U.S. v. Hammoude

• Decision Date: 05 June 1995
• Docket Number: No. 91-3081,91-3081
• Citation: 311 U.S. App. D.C. 145,51 F.3d 288
• Parties: UNITED STATES of America, Appellee, v. Mohammad Hassan HAMMOUDE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 288

51 F.3d 288

311 U.S.App.D.C. 145

UNITED STATES of America, Appellee, v. Mohammad Hassan HAMMOUDE, Appellant.

No. 91-3081.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 6, 1995.

Decided March 17, 1995.

Certiorari Denied June 5, 1995.

See 115 S.Ct. 2290.

Sandra G. Roland, Asst. Federal Public Defender, argued the cause, for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.

Lilly Ann Sanchez, Asst. U.S. Atty., argued the cause, for appellee. With her on the brief were Eric H. Holder, Jr., U.S. Atty., Roy W. McLeese, III, John R. Fisher and Craig S. Iscoe, Asst. U.S. Attys.

Before: BUCKLEY, RANDOLPH, and TATEL, Circuit Judges.

Opinion of the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Mohammad Hassan Hammoude was arrested after purchasing several custom-made rubber stamps that could be used to make copies of United States nonimmigrant visas. Officers of the Immigration and Naturalization Service, who arrested him, also confiscated a piece of paper on which was smeared an image of the stamps. On the basis of this and other evidence presented at trial, a jury convicted Hammoude of two counts of violating 18 U.S.C. Sec. 1028(a)(5), which bars the possession of instruments that can be used to make false "identification documents," and on two counts of violating 18 U.S.C. Sec. 1546(a), which criminalizes various forms of fraud in connection with the reproduction of visas. We reverse Hammoude's convictions under section 1028, holding that a visa is not an identification document, and also reverse one of the section 1546(a) convictions because no reasonable juror could conclude that Hammoude had created a "counterfeit" visa. We sustain Hammoude's conviction on the second section 1546(a) count because the admission of certain evidence--his only point of appeal applicable to that conviction--was not plain error.

I.

The heart of Hammoude's appeal is a challenge to the sufficiency of the evidence introduced at trial, and we thus consider that evidence in the light most favorable to the government. United States v. Teffera, 985 F.2d 1082, 1085 (D.C.Cir.1993). So understood, the evidence tells us the following.

On January 12, 1990, Hammoude and his father entered the Baumgarten Company, a vendor of rubber stamps in Washington, D.C. Hammoude asked the company's owner, Melvin "Buddy" Gusdorf, if Gusdorf could make a stamp that would reproduce a nonimmigrant United States visa. As a sample, Hammoude showed Gusdorf a Jordanian passport that belonged to his sister-in-law, directing his attention to a nonimmigrant visa printed inside.

The visa, issued by the United States consulate in Kuwait, is a multicolored image made of seven horizontal bands of different colored ink, beginning at the top in blue and then alternating red, blue, and green to the bottom. We reproduce the visa, though not in color, in Appendix A. It has a serial number at the top, followed by a United States seal, the words "United States of America nonimmigrant visa issued at Kuwait," and the date of issue. At the bottom of the visa is the signature of the consular officer, surrounded by a simple filigree. In the middle of the visa, printed in green, are spaces the consulate fills in when issuing the visa. Handwritten in the visa Hammoude showed Gusdorf were the "B2" (tourist) classification of the visa, an expiration date, and the name of Hammoude's sister-in-law, to whom the visa had been issued. Other than the name, none of the information on the visa--including the serial number--was necessarily unique to the person to whom it was issued.

Gusdorf concluded that the best way to reproduce the visa would be to make seven different stamps, one for each differently-colored strip of the visa. These stamps could then be inked with different colors, and the impressions aligned on a piece of paper to create the multicolored copy. Hammoude approved this approach, but requested that Gusdorf omit from the rubber stamps the original visa's handwritten features, date of issue, and serial number. He ordered a separate number stamp to supply new serial numbers, and also ordered a date stamp, which he asked Gusdorf to rearrange to conform to the "day, month, year" form of the date on the visa. On the order form, Hammoude gave his name as "Abbas Ayood," and provided a false address and phone number. Gusdorf kept the passport to use as a master for the stamps.

Unfortunately for Hammoude, Gusdorf was a past chair of his trade association's Fraudulent Marking Device Committee. Gusdorf's company had also worked for federal agencies on several occasions, so he knew that Hammoude could not reproduce visas without official authorization. Gusdorf contacted the Immigration and Naturalization Service, which instructed him to fill Hammoude's order and assigned investigators to the case.

On January 19th, Hammoude returned to Gusdorf's shop to pick up the stamps. According to Gusdorf, he and Hammoude attempted to create a finished copy of a visa by aligning the images from the seven inked stamps. Gusdorf guessed that they completed two or three full impressions, although he was not certain, and the impressions were not recovered. Although somewhat frustrated with the difficulty of aligning the images, Hammoude left the store with the stamps, colored ink pads, and date and number stamps. Gusdorf was unable to contact the I.N.S. agent staking out the store when Hammoude left, so the agent could not positively identify him as the suspect. Although the agent did question Hammoude briefly as he left the store--apparently Hammoude matched Gusdorf's original description enough to raise suspicions--the agent allowed him to leave.

Hammoude's brush with the law did not deter him. Later that day, still frustrated with his inability to align the seven stamps, Hammoude called Gusdorf and asked him to make a single stamp of the entire visa. Gusdorf agreed, and told him to return in three days.

On January 22nd, Hammoude returned to the store to pick up the new stamp. He had the old stamps with him, but they were in a curious form: In an attempt to align the images, Hammoude had pulled the raised plastic piece off each stamp's wooden base and arranged them, with glue, onto a piece of paper. The result was a single "composite" stamp which was an approximation--albeit a poor one--of the one-piece visa stamp that Hammoude was picking up that day. We provide a photograph of this composite stamp in Appendix B. To carry this somewhat inky composite stamp, Hammoude had folded the backing paper over it, leaving a faint image of the stamp on the paper, which we reproduce to the right of the stamp at Appendix B.

As Hammoude left the store this time, an I.N.S. agent arrested him, confiscating the new stamp, the ink pads, the date and number stamp, the composite stamp, and the impression it had left on the paper to which it was glued. Gusdorf also gave the I.N.S. a photocopy of the visa that he had made as part of the production process.

Hammoude was indicted on four counts: two violations of 18 U.S.C. Sec. 1028, which criminalizes the possession of false identification documents or instruments used to make them; and two violations of 18 U.S.C. Sec. 1546(a), which bars various forms of fraud with respect to immigration papers. At trial, the government introduced the stamps as well as testimony indicating that they could be used to create imperfect but passable counterfeit visas. In defense, Hammoude claimed that he only wanted the stamps to print sample visas in a pamphlet that he was creating for Arabic visitors to the United States. He testified that he did not give Gusdorf his real name because overseas organizations could trace him and kill him "because they can call me a puppet, since I have [become an] American citizen." He also claimed that he glued the seven stamps to the paper in order to render them "useless" after discovering that their production might have been illegal.

A jury returned guilty verdicts under all four counts. Hammoude was sentenced to four months in prison, four months of house arrest, three months' supervised release, and $200 in fines. He has already served the prison term. The district court suspended the house arrest pending this appeal.

II.

Hammoude was charged with two violations of section 1028 because he allegedly possessed "a document-making implement"--rubber stamps--"with the intent such document-making implement will be used in the production of a false identification document." 18 U.S.C. Sec. 1028(a)(5) (1988). Hammoude's primary argument on appeal is that a visa is not an "identification document" as defined under the statute and, thus, that there was insufficient evidence to convict him of violating 18 U.S.C. Sec. 1028(a)(5). We review his convictions de novo to determine "whether, viewing the evidence in the light most favorable to the government, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Teffera, 985 F.2d at 1085 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).

We must first address the government's assertion, presented only in a footnote, that Hammoude has waived this statutory argument by failing clearly to raise it in either of his motions for a judgment of acquittal--one at the close of the government's case, and one at the close of the trial. We disagree. Hammoude's second motion for acquittal was broadly stated, without specific grounds, and was therefore sufficient to preserve the full range of challenges, whether stated or unstated, to the sufficiency of the evidence. See United States v. Milton, 8 F.3d 39, 45 (D.C.Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 299, 130 L.Ed.2d 212 (1994). Moreover, the heart of Hammoude's appeal is that, under any conceivable interpretation of the facts, he could not have violated section 1028. Whether his appeal...