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United States v. Disu

filed*fn*: January 29, 1992.


Appeal from the United States District Court for the Central District of California. James M. Ideman, District Judge, Presiding. D.C. No. CR-90-104-JMI

Before: Farris, Noonan, and Trott, Circuit Judges.


Safiriru Adekunle Disu was convicted of making a false statement to a government agent and failing to report transportation of over $10,000 out of the country. Because the money he attempted to remove from the country was allegedly derived from funds embezzled by his cousin, and the district court found he had knowledge of the origin of these funds, his base offense level was increased by five levels. There was sufficient evidence for the convictions, the "exculpatory no" defense does not provide a complete defense for Disu, and no seizure took place. We affirm.



In order to prove that Disu violated 31 U.S.C. § 5316 (1988), the government had to prove that Disu knew (1) he was transporting funds in excess of $10,000, and (2) that the law required him to file a report. United States v. Ibarra-Alcarez, 830 F.2d 968, 974 (9th Cir. 1987). Disu does not contest that he knew he was carrying in excess of $10,000, but claims he did not know he was required to make a report.

However, a review of the sufficiency of the evidence views evidence in the light most favorable to the government. United States v. Mason, 902 F.2d 1434, 1441 (9th Cir. 1990). The entire case was based on witness testimony, and we give special deference to the district court for the interpretation of such testimony. United States v. Padilla, 888 F.2d 642, 645 (9th Cir. 1989). Moreover because Disu did not renew his motion for judgment of acquittal at the close of the evidence, we can only review for plain error so as to prevent a miscarriage of Justice. United States v. Lai, 944 F.2d 1434, 1440 (9th Cir. 1991); United States v. Torres-Rodriguez, 930 F.2d 1375, 1386 (9th Cir. 1991).

The government claims that Disu's filling out of the customs form -- which states that any traveller must report over $10,000 -- was sufficient to prove knowledge of the legal requirement of filling out the report. Indeed, the Ninth Circuit has found this is sufficient. United States v. Rodriguez, 592 F.2d 553, 556-57 (9th Cir. 1979). Disu claims, however, that (1) he never read the form because of his inability to comprehend English or Spanish; (2) because of his inability to be understood, there was a great deal of miscommunication; and (3) he did not hear the announcement over the loudspeaker, because he was asleep.*fn1

However, there was evidence presented to the district court that Disu's knowledge of English was sufficient to understand the form he signed, understand the posted signs, and understand Fortini's explanation, even if he did sleep through the announcements. The customs officials testified that they conversed with Disu in English. Disu took courses taught in English and received As and Bs. These courses included engineering courses, as well as courses on the United States government and the Constitution. Disu also received a certificate from his school stating that he has the required English proficiency. These facts, in addition to the fact that Disu read and signed the 4790 Form, and the fact that Disu was told of the requirements by Fortini, were sufficient evidence for the district court to find beyond a reasonable doubt that Disu had knowledge of the currency reporting requirements. Although the district court did not prepare any specific findings of fact, we must be "mindful of [the appellate court's] duty to assume that the district court resolved any evidentiary conflicts in favor of its Conclusion that each of the elements of a violation of section 53116(a)(1)(A) had been proved beyond a reasonable doubt." Alzate-Restreppo, 890 F.2d at 1065 (citation omitted).


Disu also claims there was insufficient evidence to prove a violation of 18 U.S.C. § 1001 (1988) -- making a false material statement to the Customs Officer. The government had to have proven that (1) the statement was material to custom's activities, United States v. Facchini, 874 F.2d 638, 641-43 (9th Cir. 1989) (en banc); and (2) Disu had intent and knowledge that the statement was false, United States v. Vaughn, 797 F.2d 1485, 1490 (9th Cir. 1986). There is no contention that the statement was not material to custom's activities. Disu claims, however, that he did not knowingly make a false statement and merely misunderstood what was being asked of him. Disu claims he did not read the form, and was told by Fortini to write $10,000 on the form. Disu argues he had no intent to deceive as proven by the fact that be voluntarily gave Fortini the $50,000 he was carrying with him.

There was certainly sufficient evidence, assuming the facts most favorable to the government, for the district court to find knowledge of making a false statement. As stated above, there was a great deal of evidence to indicate that Disu had a good understanding of English. Unless there was plain error, we are not at liberty to reverse. There was no plain error.


Disu claims the use of the statements made to Fortini violated his right not to incriminate himself -- the "exculpatory no" defense. This issue was not raised in the district court. The government argues that this issue was waived because "under most circumstances, a failure to raise a particular ground in a motion to suppress before trial constitutes waiver, in the absence of 'cause shown'" United States v. Mulder, ...

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