US Citizens: Perjury vs Violating the OFAC

Correction
Last sentence to read: "...which I -and I suspect you- are not."

<blockquote>Quote
<hr>If that's all so obvious - why do YOU 'continue to beat the dead horse'?<hr></blockquote>
I am doing it because you are telling people---based on what I have no idea---that it is not a criminal offense under that Statute for someone to conceal information or make a false statement when filling out a Customs Declaration form. That is just wrong.

And I do not think one has to be an expert to interpret that law. Any reasonably competent lawyer or any person using common sense could do it.

#18. If you forget to mention it, then you haven't committed a crime. But if you "forget" to mention it (which is what you keep saying), then you have committed a crime.

A US jury (in the unlikely event it came to that) might be inclined to disbelieve someone who remembered going to Mexico but "forgot" spending a week or two in Cuba. I know I would if I were on the jury.

#21

Yeah, let's see how far common sense gets you in this legal jungle, lol.
No I did not 'tell people that it is not a criminal offense under that Statute for someone to conceal information or make a false statement when filling out a Customs Declaration form' - that's what YOU are obviously inferring. I just voice my view like you are voicing yours. I assume our readers are smart enough to separate a specialized lawyers expert advice from our anecdotal or 'practice based' opinion - unless you are the former, lets just rest our case here.

# 23
I personally don't care whether (in this particular instance) I 'commit a crime' or I don't.
All I care for are the (given the right behavior on my part and in my view, see above) infinitesimally low chances of getting caught.
IMHO stupid and best of all unconstitutional laws deserve to be (intelligently) broken.

Altahabana offers sage counsel always - even when I strongly disagree and think him incorrect. In fact, I suspect that HIS is the opinion/interpretation the Gov't would use: he plays Devil's Advocate quite well. The problem is he often interprets disagreement as mere badgering ('you're being difficult!') and threatens to pack his toys up & leave. I hope he doesnt, but I like to read differing opinions too.

As for Gray's remark, which I would qualify as 'the sin of omission' I agree:
<blockquote>Quote
<hr>Not mentioning something is not the same as making materially false, fictitious or fraudulent statements. <hr></blockquote>

Someone cannot lawfully be compelled to offer evidence against himself, even more so in a criminal investigation; the only exception being before a Grand Jury. Where has someone who invoked his 5th Amendment Right (not answering) been convicted for "lying by omission," otherwise? We CAN 'not answer' questions in a criminal investigation; that, and extension of our 5th Amendment Right should logically be permissible. <blockquote>Quote
<hr>No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.<hr></blockquote>

The CACRs are an extension of the TWEA (a capital crime, no?), but the primary clause is the text in bold. This is an essential right, superior to and NOT circumvented or overturned by USC Title 18 Code 1001. If that Customs form MUST be signed, how can you invoke your 5th Amendment Right AND sign a "lie"? So compulsion/duress is now a factor against the Govt's evidence (you had to sign the card to get home: add "Under Duress" if you were), it weakens their hypothetical case significantly... also, they still need to find evidence of unlicensed travel expenses : where will they get that?

I believe the 'knowingly, intentionally deliberately lied' application of this USC statute in Customs cases has exclusively involved smuggling, importing, money laundering, plotting terrorist acts etc. US Customs/OFAC has not - and I dare say WILL NOT - prosecute a simple suspect traveler this way. As a side note, US Customs was forced to admit before the ALJ that suspect Cuba travelers were under no legal obligation to "Fill out the OFAC forms" as they were instructed. Yep, we were lied to by US Customs all those years. (Read that somewhere on the NLG or CCR site.)

To address and rephrase #22, if you omitted by exercising your Fifth Amendment Right, you may or may not have erred but you have created - declared - extenuating circumstances for a Judge or jury to consider. That's my 'non-lawyerly' opinion, fwiw.

I am alot more comfortable exercising my Fifth Amendment Right than most. I find Customs agents back down when you assert that Right & not answer ... or, maddeningly, to answer with the same 5th run-around to each & every question. They really arent legal beagles, they're just doing a grunty job, and this is all b.s. to them (or so they say as I'm departing.) It's ridiculous, and they know it.

Another thing: the agents will say, "We know people lie about Cuba. They lie all the time." Not sure if that's a sneak attempt to GET YOU to lie (the FBI does that sort of thing too), but since that's true, why hasnt US Customs ever attempted to prosecute an unlicensed traveler who never confessed? Maybe Customs & OFAC don't trust the courts to support Alta's interpretation, and they dont have the (legal) evidence to support prosecution on just USC 18: 1000.

Unless you are carrying evidence of (bigger) crimes, or lying & then recanting and effectively admitting crimes, you're not in much jeopardy. Thats just my two cents & not legal advice. btw, the whole enforcement thing appears to be collapsing anyway. They're sh*t outta money, and the wind has changed in Washington...

While my lawyer friend told me off the bat that a lawyer cannot advise anyone how best to break the law, here's in a nutshell his opinion on the matter:

It is a gray area: whether the government equates an omission with an outright lie (with all legal consequences this entails) depends on the officials handling the case; they can if they really want to. In this respect Alta is right.
Whether they do or don't depends in large part on the behavior/attitude of the traveler involved.

Gray--As you may have guessed from EA's response I am a lawyer. I don't play one of this board unless the question being discussed involves a legal issue.

I said all along that I am unaware of a case where an unlicensed traveler has been prosecuted under 18 USC 1001 for making a false statement on the Customs Declaration form concerning a trip to Cuba. I have enough experience with Federal prosecutions to know that they simply do not have the resources or personnel to prosecute relatively minor violations of law considering the types of cases they normally handle. Violations of 18 USC 1001 are usually added onto to more serious charges as EA suggests.

The OP in this case though asked a very specific question concerning possible criminal penalties for failing to list Cuba as a country visited on the Customs Declaration form if hypothetically the government somehow later discovered the traveler had been to Cuba. That is an unlikely scenario since most people who are charged with a violation of the CACRs are caught when they re-enter the country. Obviously if someone escapes detection at the time of entry, the failure to include Cuba on the Customs Declaration form is a violation that will also go undetected. Hypothetically though it is an offense.