U.S. v. Washington, s. 82-1591

• Citation: 227 U.S. App. D.C. 184,705 F.2d 489
• Decision Date: 15 April 1983
• Docket Number: Nos. 82-1591,82-1593,s. 82-1591
• Parties: , 13 Fed. R. Evid. Serv. 306 UNITED STATES of America v. Myrtle D. WASHINGTON, Appellant. (Two cases)
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 489

705 F.2d 489

227 U.S.App.D.C. 184, 13 Fed. R. Evid. Serv. 306

UNITED STATES of America v. Myrtle D. WASHINGTON, Appellant. (Two cases)

Nos. 82-1591, 82-1593.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 6, 1983.

Decided April 15, 1983.

As Amended April 15, 1983.

Appeals from the United States District Court for the District of Columbia (D.C. Criminal Nos. 82-00042 & 81-00375).

John W. Karr, Washington, D.C. (appointed by this Court), for appellant.

Mary A. McLaughlin, Asst. U.S. Atty., Washington, D.C., of the Bar of the Supreme Court of Pennsylvania, pro hac vice, by special leave of the Court with whom Stanley S. Harris, U.S. Atty., Michael W. Farrell, John R. Fisher and Deborah A. Robinson, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee. Donald J. Allison, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before ROBINSON, Chief Judge, MacKINNON and GINSBURG, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM:

Appellant challenges the validity of her convictions following two indictments for making false statements to secure United States passports, in violation of 18 U.S.C. Sec. 1542 (1976). Several arguments are proffered in support of her appeal. We find some merit in only one, involving her right under Fed.R.Crim.P. 43(a) to be present during the impaneling of the jury, which was violated when she was excluded over her express objection from a part of the confidential voir dire of several prospective jurors conducted at the bench. Nevertheless, we find that the violation constituted only harmless error and affirm the judgments of conviction.

I.

On April 10, 1981, appellant Myrtle D. Washington presented three passport applications to a passport examiner in the Washington Passport Agency in the District of Columbia. The passport applications were for three minor children of the appellant's paramour, Donald Morris Fuller. Forged Maryland birth certificates listing appellant as each child's natural mother were submitted along with the applications, and as identification appellant submitted her own passport issued in 1977. Appellant swore that each of the applications was true and signed the applications in the presence of the passport examiner. Because the birth certificates submitted with the passport applications looked suspicious, the staff of the passport agency decided to investigate their authenticity. A check of official Maryland records disclosed that no one was born in Maryland with the children's names during the years in question. On September 1, 1981, appellant was indicted in No. 81-375 on three counts of violating 18 U.S.C. Sec. 1542 (1976), ¹ which prohibits the wilful making of false statements in a passport application. After a jury trial in the United States District Court for the District of Columbia, appellant was found guilty on all three counts.

Before No. 81-375 went to trial, appellant was indicted in No. 82-42 for another violation of section 1542, this time in connection with a passport application made on December 18, 1981, for appellant's own use. In this instance appellant presented as her own a Chicago, Illinois, birth certificate bearing the name of Sharon F. Howard, and in the presence of a passport examiner she signed the passport application and swore to the truth of its contents. Appellant also swore that she had never been issued a passport before. After a jury trial before the same court, appellant was also found guilty of this charge.

On May 14, 1982, appellant was sentenced on each of the three counts in No. 81-375 to consecutive one to four year terms of imprisonment, with all but six months of the prison sentences suspended subject to two years of probation. In No. 82-42 appellant received a one to three year sentence to run consecutively to the sentences in No. 81-375. Execution of this sentence was suspended subject to two years' probation however. Appeals in the two cases were consolidated because of common issues.

II.

Appellant submits that several rulings by the district court on defense motions or objections deprived her of a fair trial. Regarding No. 81-375, appellant contends that she should have been allowed to present evidence of her motives in making the admittedly false passport applications; that the jury should have been instructed of its right to acquit her notwithstanding her guilt-in-fact, if the jury found her conduct morally blameless; that her claims of selective prosecution should have been decided by the jury, not the trial court; that discovery relating to the claim of selective prosecution was improperly restricted by the trial court; and that the scope of voir dire of the prospective jury was improperly restricted. She asserts that the conviction in No. 82-42 should be overturned because, as in No. 81-375, discovery relating to the selective prosecution claim was improperly limited and that the claim should have been decided by the jury; because her right to be present during voir dire, granted by Fed.R.Crim.P. 43(a), was violated when a portion of the voir dire was conducted at a bench conference out of her direct observation and range of hearing; and because adverse pre-indictment publicity affected the proceedings of the grand jury that indicted her.

A. Evidence Relating to Motive in No. 81-375

Appellant argues that since 18 U.S.C. Sec. 1542 (1976) requires the government to show that the defendant "willfully" and "knowingly" made a false statement in a passport application "with intent to induce or secure the issuance of a passport," the mental state of the defendant is put directly in issue. Citing Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), to the effect that the presence of the word "willfully" in the statute requires the government to prove that the criminal act was done with a "bad purpose," id. at 101, 65 S.Ct. at 1035, she argues that she should have been allowed to introduce evidence of her motives in committing the crime to rebut a finding by the jury that she possessed the requisite criminal intent. In particular, appellant desired to introduce evidence relating to her affiliation with the Original African Hebrew Israelite Nation of Jerusalem, a group commonly known as the Black Hebrews, ² her personal relationship with Donald Fuller, a Black Hebrew leader, and Fuller's manipulation of her affection and her dependency upon him.

We affirm the district court's refusal to permit appellant to introduce such evidence in No. 81-375 relating to her motives. Such evidence of motive, as the district court ruled, is not relevant to or probative on the issue of intent as that word is used in section 1542. This contention was settled in United States v. Pomponio, 429 U.S. 10, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976), in which the Court held that the requirement of an evil motive suggested in Screws is met by proof merely of "a voluntary, intentional violation of a known legal duty." Id. at 12, 97 S.Ct. at 23. Also to the point is Browder v. United States, 312 U.S. 335, 61 S.Ct. 599, 85 L.Ed. 862 (1941), which construed the words "knowingly" and "willfully" in section 1542 to mean " 'deliberately and with knowledge'." Id. at 341, 61 S.Ct. at 603. Proof of a good motive thus is not probative on the issue of such intent. The cases cited by appellant, United States v. Wasman, 641 F.2d 326 (5th Cir.1981), and United States v. Cox, 593 F.2d 46 (6th Cir.1979), are inapposite. In each case the defendant had used an alias in his passport application and asserted a common law right to adopt an alias for non-fraudulent purposes as a defense to the prima facie violation of section 1542. Evidence of motive was held admissible in those cases, not because such evidence negatived the specific intent that must be established to prove a violation of section 1542, but because the evidence of motive established that the defendants may not have made a false statement. Because appellant did not contest the falsity of her passport application, the evidence she proffered on motive was properly ruled irrelevant.

B. Instructions on Jury Nullification in No. 81-375

At the close of final argument in the trial of No. 81-375, appellant requested that the jury be instructed that it had the right to acquit her if it found her conduct not culpable or morally blameworthy under prevailing community standards. Such an instruction, appellant argues, is necessary to inform the jury of its inherent power to acquit notwithstanding a defendant's factual guilt, in order to properly control the arbitrary exercise of this prerogative.

It cannot be gainsaid that juries can abuse their power and return verdicts contrary to the law and instructions of the court, and thus nullify the criminal law, but courts generally have refused to give such an instruction to the jury. In federal courts the issue was settled in Sparf and Hanson v. United States, 156 U.S. 51, 102, 15 S.Ct. 273, 293, 39 L.Ed. 343 (1895), in which the Supreme Court rejected an argument similar to appellant's. See also United States v. Dougherty, 473 F.2d 1113, 1130-37 (D.C.Cir.1972) (reviewing history and propriety of federal rule). A jury has no more "right" to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant "guilty," and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power. Any arguably salutary functions served by inexplicable jury acquittals would be lost if that prerogative were frequently exercised; indeed, calling attention to that power could encourage the substitution of individual standards for openly developed community rules. Cf. United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir.1969) (Sobeloff, J.), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25...