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What You Tell Your Mother Can Be Used At Your Trial (though, in this case, that’s a good thing)

Air travel is always hard, but Samir Ibisevic’s trip was much worse than most.

His father had died, and he was flying to Sarajevo for the funeral. He’d been up all night traveling from Syracuse to Dulles with his mother, Rahima. He had a headache and he was upset by his father’s death.

169329_dulles_under_the_eave.jpgHe also had $5,000 in cash in his pocket, and his mom had another $35,000 in her bags.

A customs officer, doing a random check of passengers, approached Mr. Ibisevic. The officer explained that it isn’t illegal to take cash out of the country, but if you want to take more than $10,000, you have to fill out a reporting form.

The officer asked Mr. Ibisevic if he was traveling with any cash. Mr. Ibisevic said he had $5,000.

The officer took Mr. Ibisevic and his mother to a more private area. He asked again, how much currency they were taking out of the country “as a whole.” Again Mr. Ibisevic said $5,000.

Mr. Ibisevic, as much of the defense evidence at his later trial showed, speaks very little English and reads even less.

The officer showed him a reporting form. Mr. Ibisevic looked at the form for a minute or two. The officer then told him to write the amount of cash he was taking out of the country on the form. Mr. Ibisevic wrote “$5,000.”

The officers then searched Mr. Ibisevic’s bags, as well as those of his mother. They found the $40,000 in cash.

The Criminal Charges

Mr. Ibisevic was charged with failing to report the international transportation of currency, cash smuggling, and making a false statement.

Each offense requires that it be committed “willfully.” The sole issue at trial is whether Mr. Ibisevic intended to make a false statement or fail to report, or, instead, if he simply didn’t realize he was obligated to.

The Mother and Child Reunion

Mr. Ibisevic’s mother testified against him, under an immunity agreement. She said that the money was his, and that she speaks no English (she testified through an interpreter).

On cross, Mr. Ibisevic’s lawyer asked Mr. Ibisevic’s mother what Mr. Ibisevic said before the customs agent showed him the reporting form and asked him to sign it.

As the mother started to answer, the district court, without an objection from the government, interrupted the testimony. The court expressed concern that the testimony would be hearsay.

Mr. Ibisevic’s lawyer explained what the answer would be – Mr. Ibisevic’s mother would say that her son told her that the agents wanted to know the value of the bags if they were lost.

The district court thought this evidence was hearsay and refused to let it in.

Mr. Ibisevic’s defense case focused on how limited Mr. Ibisevic’s English was. Mr. Ibisevic himself testified that he didn’t know he had to report the cash, but that he thought the customs officers were asking about the value of his luggage in case it was lost.

He was convicted, and sentenced to two years probation. He also had to forfeit the cash.

The Appeal

Mr. Ibisevic appealed based on the district court’s hearsay ruling.

In United States v. Ibisevic, the Fourth Circuit held that, first, Mr. Ibisevic’s statement to his mother about what he thought they were asking wasn’t hearsay.

Hearsay is when a person is testifying about something someone said outside of the courtroom and they’re trying to prove that what the person said is true.

So, if a witness says, “John said the money was counterfeit” and the person offering that testimony is trying to prove that the money was counterfeit, then that would be hearsay.

But, if, instead, the person offering the witness is trying to prove that John thought the money was counterfeit, then it isn’t hearsay – it just goes to what John thought.

Here, Mr. Ibisevic wasn’t trying to prove that the agents were asking him about the value of his luggage – they clearly weren’t. Rather, he was trying to prove what he thought they were asking.

So, the testimony wouldn’t have been hearsay. Though, even if it were hearsay, it still would have been admissible under the “present sense impression” exception to the hearsay rule.

The court of appeals also concluded that the error wasn’t harmless. The issue of Mr. Ibisevic’s intent was the only issue at trial. This evidence bore directly on that.

So, Mr. Ibisevic is going back for another trial.

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