UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOHN DOE, a.k.a. Hagla, Defendant-Appellant.
No. 09-15869
United States Court of Appeals for the Eleventh Circuit
October 26, 2011
D. C. Docket No. 09-20598-CR-KMM. [PUBLISH]. FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT OCTOBER 26, 2011 JOHN LEY CLERK.
(October 26, 2011)
Before BARKETT and MARCUS, Circuit Judges, and RESTANI,* Judge.
MARCUS, Circuit Judge:
After thorough review, we conclude that the evidence was sufficient to support Doe‘s convictions and that the district court properly applied the obstruction-of-justice enhancement to his sentence. Accordingly, we AFFIRM.
I.
A.
This case is about passport application fraud. Because of its importance to
The U.S. passport, either in book or card form, may be issued only “to U.S. citizens or non-citizen nationals.” The second page contains this unambiguous
B.
On Saturday, June 27, 2009, Doe went to the Miami Passport Agency (a part of the United States Department of State Bureau of Consular Affairs) to apply for a United States passport. Doe met with Adjudication Manager Rodolfo Rodriguez
Concerned about the bona fides of the application, Rodriguez asked Doe to
Rodriguez noticed that Doe was having difficulty filling out the supplemental worksheet. When Doe handed the supplemental worksheet to Rodriguez, Rodriguez also noticed that the handwriting on the worksheet and on the passport application form were different. Although this raised a “red flag,” Rodriguez did not mention the discrepancy to Doe. Rodriguez asked Doe how he had come to the United States from Jamaica. Doe explained that he had done so using a Jamaican I.D. and the U.S. Virgin Islands birth certificate. Rodriguez then asked Doe if he had the Jamaican I.D. with him; Doe replied that he had probably left it at home. Rodriguez told Doe that he needed to see the Jamaican I.D., asking him to bring it with him to the passport agency on Monday, June 29, along with any other documentation corroborating his name, date of birth, and place of birth. Doe said that he would bring these documents with him the following Monday, offering no sign that he intended to abandon his efforts to obtain a passport. Rodriguez returned the passport application form and supplemental worksheet to
Notably, two days later, on Monday, June 29, 2009, Doe returned to the Miami Passport Agency office. In addition to bringing his passport application form, supplemental worksheet, and two photos of himself, Doe also brought a U.S. Virgin Islands birth certificate, as proof of citizenship, and a Florida driver‘s license and a U.S. Virgin Islands driver‘s license, as proofs of identity.5 The U.S. Virgin Islands driver‘s license, which had been issued on December 22, 2008, contained Laurn Daniel Lettsome‘s name and date of birth but displayed Doe‘s photo.
Upon entering the office, Doe saw Manager Rodriguez and waved at him. Rodriguez took the documents Doe had brought with him and handed them to Louis Cordoba (“Cordoba“), the most senior passport specialist in the office at the time. Cordoba took over the case. Cordoba observed that, during the time he spent with Doe, Doe appeared to be “a little bit nervous,” and talked a lot. Doe complained that Rodriguez had given him a “hard time,” having asked him to produce still more documents. Cordoba recorded the information from the birth certificate onto the passport application form, administered an oath to tell the truth, had Doe sign the application (which he did in Lettsome‘s name), collected the
Because of suspected fraud, Doe‘s application was referred to the Miami Passport Agency‘s fraud office. Aura Arauz-Figueroa (“Arauz-Figueroa“), a fraud prevention manager, was charged with running a series of checks to determine whether Doe had submitted a fraudulent application. After running these checks, Arauz-Figueroa and the fraud office determined that Doe was very likely an imposter. Through her search, Arauz-Figueroa also discovered that, in 2006, someone had applied for a passport using L.D.L.‘s name but had subsequently abandoned the application. The photograph that was submitted with the 2006 application was not of Doe. The fraud team referred Doe‘s application to the
On Tuesday, June 30, 2009, Juan Ramirez (“Ramirez“), a Special Agent at the Diplomatic Security Service, began investigating Doe‘s case. Ramirez ran a series of database checks based on the information Doe had provided in his application form and supplemental worksheet. These checks revealed that there were three addresses associated with L.D.L.‘s name, date of birth, and social security number -- one in Ohio, one in Florida, and one in the U.S. Virgin Islands. The database checks also enabled Ramirez to identify a person named Joyce Lettsome (“J.L.“), who shared L.D.L.‘s last name and who Ramirez thought might be related to L.D.L. because they shared a similar address. Ramirez discovered J.L. had a U.S. passport and that she worked at a hospital in St. Thomas, in the U.S. Virgin Islands.
Ramirez called Joyce Lettsome, and learned that Laurn Daniel Lettsome was her nephew and that he was with her in the hospital at the time. While on the phone with Ramirez, J.L. asked L.D.L. whether he had sold his birth certificate, explaining to him that she was on the phone with an agent who told her that someone in the United States had stolen his identity. Ramirez faxed Doe‘s passport application and supporting documentation to J.L. so that she could verify
Ramirez then went to the Miami Passport Agency to wait for Doe, who was scheduled to pick up his passport that day (July 1, 2009). Some time after 2 pm, Doe arrived at the passport agency and proceeded to the will call window to retrieve his passport. Manager Arauz-Figueroa, who was also waiting for Doe‘s arrival, called him into an interview room, where Special Agent Ramirez and Special Agent Alexander Yu (“Yu“) were waiting to interview him. Ramirez began by telling Doe that he and Yu were with the Department of State and that they were going to review Doe‘s passport application with him.
Ramirez showed Doe his application form and had Doe confirm that this was the application he had submitted. Ramirez walked Doe through each piece of identifying information he had supplied, asking him to confirm whether his name was Laurn Daniel Lettsome, his date of birth was September 2, 1983, and his social
Ramirez showed Doe a photo of J.L. and asked him if he knew who the person in the photo was, or if he knew her name. Doe responded that he did not. Ramirez showed Doe a photo of the person in Ohio who had applied for a passport using L.D.L.‘s information and asked him if he knew this person. Again Doe replied in the negative. When Ramirez told Doe that this person had applied for a passport under L.D.L.‘s name, Doe responded that this person may have stolen his identity. At that point, Ramirez identified himself as a Special Agent with the Diplomatic Security Service and informed Doe about the consequences of making any materially false statements. Doe nevertheless continued to maintain that he was Laurn Daniel Lettsome.
Ramirez then placed Doe under arrest and conducted a search incident to the arrest. Ramirez found the following items on Doe‘s person: (1) the U.S. Virgin Islands driver‘s license (with L.D.L.‘s information but Doe‘s photo); (2) the Florida driver‘s license (with L.D.L.‘s information but again containing Doe‘s photograph); (3) L.D.L.‘s original social security card; (4) a Bank Atlantic debit card in L.D.L.‘s name; (5) the passport payment receipt for $160 in L.D.L.‘s name;
C.
A criminal complaint against Doe was filed on July 2, 2009. On the morning of July 2, before his initial court appearance and before he was appointed counsel, Doe was interviewed by United States Probation Officer (“USPO“) Suzanna Silva (“Silva“). Before the interview began, USPO Silva explained to Doe that he had a right to have his attorney present, that any information provided would be used for bond purposes, and that, if he provided any false information, it could be used against him to deny him bond. USPO Silva also told Doe that if there was a question he did not want to answer, she would prefer he not answer it rather than provide false information. Silva then asked Doe how his name
On the afternoon of July 2, Doe had an initial appearance before the magistrate judge. At the start of the hearing, the government asked the magistrate judge, “to the extent that you put [Doe] under oath, [to] advise him that he is under oath and potentially subject to perjury charges if he does not testify truthfully.” Before the oath was administered, the following colloquy ensued:
THE COURT: Good afternoon, sir. Before I ask you any questions, I do want to say that you have the right to remain silent in response to any one of my questions. All right. Anything you say in these proceedings may be used against you. Do you understand?
THE DEFENDANT: Yes.
THE COURT: All right. Can you give me your full name?
THE DEFENDANT: Do I have to give my real name?
THE COURT: What was the last name?
THE DEFENDANT: My full name is Rohan Brown.
THE COURT: Juan Brown?
THE DEFENDANT: Rohan Brown.
THE COURT: Rohan Brown. Okay. . . .8
Following the hearing, the magistrate judge appointed a Federal Public Defender to represent Doe, and ordered him temporarily detained without bond. A pretrial detention hearing was held on July 8; the magistrate judge ordered Doe to be detained without bond because he was a flight risk.
On July 16, 2009, “John Doe” a/k/a “Hagla” was charged by a federal grand jury sitting in the Southern District of Florida in a three-count indictment: one count for willfully and knowingly making a false statement in a passport application, in violation of
Doe initially pled not guilty to all three counts. But on August 31, 2009, right before his trial was to begin, Doe pled guilty to Count 1. Doe went to trial on Counts 2 and 3 -- the aggravated identity theft counts.
At trial, the real Laurn Daniel Lettsome testified. He confirmed that the name, date of birth, place of birth, social security number, and mother‘s name that Doe had listed on his passport application were all his. L.D.L. said that he had not filled out the passport application Doe submitted on June 29, 2009, that he had not given anyone permission to do so in his name, that the signature on the application was not his, and that the photograph attached to that application was not of him. Moreover, L.D.L. testified that he had not given Doe permission to apply for a U.S. passport using either his name or social security number. L.D.L. explained that he did not know any of the references Doe had listed on his application -- such as the emergency contact, Charlie Williams, or the employer, Gary Jackson.
Lettsome testified that the birth certificate Doe had submitted was in fact his. When asked about the Florida driver‘s license and the U.S. Virgin Islands driver‘s license, L.D.L. testified that he did not have and never had a driver‘s license, either from Florida, the Virgin Islands, or from anywhere else. When shown the Florida
When asked how his birth certificate and social security card ended up with someone else, Laurn Daniel Lettsome recounted that, one or two years earlier, he had lost these documents while getting a ride from someone in St. Thomas. These documents were in his wallet, and he forgot his wallet in the car. L.D.L. testified that he had lost his documents “many times, many times,” that he had these documents with him “at all times,” but that he never gave these documents to anyone to use. L.D.L. explained that he did not know Doe, had never met him, and did not know how Doe ended up with his documents.
The government also called Mario Rallo (“Rallo“), the records custodian for the Florida Department of Highway Safety and Motor Vehicles, Division of
Upon verification, the applicant is obliged to provide the examiner with proof of his address, which is also entered into the FDLIS system. A photograph is taken of the applicant. The applicant is then required to sign a signature pad and, in doing so, must attest that all the information he has provided is true and correct. The examiner will regularly ask the applicant whether he “swear[s] or affirm[s] that all the information [he] provided in th[e] application is true and correct.” If the applicant answers affirmatively, he pays a fee and is issued a driver‘s license.
According to the Florida DMV‘s records, when Doe went to the Florida DMV on March 2, 2009, he presented the U.S. Virgin Islands birth certificate (with Lettsome‘s information) as his primary document, and Lettsome‘s social security card and the U.S. Virgin Islands driver‘s license (but again utilizing Doe‘s photo) as his secondary documents. Doe‘s social security number was successfully verified as real, and Doe was issued a Florida driver‘s license in L.D.L.‘s name.
At the close of the evidence at trial, Doe moved for a judgment of acquittal, pursuant to Fed. R. Crim. P. 29, arguing, among other things, that there was insufficient evidence to show that he knew Laurn Daniel Lettsome was a real person. The district court, however, denied the motion, concluding that the government had presented sufficient evidence to send the question to the jury,
Because of the false information Doe provided to USPO Silva during his pretrial services interview -- information included in a pretrial services report that was prepared for the magistrate judge and that was to be used at Doe‘s bond hearing -- the Presentence Investigation Report (“PSI“) recommended that Doe‘s sentence be enhanced by two levels for obstruction of justice, pursuant to U.S.S.G. § 3C1.1.9 The PSI stated that the inclusion of this false information in the pretrial services report “led to the probation officer providing written, inaccurate information to a magistrate judge and thus, impeding justice.” According to the PSI, Doe gave USPO Silva this false information “in an attempt to secure bond and impede the investigation.” Doe‘s base offense level of 8 was thus increased to 10. With an offense level of 10 and a criminal history category of I, Doe‘s Guidelines range was 6 to 12 months for Count 1. As for Counts 2 and 3,
The district court sentenced Doe to a six month term of imprisonment on Count 1, and terms of twenty-four months’ imprisonment on Counts 2 and 3, to run concurrently to each other but consecutive to the sentence in Count 1. After the district court pronounced sentence, Doe again objected to the obstruction-of-justice enhancement.
II.
A.
We review de novo whether there is sufficient evidence to support a jury‘s verdict in a criminal trial. United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). In so doing, we “view the evidence in the light most favorable to the government and resolve all reasonable inferences and credibility evaluations in favor of the jury‘s verdict.” United States v. Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007) (internal quotation marks omitted).
“Evidence is sufficient to support a conviction if a reasonable trier of fact
“The test for sufficiency of evidence is identical regardless of whether the evidence is direct or circumstantial, and no distinction is to be made between the
B.
The aggravated identity theft statute provides, in relevant part, that
[w]hoever, during and in relation to any felony violation enumerated in [
18 U.S.C. § 1028A(c) ], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.
In Flores-Figueroa, the Supreme Court offered several ways how, in “the classic case of identity theft,” the knowledge element would be easy for the government to prove:
For example, where a defendant has used another person‘s identification information to get access to that person‘s bank account, the Government can prove knowledge with little difficulty. The same is true when the defendant has gone through someone else‘s trash to find discarded credit card and bank statements, or pretends to be from the victim‘s bank and requests personal identifying information.
Flores-Figueroa, 129 S. Ct. at 1893. The list offered by the Supreme Court was not meant to be exhaustive. See Gomez-Castro, 605 F.3d at 1248 (“[T]his list of
In United States v. Holmes, 595 F.3d 1255 (11th Cir. 2010) (per curiam), cert. denied, 131 S. Ct. 1546 (2011), a panel of this Court affirmed a conviction for aggravated identity theft based on the circumstantial evidence offered by the government concerning the knowledge element of
Similarly, in Gomez-Castro, 605 F.3d 1245, a panel of this Court again affirmed a conviction for aggravated identity theft based on the circumstantial evidence presented by the government. We explained that “[b]oth the circumstances in which an offender obtained a victim‘s identity and the offender‘s later misuse of that identity can shed light on the offender‘s knowledge about that identity.” Id. at 1248. Relying heavily on Holmes, we found that the circumstantial evidence presented by the government regarding Gomez-Castro‘s later misuse of the victim Collazo‘s identity supported Gomez-Castro‘s conviction. In particular, we highlighted the following evidence regarding Gomez-Castro‘s previous uses of Collazo‘s identity:
Before she presented the passport for entry in 2008, Gomez Castro had repeatedly and successfully tested the authenticity of the birth certificate and social security card: she used them to obtain a New York driver‘s license and benefit card, two credit cards, a bank card, and the United States passport used in this crime. This circumstantial evidence supports a finding that Gomez-Castro knew the Collazo identity belonged to a real person when she later presented the passport bearing that identity to the border officer.
We also rejected Gomez-Castro‘s attempt to distinguish Holmes on the ground that, unlike in Holmes, the government did not present evidence of the verification processes used by state and federal governments. We reasoned that even absent the detailed evidence of the “rigorous verification processes used by the government for the issuance of licenses to drive and passports” presented by the government in Holmes -- and in this case -- “a rational trier of fact could have found that Gomez-Castro knew at least that the New York and federal governments obtained proof of an applicant‘s identity to verify that identity.” Id. The government was not required to present any special proof on the point because “[t]hat knowledge can be inferred reasonably based on ordinary human experience for which no special proof is required; a trier of fact can rely on common sense.” Id. (citing United States v. Cruz-Valdez, 773 F.2d 1541, 1546-47 (11th Cir. 1985) (en banc)). Based on Holmes and the circumstantial evidence that the government had presented regarding Gomez-Castro‘s numerous past successes in using Collazo‘s identifying information, we concluded that “a rational trier of fact could have found beyond a reasonable doubt that Gomez-Castro knew the identity belonged to a real person when she presented the passport to gain entry into the United States.” Id. at 1250.
Holmes and Gomez-Castro stand for the unremarkable proposition that a
Perhaps most significant, Doe repeatedly and successfully tested the authenticity of Laurn Daniel Lettsome‘s identifying information prior to submitting the passport application to the United States Department of State. The government presented evidence that Doe used L.D.L.‘s original birth certificate and social security card to obtain driver‘s licenses in two separate jurisdictions: first, from the
Doe‘s attempts to distinguish Holmes and Gomez-Castro are unpersuasive. Doe emphasizes that in both of those cases, unlike this one, the offenders each successfully obtained a passport and used the victim‘s identifying information to obtain a line of credit. See Gomez-Castro, 605 F.3d at 1249; Holmes, 595 F.3d at 1257. But Doe‘s singular focus on particular misuses of identifying information present in those cases, but not in this one, misses the broader point that Doe, like the offenders in Gomez-Castro and Holmes, repeatedly and successfully subjected the identifying information at issue to verification, including government verification, and that a rational factfinder could have concluded that these repeated successes provided the requisite knowledge that the identifying information belonged to a real person.
Moreover, the circumstantial evidence presented by the government about knowledge in this case went far beyond Doe‘s past successes in using L.D.L.‘s
Despite these clear warnings, Doe‘s subsequent conduct during the application process could be taken to have shown unfaltering confidence in his ability to obtain a United States passport using L.D.L.‘s identifying information. During Doe‘s first visit to the Miami Passport agency on June 27, 2009, he presented Adjudication Manager Rodriguez a U.S. Virgin Islands birth certificate and Florida driver‘s license with L.D.L.‘s identifying information. Rodriguez asked Doe why his Florida driver‘s license was issued so recently and where he was raised, and ultimately asked Doe to fill out a supplemental worksheet. Doe did
Showing no trepidation about the possibility that L.D.L.‘s identifying information was not genuine and that the passport agency would discover this, Doe returned to the Miami Passport Agency on June 29, as Rodriguez had instructed. Notably, Rodriguez had expressed doubts about documents supporting Doe‘s application. Nevertheless, when Doe arrived, he waved at Rodriguez, and later complained to Senior Passport Specialist Cordoba that Rodriguez had given him a “hard time” on his first visit. After giving Cordoba his passport application and the supporting documentation, and after taking a verbal oath regarding the veracity of the application, Doe paid the application fee and was scheduled to return to the office still again, two days later, to pick up his passport. Doe left his application and the supporting documentation with L.D.L.‘s identifying information at the passport agency, including the U.S. Virgin Islands birth certificate and photocopies of both the Virgin Islands and Florida driver‘s licenses.
Again showing no hesitation, Doe entered the Miami Passport Agency for a third time on July 1, 2009, at which point the events that followed led to Doe‘s
III.
Doe also claims that the district court erred in applying a two-level sentence enhancement for obstruction of justice under
In reviewing the district court‘s imposition of an obstruction-of-justice sentencing enhancement, we review the district court‘s factual findings for clear error and we review its application of the factual findings to the sentencing guidelines de novo. United States v. Tampas, 493 F.3d 1291, 1303 (11th Cir. 2007); United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). Moreover, we
We begin with the relevant portions of the sentencing guidelines.
(A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant‘s offense of conviction and any relevant conduct; or (ii) a closely related offense.
In interpreting this guideline, we have said that “[t]he relevant question is whether the obstructive conduct occurred during the course of the investigation, prosecution, or sentencing” of the offense of conviction or a closely related offense. United States v. Campa, 529 F.3d 980, 1016 (11th Cir. 2008).
There is no question that Doe‘s obstructive conduct occurred during the investigation and prosecution of the aggravated identity theft offenses. The application of the obstruction-of-justice enhancement to Doe‘s sentence was based
The commentary accompanying
At no point does Doe challenge the fact that he provided false identifying information to Silva. Doe claims only that the false statements to the probation officer were not “material,” because they did not actually hinder or affect the magistrate judge‘s bond determination, and because Doe abandoned the use of L.D.L.‘s name at his initial appearance before the magistrate judge. This argument is misplaced, and misstates the relevant inquiry. The commentary to the enhancement guideline defines “material” information as “information that, if believed, would tend to influence or affect the issue under determination.”
Doe also claims that his conduct was analogous to providing a false statement to a law enforcement officer upon arrest, and therefore the government had to show that his conduct “significantly obstructed or impeded the official investigation or prosecution of the instant offense.”
Doe‘s final objection to the obstruction-of-justice enhancement is raised for the first time on appeal. Doe now claims that the application of the enhancement based on his false statements during his interview with USPO Silva violated his Fifth Amendment due process rights, because Silva did not Mirandize Doe before interviewing him for the purpose of preparing the pretrial services report.
We are not persuaded that Doe has demonstrated any error, much less the plain error that is required of sentencing issues raised for the first time on appeal. Silva‘s request for Doe‘s biographical information in preparing a pretrial services report was not an interrogation for Miranda purposes. Rather, Silva‘s questions fell within the well-established “routine booking exception” to Miranda‘s coverage for questions posed to the defendant “to secure the biographical data necessary to complete booking or pretrial services.” Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990) (emphasis added) (internal quotation marks omitted); see also United States v. Sweeting, 933 F.2d 962, 965 (11th Cir. 1991) (“An officer‘s request for routine information for booking purposes is not an interrogation under Miranda, even
Accordingly, we AFFIRM Doe‘s convictions and sentence for aggravated identify theft under
I concur, believing that United States v. Gomez-Castro, 605 F.3d 1245 (11th Cir. 2010) and United States v. Holmes, 595 F.3d 1255 (11th Cir. 2010), cert. denied, 131 S. Ct. 1546 (2011) dictate affirmance.