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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13315
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20741-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DMITRY O. SEREGIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 5, 2014)
Before WILSON, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Dmitry Seregin appeals his conviction under 8 U.S.C. § 1001(a)(2) for
making a false statement on U.S. Customs and Border Protection (CBP) Form
6059B (declaration form) when he failed to declare that he was bringing firearms
parts into the United States. Seregin challenges the sufficiency of the evidence, as
well as several evidentiary rulings. After review, we affirm.
I.
On March 26, 2012, Seregin was returning to Miami from a trip to Russia.
In his luggage he was bringing back 119 firearms parts to add to his gun collection
in the United States. Before landing Seregin received a customs declaration form.
On the form, Seregin left blank question 15, which asked:
Residents – the total value of all goods, including commercial
merchandise I/we have purchased or acquired abroad, (including gifts
for someone else, but not items mailed to the U.S.) and am/are
bringing to the U.S. is: __________
At the Miami Airport, Seregin was inspected by a CBP officer who
discovered the 119 firearms parts. The CBP officer then took Seregin to a private
room for further inspection and questioning. At this point the CBP officers also
discovered that Seregin was carrying $9,998 in currency, which was $2 under the
$10,000 limit noted on the declaration form. The CBP officers returned the
currency to Seregin, but seized the firearms parts. Seregin was later charged in a
two-count indictment with smuggling goods into the United States, in violation of
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18 U.S.C. § 545, and making a fraudulent statement to the U.S. Department of
Homeland Security, in violation of 18 U.S.C. § 1001(a)(2).
Seregin pleaded not guilty. At trial, in addition to evidence of the seizure at
the Miami airport, the government presented evidence, over Seregin’s objection,
about another encounter he had had with CBP. During his airport interview with
the CBP officers, one of the agents noticed that Seregin had a “lookout” in the
CBP computer system. A lookout means that a person has had a previous
encounter with CBP. Seregin’s previous encounter occurred when he attempted to
mail a gun part to Russia two months before he was stopped at the airport. Seregin
misrepresented the contents of the package on the postal form, saying it was an
“airsoft stock” valued at $150, when it was a rifle stock for which he had paid
$650. On March 7, 2012—a few weeks before Seregin’s return flight from
Moscow—the CBP sent Seregin a letter notifying him that they had seized the
package. The letter said that the shipment was not registered and did not have a
Department of State license for exportation, as was required for arms and
munitions articles of war. In contrast to Seregin’s description on the postal form,
the letter described the gun part as a rifle stock and valued it at $1,100.
Seregin chose to testify at trial, explaining that he was born in Russia and is
a naturalized citizen of the United States. He said that he works in real estate and
exports cars. As a hobby, Seregin collects items from World War II, including
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firearms. In Florida, where he lives, he has around 70 guns, mostly antiques.
Seregin regularly travels internationally, including eleven international flights and
more than 30 trips on his boat.
In his defense, Seregin testified that he bought the firearms parts while he
was still living in Russia in the 1990s, just after the Soviet Union disintegrated.
All together he said he paid about $100 for them. When he first came to the
United States, he left these parts in his mother’s apartment in Russia. Prior to his
2012 trip to Russia, he claims he had never brought any firearms parts with him to
the United States. He testified that he thought question 15 on the declaration form
was asking only for the value of any commercial goods or anything he bought on
his overseas trip. Because he had not purchased the firearms parts on his recent
trip, Seregin said he did not declare them.
The jury found Seregin not guilty of smuggling goods, but guilty of falsely
stating on the customs declaration form that he was not traveling to the United
States with any goods of value when he was in fact traveling with the 119 firearms
parts. After moving unsuccessfully for a judgment of acquittal or a new trial,
Seregin filed this appeal.
II.
A.
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Seregin first challenges the sufficiency of the evidence to support his
conviction. We review de novo the denial of a challenge to the sufficiency of the
evidence. United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011). In
considering a preserved sufficiency argument, we view the evidence in the light
most favorable to the government, and interpret all inferences and credibility
choices by the jury in a manner that supports the verdict. United States v.
Williams, 390 F.3d 1319, 1323 (11th Cir. 2004). A jury is free to choose among
reasonable interpretations of the evidence and we will affirm a conviction so long
as a reasonable jury could have found the defendant guilty beyond a reasonable
doubt. Id. at 1323–24.
Federal law prohibits a person from “knowingly and willfully . . . mak[ing]
any materially false, fictitious, or fraudulent statement or representation” with
respect to any matter within the jurisdiction of the government of the United
States. 18 U.S.C. § 1001(a)(2). A conviction under § 1001(a)(2) requires proof of
five elements: (1) a statement, (2) falsity, (3) materiality, (4) specific intent to
mislead, and (5) agency jurisdiction. United States v. Boffil-Rivera, 607 F.3d 736,
740 (11th Cir. 2010).
Seregin challenges whether there was sufficient evidence as to the fourth
element: whether he had the specific intent to mislead. The specific intent
required by § 1001 is the “intent to deceive by making a false or fraudulent
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statement.” United States v. Dothard, 666 F.2d 498, 503 (11th Cir. 1982); see also
United States v. Mills, 138 F.3d 928, 936 n.8 (11th Cir. 1998) (explaining that
“[t]he jury just needed to find that [the defendant] knew the statements were false
when she wrote them and that she meant to write them down” to convict her under
§ 1001).
Drawing all inferences in the government’s favor, the evidence was
sufficient for a reasonable juror to find that Seregin intentionally omitted the
firearms parts on his declaration form. A reasonable juror could have concluded
based on the plain language of the form that a traveler would understand that he
had to declare firearms parts worth hundreds of dollars acquired abroad. Question
15 specifically asks for the “value of all goods . . . acquired abroad.” Seregin also
signed the form under the bold, all-caps statement: “I have read the important
information on the reverse side of this form and have made a truthful declaration.”
On the reverse side of the form, directly under the title “Important Information,” it
says “U.S. Residents – Declare all articles that you have acquired abroad and are
bringing into the United States.”
The jury’s verdict was further supported by Seregin’s international travel
experience and the fact that he exports cars for a living. Seregin’s sophisticated
understanding of question 13 on the declaration form—as evidenced by his
admission that he intentionally carried $9,998 to avoid triggering the $10,000
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threshold—could also lead a reasonable juror to infer that Seregin possessed a
basic understanding of the declaration form’s requirements. Finally, although
Seregin testified that he misunderstood the form, the jury was entitled to find that
he was not credible, and in fact could have used Seregin’s testimony as evidence of
his guilt. Williams, 390 F.3d at 1326 (“Where some corroborative evidence of
guilt exists for the charged offense . . . and the defendant takes the stand in her own
defense, the Defendant’s testimony, denying guilt, may establish, by itself,
elements of the offense.”).
For these reasons, we reject Seregin’s challenge to the sufficiency of the
evidence.
B.
On appeal Seregin raises an additional challenge to his conviction that he did
not raise below. Although we generally review de novo the denial of a motion for
judgment of acquittal, Gamory, 635 F.3d at 497, arguments not raised below are
reviewed for plain error, see United States v. Hurn, 368 F.3d 1359, 1368 (11th Cir.
2004). To establish plain error, a defendant must show (1) an error, (2) that is
plain, (3) that affects substantial rights, and (4) that seriously affects the fairness,
integrity, or public reputation of judicial proceedings. United States v. Olano, 507
U.S. 725, 732–37, 113 S. Ct. 1770, 1776–79 (1993).
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Seregin argues that because the value of the firearms parts in Russia was less
than $800, he was permitted to make, and did make, an oral declaration under
19 C.F.R. § 148.12(b)(1)(i)(A), instead of a written declaration. This regulation
permits arriving U.S. residents to make an oral declaration “if [t]he aggregate fair
retail value in the country of acquisition of all accompanying articles acquired
abroad by him . . . does not exceed $800.” 19 C.F.R. § 148.12(b)(1)(i)(A). As
evidence of his oral declaration, Seregin points to (1) his answers to the CBP’s
questions that the bag was his, that he packed the bag, and that the firearms parts
were his, and (2) his estimation that the parts would be worth between $400 and
$500 in the United States, which was made in response to questions asked by the
third federal agent he spoke to at the airport.
Our review of the record shows no error, because Seregin did not make an
oral declaration. Neither the regulation, nor the parties, provide any clear authority
for how an oral declaration must be made under this regulation. But we need not
decide the limits of what the regulation allows, because it is clear on the facts of
this case that Seregin did not make one. Seregin did not declare the firearms parts
at immigration or when he first met a CBP officer. And although he responded to
questions about whether the bag and the firearms parts belonged to him, it is a
stretch to call that a declaration, especially when he did not provide his valuation
estimate that he relies on until he was speaking to a third federal agent in customs.
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Seregin’s lack of a timely, affirmative oral statement contrasts with the case he
relies on in which the defendant’s unrebutted testimony was that he “told the
Customs official that he had ‘alcohol and tobacco products’ to declare.” United
States v. 100 Cuban Cigars, 35 F. Supp. 2d 405, 408 (E.D. Pa. 1999).
Because Seregin has not made a showing of plain error, this challenge to his
conviction fails.
III.
Seregin also challenges a number of evidentiary rulings. We review a
district court’s evidentiary rulings, including its admission of prior crimes or bad
acts under Rule 404(b), for abuse of discretion. United States v. Ellisor, 522 F.3d
1255, 1267 (11th Cir. 2008). Even if an evidentiary ruling constitutes an abuse of
discretion, however, we will not reverse if the error was harmless. United States v.
Bradley, 644 F.3d 1213, 1270 (11th Cir. 2011). A “nonconstitutional error will be
harmless unless the court concludes from the record as a whole that the error may
have had a ‘substantial influence’ on the outcome of the proceeding.” Id.
(quotation marks omitted). The exclusion of relevant evidence under Rule 403 is
an extraordinary remedy that “should be applied sparingly.” United States v. Cole,
755 F.2d 748, 766 (11th Cir. 1985). The “major function [of Rule 403] is limited
to excluding matter of scant or cumulative probative force, dragged in by the heels
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for the sake of its prejudicial effect.” United States v. McRae, 593 F.2d 700, 707
(5th Cir. 1979).1
A.
Rule 404(b) of the Federal Rules of Evidence provides that evidence of a
wrong or act beyond the charged offense may be admissible to prove, in part,
intent, knowledge, absence of mistake, or lack of accident. In order to admit
evidence under Rule 404(b), three conditions must be met: (1) the evidence must
be relevant to an issue other than the defendant’s character; (2) the evidence must
be sufficient for a jury to find the defendant committed the extrinsic act; and (3)
the probative value of the evidence must not be substantially outweighed by its
undue prejudice. United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007);
see also Fed. R. Evid. 403.
Seregin first challenges the district court’s admission of evidence regarding
the CBP’s seizure of the gun part Seregin attempted to mail to Russia two months
before he was stopped at the Miami Airport. We reject his argument and conclude
that the three conditions of Rule 404(b) were met in this case. First, Seregin’s
main defense was that he made a mistake and did not know he had to declare the
firearms parts. As a result, Seregin’s knowledge of customs rules, particularly
1
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding
precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at
1209.
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regarding firearms parts, was relevant to whether his defense was credible. Fed. R.
Evid. 404(b)(2); see also United States v. Satterfield, 644 F.2d 1092, 1094 (5th Cir.
1981) (finding evidence that defendant had previously attempted to enter the
United States with unreported currency was permissible under Rule 404(b) because
it “was relevant to show that [he] knew of the reporting requirement and intended
to violate the statute by failing to report currency in his possession in excess of
$5000”). Second, Seregin’s testimony and the CBP documents admitted at trial are
sufficient to establish that the act occurred.
Third, the record does not show that the probative value of this evidence
outweighed its prejudice. The two occurrences were similar in that they both
involved moving firearms parts between Russia and the United States, and they
occurred very close in time. Edouard, 485 F.3d at 1345 (noting in balancing the
probative value against potential unfair prejudice that the “[f]actors to be
considered include whether it appeared at the commencement of trial that the
defendant would contest the issue of intent, the overall similarity of the charged
and extrinsic offenses, and the temporal proximity between the charged and
extrinsic offenses.”).2 Given that Seregin’s knowledge, intent, and lack of mistake
2
The similarities between Seregin’s two acts differentiates this case from United States v. Mills,
138 F.3d 928 (11th Cir. 1998), on which he relies. In Mills, one of the defendants was alleged to
have falsified passenger manifests for a corporate plane to hide the fact that she was using it for
personal use. Id. at 934. This Court found error in the admission of other evidence showing that
on another occasion this defendant had falsified a customs declaration to conceal jewelry she
purchased abroad. Id. at 935–36. We found that the differences between concealing a jewelry
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were contested, the government’s need for this evidence was also great and
weighed in favor of admission. United States v. Delgado, 56 F.3d 1357, 1366
(11th Cir. 1995) (“[T]he greater the government’s need for evidence of intent, the
more likely that the probative value will outweigh any possible prejudice.”
(citation omitted)). Because the record shows the three factors of Rule 404(b)
favored admission, we find no abuse of discretion in admitting this evidence.
Next, Seregin challenges the district court’s admission of testimony that
there was a “lookout” on Seregin in the CBP system. At trial the agent explained
that a “lookout” simply meant that a person had interacted with CBP for some
reason in the past and that Seregin’s lookout stemmed from the January 2012 rifle
stock seizure. For the reasons above, this testimony also satisfies the Rule 404(b)
requirements. Beyond that, Seregin did not show how this testimony was unduly
prejudicial, particularly in light of the fact that he was acquitted of the separate,
more serious charge of smuggling firearms. See Mills, 138 F.3d at 936 (“[T]he
jury’s not-guilty verdict on most of the falsification counts against [the defendant]
implies that the jury’s consideration was not tainted by evidence of the customs
incident, or any inference from the incident that [the defendant] was a liar.”).
purchase on her customs form and falsifying passenger manifests were “simply too great to make
the customs incident relevant to [her] intent.” Id. at 936. As a result, the only inference to be
gained from the evidence was that the she was “disposed to lie to the government. . . because of
[her] character.” Id.
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Finally, the record contradicts Seregin’s assertion that the district court
allowed the agent to testify that he lied to officers during his interview with them at
the airport. Although the agent twice said Seregin was “untruthful” at some points
in the interview, Seregin objected to these statements and the district court
immediately sustained the objections. See United States v. House, 684 F.3d 1173,
1208 (11th Cir. 2012) (“[B]ecause the district court sustained [the defendant’s]
objection to the prosecutor’s question immediately after making the comment at
issue, it is unlikely that the jury perceived the comment as an endorsement of the
government’s position.”). Seregin did not request any curative instruction and
none was given. Even if there was any error in the failure to give a curative
instruction, it was harmless as these two stray remarks did not have a “substantial
influence” on the outcome of the trial. Bradley, 644 F.3d at 1270. There was a
great deal of testimony about the interview both from the federal agents and
Seregin himself, such that the jury, which acquitted him of the smuggling charge,
could draw its own conclusions about whether Seregin was being truthful. See
Mills, 138 F.3d at 936.
In sum, the district court did not abuse its discretion in allowing the evidence
Seregin challenges as impermissible character evidence.
B.
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Seregin also argues that the district court admitted hearsay evidence in
violation of his Confrontation Clause rights under the Sixth Amendment when it
admitted a U.S. Postal Service form entitled “Custody Receipt for Seized Property
and Evidence” that contained an unidentified handwritten rifle stock valuation.
The admission of permissible hearsay violates the Confrontation Clause if the
statement was “testimonial.” Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct.
1354, 1374 (2004). We review de novo whether a statement was testimonial.
United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010).
Testimonial statements are ones that a declarant “would reasonably expect to
be used prosecutorially.” United States v. Charles, 722 F.3d 1319, 1322 (11th Cir.
2013) (quotation marks and alterations omitted). In assessing whether a statement
is testimonial in nature, we look “only at the primary purpose” of the questions that
elicited the statement. Caraballo, 595 F.3d at 1229 (finding no Confrontation
Clause violation created by biographical information recorded on an immigration
form because it was a business record maintained for the purpose of tracking the
entry of aliens, not for future prosecution). While the Supreme Court has not
defined what a “testimonial statement” is, it has explained that business and public
records are generally admissible absent confrontation “because—having been
created for the administration of an entity’s affairs and not for the purpose of
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establishing or proving some fact at trial—they are not testimonial.” Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 324, 129 S. Ct. 2527, 2539–40 (2009).
Here, the custody receipt containing a valuation of the seized gun part is
permissible hearsay that is not testimonial, and therefore its admission did not
violate the Confrontation Clause. The receipt qualified as a public record under
Fed. R. Evid. 803(8). As shown by the testimony of the record’s custodian, the
document, which is maintained in the normal course of CBP business, is a receipt
“from one officer to another” of the property that was confiscated and in CBP’s
custody. Further, the custody receipt is not testimonial because its primary
purpose is to document the seizure, identify the items seized, and the chain of
custody of seized items. See Caraballo, 595 F.3d at 1229. As a result, the district
court did not err in admitting this record.3
C.
Lastly, we address Seregin’s argument that even if none of his individual
claims of evidentiary error warrant reversal, when viewed together they resulted in
an unfair trial. Because we have found no error individually, there can be no
3
We also note that Seregin testified that he paid $650 for the rifle stock, significantly more than
the $150 valuation he reported on the postal form, and that he admitted that the $150 valuation
was “not true and [he] paid more for it.” The evidence therefore established that he undervalued
the item regardless of whether the custody receipt’s $1,100 estimate was accurate, suggesting
that even if it was error to admit this evidence, it was harmless beyond a reasonable doubt. See
Caraballo, 595 F.3d at 1229 n.1.
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cumulative error. Gamory, 635 F.3d at 497 (“Where there is no error or only a
single error, there can be no cumulative error.”).
V.
The evidence at trial was sufficient to support the jury’s verdict and the
evidentiary issues do not support reversal individually or cumulatively. We
therefore AFFIRM.
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