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UNITED STATES v. OBIUWEVBI

April 10, 1991

UNITED STATES OF AMERICA,
v.
SCOTT E. OBIUWEVBI


Parsons


The opinion of the court was delivered by: JAMES B. PARSONS

MEMORANDUM OPINION AND ORDER

I. Introduction

 Mr. Obiuwevbi was convicted of violating 18 U.S.C. § 1001. *fn1" Verdict was entered on July 26, 1990. Initially, the Government had charged Obiuwevbi with one count of making false statements to a Federal Officer in violation of 18 U.S.C. § 1001, and with one count of failure to file a currency report form in violation of 31 U.S.C. § 5316. *fn2" However, the Government filed a superseding indictment which dropped the count for the violation of the currency reporting requirement. Defendant was convicted of making a false statement to a Customs inspector. Now, Obiuwevbi makes the rather untimely motion for this court to grant him a new trial on the grounds that he was selected for questioning by the Customs inspector solely because he was black. He also contends that the evidence obtained by the Customs inspector should be suppressed under the Fourth Amendment exclusionary rule. For the following reasons, this court denies defendant's motion for a new trial and allows the conviction to stand.

 II. Finding of Facts

 A. Arrest and Conviction

 On December 12, 1989 a Customs inspector approached the defendant at O'Hare International Airport while he was attempting to board Royal Dutch Airlines Flight KLM No. 612 destined for Amsterdam, Holland, and outbound continuing on to Lagos, Nigeria. The Customs Inspector, Robert Personnett, had observed Mr. Obiuwevbi standing in the front of the line of passengers waiting to board the plane. Inspector Personnett noticed that when he stared at Obiuwevbi, the defendant stared back at him. Inspector Personnett also noticed that Obiuwevbi looked concerned, and nervous. Obiuwevbi continued to stare at Inspector Personnett who was in full uniform at the time. The Inspector then approached the defendant and asked him if he was aware of the currency reporting requirements for passengers leaving the United States. The defendant stated that he was aware of the requirements for inbound passengers but was not aware of such a requirement for outbound passengers. The defendant's passport, however, indicated that he had been to Nigeria and back to Chicago numerous times in the previous few years. Presumably, Obiuwevbi would have been made aware of the reporting requirements during those trips. Additionally, in the KLM No. 612 departure area there were approximately five signs posted informing departing passengers of the reporting requirements.

 Inspector Personnett informed the defendant that outbound passengers must declare currency in excess of $ 10,000 to Customs officials, and that failure to do so could result in criminal penalties. Obiuwevbi acknowledged that he then understood the requirement. Inspector Personnett proceeded to question the defendant as to how much money he had with him. Obiuwevbi replied that he only had about $ 3,000 in his possession. However, the defendant also said that he was carrying some more money for other persons. The inspector then asked him how much he had with him in total, and Obiuwevbi declared that he had a total of $ 6,000 to $ 7,000. At that time Inspector Personnett began to search the defendant's carry on luggage and found $ 6,100 in envelopes (mostly in $ 100 bills). He then asked Obiuwevbi if he was wearing anything around his waist, like a moneybelt. Obiuwevbi said that he was not. A pat down search, however, revealed $ 17,750 (mostly $ 100 bills contained in open bank envelopes) in a secret pouch sewn into the waist lining of the defendant's pants. Another $ 640 was found in Obiuwevbi's wallet. In total, the defendant was attempting to leave the United States with $ 24,500 in unreported U.S. currency.

 At the initial grand jury investigation, the prosecutor presented the testimony of Ernest Magana, the Customs Department agent assigned to the case. After the prosecutor had begun to lay out the facts of the case to the grand jury through Agent Magana's testimony, several grand jurors interrupted with numerous questions. The grand jurors asked why Inspector Personnett had approached the defendant. Agent Magana replied that the inspector's choice of the defendant was a random one. Magana informed the Grand Jury that flight routes to places like Nigeria are chosen because those countries have established histories of drug trafficking and money laundering violations. Tr. of January 10, 1990 Grand Jury presentation at 4-5.

 B. Post-Conviction Hearing

 After verdict was entered against the defendant on July 26, 1990, Obiuwevbi moved that he should be allowed a new trial on the grounds that the Customs inspector selected him for interrogation solely on the basis of his race. The defendant's counsel argued this point vigorously and stated that he would present witnesses whose testimony would show that the United States Customs Department had a policy or custom of interrogating black persons leaving and coming into the country solely on the basis of their race. This court subsequently entertained defendant's post conviction motion. The witnesses which defendant presented, however, did not establish a custom or policy of racially motivated interrogations. The testimony elicited from the Government on the other hand, demonstrated that the Customs officials were not stopping persons for interrogation solely because they were black. The Government's testimony established the existence of a severe money laundering problem out of the United States and of drug transport back into the country by Nigerians. Moreover, the Government demonstrated that Nigerians are stopped, interrogated, and searched at airports only when they fit "courier profiles". These profiles are based on a variety of data, such as international intelligence reports and first hand experience by Customs Inspectors. From the profiles the Customs Officials are able to stop and search persons based on a reasonable suspicion -- a suspicion which is based on various relevant facts pertaining to the profile and not one founded simply on the race of the individual to be interrogated.

 At the post-conviction hearing, Mary McCarthy, U.S. Customs Department Supervisor of the Interdiction for Narcotics and Outboard Enforcement Program testified on behalf of the Government, regarding the manner in which Customs Inspectors collect information to establish courier profiles. Ms. McCarthy has worked with the Customs Department for nineteen years and has been a supervisor for two-and-a-half-years. Principally, she is the coordinator for the Customs Department's "Operation Buck Stop".

 During "Operation Buck Stop", Customs agents target certain flights for interrogation of passengers who might be attempting to take money out of the country without declaring amounts over the statutory allowance. There are approximately twenty-five international flights a day, four of which are targets of Operation Buck Stop. All airlines and all cites of destination are at some time targeted for an investigation. Customs agents target all flights to make sure that what they believe to be "low risk flights" in fact remain low risk flights.

 Flight routes which are low risk are those which have destinations to vacation spots such as the Barbados or Bermuda. Places such as these are frequented by vacationers that do not usually carry more than ten-thousand dollars in cash. After targeting one of these "low risk" flights, the Customs agents "get a feel" for the type of passengers who fly the route. If there are no currency reporting violations on these targeted flights then the Customs agent would determine that the flight is still a low risk route.

 Some of these low risk routes have changed to become high risk routes. For example, the Customs Department found out that there was a trend developing in which many Polish persons who worked in the United States were returning to Poland with a lot of unreported cash, often with more than the amount allowed by statute. Ms. McCarthy also stated that drug smuggling routes coming into the United States might also change. She indicated that unless low ...


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