United States District of Columbia Circuit Court of Appeals
Reports
UNITED STATES v. GURR, 05-3122 (D.C. Cir. 12-8-2006) UNITED
STATES OF AMERICA, APPELLEE v. BERNARD GURR, APPELLANT. No.
05-3122. United States Court of Appeals, District of
Columbia Circuit. Argued September 25, 2006. Decided
December 8, 2006.
Appeal from the United States District Court for the
District of Columbia (No. 99cr00394-01).
Joseph R. Conte, appointed by the court, argued the cause
and filed the briefs for appellant.
John P. Gidez, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed,
and Roy W. McLeese III and Elizabeth Trosman, Assistant
U.S. Attorneys.
Before: SENTELLE, ROGERS and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Appellant Bernard Gurr appeals his
conviction by a jury of defrauding the United States when
he was the manager of a federal credit union in American
Samoa. He contends that the district court erred in (1)
denying his motion to suppress documents discovered during
a border search upon his arrival at the Honolulu
International Airport; (2) admitting, over his hearsay
objection, a report by an examiner from the National Credit
Union Administration (“NCUA”); and (3) denying his motion
for judgment of acquittal of embezzlement (Count 18) and
witness tampering (Count 20). Gurr pro se also contends that
the district court lacked subject matter jurisdiction and
that venue was improper. We affirm. I.
From June 1986 until October 1993, Bernard Gurr was the
manager of the American Samoa Government Employees Federal
Credit Union, located in American Samoa and supervised and
insured by the NCUA. In late 1992, Pete Steiger, a Problem
Case Officer at the NCUA, was assigned to review problems
that had been identified at the credit union, including
inadequate liquidity, poor loan underwriting, and a high
loan-deficiency rating. Steiger’s investigation and audit
of the credit union, which was summarized in a report
consisting of an Order of Conservatorship and Confidential
Statement of Grounds for Conservatorship, led the NCUA to
place the credit union in conservatorship in October 1993.
In December 1999, Gurr was indicted with three other credit
union employees for conspiring to defraud the United
States. The indictment alleged that the goals of the
conspiracy were to keep the NCUA from discovering the true
financial status of the credit union and to maintain control
of the credit union’s assets for the personal benefit of
the conspirators.
Flying from American Samoa on December 11, 1999, Gurr was
arrested for credit union fraud upon landing in Hawaii at
the Honolulu International Airport. Shortly after his
arrival, two United States Customs officials seized and
searched his luggage and discovered financial documents
taken from the credit union. On May 30, 2000, Gurr was
charged in a superseding indictment with conspiracy, in
violation of 18 U.S.C. § 371 (Count 1); two counts
of knowingly making and causing to be made false federal
credit institution entries, and aiding and abetting, in
violation of 18 U.S.C. §§ 1006, 2 (Counts 2
and 3); fourteen counts of willfully and knowingly
defrauding lending, credit, and insurance institutions, and
aiding and abetting, in violation of 18 U.S.C.
§§ 657, 2 (Counts 4, 618); knowingly making
and causing to be made false statements in a loan and
credit application, and aiding and abetting, in violation
of 18 U.S.C. §§ 1014, 2 (Count 5); obstruction
of an examination of a financial institution, and aiding
and abetting, in violation of 18 U.S.C. §§
1517, 2 (Count 19); and tampering with a witness, and
aiding and abetting, in violation of 18 U.S.C.
§§ 1512, 2 (Count 20).
The district court denied Gurr’s motion to suppress the
financial documents seized during Customs officials’ search
of his luggage and his motion to reconsider. The district
court also overruled Gurr’s objections to the admission of
the NCUA report prepared by Problem Case Officer Steiger as
hearsay, ruling that the report was admissible as a
business record under FED. R. EVID. 803(6). The district
court granted the government’s mid-trial motion to dismiss
one count of fraud (Count 7). A jury found Gurr guilty of
the remaining counts. On November 14, 2003, the district
court sentenced Gurr to 70 months’ imprisonment to be
followed by three years’ supervised release.
II.
Challenging the denial of his motion to suppress the
financial documents that U.S. Customs officials seized
during a search of his luggage upon his arrival in the
United States, Gurr contends that even if Customs officials
generally have the legal authority to perform routine
border searches of passengers’ luggage, in this case, the
warrantless search was unreasonable. The U.S. Customs
Service is authorized, pursuant to 19 U.S.C. §
1582,[fn1] to subject every international traveler to a
routine warrantless inspection. See United States v.
Galloway, 316 F.3d 624, 629 (6th Cir. 2003); Bradley v.
United States, 299 F.3d 197, 202 (3rd Cir. 2002); United
States v. Yang, 286 F.3d 940, 944 (7th Cir. 2002); United
States v. Fortna, 796 F.2d 724, 738 (5th Cir. 1986); 19
C.F.R. § 162.6 (2006). Gurr does not deny this, but
instead maintains that the FBI’s involvement transformed
the inspection from a permissible border action into “an
FBI fishing expedition.” Appellant’s Br. at 11. As proof of
the FBI’s dominating influence, Gurr points to evidence
that the FBI agents were on site and that Customs officials
asked the FBI agents whether they should keep the financial
documents and, upon seizing them, immediately handed the
documents over to the FBI. As Gurr sees it, Customs had no
suspicion that his luggage contained contraband or dutiable
merchandise,[fn2] and hence the search was capricious and
illegal. Our review of the denial of a motion to suppress
is de novo. See United States v. Ornelas, 517 U.S. 690, 691
(1996).
Congress enjoys a plenary “power to protect the Nation by
stopping and examining persons entering this country [and,
accordingly], the Fourth Amendment’s balance of
reasonableness is qualitatively different at the
international border than in the interior.” United States v.
Montoya de Hernandez, 473 U.S. 531, 537 (1985). “[N]ot only
is the expectation of privacy less at the border than in
the interior . . ., the Fourth Amendment balance between
the interests of the Government and the privacy right of
the individual is also struck much more favorably to the
Government at the border.” Id. at 539-40. “[S]earches made
at the border, pursuant to the long-standing right of the
sovereign to protect itself by stopping and examining
persons and property crossing into this country, are
reasonable simply by virtue of the fact that they occur at
the border.” United States v. Ramsey, 431 U.S. 601, 616
(1977). The search of a passenger’s luggage upon arriving
in the United States after a nonstop flight from outside
the country is considered “the functional equivalent of a
border search.” Almeida-Sanchez v. United States, 413 U.S.
266, 273 (1973).
Courts have routinely rejected the notion that cooperation
among federal agencies renders a border search unlawful.
For example, then-Judge Anthony Kennedy, writing in United
States v. Schoor, 597 F.2d 1303, 1306 (9th Cir. 1979),
confronted similar circumstances as here and rejected the
argument that a search violated the Fourth Amendment
because it was not limited to a search for contraband and
was conducted at the behest of Drug Enforcement
Administration (“DEA”) agents who lacked probable cause to
search. In Schoor, DEA agents alerted Customs officials
that two passengers suspected of smuggling heroin in
transistor radio shipments were en route to the United
States on a flight from Thailand and requested that Customs
search them, as they might be carrying narcotics. A
subsequent search by Customs, in the presence of a DEA
agent, revealed bills for radios and other items
transported earlier from Thailand, as well as airway bills
apparently relating to a shipment of heroin-filled radios
seized in Thailand. The two men were arrested by DEA agents
for conspiracy to smuggle heroin into the United States,
and the DEA agents seized the documents incident to the
arrest. Judge Kennedy explained the court’s reasoning:
[T]here is no dispute that the search was conducted at an
international border by customs officers legally entitled
to search persons entering the United States. That the
search was made at the request of the DEA officers does
not detract from its legitimacy. Suspicion of customs
officials is alone sufficient justification for a border
search. The source of that suspicion is irrelevant in
sustaining the search.
Moreover, the border search was legitimate in scope. We
recognize that the primary purpose of a border search is
to seize contraband property unlawfully imported or
brought into the United States. However, where customs
officers are authorized to search for material subject to
duty or otherwise introduced illegally into the United
States and they discover the instrumentalities or evidence
of crimes, they may seize the same.
Id. (citations omitted). The decisions in the other circuits
are to the same effect. See United States v. Boumelhem, 339
F.3d 414, 423 (6th Cir. 2003); People v. Villacrusis, 992
F.2d 886, 887 (9th Cir. 1993); United States v. Carter, 592
F.2d 402, 406 (7th Cir. 1979); United States v. Bates, 526
F.2d 966, 967 (5th Cir. 1976).
Gurr thus misstates the law in arguing that no case
suggests that Customs officials may seize something that
they do not know to be contraband. The distinction that
Gurr would draw between contraband and documentary evidence
of a crime is without legal basis. Cf. Warden, Md.
Penitentiary v. Hayden, 387 U.S. 294, 301 (1967). Following
Gurr’s reasoning, and contrary to Schoor, 597 F.2d at 1306,
Customs officials could not lawfully seize records of a
drug operation during a border search even if Customs had
been informed by the DEA that an arrested co-conspirator
had implicated the passenger. The Supreme Court has
suggested in analogous circumstances that the important
factor for a court to consider is whether the search was
conducted under proper authority, not the “underlying
intent or motivation of the officers involved.” Scott v.
United States, 436 U.S. 128, 138 (1978); see United States
v. Robinson, 414 U.S. 218, 236 (1973); see also Boumelhem,
339 F.3d at 423; Bates, 526 F.2d at 967; cf. United States
v. Villamonte-Marquez, 462 U.S. 579, 584 n. 3 (1983); 1
WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE
FOURTH AMENDMENT § 1.8(b), at 261-62 (4th ed. 2004).
Additionally, Gurr misstates the trial record in asserting
that Customs officials “had no idea of the significance of
the documents they were looking at” because the documents
consisted only of “plain old account numbers with monetary
amounts next to them.” Appellant’s Br. at 13. Customs
officials testified that they knew that the charges pending
against Gurr involved a fraud allegedly committed against a
federal credit union in American Samoa. The two Customs
officials conducting the luggage search had been personally
involved in placing Gurr under arrest. U.S. Customs Special
Agent Douglas S. Palmer testified that, as a result, their
suspicions were heightened, giving them every reason to
search Gurr’s luggage and notice the financial documents,
and that it was a Customs agent who first realized the
significance of the financial documents. That agent,
Ferdinand Jose, a senior Customs inspector, testified that
the FBI agents did not see any of the documents as he took
them out of the suitcase and that it was only after he
determined their relevance, reported his findings, and
turned over the documents to Palmer that it was determined
to retain them. Moreover, the documents seized from Gurr’s
luggage were clearly identifiable as relevant. For example,
one of the documents is labeled at the top, “ASG EMPLOYEES
FEDERAL CREDIT UNION WITHDRAWAL VOUCHER,” and shows a
transaction for $5000 cash; another is labeled “JOURNAL
VOUCHER: American Samoa Government Employees Federal Credit
Union” and shows a transaction for $1000 cash.
For these reasons, it is apparent that the Customs
officials conducted a permissible border search and
lawfully seized the documents. The district court’s finding
that there was “some evidence” of FBI involvement in the
search, as a result of an FBI request to Customs to retain
the financial documents, does not require a different
conclusion and we need not address the government’s
argument based on inevitable discovery, see Nix v.
Williams, 467 U.S. 431 (1984), and its progeny, upon which
the district court relied. See United States v. Davis, 181
F.3d 147, 149 (D.C. Cir. 1999).
Moreover, even if we had doubt about the lawfulness of
Customs’ seizure of Gurr’s luggage and assumed, as Gurr
maintains, that the superseding indictment sprang from the
seizure of the documents found therein, Gurr fails to
explain how the financial documents seized at the Honolulu
airport affected his convictions on any of the counts in
the indictment. On appeal, the government explains that
most of the documentary evidence critical to its case was
obtained during the course of the NCUA investigation,
either from the credit union or the NCUA Texas storage
facility, independent of the Honolulu documents. Further,
witnesses testified regarding the same information as
appeared in the Honolulu documents. For example, as to the
Honolulu documents relevant to Counts 6 through 12
involving Gurr’s defrauding of Faataumalama Felti, Felti
testified that Gurr had told him to sign a receipt for
money from his credit union account that he never received.
This testimony was bolstered by the introduction of credit
union records regarding the suspect transactions.
Additional counts that Gurr identifies in his reply brief
as having been proved by the Honolulu documents are
similarly supported by other record evidence. Hence, any
error in admitting the seized financial documents was
harmless beyond a reasonable doubt and a new trial is not
required. See Chapman v. California, 386 U.S. 18, 24
(1967).
III.
Gurr also contends that the district court erred in
overruling his hearsay objection to the admission of
Exhibit PS 41, the NCUA Order of Conservatorship and
Confidential Statement of Grounds for Conservatorship (“the
report”). Because the report, which was hearsay, was based,
in part, on the NCUA Problem Case Officer’s interviews of
credit union employees, Gurr maintains that it contained
compound hearsay statements by his accusers. From this he
concludes that the report was testimonial and its admission
violated his rights under the Confrontation Clause, citing
Crawford v. Washington, 541 U.S. 36 (2004), and Davis v.
Washington, 126 S. Ct. 2266 (2006). Specifically, Gurr
maintains that the report was “testimonial” because in
Davis, the Supreme Court concluded that a domestic battery
victim’s written statements in an affidavit given to the
police at a crime scene were “testimonial” and therefore
subject to the Confrontation Clause.
In addressing Gurr’s hearsay objection, the district court
noted that the report appeared to meet the requirements of
a business record under FED.R.EVID. 803(6) and that because
the preparer of the report was testifying and would be
subject to cross-examination, the only remaining question
was whether the report contained references to statements
by witnesses who would not be testifying at trial. In this
regard, the district court observed that page 5 of the
Confidential Statement of Grounds for Conservatorship
included statements that “information was received from an
employee” regarding one of the credit union family accounts
and that two former employees had “made allegations . . .
about improprieties on the part of current management” that
had not been confirmed. The district court initially ruled
that the report was inadmissible because of the prejudicial
statements by witnesses who were unavailable for the
defense to cross-examine. The prosecutor subsequently
advised the district court that the sources of the double
hearsay would be testifying at trial. The district court
then ruled that the report was admissible, noting that the
statement concerning the allegations by two former
employees was in the nature of minutes, and that upon
applying FED. R. EVID. 403, the probative value of the
report outweighed any prejudice to Gurr. The district court
further indicated that it would redact the compound hearsay
statements that appear on page 5 of the report. Our review
of the district court’s admission of the report is for
abuse of discretion. See United States v. Kim, 595 F.2d
755, 763 n. 38 (D.C. Cir. 1979).
To the extent that the report was a statement “other than
one made by the declarant while testifying at the trial . .
. offered in evidence to prove the truth of the matter
asserted,” FED. R. EVID. 801(c), it was hearsay, and to be
admissible it must fall within one of the exceptions to the
hearsay rule, see FED. R. EVID. 802. The business records
exception to the hearsay rule provides for the admission of:
A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if
it was the regular practice of that business activity to
make the memorandum, report, record, or data compilation,
all as shown by the testimony of the custodian or other
qualified witness, unless the information or method or
circumstances of preparation indicate lack of
trustworthiness.
FED. R. EVID. 803(6). The hearsay in records of regularly
conducted activity is admissible “only if it was reported
to the maker [of the report] directly or through others, by
one who is himself acting in the regular course of
business, and who has personal knowledge.” United States v.
Smith, 521 F.2d 957, 964 (D.C. Cir. 1975).
“Double hearsay exists when a business record is prepared
by one employee from information supplied by another
employee.” United States v. Baker, 693 F.2d 183, 188 (D.C.
Cir. 1982); see FED. R. EVID. 805. It is excepted from the
hearsay rule provided “both the source and the recorder of
the information, as well as every other participant in the
chain producing the record, are acting in the regular course
of business,” Baker, 693 F.2d at 188. Because the
regularity of making the record is evidence of its
accuracy, statements by “outsiders” are not admissible for
their truth under FED. R. EVID. 803(6), see Baker, 693 F.2d
at 188 (citing United States v. Davis, 571 F.2d 1354 (5th
Cir. 1978); 4 DAVID W. LOUISELL & CHRISTOPHER B. MUELLER,
FEDERAL EVIDENCE, § 448 (1980); MCCORMICK ON
EVIDENCE § 310, at 725-26 (2d ed. 1972); 4 JACK B.
WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S EVIDENCE
§ 803(6)[04] (1981)), in the absence of a showing
that the outsider had a duty to report the information, see
United States v. Bortnovsky, 879 F.2d 30, 34 (2d Cir.
1989), or that it was standard practice for the preparer to
verify information from outside sources, see United States
v. Patrick, 959 F.2d 991, 1001 (D.C. Cir. 1992).
On appeal, Gurr does not challenge the district court’s
factual findings that, as Steiger, the preparer of the
report, testified, it was the regular practice of the NCUA
to create these reports in order to place credit unions
into conservatorship, and that it was a normal part of his
job to prepare the Confidential Statement of Grounds for
Conservatorship, which he did in this case.[fn3] Gurr offers
nothing to suggest a lack of trustworthiness as to
Steiger’s recording of his opinions, diagnoses, and
observations. See United States v. Frazier, 53 F.3d 1105,
110910 (10th Cir. 1995) (citing 4 CHRISTOPHER B. MUELLER &
LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 450, at
534-36 (2d ed. 1994)); cf. United States v. Garland, 991
F.2d 328, 33435 (6th Cir. 1993). Instead, Gurr contends
that the district court erred in admitting the report for
three reasons.
First, Gurr maintains that the report was hearsay admitted
in violation of FED. R. EVID. 802. However, most of the
report appears to be admissible as Steiger’s
course-of-business observations under the exception of FED.
R. EVID. 803(6). Gurr has not pointed to anything in the
record suggesting otherwise.
Second, Gurr maintains that specific statements within the
report were inadmissible double hearsay. Of the five
potentially problematic paragraphs on page 5 of the report,
Gurr points to only two of them in his brief. Those
paragraphs state that “a former employee provided
information demonstrating that the manager’s list of his
immediate family members’ accounts was incomplete” and that
“information was received from an employee indicating
another family account.” However, Gurr’s counsel published
them to the jury, explaining on appeal that he did so in
order to impeach the integrity of the report. Two other
paragraphs on page 5 include similar statements. One
paragraph states that “[f]our former employees and two
former directors have allegedly committed fraud.” Again,
Gurr’s counsel published this paragraph during his
cross-examination of Steiger. Gurr may not now object to
evidence that he himself submitted at trial. The other
paragraph states that “two former employees . . . made
allegations . . . about improprieties on the part of the
current management” that could not be verified. The
district court ruled that this paragraph was admissible
only as minutes of Steiger’s investigation, and not to
prove the truth of the allegations against Gurr; hence, it
poses no hearsay problem. See FED. R. EVID. 801. The double
hearsay in the remaining paragraph was an employee’s
statement that she had been told by a credit union board
member “to stand behind current management or look for a
new job.” Admission of this statement, as well as the other
double hearsay, was harmless error because the witnesses
testified at the trial and were subject to
cross-examination. See FED. R. CRIM. P. 52(a); Kotteakos v.
United States, 328 U.S. 750, 765 (1946).
Third, Gurr maintains that the admission of the double
hearsay violated his rights under the Confrontation Clause,
which provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. CONST. amend. VI. Because
Gurr published some of the double hearsay to the jury and
because Steiger, employees (including former employees), and
account holders testified at trial and were subject to
cross-examination, Gurr’s Confrontation Clause contention
fails. See United States v. Powell, 334 F.3d 42, 45-46
(D.C. Cir. 2003). Even if we were to assume that there had
been such a violation, any error in admitting the report
was harmless. See Chapman, 386 U.S. at 22-23; Baker, 693
F.2d at 189; FED. R. CRIM. P. 52(a). The NCUA examiners
were available for cross-examination and they testified
regarding the reasons for their conclusions that
conservatorship was necessary. There was abundant evidence,
including documentary evidence, independent of the report
relating to the matters it discussed. Defrauded credit union
account holders as well as present and former credit union
employees testified and were available for
cross-examination. A comparison of the report and the trial
record reveals that the government’s witnesses testified
regarding its key areas of discussion: insolvency,
unprofitability, increasing delinquency, non-amortizing
loans, liquidity/asset liability management, weak
management, and fraud/internal controls.
IV.
Gurr also challenges the sufficiency of the evidence of
embezzlement in Count 18[fn4] and corrupt persuasion of a
witness in Count 20.[fn5]
Viewing the evidence most favorably to the government, as
we must, see United States v. Wahl, 290 F.3d 370, 375 (D.C.
Cir. 2002), there was sufficient evidence that Gurr
embezzled money from credit union member Francis Stowers.
Embezzlement is “the fraudulent appropriation of property
by a person to whom such property has been entrusted, or
into whose hands it has lawfully come.” United States v.
Holmes, 611 F.2d 329, 331 (10th Cir. 1979) (quoting Moore
v. United States, 160 U.S. 268, 269 (1895)). The evidence
showed that Stowers, at Gurr’s direction, signed a blank
voucher; that Gurr told Stowers to return to the credit
union the following day to collect his money; that Gurr gave
the voucher to the credit union teller and told her to
withdraw $5,000 from Stowers’ account, which she did,
giving the money to Gurr; and that Stowers returned the
next day but never received his money. The jury could have
reasonably concluded that Gurr embezzled or misapplied
credit union funds when he (1) instructed a teller to
withdraw the cash meant as a home improvement loan for
Stowers; (2) took the money from the teller; and (3) never
gave the money to Stowers. As the government maintains, a
fair inference can be drawn that Gurr fraudulently converted
property entrusted to him and used it for his own purposes.
Similarly, there was sufficient evidence of witness
tampering. The evidence showed that after Gurr was
arrested, he and another credit union employee (Fiapapalagi
Eteuati) attempted to corruptly persuade a witness (Grace
Uigalelei) to sign an affidavit falsely stating that she
had authorized money to be transferred from her account.
Gurr contends that this is insufficient to establish the
allegation in the indictment because there was no evidence
of cooperation between Gurr and the other credit union
employee and no evidence that the witness was intimidated
or threatened. However, Gurr was not charged with
intimidating or threatening Uigalelei, and the jury could
reasonably find that Gurr, with the assistance of Eteuati,
attempted to “corruptly persuade[]” Uigalelei in order to
influence her testimony by having her sign a false
affidavit. See, e.g., United States v. Sanders, 421 F.3d
1044, 1051 (9th Cir. 2005); United States v. LaShay, 417
F.3d 715, 718 (7th Cir. 2005);United States v.
Cruzado-Laureano, 404 F.3d 479, 487 (1st Cir. 2005); United
States v. LaFontaine, 210 F.3d 125, 13233 (2d Cir. 2000).
V.
Finally, Gurr contends that the district court lacked
jurisdiction and that venue was improper. He first raised
these defenses nearly two years after his conviction (but
before sentencing).
Gurr’s objection is that only the courts of American Samoa
had jurisdiction because that is where the crimes occurred.
See U.S. CONST. art. III, § 2, cl. 3; 28 U.S.C.
§§ 81-144; FED. R. CRIM.P. 18. Contrary to
Gurr’s contentions, U.S. Code Title 18 applies in American
Samoa regardless of whether the Secretary of the Department
of the Interior has said so explicitly, see 18 U.S.C.
§ 5, and American Samoan courts do not have
jurisdiction of violations of Title 18, see id. §
3231. Rather, the district courts of the United States have
exclusive, original jurisdiction of all offenses against
the laws of the United States. See id.
Gurr’s objection to venue is also meritless. Although Gurr
last resided in American Samoa and was arrested in Hawaii
after voluntarily entering the United States, because he
was not arrested or “first brought” into the United States
until after he had been indicted in the District of
Columbia, venue was proper in the District of Columbia. See
18 U.S.C. § 3238;[fn6] United States v. Catino, 735
F.2d 718, 724 (2d Cir. 1984); United States v. Hsin-Yung,
97 F. Supp. 2d 24, 28 (D.D.C. 2000); 2 CHARLES ALAN WRIGHT,
FEDERAL PRACTICE & PROCEDURE § 304 (3d ed. 2000)
(citing United States v. Hilger, 867 F.2d 566, 568 (9th
Cir. 1989); United States v. Layton, 855 F.2d 1388, 1410-11
(9th Cir. 1988), overruled by Guam v. Ignacio, 10 F.3d 608,
612 n. 2 (9th Cir. 1993)).
Accordingly, we affirm the judgment of conviction.
[fn1] Section 1582 authorizes the Secretary of the Treasury
to issue regulations “for the search of persons and baggage
. . . coming into the United States from foreign
countries.” 19 U.S.C. § 1582. Pursuant to that
authority, the Secretary’s regulations provide, in relevant
part:
All persons, baggage, and merchandise arriving in the
Customs territory of the United States from places outside
thereof are liable to inspection and search by a Customs
officer . . . authorized to cause inspection, examination,
and search to be made under section 467, Tariff Act of
1930, as amended (19 U.S.C. § 1467), of persons,
baggage, or merchandise, even though such persons,
baggage, or merchandise were inspected, examined, [or]
searched . . . at another . . . place in the United States
or the Virgin Islands, if such action is deemed necessary
or appropriate.
19 C.F.R. § 162.6. “Customs territory of the United
States . . . includes the States, the District of Columbia,
and the Commonwealth of Puerto Rico.” Id. §
134.1(f); see also id. § 7.2.
[fn2] Under 19 U.S.C. § 482, a Customs officer is
authorized
to search any trunk or envelope, wherever found, in which
[the officer] . . . may have a reasonable cause to suspect
there is merchandise which was imported contrary to law;
and if any such officer . . . shall find any merchandise .
. . he shall seize and secure the same for trial.
[fn3] Gurr’s claim that the report was made in contemplation
of litigation and therefore was inadmissible under FED. R.
EVID. 803(6), see Palmer v. Hoffman, 318 U.S. 109, 113-14
(1943); Scheerer v. Hardee’s Food Systems, Inc., 92 F.3d
702, 706-07 (8th Cir. 1996), is raised for the first time
on appeal and he cannot show plain error, see United States
v. Thomas, 896 F.2d 589, 591 (D.C. Cir. 1990). The credit
union was in fact placed in conservatorship and the
preparer of the substantive part of the report, i.e., the
Confidential Statement of Grounds for Conservatorship,
testified at trial. Gurr’s further claim that factual
findings in public reports under FED. R. EVID. 803(8)(C)
are admissible only against the government in criminal cases
appears only in his reply brief and is therefore waived,
see United States v. Taylor, 339 F.3d 973, 977 (D.C. Cir.
2003); in any event, any error was harmless because the
preparer of the report and the persons upon whom he relied
testified and were subject to cross-examination at trial.
See United States v. Davis, 181 F.3d 147, 149-50 (D.C. Cir.
1999).
[fn4] Section 657 provides that it is a criminal offense for
any person who
being an officer, agent or employee of or connected in
any capacity with [an insured credit institution,] . . .
embezzles, abstracts, purloins or willfully misapplies . .
. [funds of that institution] . . . or [funds] pledged or
otherwise entrusted to its care.
18 U.S.C. § 657.
[fn5] Section 1512(b) provides that it is a criminal offense
to
corruptly persuade[] another person, or attempt[] to do
so, or engage[] in misleading conduct toward another
person, with intent to . . . influence, delay, or prevent
the testimony of any person in an official proceeding . .
. [or] hinder, delay, or prevent the communication to a
law enforcement officer or judge of the United States of
information relating to the commission or possible
commission of a federal offense.
18 U.S.C. § 1512(b).
[fn6] Section 3238 provides:
The trial of all offenses begun or committed upon the
high seas, or elsewhere out of the jurisdiction of any
particular State or district, shall be in the district in
which the offender, or any one of two or more joint
offenders, is arrested or is first brought; but if such
offender or offenders are not so arrested or brought into
any district, an indictment or information may be filed in
the district of the last known residence of the offender
or of any one or two or more joint offenders, or if no
such residence is known the indictment or information
may be filed in the District of Columbia.
18 U.S.C. § 3238.