U.S. v. Popow, 86-5361

• Decision Date: 16 June 1987
• Docket Number: No. 86-5361,86-5361
• Citation: 821 F.2d 483
• Parties: 23 Fed. R. Evid. Serv. 769 UNITED STATES, Appellee, v. Kenneth Maynard POPOW, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 483

821 F.2d 483

23 Fed. R. Evid. Serv. 769

UNITED STATES, Appellee, v. Kenneth Maynard POPOW, Appellant.

No. 86-5361.

United States Court of Appeals,

Eighth Circuit.

Submitted May 15, 1987.

Decided June 16, 1987.

Daniel M. Scott, Minneapolis, Minn., for appellant.

Thorwald H. Anderson, Jr., Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, MAGILL and TIMBERS, ^* Circuit Judges.

TIMBERS, Circuit Judge.

Kenneth Maynard Popow ("appellant") appeals from a judgment of conviction entered September 15, 1986 in the District of Minnesota, Edward J. Devitt, Senior District Judge, following a jury trial. Appellant was found guilty of having knowingly and willfully made a material false statement in a matter within the jurisdiction of the Immigration and Naturalization Service and the United States Customs Service by misrepresenting his true identity at the United States border, in violation of 18 U.S.C. Sec. 1001 (1982). ¹

On appeal appellant argues, first, that the false name presented by him at the United States border did not violate Sec. 1001 because it was made solely with regard to a customs declaration and was withdrawn immediately upon further questioning by the investigating agent; second, that the admission in evidence of his prior deportation and conviction for reentry after deportation deprived him of a fair trial; and, third, that the totality of the jury instructions mistated the law and the facts.

We hold that the giving of a false identification at the United States border is punishable under Sec. 1001 because it is both material and within the jurisdiction of a federal agency. We also hold that the admission in evidence of appellant's prior deportation and conviction for reentry after deportation was proper pursuant to Fed.R.Evid. 404(b). Finally, viewed as a whole, the jury charge correctly stated the law and the pertinent facts.

We affirm.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

On the evening of April 5, 1986, appellant and a companion, Betty Jane Cozzone, entered the United States from Canada at the Noyes, Minnesota port of entry. Appellant was driving a Ryder rental truck which was towing a second, disabled truck. Cozzone was a passenger in the rental truck. Customs Inspector Radig, who also was cross-designated as an immigration officer, was on duty that evening. He approached the truck to ascertain the identification and destination of the two individuals seeking entry. Appellant orally identified himself to Radig as "Edward Anderson". He also produced a driver's license in the same name.

Radig then gave both appellant and Cozzone Customs Form 6059-B, a written baggage declaration form, to complete. Appellant completed the form and signed it "Edward Anderson". On the form, he identified himself as a Canadian citizen seeking entry to the United States for four days on business. He explained to Radig that, although he had not known Cozzone previously, she had hired him to drive the rental truck for her because to tow a disabled vehicle was too unwieldy a task for her. Upon delivery of the disabled vehicle to its destination in Pennsylvania, appellant was to be paid $250 and was to be given an airplane ticket to return home to Canada.

Due to discrepancies in the statements made by appellant and Cozzone, Radig decided a secondary inspection of Cozzone's purse was appropriate. While Cozzone accompanied Radig into an adjoining room, appellant spoke with another officer on duty, Inspector Drengson. Drengson, an employee of the Immigration and Naturalization Service, also was cross-designated as a customs officer.

During the search of Cozzone's purse, Radig discovered a man's wallet which contained two driver's licenses in the name of "Kenneth Popow", a birth certificate in the name of "Aldo Popow" and a social security card in the name of "Aldo Popow". When Radig informed Drengson of this discovery, the two officers decided that a full search of the luggage in the truck was required. The officers thereupon brought the luggage belonging to appellant and Cozzone into the customs house.

Drengson searched appellant's luggage and uncovered several articles of women's clothing and the like. Drengson believed that this was inconsistent with appellant's explanation that he had just met Cozzone. In the meantime, Radig searched Cozzone's luggage in the adjacent room. He found a manila envelope containing U.S. immigration documents in the name of "Popow". When appellant saw Radig enter the room with the manila folder in his hand, appellant told Drengson that he "had something to tell " him. Drengson then took a sworn statement from appellant, in which appellant admitted that his true identity was Kenneth Popow and that he had used the false identification of Edward Anderson in seeking entry to the United States. Appellant was placed under arrest.

On April 9 an indictment was returned charging appellant with one count of violating Sec. 1001 by giving a false statement to customs and immigration officers in connection with his effort to enter the United States. Jury selection took place on July 8, followed by the trial on July 9. At trial, the government offered in evidence records of appellant's prior deportation and conviction for reentry after deportation. Over objection, the court held under Fed.R.Evid. 404(b) that the evidence was probative of appellant's motive, intent and knowledge. The evidence was admitted. The jury returned a guilty verdict on the evening of July 9.

On September 15 Judge Devitt sentenced appellant to the custody of the Attorney General for a period of one year. This appeal followed.

For the reasons stated below we affirm the judgment of conviction.

II.

A. Validity of the Conviction under 18 U.S.C. Sec. 1001

Initially, appellant argues that his conviction may not stand because his actions do not constitute a crime under Sec. 1001, as charged in the indictment. First, appellant argues that, because the Immigration and Naturalization Service ("I.N.S.") ordinarily does not use Form 6059-B as one of its prescribed forms, and he never otherwise falsely identified himself to I.N.S. Inspector Drengson, there is no jurisdictional basis for the indictment which charged him with making false statements in a matter within the jurisdiction of that agency. Second, although he concedes that his false statements were made orally to Customs Inspector Radig and in writing on Form 6059-B, he asserts that such statements were not material to the Customs Service within the meaning of Sec. 1001 and hence the indictment was defective as to that agency.

The origin and history of Sec. 1001 have been thoroughly reviewed in a number of cases, familiarity with which is assumed. E.g., United States v. Bramblett, 348 U.S. 503 (1955); United States v. Gilliland, 312 U.S. 86 (1941). The statute, of necessity, is couched in the broadest terms "to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described." United States v. Gilliland, supra, 312 U.S. at 93. We turn to an application of the statute's terms to the instant case.

1. Jurisdiction of a Federal Agency

"[T]he term 'jurisdiction' should not be given a narrow or technical meaning for purposes of 1001." Bryson v. United States, 396 U.S. 64, 70 (1969) (citations omitted). Accordingly, we have held that there is jurisdiction, within the meaning of Sec. 1001, if the false statement is made in some intended relationship to a matter that is within the jurisdiction of a federal agency. Ebeling v. United States, 248 F.2d 429, 434 (8th Cir.), cert. denied, 355 U.S. 907 (1957). Further, the false statement need not be made directly to the government agency; it is only necessary that the statement relate to a matter in which a federal agency has the power to act. E.g., United States v. Richmond, 700 F.2d 1183 (8th Cir.1984); Friedman v. United States, 374 F.2d 363 (8th Cir.1967). The initial question posed by appellant, therefore, is whether giving a false identification, both orally and on a Customs Form to a Customs Inspector, relates to a matter in which the I.N.S. has the power to act. We answer in the affirmative. In so doing, we review briefly the roles of these officials.

Customs inspectors are employees of the Customs Service, which is under the aegis of the Department of the Treasury. Immigration inspectors are employees of I.N.S., which is under the aegis of the Department of Justice. The investigative powers of both agencies are broad; although somewhat disimilar, they are harmonious. Congress has granted customs inspectors broad authority to examine vehicles, beasts, persons and their belongings crossing the national boundaries. 19 U.S.C. Sec. 482 (1982). See also 19 U.S.C. Secs. 1496, 1581(a) (1982). "Customs agents are authorized to prevent the importation of aliens and contraband into the United States." United States v. Rivera, 595 F.2d 1095, 1098 (5th Cir.1979). Immigration inspectors stationed at ports of entry, such as Noyes, Minnesota, in the instant case, are authorized to search any vehicle in which they believe aliens are being brought into the United States. 8 U.S.C. Sec. 1225 (1982). Under the immigration laws, I.N.S. inspectors do not have the authority to search bags, containers, or compartments too small to conceal persons. By a series of proper delegations, however, I.N.S. inspectors may be designated as customs inspectors by the Secretary of the Treasury. "[A]ny officer of the Bureau of Customs of the Treasury Department ... or any agent or other person authorized by law or designated by the Secretary of the Treasury to perform duties of an officer of the Customs Service ..." serves as a customs inspector. Likewise, a customs inspector may be designated to perform the duties of an immigration inspector. "[A]ny employee or class of employees of the...