U.S. v. Cox

Decision Date26 February 1979
Docket NumberNo. 78-5251,78-5251
Citation593 F.2d 46
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Forrest Richard COX, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Gershwin A. Drain, Kenneth R. Sasse, F. Randall Karfonta, Detroit, Mich., for defendant-appellant.

James K. Robinson, U. S. Atty., Kenneth J. Haber, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.

Before LIVELY, Circuit Judge, and PHILLIPS and PECK, Senior Circuit Judges.

LIVELY, Circuit Judge.

The defendant appeals from his conviction, after a jury trial, for making a false statement in an application for a passport in violation of 18 U.S.C. § 1542 (1976). 1 The indictment stated the charge upon which the conviction was based as follows:

That on or about March 11, 1975, in the Eastern District of Michigan, Southern Division, FORREST RICHARD COX, JR., defendant herein, willfully, unlawfully and knowingly did make and aid and abet in the making of a false statement in an application for a passport with intent to induce and secure for his own use the issuance thereof under the authority of the United States, contrary to the laws regulating the issuance of such passports and the rules prescribed pursuant to such laws, in that, in such application, executed at Detroit, Michigan, in the name of "Carl Richard Stein", Forrest Richard Cox, Jr., defendant herein, stated and caused to be stated that his name was "Carl Richard Stein" whereas in truth and fact, as he then knew, his name was not "Carl Richard Stein"; in violation of Section 1542 and 2, Title 18, United States Code.

Two other charges related to use of the name Carl Richard Stein were dismissed on motion of the government prior to trial.

The evidence introduced by the government proved two things: that the defendant was employed by the City of Detroit under the name Forrest Richard Cox and that he applied for a passport under the name Carl Richard Stein. His supervisor, a city personnel officer and several fellow employees all identified the defendant as Cox. At least one of these witnesses stated that she had also known the defendant to use a Muslim name on occasion.

The defendant took the stand and admitted making the passport application in the name of Stein. He testified he knew that athletes and entertainment personalities commonly adopted assumed names and that he thought there was nothing wrong in his doing it as well. The defendant explained that he had become interested in establishing a business of making hand tooled leather bags and that he assumed the name in furtherance of that ambition. He related that he had been convicted of a felony (grand larceny) seven years earlier while he was a college student and that he wanted to create a new identity, free of the stigma of his conviction. He stated that he had no other convictions and felt he was entitled to start over. He obtained a new driver's license and a new social security card in the name of Carl Richard Stein and established credit in that name with one or more Detroit financial institutions. On cross-examination the defendant testified that he had never filed for "an assumed name change" and had never registered his business under an assumed name.

At the conclusion of all the evidence counsel for the defendant made a motion for a judgment of acquittal. Though the record with respect to this motion does not appear to be complete, the thrust of the defense argument in support of the motion was that the only material question on the passport application relates to the citizenship of the applicant, a question which was answered truthfully in this case. The district court denied the motion, holding that it "would be a material false statement in connection with a passport application" if a person applied "in a name other than your own" and supplied documentation in support of that name.

A motion for acquittal pursuant to Rule 29, Fed.R.Crim.P., takes the place of a motion for directed verdict and raises the question of whether the evidence is sufficient to support a verdict. As the court pointed out in United States v. Jones, 174 F.2d 746, 748 (7th Cir. 1949), a motion for acquittal "is a challenge to the Government in the presence of the court that the Government has failed in its proof. The motion is not required by the rules to be in writing or to specify the grounds therefor." We conclude that the issue of sufficiency of the evidence was properly before the court.

The gravamen of the offense denounced in section 1542 is the making of a false statement. The securing or use of a passport is only made criminal if false statements are proven to have been involved in its procurement. "If the misrepresentation is withdrawn nothing culpable remains in the use." Browder v. United States, 312 U.S. 335, 337, 61 S.Ct. 599, 601, 85 L.Ed. 862 (1941). The question to be answered is whether the defendant in this case made a false statement in his application by using the name Carl Richard Stein.

Under the law of Michigan, where the defendant had lived since infancy except while away in college, a person may adopt any name he chooses, as at common law. In Piotrowski v. Piotrowski, 71 Mich.App. 213, 215-16, 247 N.W.2d 354, 355 (1976), the court stated this rule as follows:

Under the common law a...

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    ...properly raises the issue of sufficiency of the evidence even if the defendant fails to specify the grounds therefor. United States v. Cox, 593 F.2d 46, 48 (6th Cir.1979). There was no evidence that Nigro's possession of the firearms was unlawful and it was error to permit the jury to consi......
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