Seizure of Unreported Currency – FinCEN 105

Since the passage of CAFRA, U.S. Customs and Border Protection (CBP) has made thousands of seizures of U.S. Currency from people traveling on international flights out of the United States after not completing the FinCEN 105 form.

On a typical day in 2019, CBP officers around the country seized approximately $300,000 in undeclared or illicit currency. Many of these cases involved the seizure of unreported currency at airports.

In fact, the failure to report carrying U.S. Currency while traveling internationally is the most common reason why CBP seizes money at the airport accounting for roughly 25% of the total value seized.

Section 5316 requires that any person traveling on an international flight must give Customs a FinCEN 105 form at or before the time of arrival or departure if they are transporting more than $10,000 in U.S. Currency or its equivalent.

Many people don’t know about this requirement when traveling out of the United States because the airport does a terrible job posting signs or making announcements about the rule. The money can be seized even though no criminal charges will ever be filed.

Many people ask us: “Can I get my money back if it is seized at the airport as unreported currency?” Yes, an attorney may be able to help you get all of the money back even if you didn’t file the FinCEN 105 form. But you must act quickly.

If your cash was seized before you depart the United States because you failed to file a FinCEN 105 form, hire an attorney to help you get your money back.

We can help you make a written claim immediately for court action, thereby bypassing the often pointless administrative forfeiture proceedings with Customs and Border Protection (CBP) that trap the uninformed.

We do not charge you any money upfront and only get paid attorney fees and costs only if we secure the return of your money.

Attorney for the Seizure of Unreported Currency – § 5316 Violation

The attorneys at the Sammis Law Firm in Tampa, FL, represent clients in civil forfeiture proceedings in court after a complaint is filed by the United States Government for 31 USC § 5316 violation.

Our civil asset forfeiture attorneys also represent clients who are traveling within the United States when their money is seized because officers suspect they are drug dealers or engaged in criminal activities at the airport, a train station, or a bus station.

Read more about seizures of suspected drug money at an airport. We take these cases for airports throughout Florida and Georgia including:

• Fort Lauderdale–Hollywood International Airport (FLL);
• Ft. Myers Southwest Florida International Airport;
• Miami International Airport;
• Orlando International Airport (MCO);
• Sarasota-Bradenton International Airport (SRQ);
• St. Petersburg / Clearwater International Airport (PIE);
• Jacksonville International Airport (JAX);
• Tampa International Airport (TPA).

We can help you fight for the return of any money seized based on defenses including an innocent owner defense, violations of the excessive fines clause, and the five-year statute of limitations in forfeiture actions.

With offices in downtown Tampa in Hillsborough County, we fight cases throughout the greater Tampa Bay area, including the Tampa International Airport, the Sarasota-Bradenton International Airport, and the Orlando International Airport.

Call 813-250-0500.

Traveling with $10,000 Cash When Departing the U.S.

You are allowed to travel with cash, including internationally, so long as you follow the federal currency reporting requirements. The federal currency reporting requirements apply to both entering the United States and departing the United States. 

When departing the United States, many airports do not post signs or make any announcements about the currency reporting requirement for travelers departing the United States.

Even if the traveler somehow knew about the requirement, being able to comply with the requirement would be very onerous.

The Treasury Department regulations require that currency reports for travelers leaving the United States “shall be filed with the Customs officer in charge at any port of entry or departure” and “shall be filed . . . at the time of departure . . . from the United States.” 31 C.F.R. § 1010.306. 

Only reports for currency “not physically accompanying a person entering or departing from the United States, may be filed by mail on or before the date of entry.” Id.

The required reporting form, FinCEN Form 105, has the same requirements:

“Travelers carrying currency or other monetary instruments with them shall file FinCEN Form105 . . . at the time of departure from the United States with the Customs officer in charge at anyCustoms port of entry or departure.”

But at many airports, the CBP’s office is not in the airport’s terminal but is located at another location.

Nevertheless, the rules provide that a person exporting over $10,000 in cash must file a declaration with the Department of Homeland Security (“DHS”). 31 U.S.C. §§ 5316, 5332.

Section 5316(a)(1)(A) requires knowledge that more than $10,000.00 in monetary instruments is being transported out of the United States, but it does not require knowledge of the reporting requirement. See United States v. $359,500.00 in U.S. Currency, 828 F.2d 930, 934 (2d Cir.1987).

The FinCEN 105 form is signed under penalty of perjury.

DHS agents at the Tampa International Airport and other international airports occasionally screen passengers boarding international flights to ferret out cash smugglers.

The agents might randomly select passengers and ask them how much cash they are carrying. If a response arouses their suspicions, the agents might pull the passenger to a makeshift examination area to investigate the matter further.

In many of these investigations, the agents act in an unreasonable or illegal manner when detaining and interrogating travelers.

In a typical case at the Tampa International Airport, when a person is getting ready to board an international flight, a Customs and Border Protection (“CBP”) officer might ask if the person is traveling with more than $10,000.00 and whether they completed their FinCEN 105 form correctly.

The officer might hand the person a customs form (“503A”) and explain the cash-reporting requirements in the United States.

If the CBP officer finds undeclared currency in the person’s wallet, hidden on their body, in their carry-on luggage, or in their checked luggage.

At that point, the person is usually escorted to the Department of Homeland Security’s secure office space where they are searched and any money is seized.

Thereafter, the United States government will file a civil forfeiture action, seeking forfeiture to the United States of the seized currency.

Title 31, United States Code, section 5316 requires a person to submit a report that complies with paragraph (b) when the person: “knowingly—(1) transports, is about to transport, or has transported, monetary instruments of more than $10,000 at one time—(A) from a place in the United States to or through a place outside the United States.” 31 U.S.C. § 5316(a).

Paragraph (b) provides that the report must contain “the amount and kind of monetary instruments transported.” 31 U.S.C. § 5316(b). Title 31, United States Code, section 5317(c)(2) provides that any property involved in a violation of § 5316 “may be seized and forfeited to the United States.” 31 U.S.C. § 5317(c)(2).

Additionally, a person can be charged with bulk cash smuggling, 31 U.S.C. §§ 5316, 5332, or making a false statement to a federal officer, 18 U.S.C. § 1001.

Reporting Requirements for Passengers Traveling Together

In many of these airport seizure cases, the government argues that the person sought to conceal through “structuring” the money by breaking up a large sum of cash into smaller amounts to evade currency reporting requirements. 31 U.S.C. § 5324(c)(3) proscribes gaming the law in this fashion, although these allegations are more difficult to prove.

In United States v. Beltran, 136 Fed. Appx. 59 (9th Cir.2005), a husband and wife tried to cross the Mexican border with a combined $12,177. The wife carried $4,000 and the husband (Beltran) carried $8,177. Id. at 61. Though Beltran freely admitted his wife carried $4,000, he declared that he himself only carried $7,000, thus underreporting by $1,177. Id.

The United States charged Beltran with violating § 1001. The jury found him guilty on that charge, but the Ninth Circuit reversed because the amount Beltran was actually carrying, $8,177, was below the $10,000 reporting requirement.

The only way his statement that he was carrying $7,000 could have been material was “if the misstatement … was capable of influencing the Customs Agent. There is no record evidence that that was the case….” Id. at 61-62.

Showing Why the Forfeiture is Grossly Disproportional

In some cases, it can be alleged that the forfeiture of the entire amount of currency violates the Eighth Amendment’s Excessive Fines Clause because it is grossly disproportional to the violation of 31 U.S.C. § 5316(a)(1)(A), especially when the currency is not connected with any other crime, and our client’s only offense was an omission when completing the FinCEN 105 form which would not merit forfeiture of all of the currency.

In cases where the disproportionality defense is raised, you have the burden of demonstrating that the value of the property seized was disproportional to the offense so that the court can decide the proportionality issue.

Under 18 U.S.C. Section 983(g)(3), the ” claimant shall have the burden of establishing that the forfeiture is grossly disproportional by a preponderance of the evidence….”

In United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), the test to demonstrate that the value of the property seized was disproportional to their offense arises when the amount seized exceeds the maximum $250,000 statutory fine. For this reason, the forfeiture was a disproportional punishment for their offense.

Most cases rejecting the disproportional punishment defense deal with the property involved in ongoing unlawful activities in violation of other statutes.

For example, in United States v. Li, 615 F.3d 752 (7th Cir.2010), the case dealt with the forfeiture of a house traced to the crime of harboring aliens for personal financial gain.

In United States v. Cheeseman, 600 F.3d 270 (3d Cir.2010), the case dealt with the forfeiture of a large number of firearms for the crime of firearm possession by a felon.

In United States v. Wallace, 389 F.3d 483 (5th Cir.2004), the case dealt with the forfeiture of an airplane for violating the requirement to register the aircraft.

The courts have generally found that § 5316 governs a person’s failure to make a truthful declaration when transporting more than $10,000.00, “whether or not the money was derived from a legitimate business.” United States v. O’Banion, 943 F.2d 1422, 1432 (5th Cir.1991).

Settlement Agreements after Money is Seized at the Airport

After the money is seized at the airport for failure to comply with the reporting requirements, the Assistant United States Attorney (AUSA) might suggest that the parties reach a settlement agreement to avoid further litigation in the forfeiture action.

In those cases, the United States might agree to return all of the money seized at the airport by a Customs and Border Protection (CBP) agent under the following conditions:

Claimant agrees to abide by all criminal laws of the United States including 31 U.S.C. §§ 5316 and 5317 that prohibit transporting, attempting to transport, or causing to transport (including by mail or other means) currency or other monetary instruments in an aggregate amount exceeding $10,000 (or its foreign equivalent) at one time from the United States to any foreign country, or into the United States from any foreign country, without filing a report with CBP.

The report is called the Report of International Transportation of Currency or Monetary Instruments, FinCEN Form 105. The form can be obtained at all U.S. ports of entry and departure or on the internet at www.fincen.gov and is currently available at https://www.fincen.gov/sites/default/files/shared/fin105_cmir.pdf.

The AUSA might be more willing to reach a settlement or decline to file a complaint if your attorney provides documentation showing a legitimate source and intended purpose for the funds.

Documents requested to make this showing might include:

• at least three (3) years of tax return;
• a letter from your employer showing your annual income
• twelve (12) months of bank statements showing withdraws of the seized currency (please highlight the withdraws);
• a bill of sale; and
• any other supporting documents.

Forms Used for Unreported Currency Seizures by CBP

After the seizure of your money, the agent with CBP might provide you with the following forms:

1. Information on Petitioning Rights Form –
   • explains petitioning rights concerning the above seizure/case number
   • within 60 days, you should receive a “Formal Notice of Seizure” advising you of your rights with respect to the property seized
   • during that time, you should also receive a form entitled “Election of Proceedings” that lists the FP&P Case Number and Seizure Number
   • if you do not receive personal notice in the mail, you can find the notice published online at forfeiture.gov
2. Monetary Instruments Reporting Requirements Form –
   • explains why U.S. Law (the Currency and Foreign Transactions Reporting Act – 31 USC 5311 et seq.) requires that when any combination of monetary instruments totaling $10,000 or more in U.S. dollars or foreign equivalent are transported or about to be transported must be reported to CBP on aa FinCEN Form 105 (formerly Customs Form 4790).
3. Receipt Acknowledgement Form Monetary Instruments Form –
   • requires acknowledgment of receiving the Information of Petition Letter and the Monetary Instruments Warning Letter.
4. Custody Receipt and Seized Property and Evidence (DHS Form 6051S(8/09) –
   1. form from the U.S. Department of Homeland Security references Handbook 5200-09 and lists the FPF No., Incident No., Investigative Case No., EID Event Number, Date and Time Seized, FDIN/Misc., Contact Information for the Person from whom the Asset was Seized From; and Property.

Section 896.104(3) on Financial Structuring by Evading Reporting Requirements

Section 896.104(3), Florida Statutes regarding Financial Structuring by Evading Reporting Requirements prohibits failing to report the importation of currency in excess of $10,000.

In Carbajal v. Forfeiture of: U.S. Currency $75,781.00: Miami-Dade Police Department, 35 FLW D900b (Fla. 3d DCA 4/21/10), the Third District Court of Appeal held that insufficient evidence was presented which would qualify the currency as contraband under Florida law.

The court reasoned that the failure to disclose and report the importation of $75,781 into the United States through Florida did not make the currency forfeitable as an instrumentality of a violation of the Florida Contraband Forfeiture Act.

Additional Resources

FinCEN 105 Form – Find a link to the fillable FinCEN 105 form required by 31 U.S.C. 5316 and Treasury Department regulations (31 CFR Chapter X). Learn more about who must file the form including any person who receives or physically transports or causes to be physically transported currency or other monetary instruments “in an aggregate amount exceeding $10,000 at one time” from the United States to any place outside the United States or into the United States from any place outside the United States. Find information on when funds to not need to be disclosed and exceptions to these general rules.

Finding an Attorney for Seizures of Unreported Cash at the Airport

If you are traveling out of the country with more than $10,000 cash on your person or in your group, then you should always file a FinCEN 105 form.

If you are accused of failing to report truthfully the amount of U.S. currency or monetary instruments that you are transporting, then you can be accused of violating 31 U.S.C. § 5316.

Pursuant to 31 U.S.C. § 5317(c)(2), the United States government can seek forfeiture of the currency seized.

The attorneys at Sammis Law Firm in downtown Tampa, FL, can help you if your currency is subject to forfeiture pursuant to § 5317(c)(2) because it was the subject of a violation of § 5316.

In many of these cases, the undisclosed currency was not derived from criminal activity and should not be subject to forfeiture.

We can help you contest the factual basis for the alleged violation of § 5316 to show that the currency is not subject to civil forfeiture pursuant to § 5317.

If you are accused of transporting United States currency from the United States to another country without reporting that amount of currency, in violation of 31 U.S.C. § 5316, we can help you fight any attempt by the government to subject the money to forfeiture pursuant to 31 U.S.C. § 5317(c)(2).

Our attorneys can also help you appeal the district court’s determination that you violated 31 U.S.C. § 5316(a)(1)(A) by knowingly failing to report that you were traveling with more than $10,000.00 in cash.

We represent clients charged with crimes related to bulk cash smuggling, 31 U.S.C. §§ 5316, 5332, or making a false statement to a federal officer, 18 U.S.C. § 1001.

Call 813-250-0500.

This article was last updated on Thursday, January 19, 2023.