U.S. v. Sotelo
| Decision Date | 13 August 1991 |
| Docket Number | No. 91-10001,91-10001 |
| Citation | 940 F.2d 1537 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. NITED STATES of America, Plaintiff-Appellee, v. Ronald Castorena SOTELO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before CHAMBERS and SNEED, Circuit Judges, and KELLEHER, * District Judge.
Defendant, Ronald Sotelo, appeals from his convictions for making false statements in a passport application, misuse of a passport, and perjury. We affirm defendant's convictions.
On July 26, 1987, pursuant to a search warrant, federal agents seized passports belonging to Mr. and Mrs. Ronald Sotelo from the Sotelos' home in Hayward, California. Before leaving the Sotelos' residence, the agents completed an inventory list of items taken, including the passports, and reviewed that list with Mr. Sotelo ("Sotelo"). The passports were then logged into the custody of the Drug Enforcement Administration and transferred to the State Department.
On April 11, 1990, Sotelo completed an application for a new passport. In response to a question on the application, he stated, under oath, that the "disposition" of his previous passport was "lost." Sotelo also completed a second form regarding a "lost or stolen passport." On this form, responding to the question, "How was passport lost or stolen?," Sotelo wrote "misplaced?" He also stated that he had discovered the loss of his passport in January of 1990, and that he had "look[ed] for it." He did not mention that the passport was in government custody.
Sotelo planned to travel to La Paz, Bolivia in order to attend his son's wedding. Assistant U.S. Attorney Mary Pougiales learned of Sotelo's travel plans and of his statements on the new passport application, but her attempts to stop Sotelo were unsuccessful. An agent of the State Department arrested Sotelo upon his return from Bolivia on May 22, 1990.
The prosecution charged Sotelo with 1) making a false statement in a passport application, in violation of 18 U.S.C. Sec. 1542 (1988), 2) misuse of passport, in violation of 18 U.S.C. Sec. 1544, and 3) perjury, in violation of 18 U.S.C. Sec. 1621. On October 15, 1990, a jury returned guilty verdicts on all counts. Defendant appeals, arguing 1) that the evidence was insufficient to sustain his convictions, 2) that prosecutorial misconduct occurred at trial, and 3) that the counts of false passport application and perjury were multiplicitous.
This court has jurisdiction under 28 U.S.C. Sec. 1291 (1988). In evaluating the sufficiency of the evidence to sustain a conviction, we review the evidence in the light most favorable to the prosecution to determine whether " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Normandeau, 800 F.2d 953, 959 (9th Cir.1986) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Prosecutorial comments to which the defendant objects are reviewed for harmless error. United States v. Sherlock, 865 F.2d 1069, 1082 (9th Cir.1989). The trial court's decision not to consolidate counts is an issue of law that is reviewed de novo. United States v. Douglass, 780 F.2d 1472, 1477 (9th Cir.1986).
Sotelo first contends that the evidence was insufficient to sustain his convictions because the answers he gave in his passport application, regarding the disposition of his previous passport, were literally true. He supports this argument by attempting to broadly define his responses, "lost" and "misplaced," to include any situation where an item is not in one's possession. Under this broad interpretation, he argues, his words truthfully described the government seizure of his passport.
Sotelo is wrong. It is true that a witness may not be convicted of perjury for an answer that is literally true but not responsive to the question asked and arguably misleading by negative implication. See Bronston v. United States, 409 U.S. 352, 355, 357 (1973). In Bronston, the Supreme Court held that "[i]f a witness evades, it is the lawyer's responsibility to recognize the evasion and to bring the witness back to the mark." Id. at 358-59.
However, Bronston does not protect a defendant who bends the meaning of a responsive but untruthful answer into a distorted shape in order to conform to the facts. See United States v. Tobias, 863 F.2d 685, 689 (9th Cir.1988). In Tobias, the defendant denied knowing an individual despite evidence of numerous telephone calls between their homes. Id. He claimed his answer was literally true, by narrowly defining the word "know" to include only close friendship or contact. Id. at 686-87. This court rejected his argument, because although Id. at 689; accord United States v. Crippen, 570 F.2d 535, 537 (5th Cir.1978) (), cert. denied, 439 U.S. 1069 (1979).
Sotelo's claim clearly falls outside Bronston and within Tobias. Unlike Bronston, Sotelo directly responded to the original question as well as several follow-up questions rather than using a "truthful" answer to evade the question. Bronston, 409 U.S. at 362. Instead, like Tobias, Sotelo is attempting to use a very strained definition of his words to explain his somewhat contradictory answers. Tobias, 863 F.2d at 689. As in Tobias, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find that Sotelo knew that his passport was in government custody and lied when he claimed it had been lost.
Next, Sotelo argues that comments made by the prosecution in closing arguments were improper and require reversal. In order to evaluate the potential prejudicial impact of a comment in closing argument, it must be considered in the context of the entire trial. United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir.1987). Even if error has occurred it is considered harmless beyond a reasonable doubt if there is overwhelming evidence of guilt throughout the record. See United States v. Ortiz, 776 F.2d 864, 865 (9th Cir.1985), cert. denied, 475 U.S. 1097 (1986).
Sotelo's claim is based on the prosecution's reference to a conversation between the U.S. Attorney and Sotelo's attorney, in which the U.S. Attorney refused to return Sotelo's previous passport. The prosecutor inferred that Sotelo subsequently applied for a new passport because he knew, from the conversation between attorneys, that the government would not return his old one. Sotelo denies that he knew of the information the prosecution attributed to him. He further contends that the prosecutor knew of that denial, and that the attribution contradicted the judge's evidentiary instructions before trial.
Given the context of the entire Sotelo trial, the challenged comments were not prejudicial. Irrespective of whether Sotelo had actual knowledge of the U.S. Attorney's refusal to return his passport, the weight of evidence against Sotelo in this case was overwhelming. Sotelo knew that the government had seized his passport. He knew it had not been lost. The statements on his application were clearly documented and clearly false. Even if we assume that the prosecutor's inference was error, it was harmless error. 1
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