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United States v. Gafyczk

United States Court of Appeals for the Eleventh Circuit

June 16, 1988

No. 86-5290

Opinion

 [*687]  ESCHBACH, Senior Circuit Judge:

Appellants Gafyczk and Medina appeal from their convictions on multiple counts charging violations of 18 U.S.C. § 1001 (making a false statement in a matter within the jurisdiction of a U.S. government agency or department), 49 U.S.C.App. § 121 (falsely making a bill of lading), and 18 U.S.C. § 371 (conspiracy to commit an offense against the United States). Appellant Medina also appeals from his conviction of a violation of 18 U.S.C. § 1512(a) (tampering with a potential government witness).

Appellants' convictions resulted from their activities, during the period from about August 1, 1980 until about November 1, 1985, involving the importation of cigarettes into the United States and their subsequent [**2]  export to Italy in a manner that avoided payment of the substantial duty levied by Italy on cigarettes imported into that country. During the relevant time period, Bodhan Gafyczk did business and acted as an agent for Ambrasco International Export Corporation, a firm engaged in the business of importing and exporting cigarettes. During the same period of time, Jorge Medina was the President of Joya Industries, Inc., an organization engaged in the business of importing and exporting cigarettes and other merchandise.

The superseding indictment of December 19, 1985 under which appellants were convicted alleged that Gafyczk and Medina participated in the following scheme. Untaxed American and non-American cigarettes were brought into the United States, either at New York City or Miami, Florida. The cigarettes imported to New York City were subsequently shipped to Miami. In Miami, the cigarettes were unloaded from their original shipping containers and repacked into containers with other materials (e.g., glass fibers, carbon black, or acrylic fiber) to conceal the presence of the cigarettes. The mislabeled containers were eventually shipped to various ports in Italy.

At the request of  [**3]  Medina and Gafyczk, various freight forwarding services (International Freight Forwarders, Galero Freight Forwarding Company, and Union Shipping) would prepare shippers' export declarations ("SED's") and ocean bills of lading ("B/L's") that described the contents of the subject containers as consisting solely of the materials used to conceal the cigarettes. In order to close the circle, Medina also directed that a second set of B/L's be created which showed that the  [*688]  cigarettes had been shipped either directly to Colombia or to Colombia through Bonaire. The SED's and B/L's were then submitted to the U.S. Customs Service in the course of the regular documentation process associated with the export of goods from the United States.

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847 F.2d 685 *; 1988 U.S. App. LEXIS 8234 **

United States of America, Plaintiff-Appellee, v. Bodhan Gafyczk and Jorge Medina, Defendants-Appellants

Prior History:  [**1]  Appeals from the United States District Court for the Southern District of Florida.

CORE TERMS

conspiracy, convictions, counts, inclusive, cigarettes, appellants', export, indictment, deceive, defraud, intent to defraud, superseding, beyond a reasonable doubt, false statement, violations, deprive, import, rights, bill of lading, pecuniary, shipped, sufficiency of evidence, district court, instructions, credibility, containers, knowingly, asserts

Criminal Law & Procedure, Fraud, False Pretenses, Elements, General Overview, Acts & Mental States, Mens Rea, Specific Intent, Wire Fraud, Fraud Against the Government, Mail Fraud, False Claims, False Statements, Standards of Review, De Novo Review, Juries & Jurors, Province of Court & Jury, Evidence, Weight & Sufficiency, Trials, Motions for Acquittal, Knowledge, Inchoate Crimes, Conspiracy, Appeals, Reversible Error, Defenses