United States v. Varanese
09-3803-cr

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 29th day of March, two thousand and eleven.

Present:    RALPH K. WINTER,
            ROSEMARY S. POOLER,
            PETER W. HALL,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                               Appellee,

                          -v-                                         09-3803-cr

DONATO VARANESE,

                                               Defendant-Appellant.


Appearing for Appellant:        John N. Iannuzzi, New York, NY.

Appearing for Appellee:         Brenda K. Sannes, Assistant United States Attorney (Daniel C.
                                Gardner, Assistant United States Attorney, of counsel), for Richard
                                S. Hartunian, United States Attorney for the Northern District of
                                New York, Syracuse, NY.

      Appeal from the United States District Court for the Northern District of New York
(McCurn, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
         Defendant-Appellant Donato Varanese (“Varanese”) was convicted following a jury trial,
of three counts of bulk cash smuggling in violation of 31 U.S.C. § 5332(a)(1), willfully failing to
file a currency report in violation of 31 U.S.C. §§ 5316(a)(1)(A) and 5322(a), and knowingly
making a false statement to an officer of the United States regarding the amount of currency he
possessed in violation of 18 U.S.C. § 1001. Varanese waived forfeiture of the currency that was
confiscated in the amount of $221,994, and Judge McCurn of the United States District Court for
the Northern District Court of New York, who also presided over the trial, entered an order of
forfeiture. On September 3, 2009, the district court sentenced Varanese to twenty-four months of
incarceration on each count to run concurrently. Varanese now appeals the first two counts of his
conviction under 31 U.S.C. § 5332(a)(1) and 31 U.S.C. §§ 5316(a)(1)(A), 5322(a). We assume
the parties’ familiarity with the underlying facts, procedural history, and specification of issues
for review.

         Varanese adequately preserved the sufficiency of the evidence argument for appeal by
moving for a judgment of acquittal on all counts under Fed. R. Crim. P. 29(a) at the close of all
the evidence. United States v. Allen, 127 F.3d 260, 264 (2d Cir. 1997). The district court
reserved decision on the motion, and denied it after the jury returned a verdict of guilty on all
counts. Our review of a district court’s denial of a Rule 29 motion is de novo. United States v.
Jackson, 335 F.3d 170, 180 (2d Cir. 2003). A district court will grant a motion to enter a
judgment of acquittal on grounds of insufficient evidence only if it concludes that no rational
trier of fact could have found defendant guilty beyond a reasonable doubt. Id.; see also Fed. R.
Crim. P. 29(a), (c). This same standard is applied on appeal. United States v. Guadagna, 183
F.3d 122, 129 (2d Cir. 1999). In ruling on the challenge, the evidence presented at trial and
before us must be viewed in the light most favorable to the government, with all permissible
inferences drawn in the government’s favor. Id.

        A defendant has a weighty burden in raising a successful sufficiency of the evidence
challenge. The jury verdict must be upheld if “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979) (emphasis in original). As we noted in United States v. Martinez, 54 F.3d 1040, 1043
(2d Cir. 1995) the jury’s verdict may rest entirely on circumstantial evidence. In particular,
“[i]ntent may be proven through circumstantial evidence.” Guadagna, 183 F.3d at 129.

        Nevertheless, “while we defer to a jury’s assessments with respect to credibility and
conflicting testimony, and to its choice between the competing inferences that can be drawn from
the evidence, the jury’s inferences must be reasonably based on evidence presented at trial, not
on speculation.” United States v. Torres, 604 F.3d 58, 67 (2d Cir. 2010) (internal quotation
marks and citation omitted). And, where “a fact to be proved is also an element of the offense,”
then “it is not enough that the inferences in the government’s favor are permissible,” but rather
“[w]e must also be satisfied that the inferences are sufficiently supported to permit a rational
juror to find that the element . . . is established beyond a reasonable doubt.” Martinez, 54 F.3d at
1043.

       On September 16, 2008, at around 12:30 pm, Varanese’s commercial vehicle was
inspected. Behind the passenger seat, a Customs and Border Protection (“CBP”) officer found a
black bag that held two large, sealed plastic bags containing a total of $221,994 in United States

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currency, which Varanese had not reported. Varanese’s central argument on appeal is that the
circumstantial evidence presented by the government is insufficient to prove the requisite
elements of knowledge, intent, and willfulness as required by 31 U.S.C. §§ 5316, 5322(a), and
5332.

        Beginning with the violation under § 5332(a), the government must prove that Varanese
(1) knowingly concealed more than $10,000 in currency in any article of luggage, merchandise,
or other container; (2) attempted to transport the currency from a place within the United States
to a place outside of the United States; and (3) acted with the intent to evade a currency reporting
requirement under § 5316. Varanese notes that the record is devoid of any direct evidence that
reveals that Varanese knew that the currency, which lies at the basis of his currency smuggling
charge, was in his truck. Varanese is correct. The law, however, does not require direct evidence
to prove mens rea elements such as knowledge and intent, and repeatedly recognizes that they
can be proved through circumstantial evidence and the reasonable inferences that such evidence
allows. See United States v. MacPherson, 424 F.3d 183, 189 (2d Cir. 2005); see also Ratzlaf v.
United States, 510 U.S. 135, 149 n. 19 (1994) (explaining that “[a] jury may, of course, find the
requisite knowledge on defendant’s part by drawing reasonable inferences from the evidence of
defendant’s conduct”).

        As an initial matter, the evidence presented to the jury provided sufficient grounds for
reasonably inferring that Varanese had knowledge that the bag of currency was in his truck.
First, Varanese was the sole occupant of the truck for the entire duration of his trip to New York,
and was also the driver who would typically drive that truck. See United States v. Sicurella, 367
F.3d 82, 87 (2d Cir. 2004) (noting that in the context of determining possession of a weapon,
“[d]ominion, control, and knowledge may be inferred by a defendant’s exclusive possession of
the premises”) (quoting United States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001)). Second,
there is circumstantial evidence pointing to the fact that Varanese knew the interior of the truck
where the money was found rather intimately. Varanese’s Department of Transportation
Logbook (“DOT logbook”) indicated he had inspected the truck on the morning he left for New
York, and the morning before he was stopped at Port Champlain. Varanese had also removed
items from behind the passenger’s seat in the truck that belonged to another driver, which is the
same area where the currency was ultimately found. A very reasonable inference the jury could
have drawn from that fact is that Varanese removed those items in order to put another item in
their place, that is, the black bag of currency. At the very least, removing those items would have
required looking behind the passenger’s seat and therefore would have revealed to Varanese the
black bag, as it was revealed to the CBP officer who saw it sticking out of the passenger seat.
The neatness surrounding the area further supports an inference that Varanese was aware of the
items that occupied the area. Had his belongings been strewn all around haphazardly, a jury may
have found it less likely for someone to know what was in the midst of that mess. But the jury
could have reasonably concluded that the tidiness the officers noted, indicated that Varanese had
knowledge of the particular area where the bag was found, including the existence of the bag
itself.

        Varanese’s arguments to the contrary misunderstand a sufficiency of the evidence
determination. Varanese argues that there was no direct evidence of his knowledge of the bag--
this argument ignores the existence, and relevance of, the circumstantial evidence. Varanese

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further argues that different interpretations apply to the actions he took--this argument ignores
that “it is the task of the jury, not the court, to choose among competing inferences,” Martinez,
54 F.3d at 1043, and moreover, that according to this court, the jury ultimately chose the more
plausible ones.

        In United States v. Tran, 519 F.3d 98, 105 (2d Cir. 2008) we decided that “defendant’s
sole occupancy of a vehicle cannot alone suffice to prove knowledge of contraband found hidden
in the vehicle.” We did, however, hold that “corroborating evidence, such as nervousness, a false
statement, or suspicious circumstances,” in addition to sole occupancy, would be sufficient to
prove the necessary knowledge. Id. In Tran, the court found that the testimony of an officer who
stated that defendant was gripping the steering wheel, fidgety, and looking around nervously,
amounted to corroborating evidence of nervousness; the court also found there were “suspicious
circumstances” in that defendant indicated he was traveling to a casino to which he had never
been to stay for a few days, but had no directions on how to get there and no change of clothing.
Id. at 105-06.

         Similar evidence was presented by the government in this case. Three different officers
testified to Varanese’s nervous demeanor, noting he was smoking rapidly, fidgeting with his ID,
and not making eye contact with the officers. While Varanese argues that this is his normal
demeanor, as he is usually in a hurry, being in a hurry is not inevitably tantamount to the
appearance of nervousness; the jury heard both accounts of his behavior and could have
reasonably concluded there was a difference between the two. Moreover, the officers testified
that they were trained in noticing nervous behavior, not behavior that would indicate a mere
hurriedness; the jury could have reasonably credited such testimony. Additionally, when
Varanese was referred to a secondary inspection, he immediately stated, without being asked,
that he was not the only driver of the truck. Such an unsolicited attempt to distance himself from
the truck could amount to “suspicious circumstances,” suggesting knowledge of something he
wanted to disassociate himself from--in this case, the bag filled with U.S. currency. See Tran,
519 F.3d at 105. Varanese’s arguments to the contrary have little force--he relies on the truth of
his statement to deter from its potentially inculpatory nature, but those two are not mutually
exclusive. A statement could both be true, and indicative of knowledge.

        Second, “[t]o prove intent, of course, the government must show knowledge, for
‘knowledge is the foundation of intent.’” Torres, 604 F.3d at 66 (quoting Direct Sales Co. v.
United States, 319 U.S. 703, 711-12 (1943)). There is ample circumstantial evidence from which
a rational trier of fact could reasonably, even comfortably, infer that Varanese had the requisite
knowledge of the currency reporting requirement. First, Varanese told one of the other drivers
during his training of the existence of the reporting requirement. Second, while asking Varanese
how much money he was carrying, a CBP officer also asked Varanese whether he knew about the
reporting requirement, to which Varanese answered in the affirmative. Third, during Varanese’s
post-arrest questioning with an Immigration and Customs Enforcement (“ICE”) agent, Varanese
stated that he understood the requirement to declare currency exceeding $10,000, and that he had
declared money in the past. Lastly, there is evidence that Varanese crossed the border over
eighty times in the past two years, which could signal an awareness of what the requirements for
passing the border would be. Accordingly, when Varanese was asked by the CBP officer
whether he had currency over $10,000 to report, and Varanese answered that he did not, the jury

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could reasonably infer that Varanese concealed the $221,994 he knew was in the truck, with an
intent to evade the reporting requirement.

        To establish a violation under § 5322(a), willfulness is an additional required element. In
order to establish that Varanese willfully failed to file a currency transaction report under §§
5316 and 5322(a), the government had to prove that Varanese was knowingly going to transport
over $10,000 in currency from the United States to Canada, and that he willfully failed to report
the currency. 31 U.S.C. §§ 5316, 5332(a). The Supreme Court in Ratzlaf discussed the
multifaceted nature of “willfulness,” as “a word of many meanings” whose “construction is often
influenced by its context.” 510 U.S. at 141 (internal quotation marks and alterations omitted). In
the context of § 5322(a), the Court noted that willfulness has been found by most courts where
both “knowledge of the requirement and a specific intent to commit the crime” were present. Id.
(internal quotation marks and alterations omitted); see also United States v. Dichne, 612 F.2d
632, 636 (2d Cir. 1979).

        As discussed above, the circumstantial evidence could reasonably support the jury’s
finding that Varanese had knowledge of the currency reporting requirement. There is also
sufficient evidence to support a reasonable inference that Varanese was knowingly transporting
over $10,000 in U.S. currency. Looking at the totality of the circumstantial evidence, including
Varanese’s nervousness, his attempt to distance himself from the truck as soon as he was
stopped, his intimate knowledge of its interior that was filled only with his belongings and which
he had inspected the morning that he was stopped, it was reasonable for the jury to conclude that
Varanese acted willfully in failing to report the $10,000. That is, a rational finder of fact could
reasonably conclude that Varanese intentionally failed to report the currency he knew was in his
truck, in violation of § 5322(a).

       We have considered all of appellant’s remaining contentions and have found them to be
without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                             FOR THE COURT:
                                                             Catherine O’Hagan Wolfe, Clerk




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