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UNITED STATES v. HERNANDEZ

July 7, 1986

UNITED STATES OF AMERICA
v.
JUAN HERNANDEZ, Defendant



The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

PLATT, D.J.

 Juan Hernandez, the defendant in this case, has been charged in a two-count indictment with attempting to transport monetary instruments in excess of $10,000 from a place outside of the United States into the United States without filing the required currency report and with willfully making a false statement on a United States Customs Declaration Form. The statutory Sections involved are 31 U.S.C. § 5316(a) and § 5322(a) and 18 U.S.C. § 1001. Defendant has moved for the suppression of all evidence seized and any statements made, and for discovery and a bill of particulars.

 I. Factual Background

 Through an agreement with Canada, the United States maintains a pre-clearance center at Dorval Airport in Montreal for the purpose of screening passengers bound for the United States. The pre-clearance center is manned by personnel of United States Government agencies, including the United States Customs Service ("Customs Service") and the Immigration and Naturalization Service ("INS"). On November 7, 1985, Inspector Joseph Haigh of the Customs Service was on duty at the center.

 Inspector Haigh noticed the defendant casting furtive glances at the United States Customs area while making boarding arrangements for his flight. This conduct made Inspector Haigh suspicious of the defendant. When defendant approached the Customs area, Inspector Haigh conducted the same Customs procedure for defendant as he was doing for all other passengers. The Inspector examined the defendant's travel documents, asked general questions, such as where the defendant lived, and entered defendant's name into the Treasury Enforcement Communications System ("TECS") computer file.

 Defendant, although claiming to live in Quebec, Canada, held a Colombian passport and was scheduled to depart on a Delta Airlines flight to Miami with connecting arrangements to Panama. Defendant's name showed up in the TECS output as an individual suspected of smuggling narcotics and currency into the United States. The TECS report was based on information previously submitted to the United States Government by the Royal Canadian Mounted Police.

 Inspector Haigh also gave the defendant a standard Customs Declaration Form to fill out (Form 6059B). Defendant checked "no" to the question on the form which asks the passenger to state whether he or she is transporting more than $10,000 in monetary instruments into or out of the United States. Defendant was also asked this question verbally by Inspector Haigh and replied "no." Inspector Haigh asked the defendant to open his briefcase but no contraband or currency was discovered therein. Intrigued by the match of defendant's name with the TECS information, Inspector Haigh asked the INS further to investigate the defendant.

 Defendant was questioned by INS Agent William Horn. Agent Horn was unable to obtain any arrest record for the defendant from Canadian authorities. Although Agent Horn was not positive after his questioning whether defendant was indeed the same individual as that mentioned in the TECS output, he advised the Customs Service that he believed that "the person who was in front of me [defendant] was the subject of at least one of the remarks on the TECS printout, and that I suspected that he was carrying something into the United States." Record at 78. It should also be noted that neither the defendant nor his belongings were searched by Agent Horn.

 The above procedures resulted in the defendant missing his planned Delta flight. Defendant made new travel arrangements which entailed boarding an Eastern Airlines flight that would make a stopover at LaGuardia Airport in New York City. At the gate leading to this flight defendant was given a new Form 6059B to fill out and he again checked "no" to the question which asks whether a passenger is transporting more than $10,000 in monetary instruments into or out of the United States.

 In New York, Special Agent John Clark of the Customs Service was informed of the imminent arrival of the defendant and of the TECS "hit." Together with another Special Agent, Beck, and a uniformed Customs Inspector, Agent Clark responded to LaGuardia Airport in order to meet the defendant. Although Agent Clark was part of a currency law enforcement group, he was not sure at the time whether the defendant was bringing currency or drugs into the United States. Record at 50.

 Upon deplaning, the defendant was led by Agent Clark into a small examination room at LaGuardia Airport. Noticing the bulky appearance of defendant's suit jacket and concerned about his own personal safety, given the small confines of the examination room, Agent Clark ordered the defendant to remove his jacket. Four packets of currency were found wrapped in tissue paper, concealed in the jacket. The defendant was then asked to remove his shirt and an additional packet containing $10,000 was discovered. Agent Beck conducted a patdown of the defendant and an additional $5,000 was discovered in defendant's left sock.

 After these discoveries Agent Beck asked the defendant whether it was true that he had filed a declaration in Canada which falsely represented that he was not transporting more than $10,000 in monetary instruments. The defendant replied, "yes." Agent Beck thereupon advised the defendant of his rights pursuant to Miranda and placed him under arrest. Agent Clark repeated the Miranda warnings in Spanish. The defendant waived his rights and agreed to talk to the Agents.

 Agent Clark asked the defendant whether he was aware of the $10,000 reporting requirement and the defendant said, "yes." Defendant then admitted to having failed to comply with the reporting requirement. At this point the Agents decided to transport defendant to their office at ...


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