U.S. v. Crounsset

• Decision Date: 21 November 2005
• Docket Number: No. CRIM. 1:05CR355.,CRIM. 1:05CR355.
• Citation: 403 F.Supp.2d 475
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Franklin Jose CROUNSSET

Page 475

403 F.Supp.2d 475

UNITED STATES of America v. Franklin Jose CROUNSSET

No. CRIM. 1:05CR355.

United States District Court, E.D. Virginia, Alexandria Division.

November 21, 2005.

Geremy C. Kamens, Office of Federal Public Defender, Alexandria, VA, for Franklin Jose Crounsset.

Timothy J. Racicot, United States Attorney's Office, Alexandria, VA, for United States of America.

MEMORANDUM OPINION

ELLIS, District Judge.

In this criminal bench trial, a motion for a judgment of acquittal pursuant to Rule 29, Fed.R.Crim.P. raises questions regarding the sufficiency of the charging language of the indictment and the government's burden of proof necessary to obtain a conviction for aggravated identity theft in violation of 18 U.S.C. § 1028A.

I.¹

The record reflects that on July 11, 2005, defendant, traveling under the name Sandy Garcia, arrived at Washington Dulles International Airport aboard flight 846 from Buenos Aires, Argentina. Upon his arrival at Dulles, defendant presented an altered Dominican Republic passport to Officer Jorge Comas of the United States Customs and Border Protection (CBP), a division of the Department of Homeland Security. A cursory review of this passport revealed that it contained defendant's photograph, the name Sandy Garcia, a date of birth of July 4, 1978, and a temporary green card stamp bearing Alien Registration Receipt Number (A number) 46548133. As it happens, this is the A number assigned to an individual identified as Sandy Garcia in the government's computerized Image Storage and Retrieval System (ISRS). This individual is not the defendant.

After reviewing defendant's passport, Officer Comas directed defendant to the airport's passport control secondary inspection area. This referral was made for two distinct reasons, namely (i) a one-day "lookout" had been placed on the name Sandy Garcia by law enforcement authorities,² and (ii) temporary green card stamps such as the one observed in defendant's passport typically lead to referrals to the secondary inspection area by CBP officials.

Once in the secondary inspection area, defendant was questioned by CBP Enforcement Officer Kevin Ho. During the course of the secondary inspection interview, defendant advised Officer Ho, among other things, (i) that his name was Sandy Garcia, (ii) that he had obtained his original green card and legal residency status in New York City in approximately December 1997, (iii) that he had been outside the United States for approximately two months prior to his arrival at Dulles on that date, and (iv) that he had received the temporary green card stamp contained in his passport in New York City on June 2, 2005, the previous month.³

Like Officer Comas, Officer Ho examined the passport that had been presented by defendant upon his arrival at the airport and observed that the passport displayed, inter alia, a right thumbprint and a place of birth of Santo Domingo. Defendant was then directed to provide a fingerprint of his right index finger. Officer Ho then visually compared that fingerprint to the fingerprint contained on record in the government's ISRS as belonging to Sandy Garcia and confirmed that the prints did not match. At that point, Officer Ho presented defendant with a photograph of the individual identified as Sandy Garcia in the ISRS and asked defendant if he knew the individual portrayed in the photograph. Defendant responded that he did not.

When defendant continued to assert that he was Sandy Garcia despite the government's information to the contrary, he was escorted to another room in the airport and directed to provide an electronic fingerprint. This fingerprint was then sent electronically to the Federal Bureau of Investigation and was promptly returned as a positive hit, revealing a true photograph of the defendant and the name Franklin Jose Crounsset. The FBI information also revealed that defendant, a citizen of the Dominican Republic, was assigned A number 77046489 — a number different from the one contained in the passport defendant presented to airport officials on that occasion.

A subsequent review of defendant's true immigration records revealed that he had been removed from the United States on two prior occasions, initially on March 30, 2001, and subsequently on April 13, 2005.⁴ Moreover, the order of removal that resulted in defendant's April 13, 2005 departure prohibited him from re-entering the United States without permission for a period of 20 years. In this regard, it is undisputed that defendant did not apply for or obtain a waiver from the Secretary of the Department of Homeland Security granting him permission to enter the United States prior to his arrival at Dulles on July 11, 2005.

Following an initial appearance before a magistrate judge on July 11, 2005, defendant appeared for a detention hearing and was remanded to the custody of the United States Marshal's Service pending trial. Thereafter, on August 4, 2005, a federal grand jury returned a three-count indictment against the defendant charging him with (i) being a deported or removed alien who was found in the United States without having obtained the express consent of the Secretary of the Department of Homeland Security for re-application for admission, in violation of 8 U.S.C. § 1326(a), as modified by 6 U.S.C. §§ 202(3) and (4), 542(d) and 557 (Count One); (ii) possessing a means of identification of another person during and in relation to a violation of 8 U.S.C. § 1326(a), in violation of 18 U.S.C. § 1028A(a)(1) and (c)(10) (Count Two); and (iii) using and attempting to use an altered passport to gain entry into the United States, in violation of 18 U.S.C § 1543 (Count Three). An arraignment hearing was held on August 18, 2005, in the course of which defendant waived formal reading of the indictment, pled not guilty to the charged offenses and waived his right to a trial by jury.

Prior to commencing the bench trial on September 7, 2005, the government, by counsel, moved orally to dismiss Count One of the indictment based on an apparent charging error, as the indictment charged defendant with being "found" in the United States, rather than with attempting to enter the United States, two distinct substantive offenses proscribed by 8 U.S.C. § 1326(a). Defendant opposed this motion and a ruling was deferred pending the filing of a motion for a judgment of acquittal pursuant to Rule 29, Fed.R.Crim.P. The government thereafter presented its case in chief against defendant, consisting of various exhibits and the testimony of four individuals, namely (i) Officer Ho, (ii) Officer Comas, (iii) Donna Eisenberg, a forensic document examiner, and (iv) Genius Johnson, a fingerprint specialist.

At the conclusion of the government's case in chief, defendant moved for a judgment of acquittal on Counts One and Two of the indictment. Following the arguments of counsel, defendant's motion was granted with respect to Count One in light of the fact that he had not been "found" in the United States on July 11, 2005, as specifically charged in the indictment.⁵ To the contrary, the record evidence established only that defendant had attempted to enter the United States on that date, a separate and distinct crime proscribed by 8 U.S.C. § 1326(a).⁶ Defendant's motion for a judgment of acquittal was taken under advisement as to Count Two. Additionally, defendant was found guilty on Count Three of the indictment, as the government established beyond a reasonable doubt that defendant had used an altered passport in an attempt to gain entry into the United States on July 11, 2005, in violation of 18 U.S.C. § 1543.

At the conclusion of the bench trial, the parties were directed to submit supplemental briefs with respect to three discrete issues pertaining to Count Two of the indictment, charging the defendant with possessing a means of identification of another person during and in relation to a violation of 8 U.S.C. § 1326(a), in violation of 18 U.S.C. § 1028A(a)(1) and (c)(10). Specifically, the parties were directed to address in simultaneously submitted briefs (i) whether the judgment of acquittal on Count One of the indictment precludes a conviction on Count Two, (ii) whether the government established beyond a reasonable doubt that Sandy Garcia is a real person as required by the charging statute, and (iii) whether the charging statute requires the government to prove beyond a reasonable doubt that defendant knew that the fraudulent passport he was using belonged to a real person, or simply that he knew that the passport was fraudulent. The parties, by counsel, subsequently filed their supplemental briefs on the remaining issues and oral argument was heard on September 19, 2005. An additional hearing was later held on October 17, 2005, in the course of which defendant's Rule 29 motion for a judgment of acquittal on Count Two was denied orally from the Bench and defendant was found guilty of the charged offense. Recorded here are the reasons underlying that ruling.

II.

Under Rule 29(a), Fed.R.Crim.P., a district court "must enter a judgment of acquittal of any offense for which the evidence is insufficient." Rule 29(a), Fed. R.Crim.P. When reviewing the sufficiency of the evidence for purposes of a Rule 29 motion, courts must examine whether any reasonable juror could find all of the elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In other words, the question raised by a motion for a judgment of acquittal is whether "as matter of law the government's evidence is insufficient `to establish factual guilt' on the charges in the indictment." United States v. Alvarez, 351 F.3d 126, 129 (4th Cir.2003) (quoting Smalis v. Pennsylvania, 476 U.S. 140, 144, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986)). Thus, to avoid a Rule 29 judgment of acquittal, the government...