U.S. v. Oppon, 88-1007

• Decision Date: 07 June 1988
• Docket Number: No. 88-1007,88-1007
• Citation: 863 F.2d 141
• Parties: 27 Fed. R. Evid. Serv. 491 UNITED STATES of America, Appellee, v. George M. OPPON, Jr., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 141

863 F.2d 141

27 Fed. R. Evid. Serv. 491

UNITED STATES of America, Appellee, v. George M. OPPON, Jr., Defendant, Appellant.

No. 88-1007.

United States Court of Appeals, First Circuit.

Heard June 7, 1988.

Decided Dec. 13, 1988.

E. Paul Eggert with whom Mittel & Hefferan, was on brief for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and David R. Collins, Asst. U.S. Atty., were on brief for appellee.

Before COFFIN and BREYER, Circuit Judges, and ACOSTA, ^* District Judge.

ACOSTA, District Judge.

Appellant George M. Oppon, Jr. ("appellant") was convicted in the United States District Court for the District of Maine on charges of harboring illegal aliens Spurgeon Cope ("Cope") and Megel Mcaulay

("Mcaulay") (Counts I and II of the indictment); presenting two social security numbers for the purpose of obtaining employment that had not been validly assigned (Counts III and IV); and falsely representing himself to be a United States citizen (Count V). The government charged that appellant induced Cope and Mcaulay to leave the farm where they were legally employed as immigrant farm workers, found them a place to live, and helped them to apply for jobs by, inter alia, writing false social security numbers on employment applications submitted under their names. In the process of applying for a job himself, appellant also falsely represented that he was a United States citizen. After a three-day trial, the jury returned a verdict of guilty as to all counts. We affirm the conviction.

THE FACTS

The record before us reflects that appellant is a citizen of Ghana who first visited the United States as a tourist in 1977. He again travelled to this country in 1979, at which time he enrolled as a student at Columbia University. His studies were cut short, however, when the government of Ghana discontinued its exchange with United States currency leaving appellant without financial support from his homeland. Yet, appellant remained in this country, married, and held a variety of jobs.

On September 2, 1986, Cope, Mcaulay and a group of 26 other men arrived in the United States from their native Jamaica to work as agricultural laborers at an apple farm near Livermore, Maine, pursuant to contracts permitted under our immigration laws. Sometime during the month of September, appellant befriended the two Jamaicans and promised to help them find work, a home, and "a woman" if they left the farm. Cope and Mcaulay were aware that leaving the farm would classify them as illegal aliens. Yet, on October 5, 1986, they rode with appellant from the farm to the city of Auburn, Maine, where appellant rented an apartment in his own name for Cope and Mcaulay to live in and collected money from them to defray the cost.

Appellant also took Cope and Mcaulay with him to search for jobs. Cope and Mcaulay were unable to write but they could sign their names. Consequently, during the job search appellant would complete employment applications for all three and pass to the Jamaicans their respective forms for them to sign and to deliver to potential employers. The forms submitted under Cope's and Mcaulay's names bore two purported social security numbers that had never been validly assigned to anyone. The testimony at trial indicated that it was appellant who provided the false numbers, and a handwriting expert identified appellant's handwriting in at least one application submitted under Mcaulay's name.

The testimony also showed that appellant had never become a citizen of this country but nonetheless identified himself as such in a Maine Department of Labor form 500A (application for state unemployment benefits) filed on November 2, 1986. ¹ Further, appellant checked the box answering "Yes" to the question of whether or not he was a United States citizen.

In his own defense, appellant testified that he picked up a group of black male hitchhikers one day while driving along the Maine countryside and befriended them. He admitted filling out employment applications for them but said that he only wrote the information provided by them and was unaware that they were illegal aliens. He also denied having checked the U.S. citizenship box in the Maine Department of Labor form 500A.

The jury drew its own conclusions and, as indicated above, returned a verdict of guilty on all counts.

Appellant now appeals the judgment of conviction by arguing that the trial judge erred (1) in admitting "other acts" evidence pursuant to Fed.R.Evid. 404(b); and (2) in allowing one of the jurors to take notes

during the trial and to use them during deliberations.

OTHER BAD ACTS: FED.R.EVID. 404(b)

Appellant challenges the admission into evidence of testimony and documents pursuant to Federal Rule of Evidence 404(b). ² The record reveals that the following evidentiary items were admitted pursuant to Rule 404(b) over appellant's objections:

1. A work registration form ³ used by the Maine Department of Labor to assist applicants in finding employment dated November 6, 1986 and filed in the name of "George M. Oppon." On that form, there is a question requiring a "Yes" or "No" answer regarding United States citizenship which was checked "Yes". This document was identified by Paul Michel, manager of the Lewiston Office of the Maine Department of Labor. ⁴

2. Testimony of Jean Stimson, an employee of the Maine Department of Labor, who interviewed appellant regarding his request for job referrals. She testified that her superiors had instructed her to be particularly careful about illegal aliens seeking assistance which, by law, they were not entitled to receive, and that she asked appellant about his citizenship. She testified that appellant stated that he had been born abroad but that he had lived in this country for six years and was now a citizen. The judge characterized the evidence to the jury as falling under the same category as that presented by Paul Michel, whereupon the defense did not renew its already stated objection on Rule 404(b) grounds. ⁵

3. Testimony of Paul Libby, General Manager and President of Scotia Company, who identified a job application dated April 1, 1986 as having been prepared by appellant. This form also had been check marked "Yes" in response to the question of United States citizenship. ⁶

4. An employment application in the name of "George Oppon" dated October 29, 1986 reflecting an affirmative response to the question of United States citizenship. This application was identified as a business record by John Field, who handled job applications for Bauer Haus Industries. An expert witness identified the handwriting on this application as Oppon's. ⁷

5. An employment application in the name of Cope which had been prepared by appellant but never submitted to the employer. Cope had retained this document which bore the false social security number provided by appellant. An expert witness identified the handwriting on it as appellant's. This testimony related to the charge that appellant gave Cope a false social security number. The trial judge instructed the jury twice that this document could not be used as evidence of guilt, which was consistent with his prior instructions. ⁸

There was also the testimony of Andrea St. Pierre, an acquaintance of appellant, in response to defense counsel's questions, that she had seen appellant complete a job application in 1985 and leave the citizenship question therein unanswered. St. Pierre asked appellant why he did not answer the question, whereupon, appellant responded, inter alia, that he usually left that portion of the application unanswered because it did not concern him. The trial judge told the jury that this evidence was "testimony of another similar offense and the instruction I gave yesterday applies." This is an apparent reference to the original 404(b) instruction given when the Maine Department of Labor forms were admitted as the first 404(b) evidence. See supra note 4. ⁹

At the close of the evidence, the trial judge instructed the jury as follows:

Now, there's evidence of other similar acts in this case and an instruction was given you at the time that testimony was introduced, the defendant denies he filled in any box indicating that he was a citizen of the United States, and he also denied that he made any representations for the purpose that we will to [sic] into that Cope and MacAulay [sic] had assigned Social Security numbers whereas in fact they didn't have any.

There was evidence that other applications on behalf of MacAulay and Cope, and it's about those that I need to remind you, that they are nor--the proof is not to be considered by the jury in determining whether the accused in fact committed any act with which he's charged in this indictment ... It may not be considered--that kind of evidence--for any purpose until you first find from other evidence standing alone that the government has established beyond a reasonable doubt that the accused did the particular act charged in the indictment, that he filled in a box indicating that he was--that's what he denies. They claim he did it. The government claims that he did fill in that box. You have to find from other evidence that he did before you can consider these other applications or similar acts and then only for the purpose of determining whether the defendant After the jury had retired to deliberate, defense counsel moved for mistrial arguing that counsel for the government made a closing statement which invited the jury to infer from the "other bad acts" evidence that appellant had acted in conformity therewith. Counsel for the government denied doing this. The trial judge did not find that the government had made such an argument, but nonetheless recalled the jury and instructed them to ignore any argument of counsel for the government regarding the other acts evidence. The judge went on to give the following instruction:

filled in the box by...