14 F3d 465 United States v One MercedesBenz Sd Vin Wdbcb20c6fa177831…

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Mercedes-Benz F 300

14 F3d 465 United States v. One Mercedes-Benz Sd Vin

and

Sadrudin Kabani, Claimant-Appellant.

No.

United States Court of

Ninth Circuit.

Argued and Nov. 4, 1993.

Decided 14, 1994.

Robert Taylor-Manning, Ashbaugh, Riper, Peters J. Ronald Sim, Stoel, Boley, Jones Grey, WA, for claimant-appellant.

Bonnie E. MacNaughton, U.S. Atty. Patricia U.S. Customs Service, WA, for plaintiff-appellee.

Before: TANG, and RYMER, Circuit Judges.

* A who transports more than into or out of the United States file a report with the government. See 31 U.S.C. Sec. (1988).1 The issue is whether a car to export currency in violation of 5316’s reporting requirements may be under the Espionage Act, 22 Sec. 401 (1988), which for the forfeiture of vehicles used in any arms or munitions of war or other in violation of law.2

Sadrudin drove into Canada $1,082,100.00 in United States in the trunk of his 1985 Mercedes-Benz. 300 SD. He reported the money as required by 5316. When a Canadian officer discovered the currency, the States government seized the and charged Kabani with to report the export of currency in of 31 U.S.C. Secs. 5312, (1988) and with two counts of laundering in violation of 18 U.S.C. 1956(a)(2) (1988 Supp. II Kabani was never convicted of any of charges. Instead, he entered a plea to the charge of making statements to customs officials in of 18 U.S.C. Sec. 1001 The other charges were

The government filed a claim for of the Mercedes under 22 U.S.C. 401. Kabani moved for judgment to dismiss the forfeiture Concluding that Kabani’s to report the money permitted the car to be under Section 401, the court denied Kabani’s judgment motion. United v. One 1985 Mercedes-Benz. 300 SD, 741 F.Supp. 850 (W.D.Wash.1990). On undisputed facts, the entered a judgment of forfeiture.

appeals. We reverse. Congress the scheme for the forfeiture of property in Section 5316 violations in 31 Sec. 5317 (1988) and 18 Sec. 982 (Supp.IV 1992). used to export currency in of 31 U.S.C. Sec. 5316 are to forfeiture as provided in 18 U.S.C. 982 and may not be forfeited under 22 U.S.C. 401.

Mercedes-Benz F 300

Congress has specified two in which violations of Section may lead to the forfeiture of property: 1) 31 U.S.C. Sec. 5317, that was exported or imported in of Section 5316’s reporting is subject to forfeiture in a civil and 2) 18 U.S.C. Sec. 982(a)(1) that when sentencing a convicted of violating Section a court shall order the to forfeit to the United States any involved in such offense.

The language and structure of 31 U.S.C. 5317 and 18 U.S.C. Sec. 982 that cars involved in the exportation of currency may only be after the defendant has been of violating Section 5316. 5317 specifies that any instrument exported in violation of 5316 may be forfeited to the United but does not require that the occur in conjunction with the of a convicted defendant. Section 982 to forfeiture any property involved in a 5316 violation, but only the defendant has been convicted. Congress allowed for both the forfeiture, under 18 U.S.C. 981 (Supp. IV 1992), and the criminal under 18 U.S.C. Sec. of property involved in violations of requirements included in other of Title 31. But Congress included involved in Section 5316 only in the criminal forfeiture 18 U.S.C. Sec. 982. 18 U.S.C. Sec. 981(a)(1) for the civil forfeiture of property in violations of 31 U.S.C. Secs. and 5324(a)) with 18 U.S.C. 982(a)(1) (allowing for the criminal of property involved in violations of 31 Secs. 5313(a), 5316, and

In recent years, Congress has amended the general forfeiture in Title 18 and the currency reporting in Title 31. With each Congress has maintained the present scheme for Section 5316 under which the illegally or imported money may be forfeited in a proceeding under 31 U.S.C. 5317 and other property in the violation may be forfeited in a criminal under 18 U.S.C. Sec. For example, 31 U.S.C. Sec. prohibits structuring transactions to the reporting requirements of 31 U.S.C. 5313(a) and 5325. In 1992 amended Section 5324 by subsection (b), which a new offense for structuring transactions to Section 5316’s reporting When Congress amended the statutes to accommodate Section it included civil and criminal provisions for that offense in 31 Sec. 5317(c) and 18 U.S.C. 982, and continued to allow and criminal forfeiture for violations of 5324(a) to proceed under 18 Secs. 981 and 982.4

The government ignore Section 982’s that a conviction of violating 5316 is a prerequisite to the forfeiture of used in illegally exporting Originally, when Kabani was with violating Section the government sought the forfeiture of his car Section 982. After accepted a plea bargain and the 5316 charge was dropped, the abandoned its Section 982 forfeiture and turned to Section 401, allows property to be forfeited a defendant has been convicted of exporting goods.

Courts have applied 401’s forfeiture provisions to a of illegally exported goods. 401 has been used to authorize the of stolen telecommunications equipment in violation of 18 U.S.C. Sec. (Supp.IV 1992). United v. Ajlouny, 629 F.2d 830. 835-36 (2nd Cir.1980), denied, 449 U.S. 1111, 101 920, 66 L.Ed.2d 840 (1981). the Second World War, exported in violation of the Export Act, 50 U.S.C.App. Sec. et seq. have been under Section 401. e.g. Zarranz v. United 182 F.2d 650. 651-52 Cir.1950); United States v. 251 Dresses, 53 F.Supp. 772, 774 see also United States v. 321 F.Supp. 59, 63 (E.D.N.Y.1970) (finding the export seizure provisions of 401 were designed to apply to of the Export [Administration] Act). suggests that the application of 401 in these cases generated any with other statutes.

United States v. One 1980 500 SE, 772 F.2d 602 (9th Cir.1985), the contends that we have allowed a car involved in a violation of the Administration Act to be forfeited under 401, even though the Administration Act provides only for forfeitures. 50 U.S.C.App. Sec. (1988). But our decision in One 1980 is not pertinent to our resolution of Kabani’s In One 1980 Mercedes-Benz. the district ordered the forfeiture of the car before amended the Export Administration Act and a forfeiture provision. See id. at 604; see Act of July 12, 1985, Pub.L. No. Sec. 112, 99 Stat. 146-47 (amending the Export Act). We never were upon in One 1980 Mercedes-Benz to the issue of whether the amendment of the Administration Act affected the availability of under Section 401. unlike the monetary transaction statutes, 31 U.S.C. Secs. and the general forfeiture statutes, 18 Sec. 981-982, Congress has stated that the remedies under the Export Administration Act are not to supersede judicial or administrative available under other or regulations. 50 U.S.C.App. Secs. 2416 (1988).


The government is precluded from Section 401 in a manner that undermine the forfeiture provisions of recently enacted laws. are not favored; they should be only when within letter and spirit of the law. States v. One 1936 Model V-8 De Luxe Coach, 307 U.S. 226, 59 S.Ct. 861, 83 L.Ed. 1249 (1939).

Vehicles used to export in violation of 31 U.S.C. Sec. are subject to forfeiture as provided in 18 Sec. 982 and may not be forfeited under 22 Sec. 401. Under 982, a car involved in the illegal of currency may be forfeited only the defendant has been convicted of Section 5316. The government Kabani’s plea bargain to the charge of exporting currency in of Section 5316. His motion for judgment on the government’s forfeiture should have been

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