Appeal from a Conviction Entered in the United States District Court for the Eastern District of New York (Henry Bramwell, Judge) Following a Jury Trial for Wrongful Conversion of Property While Appellant was Acting as a Customs Agent. 18 U.S.C. § 654 (1982). Affirmed.
Feinberg, Chief Judge, Winter, Circuit Judge, and Lasker, District Judge.*fn*
Maryland Hall appeals from a judgment entered after her conviction by a jury of wrongful conversion of property which came into her possession while she was acting as a United States Customs Inspector, in violation of 18 U.S.C. § 654 (1982).*fn1 Judge Bramwell sentenced Hall to a split sentence including six months in prison, five years probation, and to make restitution pursuant to 18 U.S.C. § 3579 (1982). We affirm.
Appellant was at all relevant times employed as a United States Customs Inspector. Her tasks involved processing passengers arriving on international flights at the John F. Kennedy International Airport ("JFK") by checking their passports, reviewing customs declarations, seeing that currency forms were filled out, and searching baggage.
On October 25, 1982, Mrs. Rashica Haraba arrived at JFK with her daughter and two grandchildren on a flight from Damascus, Syria. Mrs. Haraba had with her a large suitcase, a box containing food, and a pocketbook containing ten $100 bills and one hundred $20 bills. She had counted her money immediately before leaving the plane. Since Mrs. Haraba had been delayed at an immigration office, no other passengers were around as she neared Hall's customs belt. In Hall's presence, Mrs. Haraba sought change for a $100 bill from a porter so that she might tip him for his help with the baggage. When the porter indicated that he could not take a tip, Mrs. Haraba returned the $100 bill to the main portion of her pocketbook. The other nine $100 bills remained in a zippered compartment in the pocketbook, which she left open.
After the porter had left, Hall asked and was allowed to examine Mrs. Haraba's pocketbook. Mrs. Haraba also placed her suitcase and food carton on the conveyor belt and gave Hall her declaration. At that moment, Mrs. Haraba's daughter called her to get the children. Hall told Mrs. Haraba to attend to her daughter while she searched the purse. Mrs. Haraba turned and walked away from the conveyor belt to her grandchildren.
After completing the customs inspection, Mrs. Haraba met her son at his car outside the airport. Shortly thereafter, she opened her pocketbook and noticed that the zippered compartment in her purse was now closed. Upon opening the compartment, Mrs. Haraba discovered that her nine $100 dollar bills were missing. Accordingly, she returned with her son to the airport and met first with an airline supervisor and later with the police. The police summoned Hall who denied taking the money. Mrs. Haraba filed no formal complaint and was never repaid.
On June 9, 1983, Mrs. Erika Fischer and her husband arrived at JFK on a flight from Vienna, Austria. Mrs. Fischer proceeded to Hall's customs belt with three of the couple's four suitcases while Mr. Fischer waited for the fourth suitcase to come off the baggage carousel. Mrs. Fischer told Hall that she was in a hurry to catch a connecting flight and asked Hall to examine the first three suitcases pending Mr. Fischer's arrival. Hall agreed but asked first to examine Mrs. Fischer's handbag, which contained in its zippered compartment a small purse with eleven $100 bills. Mrs. Fischer initially refused to turn over her handbag because in seventeen prior trips to the United States nobody had ever searched her purse. Hall insisted, however, and Mrs. Fischer relented. Hall looked through the bag for over three minutes and then asked Mrs. Fischer to place one of the larger suitcases on the conveyor belt. Mrs. Fischer asked Hall first to return the handbag, and Hall replied that she had not finished examining it. Hall told Mrs. Fischer that if she insisted on waiting for her handbag, she would miss the connecting plane.
Mrs. Fischer relented and went to get the luggage that Hall had requested. Mrs. Fischer's back was turned to Hall for about thirty seconds while she placed the luggage on the conveyor belt. Subsequently, Hall returned Mrs. Fischer's handbag but did not examine the luggage. Hall then sent Mrs. Fischer on her way with her husband, who had just arrived with the fourth suitcase. On the connecting flight to Washington, D.C., Fischer noticed that ten of the eleven $100 bills were missing from her handbag. On June 11, 1983, Mrs. Fischer wrote a complaint letter to Customs concerning the missing money.
On July 26, 1983, Customs Supervisory Agent James O'Brien undertook a decoy operation directed at Hall as a result of the Haraba, Fischer and other passenger complaints. O'Brien sent a decoy, Barbara O'Keefe, posing as a recently arrived passenger to Hall's customs checkpoint. O'Keefe was carrying sixty-eight $100 bills which O'Brien had xeroxed, initialed and dusted with ultraviolet powder. The bills were divided into three packets, two of which were placed in envelopes in O'Keefe's bags. The third packet, which consisted of twenty-eight $100 bills in a small snap-top purse, was placed in the zippered portion of O'Keefe's handbag.
O'Keefe approached Hall's line and handed Hall her customs declaration which indicated that she was carrying over $5000 in currency. Hall gave O'Keefe a form to fill out and requested that O'Keefe open her bags. Hall placed the form at the opposite end of the conveyor belt from where the bags had been opened. While O'Keefe filled out the form, Hall checked the open bags. O'Keefe did not watch Hall but did hear a snap which sounded like the catch of the snap-top purse.
After the customs inspection was completed, O'Keefe met Agent O'Brien in the airport lobby where they counted the money. Three $100 bills were missing from the snap-top purse. O'Brien returned to the customs area and advised Hall that he wished to speak with her because of a problem with a passenger she had recently checked. Hall agreed to accompany O'Brien to an office. O'Brien directed one ...