CASE TIMELINE
THE FACTS:
Norberto Keppe and Claudia Pacheco lived and worked in the United States from 1983 to 1988. Keppe has dual Austrian-Brazilian citizenship and Pacheco has dual Italian-Brazilian citizenship. Their native language is Portuguese. Keppe has little knowledge of English while Pacheco speaks English as a second language, although not fluently.
On Saturday, June 25, 1988, Keppe and Pacheco were at JFK International airport, preparing to board a Pan Am flight to London. At that time, there was one sign in the airport about currency declaration. Neither Keppe nor Pacheco observed that sign.
Shortly after entering the airport, Keppe and Pacheco entered the jet-way and provided a Pan Am representative with their passports and boarding passes. The representative then turned over their passports to a customs agent.
The customs agent provided Keppe and Pacheco with English copies of Customs Publication No. 503 (herein after CP-503), and asked them if they understood the form’s contents.
The customs agent then asked Keppe and Pacheco how much money they were carrying on them. Keppe asked the agent whether he was referring to United States currency, and the customs agent responded in the affirmative. Based on this confirmation, Keppe stated he was carrying USD$ 3500.00. The customs agent oriented Keppe to write this amount on the CP-503 form he was given and sign it. Keppe complied.
Concurrently, Pacheco was being questioned about how much money she was carrying. Pacheco asked if the customs agent was referring to her personal funds, and he responded in the affirmative. As Pacheco also advised the agent at that time that she was carrying money belonging to other people, she was still unclear as to what money she needed to declare. She asked the customs official a second time if he was referring to her personal money, and he again responded in the affirmative.
Pacheco requested permission to call her secretary to enquire about the total amount of money she was carrying so she could determine the exact amount of her personal funds. This request was denied. Shortly after this, and at the direction of the customs agent, Pacheco wrote down USD$ 7500.00 on the CP-503 form she was given and signed her name.
This entire interaction occurred on the jet-way at JFK. At no time were either Keppe or Pacheco given a 4790 or 6059-B form.
After both Keppe and Pacheco had signed the supplied CP503 forms, their bags were examined, and a total of in excess of the allowable amount was found.
Keppe and Pacheco were then handcuffed and transported to the Customs Office at the International Arrivals Building. They were held there for five (5) hours.
Finally, at approximately 2:30 in the afternoon, after the circuit judge had gone home for the day (Saturday), Keppe and Pacheco were sent to the Metropolitan Correction Center where they were submitted to body searches involving cavity examinations. Keppe and Pacheco were held there until Monday, June 27, when they were brought before a federal magistrate in Brooklyn, NY.
On July 28, 1988, Keppe and Pacheco were each charged under Federal Indictment No. 88-00439 on two counts: (1) failure to file a customs report under section 5316 of Tide 31 of the United States Code, and; (2) giving a false statement to a Customs Official under section 1001 of Tide 18 of the Unites States Code under Federal Indictment No. 88-00439.
ARGUMENTS:
The customs agent failed to fully inform Keppe and Pacheco of their legal duty to file a report when transporting funds in excess of USD $10,000. In addition, the customs agent gave confusing orientations that caused Keppe and Pacheco to unintentionally provide incomplete information regarding how much money they were transporting internationally. As a result, the government cannot prove beyond a reasonable doubt the willful intent required to obtain a criminal conviction with respect to counts one or two.
COUNT 1: Failure to Declare
In a prosecution pursuant to 31 U.S.C. § 5316(a), the government is required to prove the defendants knew (1) they were transporting funds in excess of $10,000 and (2) the law required them to file a report. See, United States v. Carrier, 654 F.2d 559, 561 (9th Cir. 1981) (requirement that act be “willful” means that it must be done “deliberately and with knowledge”).
Since intent is required for criminal liability relating to this charge, and because intent requires knowledge of the law, ignorance of the law is a proper defense. As such, the government instituted certain procedures customs agents and inspectors must follow when investigating an individual’s failure to declare currency at a border crossing. In 1988, the procedures were as follows:
2) Make sure the traveler understands the form’s contents
3) Provide the reporting form (4790) to the traveler
The customs agent in this case failed to follow proper procedures. Although he provided Keppe and Pacheco with form CP-503, he did not ensure they understood the form’s content.
The government may argue Keppe and Pacheco’s assertion to the customs agent that they understood the form establishes the element of knowledge of the law to report funds in excess of USS$10,000, but Keppe’s and Pacheco’s questions following their assertion that they understood the form are evidence they did not.
Keppe and Pacheco did not regularly transport money internationally. When they were detained at JFK in 1988, there was only one sign in the airport regarding currency declaration. Keppe and Pacheco were provided with an English CP-503 form, however their primary language was Portuguese. Their knowledge of the English language was limited and the language and terms in the form were complicated.
The questions posed by Keppe and Pacheco to the customs agent after receiving CP-503 about how to declare the money they were traveling with is proof of their poor understanding of the content of the CP-503 forms. The answers given by the customs agent were imprecise and contradictory to the content of CP-503, which only added to Keppe and Pacheco’s confusion.
Even though it was possible that Keppe and Pacheco did not understand what was being requested of them, the customs agent still directed them to write totals they had confirmed on the forms he gave them. No translator was ever included in the entire process.
Additionally, Pacheco’s request to call her assistant was denied even after she declared that she did not know exactly how much money she had on her at the time. All of these conditions support Keppe and Pacheco’s assertion that they did not act knowingly in an attempt to avoid declaring certain funds. They simply did not understand what they were required to report at the time.
Transcript of Hearing Before Honorable A. Simon Chrein, U.S. Magistrate. United States of America vs. Norberto Keppe and Claudia Pacheco.
“Magistrate Chrein: Okay, because frankly whether or not he goes home today might very well depend on what´s taking place and if we have an interpreter, I want simultaneous translation. Even if the defendant fully understands or substantially understands what I´m saying, he has a right to understand everything that I´m saying. And he should not be put to the task of requesting a translation in mid statement.”
It is clearly established in the relevant case law that an act is undertaken with knowledge IF the defendant was conscious of what he or she was doing and was not acting out of ignorance, mistake or accident (United States v. Ibarra-Alcare 830 F2d 968 – 9th Circuit, 1987). An act is done willfully if done knowingly, intentionally, and deliberately, with the purpose of avoiding a known legal duty.
In the 9th circuit case cited above, the court held that failure to follow the customs service’s internal procedures neither violated due process nor warranted an automatic finding of insufficient knowledge. In the United States v. Tatoyan, the court held that the inspector’s failure to follow protocol merely made it more difficult, though not impossible, for the government to prove “actual knowledge” 474 F.3d 1174, 1180 (9th Circuit, 2007). In that case, however, the inspector failed to provide CP-503, but did explain the contents of the form fully to the defendant so he understood his duty to report. The inspector also provided the proper reporting form to the defendant. This is completely different from the case at hand, where the CP-503 form was physically provided to Keppe and Pacheco but the customs official failed to adequately explain the duty to report to Keppe and Pacheco. In fact, the customs agent’s oral explanations to Keppe and Pacheco completely contradicted the function of CP-503 in the first place.
Since 1988, CP-503 has become available in different languages, and must be provided to travelers in their primary language if necessary, in order to avoid misunderstanding.
In addition to contradicting the function of CP-503, the customs agent also failed to provide the 4790 reporting form (or similar). Although there is no relevant case law dealing with the failure of an inspector or customs agent to provide the form in criminal matters, 31 U.S.C.A. § 5316 declares that a report under this section shall be filed at the time and place the Secretary of the Treasury prescribes, and the report shall contain the following information to the extent the Secretary prescribes: the legal capacity in which the person filing the report is acting, the origin, destination, and route of the monetary instruments when the monetary instruments are not legally and beneficially owned by the person transporting the instruments, or if the person transporting the instruments personally is not going to use them, the identity of the person that gave the instruments to the person transporting them, the identity of the person who is to receive them, or both, the amount and kind of monetary instruments transported, and additional information.
In 1988, the correct reporting form was 4790, which included the above- mentioned questions and space to answer them. The customs agent directed Keppe and Pacheco to write down an amount of money in the margin of CP-503. Keppe and Pacheco arrived at these amounts based on answers given to them by the customs agent.
Keppe only indicated the amount of United States currency he had in his possession at the time, and the amount he indicated was accurate. And Pacheco indicated an estimation of the amount of money that she believed were her personal funds.
Therefore, the CP-503 forms that Dr. Keppe and Dr. Pacheco signed ARE NOT REPORTS as defined by the statute.
Count 2: Making a False Statement
In The United States v. Grotke, the court expressly found it within the jurisdiction of the Customs Service to inquire as to the amount of currency an international traveler was carrying when crossing the country’s borders, and a person who lies in response is prosecutable under 18 U.S.C. § 1001,702 F.2d 49, 52 (2d Cir. 1983).
However, the government must prove that the defendants knowingly and willfully falsified, concealed or covered up by any trick, scheme, or device a material fact, or made any false, fictitious or fraudulent statement or representations, or made or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry.
It is clear from the details outlined above that Keppe and Pacheco’s actions do not fall under this proviso. Therefore, the prosecution must establish beyond a reasonable doubt that Keppe and Pacheco knowingly and willfully made a false written or oral statement to the customs agent. The government has not been able to prove intent in this case.
Current Declaration Procedures:
Since 1988, there have been a number of changes relating to the declaration of currency. The current declaration procedures are as follows:
1) Every traveler must fill out an I-94 form
2) The form is filled out during the flight
3) The form asks whether or not the traveler is carrying currency or monetary instruments over $10,000
4) The form defines monetary instruments
5) If there is a secondary inspection, phone calls are allowed during the interview
Clearly, the drastic changes made to the declaration procedures prove that the procedures in 1988 were inadequate.
It is also clear that the customs procedure used on the 25th of June 1988 was marked by oppression and malicious intent. Not only did these government officials fail to follow protocol and obstruct justice, they also set a course of deceitful lies that eventually led to prosecution and conviction of Keppe and Pacheco. This greatly disrupted the work of these two scientists and resulted in heavy financial and professional losses.
The above outlined evidence leads to a conclusion that the incarceration was due to two fundamentally interrelated factors:
- a) Ideological persecution (a crime of conscience) related to the work of Norberto Keppe, especially the books he published in the United States entitled: The Decay of the American People (and of the United States) and Liberation of the People: The Pathology of Power, as well as Work and Capital (manuscript confiscated by the FBI). Together, these books present a cogent scientific analysis of the causes for the serious decadence underway in all areas of American life, and outlining the consequences of this for the entire world. These books provoked strong retaliation from the Deep State, which commenced an extensive process of retaliation and intimidation some time before this final episode at JFK. These books were very popular with the public as they brought consciousness the powerful socioeconomic groups that were (and continue) destroying humanity through the financial industry, illicit trade (arms, drugs, children) and multinational enterprises.
- b) A “vendetta” (retaliation) deriving from important announcements made in September of 1986 by the Legal Department of the International Society of Analytical Trilogy (ISAT), from its headquarters at 313 West 100th Street, New York. Keppe and Pacheco were president and vice-president respectively at that time. The announcements were made under the orientation of an official of the SNI (the Brazilian National Information Service) at that time, Mr. Milton Schneider, who was visiting New York. The information passed to American (F.B.I.) and Brazilian (Army Commission in Washington, D.C.) authorities was about suspected acts of corruption, influence peddling and trafficking of drugs and arms perpetrated or facilitated by members of the diplomatic corps, government authorities, banks and business people from Brazil and the United States. (This information was subsequently collected into a dossier based on written testimony, and is attached to this document). It was later discovered that individuals mentioned in that dossier, among them Brazil’s Ambassador to the U.S., Sergio Correa da Costa, the founder of the criminal BCCI Bank in Brazil, were in fact involved in illicit transactions. The announcements were made in response to the irregular conduct of members of the Brazilian Consulate in New York over a number of months related to the International Society of Analytical Trilogy, who elaborated a defamatory smear campaign in the New York media against ISAT, its directors and members.
A thorough reading and analysis of the content of this report will provide the information necessary for the office of the Internal Affairs to conduct a complete investigation of the facts in this case with a view to reestablishing, in totum, the rights and property of Norberto da Rocha Keppe and Claudia Bernhardt de Souza Pacheco.
Individuals Listed in Order of Importance to the Investigation
1) Ronald Reagan´s administration was under investigation for criminal activities in Iran Contra in 1980 and the Lebanese October Surprise scandal in 1986.
2) Edwin Meese, the Attorney General had resigned under investigation for taking part in the scandal.
3) Thomas Roche, the AUSA at the time who personally assisted in the incarceration of Keppe and Pacheco and intervened to obstruct justice by appointing his close personal friend Magistrate Dearie to replace Magistrate Chrein in the initial hearing procedure.
4) Carl Brownholtz, the federal agent at JFK airport under orders from Thomas Roche who conducted and executed the illegal arrest.
5) Magistrate Dearie who replaced Senior Magistrate Chrein, as mentioned above.