US Citizens: Perjury vs Violating the OFAC

Hi folks and thanks to the regulars for all of the great information on here.

I've read through as many of the threads as possible for advice on how to handle re-entry into the US but I'm left with one question: Several folks mention being more afraid of perjuring themselves, by not admitting to having been in Cuba, than of penalties by the OFAC. As far as I can tell the OFAC deal is, at most extreme, a fine. So what's the penalty/punishment with perjury? What would happen, or has happened to anyone, who only writes down Mexico, for example, on their Immigration form but then is discovered to have actually been in Cuba?

OK, and one more question, while I'm here: Has anyone traveled recently who may be on a watch list/ political activism list? I'm just curious if the same kinds of flags as the frequent travelers have come up.

Thanks again for all the useful and entertaining responses!

Well first of all, it's NOT perjury. Perjury is lying under oath, usually in a court proceeding or deposition. At a Customs checkpoint (in the USA) you're only required to answer the questions posed to you. If they don't ask a direct question, you have not lied. And if they do directly ask, you politely tell them to "pisss off" because you are under no obligation to tell them where you have been or what you have been doing. You are seeking admission to the USA, not being grilled in a search for alledged offences. Also, you can take the 5th and simply state that you are under no legal obligation to provide any information that could or might be used against yourself in any proceeding, criminal or civil. You have rights against self-incrimination.

Also check out this link to the National Lawyers Guild (NY, NY) and their Cuban Subcommittee.
National Lawyers Guild Cuban Subcommittee

Do a bit of reading and know your rights.

Don't lie if directy asked, just decline to answer.

www.americanincuba.blogspot.com

I recently cleared customs and immigration in LA after a 3 month trip thru Cuba, Central and S. America. On the arrival card you are asked to list the countries you've visited. I listed the 10 or so countries I had visited including Cuba although I sort of "buried" Cuba in the middle of the list. The Immigration Agent read the card and then said, "Welcome back to the States."

The Customs Agent read it and said, "Wow, that must have been a wonderful trip" to which I concurred.

I will always wonder if it would have been a different story if I had only been to and listed Mexico and Cuba. FWIW.

I've posted journals & a few photos from my first few days in Cuba at:
See February Entries for Cuba Visit

I'll post more as time permits.

Jim I enjoyed your linked blog - was the restaurant in Camaguey where you ate the stew situated in Plaza del Carmen?
Cheers
john

There is a catch-all federal statute that makes it an offense punishable by up to five years imprisonment to knowingly and willfully make a materially false, fictitious, or fraudulent statement or representation on any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States. This law applies not only to written statements and representations on applications and official documents but also to informal unsworn oral statements made to federal officers. It is not perjury but it sweeps a lot wider. That is the reason the National Lawyers Guild and other legal groups that are involved in the CACR issues advise not to answer oral questions and recommend listing Cuba on the Customs Declaration form. This article discusses applications of the statute.

18 United States Code 1001

I have never seen a report of the law being employed in the case of an unlicensed tourist traveler to Cuba.

18 United States Code 1001 should be reversed so that:

LYING BY FEDERAL OFFICIALS TO THE PUBLIC IS A FELONY.

Lying to federal officials by the public should not be the crime.

With no offense intended towards #1, he is a Canadian and not really in tune or knowledgeable concening US laws, statutes, or procedures.

John,
No, I believe it was on Republica, perhaps Bodegon Don Cayetano behind the Church of Our Lady de la Soledad.
Jim

#5
Than there is the question whether 'forgetting' to write a country you visited on the customs form is qualitatively equal to making a willfully wrong statement, i.e. lying. I suspect it isn't. Or lots of seniors would be in jail.
And even if you did go to the island and 'forgot' to mention it, they will have to prove you actually were there and for that they need hard evidence. So if you're cautious, don't carry anything compromising items and keep your mouth shut - what exactly can they do? Even under a semifascist regime like King George's, aside from bluster and bullying probably not a lot.

Blame it on alcohol. Have a few stiff drinks on the plane and make up your own countries. List every country you have ever been to.

Thanks everyone.

I think I'll take #10s advice but say that I ate the worm in Cancun and so clearly cannot be held responsible for anything. Like Vegas but with a bad sunburn. :D

<blockquote>Quote
<hr>Than there is the question whether 'forgetting' to write a country you visited on the customs form is qualitatively equal to making a willfully wrong statement, i.e. lying. I suspect it isn't.<hr></blockquote>
With all due respect, I suspect it is the qualitative equivilent. It reminds me of the Steve Martin comedy routine where he talks about what to tell IRS when they ask why you haven't filed tax returns for the last five years----I forgot..

If the government chose to prosecute for this offense (which they have never done and I doubt ever will) they would have to establish that the false representation was made knowingly. But how believable is it that you forgot you visited Cuba. Perhaps you could say that you did not understand what the form was asking, but even that is pretty lame and almost as unbelievable.

I did not say that one should list Cuba as a country visited on the Customs Declaration form. That is the recomendation of the National Lawyer's Guild. In fact I have often commented that unless one wants a confrontation with the OFAC, it makes no sense to make an unsolicited confession to a violation of the Cuban Travel Regulations by listing Cuba on the Customs Declaration form. The best advice for someone who is making an unlicensed trip is to follow the standard drill that has been repeated on this Board for years.

To directly answer the OP's question--- 1. It is not perjury to fail to list Cuba, but it is a potential criminal offense. 2. There are no reported cases in the Federal System of anyone having been prosecuted for failing to list a country on the Customs Declaration form. 3. In my opinion the government is not going to the expense of criminally prosecuting an ordinary citizen for not listing Cuba on the form.

Alta:
In some cases (like mine) one extenuating factor could be that the person in question is neither American nor of English mother tongue.
In any case and as you say it's pretty unlikely anyone will ever be prosecuted for 'forgetting' to list all countries.
With all due respect to Steve Martin, forgetting to file your tax returns ALTOGETHER and for 5 years IS in my view quite a bit different from filling out a requested form, but due a 'misunderstanding' ("I thought you were asking for the last country I visited") did not write down all countries you'd been to. And before they could even begin to contemplate whether they should take your case to the next prosecutory level they'd have to PROVE that you actually were in Cuba.
If you were careful that will (at least in the case of Mexico as gateway) be extremely difficult to accomplish.

Altahabana,

Thank you for providing the OP with good info regarding the possible downside to telling a little white lie to a US federal agent. While 9 times out 10 it's most likely not going to land you in much-if any-trouble. It very well could, IF (big if) you rub said agent the wrong way. Better to mind you p's and q's. You can always give us the finger after you clear customs/immigration.

# 14
I'm getting curious and will discuss the issue of whether an 'omission' has the same legal weight as an outright, deliberate lie with a defense lawyer friend of mine. I doubt it, but if it does indeed, the US the legal system would have to be ranked on a similar level as what they call 'democracy' here - i.e. (compared to Northern Europe at least) very, very low.
And a white (or other) lie isn't going to be any problem until it is PROVEN to be one - let's never forget that big brother has to come up with evidence; if you don't (stupidly) hand it to them, who will - the Mexicans (lol)?

BTW what is the meaning of "p's + q's" ?

#14 -- Please report back after you talk to the lawyer. If a form says "list every country" and you knowingly fail to list every country, I cna't imagine that that wouldn't be treated as a lie anywhere. If an income tax form asks you to list all your income, and you "forget" the $1000 you earned from an overseas account, is that OK in Northern Europe? In any case, it doesn't have a lot to do with democracy, which has to do with the form of government.

"Mind your p's and q's" = pay attention to details, be on your best behavior. There are lots of theories about the origin. The most credible is that it's advice to printers not to confuse a p with a q.

<blockquote>Quote
<hr>I'm getting curious and will discuss the issue of whether an 'omission' has the same legal weight as an outright, deliberate lie with a defense lawyer friend of mine. I doubt it,<hr></blockquote>
UNITED STATES CODE

TITLE 18 - Crimes and Criminal Procedure
PART I - Crimes
CHAPTER 47 - Fraud and False Statements

Section 1001. Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any
matter within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States, knowingly
and willfully -
. (1) falsifies, conceals, or covers up by any trick, scheme, or
device a material fact;
(2) makes any materially false, fictitious, or fraudulent
statement or representation; or
(3) makes or uses any false writing or document knowing the
same to contain any materially false, fictitious, or fraudulent
statement or entry;

shall be fined under this title or imprisoned not more than 5 years or both

Why you continue to beat the dead horse? The OP was not asking how to avoid getting detected and charged with an OFAC violation. The best ways to do that have been discussed on this board for years and I suspect long before you made your first trip to Cuba.

The concealment of a material fact can be just as damaging as a deliberate lie---that is a pretty universal legal concept and one that is certainly not uniquely American. I would bet the omission of something important can be an element of some crimes even in Northern Europe.

Minding one's p's and q's means to be on one's best behavior.

#16
Will report back.
That's exactly the point: how are they going to establish that you did it 'knowingly'?
As a matter of fact, in Northern Europe it DOES make a difference if you merely 'forget' to mention some form of income in your tax return, or if you actually distort some figures - the latter is considered tax fraud and weighs a lot heavier than the former. Who's talking about an overseas a/c? That's adding another (and unnecessary) level of wrongful activity.
Read my message again and you will see that I am not lumping the terms 'legal system' and 'democracy' together but comparing them in the form of an analogy.

#17
If that's all so obvious - why do YOU 'continue to beat the dead horse'?

"
1) falsifies, conceals, or covers up by any trick, scheme, or
device a material fact;
(2) makes any materially false, fictitious, or fraudulent
statement or representation; or
(3) makes or uses any false writing or document knowing the
same to contain any materially false, fictitious, or fraudulent
statement or entry;
"

Before you worry me: PROVE that I used any trick, scheme or device, rather than innocently forgot (listen to the current crop of GOP operatives under investigation and you know what I mean - these folks certainly have the best lawyers $ can buy and are facing weightier charges than traveling to Cuba) to mention something.

Not mentioning something is not the same as making materially false, fictitious or fraudulent statements.

Who is using any false writing or document knowing the same to contain...?
If I forget I can't be 'knowing'.

But let's just leave the authoritative answer to this matter of contention to a real expert - which -and I suspect you- are not.

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.