982 F.2d 1297 (9th Cir. 1992), 91-50652, United States v. Puerta

Docket Nº:91-50652.
Citation:982 F.2d 1297
Party Name:UNITED STATES of AMERICA, Plaintiff-Appellee, v. Antonio Medina PUERTA, Defendant-Appellant.
Case Date:December 22, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1297

982 F.2d 1297 (9th Cir. 1992)

UNITED STATES of AMERICA, Plaintiff-Appellee,

v.

Antonio Medina PUERTA, Defendant-Appellant.

No. 91-50652.

United States Court of Appeals, Ninth Circuit

December 22, 1992

Argued and Submitted July 9, 1992.

Page 1298

Joseph T. Vodnoy and Joseph F. Walsh, Los Angeles, CA, for defendant-appellant.

Russell Petti, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: FLETCHER, O'SCANNLAIN, and KLEINFELD, Circuit Judges.

FLETCHER, Circuit Judge:

Antonio Medina Puerta appeals his conviction for violation of 18 U.S.C. § 1425 (unlawful procurement of citizenship). We reverse.

I. Facts

Puerta was born in Almeria, Spain on January 20, 1956. He entered the United States on a student visa in 1981 and was admitted as a permanent resident in 1984. On February 26, 1990, he filed an application

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for naturalization. Question 5 asked him to list "[a]ny other names you have used (including maiden)." Puerta left this space blank. Questions 27 and 28 asked him to list any absences from the United States (for less or more than six months, respectively) since the time he entered for permanent residence. He wrote "None" in response to both questions.

On June 4, 1990, Puerta was interviewed by Immigration Examiner Robert Johnson. At trial, Johnson testified that he had no recollection of Puerta's interview. However, Johnson explained that his standard practice was to require every applicant to swear that the statements made on the application were true, and to review orally with the applicant the answer to each question. Johnson further explained that the slash marks on Puerta's application were his, undoubtedly made during his interview with Puerta. The slashes, Johnson said, indicated that Puerta orally answered questions 5, 27, and 28 the same way as he had done in writing: he had not used any other names and had never left the United States after entry. Puerta was naturalized shortly after his interview.

On February 7, 1991, several months after his naturalization, Puerta attempted a two-part transaction at the La Canada branch of the Bank of America. First, he presented for deposit into his account a $900 check payable to Anthony Port, drawn on a Security Pacific Bank account in the name Anthony Simon. Second, he tried to cash a $750 check drawn on his Bank of America account. The bank teller's computer flashed a warning that read "Fraudulent account. Call local police." A phone call established that the Security Pacific account had been closed for at least six months. Also, Bank of America's records showed that Puerta's account with it was placed "on hold," in part because the account was new, and in part because one of the checks used to open the account (a $35,000 check written by Puerta on a Home Federal account) had been returned for insufficient funds. Branch manager Brenda Santos called the police and explained the situation to them when they arrived.

Sergeant Roger Kelley of the Los Angeles County Sheriff's Department questioned Puerta in the bank's lounge. Puerta identified himself as Anthony Port, and presented a California driver's license in that name. Kelley noticed that Puerta's wallet appeared to contain other driver's licenses. Puerta consented to showing them. They were a Massachusetts driver's license in the name Anthony Port, a second Massachusetts driver's license in the name Anthony Simon, and an international driver's license issued in Spain in the name Anthony Port Martin. The birth dates on the various licenses did not match. Puerta had no plausible explanation for the multiple licenses and behaved nervously while being questioned. Kelley placed Puerta under arrest for attempting to defraud the bank in violation of California law. A search incident to the arrest revealed another Massachusetts driver's license in the name Medina Puerta, and a Spanish passport in the name Antonio Simon Palmer. The passport contained a United States non-immigrant visa obtained in Madrid, Spain on August 16, 1989, which was used to enter the United States on September 5, 1989. All pieces of identification were dated prior to February 26, 1990, the date Puerta filed his application for naturalization.

On March 5, 1991, a grand jury indicted Puerta on one count each of violating 18 U.S.C. § 1425 (unlawful procurement of citizenship) and 18 U.S.C. § 1546(a) (use of a false non-immigrant visa). A two-day bench trial began on May 9, 1991. By agreement of the parties, the district court heard testimony with regard to Puerta's motion to suppress evidence simultaneously with the trial testimony. The district court denied the motion to suppress in an oral ruling which concluded that there was probable cause to arrest Puerta. The court then convicted Puerta on Count One, finding that he had testified falsely when questioned by the immigration examiner. The district court acquitted Puerta of Count Two.

On August 12, 1991, Puerta was sentenced under the Guidelines to two months in prison (to be followed by two years of

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supervised release), and was fined $2,000. Puerta's certificate of naturalization was voided pursuant to 8 U.S.C. § 1451(f), which requires this step upon a conviction under 18 U.S.C. § 1425. Puerta now appeals.

II. Discussion

  1. Motion to Suppress

    Puerta moved to suppress the various forms of identification found on his person at the Bank of America. The items were discovered and seized in the course of a warrantless search. However, a warrant is not necessary where the defendant consents to the search, Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983), or where the search is conducted incident to a lawful arrest, New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1981). The district court's findings of fact are reviewed for clear error, but the legal conclusion that the underlying facts provide a basis for probable cause to arrest is reviewed de novo. United States v. Linn, 880 F.2d 209, 214 (9th Cir.1989).

    The district court found the testimony of bank manager Santos and Sergeant Kelley credible. It also found, based on Kelley's testimony, that before Puerta was arrested, he consented to show Kelley the California driver's license, the first two Massachusetts licenses, and the international driver's license. Whether consent is given voluntarily is a question of fact. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973). The district court's finding of voluntary consent was not clearly erroneous.

    The third Massachusetts driver's license and the Spanish passport were discovered in the search incident to Puerta's arrest. They may be admitted only if the arrest was supported by probable cause. "The test for probable cause is whether facts and circumstances within the officers' knowledge are sufficient to warrant a prudent person, or one of reasonable caution, to believe, in the circumstances shown, that the suspect has committed, is committing or is about to commit an offense." United States v. Thomas, 835...

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