United States v. David Vyner
2017 U.S. App. LEXIS 1492
| D.C. Cir. | 2017Background
- In 2011 Vyner was indicted for violating 18 U.S.C. § 1546(a) (possession of an altered immigration document) and for aggravated identity theft under 18 U.S.C. § 1028A(a)(1); he pled guilty in 2014 to § 1546(a) (Count 1) and the government dismissed Count 2 per the plea agreement.
- At plea, the government proffered that agents found an Albanian diplomatic passport in Vyner’s hotel room with Vyner’s photo pasted over the original, an expired printed expiration date (Jan 25, 2010), and a stamped entry stating “VALID UNTIL DEC 2015”; consular certification showed the stamp did not validly extend the passport.
- Vyner admitted he knowingly possessed the altered passport but later challenged counsel’s advice to plead guilty, arguing ineffective assistance under Strickland because § 1546(a) does not cover foreign-issued passports or expired passports.
- The district court accepted the plea and sentenced Vyner to 364 days’ imprisonment. Vyner appealed claiming counsel was constitutionally deficient for advising the plea.
- The D.C. Circuit reviewed de novo whether counsel’s performance was deficient and applied the contemporaneous-assessment rule from Strickland.
Issues
| Issue | Vyner’s Argument | Government/Counsel’s Argument | Held |
|---|---|---|---|
| Whether § 1546(a) covers foreign-issued passports | §1546(a) applies only to U.S.-issued entry documents; foreign passports are not “prescribed by statute or regulation for entry” | Circuit precedent (2d & 5th) and statutory/regulatory predicates identify foreign passports as entry documents for aliens, so §1546(a) covers them | Counsel not deficient for relying on existing 2d/5th Circuit interpretations; court did not resolve statute’s ultimate meaning |
| Whether §1546(a) requires that the foreign passport be unexpired/valid to be covered | Because the passport was expired, possession did not meet the statute’s predicate (valid/unexpired) | Fraudulent/counterfeit/altered passports are by definition not "valid," so §1546(a) criminalizes knowing possession of altered/forged passports even if expired in their altered/counterfeit state | Counsel not deficient for following prevailing reading that §1546(a) covers altered foreign passports regardless of expiration status |
| Whether counsel’s failure to litigate these statutory arguments made his assistance deficient under Strickland | Counsel should have advised against pleading guilty because the law did not clearly reach Vyner’s conduct | At plea time, no contrary circuit authority undermined the 2d/5th Circuit holdings; plea avoided a mandatory 2-year sentence on Count 2 | Performance was within reasonable professional norms; no deficiency shown |
| Whether prejudice inquiry must be reached after showing deficient performance | Vyner asserted he would not have pled guilty if properly advised | Government emphasized plea benefits (dismissal of Count 2 carrying mandatory 2 years) and prevailing law supported counsel’s choice | Court did not reach prejudice prong because Vyner failed to show deficient performance |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing two-prong ineffective assistance standard)
- Hill v. Lockhart, 474 U.S. 52 (ineffective-assistance standard applied to plea negotiations)
- United States v. Rahman, 189 F.3d 88 (2d Cir.) (holding foreign passports fall within §1546(a) predicates)
- United States v. Osiemi, 980 F.2d 344 (5th Cir.) (same conclusion as Rahman)
- United States v. Thomsen, 830 F.3d 1049 (9th Cir.) (holding §1546(a) does not apply to U.S. passports; distinguished here)
- Lockhart v. Fretwell, 506 U.S. 364 (contemporaneous assessment principle in ineffective-assistance review)
- Premo v. Moore, 562 U.S. 115 (noting plea-bargain strategic choices and Strickland scrutiny)