United States v. Doe

• Decision Date: 26 October 2011
• Docket Number: No. 09–15869.,09–15869.
• Citation: 661 F.3d 550,23 Fla. L. Weekly Fed. C 507
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. John DOE, a.k.a. Hagla, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 507

661 F.3d 550

UNITED STATES of America, Plaintiff–Appellee,

v.John DOE, a.k.a. Hagla, Defendant–Appellant.

No. 09–15869.

United States Court of Appeals, Eleventh Circuit.

Oct. 26, 2011.

Ricardo Javier Bascuas, University of Miami School of Law, Coral Gables, FL, Michael T. Caruso, Fed. Pub. Def., Beatriz Galbe Bronis, Asst. Fed. Pub. Def., Miami, FL, for Appellant.

Michael J. Garofola, Anne R. Schultz, Asst. U.S. Atty., Kathleen M. Salyer, Lisa T. Rubio, Madeleine R. Shirley, Miami, FL, for Appellee.

Appeal from the United States District Court for the Southern District of Florida.Before BARKETT and MARCUS, Circuit Judges, and RESTANI,^* Judge.MARCUS, Circuit Judge:

John Doe (“Doe”)¹ appeals his convictions for aggravated identity theft, principally claiming the government did not produce sufficient evidence that Doe knew the name and social security number he used in applying for a United States passport belonged to an actual person. Doe also argues that a two-level obstruction-of-justice enhancement was erroneously applied to his sentence because the admittedly false statements he made during his pretrial services interview were not material, because he did not intend to obstruct justice, and because no finding was made that he had actually obstructed justice. Finally, Doe says, for the first time on appeal, that use of his pretrial services interview statements against him violates the Fifth Amendment because he had not yet been Mirandized when the statements were made.

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 resolution of this case, we begin by describing in some detail the components of a United States (“U.S.”) passport application. To apply for an American passport, an applicant must submit: (1) a passport application form, (2) proof of U.S. citizenship, (3) proof of identity, (4) two recent color photographs, and (5) a fee. The application form and supporting documents must be submitted in person. A passport application form consists of two pages, ² which are attached to a four-page instruction sheet. If born in the United States, the applicant can establish citizenship by submitting a previous U.S. passport or certified birth certificate. An applicant can establish identity by submitting a document, such as a driver's license, that contains both the applicant's signature and either a physical description or photograph of the applicant. The instruction sheet explains, however, that “[w]hen necessary, we may ask you to provide additional evidence to establish your identity.”

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 warning: “[f]alse statements made knowingly and willfully in passport applications, including affidavits or other documents submitted to support this application, are punishable by fine and/or imprisonment under the provisions of 18 USC 1001, 18 USC 1542, and/or 18 USC 1621,” and that “[a]ll statements and documents are subject to verification.”³ The instruction sheet directs the passport applicant to provide his social security number if he has one. The form also explains that the State Department will provide the social security number to the Department of Treasury. The instruction sheet warns the applicant that the social security number will also be used “in connection with debt collection” and that the number will be checked against “lists of persons ineligible or potentially ineligible to receive a U.S. passport.” Finally, the instruction sheet warns the applicant that the information he provides may be made available to other government agencies in order to assist the Department of State in reviewing an applicant as well as “for law enforcement and administrative purposes.”

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 (“Rodriguez”), handing Rodriguez a completed passport application form, a U.S. Virgin Islands birth certificate, a Florida driver's license, and some photographs of himself. The application form, birth certificate, and driver's license were all in the name of “Laurn Daniel Lettsome” (“L.D.L.”), a real person and a U.S. citizen, but the photographs were of Doe, not Lettsome. The social security number (ending in 3903), date of birth (September 2, 1983), place of birth (St. Thomas in the U.S. Virgin Islands), and mother's name (Mae) listed on Doe's application form also belonged to the real L.D.L. Rodriguez testified that the birth certificate Doe submitted looked genuine, but that he wondered why the driver's license had been issued so recently, on March 2, 2009. When Rodriguez asked Doe about the license's recent issuance, Doe did not offer an explanation. Noticing that Doe spoke with an accent, Rodriguez asked Doe where he had been raised. Doe explained that he had been raised in Jamaica, where he had lived with his grandmother. Rodriguez testified at trial that, during his twelve years working at the passport agency, he had become familiar with the accent of people from the U.S. Virgin Islands and that Doe's accent did not sound like a U.S. Virgin Islands accent.

Concerned about the bona fides of the application, Rodriguez asked Doe to fill out a supplemental worksheet.⁴ Doe asked Rodriguez why he was “giving him such a hard time since he was a U.S. citizen.” Rodriguez explained to Doe that, although he, Doe, had established his citizenship through the U.S. Virgin Islands birth certificate, he had not yet established his identity.

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 Doe, and asked him to finish the worksheet and to bring it in with him on Monday.

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 $160 passport application fee, which Doe paid for in cash, and issued Doe a receipt. Cordoba explained that administering the oath involved asking Doe to raise his right hand while Cordoba asked him if he swore or affirmed “to the best of [his] belief that everything on the application is true to the best of [his] knowledge and that the photos are a true likeness of [himself].” Doe answered in the affirmative. Doe's application was scanned and entered into the passport office's computer system. Doe left the passport office and was scheduled to return two days later, on July 1, 2009, to pick up his passport. Doe left his passport application form, his supplemental worksheet, the U.S. Virgin Islands birth certificate, and photocopies of the two driver's licenses.

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 Diplomatic Security Service—the law enforcement branch of the Department of State—for further inquiry.

On...