Opinion
NO. CR99-666C
April 4, 2001
Thomas W. Hillier, II, Federal Public Defender, Attorney for Ahmed Ressam.
Michael Filipovic, Assistant Federal Public Defender, Attorney for Ahmed Ressam.
Jo Ann Oliver, Assistant Federal Public Defender, Attorney for Ahmed Ressam.
Attorneys for the Defendant, Francis J. Diskin, Chief Assistant U.S. Attorney, Seattle, Wa.
Andrew Hamilton, Assistant U.S. Attorney, Seattle, Wa.
Steven Gonzalez, Assistant U.S. Attorney, Seattle, Wa.
MOTION AND MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT 5
NOW COMES the defendant, Ahmed Ressam, by undersigned counsel, and asks this Court to grant judgment of acquittal as to Count 5 of the indictment and to consider the following memorandum of law in support of his motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29(a).
FACTS Count 5 of the Second Superseding Indictment a11eges: (False Statement)
On or about December 14, 1999. at Port Angeles, within the Western District of Washington, in a matter within the jurisdiction of the United States Customs Service, an agency of the United States, AHMED RESSAM did knowingly and willfully make a false, fraudulent and fictitious material statement and representation; in that the defendant presented to U.S. Customs inspectors a Customs Declarations Form #6059B identifying himself as Benni Noris, whereas in truth and fact, as he then well knew, this statement was false in that his true name is AHMED RESSAM; All in violation of Title 18. United States Code, Section 1001.
ARGUMENT
The defendant's Motion for Judgment of Acquittal on Count 5 must be granted because the giving of a false name is neither within the jurisdiction of nor material to the United States Customs Service within the meaning of 18 U.S.C. § 1001. For a defendant to be convicted of a false statement the government must prove that 1) the defendant made a false statement within the jurisdiction of a government agency, 2) the defendant acted willfully, and 3) the statement was material to the agency's activities or decisions. 9th Cir.Crim.Jury Instr. 8.66 (2000). A material statement is one that has a "natural tendency" or capability of influencing an agency's activities or decisions. See United States v. Carrier, 654 F.2d 559, 561 (9th Cir. 1980) (outlining the test for determining whether a false statement is material). There is no evidence that Mr. Ressam's use of the name Benni Noris in any way affected or could have affected the operations of the Customs Service. To the contrary, the Customs officials fulfilled their duties despite Mr. Ressam's use of the name Benni Noris by searching Mr. Ressam's vehicle and seizing the prohibited materials.The defendant's false statements as to identity are material with respect to Count 3 of the indictment where he made those false statements to an immigration officer in Victoria, British Columbia. whose charge was to enforce the immigration laws. However the customs officers at Port Angeles. Washington, who were not cross-designated as immigration officers, have a different mission and as such the false statements as to identity with respect to Count 5 are not material.
In general. the Customs Service was established to carry out certain functions of the Treasury Department, namely the collection of duties on goods brought into the United States See U.S. Const. art. I, § 8, cl. 1, 2. By regulation, Customs is specifically authorized to enforce the laws of other agencies, but not those of the Immigration and Naturalization Service. 19 C.F.R. Part 161, Subpart A, § 161.2. Section 161.2 authorizes Customs to enforce import and export laws for the Bureau of Alcohol, Tobacco and Firearms and the Department of State (arms, ammunition, other implements of war), the Drug Enforcement Administration (controlled substances). the Office of Foreign Assets Control (goods associated with countries subject to U.S. economic sanctions), the Nuclear Regulatory Commission (atomic materials and equipment for production of atomic materials) and the Department of Commerce (all goods regulated by that department). See id. All of these enforcement powers are related to preventing the illegal importation or exportation of goods or materials, not persons. See id,
19 C.F.R. § 2071.
Upon entry into the United States, the regulations do require that a person in charge of I a vehicle "shall (A) report the arrival; and (B) present the vehicle, and all persons and merchandise (including baggage) on board, for inspection; to the customs officer . . ." 19 U.S.C. § 1433. Thai. section goes on to state that "The . . . person in charge of the vehicle . . . shall present . . . to the Customs Service such information, data, documents, papers, or manifests as the Secretary may by regulation prescribe." Id. Nowhere in Title 19 of the C.F.R is there a requirement that a person present their identification upon entering. There are, however, regulations prescribing when persons are required to present identification. See e.g. 19 C.F.R. § 19 C.F.R. § 24.1 (payment for customs duties via various checks accepted only after payer produces identification); 19 C.F.R. § 201.25 (person wishing to view his or her Customs records must produce "adequate identification"); 19 C.F.R. § 206.17 (authorizing disclosure of confidential business information during investigation by U.S. International Trade Commission to authorized parties who for release along with "adequate personal identification'). Furthermore, apply for release along with "adequate personal identification"). Futhermore, Customs has specifically addressed when it considers a person's true name to be material. See 19 C.F.R. Part 171, Appendix C § 1641(d)(I)(A) (material facts in false statements in application for Customs broker license include facts as to identity).
The Ninth Circuit has never specifically addressed the issue of whether a false name placed on a 6059B form is material for purposes of 18 U.S.C. § 1001. ln general, Ninth Circuit cases have involved false statements regarding goods or materials brought into the United States. See e.g. Carrier, 654 F.2d at 560 (defendant falsely answered no to carrying over $5000 in currency): United States v. Masters, 612 F.2d 1117 (9th Cir. 1980) (defendant falsely answered in the negative when asked if he carried more than the already reported $9000 in currency and failed to declare gems carried by female companion). The Eighth Circuit, however, has addressed the issue in United States v. Popow, 821 F.2d 483 (8th Cir. 1987). There, the defendant attempted to enter the United States from Canada and placed a false name on a 6059B form. See id. at 485. The defendant submitted the form to a Customs officer who was cross-designated as an immigration officer. See id. Due to the cross-designation, the court found the false statement was both within the jurisdiction of the I.N.S. and was material to the Customs Service.See id. 1 at 487-88; but see United States v. Parten, 462 F.2d 430 (5th Cir. 1972) (no discussion of cross designation in finding that use of false names on 6095B forms material to Customs Service).
Because the Customs Service is not statutorily authorized to enforce immigration laws and because it has otherwise designated when a true identity is material, the use of a false name on a 6059B form is neither within the jurisdiction of nor material to that agency. Unlike the officer in Popow. there was no evidence presented that the Customs officers in this case were cross-designated as I.N.S. officers. Because the Customs officers were not charged with enforcement of the immigration laws, the use of the name Benni Noris was not within Customs jurisdiction and did not have the natural tendency to, or capability of influencing that agency's decision. This is evidenced by the fact that the agent searched Mr. Ressam's car based on criteria other than his name, found the prohibited materials, and seized them. Because the statement is neither within the jurisdiction of nor material to the Customs Service, Count 5 must be dismissed.
THIS MATTER having come before the Court on the Defendant's Motion for Judgment of Acquittal as to Count 5 Pursuant to Federal Rule of Criminal Procedure 29(a), the Court having reviewed the defendant's motion, the arguments made by counsel, and the records and files herein, it is now therefore
ORDERED that the defendant's motion for judgment of acquittal is granted as to Count 5.
DEFENDANT'S EXHIBIT LIST
The following is a list of exhibits the Defendant intends to introduce at trial in the above-referenced case10,001. Exhibit Analysis: City map of Los Angeles (2 pages).
10,002a. Small photograph of Ahmed Ressam's lower right leg — outer side view
10,002b. Enlarged color photocopy of 10,002a.
10,003a. Small photograph of Ahmed Ressam's lower right leg — front view
10,003b. Enlarged color photocopy of 10,003a.
10,004a. Small photograph of Ahmed Ressam's lower right leg — inner side view.
10,004b. Enlarged color photocopy of 10,004a.
10,005a. Small photograph of Ahmed Ressam's lower right leg — back view.
10,005b. Enlarged color photocopy of 10,005a.
10,006. Photograph of gray wool pants from RCMP Lab, Ottawa
10,007. Photograph (close up of right leg) of gray wool pants from RCMP Lab, Ottawa.
10,008. Photograph of brown bi-fold leather wallet (Q21).
10,009. Photograph of suitcase (Q35).
10,010. Photograph of navy blazer and trench-style tan coat (Q36).
10,011. Photograph of maps and tourist brochures (Q91).
10,012. Photograph of tan travel bag (Q22).
10,013. Photograph of black garment bag with clothing inside (Q31).
10,014. Photograph of black and yellow Kipling backpack (Q28).
10.015. Photograph of black and yellow Kipling backpack (Q28).
10,020. Photograph of car seat with miscellaneous travel brochures.
10,022. Photograph of Washington/Oregon map (FBI item #33).
10,023. Photograph of "Where Victoria" sightseeing brochure. (Item #33).
10,024. Photograph of "Miniature World: The Greatest Little Show On Earth" Victoria, B.C. — brochure.
10,025. Photograph of "Free Map — SEE Vancouver Whistler" area maps (Item #33)
10,027. Climate Data Services Environment Canada Report for Vancouver International Airport for the months of November and December, 1999.
10,028. British Airways Certificate of Foreign Business Records and Records for reservation under the name of Benni Norris for flight #116 departing JFK December 16, 1999, destination London, UK.