United States v. Tatoyan ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50783
Plaintiff-Appellee,
D.C. No.
v.
 CR-03-00961-SVW-
KRIKOR BAGHDASSAR TATOYAN, 01
a/k/a KRIKOR TATOYAN,
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 05-50784
Plaintiff-Appellee,
D.C. No.
v.
 CR-03-00961-SVW-
ZENDA BEDROS TATOYAN, a/k/a 02
ZENDA TATOYAN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
November 17, 2006—Pasadena, California
Filed January 30, 2007
Before: Cornelia G. Kennedy,* Cynthia Holcomb Hall, and
Michael Daly Hawkins, Circuit Judges.
*The Honorable Cornelia G. Kennedy, Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.
1121
1122 UNITED STATES v. TATOYAN
Opinion by Judge Hawkins
UNITED STATES v. TATOYAN 1125
COUNSEL
David J. Bederman, Atlanta, Georgia, for the defendants-
appellants.
Brian M. Hoffstadt (argued) and J. Mark Childs, Office of the
United States Attorney, Los Angeles, California, for the
plaintiff-appellee.
OPINION
HAWKINS, Circuit Judge:
We examine the long-standing requirements surrounding
the personal export of cash from the United States, the more
recently enacted bulk cash smuggling prohibitions, and the
ever-elusive requirement of willfulness. Here, as in many
other areas, honesty remains the best policy.
FACTS AND PROCEDURAL HISTORY
As they were about to board a flight to Paris at Los Angeles
International Airport, Krikor and Zenda Tatoyan (“the Tatoy-
ans”) were stopped by United States Customs Inspector
1126 UNITED STATES v. TATOYAN
Chung J. Lou (“Inspector Lou”), who was conducting cur-
rency enforcement examinations of passengers on that flight.
At the time, Krikor had $8,000 cash in his pants pocket and
$17,601 cash in two pouches hanging around his neck under-
neath his sweater, while Zenda had $10,000 cash in a plastic
bag in her purse and $43,717 cash in various pouches in her
purse. Although Inspector Lou did not follow, to the letter, the
Customs Service’s procedures for conducting currency exami-
nations when he examined the Tatoyans,1 he did inform them
that there was no law against taking money out of the United
States but that, if they were carrying more than $10,000, they
must declare it and file a form with the Customs Service. He
also informed them that there would be no taxes or penalties
on any money they declared.2
When Inspector Lou asked the Tatoyans how much money
they were carrying, Krikor responded that he was carrying
$8,000 and Zenda said she was carrying exactly $10,000.
Although, technically, a person need not fill out Customs
Form 4790 unless carrying more than $10,000, Inspector Lou
nonetheless asked Zenda to move to a nearby table and com-
plete this form. On the form—which Zenda signed and
Inspector Lou explained in detail—Zenda declared that she
was carrying only $10,000.
Asked to produce the money, Zenda pulled a plastic bag
from her purse that contained a bundle of exactly $10,000
cash. A subsequent search of the Tatoyans revealed the addi-
1
According to testimony presented at trial, a Customs Service handbook
instructs currency examiners to provide travelers with form CP 503 —
which explains the currency reporting requirements—and have them read
and sign this form to confirm that they understand these requirements.
Inspector Lou failed to follow these procedures.
2
According to the evidence presented at trial, the currency reporting
requirements were also posted on placards located at the Tatoyans’ ticket
booth and at their departure gate, as well as in the Tatoyans’ passports.
Both Krikor and Zenda had traveled internationally prior to their antici-
pated November 8, 2003 flight.
UNITED STATES v. TATOYAN 1127
tional $43,717 Zenda was carrying, as well as the $8,000 in
Krikor’s pants pocket and the $17,601 in his under-sweater
pouches. When asked why they had responded the way they
did when asked about the money, Krikor explained that the
inspector had been talking quickly and that he did not want
other passengers to hear how much money he and his wife
were carrying. Zenda added that “people just told her to write
$10,000.” Interviewed separately, both Tatoyans said the
funds were destined for Krikor’s uncle in Iraq who needed
financial help. The government presented no evidence at trial
to contradict this or to establish that the funds were related to
any illicit activity.
As a result of these events, the Tatoyans were each charged
with conspiracy, failure to report an attempted transportation
of over $10,000 out of the United States, bulk cash smug-
gling, and making a false statement to a government official.3
On October 9, 2003, the Tatoyans agreed to a forfeiture settle-
ment with the government under which $39,659—one half of
the total funds—were administratively forfeited. The Tatoy-
ans were later convicted by a jury of all counts and were each
sentenced to pay a $100,000 fine, serve three years probation,
perform 360 hours of community service, and pay a $400 spe-
cial assessment.
Before trial, the district court granted the government’s
motion to exclude evidence regarding the apparently innocent
purpose of the smuggled funds. The court also declined to
adopt the Tatoyans’ proposed jury instructions with regard to
bulk cash smuggling under 31 U.S.C. § 5332 and making
false statements under 18 U.S.C. § 1001. After sentencing, the
court denied the Tatoyans’ Motion for Judgment of Acquittal
or for a New Trial. The Tatoyans now appeal their convic-
tions, sentences, and the denial of their post-trial motion.
3
These charges were brought under 18 U.S.C. § 371, 31 U.S.C.
§§ 5316(a)(1)(A), 5322(a), 31 U.S.C. § 5332, and 18 U.S.C. § 1001,
respectively.
1128 UNITED STATES v. TATOYAN
DISCUSSION
I. Sufficiency of the Evidence
The Tatoyans first argue that the evidence presented at trial
was insufficient to support their currency reporting and bulk
cash smuggling convictions under 31 U.S.C. §§ 5322(a)
(requiring a “willful” violation of the currency reporting
requirement) and 5332(a)(1) (requiring an “intent to evade”
the currency reporting requirement) because Inspector Lou
failed to follow the Customs Service’s internal procedures for
apprising travelers of the currency reporting laws.
A district court’s determination that sufficient evidence
supports a conviction is reviewed de novo. United States v.
Weber, 320 F.3d 1047, 1050 (9th Cir. 2003). “There is suffi-
cient evidence to support a conviction if, viewing the evi-
dence in the light most favorable to the government, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Id.
[1] Under the currency reporting statutes, a defendant acts
“willfully” if he has “knowledge of the reporting require-
ment” and a “purpose to disobey the law.” Ratzlaf v. United
States, 510 U.S. 135, 141 (1994). Although Inspector Lou did
not follow the protocol of presenting the Tatoyans with form
CP 503—which might have more clearly established that they
had “knowledge of the reporting requirement,” id.—a rational
fact-finder still could have concluded that the Tatoyans had
actual knowledge of the requirement because Inspector Lou
repeatedly explained it to them orally and because Customs
Form 4790 (which the Tatoyans were given), as well as plac-
ards posted around the airport and warnings in the Tatoyans’
passports, detailed the requirement in writing. See United
States v. Gomez-Osorio, 957 F.2d 636, 640-41 (9th Cir.
1992); United States v. Alzate-Restreppo, 890 F.2d 1061,
1064 (9th Cir. 1989); United States v. Rodriguez, 592 F.2d
553, 557 (9th Cir. 1979). A rational fact-finder also could
UNITED STATES v. TATOYAN 1129
have concluded that the Tatoyans had a “purpose to disobey
the law,” Ratzlaf, 510 U.S. at 141, based on their misrepresen-
tations both to Inspector Lou and on Form 4790, as well as
their careful concealment of the exact amount of money they
failed to report.
[2] These conclusions are unaffected by the argument that
the currency examination procedures Inspector Lou failed to
follow were “mandatory” according to the Customs Service’s
internal policies.4 Compliance with these internal agency reg-
ulations is not “mandated by the Constitution or federal law,”
see United States v. Caceres, 440 U.S. 741, 749 (1979),5 and,
therefore, it is not the province of this court to penalize the
government for non-compliance. Cf. id. at 749-50 (tape
recording admissible even though procured in violation of
“mandatory” IRS procedures); United States v. Hinton, 222
F.3d 664, 674-75 (9th Cir. 2000) (package contents admissi-
ble even though postal service procedures not followed);
United States v. Ani, 138 F.3d 390, 392 (9th Cir. 1998) (pack-
age contents admissible even though customs regulation vio-
lated). Indeed, to hold otherwise would be to discourage the
Customs Service from promulgating internal guidelines that,
in general, provide travelers with important information to
help them avoid inadvertent customs violations. Cf. Caceres,
440 U.S. at 755-56 (“[A] rigid application of an exclusionary
4
See supra note 1.
5
The Tatoyans disagree and argue that, because Congress authorized the
Treasury Secretary to “prescribe regulations . . . requiring reports on for-
eign currency transactions,” 31 U.S.C. § 5315(c), any and all regulations
related to these reports are also “mandated by . . . federal law” for Caceres
purposes. This is incorrect. All § 5315(c) requires is that the Secretary “re-
quire[ ] reports on foreign currency transactions” and that these reports
“contain information . . . necessary to carry out [the statute].” Form 4790
fulfills this function. The statute says nothing about the currency examina-
tion procedures inspectors must follow, nor does it suggest that other
forms, like CP 503, must be given to travelers. Cf. United States v. Soto-
Soto, 598 F.2d 545, 550 (9th Cir. 1979) (19 U.S.C. § 482 was directly vio-
lated by an unlawful search).
1130 UNITED STATES v. TATOYAN
rule to every regulatory violation could have a serious deter-
rent impact on the formulation of additional standards to gov-
ern prosecutorial and police procedures.”).
[3] Therefore, Inspector Lou’s failure to follow the Cus-
toms Service’s internal procedures neither violated due pro-
cess under Caceres, 440 U.S. at 749, nor warranted an
automatic finding of insufficient knowledge under Ratzlaf,
510 U.S. at 141. His actions merely made it more difficult—
though, as evidenced by this case, not impossible—for the
government to prove “actual knowledge.”
II. Exclusion of Evidence
The Tatoyans next argue that the district court abused its
discretion when, on the grounds of irrelevancy, it refused to
allow the Tatoyans to present evidence of the apparently legit-
imate source and benevolent purpose of the confiscated funds.
The Tatoyans contend that evidence showing that they were
transporting money for an innocent reason—and not as part of
their involvement in an illicit activity such as terrorism,
money laundering, or drug dealing—would tend to show that
they lacked the criminal culpability necessary for conviction
of the specific intent crimes of failure to report and bulk cash
smuggling. “We review a district court’s ruling on the rele-
vance of evidence for an abuse of discretion.” United States
v. Rubio-Topete, 999 F.2d 1334, 1338 (9th Cir. 1993).
[4] As explained above, a defendant need only have
“knowledge of the reporting requirement” and “a purpose to
disobey the law” to be found guilty of willfully violating
§ 5316, Ratzlaf, 510 U.S. at 141, and need only have the “in-
tent” to violate § 5316 to be guilty of bulk cash smuggling.
Such specific intent—by whatever name—“does not require
evil intent, but only that the defendant act ‘deliberately and
with knowledge.’ ” United States v. Heuer, 4 F.3d 723, 732
(9th Cir. 1993) (quoting Hirsch v. INS, 308 F.2d 562, 567 (9th
Cir. 1962)). The government, therefore, was only required to
UNITED STATES v. TATOYAN 1131
prove that the Tatoyans knew they were required to file a
report and that, for whatever reason, they deliberately evaded
this requirement. Because motive is neither an element of the
crimes nor a defense under either § 5322 or § 5332, the dis-
trict court was within its discretion to exclude the disputed evi-
dence.6
III. Bulk Cash Smuggling Instruction
The Tatoyans next argue that the district court’s jury
instructions for the relatively new offense of bulk cash smug-
gling, see 31 U.S.C. § 5332 (2001), were in error because the
instructions: (1) failed to expressly require a willful violation
of the law; (2) failed to require a temporal connection
between the act of concealing the currency and the requisite
intent to violate the statute; and (3) improperly merged the
bulk cash smuggling and failure to report offenses.
The bulk cash smuggling statute, 31 U.S.C. § 5332(a)(1),
reads as follows:
Whoever, with the intent to evade a currency report-
ing requirement under section 5316, knowingly con-
6
United States v. Conners, 825 F.2d 1384 (9th Cir. 1987)—a currency
reporting case in which motive evidence was properly admitted—is distin-
guishable. Conners involved two unrelated defendants who each claimed
that the other one hid several bundles of money in a car door to evade the
reporting requirement. Id. at 1390. The court, therefore, allowed the gov-
ernment to present evidence of one defendant’s cocaine activities because
it was probative of that defendant’s identity as the money-hider. Id. The
motive evidence proffered by the Tatoyans was not probative of the guilty
party’s identity, nor was it probative of any other element of, or defense
to, the currency reporting crimes. Therefore, Conners does not apply, and
the court was free to exclude the proffered motive evidence.
Exclusion of this evidence also does not violate due process under
Chambers v. Mississippi, 410 U.S. 284, 302 (1973), because “[a] defen-
dant has no [constitutional] right . . . to present irrelevant evidence.” Wood
v. Alaska, 957 F.2d 1544, 1549 (9th Cir. 1992).
1132 UNITED STATES v. TATOYAN
ceals more than $10,000 in currency or other
monetary instruments on the person of such individ-
ual or in any conveyance, article of luggage, mer-
chandise, or other container, and transports or
transfers or attempts to transport or transfer such cur-
rency or monetary instruments from a place within
the United States to a place outside of the United
States, or from a place outside the United States to
a place within the United States, shall be guilty of a
currency smuggling offense and subject to punish-
ment pursuant to subsection (b).
“We review the district court’s formulation of jury instruc-
tions for an abuse of discretion,” United States v. Fernandez,
388 F.3d 1199, 1246 (9th Cir. 2004); however, “[w]hether the
district court’s instructions adequately presented the defen-
dant’s theory of the case” is reviewed de novo, United States
v. Knapp, 120 F.3d 928, 930 (9th Cir. 1997). “In reviewing
jury instructions, the relevant inquiry is whether the instruc-
tions as a whole are misleading or inadequate to guide the
jury’s deliberation.” Fernandez, 388 F.3d at 1246. Although
no Ninth Circuit Model Jury Instruction exists for this rela-
tively new statute, the instructions given by the district court,
which carefully tracked the language of § 5332(a), were not
“misleading or inadequate” for any of the reasons the Tatoy-
ans suggest.
A. Willfulness
[5] Because the bulk cash smuggling statute is codified
under title 31, chapter 53, subchapter II of the United States
Code, the Tatoyans argue that they can only be found guilty
if they “willfully” violated the statute. See 31 U.S.C. § 5322
(prescribing criminal penalties for willfully violating any part
of that subchapter). They contend that the jury instructions
given—which recited § 5332(a) virtually verbatim, but did
not import the “willfulness” requirement from § 5322(a)—
failed to accurately capture this element of bulk cash smug-
UNITED STATES v. TATOYAN 1133
gling.7 We disagree, but hold that, in the absence of a jury
determination that a willful violation of the bulk cash smug-
gling statute occurred, the criminal penalties authorized by
§ 5322—in particular, a fine of up to $250,000—are unavail-
able to the district court at sentencing for a violation of
§ 5332. See infra Part V.
Section 5332(a) states:
Whoever, with the intent to evade a currency report-
ing requirement under section 5316, knowingly con-
ceals more than $10,000 in currency . . . and
transports or transfers or attempts to transport or
transfer such currency . . . from a place within the
United States to a place outside of the United States
. . . shall be guilty of a currency smuggling offense
and subject to punishment pursuant to subsection (b).
Subsection (b) then authorizes the court to impose a sentence
of “not more than 5 years” for anyone “convicted of a cur-
rency smuggling offense under subsection (a).” § 5332(b).
Because the court properly instructed the jury as to the ele-
ments of a currency smuggling offense under § 5332(a), and
because this offense stands on its own and does not, itself,
require “willfulness,” there was no error in the district court’s
omission of a willfulness instruction on this count.8
7
The jury instructions on this count were as follows:
First, the defendant knowingly concealed more than $10,000 in
currency on his or her person in any conveyance, article of lug-
gage, merchandise, or other container. Second, the defendant
knowingly attempted to transport such currency from a place
within the United States to a place outside the United States.
Third, the defendant knew at the time of the alleged concealment
he or she was required to file a report of the amount of money
she was attempting to transport with the Secretary of Treasury.
Fourth, the defendant intended to evade filing such a report.
8
As discussed in Part V, however, this omission does have an effect on
the penalty that may be imposed on the Tatoyans for violating the bulk
cash smuggling statute.
1134 UNITED STATES v. TATOYAN
B. Temporal Nexus
[6] The Tatoyans next argue that the language of § 5332
requires that the defendant have the intent to evade the report-
ing requirement at the time the actual concealment of cur-
rency occurs. A more natural reading of the statute, however,
suggests that the intent to evade the reporting requirement can
arise at any time prior to (and including) the moment of
attempted transport—in other words that, as the district court
found, “[c]oncealment is simply one part of a continuous
course of conduct, at any stage of which the requisite intent
can be formed.” If Congress had intended the meaning the
Tatoyans now urge, it would have made this intent clear—for
example, by using the word “concealed” instead of “conceals”
in the statute.
Indeed, if the interpretation urged by the Tatoyans were
correct, travelers first learning of the reporting requirement at
the airport—as most people do via the airport placards and
customs inspector warnings—could not be guilty of violating
§ 5332 because they would not have known about the report-
ing requirement at the time of initial concealment. Even more
troubling, sophisticated smugglers could entirely evade the
consequences of § 5332 by having one person pack the bags
containing excessive currency and having another person ulti-
mately transport—and fail to report—this currency. The for-
mer would have concealed the money without having the
requisite intent, while the latter would have had the requisite
intent, but would not have participated in the actual conceal-
ment, rendering neither guilty—under the Tatoyans’ theory—
of bulk cash smuggling. Statutes should be read to avoid such
absurd results. See Griffin v. Oceanic Contractors, Inc., 458
U.S. 564, 575 (1982).9
9
Even if the intent to evade the reporting requirements were required to
arise at the time the money was first physically concealed, a rational jury
would still have found the Tatoyans guilty, rendering any jury instruction
error harmless. See Neder v. United States, 527 U.S. 1, 18 (1999). The
Tatoyans had carefully hidden the exact amount of money they failed to
report, while they had put the money they admitted to possessing in more
ordinary locations.
UNITED STATES v. TATOYAN 1135
C. Merger
The final contention with respect to the bulk cash smug-
gling jury instruction is that it improperly merged the bulk
cash smuggling and failure to report offenses such that the
jury may have believed that a guilty verdict for failure to
report necessarily required a guilty verdict for bulk cash
smuggling.
[7] The statute itself—as well as the record—seem to belie
this fear. The district court correctly instructed the jury that
bulk cash smuggling requires that the defendant “knowingly
concealed more than $10,000 in currency on his or her per-
son.” § 5332(a) (emphasis added). Knowing concealment is
not an element of the failure to report offense charged under
§§ 5316(a)(1)(A) and 5322, however. Therefore, as a strictly
textual matter, the two offenses, as they were described by the
district court’s jury instructions, do not merge. See Blockbur-
ger v. United States, 284 U.S. 299, 304 (1932) (“[W]here the
same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.”).
[8] The Tatoyans contend, however, that the additional
“concealment” element does not cure the merger problem
because every person at the airport the day the Tatoyans were
confronted was concealing their currency—whether in a
pocket, pouch, purse, bag, or wallet—and, therefore, anyone
who failed to report their money in violation of § 5316 was
also “smuggling” cash under § 5332. This may be true as a
factual matter. However, as a logical matter, it is possible to
be guilty of failure to report but innocent of bulk cash smug-
gling, and vice versa.10 Therefore, under Blockburger, the two
10
For example, a person who knowingly conceals $20,000 in his brief-
case with the intent to evade the currency reporting requirements, but then
“breaks down” at the airport and reports the full $20,000 on Form 4790,
1136 UNITED STATES v. TATOYAN
offenses are distinct and the district court’s instructions ade-
quately captured this distinction. 284 U.S. at 304.
[9] Finally, to the extent that the two offenses appear to
merge because virtually everyone guilty of one offense would
also be guilty of the other offense, the Supreme Court has
emphasized that:
Where . . . a legislature specifically authorizes cumu-
lative punishment under two statutes, regardless of
whether those two statutes proscribe the “same” con-
duct under Blockburger, a court’s task of statutory
construction is at an end and the prosecutor may
seek and the trial court or jury may impose cumula-
tive punishment under such statutes in a single trial.
Missouri v. Hunter, 459 U.S. 359, 368-69 (1983). Here, Con-
gress’s intent was clear: Section 5332 was expressly enacted
because the previous “penalties for violations of the currency
reporting requirements [were] insufficient to provide a deter-
rent to the laundering of criminal proceeds[; i]n particular, in
cases where the only criminal violation under [previous] law
[was] a reporting offense . . . .” Pub. L. No. 107-56, Title III,
§ 371(a)(6). Congress thus contemplated—and indeed
welcomed—a scenario in which someone guilty of a reporting
offense under § 5316 would also be guilty of a bulk cash
smuggling offense under § 5332. Because the two offenses
are distinct, there was no error in the district court’s jury
instructions on the bulk cash smuggling counts.
IV. False Statement Instruction
The Tatoyans next argue that the district court erred by fail-
ing to instruct the jury that acting “willfully” means acting
is technically guilty of bulk cash smuggling but not guilty of a failure to
report. Similarly, a person who carries a wad of $20,000 cash in his bare
hands (i.e., without “concealing” it), but refuses to report it on Form 4790,
is technically guilty of a failure to report but not guilty of bulk cash smug-
gling.
UNITED STATES v. TATOYAN 1137
“deliberately and not out of confusion, mistake or surprise.”
Again, on review, “the relevant inquiry is whether the instruc-
tions as a whole are misleading or inadequate to guide the
jury’s deliberation.” Fernandez, 388 F.3d at 1246.
[10] The Tatoyans’ contention is incorrect for two reasons.
First, the district court did instruct the jury that “[a]n act is
done knowingly if the defendant is aware of an act and does
not act or fail to act through ignorance, mistake or accident.”
Using the words “ignorance, mistake or accident” to modify
“knowingly,” rather than the words “confusion, mistake or
surprise” to modify the word “willfully,” does not render the
chosen instruction inadequate. See United States v. Garcia, 37
F.3d 1359, 1364 (9th Cir. 1994) (“[S]o long as the [jury]
instructions fairly and adequately cover the issues presented,
the judge’s formulation of those instructions or choice of lan-
guage is a matter of discretion.” (internal quotation marks
omitted)).
[11] Second, the district court’s instruction—which mir-
rored Ninth Circuit Model Jury Instruction 8.66—defined
“willfully” in a manner that fully comports with Supreme
Court and Ninth Circuit holdings. See Browder v. United
States, 312 U.S. 335, 341 (1941) (willfully means no more
than “deliberately and with knowledge”); Notash v. Gonzales,
427 F.3d 693, 698 (9th Cir. 2005) (same); Heuer, 4 F.3d at
732 (same). Nothing further was required here, as the Tatoy-
ans’ theory that they acted out of “confusion, mistake or sur-
prise” was encompassed by the antonymous term
“deliberately” in the jury instructions. See United States v.
Ripinsky, 109 F.3d 1436, 1440 (9th Cir. 1997) (“[A] defen-
dant is not entitled to any particular form of instruction and
it is not error . . . to reject a theory-of-the-case instruction if
the other instructions in their entirety cover the defense theo-
ry.” (internal quotation marks and citations omitted)).11
11
The Tatoyans also contend that the district court erred when it failed
to instruct the jury that, to be found guilty, the defendants must have acted
1138 UNITED STATES v. TATOYAN
V. Sentencing
The Tatoyans’ final argument is that the $100,000 fines
they each received are excessive under the Eighth Amend-
ment. See U.S. Const. amend. VIII; United States v. Bajaka-
jian, 524 U.S. 321, 336 (1998). We do not reach this question,
however, because we remand for resentencing due to the par-
ticular sentencing requirements of the bulk cash smuggling
statute.
[12] As discussed in Part III, supra, because the district
court properly instructed the jury on the elements of bulk cash
smuggling, the jury’s verdict stands. However, these instruc-
tions did not ask the jury to determine whether the Tatoyans
willfully violated § 5332. Though not itself error, see supra
Part III.A, it does limit the available penalties for bulk cash
smuggling to those provided in § 5332.
[13] The bulk cash smuggling statute authorizes only a term
of imprisonment as punishment, see § 5332(b),12 whereas the
with the knowledge that they were making false statements to a govern-
ment officer acting within the scope of his duties. The Tatoyans’ opening
brief, however, provided no explanation regarding why this instruction
was necessary; thus, the argument is waived. See United States v. Loya,
807 F.2d 1483, 1486-87 (9th Cir. 1987) (“Issues raised in a brief which
are not supported by argument are deemed abandoned.”)
Even if Appellants’ contention had been properly raised, it would not
have succeeded. “No culpable mental state must be proved with respect to
federal agency jurisdiction in order to establish a violation of section
1001.” United States v. Green, 745 F.2d 1205, 1210 (9th Cir. 1984);
accord Heuer, 4 F.3d at 733-34. Requiring the government to prove that
the Tatoyans knew they were speaking to a government agent acting
within the scope of his duties is simply another way of requiring the gov-
ernment to prove mens rea with respect to federal jurisdiction and is,
therefore, precluded by Heuer, 4 F.3d at 733-34, and Green, 745 F.2d at
1210.
12
Section 5332(b)(2) also provides for forfeiture of “any property, real
or personal, involved in the offense, and any property traceable to such
property.”
UNITED STATES v. TATOYAN 1139
more general criminal penalties statute for the Records and
Reports on Monetary Instruments Transactions subchapter,
§ 5322(a), authorizes a term of imprisonment or a fine of up
to $250,000, or both, for a willful violation of the subchapter,
which includes § 5332. If the jury, after an appropriate jury
instruction, had found that the Tatoyans willfully violated the
bulk cash smuggling statute—i.e., that the Tatoyans “acted
with knowledge that [knowingly concealing and attempting to
transport more than $10,000 with the intent to evade a cur-
rency reporting requirement] was unlawful,” 31 U.S.C.
§ 5332(a); Ratzlaf, 510 U.S. at 137—then the court would
have been authorized to fine the Tatoyans up to $250,000
each for “willfully violating this subchapter,” § 5322(a). In
the absence of such a jury finding, however, the court is lim-
ited to the penalties listed in § 5332(b), which do not include
a punitive fine.
[14] At sentencing, the district court did not sentence either
Krikor or Zenda to serve prison time, but instead sentenced
each to pay a $100,000 fine and complete 360 hours of com-
munity service. Because we cannot, on this record, determine
the extent to which any portions of the $100,000 fines were
imposed as punishment for the Tatoyans’ violations of the
bulk cash smuggling statute, we vacate the Tatoyans’ sen-
tences and remand to the district court for resentencing.
AFFIRMED IN PART; VACATED AND REMANDED
IN PART.