757 F.2d 1315 (D.C. Cir. 1985), 84-5111, United States v. Mount

Docket Nº:84-5111.
Citation:757 F.2d 1315
Party Name:UNITED STATES of America v. Charles M. MOUNT, Appellant.
Case Date:March 26, 1985
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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757 F.2d 1315 (D.C. Cir. 1985)

UNITED STATES of America

v.

Charles M. MOUNT, Appellant.

No. 84-5111.

United States Court of Appeals, District of Columbia Circuit

March 26, 1985

Argued Oct. 3, 1984.

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Appeal from the United States District Court for the District of Columbia (D.C.Criminal No. 83-00228).

Neil H. Jaffee, Washington, D.C. (appointed by this court) for appellant.

Douglas J. Behr, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, D.C., were on brief, for appellee. Royce C. Lamberth, Asst. U.S. Atty., Washington, D.C., entered an appearance for appellee.

Before WRIGHT and BORK, Circuit Judges, and HAROLD H. GREENE, [*] District Judge.

Opinion for the court filed by District Judge GREENE.

Concurring opinion filed by Circuit Judge BORK.

HAROLD H. GREENE, District Judge:

This is an appeal from a conviction of making a false statement in an application for a passport in violation of 18 U.S.C. Sec. 1542. Appellant claims, first, that the District Court erred in failing to order the suppression of evidence seized by British police officers during the search of his residence in Great Britain, and second, that the evidence was insufficient to support the guilty verdict. We affirm.

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I

On January 29, 1983, Charles Merrill Mount, a United States citizen, was arrested by British police officers in the village of Henley, England, for failing to return a rental car on time. He was searched at the police station and, while he was still in police custody, the officers also searched his residence on two separate occasions. 1 As a result of the searches, the officers discovered five different United States passports, in the names respectively of Charles Merrill Mount, Charles David Kern, Thomas Kelly Clinard, Edward George Hearn, and Sidney C. Nussenbaum. 2 These passports and other evidence were eventually turned over to the American authorities, but United States officials did not become involved in appellant's problems with the British police until after the searches had been completed. 3

Some nine months later, appellant was indicted by a grand jury in the U.S. District Court for the District of Columbia on four counts of making false statements. After a jury trial, he was acquitted of three of the charges (relating to the Clinard, Hearn, and Nussenbaum passport applications) and convicted of one (that relating to the application for the Kern passport). Judge William B. Bryant suspended the imposition of sentence and placed appellant on probation for a period of one year. This appeal followed.

II

Appellant contends that the District Court erred in denying his motion to suppress the passports and other evidence 4 seized by the British police as a result of the searches of his residence in England and subsequently furnished to United States prosecutorial authorities. It is his contention that use of this evidence in a trial in federal court violates the Fourth Amendment's exclusionary rule. We hold that this doctrine does not warrant suppression in these circumstances.

The principal purpose of the exclusionary rule is the deterrence of unlawful police conduct, the theory being that such deterrence tends to foster obedience to the mandate of Fourth Amendment. United States v. Janis, 428 U.S. 433, 446, 96 S.Ct. 3021, 3028, 49 L.Ed.2d 1046 (1976); United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974); Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960). In circumstances where application of the rule does not result in appreciable deterrence, its use is not warranted. United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Desist v. United States, 394 U.S. 244, 254 n. 24, 89 S.Ct. 1030, 1036 n. 24, 22 L.Ed.2d 248 (1969); United States v. Calandra, supra.

It is obvious, and the decisions have therefore recognized, that since United States courts cannot be expected to police law enforcement practices around the world, let alone to conform such practices to Fourth Amendment standards by means of deterrence, the exclusionary rule does not normally apply to foreign searches conducted by foreign officials. See, e.g., United States v. Janis, supra, 428 U.S. at 455-56 n. 31, 96 S.Ct. at 3032-33 n. 31; United States v. Hensel, 699 F.2d 18, 25 (1st Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1317 (1983); United States v. Cotroni, 527 F.2d 708, 711-12 (2d Cir.1975),

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cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1976); United States v. Hawkins, 661 F.2d 436, 455-56 (5th Cir.1981), cert. denied, 456 U.S. 991, 102 S.Ct. 2274, 73 L.Ed.2d 1287 (1982); Stowe v. Devoy, 588 F.2d 336, 341 (2d Cir.1978), cert. denied, 442 U.S. 931, 99 S.Ct. 2862, 61 L.Ed.2d 299 (1979); United States v. Morrow, 537 F.2d 120, 139-40 (5th Cir.1976), cert. denied sub nom. Martin v. United States, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977); United States v. Rose, 570 F.2d 1358, 1361-62 (9th Cir.1978); United States v. Callaway, 446 F.2d 753, 755 (3rd Cir.), cert. denied, 404 U.S. 1021, 92 S.Ct. 694, 30 L.Ed.2d 670 (1972).

The exclusionary rule does apply to a foreign search if American officials or officers participated in some significant way, for in such a situation the deterrence principle may be deemed to operate. See, e.g., Stowe v. Devoy, supra; United States v. Morrow, supra; United States v. Rose, supra; Stonehill v. United States, 405 F.2d 738, 743 (9th Cir.1968), cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969). This exception to the usual foreign search rule does not provide any comfort to this appellant, however, for it is clear from the record that there was no United States participation whatever in either of the searches of his residence. As indicated above, note 3 supra, the American authorities did not even know about his first search until after the second search had been effected. The motion to suppress was properly denied by the District Court. 5

III

The second issue raised by the appeal is whether the evidence was sufficient to support the guilty verdict. 6 Under the terms of 18 U.S.C. Sec. 1542, the government must prove that the defendant made a false statement with knowledge of its falsity and that he had the specific intent to secure the issuance of a passport. Where use of a false name is charged, the prosecution must show, first, that the name was not, in fact, the defendant's name, and second, that the defendant assumed the name for a fraudulent purpose. See United States v. Cox, 593 F.2d 46 (6th Cir.1979).

Appellant argues that the name Charles David Kern was not a false name, his theory being that at common law an individual has a right to adopt any name that he chooses without necessarily proceeding by way of a petition to a court for a formal change of name, and that he had simply availed himself of that common law right. Appellant's legal premise is correct; 7 but that does not help him on the facts of this case.

Briefly, it was appellant's contention at the trial that he used the Kern name (as well as the names of Clinard, Hearn, and Nussenbaum) 8 to escape from the harassment of an attorney working for

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his mother or his wife's family 9 and to allow him to cope with well-publicized litigation concerning his work as an art historian. 10

While recital of these purposes does not appear, on its face, to present a credible defense, it also cannot, without more, be dismissed out of hand. Accordingly, the District Court quite properly submitted appellant's theory of the case to the jury. 11 But it is obvious that the jury was not obliged to accept appellant's version--and we are not obliged to reverse--if that version was contradicted by credible evidence indicating a fraudulent purpose. There was ample evidence here of such a purpose.

First. Appellant not only had in his possession a valid passport in his own name (Mount), but over a five-year period he had applied for and secured passports in no less than four different other names. 12 That circumstance alone would seem to negate appellant's common law change of name theory, and it would likewise permit the trier of facts to infer a fraudulent purpose.

Second. Appellant's application for the Kern passport was supported by an Ohio birth certificate and a Virginia's driver license. Both of these documents were false. Here again, a fraudulent purpose springs easily to mind.

Third. Even more compelling evidence of such a purpose emerges from the facts surrounding appellant's acquisition of the Kern passport. Using his own name Charles Merrill Mount, appellant was convicted on March 8, 1982, on a plea of guilty in federal court in Virginia on a felony charge of making threatening telephone calls, 13 and he was ordered to return to court for sentencing on April 9, 1982. Seven days before the sentencing date, he applied for a passport in the Kern name 14--a fact which suggests that he sought to secure that particular passport so that, in the event the court sentenced him to serve a term of imprisonment, he could use it to flee 15 prior to the commencement of any such service...

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