U.S. v. George, Docket No. 00-1601.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtSotomayor
Citation386 F.3d 383
PartiesUNITED STATES of America, Appellee, v. Robert Ike GEORGE, also known as "Robert George Ike," also known as "George Edward Carter" Defendant-Appellant.
Decision Date08 October 2004
Docket NumberDocket No. 00-1601.
386 F.3d 383
UNITED STATES of America, Appellee,
v.
Robert Ike GEORGE, also known as "Robert George Ike," also known as "George Edward Carter" Defendant-Appellant.
Docket No. 00-1601.
United States Court of Appeals, Second Circuit.
Argued: March 15, 2001.
Decided: October 8, 2004.

Appeal from the United States District Court for the Southern District of New York, Sidney H. Stein, J.

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COPYRIGHT MATERIAL OMITTED

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James Keneally, Law Offices of Don Buchwald, LLP, New York, New York (Don Buchwald, on the brief), for Defendant-Appellant.

Boyd M. Johnson, III, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, Baruch Weiss and Alexander H. Southwell, Assistant United States Attorneys, on the brief), for Appellee.

Before: SOTOMAYOR and KATZMANN, Circuit Judges, and BERTELSMAN, District Judge.*

SOTOMAYOR, Circuit Judge.


Defendant Robert Ike George appeals from a judgment of the United States District Court for the Southern District of New York (Stein, J.) convicting him of one count of making a false statement in a passport application in violation of 18 U.S.C. § 1542. On September 26, 2001, this panel of the Court held that § 1542's "willfully and knowingly" mens rea provision required proof of a defendant's specific intent (as demonstrated by purpose) to make a false statement in a passport application and that the district court's jury instruction requiring George's actions to be compared to those of a "reasonable person" was prejudicial constitutional error. United States v. George, 266 F.3d 52, 59-62 (2d Cir.2001).

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On January 3, 2002, the United States government petitioned the panel for rehearing of its decision. The panel granted the government's petition on July 26, 2002. For the reasons discussed below, we now hold that (i) 18 U.S.C. § 1542's "willfully and knowingly" mens rea provision requires that the defendant provide in a passport application information he or she knows to be false, and (ii) the district court's jury instruction does not require reversal. This opinion vacates those portions of the earlier decision in the case, reported at 266 F.3d at 58-62, which addressed the requisite mens rea for conviction under § 1542 and the propriety of the district court's jury instructions.1

BACKGROUND

We assume familiarity with the background of this case, which our original opinion sets forth in greater detail. See id. at 54-58. We summarize here only those facts pertinent to our disposition. On April 22, 1997, George submitted a United States passport application from Saipan, the Northern Mariana Islands, stating his birthplace as Chicago, Illinois, and listing a string of zero digits in lieu of a Social Security number. About two months later, George submitted a second passport application from Saipan on June 24, 1997, again stating that he was born in Chicago, Illinois, and asserting that he had been issued a United States passport, which he had lost. The passport number used by George in this application had been assigned lawfully to another individual. George was convicted in the United States District Court for the District of Northern Mariana Islands (Munson, C.J.) for making false statements in this second passport application and sentenced to probation. The court subsequently sentenced George to six months' imprisonment in Los Angeles after George violated the terms of his probation order.

George filed another passport application after his release from custody, stating his birthplace as "Michigan" and listing his Social Security number as "230-98-2879," which had been lawfully assigned to another individual. As a consequence of the statements made in this third passport application, George was prosecuted and convicted for violating 18 U.S.C. § 1542. He was sentenced to six months' imprisonment.

After his release from custody in December 1998, George inquired at the Los Angeles passport office about his eligibility for a passport. Although George received notice that he could not receive a United States passport in the absence of evidence of his United States citizenship, George nonetheless submitted yet a fourth passport application to the Los Angeles passport office containing the same false statements about his birthplace and Social Security number for which he had most recently been prosecuted and convicted.

George subsequently relocated to New York City. Records from the Bellevue Homeless Shelter, where George applied for shelter upon arriving in New York, indicate that George stated that his name was "Robin George," that his birthplace was Ghana, Africa, that his date of birth was November 8, 1964, and that he had no Social Security number. On April 8, 1999, George filed the passport application that led to the conviction that is the subject of

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this appeal. On this fifth application, George wrote that he was born in "New York, New York" and that his Social Security number was "105577005." As supporting documentation for his application, George submitted an application for a birth record from the New York Department of Health on which he named New York City as his birthplace and a response from the Department stating that no such birth record existed for the indicated date. George also presented an employee identification card from UHS Home Attendants stating his Social Security number as "074-82-1241."

George was instructed to return to the passport office on April 12, 1999. Upon arriving at the office, passport officials questioned and arrested George. At the time of arrest, George was carrying documents including (1) a Social Security card with the partially erased name of Justin Joseph Peretore below the Social Security number "074-82-1241"; (2) a round-trip airplane ticket in George's name from New York to Tokyo, Japan; (3) a photocopy of George's Northern Mariana Islands driver's license listing his birthplace as Chicago, Illinois; (4) a photocopy of George's Northern Mariana Islands marriage license listing his birthplace as Michigan; and (5) an envelope with three handwritten versions of "105-57-7005" (the same number that George provided on his fifth passport application as his Social Security number). When asked pedigree information during the arrest, George did not provide an address but stated that his Social Security number was "230-98-2879." George was charged with making false statements in a passport application in violation of 18 U.S.C. § 1542.

Testifying at trial in his own defense, George stated that he was born in the United States but was uncertain about the exact location of his birth.2 Defendant's spouse, Mayuko George, testified that George had told her that he was born in New York but that "because he doesn't know exactly where he was born, he's looking for his birthplace all over America."3 George explained why he gave the number "105-57-7005" when asked for his Social Security number:

I explained to them because he asked me, the guy who was on the front of the door, he asked me, do you have your Social Security number, and I said I don't have no Social Security number. And he said, What do you have? And I said, I just get out the jail, and he said, If you have your jail number, we can identify who you are.

So I just put my jail number, 00100577005. So because my jail number is right now, I can't get my memory for my jail number but before I can't get the memory because I don't keep it in my mind. So when I was putting it down here I just get a mistake and that's what they say I was using it for a Social Security number.

A Social Security agent testified at trial that "105-57-7005," the Social Security number that George had entered on his April 8, 1999 passport application, did not exist and was not assigned.4 The personnel

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manager for UHS Home Attendants testified that George had never worked for the organization and that the identification card George presented was fraudulent. A Social Security agent also testified that "074-82-1241" had been assigned to a six-year old boy named Justin Joseph Peretore.

The district court instructed the jury that in order to convict George, they had to determine that:

First, the defendant made a false statement in an application for [a] United States passport. Second, the defendant made such false statement unlawfully, knowingly and willfully, and third the defendant made such false statement with intent to secure the issuance of a United States passport.

The court also delivered the following instruction, to which George's counsel objected:

If you believe that Mr. George was trying to comply with the law by following the instructions of the person to whom he submitted his passport application and you believe that a reasonable person desirous of obeying the law would have accepted those instructions as accurate, then you may not convict Mr. George based on the fact that the number was not his actual Social Security number.

The jury found George guilty and the district court sentenced him principally to ten months' imprisonment. On appeal, this Court held, inter alia, that (i) conviction under § 1542 requires the government to prove the defendant's specific intent (as demonstrated by purpose) to make a false statement in a passport application and (ii) the inclusion of the "reasonableness" language in the jury instructions constituted prejudicial constitutional error. 266 F.3d at 58-62. We granted the government's petition for rehearing in the case, and invited and received defendant's response to the government's petition.

DISCUSSION

I. Section 1542's Mens Rea Requirement

We commence our analysis by revisiting our previous explication of § 1542's mens rea provision.5 We adhere to our original view that the meaning of "willfully and knowingly" in the portion of § 1542 at issue in George's case should be identical to the meaning of "willfully and knowingly" articulated in ...

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50 practice notes
  • U.S. v. Giordano, Docket No. 03-1394.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 3, 2006
    ...39 challenges to the meaning and constitutionality of the statute and the propriety of the jury instructions. United States v. George, 386 F.3d 383, 397 (2d Cir.2004); United States v. Holland, 381 F.3d 80, 84 (2d Cir.2004). These are issues of first impression in this Circuit and have not ......
  • U.S. v. Fuller, Docket No. 09-1437-cr
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 30, 2010
    ...in a statute "typically signals that the statute only requires a finding of general intent for conviction." United States v. George, 386 F.3d 383, 389 n. 6 (2d Cir.2004). General intent "does not necessarily [refer] to a culpable state of mind or to knowledge of the law," rather, the term "......
  • United States v. Lahey, Case No. 10–CR–765 (KMK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 8, 2013
    ...(quoting United States v. X–Citement Video, Inc., 513 U.S. 64, 71, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994)); cf. United States v. George, 386 F.3d 383, 393–94 (2d Cir.2004) (noting that “ ‘willfully’ ... does not require the government to prove the defendant's specific intent to violate the p......
  • United States v. Zazi, Civil Action No. 17-cv-00116-NRN
    • United States
    • U.S. District Court — District of Colorado
    • November 30, 2018
    ...documents to illegal aliens is morally turpitudinous because it "involves inherently deceptive conduct."); United States v. George, 386 F.3d 383, 394-95 (2d Cir. 2004) (knowingly submitting false information in a passport application is a CIMT because doing so is "not innocent behavior," an......
  • Request a trial to view additional results
49 cases
  • U.S. v. Giordano, Docket No. 03-1394.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 3, 2006
    ...39 challenges to the meaning and constitutionality of the statute and the propriety of the jury instructions. United States v. George, 386 F.3d 383, 397 (2d Cir.2004); United States v. Holland, 381 F.3d 80, 84 (2d Cir.2004). These are issues of first impression in this Circuit and have not ......
  • U.S. v. Fuller, Docket No. 09-1437-cr
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 30, 2010
    ...in a statute "typically signals that the statute only requires a finding of general intent for conviction." United States v. George, 386 F.3d 383, 389 n. 6 (2d Cir.2004). General intent "does not necessarily [refer] to a culpable state of mind or to knowledge of the law," rather, the term "......
  • United States v. Lahey, Case No. 10–CR–765 (KMK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 8, 2013
    ...(quoting United States v. X–Citement Video, Inc., 513 U.S. 64, 71, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994)); cf. United States v. George, 386 F.3d 383, 393–94 (2d Cir.2004) (noting that “ ‘willfully’ ... does not require the government to prove the defendant's specific intent to violate the p......
  • United States v. Zazi, Civil Action No. 17-cv-00116-NRN
    • United States
    • U.S. District Court — District of Colorado
    • November 30, 2018
    ...documents to illegal aliens is morally turpitudinous because it "involves inherently deceptive conduct."); United States v. George, 386 F.3d 383, 394-95 (2d Cir. 2004) (knowingly submitting false information in a passport application is a CIMT because doing so is "not innocent behavior," an......
  • Request a trial to view additional results
1 books & journal articles
  • SECURITIES FRAUD
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...of the activity or because the criminal actus reus can often be undertaken with a lawful purpose.’” (quoting United States v. George, 386 F.3d 383, 390 (2d Cir. 2004))); Tarallo, 380 F.3d at 1188 (holding that “willful” in § 78ff(a) means intentionally undertaking actions known to be wrongf......

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