United States v. Jairo Alzate-Restreppo

890 F.2d 1061 UNITED STATES of America, Plaintiff-Appellee, v. Jairo ALZATE-RESTREPPO, Defendant-Appellant. NO. 88-5080. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 30, 1989. Decided Nov. 13, 1989. Elsa Leyva, O'Neill & Lysaght, Santa Monica, Cal., for defendant-appellant. Gary S. Lincenberg, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before ALARCON and NELSON, Circuit Judges, and PATEL, * District Judge. ALARCON, Circuit Judge: 1 Jairo Alzate-Restreppo appeals from the judgment entered upon his conviction after a bench trial for failure to report an attempt to transport more than $10,000 out of the United States in violation of 31 U.S.C. Secs. 5316 (a)(1)(A) and 5322(A), and making a false statement to an officer of the United States Customs Service in violation of 18 U.S.C. Sec. 1001 (1982). He seeks reversal on the following grounds: 2 One. The conviction for failing to report his attempt to export more than $10,000 out of the United States must be reversed because the trial judge believed his testimony that he did not know that he was required…

Jairo Alzate-Restreppo appeals from the judgment entered upon his conviction after a bench trial for failure to report an attempt to transport more than $10,000 out of the United States in violation of 31 U.S.C. §§ 5316 (a)(1)(A) and 5322(A), and making a false statement to an officer of the United States Customs Service in viola- . tion of 18 U.S.C. § 1001 (1982). He seeks reversal on the following grounds:

One. The conviction for failing to report his attempt to export more than $10,000 out of the United States must be reversed because the trial judge believed his testimony that he did not know that he was required to make a report.

Two. A false statement to a customs officer who is engaged in a criminal investigation that has focused on the defendant falls within the “exculpatory no” exception to section 1001. Because we have concluded that the evidence was sufficient to show a violation of each statute and that the “exculpatory no” defense is inapplicable under these facts, we affirm.

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PERTINENT FACTS

On October 23, 1987, Alzate-Restreppo checked in at the Avianca ticket counter at 8:15 p.m. He had a ticket on flight No. 081. That flight was scheduled to depart to…

Concurring in the Judgment, joined by Judge NELSON:

I concur in the majority’s conclusion. I write separately, however, to note how we have arrived at that conclusion without engaging in the cumbersome test this circuit has laid down in United States v. Medina de Perez, 799 F.2d 540 (9th Cir.1986).

It seems to me that the Medina de Perez analysis is unnecessary and has resulted in some curious dicta in recent cases. For example, this court recently observed in applying the third factor of the test, i.e., that the false statement must not impair the basic functions of the agency, that “a good investigator will expect the accused to lie” and therefore will go forward with the investigation without reliance on the false statement and not be impeded in its functions. United States v. Myers, 878 F.2d 1142, 1144 (9th Cir.1989). This line of reasoning is disturbing. May we not then conclude that a defendant taking the stand in his own defense will be expected to lie in order to exculpate himself? Furthermore, under this reasoning, it is doubtful statements such as those involved in Myers would even meet the threshold requirement of materiality since they lack the “propensity or…