dissenting.
I dissent, not because I disagree with the court’s standard, but because I believe the government has met its burden under § 542. The majority states, supra, that
[t]he language of § 542 suggests to us that its purpose is no less than to preserve the integrity of the process by which foreign goods are imported into the United States. As a result, we are inclined to believe that a false statement is material not only if it is calculated to effect the impermissible introduction of ineligible or restricted goods, but also if it affects or facilitates the importation process in any other way.
At 436. With this, I agree. I diverge from the majority, however, because I believe the government did carry its burden of proof since the statements made by the Bagnalls were material in that they “facilitate[d] the importation process,” as the facts bear out.
As the majority has explained, Mercedes-Benz operated a promotional program which enabled an individual holding a diplomatic or official passport to receive a ten (10) percent discount on the purchase of the European delivery of a Mercedes-Benz car. Despite the fact that his diplomatic passport was expired, Bagnall submitted paperwork, including a Certificate of Status, substantiating his entitlement to participate in the program and receive the discount. Bagnall also submitted an application for a customs license plate and a shipping and handling authorization which permitted Mercedes-Benz to ship the car to the United States port of entry chosen by the customer and effect customs clearance.
Shortly after he ordered the 380 SLCR, Bagnall called the salesman and explained that he could not afford the car. He offered, however, to allow the salesman to use his name to order a car using the forms he had submitted. Bagnall further suggested that if the deal went through and the car arrived, he knew other people who would do the same thing. The salesman agreed to pay Bagnall $1,000 for use of the *438application forms. The salesman then changed the model number from 380 SLCR to a 500 SEL.
After the necessary paperwork was submitted pursuant to the diplomatic plan, the 500 SEL was scheduled for production and was then manufactured and shipped to the United States. When the 500 SEL arrived, the salesman wrote Bagnall a check for $1,000. In September, 1984, shortly after Bagnall received the check, the salesman ordered two more 500 SEL cars in the names of Beverly Jayne Bagnall and Scott Richard Bagnall. The forms were submitted, including Certificates of Status as previously described. Shortly afterward, when the NSA learned of the use of NSA Certificates of Status when an employee of the NSA turned in a blank form that was circulated in the office, NSA employee Carol Giffin notified Bagnall that an investigation was underway. Beverly Bagnall then attempted to cancel the two orders and to retrieve the forms from the Mercedes-Benz salesman.
It is uncontested that the order would not have been accepted under the diplomatic discount plan nor the car manufactured without the forms. The record shows that the order for the first 500 SEL was placed after receipt of the forms. Clearly, the order resulted from the application forms which included the false statements that the ear was being purchased for Bagnall’s personal use and not for resale or commercial use, and the false Certificate of Status. In other words, “but for” the false statements by the Bagnalls on their Certificates of Status, the cars would not have been manufactured and shipped. Because the statute states that “whoever ... attempts to enter or introduce, into the commerce of the United States any imported merchandise by means of any fraudulent or false ... affidavit ...” shall be liable, I conclude that the false statements on the Certificates of Status, as well as the DTOP forms, fall within the meaning of the statute.1 For these reasons, I would affirm the order of the district court denying the Bagnalls’ post-trial motions.
. Because I would hold that the government had met its burden and that the false statements were material to the importation of the cars, I would then address the remaining issues. The first is whether Beverly Jayne Bagnall’s attempt to retrieve the documents constituted a renunciation of the attempted importation of the cars. I would hold that it was not.
Mrs. Bagnall’s attempt to retrieve the documents was the result of the warning from Ms. Giffin that the NSA was conducting an investigation of the improper use of NSA Certificate of Status forms. Thus, the attempt to cancel the orders was not the result of a genuine change of heart, but was the result of a fear of being apprehended for the crime. Because the defense of renunciation is an affirmative defense, the burden is on the defendant to show an abandonment of the efforts to commit the crime under circumstances which manifest a complete and voluntary renunciation of the criminal purpose. United States v. McDowell, 705 F.2d 426 (11th Cir.1983) and United States v. Bailey, 834 F.2d 218 (1st Cir.1987). Here, Beverly Jayne Bagnall proved only that she attempted to retrieve the documents under a situation which could best described as an involuntary withdrawal.
The Bagnalls’ final argument related to the sufficiency of the evidence with regard to the two counts of attempt under § 542, i.e., the two orders Beverly Bagnall endeavored to cancel. The Bagnalls contend that, since an attempt requires a substantial step toward the commission of the crime, see MFC § 5.01, the submission of the applications to the Mercedes-Benz salesman was not sufficient to meet the requirements of the elements of attempt. Mere preparation, the Bagnalls state, is inadequate to constitute an attempt to commit the crime.
I also would reject this argument. The record indicates that the actions taken by the Bagnalls were more than mere preparation. The efforts undertaken to secure the handstamp of a NSA official, the submission of the false Certificates of Status, and the submission of the falsified diplomatic plan applications (thereby resulting in the placement of the order) went beyond mere preparation. Indeed, all that remained was for the cars to be received by the dealership and the check to be paid to the Bagnalls for the "use” of their official status.