IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 92-8257

Summary Calendar

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ZACARIAS RODRIGUEZ-RIOS,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

(May 5, 1993)

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Zacarias Rodriguez-Rios (a.k.a. Leonel Vargas-Lopez) appeals

his conviction on one count of making a false, fictitious, or

fraudulent representation of a material fact in violation of 18

U.S.C. § 1001. We reverse.

I.

On May 19, 1991, Rodriguez was viewed by a United States

Customs agent as he was exiting an airplane at the airport in Santa2

Teresa, New Mexico. Rodriguez placed the suitcase in the trunk of

a Mercury Cougar sporting a paper license plate in its rear window

and driven by a young woman. Rodriguez then entered the passenger

side of the vehicle and proceeded to the Bridge of the Americas

Port of Entry, which divides El Paso, Texas, from Juarez, Mexico.

Customs agents followed Rodriguez from the airport to the

bridge and stopped him just before he could cross the border.

Agent McCarthy informed Rodriguez that he was conducting a routine

export examination and as ked, among other things, how much money

Rodriguez had with hi m. Rodriguez responded, "About a thousand

dollars," and removed what turned out to be $1,400 from his pocket.

McCarthy continued to question Rodriguez, asking him whether

anything in the trunk belonged to him. His suspicions apparently

aroused, Rodr iguez inquired as to the agent's purpose, whereupon

McCarthy repeated that it w as a routine export examination.

McCarthy next asked Rodriguez whe re he had flown from before

arriving in Santa Teresa, and Rodriguez replied that he had left

Springfield, Illinois, for Santa Teresa in a private aircraft and

that he was a p ersonal assistant to the mayor of Juarez. When

McCarthy again asked Rodriguez how much money he was carrying, he

made no reply. When asked whether anything in the trunk belonged

to him, Rodriguez stated, "That depends on why you are asking."

McCarthy again asked how much money he had, but this time Rodriguez

answered that he did not know.

At approximately this po int, Rodriguez was taken inside the

Customs office and advised in Spanish by customs inspector Vega of3

the currency reporting requirement ) ) that it is not illegal to

leave the country with more than $10,000, but that he must complete

a Customs Form 4790 Currency Monetary Instrument Report declaring

any sum in excess of that amount. Vega then asked Rodriguez

whether he had more than $10,000 with him and whether he had filled

out the required form. Rodriguez did not respond to these

questions, and Vega testified that his body mannerism s were

evasive. When McCarthy again asked whether any of the suitcases in

the trunk were his, and Rodriguez reiterated that "[i]t depends on

why you are asking," the vehicle was moved into a secondary

inspection area, and Rodriguez and the female driver were taken

inside the customs office.

Two narcotics dogs were then brought to inspect the car; the

first alerted to its exterior, and the second sniffed the packages

in the open trunk and alerted to both the black s uitcase and a

shoebox wrapped with duct tape. Both were opened and found to be

filled with U nited States currency in the approximate sum of

$598,000.

Meanwhile, back in the customs office, Rodriguez was asked to

fill out a Fo rm 4790. Acknowledging that the money was his,

Rodriguez began to fill out the report with agent Straba's

assistance. Straba restated the currency reporting requirements,

again assuring Rodriguez that he could take any sum out of the

country so long as he declared it in writing. Apparently finished,

Rodriguez placed the form on the counter, but when Straba picked it

up, Rodriguez took the form from him and folded it into his pocket,4

saying he did not wish to give it to Straba. Nonetheless, Straba

had seen enough of the form to notice that it declared an amount of

$530,000.

When informed that large amounts of cash had been discovered

in the trunk, Straba proceeded to arrest Rodriguez, who refused to

speak to the agents until he could consult with an attorney.

Later, Rodriguez changed his mind and agreed to talk. He requested

a second o pportunity to complete a reporting form, was provided

one, and stated in writing that he was exporting $500,000.

On June 5, 1991, a federal grand jury returned a two-count

indictment against Rodriguez, charging him with failing to file the

prescribed report for the transportation of currency and monetary

instruments of more than $10,000 in violation of 31 U.S.C.

§ 5316(a)(1)(A) and 5322(a) (first count), and the making of a

false, fictitious , or fraudulent statement or representation in

violation of 18 U.S.C. § 1001 (second count). After a bench trial,

the court dismissed the first count for insufficient evidence but

found Rodriguez guilty on the second count.

II.

The district court predicated Rodrigu ez's conviction on his

initial statement that he was carrying no more than $1,000.

Rodriguez contends that this initial statem ent fits within the

"exculpatory no" exception to 18 U.S.C. § 1001, which provides that

"a generally negative and exculpatory response made by a subject of

a criminal investigation in reply to questions directed to him by5

investigating officers is not a crime under §1001." U nited States

v . Krause , 507 F.2d 113, 117 (5th Cir. 1975); s ee also United

States v. Paternostro , 311 F.2d 298, 305 (5th Cir. 1962).

In United States v. Schnaiderman

, 568 F.2d 1208, 1213-14 (5th

Cir. 1978), we recognized the applicability of the "exculpatory no"

exception in a situation nearly ide ntical to the instant one.

There, the defendant was a Venezuelan resident entering the United

States through the Miami Intern ational Airport. When entering

customs, he was asked whether he was carrying more than $5,000, at

that time the triggering sum for the reporting requirement.

Schnaiderman replied "No" and che cked the appropriate box on the

customs declaration form. A second customs officer, observing

Schnaiderman's bulging pockets and nervous demeanor, asked him to

empty his pockets, which contained $8,086 in currency. It was only

at this point that Schnaiderman was asked whether he understood the

currency laws, to which he gave a negative response. I d. at 1210.

Because we found no evidence that Schnaiderman "aggressively

and deliberately initiate[d] any positive or affirmative statement

calculated to pervert the legitimate functions of government," id.

at 1213 (quoting Paternostro

, 311 F.2d at 305) (internal quotation

marks omitted), we reversed his conviction under section 1001. As

we stated,

Perversion of a governmental body's function is the

hallmark of a § 1001 offense. The "function" of the

customs agent at issue here is to assure that the

transportation of more than $5,000 into the United States

is reported. We cannot say Schnaiderman attempted to

pervert something he may not even have known about and as

to which we now have twice held, he was entitled to

affirmative advice that such a report was required.6

Schnaiderman

, id. (citations and internal quotations omitted).

The difficulty here is th at, unlike Schnaiderman, Rodriguez

ultimately was informed of the currency reporting requirement and

the fact that it is not illegal to ta ke more than $10,000 out of

the country, so long as it is declared. The question then becomes

whether Rodriguez's refusal to recant his original misstatement

after he was informed of the reporting requirement renders the

"exculpatory no" exception inapplicable to his case. The government contends that it does and cites us to two cases, United States

v. Anderez , 661 F.2d 404, 408-09 (5th Cir. Unit B Nov. 1981), and

United States v. Berisha , 925 F.2d 791, 796 (5th Cir. 1991).

Berisha is readily distinguishable. When the defendant in

that case was asked whether he was carrying more than $10,000, he

stated that he had only the $8,000 in his pants pocket. Upon being

informed of the reporting requirement, Berisha stated that he was

aware of the reporting requirement, but he insisted again that he

had only the $8,000. Thus, we held S chnaiderman inapposite, as

Berisha had repeated his false denial even after being informed of

the reporting requirement. B erisha

, 925 F.2d at 796. Indeed,

given that Berisha admitted knowledge of the reporting requirement,

it would seem the "exculpatory no" doctrine would not have been

available, even for his first misstatement.

In Anderez

, the facts were almost identical. Anderez checked

the "no" box on his customs declaration form where it asked whether

he was carrying more than $5,000. A customs official subsequently

checked Anderez's luggage and asked him whethe r he was carrying1 We are somewhat puzzled by the Anderez majority's characterization of the

f acts of the case, inasmuch as Anderez's affirmative oral misrepresentat ion

transpired after he was informed of the reporting requirement, not before.

Although the majority thus treats the case as closer to Rodriguez's situation,

it is in fact entirely assimilable to Berisha

.

7 more than $5,000, at the same time informing him of the legality of

exceeding that amount and the need to comply with the reporting

r equirement. Anderez then affirmatively stated that he had only

$1,800 with him. The suspicious bulges around Anderez's waist

suggested otherwise, however, and his arrest was underway.

Anderez , 661 F.2d at 405-06.

Anderez admittedly puts us a closer case than Berisha

,

however, as the court declared the "exculpatory no" exception

unavailable where Anderez "chose to continue in his falsehood after

being told that the act he sought to conceal was not illegal

. . . ." Id. at 409. Although Anderez's misstatements "may have

occurred slightly before [Customs Inspector] Nerren's assurances," 1

and therefore ostensibly came within Schnaiderman

, nevertheless

"the two were part of a single exchange between Nerren and

Anderez." I d. The opinion further seems to suggest an affirmative

duty on the part of the defendant to clear up any false impressions

his prior misstatement might otherwise leave: "Once informed that

he could bring more than $5,000 into the country Anderez easily

could have reca nted and told the truth. He could have avoided

liability by changing his answers on the original customs form and

completing the secondary currency form." Id.

The instant case is somewhat different, however. Rodriguez

initially filled out no customs form, and once offered one, he2 We are unwi lling to accept the government's bare assertions that

Rodriguez's self-provided job description implies frequent cross-border travel,

which in turn suggests that he must previously have seen the signs at the Bridge

of the Americas announcing the currency reporting requirement. Given that the

n ame and social security number Rodriguez initially provided customs age nts

proved false, we find it highly que stionable whether Rodriguez was entirely

truthful regarding his occupation, as well. Without more, we are reluctant to

credit the government's unsupported speculations.

8 entered a sum at least approximating the amount discovered by the

agents. Moreover, Rodriguez did not "continue in his falsehood";

admittedly, he did not clear up any false impression his initial

denial may have created, but neither did he restate misleading

facts or affirmatively deny that he was carrying more than $10,000.

At the time it was made, his statement that h e was carrying only

$1,000 was, to the best of Rodriguez's knowledge, 2 "a generally

negative and exculpatory response made by a subject of a criminal

investigation in reply to questions directed to him by investigati ng officers," and therefore was subject to the "exculpatory no"

exception to section 1001 liability.

Nor can Rodriguez's ref usal to recant his false statement

retros pectively alter its essential nature. To be liable under

section 1001, Rodriguez would have had to "ag gressively and

deliberately initiate [a] positive or affirmative statement

calculated to pervert the legitimate functions of Government."

Paternostro

, 311 F.2d at 305. The record does not reveal any such

affirmative representation by Rodriguez once he was informed of the

reporting requirement, nor can his initial misstatement be

transformed ex post into a "calculating" deceit simply by virtue of

his failu re to recant it. We conclude that the "exculpatory no"

doctrine applies and that Rodriguez's conviction under section 10019

must be REVERSED. Because of our disposition of this question, we

do not reach the remaining issues raised on this appeal.