U.S. v. Rodriguez

• Decision Date: 13 April 1983
• Docket Number: No. 361,D,361
• Citation: 706 F.2d 31
• Parties: 13 Fed. R. Evid. Serv. 594 UNITED STATES of America, Appellee, v. Barbara RODRIGUEZ, Appellant. ocket 82-1188.
• Court: U.S. Court of Appeals — Second Circuit

Page 31

706 F.2d 31

13 Fed. R. Evid. Serv. 594

UNITED STATES of America, Appellee, v. Barbara RODRIGUEZ, Appellant.

No. 361, Docket 82-1188.

United States Court of Appeals Second Circuit.

Argued Nov. 3, 1982.

Decided April 13, 1983.

Richard A. Reeve, Asst. Federal Public Defender, D. Conn., New Haven, Conn. (Thomas G. Dennis, Federal Public Defender, D. Conn., New Haven, Conn., of counsel), for appellant.

William C. Bryson, Atty., U.S. Dept. of Justice, Washington, D.C. (Alan H. Nevas, U.S. Atty., D. Conn., New Haven, Conn., of counsel), for appellee.

Before TIMBERS, KEARSE and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

Barbara Rodriguez appeals from a judgment of conviction entered May 14, 1982, in the United States District Court for the District of Connecticut, after a jury trial before Judge Daly. Appellant was found guilty of aiding and abetting the making of a false statement on a passport application in violation of 18 U.S.C. Secs. 1542 and 2 (1976). The principal issues on appeal are: 1) whether there was a sufficient basis for permitting a key defense witness to assert the Fifth Amendment privilege, and 2) whether the district court erred in not receiving evidence under Fed.R.Evid. 804(b)(3) or (b)(5). We conclude that the district court's rulings on these issues were not erroneous, and, further, that the evidence was sufficient to support a conviction. Therefore, we affirm.

I.

The record discloses that an investigation of an alleged house of prostitution at 89 Ellsworth Street, Bridgeport, Connecticut, run by appellant's co-defendant Melody Law, was being conducted by the Federal Bureau of Investigation (FBI). Appellant was employed there as a prostitute from February through July of 1981. On July 13, 1981, special agents of the FBI conducted a raid of the house, searched Law's car and various safe deposit boxes, and seized a passport in the name of Melody Arlene Law and a birth certificate in the name of Melody Arlene French. The search also revealed that Law had under her control various birth certificates, drivers licenses and other personal papers of other women who allegedly worked as prostitutes for her. This search did not disclose any documents relating to the appellant. In late October, 1981, Law was informed that she was the target of an FBI investigation involving her prostitution activities. ¹

A few days later on November 8, 1981, the Office of Vital Records for the Commonwealth of Pennsylvania received a handwritten letter requesting a duplicate birth certificate of Barbara Rose Lutzick--the maiden name of appellant--and enclosing three dollars in cash. This application was returned because the fee was four dollars; the envelope from the Office of Vital Records was seized by law enforcement officers from the mailbox at 89 Ellsworth Street on November 18, 1981.

On November 15, 1981, FBI Special Agent Raymond Palmowski saw an advertisement in the Fairfield Citizen News of a "tag sale" being held at 89 Ellsworth Street; he called the telephone number listed in the ad and made an appointment to attend. When he appeared, he observed Melody Law and appellant; Law told him that she was selling her property because she was moving to California.

On November 17, 1981, FBI Special Agent Andrew Aquillini observed Law in the Connecticut Department of Motor Vehicles in Hamden, Connecticut. She applied for a license, had her photograph taken, and obtained a Connecticut driver's license in the name of "Barbara Lutzick."

On November 18, 1981, Law and appellant visited the passport office in Stamford, Connecticut. The FBI had installed videotape equipment at the passport office, and a tape of the two women's visit to that office was shown at trial to the jury. FBI Special Agent John Connaughton was also at the passport office when the women arrived. He overheard Law apply for a passport, using appellant's maiden name, "Barbara Rose Lutzick." Together with the application, Law submitted the driver's license which she had obtained in appellant's name, a copy of appellant's birth certificate, and two photographs of herself which she signed using appellant's maiden name. The videotape and the testimony of Daniel Pappas, a passport examiner, showed that appellant was standing next to Law as Law submitted the application and supporting documentation at the passport office window.

The passport application bore appellant's date and place of birth, the names and dates of birth of appellant's parents, ² but it bore Law's home address, physical description, and photo. After reviewing the application, Pappas asked whether Law wished the passport to be in the name of "Barbara R." or "Barbara Rose," to which Law responded "Barbara Rose." Law signed the application and swore that its contents were accurate. During the course of this transaction, appellant said "I guess nodding your head isn't good enough," and asked whether the passport could be picked up that same day. After Law informed Pappas that she was in urgent need of the passport, he agreed to process the application quickly so that the passport would be ready that afternoon. Pappas then gave Law a receipt that would enable her to pick up the passport the same day.

Law was arrested later that day upon returning to her residence with appellant, and was charged with making a false statement on a passport application in violation of 18 U.S.C. Secs. 1542 and 2. In the presence of FBI agents, appellant told Law that Law had appellant's purse, and asked that it be returned to her. When Law handed the purse to appellant, one of the agents took it. Soon thereafter, Law voluntarily handed a cigarette case to appellant. The agents also took this item.

A subsequent search of the purse revealed the receipt from the passport office and a Connecticut driver's license in the name of "Melody Law." A search of the cigarette case revealed a birth certificate in the name of "Barbara Rose Lutzick" and a driver's license also in that name but with a picture of Melody Law.

An indictment was filed on November 24, 1981, charging appellant in two counts. Count One charged her with aiding and abetting another in making a false statement in a passport application, in violation of 18 U.S.C. Secs. 1542 and 2. Count Two charged her with being an accessory after the fact to the same offense, in violation of 18 U.S.C. Sec. 3 (1976). In a bill of particulars subsequently filed by the government, it was stated that "the furnishing of documents and information to Ms. Law by Ms. Rodriguez which enabled Ms. Law to apply for a passport in Ms. Rodriguez's name" was the conduct which constituted aiding and abetting as charged in Count One.

Melody Law was named as a co-defendant in Count One, as the party who actually made the false statements in the passport application. She entered a guilty plea under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), ³ on January 4, 1982 and was sentenced on February 3, 1982 to a term of one year of imprisonment.

During appellant's trial a fingerprint expert employed by the FBI, and testifying for the government, stated that he found Law's fingerprints on the passport application and on the letter to the Pennsylvania Division of Vital Statistics seeking a duplicate birth certificate of Barbara Rose Lutzick. He testified that he also found appellant's fingerprints on the birth certificate and the letter. At the conclusion of the government's case, defendant moved for judgment of acquittal on both counts. Her argument with respect to Count One was that the government had charged that the act upon which her criminal liability hinged was furnishing documents and information to Law, and that there was no evidence by which a reasonable juror could find beyond a reasonable doubt how, when, and under what circumstances Law received the birth certificate and information from appellant. The court reserved decision on the motion with respect to both counts.

Appellant testified in her own defense that she was employed by Melody Law as a prostitute from February, 1981 through July, 1981. She stated that when she began working for Law, she gave Law many of her personal papers, including her birth certificate for safe-keeping, because appellant's residence was in an unsafe area. She testified that in November, 1981, believing that she needed a birth certificate to obtain a Connecticut driver's license, she asked Melody Law to order a new birth certificate for her, because she thought the old one had been confiscated during the FBI raid in July, 1981. She gave Law information about her mother and father, and looked at the letter Law had written before it was mailed.

Appellant admitted that she was present at the tag sale about which FBI Agent Palmowski testified. She testified that although she had accompanied Law to the passport office on November 18, 1981, she did not know Law's intentions until the passport agent mentioned the name "Barbara Rose." She admitted that she had asked the passport agent whether it would be possible to pick up the passport that same day, that Law later confirmed to her that she had falsely applied for a passport in appellant's name, but she denied having supplied Law with the necessary documents and information so that Law could apply for the passport. She further testified that she had taken the purse and cigarette case from Law so that she could safeguard them and stated that she had no intention of concealing the documents that were subsequently found inside them.

As a part of the defense's case and prior to appellant taking the stand, Melody Law was called as a witness, whereupon her attorney indicated that she intended to assert her Fifth Amendment privilege against self-incrimination. The court noted that Law had entered a guilty plea pursuant to the Alford doctrine and that the claimed basis for assertion of the privilege was that she was the target of a pending grand...