legal system provides
methods for challenging the Government's right to ask questions lying is not one of
them. A citizen may decline to answer the question, or answer it honestly, but he
cannot with impunity knowingly and willfully answer with a falsehood. (Footnote
omitted.)
41
See also Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973
(1966); Leary v. United States, 544 F.2d 1266 (5th Cir. 1977) (false statement
to U. S. Customs officials).
42
7. Finally, it is argued the trial was unfair, citing principally the fact that
information about defendant's use of a false Wisconsin driver's license was
allowed to be admitted. That evidence was proper for the purpose for which it
was used. We have examined the entire record and find no merit in appellant's
contention concerning an unfair trial.
43
AFFIRMED.
31 C.F.R. 103.23(a) as applicable reads: "Each person who physically

transports . . . currency or other monetary instruments in an aggregate amount
exceeding $5,000 on any one occasion . . . into the United States from any
place outside the United States shall make a report thereof . . .."

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576 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals,

Richard S. Henderson, San Diego, Cal., for defendant-appellant.

Kenneth C. Fitzgibbon appeals his conviction by a jury of knowingly and

On appeal the appellant makes a number of claims: the indictment was

Defendant-appellant Fitzgibbon entered the United States at Denver on a flight

carrying over $5,000.00 in coin, currency, or monetary instruments?"

Fitzgibbon had come under suspicion on a tip, the investigation of which

In questioning Fitzgibbon, Customs Agent King took down information

The indictment in this case reads as follows:

The statutory provision underlying the charge, 31 U.S.C. 1101, states:

.10. . whoever, whether as principal, agent, or bailee, or by an agent or bailee,

31 U.S.C. 1052(l ) defines monetary instruments as:

These provisions are implemented by regulations found in 31 C.F.R.

We will consider appellant's contentions on appeal in the order in which they

1. Fitzgibbon claims the indictment is defective because it is not specific

it should have used the term "monetary instruments" instead of "currency,"

We find no merit in these arguments. Fed.R.Crim.P. 7(c)(1) requires only a

2. We see no merit in appellant's argument that he should have been charged

Appellant contends, however, that in enacting 1058-59 Congress intended to

available to prosecute Title 31 violators; in fact, 31 U.S.C. 1052(k) suggests

Certainly it is relevant whether defendant reasonably knew he should report

We cannot read appellant's mind, so we have to infer his knowledge of

As to the contention that he might have reasonably supposed his agency

4. It is asserted that the money was obtained in violation of defendant's Fourth

5. While we believe a cautionary instruction to the jury would have been

Fitzgibbon's Fifth Amendment objection is directed to the power of the

31 C.F.R. 103.23(a) as applicable reads: "Each person who physically

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