USA v. Stephen Willoughby

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12055
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-00280-CAP-JFK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN WILLOUGHBY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(September 30, 2013)
Before WILSON, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
Stephen Willoughby appeals his conviction for bulk-cash smuggling in
violation of 31 U.S.C. §§ 5316, 5332(a), (b). He argues that, at trial, the district
court erred by admitting improper evidence of extrinsic acts. After review, we
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conclude that, even if the admission of this evidence constituted an abuse of
discretion, such error was harmless. We therefore affirm.
I.
On February 13, 2011, Customs and Border Protection officers at Atlanta’s
Hartsfield-Jackson International Airport were on notice to look for Mr. Willoughby
because he was scheduled to arrive in Atlanta and had previously transported large
amounts of currency into the United States. The officers had been directed to
search Mr. Willoughby’s luggage and person.
That day, Mr. Willoughby arrived at the airport aboard a flight from London,
England. He was accompanied by his wife and young child. CBP Officers James
Regas and Christopher Morris observed the family as they exited the plane, walked
through the airport’s concourse, and approached the passport inspection area. At
this checkpoint, the Willoughbys presented a completed CBP declaration form to
another CBP officer.1 The form bore Mr. Willoughby’s signature and declared that
he and his family were not carrying more than $10,000 in currency. The form was
stamped, and the Willoughbys proceeded to the terminal’s baggage claim area.
1 All individuals arriving into the United States from a foreign country are required to fill
out a CBP declaration form which asks them to declare the total value of all goods purchased or
acquired abroad. See 19 C.F.R. § 148.13. If a family is traveling together, one member of the
family may fill out a declaration form on the group’s behalf. See 19 C.F.R. § 148.14. The form
has a question that specifically asks the individual (or family) whether they are “carrying
currency or monetary instruments over $10,000 U.S. or foreign equivalent.” See CBP Form
6059-B.
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Upon arrival, Officer Morris approached the Willoughbys and asked to see
their declaration form and passports. It is at this point where the stories diverge.
A.
Officer Morris testified that he asked Mr. Willoughby to state how much
money he was traveling with, and Mr. Willoughby told Officer Morris that he was
only carrying $100.00. Officer Morris proceeded to draw two lines on the back of
the Willoughbys’ declaration form, and instructed Mr. Willoughby to write the
amount of currency he was carrying and then sign his name. Mr. Willoughby wrote
“100” on the first line and signed his name on the second.
After obtaining this written declaration, Officers Morris and Regas took Mr.
Willoughby to a secondary baggage inspection area; he again denied carrying more
than $10,000. The officers then began to search Mr. Willoughby’s luggage. In
those bags, the officers found several bundles of U.S. currency hidden inside
various articles of clothing. The luggage was also filled with dryer sheets. And,
each time currency was found hidden in the luggage, the officers gave Mr.
Willoughby a chance to amend his declaration. He rejected each opportunity to do
so.
Later, the officers told Mr. Willoughby to empty his pockets, and Mr.
Willoughby pulled from his back pocket a packet of approximately $10,000 held
together by a rubber band. Sometime thereafter, Mr. Willoughby pulled out
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another two unstamped declaration forms that were stuck together. The first form
declared that Mr. Willoughby was not carrying more than $10,000. The other only
had “$80,000” written on the back.
Mr. Willoughby admitted to Special Agent Leo Ford that he chose not to
declare the money because he did not think CBP needed to know about his
finances. He also told Special Agent Ford that he was upset that, when his family
last came through customs, they were delayed for over two hours and treated
poorly. All told, the officers found over $106,000 in the Willoughbys’ luggage and
on Mr. Willoughby’s person.
B.
The Willoughbys, however, presented a different version of these events at
trial. They claim that Officer Morris first approached and questioned Mrs.
Willoughby while Mr. Willoughby attended to their young child. According to
Mrs. Willoughby, she told Officer Morris that she was only carrying “a few
hundred dollars.” Officer Morris then proceeded to write “100” on the back of the
declaration form and asked her to sign the form.
Then, Mr. Willoughby approached the CBP officers before they searched his
luggage, apologized for not having gotten his declaration forms stamped at the
passport inspection area, and then gave his forms to the officers. He told the
officers that it was an honest mistake, and that the form stamped at the passport
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inspection area had been filled out by Mrs. Willoughby, who did not know about
the money in his luggage.2 Mr. Willoughby also denies that he was given any
opportunity to amend his declaration, or that he made any admissions of guilt to
Special Agent Ford. In fact, Mr. Willoughby claims that the currency was not
hidden at all, and that the officers were able to find it within seconds of opening his
suitcase.
II.
On June 7, 2011 a grand jury returned a two-count indictment against Mr.
Willoughby for bulk-cash smuggling and knowingly failing to file a financial
disclosure report. The case proceeded to a jury trial.
At trial, Mr. Willoughby testified in his own defense. The government
questioned Mr. Willoughby—over the defense’s objection3—about his relationship
with Olefunke Ademoyero. In particular, the government asked Mr. Willoughby
whether he was aware that, on February 5, 2009, Ms. Ademoyero had arrived at
Hartsfield-Jackson International Airport carrying over $119,000 and had told CBP
officers that she had come to Atlanta to meet with Mr. Willoughby, who was her
2 The Willoughbys maintain that, while in London, they had been arguing about whether
to ask Mr. Willoughby’s family for money to help them with their recent financial difficulties.
Nevertheless, Mr. Willoughby testified that he received $102,000 from his parents the night
before they returned to Atlanta, but he did not tell his wife about the money because he was still
angry at her from the earlier dispute.
3 Mr. Willoughby objected to the questions because they were irrelevant, dealt with
extrinsic matters, and no notice had been given.
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partner in a car export business. Mr. Willoughby acknowledged that Ms.
Ademoyero was a family friend, but he denied having any knowledge as to why
Ms. Ademoyero would have made those representations to CBP officials. He also
denied that he was Ms. Ademoyero’s business partner.
The government also asked Mr. Willoughby if he was aware that Ms.
Ademoyero arrived at the airport again in July of 2009 carrying both $101,000 and
Mr. Willoughby’s contact information. Mr. Willoughby denied having any
knowledge of those events.
The government then questioned Mr. Willoughby—without objection from
the defense—about his relationship with Prabha Chawla. Mr. Willoughby was
asked whether he knew that Mrs. Chawla came to the Atlanta airport carrying
$122,000 on June 12, 2009. Mr. Willoughby admitted that he knew Mrs. Chawla
through her son, and that he had gone to the airport on that day to pick her up. He
also admitted that he had been approached by CBP officials when he was waiting
at the airport for Mrs. Chawla. But he denied any knowledge of the amount of
money that Mrs. Chawla carried or that he had made any false representations to
CBP officials on that day.
In its rebuttal case, the government called CBP Officer Jesse Gillen. Officer
Gillen testified, over defense objection,4 that Mrs. Chawla had told CBP officials
4 Mr. Willoughby argued that the evidence was Rule 404(b) evidence for which the
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that she was meeting her nephew, Derek Smith, at baggage claim.5 Because of the
quantity of money, the time of day, and the age of Mrs. Chawla, Officer Gillen
escorted Mrs. Chawla to baggage claim for safety reasons. Upon their arrival, Mr.
Willoughby approached and greeted Mrs. Chawla. She, however, did not appear to
recognize Mr. Willoughby. Officer Gillen then asked Mr. Willoughby for
identification, and Mr. Willoughby reticently responded that he had left his
identification in the car with his wife.
Officer Gillen also testified that he waited approximately twenty-five
minutes for Mrs. Willoughby to bring her husband’s identification. Mrs.
Willoughby never arrived, and Officer Gillen followed Mr. Willoughby back to his
car. At that point, Mr. Willoughby continued to be reluctant to provide Officer
Gillen with identification, but he ultimately offered his driver’s license, which had
been inside his wallet.
The jury convicted Mr. Willoughby of bulk-cash smuggling, but acquitted
him of failing to file a financial disclosure report. This appeal followed.
III.
On appeal, Mr. Willoughby argues that the district court erred by allowing
the questions and admitting the evidence relating to Ms. Ademoyero and Mrs.
government had not given notice.
5 At this point, CBP officers had already verified that Mrs. Chawla was carrying
$120,000 in her luggage and $2,000 on her person.
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Chawla at trial. We review evidentiary rulings for abuse of discretion. See United
States v. McGarity, 669 F.3d 1218, 1232 (11th Cir. 2012). But, when a defendant
failed to object to the admission of evidence before the district court, we review
only for plain error. See United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir.
2003). Under either standard of review, reversal is not warranted if the error was
harmless. See Fed. R. Crim. P. 52(a).
We assume without deciding that the questions or the evidence regarding
Ms. Ademoyero and Mrs. Chawla were improper, and turn to the question of
harmless error. An error is harmless if it “had no substantial influence on the
outcome and sufficient evidence uninfected by error supports the verdict.” United
States v. Fortenberry, 971 F.2d 717, 722 (11th Cir. 1992) (citation omitted). Based
upon our review of the record, any error here was harmless.
First, the government introduced ample independent and untainted evidence
at trial to support the jury’s verdict. There was the stamped declaration form
bearing Mr. Willoughby’s signature and answer of “No” to the question of whether
he was carrying over $10,000 in currency. There was also testimony from Officers
Morris and Regas that (1) Mr. Willoughby had rejected multiple opportunities to
amend his declaration both before and after CBP officers began to search his
luggage, (2) the currency in Mr. Willoughby’s luggage was well-hidden, (3) Mr.
Willoughby’s luggage was lined with dryer sheets, (4) bulk-cash smugglers
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frequently use dryer sheets in an effort to evade detection by dogs trained to smell
for currency, and (5) Mr. Willoughby did not present his other, unstamped
declaration forms until well after the officers had been searching through his
luggage. In addition, and significantly, Special Agent Ford testified that Mr.
Willoughby had admitted that he had not declared the correct amount of currency
because he did not think that the government needed to know about his finances.
Second, there was evidence that Mr. Willoughby had reasons to not
accurately declare that he was entering the United States with $106,000 in cash
despite his prior compliance with the financial reporting requirements. It is
undisputed that the Willoughbys’ financial position had detrimentally changed by
February 13, 2011. The Willoughbys had recently been forced to close their failing
restaurant in January of 2011 after only one year of operation, yet still had four
years remaining on their lease for the building. They also had fallen behind on
paying state sales taxes. And they owed money to creditors for both personal and
business debts.
Third, Mrs. Willoughby, through her testimony, offered nearly the same
version of events as Mr. Willoughby, and none of the questions and testimony
concerning Ms. Ademoyero or Mrs. Chawla were or could have been used to call
into question Mrs. Willoughby’s credibility. Thus, any impact that the challenged
evidence may have had on Mr. Willoughby’s credibility would not have had a
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substantial impact on the outcome because Mr. Willoughby’s testimony was in
many respects duplicative of the testimony Mrs. Willoughby provided. Simply put,
the jury had the opportunity to hear the defense’s version of events through witness
testimony uninfected by the purportedly inadmissible questions and evidence, and
it nevertheless chose to disbelieve it.
IV.
The evidentiary rulings challenged on appeal by Mr. Willoughby, if
anything, amount to harmless error. As such, they cannot serve as a basis for
granting Mr. Willoughby a new trial.
AFFIRMED.
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