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December 12, 1978

Sansao Campos PEREIRA, Defendant

The opinion of the court was delivered by: PLATT


The law requires that anyone transporting more than $ 5,000.00 in cash across United States borders must first file a report with the United States Customs Service. *fn1" On May 23, 1978, at John F. Kennedy Airport, United States Customs agents arrested Sansao Campos Pereira after he boarded a flight bound for Rio de Janiero, Brazil. At that time, Pereira was carrying $ 300,000.00 in cash and had not filed the required report.

 Pereira, a Brazilian national, was a founder and active member of the Brazilian affiliate of an international exchange student organization called Youth for Understanding (hereinafter "YFU"). On May 23, 1978, Pereira arrived at JFK Airport with $ 300,000.00 of YFU funds in his possession and prepared to board a Varig Airlines flight from New York City to Rio de Janeiro, Brazil. However, Pereira did so without filing the required declaration form. Immediately prior to his boarding, United States Customs Service agents approached Pereira addressed him by name and asked him whether he had anything to declare, to which he replied that he had nothing to declare. After Pereira boarded his flight, the agents arrested him and took from him the $ 300,000.00.

 On July 3, 1978, the United States Attorney filed an Information alleging a violation of 31 U.S.C. § 1058, a misdemeanor. *fn2" Pereira agreed to plead guilty to the misdemeanor, allegedly so that he could return to his home in Brazil. On July 7, 1978 Pereira was arraigned before Magistrate Chrein and attempted to enter a guilty plea. However, upon questioning Pereira as to the events leading up to his arrest, the Magistrate found that sufficient factual basis to support a guilty plea did not exist, and refused to accept Pereira's plea. Faced with an unsatisfactory statement of guilt, yet urged by Pereira's attorney to accept the plea of guilty to the misdemeanor, the Magistrate then considered acceptance of an Alford plea. *fn3" The Magistrate inquired as to whether the guilty plea presented a legal advantage to the defendant, in particular as to whether the government was waiving charges of a higher degree which could be pressed in exchange for a guilty plea. In response, the Assistant United States Attorney raised the possibility of felony charges and objected to the Alford plea. And again, stating that he remained unconvinced that Pereira had knowingly committed an act in violation of the law, the Magistrate refused to accept Pereira's plea of guilty and granted a five (5) day adjournment for the government's reconsideration of bringing more serious charges.

 Aware of potential speedy trial problems, the Magistrate then addressed the question of excludable time. He stated that the Speedy Trial Act contemplates an excludable period based on withdrawal of a guilty plea, but here, in his view, as there was no accepted guilty plea, there was no withdrawal, and thus no excludable time. The Magistrate then directed that a plea of not guilty be entered. *fn4"

 On July 12, 1978, when the matter came before the Magistrate for a status report, the prosecutor stated that no decision had been reached as to additional charges, but subsequent to the July 12 status conference, the Government did press an additional charge. And on July 27, 1978, in a two count superseding indictment, the grand jury charged that Sansao Campos Pereira "did knowingly and willfully make a false and fraudulent statement and representation . . . to an agent of the United States Customs Service that he did not possess more than five thousand dollars ($ 5,000.00)" in violation of 18 U.S.C. § 1001 (Count One) and "did knowingly and willfully transport monetary instruments . . . (in the amount of) approximately three hundred thousand dollars ($ 300,000.00) . . . without filing a report" in violation of 31 U.S.C. §§ 1101(b), 1058 (Count Two). *fn5" Pereira appeared before this Court on August 29, 1978; he entered a plea of not guilty and waived under the Sixth Amendment, the Speedy Trial Act, this Court's Speedy Trial Plan and the Rules of this Circuit, his right to a speedy trial and his right to move to dismiss in the event he was not accorded a speedy trial.

 Defendant Sansao Campos Pereira has now brought before this Court a motion to dismiss the indictment based on three grounds. First, he contends that his oral denial to the Customs Agents on May 28, 1978, to the effect that he had nothing to declare, was not a statement within the purview of 18 U.S.C. § 1001, that his conduct therefore did not violate the statute and that Count One should be dismissed pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure (Fed.R.Crim.P.). Second, he asserts that Count One fails to allege a material element of § 1001 in that it does not allege a "willful" violation of the filing requirement, and for this reason as well, Count One should be dismissed pursuant to Rule 12(b) Fed.R.Crim.P. And third, focusing not on the contents of the indictment, but on the time in which it was filed, Pereira argues that the entire superseding indictment, filed 20 days after his aborted guilty plea and 65 days after his arrest, was not timely, (and notwithstanding his waivers) was filed in violation of the Speedy Trial Act of 1974, 18 U.S.C. § 3161, Et seq., and the Eastern District Plan for the Prompt Disposition of Criminal Cases formulated pursuant to the Speedy Trial Act of 1974, 18 U.S.C. § 3161-74 (hereinafter "Plan") and thus should be dismissed with prejudice pursuant to Rule 48(b) Fed.R.Crim.P.


 A. Statement within the scope of 18 U.S.C. § 1001.

 Pereira contends that the Customs Agent who asked him on May 28, 1978 at JFK Airport whether he had anything to declare "knew (he) . . . was coming, knew he was walking through the door . . . knew he had the money and . . . knew that in all probability he was going to answer no." *fn6" Given those circumstances, Pereira argues that the statement which formed the basis for the 18 U.S.C. § 1001 charge was not a "statement" within the scope of 18 U.S.C. § 1001 but, merely a "negative response to a person who already knew the correct answer." *fn7" In the alternative, Pereira argues that even if his response were to be considered a "statement", it neither misled the Customs agents, nor perverted the legitimate function of the United States Customs Service. Thus, it was not material and did not violate 18 U.S.C. § 1001 as a matter of law.

 Section 1001 of Title 18, in relevant part, imposes criminal penalties on one who knowingly and willfully makes any false, fictitious or fraudulent statements or representations in any matter within the jurisdiction of any department or agency of the United States. United States v. Goldfine, 538 F.2d 815 (9th Cir. 1976). See 18 U.S.C. § 1001. The Second Circuit interprets this statute broadly. *fn8" Its "(analysis) . . . reveals no ambiguity. The elements of the offense are 1) a statement, 2) a falsity, 3) that the false statement be made "knowingly and willfully,' and 4) that the false statement be made in a "matter within the jurisdiction of any department or agency of the United States.' " United States v. McCue, 301 F.2d 452, 454 (2d Cir.), Cert. denied, 370 U.S. 939, 82 S. Ct. 1586, 8 L. Ed. 2d 808 (1962), Citing, United States v. Silver, 235 F.2d 375 (2d Cir.), Cert. denied, 352 U.S. 880, 77 S. Ct. 102, 1 L. Ed. 2d 80 (1956). In keeping with its liberal interpretation of the terms of the statute, the Second Circuit has applied the term "statement" to statements not required by law, not under oath, and not in writing. United States v. Adler, 380 F.2d 917 (2d Cir. 1967), Cert. denied, 389 U.S. 1006, 88 S. Ct. 561, 19 L. Ed. 2d 602 (1968), and cases cited therein; United States v. Mahler, 363 F.2d 673 (2d Cir. 1966) (specifically upholding application of § 1001 to oral statements) United States v. McCue, 301 F.2d at 456. Given this framework, Pereira's contentions directly conflict with the interpretation of § 1001 adopted by the Second Circuit. His "negative response" to the Customs agents must be defined as a "statement," well within the scope of § 1001.

 Pereira further argues that his response falls under the protection of the "exculpatory no" exception to § 1001 and, as a matter of law, cannot be considered a statement for the purposes of § 1001 prosecution. *fn9" However, this contention as well fails to comply with the Second Circuit's broad interpretation. See generally, United States v. McCue, 301 F.2d at 455 and cases cited therein. Granted, in the Second Circuit, the exculpatory no question remains open. But, although the Second Circuit has not yet explicitly rejected the exculpatory no doctrine Per se, neither has it adopted the doctrine. United States v. Adler, 380 F.2d at 922. And it has clearly rejected "any theory of narrow applicability (of § 1001)." United States v. McCue, 301 F.2d at 455.

 Yet, even assuming arguendo that the exculpatory no exception was binding upon this Court, Pereira's response would not qualify for its protection. The exculpatory no cases have, for the most part, derived from a reluctance, on the part of some courts, primarily in the Fifth and Ninth Circuits, *fn10" to uphold prosecution under § 1001 for statements made to a federal agent during the investigation of criminal conduct. Critical to determination that the statement falls under protection of the exculpatory no exception is a finding of possible self incrimination. *fn11" The prevailing rationale, supporting the use of the exception has been that a person should not be compelled to be a witness against himself. 380 F.2d at 922. See, United States v. Stark, 131 F. Supp. 190 (D.Md.1955).

 But here, Pereira's statement was clearly not exculpatory. No criminal sanctions would have ensued from properly declaring the $ 300,000. No law makes criminal or prohibits the export of U.S. currency. Rather, the crime lay in failing to report the export. Pereira could have responded truthfully to the agents, without risking self incrimination. Thus his false response, far from exculpating him in a criminal investigation, became in itself, a violation of the law. It was a knowing, false representation which obstructed a statutorily ordained administrative function of a government agency. *fn12" And, as such, it properly fell within the purview of § 1001. *fn13"

 Finally, Pereira contends that his statement was not material, and thus could not have violated § 1001, as a matter of law. This argument likewise lacks merit. It is settled in this Circuit that the false statements proscribed by § 1001 need not be proved material. United States v. Mahler, 363 F.2d at 678; United States v. Aadal, 368 F.2d 962, 964 (2d Cir.), Cert. denied, 386 U.S. 970, 87 S. Ct. 1161, 18 L. Ed. 2d 130 (1966); United States v. Marchisio, 344 F.2d 653, 666 (2d Cir. 1965); United States v. McCue, 301 F.2d at 456; United States v. Silver, 235 F.2d 375 (2d Cir.).

 And again, even assuming arguendo that materiality were a required element of § 1001, Pereira's false statement clearly meets the test of materiality. The Ninth Circuit, in its most recent pronouncement on the element of materiality with respect to the exculpatory no doctrine, framed the critical question respecting materiality as follows:

" "(C)ould the false statements have affected or influenced the exercise of a governmental function?' . . . (T)he test is the intrinsic capabilities of the false statement itself, rather than the possibility of the actual attainment of its end as measured by collateral circumstances.' "

 United States v. Goldfine, 538 F.2d at 820-21, Citing, Brandow v. United States, 268 F.2d 559, 565 (9th Cir. 1959), and United States v. Quirk, 167 F. Supp. 462, 464 (E.D.Pa.1958), Aff'd 266 F.2d 26 (3d Cir. 1959). In Goldfine, the allegedly immaterial statement was made by a registered pharmacist during "the course of an inspection conducted by the regulatory agency charged with the duty of investigating the manner in which he was complying with the requirements imposed upon him by law." 538 F.2d at 821. As with the Customs agents in the case at bar, the Goldfine investigators already knew the correct answers to the questions asked and were not misled by the false response. Nonetheless, emphasizing the potential and not the actual impact of the statement on agency action, the Court of Appeals for the Ninth Circuit found that the false statement was material and was within the scope of § 1001. *fn14" A fortiori Pereira's false response in the case at bar, regardless of its actual impact on the Customs agents involved, carried the Potential of inducing agency reliance and of perverting a legitimate function of the agency, and therefore was material and within the scope of § 1001.

 Therefore, for the foregoing reasons, Pereira's negative oral response to the Customs agents at JFK Airport on May 23, 1978 was a statement within the scope of 18 U.S.C. § 1001. Accordingly, Pereira's motion to dismiss Count One of the superseding indictment is hereby denied.

 B. Sufficiency of Count Two Statement of a Material Element of the Offense.

 Pereira's second major argument asserts that Count Two of the superseding indictment which states:

On or about the 23rd day of May, 1978, within the Eastern District of New York, the defendant SANSAO CAMPOS PEREIRA did knowingly and willfully transport monetary instruments, to wit, approximately $ 300,000 in United States currency, from Washington, D.C., onto Varig Airlines Flight 855 bound for Rio de Janeiro, Brazil at John F. Kennedy Airport without filing a report in accordance with Title 31, United States Code, Section 1001(b) (1101(b)). (Title 31, United States Code, Section 1058).

 fails to allege a material element of 31 U.S.C. § 1058 and consequently should be dismissed pursuant to Rule 12(b), Fed.R.Crim.P. Pereira maintains that although the indictment does properly allege that defendant "did knowingly and willfully transport monetary instruments," it fails to allege a "willful" failure to file a report. The government does not take issue with the fact that it must prove willful failure to file and submits that the indictment, which uses the language "knowingly and willfully" immediately prior to the description of the proscribed conduct, charges each and every element of the crime. Clearly, this is a matter of construction. It is the opinion of this Court that, given the wording of the indictment, the words "knowingly and willfully" in Count Two modify not only the words "transport monetary instruments" but also the words "without filing a report." It might have been otherwise if the words "knowingly and willfully" had been separated from the word ...

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