FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-50962
Plaintiff-Appellee,
v. D.C. No.
CR-05-00159-PA
MAHER HAMDAN ABBOUCHI,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
October 18, 2006—Pasadena, California
Filed July 13, 2007
Before: Harry Pregerson, Ronald M. Gould, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Pregerson
8437
8440 UNITED STATES v. ABBOUCHI
COUNSEL
Gail Ivens, Acting Federal Public Defender, Los Angeles,
California, for the defendant-appellant.
Douglas M. Fuchs, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.
OPINION
PREGERSON, Circuit Judge:
In this case, we consider the contours of a customs offi-
cial’s border search authority at a regional sorting hub for
express consignment services like those offered by UPS. We
hold that customs inspections conducted at UPS’s regional
sorting hubs like the one at Louisville, Kentucky, take place
at the functional equivalent of the border.
Defendant-Appellant Maher Hamdan Abbouchi was con-
victed and sentenced for having committed four counts of
UNITED STATES v. ABBOUCHI 8441
transfer of false identification documents in violation of 18
U.S.C. § 1028(a)(2). The government brought criminal
charges against Abbouchi after U.S. Bureau of Customs and
Border Protection (“Customs”) officers who conducted ran-
dom customs inspections of cargo at the UPS sorting hub in
Louisville opened a package sent by Abbouchi to Lebanon.
The package contained counterfeit social security and resident
alien identification cards. The district court denied
Abbouchi’s motion to suppress this incriminating evidence,
and a jury found him guilty as charged.
Abbouchi timely appeals. He contends on appeal that the
contents of his UPS package were inadmissible in evidence
and should have been suppressed. He argues that the Customs
officers needed reasonable suspicion to open his UPS package
because the UPS hub at Louisville is not the functional equiv-
alent of the border, but rather is part of the “extended border.”
He also argues that social security cards are not “identifica-
tion documents” within the meaning of § 1028(a)(2). Finally,
Abbouchi challenges several aspects of the district court’s
supervised release conditions.
We have jurisdiction under 28 U.S.C. § 1291. We affirm
his convictions, but vacate his sentence and remand for resen-
tencing.
I. FACTS AND PROCEDURAL BACKGROUND
UPS operates a regional sorting hub in Louisville, Ken-
tucky. UPS routes outbound international packages through
the Louisville hub, where employees sort packages by country
of destination. At these hubs, used by express consignment
services like UPS or FedEx, the federal government stations
Customs officers to inspect outbound international packages
that pass through these hubs. Customs officers open and
inspect packages, selected at random, to determine whether
they contain prohibited articles or contraband. After Customs
officers finish their inspections, UPS employees place the
8442 UNITED STATES v. ABBOUCHI
packages into sealed containers and load the containers onto
airplanes. The airplanes may depart for foreign airports or
first fly to another domestic hub before leaving the United
States.
On September 30, 2003, as part of an outbound interdiction
operation, Customs Officer Christopher Crace opened a ran-
domly selected package sent by Abbouchi from Diamond Bar,
California, and addressed to someone in Lebanon. Inside the
package was a sealed envelope containing two social security
cards and two permanent resident alien cards. Crace also
found a photocopy of a permanent resident alien card, hand-
written notes, and an identification booklet written in Arabic.
Crace notified his superior, and they determined that the pack-
age may contain fraudulent immigration documents. They for-
warded the package to the Immigration and Customs
Enforcement (“ICE”) office in Louisville for further investi-
gation.
The Louisville ICE office forwarded the package to the Los
Angeles ICE office on October 24, 2003. ICE Senior Special
Agent Christopher Laska used the UPS airbill to trace the ori-
gin of the package to the UPS Store in Diamond Bar, Califor-
nia. The store’s owner identified Abbouchi as the package’s
sender.
On January 21, 2004, Agent Paul Yokoyama from the
Office of the Inspector General for the Social Security
Administration interviewed Abbouchi. Abbouchi signed a
Miranda waiver and admitted mailing a UPS package to Leb-
anon. Abbouchi claimed the package contained his military
booklet and some other personal documents. Initially,
Abbouchi denied that he knowingly sent the social security
and permanent residency cards. Further investigation pro-
duced evidence that Abbouchi had on other occasions sent to
Lebanon fraudulent documents that the recipients could have
used to enter the United States illegally.
UNITED STATES v. ABBOUCHI 8443
On February 17, 2005, a grand jury returned an indictment
charging Abbouchi with four counts of transferring false iden-
tification documents in violation of 18 U.S.C. § 1028(a)(2),
and one count of making a false statement, in violation of 18
U.S.C. § 1001.
Before trial, Abbouchi filed a motion to suppress all evi-
dence derived from the search of his UPS package. At a sup-
pression hearing, Customs Officer Crace testified to Customs
inspection practices at regional sorting hubs. District Judge
Percy Anderson denied the motion to suppress.
The prosecution dropped the § 1001 false statement charge.
At the end of the government’s case-in-chief, Abbouchi
moved for a partial judgment of acquittal on the counts relat-
ing to the social security documents. The district court denied
the motion.
On September 29, 2005, the jury found Abbouchi guilty on
the four counts of transferring false identification documents.
The district court sentenced Abbouchi to sixteen months
imprisonment followed by three years of supervised release.
Among other things, the supervised release conditions
required Abbouchi to enter a domestic violence treatment pro-
gram. The conditions also required Abbouchi to report to his
probation officer within seventy-two hours of reentering the
country, and required Abbouchi to “answer truthfully all
inquiries by the probation officer. . . .” Abbouchi then brought
this appeal.
II. MOTION TO SUPPRESS
We begin our analysis by addressing Abbouchi’s primary
contention that the government violated his Fourth Amend-
ment rights because the Customs officers lacked sufficient
predicate, i.e., reasonable suspicion, to open and search his
UPS package. Abbouchi argues that the search of his UPS
package did not occur at the functional equivalent of the bor-
8444 UNITED STATES v. ABBOUCHI
der, but was an “extended” border search that required reason-
able suspicion. We disagree.1
[1] The border search doctrine is a narrow exception to the
Fourth Amendment’s usual requirement that searches be sup-
ported by a warrant approved by a magistrate and issued upon
a showing of probable cause. United States v. Sutter, 340 F.3d
1022, 1025 (9th Cir. 2003). Border searches are grounded on
the government’s right to protect the United States’ territorial
integrity by examining persons and property entering and
leaving the country, and “are reasonable simply by virtue of
the fact that they occur at the border.” United States v. Flores-
Montano, 541 U.S. 149, 152-53 (2004) (quoting United States
v. Ramsey, 431 U.S. 606, 616 (1977)); see also United States
v. Cortez-Rocha, 394 F.3d 1115, 1118-19, 1123 (9th Cir.
2005). As a consequence, most searches at the international
border need not be justified by a search warrant or by individ-
ualized suspicion. See Sutter, 340 F.3d at 1025. The border
search doctrine applies equally to searches of persons and
property exiting the United States as to those entering the
country. See United States v. Cardona, 769 F.2d 625, 629 (9th
Cir. 1985) (explaining that “the border search exception
applies to exit searches”).
[2] Despite its name, a border search need not take place at
the actual international border. See Almeida-Sanchez v.
United States, 413 U.S. 266, 272-73 (1973). These searches
may take place at the physical border or its “functional equiv-
alent.” Id.; see also Duncan, 693 F.2d at 977. This extension
of the border search doctrine reflects “[t]he practical difficulty
of getting to and searching every vehicle or carrier at the pre-
cise moment it crosses land or sea borders.” United States v.
Alfonso, 759 F.2d 728, 734 (9th Cir. 1985).
1
A district court’s ruling on the legality of a border search is reviewed
de novo. United States v. Ani, 138 F.3d 390, 391 (9th Cir. 1998). A district
court’s findings of fact are reviewed for clear error. United States v.
Mendoza-Ortiz, 262 F.3d 882, 885 (9th Cir. 2001).
UNITED STATES v. ABBOUCHI 8445
[3] We have also recognized another category of border
search: the extended border search. Extended border searches
are typically separated from the border by “a greater spatial
and temporal distance” from the actual border than searches
at the functional equivalent of the border. Cardona, 769 F.2d
at 628. Because “the delayed nature of an extended border
search . . . necessarily entails a greater level of intrusion on
legitimate expectations of privacy than an ordinary border
search,” the government must justify an extended border
search with reasonable suspicion that the search may uncover
contraband or evidence of criminal activity. See United States
v. Caicedo-Guarnizo, 723 F.2d 1420, 1422 (9th Cir. 1984)
[4] We have recognized that comparison of absolute time
and spatial differences alone is not enough to distinguish
between a search at the border’s functional equivalent and an
extended border search. Rather, we also look to whether the
search, as was true of Abbouchi’s package, occurred at the
last practicable opportunity before its passage over the inter-
national border. Thus, in Almeida-Sanchez, the Supreme
Court noted that “a search of the passengers and cargo of an
airplane arriving at a St. Louis airport after a nonstop flight
from Mexico City” would be at the functional equivalent of
the border. See 413 U.S. at 273. Similarly, in Duncan, we
held it would be “unreasonable” to require federal agents to
wait until a suspect boards his airplane to conduct a search.
See 693 F.2d at 977. Rather, it was enough that the defendant
had checked his luggage, obtained his boarding pass, passed
through security, and embarked on the ramp to his flight
because these acts “manifest[ed] a definite commitment to
leave the United States,” and the search occurred “in reason-
able temporal and spatial proximity to the departure.” See id.
[5] Applying these principles, we hold that the search of
Abbouchi’s UPS package at the Louisville hub took place at
the functional equivalent of the border. The Louisville sorting
hub represents the last practicable opportunity for Customs
officers to inspect international packages before UPS places
8446 UNITED STATES v. ABBOUCHI
them into sealed containers for departure from the United
States. Even if the airplanes briefly stop at another hub or air-
port to refuel or redistribute cargo before departing our coun-
try, it is unreasonable to require customs officials to wait until
that last domestic stop to unload the packages from the air-
plane, reopen the sealed containers, and conduct an inspection
before allowing the airplane to proceed to its international
destination. See id. Certainly, the search at the Louisville hub
represents no greater intrusion on Abbouchi’s privacy inter-
ests than a search at the last possible moment before the pack-
age’s departure from the United States.2
Finally, Abbouchi argues that under Cardona, the potential
length of time between a package’s inspection at the Louis-
ville hub and its departure from the United States rendered it
an extended border search. Cardona, however, is inapposite.
In that case, federal agents opened two FedEx packages
shortly after being placed on a truck for delivery, and long
before they arrived at a regional hub. Cardona, 769 F.2d at
627. It was only in that context that we held the 3,000 mile
distance and 24-hour time interval separating the search from
the packages’ passage over the international border compelled
us to treat it as an extended border search. See id. at 628-29.
By contrast, we deal here with a search at the last practicable
opportunity for inspection.
[6] In sum, we hold that Customs officers at the Louisville
UPS hub did not need reasonable suspicion to search the con-
tents of Abbouchi’s UPS package because the search took
2
Abbouchi argues that the government failed to develop the factual
record sufficiently to establish that this search took place at the functional
equivalent of the border. We disagree. Officer Crace’s testimony about
Customs practices at regional sorting hubs sufficed to establish that these
are the last practicable places where customs inspections may take place.
Even if further evidence had shown that the UPS airplane might also land
at another airport, there is simply no reason to believe that Customs would
inspect the airplane’s cargo a second time, or that it would be reasonable
to expect Customs to do so.
UNITED STATES v. ABBOUCHI 8447
place at the functional equivalent of the border.3 Conse-
quently, the district court’s denial of the motion to suppress
is affirmed.
III. MOTION FOR ACQUITTAL
Abbouchi next contends that he is entitled to acquittal as a
matter of law on the two counts predicated on his transfer of
fraudulent social security cards. He argues that social security
cards are not “identification documents” within the meaning
of 18 U.S.C. § 1028(a)(2). We disagree.4
[7] Section 1028(a)(2) provides criminal penalties for any-
one who “knowingly transfers an identification document . . .
or a false identification document knowing that such docu-
ment . . . was stolen or produced without lawful authority.”
3
Abbouchi also contends that customs inspectors lacked statutory
authority to conduct the search. This argument lacks merit. Customs
inspectors had statutory authority to conduct these border searches under
31 U.S.C. § 5317, a statute authorizing inspections to enforce a statute
prohibiting transport of undeclared high-value monetary instruments
across the border, see United States v. Gomez-Osorio, 957 F.2d 636, 643
(9th Cir. 1992), as well as under 19 U.S.C. § 1582, the general source of
Customs’s border search authority, cf. United States v. Taghizadeh, 41
F.3d 1263, 1266 (9th Cir. 1994) (en banc) (holding that § 1582 border
search authority for “persons and baggage” extends to international mail).
Customs also had inspection authority under 19 U.S.C. § 1581(a), which
authorizes searches of any person, trunk, package, or cargo loaded onto a
vessel or into a vehicle. It does not matter under which statute Customs
officers believed they were operating. See Whren v. United States, 517
U.S. 806, 813 (1996).
4
At the close of the government’s case-in-chief, the district court, acting
on the defendant’s motion, “must enter a judgment of acquittal of any
offense for which the evidence is insufficient to sustain a conviction.” Fed.
R. Crim. P. 29. A district court’s denial of a Rule 29 motion is reviewed
de novo. United States v. Johnson, 357 F.3d 980, 983 (9th Cir. 2004). We
review the evidence in the light most favorable to the government and ask
whether “any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Id. (quoting United States v.
Carranza, 289 F.3d 634, 641 (9th Cir. 2002)).
8448 UNITED STATES v. ABBOUCHI
18 U.S.C. § 1028(a)(2). An “identification document”
includes documents “made or issued by or under the authority
of the United States Government . . . which, when completed
with information concerning a particular individual, is of a
type intended or commonly accepted for the purpose of iden-
tification of individuals.” 18 U.S.C. § 1028(d)(3).
[8] In United States v. Quinteros, 769 F.2d 968 (4th Cir.
1985), the Fourth Circuit acknowledged that Congress did not
initially intend that social security cards be used for identifi-
cation. 769 F.2d at 970. Nevertheless, the Fourth Circuit
accepted the testimony of a Social Security Administration
expert that social security cards are commonly accepted as
identification. Id. Indeed, the expert for the Social Security
Administration testified that the Administration issues cards
to senior citizens for use as identification for cashing checks,
and that the Administration removed the “Not for Identifica-
tion Purposes” legend from these cards in 1972 to reflect their
emerging use as a form of identification. Id. The Fourth Cir-
cuit also cited legislative history for § 1028(a)(2) suggesting
that Congress contemplated the statute would cover social
security cards.5 See id.
[9] We find the Fourth Circuit’s reasoning persuasive.
Therefore, we hold that Social Security Administration Agent
Paul Yokoyama’s expert testimony in the instant case that
social security cards are commonly used for identification was
sufficient to establish this element of § 1028(a)(2). Accord-
ingly, we affirm the district court’s denial of Abbouchi’s
motion for acquittal on the two counts of transferring fraudu-
lent social security identification cards.
5
Congress has since amended § 1028(d)(3). See USA PATRIOT
Improvement and Reauthorization Act of 2005, Pub. L. 109-177 § 603(3),
120 Stat. 192, 253 (2006). Because the amendment came after Abbouchi
committed his offense, it is irrelevant to this appeal.
UNITED STATES v. ABBOUCHI 8449
IV. SUPERVISED RELEASE CONDITIONS
Abbouchi challenges several aspects of his supervised
release conditions. We remand for resentencing so that the
district court may re-sentence Abbouchi without the super-
vised release condition that Abbouchi participate in a domes-
tic violence treatment program.
A. Domestic Violence Treatment Condition
Abbouchi first challenges the supervised release condition
requiring him to participate in a domestic violence treatment
program. Because Abbouchi did not object to this condition
in the district court, we review for plain error. Fed. R. Crim.
P. 52(b); United States v. Jordan, 256 F.3d 922, 926 (9th Cir.
2001). The existence of plain error requires “(1) error, (2) that
is plain, and (3) that affects substantial rights. If all three con-
ditions are met, an appellate court may then exercise its dis-
cretion to [reverse for plain error], but only if (4) the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (quoting Johnson v. United States,
520 U.S. 461, 466-67 (1997)).
[10] Supervised release conditions must be reasonably
related to the state’s interest in promoting deterrence, public
protection, and rehabilitation of the offender. 18 U.S.C.
§ 3583(d)(1); United States v. T.M., 330 F.3d 1235, 1239-40
(9th Cir. 2003). The conditions must also “involve[ ] no
greater deprivation of liberty than is reasonably necessary for
the purposes [of deterrence, public protection, and rehabilita-
tion].” 18 U.S.C. § 3583(d)(2). The conditions must also be
consistent with the Sentencing Commission’s policies. 18
U.S.C. § 3583(d)(3). The justification for imposition of a non-
standard probation condition must be supported by the record.
See United States v. Napier, 463 F.3d 1040, 1044-45 (9th Cir.
2006).
8450 UNITED STATES v. ABBOUCHI
[11] We find plain error. The only evidence considered by
the district court to support the domestic violence condition
was a paragraph in the Presentence Report suggesting
“strains” in Abbouchi’s relationship with his wife and that he
and his wife had separated. This evidence is insufficient to
support imposition of the domestic violence treatment condi-
tion. Cf. Napier, 463 at 1045 (holding that convictions that
were twenty-years old for selling cocaine and some evidence
of unusual behavior did not support imposition of a substance
abuse treatment condition as part of the sentence for a fraud
conviction). Imposition of the condition requiring domestic
violence treatment affected Abbouchi’s substantial rights. See
United States v. Olano, 507 U.S. 725, 734 (1993) (holding
that in most cases, error affects substantial rights when it “af-
fect[s] the outcome of the district court proceedings”).
Finally, considering the paucity of the evidence in the record
to support the domestic violence treatment condition, we con-
clude that erroneous imposition of that condition “seriously
affect[ed] the fairness . . . of [the] judicial proceedings.” See
Jordan, 256 F.3d at 926 (quoting Johnson, 520 U.S. at 466-
67). We therefore vacate Abbouchi’s sentence and remand to
the district court to re-sentence Abbouchi without the domes-
tic violence treatment condition and its associated payment con-
dition.6
B. Reporting Requirement
[12] Abbouchi also claims that the requirement that he
report to a probation officer within seventy-two hours of reen-
try into the United States and that he truthfully answer any
questions asked of him by the probation officer violates his
Fifth Amendment right against self-incrimination. His chal-
lenge to the seventy-two hour reporting requirement itself is
6
Although the condition in the written judgment requires Abbouchi to
pay for treatment of “the defendant’s psychiatric disorder,” the sentencing
transcript makes clear that the sentence as orally pronounced links the
payment condition to domestic violence treatment.
UNITED STATES v. ABBOUCHI 8451
foreclosed by United States v. Rodriguez-Rodriguez, 441 F.3d
767, 772-73 (9th Cir. 2006) (holding that a requirement that
the defendant report to the probation office upon reentering
the country does not require the defendant to incriminate him-
self). Furthermore, it is premature to decide Abbouchi’s chal-
lenge to the requirement that he answer truthfully any
questions asked of him by the probation officer. Nothing pre-
vents Abbouchi from raising a Fifth Amendment issue should
it arise. See id. (holding that the defendant could assert his
Fifth Amendment privilege if asked a question that would
tend to incriminate him). We affirm the district court’s
remaining supervised release conditions.
V. CONCLUSION
The search of Abbouchi’s UPS package at the Louisville
UPS hub took place at the functional equivalent of the border
because it was the last practicable opportunity for Customs
officers to conduct an inspection before Abbouchi’s package
departed from the United States. Thus, the Customs officers
did not need reasonable suspicion to open and inspect the con-
tents of his randomly selected package intended for overseas
delivery. We also hold that there was sufficient evidence to
establish that social security cards are “identification docu-
ments” within the meaning of 18 U.S.C. § 1028(a)(2). We
agree that the district court committed plain error by requiring
Abbouchi to participate in a domestic violence treatment pro-
gram while on supervised release. Accordingly, we affirm the
convictions but vacate the sentence. We remand for resen-
tencing without the domestic violence treatment condition.
AFFIRMED in PART, VACATED in PART, and
REMANDED.