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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1787 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                       FRANCISCO A. BERAS, <br> <br>                      Defendant, Appellant. <br> <br> <br>           <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Carmen Consuelo Cerezo, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Stahl, Circuit Judge, <br>                Kravitch,* Senior Circuit Judge, <br>                   and Lipez, Circuit Judge. <br>                                 <br>                                 <br>                                 <br>                                 <br>     Julio E. Gil De Lamadrid, Jose Neil Pea Senati, and Marisel <br>Pea Senati on brief for appellant. <br>     Camille Vlez-Riv, Assistant United States Attorney, Jorge E. <br>Vega-Pacheco, Assistant United States Attorney, and Guillermo Gil, <br>United States Attorney, on brief for appellee. <br> <br> <br> <br> <br> <br>July 7, 1999 <br> <br> <br> <br>                                 <br>____________________ <br>*Of the Eleventh Circuit, sitting by designation.

  STAHL, Circuit Judge.  Defendant-appellant Francisco A. <br>Beras was convicted by a jury for failing to report that he was <br>transporting over $10,000 in currency out of the United States in <br>violation of 18 U.S.C.  2 and 31 U.S.C.  5316(a)(1)(A) & 5322,  <br>and for making a false statement in violation of 18 U.S.C.  2 & <br>1001.  The district court sentenced Beras to twelve months' <br>imprisonment and also ordered him to forfeit the $138,794 that he <br>was transporting.  On appeal, Beras challenges his convictions, the <br>court's sentence, and its forfeiture order.  After careful <br>consideration of Beras's arguments, we affirm his convictions and <br>the sentence, but reverse the forfeiture order and remand for <br>further proceedings consistent with this opinion. <br>                               I. <br>                           Background <br>  In reviewing the court's denial of defendant's motion to <br>suppress, we recite the facts as found by the district court to the <br>extent they are not clearly erroneous.  See United States v. <br>McCarthy, 77 F.3d 522, 525 (1st Cir. 1996).  On May 24, 1997, Beras <br>and co-defendant Carmen Ortiz were stopped at the jetway in the <br>Luis Munoz Marin International Airport in Carolina, Puerto Rico by <br>United States Customs Agent Victor Ramos as they were attempting to <br>board a flight destined for Santo Domingo, Dominican Republic.  <br>Ramos asked Beras and Ortiz for an interview and the two <br>acquiesced.  Ramos then identified himself as a customs officer and <br>explained that passengers transporting more than $10,000 in <br>currency are required to file a report.  Both Beras and Ortiz <br>indicated that they understood the requirement.  Ramos asked <br>whether either of them was carrying more than $10,000.  Each <br>answered no.  Ramos next asked how much currency each passenger was <br>transporting.  Ortiz stated that she was transporting $3,000 and <br>Beras stated that he was transporting $2,500.  Ramos asked Ortiz to <br>show him the currency she was transporting, and Ortiz produced an <br>envelope that appeared to contain about $3,000.  Ramos asked Beras <br>to show him the currency that he was transporting, and Beras opened <br>his wallet, showing cash totaling about $5,000.   <br>  During the interview, Ramos noticed a bulky area in the <br>lower part of each passenger's legs.  Ramos called a female agent <br>and asked her to pat down Ortiz.  The pat down revealed bundles of <br>cash hidden inside each of Ortiz's socks.  Ramos conducted a pat <br>down of Beras and felt a bulge in Beras's lower leg.  Ramos asked <br>Beras to show him the contents of the bulge.  Beras lifted up both <br>his pant legs and removed money that he was carrying in his socks.  <br>Ramos placed Beras and Ortiz under arrest and escorted them to the <br>Customs inspection area where the two were subsequently searched.  <br>The search revealed $138,794 in cash. <br>  On June 11, 1997, a grand jury returned a three-count <br>indictment against Beras and Ortiz.  Count One charged that Beras <br>and Ortiz had aided and abetted each other and were about to <br>transport monetary instruments in excess of $10,000 from Puerto <br>Rico to the Dominican Republic, without first filing a report.  See <br>18 U.S.C.  2 and 31 U.S.C.  5316(a)(1)(A) & 5322.  Count Two <br>sought criminal forfeiture of the $138,794.  See 18 U.S.C.  982.  <br>Count Three charged Beras and Ortiz with aiding and abetting each <br>other while making a false statement as to a material fact, see 18 <br>U.S.C.  2 & 1001, when defendants stated that they were carrying <br>less than $10,000.  Before trial, Ortiz pleaded guilty as to Count <br>One and the government dismissed the other charges against her. <br>  Beras moved to suppress the evidence that was obtained as <br>a result of his exchange with Ramos, alleging that it was obtained <br>in violation of his Fourth Amendment rights.  Following a hearing, <br>a magistrate judge issued a Report and Recommendation that the <br>motion be denied under the border search exception to the Fourth <br>Amendment.  In the alternative, the magistrate found that the pat <br>down of Beras's legs was supported by reasonable suspicion.  The <br>district court adopted the magistrate's Report and Recommendation <br>and denied the suppression motion. <br>  A jury trial began on February 10, 1998.  During trial, <br>Beras objected to the government's introduction into evidence of  <br>a blank United States Customs form 4790 and two posters, arguing <br>that they had not been disclosed to him during discovery and <br>therefore were inadmissible at trial.  The court overruled Beras's <br>motion with respect to the customs form but granted the motion with <br>respect to the posters.  After a two-day trial, the jury returned <br>a guilty verdict as to Counts One and Three. <br>  Following the trial, the government moved for an order of <br>forfeiture pursuant to Count Two of the indictment.  The court <br>granted the motion, ordering that Beras and Ortiz forfeit $138,794 <br>as property used by them during the commission of the crime alleged <br>in Count One of the indictment. <br>  On May 26, 1998, the district court, after a hearing,  <br>sentenced Beras to twelve months and one day of imprisonment, three <br>years of supervised release, and imposed a special fine of $100. <br>  On appeal, Beras claims (1) that the district court erred <br>in denying his motion to suppress; (2) abused its discretion in <br>admitting evidence that had not been produced during discovery; (3) <br>made a number of errors in calculating his sentence; and (4) that <br>the forfeiture order violates the Eighth Amendment. <br>                              II. <br>                           Discussion <br>A.  Motion to Suppress <br>  In his challenge to the district court's denial of his <br>motion to suppress, Beras contends that the exchange between him <br>and Ramos constituted a de facto arrest that was not supported by <br>probable cause.  We review the court's findings of fact for clear <br>error and review de novo its conclusions of law and its rulings on <br>the constitutionality of the government's conduct.  See United <br>States v. Acosta-Colon, 157 F.3d 9, 13-14 (1st Cir. 1998).  <br>  There is no question that Ramos's initial questioning of <br>Beras did not infringe Beras's Fourth Amendment rights.  See <br>Florida v. Royer, 460 U.S. 491, 497 (1983) ("[L]aw enforcement <br>officers do not violate the Fourth Amendment by merely approaching <br>an individual . . . in [a] public place, by asking him if he is <br>willing to answer some questions, by putting questions to <br>him . . . or by offering in evidence in a criminal prosecution his <br>voluntary answers to such questions.") (plurality opinion).  Thus, <br>the issue is whether Ramos was permitted to pat down Beras's legs.  <br>The government contends that the pat down was a routine border <br>search that falls within the border search exception to the Fourth <br>Amendment. <br>  It is well established that "the Fourth Amendment's <br>balance of reasonableness is qualitatively different at the <br>international border than in the interior."  United States v. <br>Montoya de Hernandez, 473 U.S. 531, 538 (1985).  Under the border <br>search exception, "[r]outine searches of the persons and effects of <br>entrants are not subject to any requirement of reasonable <br>suspicion, probable cause, or warrant."  Id. (emphasis added).  The <br>Supreme Court, however, has not yet addressed the issue of whether <br>the border search exception applies to outgoing as well as incoming <br>travelers.  Nor has this circuit ruled on the issue.  But see <br>Acosta-Colon, 157 F.3d at 13 (suggesting, in dicta, that the border <br>search exception would apply if "the bags or any of the suspects <br>were required to pass through U.S. Customs, or were involved in any <br>international border crossing").  Every other circuit to consider <br>the issue, to our knowledge, has held that the border search <br>exception applies to outgoing as well as incoming travelers.  See <br>United States v. Ezeiruaku, 936 F.2d 136, 143 (3d Cir. 1991); <br>United States v. Berisha, 925 F.2d 791, 795 (5th Cir. 1991); United <br>States v. Udofot, 711 F.2d 831, 839-40 (8th Cir. 1983); United <br>States v. Ajlouny, 629 F.2d 830, 834-35 (2d Cir. 1980); United <br>States v. Stanley, 545 F.2d 661, 667 (9th Cir. 1976); cf. United <br>States v. Hernandez-Salazar, 813 F.2d 1126, 1138 (11th Cir. 1987) <br>(without deciding whether the border search exception "applies <br>equally in all respects to incoming and outgoing searches," holding <br>that the Fourth Amendment "permits warrantless searches of persons <br>and property departing the United States on the basis of reasonable <br>suspicion that a currency reporting violation is occurring").  <br>These cases have drawn support from dicta in California Bankers <br>Ass'n v. Shultz, 416 U.S. 21, 63 (1974), where the Supreme Court <br>stated: "[T]hose entering and leaving the country may be examined <br>as to their belongings and effects, all without violating the <br>Fourth Amendment." <br>  We join our sister circuits and conclude that the border <br>search exception to the Fourth Amendment applies to outgoing <br>travelers.  In our view, there is a convincing policy justification <br>for extending the exception.  The border search exception arises <br>from the "longstanding concern for the protection of the integrity <br>of the border[, . . . a] concern [that] is, if anything, heightened <br>by the veritable national crisis in law enforcement caused by <br>smuggling of illicit narcotics."  Montoya de Hernandez, 473 U.S. at <br>538.  As the Third Circuit has recognized, this concern also arises <br>with respect to outgoing travelers:  <br>    National interests in the flow of currency <br>  justify the diminished recognition of privacy <br>  inherent in crossing into and out of the <br>  borders of the United States . . . . Although <br>  there is not the slightest suggestion that the <br>  appellee here was implicated in drug <br>  trafficking, in an environment that sees a <br>  massive importation of drugs across our <br>  borders, we are cognizant that there must be a <br>  concomitant outflow of cash to pay for this <br>  nefarious traffic. <br> <br>Ezeiruaku, 936 F.2d at 143.   <br>  Beras was patted down at the functional equivalent of an <br>international border, see Almeida-Sanchez v. United States, 413 <br>U.S. 266, 272-73 (1973), and the district court supportably found <br>that the pat down was conducted pursuant to a routine border <br>search.  Thus, neither probable cause nor reasonable suspicion was <br>required.  The district court's denial of the motion to suppress is <br>affirmed. <br>B.  Evidentiary Issues <br>  Beras complains that the district court erred in <br>admitting into evidence a blank United States Customs Form 4790, <br>which passengers leaving or entering the country must file when <br>they are transporting more than $10,000 in currency.  Beras <br>contends that because the form was not disclosed to him during <br>discovery, it should not have been admitted at trial.  See Fed. R. <br>Crim. P. 16.  <br>  Rule 16(a)(1)(C) requires that the government, upon <br>request of the defendant, permit the defendant to inspect and copy <br>any document that the government intends to use as evidence in its <br>case in chief at trial.  Where the government fails to comply with <br>this rule, the district court "may order such party to permit the <br>discovery or inspection, grant a continuance, or prohibit the party <br>from introducing evidence not disclosed, or it may enter such other <br>order as it deems just under the circumstances."  Fed. R. Crim. P. <br>16(d)(2).  We review the district court's ruling for abuse of <br>discretion.  See United States v. Tajeddini, 996 F.2d 1278, 1287 <br>(1st Cir. 1993).  We will uphold the ruling absent a demonstration <br>of prejudice to the defendant.  See id.  Moreover, a "criminal <br>defendant must ordinarily seek a continuance if he intends to claim <br>prejudice."  United States v. Sepulveda, 15 F.3d 1161, 1178 (1st <br>Cir. 1993).  "[I]n situations where defense counsel does not seek <br>a continuance upon belated receipt of discoverable information, a <br>court often can assume that counsel did not need more time to <br>incorporate the information into the defense's game plan."  Id. <br>  Even assuming arguendo that the government violated Rule <br>16, Beras failed to request a continuance.  Beras also has failed <br>to articulate any prejudice suffered as a result of the <br>government's failure to produce the form during discovery.  We <br>therefore detect no reversible error in the district court's <br>decision to admit the form into evidence. <br>C.  Sentencing on Counts One and Three <br>  Beras assigns two errors to the district court's <br>calculation of his sentence under the Sentencing Guidelines.  We <br>review the court's factual determinations for clear error and its <br>interpretation of the Sentencing Guidelines de novo.  See United <br>States v. Conley, 156 F.3d 78, 84 (1st Cir. 1998). <br>  First, Beras claims that the district court erred in <br>applying a seven-point enhancement pursuant to U.S.S.G. <br> 2F1.1(b)(1)(h), which states that such an enhancement is <br>appropriate for a "loss" that exceeds $120,000.  According to <br>Beras, because there was no "loss" in his crime, the seven-point <br>enhancement is inappropriate.  Beras's argument is without merit.  <br>The district court properly referred to U.S.S.G.  2S1.3, which <br>provides the base offense level for the "Failure to File Currency <br>and Monetary Instrument Report."  The base offense level is "6 plus <br>the number of offense levels from the table in  2F1.1 <br>. . . corresponding to the value of the funds."  The district court <br>thus properly enhanced Beras's sentence by seven points because the <br>"value of the funds" exceeded $120,000. <br>  Second, Beras claims that the district court erred in <br>failing to award him a two-point reduction in his base offense <br>level for his acceptance of responsibility.  See U.S.S.G.  3E1.1.  <br>According to Beras, he deserved a reduction because he only went to <br>trial to avoid forfeiture and has expressed remorse.  Recognizing <br>that "[t]he sentencing judge is in a unique position to evaluate a <br>defendant's acceptance of responsibility," U.S.S.G.  3E1.1, <br>Application Note 5, we defer to the court's finding that "[Beras] <br>went to trial in order to contest the factual elements of the <br>offenses for which he was charged and the statement of remorse <br>included in the PSI was made by him after his conviction."  We find <br>no error in the court's decision not to award Beras an acceptance <br>of responsibility reduction. <br>D. Eighth Amendment Claim <br>  Finally, Beras claims that the district court's <br>forfeiture order violates the Eighth Amendment's prohibition of <br>excessive fines.  Because Beras did not raise the Eighth Amendment <br>claim at trial, we review only for plain error.  See Fed. R. Crim. <br>P. 52(b) ("Plain errors or defects affecting substantial rights may <br>be noticed although they were not brought to the attention of the <br>court.").  Under Rule 52(b), we may take notice of a forfeited <br>claim of error only if there has been (1) an error; (2) that is <br>"plain," meaning "clear" or "obvious"; and (3) that error <br>"affect[s] substantial rights".  United States v. Olano, 507 U.S. <br>725, 732 (1993); see also United States v. Bradstreet, 135 F.3d 46, <br>50 (1st Cir.), cert. denied, 118 S. Ct. 1805 (1998).  Even if these <br>three elements are met, however, we may not exercise our discretion <br>unless the error involves "a miscarriage of justice" or "seriously <br>affect[s] the fairness, integrity or public reputation of judicial <br>proceedings."  Olano, 507 U.S. at 736. <br>  First, there is no doubt that the forfeiture order would <br>be an error if Beras's trial occurred today.  The Supreme Court has <br>held that the forfeiture of $357,144 that a defendant willfully <br>failed to report as he was exiting the country would violate the <br>Excessive Fines Clause of the Eighth Amendment.  See United States <br>v. Bajakajian, 118 S. Ct. 2028, 2031 (June 22, 1998).  The Court <br>stated that full forfeiture would be "grossly disproportional to <br>the gravity of his offense," given that the defendant was found <br>guilty only of a reporting offense.  Id. at 2031, 2038.  Because <br>this case was still pending on direct review when Bajakajian was <br>decided, there was error under Bajakajian.  See Griffith v. <br>Kentucky, 479 U.S. 314, 328 (1987) (A "new rule for the conduct of <br>criminal prosecutions is to be applied retroactively to all <br>cases . . . pending on direct review . . . ."). <br>  Second, despite the fact that Bajakajian was decided <br>after the district court's decision in Beras's case, the error was <br>plain.  The Supreme Court has stated that "where the law at the <br>time of trial was settled and clearly contrary to the law at the <br>time of appeal -- it is enough that an error be 'plain' at the time <br>of appellate consideration."  Johnson v. United States, 520 U.S. <br>461, 468 (1997). <br>  Third, we think it clear that the error affects Beras's <br>substantial rights: his punishment is significantly greater than it <br>otherwise would have been.  An Eighth Amendment right not to be <br>subjected to excessive fines is a core constitutional right that we <br>deem substantial.   <br>  We thus must decide whether failing to correct this <br>"plain error" would cause "a miscarriage of justice" or would <br>"seriously affect[] the fairness, integrity or public reputation of <br>judicial proceedings."  Olano, 507 U.S. at 736.  Although we have <br>typically exercised our discretion to correct plain errors when an <br>innocent person is convicted and sentenced, "we have never held <br>that a Rule 52(b) remedy is only warranted in cases of actual <br>innocence."  United States v. Marder, 48 F.3d 564, 571 (1st Cir. <br>1995) (quoting Olano, 507 U.S. at 736).  Indeed, we have previously <br>found an excessive restitution order to constitute a miscarriage of <br>justice warranting correction.  See United States v. Gilberg, 75 <br>F.3d 15, 22 (1st Cir. 1996).  We similarly find that a forfeiture <br>order that is so excessive as to violate the Eighth Amendment would <br>constitute a miscarriage of justice.  We therefore exercise our <br>discretion to find plain error under the circumstances of this <br>case. <br>  On remand, the district court is directed to consider the <br>analysis laid out in Bajakajian in setting a forfeiture order that <br>is not grossly disproportional to the gravity of Beras's offense.  <br>The court may consider: (1) that Beras's violation was not related <br>to any other illegal activities; (2) other penalties that Congress <br>has authorized for Beras's crimes as well as the maximum penalty <br>provided by the Sentencing Guidelines; and (3) the extent of the <br>harm caused by Beras's actions.  See Bajakajian, 118 S. Ct. at <br>2036, 1238-39; 3814 N.W. Thurman St., 164 F.3d at 1197-98. <br>                              III. <br>                           Conclusion <br>  Accordingly, we affirm defendant's convictions and <br>sentences with respect to Counts One and Three.  We vacate the <br>forfeiture order and remand to the district court for action <br>consistent with this opinion on Count Two.</pre>

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