United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 12, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 03-20830
__________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KOLAWOLE ODUTAYO,
Defendant - Appellant.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Texas, Houston
(No. 4:99-CR-99-1)
___________________________________________________
Before JONES, WIENER, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Defendant-appellant Kolawole Odutayo appeals his conviction for mail fraud in violation of
18 U.S.C. § 1341 and for using a false name or address to execute a mail fraud scheme in violation
of 18 U.S.C. § 1342. Odutayo specifically appeals the denial of his motion to suppress evidence
seized from an outbound flight because the evidence was the fruit of an unreasonable search in
violation of the Fourth Amendment. In addressing his challenge, we face the question of whether the
“border search exception” to the Fourth Amendment, traditionally applied to searches of incoming
1
cargo and baggage, applies with equal force to outgoing searches. We answer in the affirmative, and
uphold the district court’s decision.
I. FACTS AND PROCEEDINGS
In 1994, Odutayo attempted to smuggle out of the United States thousands of dollars worth
of illegally obtained video and music discs. Odutayo procured the discs through the exploitation of
mail order clubs sponsored by major music distributors such as Columbia House and BMG Music
Services. As part of their promotions, these companies would send a customer eight or ten discs
either for free or for a nominal fee. In return, the customer would promise to purchase a number of
discs at regular price after a set amount of time, typically a year or two. Using a number of aliases
and addresses, Odutayo deceived the clubs in order to obtain thousands of factory-quality discs
without meeting his reciprocal obligations. In April 1994, Odutayo packed his unlawfully obtained
collection into sixteen similar cardboard boxes, and checked them as baggage at Bush International
Airport in Houston, Texas on an international flight bound for Nigeria, via London.
Neither Odut ayo nor his loot ever made it out of the United States. Under federal law,
anyone who transports more than $2,500 worth of commercial merchandise must fill out a “Shipper’s
Expo rt Declaration” (“SED”). After being placed in the “baggage pit area”—a non-public depot
where baggage is held after it is checked, but before being loaded on the flight—the boxes were
brought to the attention of Customs Inspector Harold Taylor. Inspector Taylor, who was empowered
to search for contraband such as military equipment, hardware, encrypted software, weapons,
ammunition and other illegal-if-exported merchandise, noticed that all of the boxes were marked as
being the property of the same person—Odutayo—and that they did not have the requisite SED.
Based solely on that information, Inspector Taylor opened the boxes and discovered 700 new laser
2
video discs and over 2,000 new audio discs—the value of which was approximated by the
government to be $69,560. That information led to the questioning of Odutayo and the issuance of
two search warrants, culminating in his indictment in 1999 for (1) nine counts of mail fraud in
violation of § 1341, and (2) nine counts of using false names or addresses to execute a mail fraud
scheme in violation of § 1342.1
On February 2003, Odutayo filed a motion to suppress the 16 boxes of discs as evidence, a
motion the district court denied after an evidentiary hearing in April 2003. Although the district court
determined that reasonable suspicion did not exist for Inspector Taylor to search the boxes, it
nevertheless held that the search was reasonable under the Fourth Amendment as a “routine” border
search. After a bench trial—Odutayo waived his right to a jury—Odutayo was found guilty on all
counts, and sentenced to 5 months in prison, three years of supervised release, and specially assessed
$950. Odutayo timely appealed the judgment, arguing both that (a) the district court erred in denying
his motion to suppress and, for the first time on appeal, (b) his conviction violates the Double
Jeopardy Clause of the Fifth Amendment as a multiplicitious punishment.
II. DISCUSSION
A. Reasonableness Under the Fourth Amendment
Odutayo challenges the district court’s denial of his motion to suppress, arguing that the
evidence was the fruit of a warrantless, unconst itutional search. We review de novo the district
court’s legal conclusions regarding a motion to suppress. See United States v. Washington, 340 F.3d
222, 226 (5th Cir. 2003). Following the lead from the Supreme Court’s decision in United States v.
1
Odutayo was also indicted for one count of making false statements to a U.S. Customs
Inspector.
3
Ramsey, 431 U.S. 606 (1977), this circuit has employed a two-step analysis for determining the
constitutionality of a warrantless search or seizure. United States v. Williams, 617 F.2d 1063, 1074
(5th Cir. 1980). First, the government must establish some statutory or legal authority under which
it acted. In the absence of such authority, “a court must conclude, without any further consideration,
that the search or seizure was unconstitutional.” Id. In the presence of such authority, the Court
must then determine whether the duly authorized search or seizure was reasonable under the Fourth
Amendment. Id.; see also United States v. Berisha, 925 F.2d 791, 793 (5th Cir. 1991) (detailing the
two-part test).
1. Statutory authority provided under 22 U.S.C. § 401.
Inspector Taylor acted under the authority of 22 U.S.C. § 401. In pertinent part, it reads:
Whenever an attempt is made to export or ship from or take out of the United States any
arms or munitions of war or other articles in violation of law, or whenever it is known or
there shall be probable cause to believe that any arms or munitions of war or other articles are
intended to be or are being or have been exported or removed from the United States in
violation of law, the Secretary of the Treasury, or any person duly authorized for the purpose
by the President, may seize and detain such [articles] . . . .
22 U.S.C. § 401(a) (1994). Section 401(a) thus provides that probable cause is necessary to seize
and detain certain illegal articles. Although the provision does not explicitly speak to searches, this
circuit has held that § 401(a) implicitly provides statutory authority for searches. Samora v. United
States, 406 F.2d 1095, 1098 (5th Cir. 1969). Odutayo concedes that § 401(a) provides governmental
officials the power to perform searches, but he nevertheless contends that that power is subject to a
probable cause limitation.
4
There is nothing in the statute that places such a restriction on searches, and we refuse to
create one.2 Section 401(a) is nearly identical to its predecessor, the Espionage Act of 1917, ch. 30,
tit. VI, 40 Stat. 223 (1917), which applied its probable cause requirement only to seizures, and not
searches. See United States v. Ajlouny, 629 F.2d 830, 836 (2d Cir. 1980). As the Second Circuit
noted in Ajlouny, the Espionage Act was designed to protect “innocent owners and claimants from
the inconvenience and expense associated with unwarranted seizure and detention of their property.”
Id. (emphases added). We agree with the Second Circuit that “[t]here is no indication . . . that the
law was also intended to protect persons against the less serious interference with property rights
associated with a customs search.” Id. (emphasis added). Finally, placing such a stringent
requirement onto border searches would tend to gut the ability of law enforcement to seize
contraband, as probable cause for many seizures will be established only after a search of a package’s
contents. See, e.g., United States v. Marti, 321 F. Supp. 59, 63–64 (S.D.N.Y. 1970) (“An agent may
not seize contraband until he confirms his belief that such material is, in fact, being exported or
removed from the United States. Confirmation can usually come only from a preliminary search.”).
Accordingly, we hold that Inspector Taylor’s search was authorized by § 401(a).
2. Constitutionality of the search under the Fourth Amendment.
Because Inspector Taylor acted within his legal authority, his actions can only be
unconstitutional if they were unreasonable under the Fourth Amendment. The Fourth Amendment
2
Odutayo argues that this court recognized a probable cause requirement for searches
under § 401(a) in Samora v. United States, 406 F.2d 1095, 1098 (5th Cir. 1969). There, the
court found that the search of a car at the border was reasonable under § 401(a) because probable
cause existed. Id. Its holding, while resting on the existence of probable cause, did not impose
such a requirement. Indeed, the court itself stated that “[w]e need not consider other grounds on
which the government claims the search was valid.” Id. at 1099; see also United States v.
Roberts, 274 F.3d 1007, 1012 (5th Cir. 2001) (recognizing distinction).
5
provides, “[t]he right of the people to be secure in their persons . . . and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause .
. . .” U.S. CONST. amend. IV. Because of that textual requirement, searches or seizures performed
without the authority of a warrant “are per se unreasonable.” United States v. Cardenas, 9 F.3d
1139, 1147 (5th Cir. 1993). There are, however, a few “narrowly defined exceptions,” id., one of
which is for routine searches at “‘the international border or its functional equivalent.’” United States
v. Roberts, 274 F.3d 1007, 1011 (5th Cir. 2001) (quoting United States v. Rivas, 157 F.3d 364, 367
(5th Cir. 1998)) (emphases omitted). This “longstanding, historical[]” exception to the Fourth
Amendment’s general requirement of a warrant was based on rationales relating to incoming cargo.
United States v. Ramsey, 431 U.S. 606, 622 (1977).
The district court determined that the search was routine, a finding that Odutayo does not
challenge on appeal. Rather, he argues that even if the search was routine, the traditional border
search exception should not be extended to outgoing searches. If he is right, then the evidence here
must be suppressed because Inspector Taylor lacked the necessary probable cause.
The Supreme Court indicated in California Bankers Ass’n v. Schultz that the border search
exception might apply to outgoing searches, saying that “those entering and leaving the country may
be examined as to their belongings and effects, all without violating the Fourth Amendment.” 416
U.S. 21, 63 (1974). Although dicta, a number of our sister circuits—the Second, Third, Fourth,
Sixth, Eighth, and Ninth—have extended the border exception to outgoing searches. See Ajlouny,
629 F.2d at 834; United States v. Ezeiruaku, 936 F.2d 136, 143 (3d Cir. 1991); United States v.
Oriakhi, 57 F.3d 1290, 1296–97 (4th Cir. 1995); United States v. Boumelhem, 339 F.3d 414, 420–23
6
(6th Cir. 2003); United States v. Udofot, 711 F.2d 831, 838–40 (8th Cir. 1983); United States v.
Duncan, 693 F.2d 971, 977 (9th Cir. 1982).3
Although this circuit has not adopted the border search exception for outgoing searches in
toto, it has viewed such an application favorably. See Roberts, 274 F.3d at 1013 (citing United States
v. Salinas-Garza, 803 F.2d 834 (5th Cir. 1986)) (discussing Salinas-Garza’s implicit recognition that
the Constitution requires less than probable cause for outgoing border searches); Berisha, 925 F.2d
at 795 (applying the border search exception to outgoing currency searches). In United States v.
Berisha, this Court addressed the extension of the routine border search exception as applied to
outgoing currency searches. 925 F.2d at 795. There, we noted that incoming and outgoing border
searches have “several features in common.” Id. In both, “the government is interested in protecting
some interest of United States citizens, there is a likelihood of smuggling attempts at the border, and
the individual is on notice that his privacy may be invaded when he crosses the border.” Id. These
considerations certainly apply in the context here: stemming the illegal exportation of weapons and
other equipment implicates a strong national security interest for U.S. citizens and there is certainly
a reduced expectation of privacy for passengers (whose luggage is, among other things, routinely x-
rayed by airport security) on international flights. Boumelhem, 339 F.3d at 422–23.
We went on to say in Berisha that in the specific context of currency exchanges, “the
underlying purpose for the foreign transaction reporting requirements was to regulate the export of
monetary instruments in order to prevent the use of international currency transactions to evade
domestic criminal, tax, and regulatory laws.” Berisha, 925 F.2d at 795. The interest in the regulation
of the exportation of weapons, ammunition, and encryption technology, similar to the interest in the
3
No circuit that has addressed this question has held otherwise.
7
flow of currency, represents the fundamental power—indeed, responsibility—of every sovereign
nation to maintain its national security. Boumelhem, 339 F.3d at 423 (“From the sovereign’s power
to protect itself is derived its power to prohibit the export of its currency, national treasures, and
other assets.”) (quoting Oriakhi, 57 F.3d at 1297) (internal quotations omitted). Moreover, “inherent
in national sovereignty are the overarching rights of a nation . . . to secure its territory and assets.”
Oriakhi, 57 F.3d at 1296. Outgoing searches implicate these national security and territorial integrity
interests. Therefore, today we join our sister circuits in holding that the border search exception
applies for all outgoing searches at the border.
B. Double Jeopardy
Odutayo also challenges, for the first time on appeal, his conviction as unconstitutional under
the Double Jeopardy Clause of the Fifth Amendment. Specifically, he alleges that his convictions
under §§ 1341 and 1342 were multiple punishments for the same offense. Because he failed to raise
this argument in front of the district court, we review for plain error only, see United States v.
Lankford, 196 F.3d 563, 577 (5th Cir. 1999), under which we may exercise our discretion to remedy
an injury only if the error affects substantial rights “seriously affect[ing] the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631 (2002)
(quoting Johnson v. United States, 520 U.S. 461, 467 (1997)) (internal quotations omitted).
The Fifth Amendment’s Double Jeopardy Clause states that “nor shall any person be subject
for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The clause
is meant to protect against both multiple prosecutions and, relevant here, multiple punishments for
the same offense. In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court
enunciated the proper test for determining whether a defendant has been punished twice for the same
8
offense: “whether each provision requires proof of a fact which the other does not.” Id. at 304; see
also United States v. Delgado, 256 F.3d 264, 272 (5th Cir. 2001) (noting that “double jeopardy
concerns are not raised if each crime requires an element of proof not required by the other crimes
charged”). The application of the Blockburger test does not involve the detailed examination of the
case’s factual circumstances; rather, our inquiry focuses on the elements of the statutory offense.
Lankford, 196 F.3d at 577–78. In other words, the question is not whether this violation of § 1342
includes a violation of § 1341, but rather whether all violations of § 1342 constitute violations of §
1341, and vice versa. United States v. Singleton, 16 F.3d 1419, 1422 (5th Cir. 1994).
The Double Jeopardy Clause poses no constitutional prohibition to Odutayo’s conviction.
For a mail fraud violation under § 1341, the government must show that there was “(1) a scheme to
defraud; (2) the use of the mails to execute the scheme; and (3) the specific intent to defraud.”
United States v. Bieganowski, 313 F.3d 264, 275 (5th Cir. 2002). Section 1342 requires proof of the
use of a fictitious name or address for “the purpose of conducting, promoting, or carrying on by
means of the Postal Service, any scheme or device mentioned in section 1341 . . . or any other
unlawful business.” 18 U.S.C. § 1342 (1994). Due to § 1342’s fictitious name or address
requirement, it is clear that § 1342 has “an element of proof not required by” § 1341, and that all
violations of § 1341 do not necessarily include a violation of § 1342. Delgado, 256 F.3d at 272. The
only remaining question is whether a violation of § 1342 necessarily includes a violation of § 1341.
Id. Section 1342, while mentioning and including violations of § 1341, applies explicitly to the use
of a false name or address for the use of “promoting . . . any other unlawful business.” By its plain
language, schemes to defraud such as those covered in § 1341 are included in § 1342, but it does not
follow that all violations of § 1342 will include a violation of § 1341—by promoting an unlawful
9
business that does not involve fraud, for example, a defendant may violate § 1342 without
concurrently violating § 1341. Odutayo’s argument fails the Blockburger test.
III. CONCLUSION
The district court’s judgment is AFFIRMED.
10