Filed: Sep. 24, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4507 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. YVONNE CASTLE TAYLOR, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell III, District Judge. (1:13-cr-00080-GLR-1) Submitted: August 8, 2014 Decided: September 24, 2014 Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Lanc
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4507 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. YVONNE CASTLE TAYLOR, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell III, District Judge. (1:13-cr-00080-GLR-1) Submitted: August 8, 2014 Decided: September 24, 2014 Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Lance..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4507
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
YVONNE CASTLE TAYLOR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell III, District Judge.
(1:13-cr-00080-GLR-1)
Submitted: August 8, 2014 Decided: September 24, 2014
Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lance C. Hamm, Houston, Texas, for Appellant. Rod J.
Rosenstein, United States Attorney, Evan T. Shea, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Yvonne Castle Taylor (Taylor)
conditionally pleaded guilty to the charge of failing to file a
required report of international transportation of currency in
violation of 31 U.S.C. § 5316, reserving the right to challenge
on appeal the district court’s denial of her motion to suppress.
She was sentenced to five years’ probation and fined $3,000.00.
On appeal, she argues, first, that the district court erred when
it denied her motion to suppress and, second, that venue was
improper in the District of Maryland. For the reasons stated
below, we affirm.
I
A
On the morning of May 28, 2011, Homeland Security
Investigations (HSI) Special Agent Roy Rutherford (Agent
Rutherford), who was stationed in Atlanta, Georgia, received a
phone call from HSI Special Agent Mary Horn (Agent Horn), who
was stationed in Baltimore, Maryland. During the call, Agent
Horn indicated that she had received a tip that Taylor would be
attempting to smuggle a large amount of currency out of the
United States that day while traveling from Baltimore to Montego
Bay, Jamaica. According to Agent Horn, Taylor was scheduled to
fly from Baltimore-Washington International Airport (BWI) to
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Sangster International Airport (MBJ) in Montego Bay, connecting
through Atlanta Hartsfield-Jackson International Airport
(Atlanta Hartsfield). 1 Based on this information, Agent
Rutherford contacted the United States Customs and Border Patrol
(CBP) Passenger Analysis Unit (PAU) duty officer at Atlanta
Hartsfield and asked her to assign two CBP officers the task of
interviewing Taylor as she boarded the plane bound for MBJ. In
response, the CBP PAU duty officer instructed CBP Officers
Abdullah Shahbaaz (Officer Shahbaaz) and Christopher Horton
(Officer Horton) to interview Taylor before she boarded the
plane.
Later that morning, Agent Rutherford received another call
from Agent Horn. During this call, Agent Horn indicated that
Taylor was searched by Transportation Security Administration
officers at BWI and that no “bulk sum of currency [was found] on
her person.” (J.A. 135). After receiving this information,
Agent Rutherford contacted the CBP PAU duty officer at Atlanta
Hartsfield and asked her to call off the operation concerning
Taylor because no bulk sum of currency was found on Taylor’s
person during the search at BWI.
1
More specifically, Taylor was scheduled to fly on Airtran
Airlines, departing BWI at 8:32 a.m. and arriving at Atlanta
Hartsfield at 10:26 a.m., and then departing Atlanta Hartsfield
at 12:30 p.m. and arriving at MBJ at 2:24 p.m.
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The CBP PAU duty officer, who has the independent authority
to order passenger interviews, declined to call off the
operation. Instead, she informed Officer Shahbaaz of the
results of the BWI search and asked him, “as a courtesy, just to
go and talk to [Taylor before she boarded the flight to MBJ],
again as a courtesy to whomever sent the intel.” (J.A. 83).
The flight to MBJ was scheduled to depart from Gate C-14.
Prior to the scheduled departure, Officers Shahbaaz and Horton
proceeded to the gate, positioning themselves just inside the
jetway, about six or seven steps past the threshold that
passengers must cross when they leave the terminal. Because all
they had was Taylor’s name, Officers Shahbaaz and Horton decided
to stop and interview all passengers as they boarded the flight,
asking them “about carrying effects aboard, money, declaring any
type of gifts or whatever.” (J.A. 70).
Taylor was about the tenth person interviewed by Officer
Shahbaaz. He initially asked her if she was “familiar with the
currency reporting requirements to enter or exit the country.”
(J.A. 72). When she hesitated, Officer Shahbaaz asked Taylor
how much money she was carrying. Taylor hesitated for a moment,
looked up at the ceiling, and responded that she had $3,000.00.
Because this response was not in the same “rhythm that the other
passengers . . . [gave],” Officer Shahbaaz repeated the
question, and this time Taylor looked out the jetway window
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before saying that she was carrying $2,000.00. Taylor’s
demeanor and her inconsistent answers caused Officer Shahbaaz to
ask Taylor if she was sure how much money she had on her person,
and Taylor responded that she did not know how much money she
had. Officer Shahbaaz asked “further questions specifically
concerning money, and [Taylor] then stated something to the
effect that it was more than” $100,000.00. (J.A. 73). Officer
Shahbaaz then asked Taylor how she knew that she was carrying
more than $100,000.00, and Taylor responded, “[T]hey didn’t tell
me how much money it was.” (J.A. 73). When Officer Shahbaaz
asked her where the money was, Taylor pointed to her midsection
and said “it’s here,” implying that the money was concealed
under her clothing.
At this point, Officers Shahbaaz and Horton decided to
escort Taylor to a “secondary area,” an area separate from the
public areas of the airport, to conduct a pat-down search of her
person and to confirm the exact amount of cash. (J.A. 75). 2 As
they were proceeding to the secondary area, Officer Shahbaaz
contacted Agent Rutherford to inform him that Taylor had
2
Of note, Officers Shahbaaz and Horton never asked Taylor
if she filled out a Report of International Transportation of
Currency or Monetary Instruments Form (CMIR Form), which was
required for her to transport the money she was carrying abroad.
See, e.g., 31 U.S.C. § 5316 (failing to file a required report
of international transportation of currency).
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indicated that she was in possession of at least $100,000.00.
In response, Agent Rutherford indicated that he would report to
the secondary area to assist.
At the secondary area, the pat-down search was conducted by
CBP Officer Alla Swords (Officer Swords) in a separate room in
the presence of another CBP female officer. During the pat-down
search, Officer Swords recovered approximately $102,000.00 from
Taylor’s clothing. Following this recovery, Officer Swords
escorted Taylor to a conference room where Agent Rutherford was
present.
During a recorded interview, Agent Rutherford advised
Taylor of her Miranda 3 rights, but Taylor indicated that she did
not want to waive those rights, so the recorded interview ended.
Thereafter, Agent Rutherford began to fill out a United States
Marshal Arrest and Booking Form. He asked Taylor for basic
information, such as her name, date of birth, address, phone
number, and emergency contact information. While he was filling
out this form, Taylor said “she had done a trip with bulk sums
of currency on two prior occasions, and that the money was going
into a bank.” (J.A. 143). At this point, Agent Rutherford
turned the recorder back on and informed Taylor that the only
way he could talk to her is if she understood her Miranda rights
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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and waived them. Taylor indicated that she wanted to consult
with an attorney, so the recorded interview ended and Agent
Rutherford finished the booking process.
B
On June 2, 2011, a federal grand jury sitting in the
District of Maryland returned a one count indictment charging
Taylor with bulk cash smuggling in violation of 31 U.S.C.
§ 5332(a). On June 1, 2012, Taylor filed a motion to suppress
the money seized from her and the statements she made during the
booking process on May 28, 2011. She filed a supplement to this
motion on November 16, 2012. Following a hearing, the district
court denied the motion to suppress. In its oral ruling, the
district court first concluded that the questioning of Taylor on
the jetway was reasonable under controlling border stop and
search precedent. The district court next concluded that there
was probable cause to arrest Taylor on the jetway for bulk cash
smuggling. Finally, the district court concluded that there was
no Miranda violation in the case because Taylor’s incriminating
statements were not made in response to police questioning.
On February 22, 2013, Taylor and the government entered
into a plea agreement. For her part, Taylor agreed to plead
guilty to the charge of failing to file a required report of
international transportation of currency in violation of 31
U.S.C. § 5316, reserving the right to appeal the district
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court’s denial of her motion to suppress. She also agreed to
waive any right to appeal her “conviction on any other ground.”
(J.A. 323). For its part, the government agreed to dismiss the
indictment charging bulk cash smuggling.
On February 25, 2013, a one count criminal information was
filed charging Taylor with the § 5316 offense. That same day,
the district court held an arraignment at which Taylor entered
her conditional plea of guilty to the criminal information. At
the hearing, Taylor stated she understood that, although she
reserved the right to appeal the denial of her motion to
suppress, she waived her right to appeal “her conviction . . .
on any other ground.” (J.A. 347). As a result of the
conditional guilty plea to the § 5316 offense, the district
court dismissed the indictment charging bulk cash smuggling.
A sentencing hearing was held on June 21, 2013. At the
hearing, Taylor was sentenced to five years’ probation and fined
$3,000.00. Judgment was entered on June 24, 2013, and Taylor
noted a timely appeal on July 1, 2013.
II
Taylor argues that the district court erred when it denied
her motion to suppress. We review the district court’s factual
findings regarding the motion to suppress for clear error, and
the district court’s legal conclusions de novo. United States
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v. Burgess, 684 F.3d 445, 452 (4th Cir.), cert. denied, 133 S.
Ct. 490 (2012). When a suppression motion has been denied by
the district court, we construe the evidence in the light most
favorable to the government. United States v. Foster,
634 F.3d
243, 246 (4th Cir. 2011). We also defer to the district court’s
credibility findings. United States v. Griffin,
589 F.3d 148,
150–51 n.1 (4th Cir. 2009).
The Fourth Amendment protects individuals from unreasonable
searches and seizures. U.S. Const., Amend IV. Routine border
stops and searches may be conducted without probable cause or
reasonable articulable suspicion, in order to regulate
collection of duties and prevent introduction of contraband.
United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985).
Border searches have been considered to be reasonable by
definition because the person or item in question came into the
United States from elsewhere. United States v. Ramsey,
431 U.S.
606, 619 (1977).
At the time she was stopped on the jetway, Taylor was at
the functional equivalent of an international border, even
though she was leaving as opposed to entering the United States.
See Almeida–Sanchez v. United States, 413 U.S. 266, 273 (1973)
(“[A] search of the passengers and cargo of an airplane arriving
at a [United States] airport after a nonstop flight from
[abroad] would clearly be the functional equivalent of a border
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search.”); United States v. Oriakhi, 57 F.3d 1290, 1295-97 (4th
Cir. 1995) (“[W]e join the several other circuit courts which
have held that the Ramsey border search exception extends to all
routine searches at the nation’s borders, irrespective of
whether persons or effects are entering or exiting from the
country.”). Thus, under the precedent of Montoya de Hernandez,
Ramsey, Almeida–Sanchez, and Oriakhi, there is no question that
the initial stop and questioning of Taylor on the jetway
complied with the Fourth Amendment.
Taylor argues that the district court erred when it
concluded that there was probable cause to arrest her on the
jetway for bulk cash smuggling. She posits that the subsequent
search of her person and her subsequent incriminating statements
were the fruits of an illegal arrest. The government’s response
is two-fold. First, it argues that there was probable cause to
arrest Taylor on the jetway for the charge of bulk cash
smuggling. Alternatively, it argues that the subsequent search
of Taylor was a permissible border search. Because we agree
with the government’s probable cause argument, we need not
address its alternative border search argument.
A police officer may make a warrantless arrest in a public
place if the officer has probable cause to believe that the
individual is or will soon be involved in criminal activity.
United States v. Dickey–Bey, 393 F.3d 449, 453 (4th Cir. 2004).
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The requirement of probable cause may be satisfied by “facts and
circumstances within the officer’s knowledge that are sufficient
to warrant a prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense.”
Id. (quoting Michigan v. DeFillippo,
443 U.S. 31, 37 (1979)
(internal quotation marks omitted)). We consider under the
“totality of the circumstances” the question whether an arrest
was supported by probable cause, affording “defer[ence] to the
expertise and experience of law enforcement officers at the
scene.”
Id.
The district court concluded that the following facts gave
Officers Shahbaaz and Horton probable cause to arrest Taylor for
bulk cash smuggling: (1) Taylor hesitated and looked away when
she was asked how much money she was carrying; (2) Taylor gave
inconsistent answers concerning the amount of money she was
carrying, culminating with her “more than $100,000.00” response,
(J.A. 73); (3) someone else gave Taylor the money to carry
abroad; and (4) the money was hidden on Taylor’s person.
The thrust of Taylor’s attack on the district court’s
probable cause analysis is that Officers Shahbaaz and Horton
lacked probable cause to believe that she had not filed or she
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did not intend to file the CMIR Form. 4 This attack misses the
mark.
Officers Shahbaaz and Horton were entitled to use their
common sense and experience to infer from the concealment,
Taylor’s demeanor, her contradictory statements about the amount
of money she was carrying, her lack of knowledge concerning the
exact amount of money she was carrying, and the fact that
someone else gave her a large sum of money to carry abroad, that
Taylor had failed to file and/or intended not to file a CMIR
Form. Taylor’s argument to the contrary simply ignores the
reasonable inferences that Officers Shahbaaz and Horton were
entitled to draw from the facts presented. In short, at the
time of her arrest on the jetway, Officers Shahbaaz and Horton
had probable cause to arrest Taylor on the charge of bulk cash
smuggling, as the district court so held.
4
The charge of bulk cash smuggling is similar, but not
identical to the charge of failing to file a required report of
international transportation of currency. See United States v.
Tatoyan, 474 F.3d 1174, 1180-82 (9th Cir. 2007) (bulk cash
smuggling and failing to file a required report of international
transportation of currency do not merge under Blockburger v.
United States,
284 U.S. 299 (1932) because each offense has an
element that the other does not). Relevant here, bulk cash
smuggling requires that the defendant intend to fail to file the
CMIR Form, while failing to file a required report of
international transportation of currency requires that the
defendant fail to file the required report.
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III
Taylor also argues that venue was improper in the District
of Maryland. The question of venue in a criminal prosecution is
reviewed de novo. United States v. Wilson, 262 F.3d 305, 320
(4th Cir. 2001).
Under Rule 18 of the Federal Rules of Criminal Procedure,
venue is proper “in [any] district where the offense was
committed.” Fed. R. Crim. P. 18. According to Taylor, because
she was arrested while attempting to leave the United States
from Atlanta, venue was proper in the Northern District of
Georgia, not the District of Maryland.
Taylor’s venue argument has insurmountable hurdles. First,
by pleading guilty without reserving the right to challenge
venue on appeal, she waived any right to challenge venue in this
court. See United States v. Bundy, 392 F.3d 641, 650 n.3 (4th
Cir. 2004) (“Where a defendant who pled guilty presents on
appeal an issue that he did not even attempt to preserve by
means of a conditional plea, we decline to entertain the appeal
on the ground that the defendant’s unconditional plea waived
that issue altogether.”); United States v. Calderon,
243 F.3d
587, 590 (2d Cir. 2001) (collecting cases and explaining that
“[v]enue is not jurisdictional” and is waived by a “valid
plea”).
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Second, a defendant who fails to clearly challenge venue in
the district court waives the right to raise such issue on
appeal. United States v. Stewart, 256 F.3d 231, 238 (4th Cir.
2001). In order to raise the issue of venue in the district
court, a defendant is not required to file a written pleading,
because such a requirement does not serve the two purposes of
the contemporaneous objection rule--preserving judicial
resources and preventing sandbagging.
Id. at 238-39. Moreover,
“[b]ecause proper venue is a constitutional right, waivers of
venue rights through failure to object should not readily be
inferred,”
id. at 238, and any “ambiguity as to the defendant’s
intent to waive venue [is] interpreted in favor of the
defendant.”
Id. at 239.
In this case, the issue of venue was not raised in the
district court, either orally or in writing, as Taylor
apparently recognizes. Thus, the district court was not
presented with an opportunity to rule upon any venue question.
Nevertheless, Taylor asks us to address the merits of her venue
argument, contending that she “should not suffer because [all of
the parties, including the district court] missed the boat” on
the venue issue. Appellant’s Reply Br. at 11. We must decline
this request. Simply put, Stewart clearly prevents us from
addressing the merits of Taylor’s venue argument. 256 F.3d at
238-39.
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IV
For the reasons stated herein, the judgment of the district
court is affirmed.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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