U.S. v. George

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-1601,DEFENDANT-APPELLANT
• Citation: 266 F.3d 52
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. ROBERT IKE GEORGE, ALSO KNOWN AS ROBERT GEORGE IKE, ALSO KNOWN AS GEORGE EDWARD CARTER,
• Court: U.S. Court of Appeals — Second Circuit

Page 52

266 F.3d 52 (2nd Cir. 2001)

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

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: March 15, 2001

Decided September 25, 2001

Appeal from a judgment of the United States District Court for the Southern District of New York (Sidney H. Stein, Judge) convicting defendant of making a false statement in a passport application in violation of 18 U.S.C. § 1542. Finding prejudicial error in the jury instructions that measured defendant's specific intent according to the reasonableness of his conduct, we vacate and remand for a new trial. [Copyrighted Material Omitted] 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 (Mary Jo White, United States Attorney for the Southern District of New York, Baruch Weiss, Assistant United States Attorney, on the brief), for Appellee.

Before: Sotomayor and Katzmann, Circuit Judges, and Bertelsman, District Judge.^*

Sotomayor, Circuit Judge

Defendant-appellant Robert Ike George was convicted of one count of making a false statement in a passport application in violation of 18 U.S.C. § 1542 after writing "New York, New York" in the space provided for his place of birth and "105577005" in the space provided for his Social Security number on his application. Despite the fact that the statute proscribes "willfully and knowingly" making a false statement, the jury was instructed that it should judge George's actions against those of a "reasonable person." Because we find that Congress, in using the words "willfully and knowingly," required proof of a defendant's specific intent to make a false statement in a passport application, we hold that instructing the jury to compare George's actions to those of a "reasonable person" was constitutional error. Under the circumstances of this case, we hold that the error was prejudicial. On remand, we also note that any jury charge regarding this provision needs to include the statute's requirement that a defendant act "contrary to the laws regulating the issuance of passports or the rules prescribed pursuant to such laws." 18 U.S.C. § 1542.

BACKGROUND

In 1996, George married a Japanese woman named Mayuko Shinpo. His wife continues to live in Japan but traveled to the United States to testify at George's trial. She stated that the two met in 1993 while defendant was working in a reggae club and restaurant in Japan. They were married in Saipan, the Northern Mariana Islands, where George lived after his visa to stay in Japan expired. George's wife testified that she visited him almost once a month in Saipan after their marriage. Later, when George was in the United States, she sent him money from Japan. Mayuko George stated that her husband had trouble explaining himself to others, and "[d]epending on the question, he might be able to not give you a straight answer or a very clear answer." She also testified that George had told her 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."

On April 22, 1997, while living in Saipan, George submitted a passport application in which he stated that he was born in Chicago, Illinois and that "00000000" was his Social Security number. The Passport Agency responded that George needed to submit a certified birth certificate before the agency could process his application.¹ George then, on June 24, 1997, submitted a second application stating that he was born in Chicago, Illinois, adding that he had previously been issued a U.S. passport, No. 023948690, and attaching a photocopy of the prior passport. This passport number, however, corresponded to someone else. George was then convicted in United States District Court for the District of Northern Mariana Islands (Alex R. Munson, Chief Judge) and sentenced to probation for an unspecified crime. After George violated his probation by attempting to leave for Japan, the court sentenced George to six months' imprisonment.

When imposing the term of imprisonment, the court ordered that, upon release from incarceration, George be remanded to the custody of the Immigration and Naturalization Service ("INS") for a determination of his citizenship and either the issuance of a United States passport or removal to the jurisdiction in which George was a citizen. George served his term of imprisonment in Los Angeles and was released there without the INS attempting to remove him from the United States and without being issued a passport.

After his release from custody in Los Angeles, George filed another passport application claiming that he was born in Michigan (without naming a city or town) and that he had the Social Security number "230- 98-2879." With this application, George submitted a notice from the Michigan Department of Community Health stating that it had no record of George's birth in Detroit, Michigan for the years indicated. George also included a photocopy of his driver's license from the Northern Mariana Islands, showing that he was born in Chicago, Illinois. As a result of this application, George was prosecuted and convicted under the same statute as in this case, 18 U.S.C. § 1542. He was sentenced to six months' imprisonment.

In December 1998, soon after this second release from custody, George again appeared at the Los Angeles passport office to ask how to acquire a passport. He then submitted another application stating he was born in Detroit, Michigan and that his Social Security number was "230-98-2879" - the same information for which he had just been imprisoned. In support of this application, George submitted a letter from his United States Probation Officer describing George as "currently seeking clarification of his status through both the Japanese consulate and local authorities," and stating that in the Probation Officer's records, George's "place of birth is noted as Detroit, Michigan" and that "[h]e holds a Social Security number of 230-98-2879."² After George submitted this application, agents from the State Department searched for George at the addresses he had provided but were unable to locate him.

George left the area and traveled to New York. The record shows that, on December 25, 1998, he applied for shelter at the Bellevue Homeless Shelter in New York City. An employee who recorded George's personal information understood that his name was "Robin George," that he was born in Ghana, Africa, and had no Social Security number.³

On April 8, 1999, George went to a U.S. passport office in New York City and submitted the passport application that led to the conviction that is the subject of this appeal. On his application, George wrote that he was born in "New York, New York" and that his Social Security number was "105577005." In his testimony, George described why he gave this number when the application 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. Agent Anthony Murphy of the Social Security Administration testified that "105-57-7005," the Social Security number that George had written on his passport application, had never been assigned to anyone. Concerning his place of birth, George submitted a form he had sent to the New York Department of Health requesting a birth record claiming that he was born in New York City, and the response from the New York Department of Health indicating that no such record could be found for the date indicated. George also presented an employee identification card from UHS Home Attendants, that contained George's name, signature, a description of his title as a "Home Aide," and listed a different Social Security number, "074-82-1241." At trial, Melanie Edwards, the personnel manager for UHS Home Attendants, testified that George had never worked for her organization and that the identification card George presented was fraudulent. Social Security agent Murphy testified that "074-82-1241" had been assigned to a six-year old boy named Justin Joseph Peretore.

When George returned to the passport office on April 12, 1999, he was questioned and arrested. He was carrying at the time, inter alia, (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 what appears to be the same Northern Mariana Islands driver's license that George had used to apply for a passport in Los Angeles, listing his place of birth as Chicago, Illinois; and (4) a photocopy of George's Northern Mariana Islands marriage license listing his place of birth as Michigan. Upon arrest, George 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 and was found competent to stand trial. George testified at trial in his own defense, stating that although he was born in the United States, he was not sure precisely where, and explaining that his grandmother "said he [sic] don't know the actual place, Chicago, New York,...