U.S. v. Carvalho

• Decision Date: 23 August 1984
• Docket Number: Nos. 83-5204,83-5205,s. 83-5204
• Citation: 742 F.2d 146
• Parties: 16 Fed. R. Evid. Serv. 453 UNITED STATES of America, Appellee, v. Martha Molina Sanchez CARVALHO, Appellant. UNITED STATES of America, Appellee, v. Fernando Leal CARVALHO, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 146

742 F.2d 146

16 Fed. R. Evid. Serv. 453

UNITED STATES of America, Appellee, v.Martha Molina Sanchez CARVALHO, Appellant.

UNITED STATES of America, Appellee, v.Fernando Leal CARVALHO, Appellant.

Nos. 83-5204, 83-5205.

United States Court of Appeals Fourth Circuit.

Argued May 10, 1984.

Decided Aug. 23, 1984.

Robert M. Price, Washington, D.C., for appellants.

Barbara L. Miller, Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., William Otis, Asst. U.S. Atty., Alexandria, Va., on brief), for appellee.

Before WIDENER, HALL and MURNAGHAN, Circuit Judges.

MURNAGHAN, Circuit Judge:

Martha and Fernando Carvalho appeal from their convictions under 18 U.S.C. Sec. 1426(b)¹ for knowing use of false alien registration receipt cards.

I.

At 6:30 or 7:00 A.M. on January 25, 1983, Larry Valladolid, a criminal investigator with the Immigration and Naturalization Service, appeared at the Carvalhos' house in search of one Fernando Rodriguez.During the course of his questioning, Valladolid demanded identification from the Carvalhos.Mrs. Carvalho produced passports with lawful entry stamps based on the Carvalhos' "green cards"(alien registration receipt cards).Valladolid copied the alien registration numbers, and departed.

Valladolid returned on March 1, 1983, and asked to see Mrs. Carvalho's green card.Instead, she again showed him her passport.Spying a green card in the same zippered bag from which Mrs. Carvalho had drawn the passport, Valladolid demanded to see the green card.He subsequently declared the green card to be counterfeit.Mr. Carvalho then entered the room, and a similar scene transpired.Mr. Carvalho, after some hesitation, produced his green card, later declared to be counterfeit.

The Carvalhos were indicted on May 2, 1983, and were tried before a jury on July 14-15, 1983.Testimony at trial revealed that Mr. Carvalho entered the United States in January, 1971, deserting his ship in February, 1972 and thereafter remaining in the U.S.He married Ramona Cruz in 1973, and applied for permanent residence shortly thereafter.The marriage failed, and Cruz went back to Puerto Rico, withdrawing the petition for Mr. Carvalho's residency in September, 1974.The INS then found Mr. Carvalho deportable.He disappeared, and was ordered deported.

Martha Sanchez Carvalho entered the U.S. in September, 1972.She remained beyond the duration of her temporary work visa.In June, 1973, she married Luiz Hernandez, and applied for permanent residence.The marriage lasted four months, and after its dissolution, Mrs. Carvalho subsequently was found deportable, and granted voluntary departure in lieu of deportation.She, too, disappeared and was ordered deported.

The Carvalhos met each other in New York City and, by then divorced from their respective spouses, were married in 1975.Late in that year they had a child, who was a United States citizen by virtue of her birth in the United States.The child's birth also provided a bona fide basis for the Carvalho's own lawful permanent residency.A friend of the Carvalho's took them to a lawyer named Garcia, who was to arrange for them to obtain the necessary green cards.²The Carvalhos, as they testified, had sought the attorney's assistance in part because of their unfamiliarity with the law and language.They paid $1500 for the services in providing the cards, which, according to their uncontradicted testimony, they believed to be genuine.When Garcia told them that all was in order, they had no apparent reason to suspect that their green cards had been forged.Their belief the cards were genuine had been reinforced by the fact that they had left the United States on numerous occasions, and had been successfully readmitted upon presentation of the cards.

At trial, the government sought to portray the Carvalhos as quite sophisticated regarding the immigration laws, and well aware of what they would need to do to obtain permanent residence.The government, therefore, tried to link the earlier attempts to gain residency through marriage with the obtaining of the green cards.The government contended that the forged green cards comprised merely one of a number of ruses to gain residence, and, over objection, introduced affidavits from the former spouses.Two affidavits were from Cruz, one from Hernandez.All were obtained in 1974 after the initial attempts to gain residency through marriage, when Cruz and Hernandez, following the failure of each marriage, had decided to withdraw the petitions previously filed on behalf of appellants' efforts to obtain permanent residency.All the affidavits were obtained before the Carvalhos' marriage and the birth (and indeed the conception) of the child possessed of United States citizenship.

The Hernandez affidavit in no way suggests that his marriage to Martha Sanchez(later Carvalho) was not genuine, but rather had been entered into to evade the immigration laws.To the contrary, it states: "I married my wife for love...."It concludes, however:

I wish, on this date, to withdraw the application for permanent residence petition I have filed for my wife because I plan to terminate my marriage to this woman as soon as possible.

The first Cruz affidavit states that she married Mr. Carvalho to spite Joseph Ortiz, the man with whom she had then been living.She adds (in the typewritten portion) that she"married FERNANDO because I felt sorry for him and out of anger because of what had happened to me," after which appears the handwritten addendum "and I wanted to help him get his residence."Other sections of the affidavit state that the marriage was not consummated (a point disputed by an April, 1975 affidavit of Mr. Carvalho), and the marriage "was to do him a favor."The second Cruz affidavit discusses counseling Cruz received prior to the INS hearing regarding the application process, and includes reference to apparent threats to Cruz if she did not cooperate.At the time Cruz rendered the affidavits, she was pregnant with the child of Joseph Ortiz, the man she sought to spite by marrying Mr. Carvalho.

Although neither Cruz nor Hernandez appeared at trial, the affidavits were admitted over objection.The Carvalhos were each convicted and sentenced to a three-year suspended prison sentence, probation, and a $2,500 fine.On appeal, they contend that the admission of the affidavits was improper under the hearsay rules, the Confrontation Clause of the Sixth AmendmentandRule 404(b) of the Federal Rules of Evidence.³

II.

With respect to the hearsay issue, the government contends that the affidavits were admissible both under FRE 804(b)(3)⁴ as a statement against interest, and under FRE 804(b)(4)⁵ as a statement of personal or family history.

A.

Under Rule 804(b)(3) there are three prerequisites to admission of a hearsay statement: (1) the declarant must be unavailable; (2) from the perspective of the average, reasonable person, the statement must be truly adverse to the declarant's penal interest; and (3) corroborating circumstances must clearly establish the trustworthiness of the statement.United States v. MacDonald, 688 F.2d 224, 232-233(4th Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed.2d 951(1983).

On the issue of unavailability, appellants contend that there is a scant showing on the record of any reasonable efforts made by the government to locate Cruz and Hernandez.Cf.United States v. Mathis, 550 F.2d 180, 182(4th Cir.1976), cert. denied, 429 U.S. 1107, 97 S.Ct. 1140, 51 L.Ed.2d 560(1977).The government responds that the record clearly shows that Cruz was unavailable.Furthermore, the government argues that appellants' counsel never challenged the unavailability of Hernandez, and therefore have waived the issue.See e.g., United States v. Parodi, 703 F.2d 768(4th Cir.1983).

We need not resolve the dispute, however, since the affidavits cannot satisfy the remaining two prerequisites articulated in United States v. MacDonald, supra.Although the rule specifically requires that the statement be "contrary to the declarant's pecuniary or proprietary interest" or clearly "subject him to civil or criminal liability," the Hernandez affidavit is completely devoid of any such implications.The affidavit states only that Hernandez married Martha Sanchez for love, but at the time he gave the affidavit, he sought to terminate the marriage.It is inconceivable that the government truly contends that the Hernandez affidavit amounts to a statement against his penal interest.There is not a single statement even suggesting wrongdoing, and it strains credulity to contend that a reasonable person would have viewed a statement that he married his wife for love as being against his penal interest.⁶

A closer question arises with the Cruz affidavits, since there is a reference to getting married in order to obtain residence for Mr. Carvalho.It is by no means clear that an average, reasonable person would perceive such a statement to be against her own interest.Even if Cruz should have--and if an average person would have--perceived the statement to be against Mr. Carvalho's interest, it does not follow that the statement would also be viewed as being against the interest of the declarant, Cruz, herself.

More to the point, the Cruz affidavit is more clearly, and perhaps more properly, barred by its failure to satisfy the third MacDonald prerequisite, requiring that "corroborating circumstances clearly indicate the trustworthiness of the statements."F.R.E. 804(b)(3);United States v. Brainard, 690 F.2d 1117, 1124(4th Cir.1982).The government has not referred us to any "corroborating circumstances" indicating the trustworthiness of the affidavits, leading inexorably to the conclusion that it presented no such evidence.Furthermore, the trustworthiness of the Cruz affidavit is highly suspect.At the time she rendered the affidavit, she was pregnant with the child of Joseph Ortiz, the...