Every once in a while, while speed reading through the local dailies to catch the latest headlines worthy of gossip amidst fellow colleagues, a news report concerning the arrest of a local resident or a group of tourists for failing to declare a certain amount of cash to US Customs officers at the airport. Usually the details of the story would proceed at the time the Defendant is before the Magistrate Court where a guilty plea would be entered, followed by the accused reasons for making the declaration. Whatever the Magistrate’s says afterwards is stated in quote and a sentence is handed down, usually in the form of a stiff fine to be paid within a certain time or endure a short stay at the world famous Fox Hill Prison, nicknamed Fox ‘Hell’ Prison for obvious reasons. Certainly the final blow in sentencing would be the eventual confiscation of the cash taken away from the accused. A daunting portrait of the Accused in handcuffs led by a squad of officers accompanies the report and plastered on the newspaper’s website as a ‘parting gift’, the unfortunate byproduct of the Bahamian criminal justice system where a sunkissed visitor enjoying the proceeds of a lucky streak at the blackjack table becomes the media’s latest convict. It is a subject less discussed by residents, who would not hesitate to travel to Miami with their entire savings on school shopping trips, buying groceries for the tuck shop, or for the occasional family trip with the extended family.
What the Law Says
In recent years most travellers are equipped with prepaid credit cards, thereby eliminating the need to travel with large amounts of cash on hand. But for those who continue to travel with envelopes stuffed with US dollars, failing to declare that you are travelling with over $10,000.00 in cash (and getting caught) could lead to serious repercussions including the forfeiture of funds and criminal prosecution. As found in the United States of America and The Bahamas Pre-clearance Agreement Act (hereinafter referred to as ‘the USBPA Act’), any person departing from The Bahamas for entry into the United States on a pre-cleared flight must answer the questions of a US officer with respect to his luggage and anything contained therein or carried with him, and produce the same for examination if required.(1)
If a person makes a declaration which is false or incorrect, fails to answer questions put to him by the officer, or provides false or incorrect answers commits an offence and shall be liable to a fine of $2,000.00 or to imprisonment of two years or both, to which the currency, baggage or thing shall be liable to forfeiture.(2) The nature of the Act itself is one of strict liability, brought on by the obligations of US Custom officers having to rely on the accuracy of the declarations of travellers who cross the US border in large volumes.(3) As established case law suggests, the traveller must be fixed with the non-delegable responsibility for the accuracy of any declaration he makes. While a deliberate falsehood of a declarant is clearly illegal, an incorrect declaration which is not deliberately false can only be so by recklessness or carelessness.(4)
The USBPA Act empowers a peace officer (or persons acting under the directions thereof) to search an individual where there are reasonable grounds to suspect anyone departing from The Bahamas on a pre-cleared flight is carrying articles acquired outside the US and not declared to an US officer and may be liable to forfeiture.(5) US officers also have the right to refuse a person to depart from The Bahamas for entry into the United States, and who may also be subject to a fine or imprisonment if found boarding a pre-cleared flight after permission is refused by the US officer.(6) If an article is found in relation to an offence under the USBA Act on a person or in his luggage the item may be subject to forfeiture. (7)
It appears that the provisions of the USBPA Act are divided into two parts, whereby the gathering of information via questioning passengers and examination is carried out by the US officers while the enforcement thereof through physical search of the person and the prosecution is undertaken by Bahamian authorities. The purpose of the Act is to enable US authorities to carry out their functions as Customs and Immigration Officers, while on Bahamian soil, without infringing on the sovereignty of The Bahamas.(8)
In the Bahamas the USBPA Act provides a method of enforcement of the 31 US Code 5316, 31 CFR 1010.340 and 1010.306 which requires persons who are entering the US are required to declare currency, endorsed personal cheques, travellers cheques, gold coins, securities or stocks valued at $10,000.00 or more in possession, by filing a “Report of Declaration of Currency or Monetary Instruments” Form FinCEN 105 must be submitted to a CBP officer upon entering the US.
Is There a Limit to the Amount of Money that can be Brought into the US?
The mandatory declaration of physical cash appears to be a matter of compliance rather than restrictions on transporting cash, as there is no limit pertaining to the amount of money that can be taken out or brought into the US. In other words, declaring over $10K in cash is an issue of ensuring that ant-money laundering protocols are followed and persons choosing to transport this amount in cash should be prepared to demonstrate the source of funds and the purpose of the funds. If travellers wish to avoid the inconvenience of declaring funds there is no need to declare funds that are transferred through normal banking procedures which do not involve the physical transportation of currency or monetary instruments. The use of money remittance services such as Western Union and banking services should be considered before travelling with large amounts of cash, and if transporting bulk cash is necessary, be prepared to explain the origins of cash (i.e. where and how the cash was obtained) coupled with documentary proof, and the reasons for transporting cash in bulk. Non-residents who are returning to the US from the Bahamas may be in excess of $10K from gambling proceeds, or charitable or business events such as concerts, trade shows, or speaking engagements.
- 3 USTBPA Act
- 4 USBPA Act
- Seghair v Cartwright  BHS J. No.3, para.32
- See s.4 USBPA Act
- See s.5(2) USBPA Act
- See s.4(2) USBPA Act
- Minot v. Commissioner of Police  BHS J No.99