U.S. v. Wasman, 79-5643

• Decision Date: 02 April 1981
• Docket Number: No. 79-5643,79-5643
• Citation: 641 F.2d 326
• Parties: 7 Fed. R. Evid. Serv. 1527 UNITED STATES of America, Plaintiff-Appellee, v. Milton WASMAN, Defendant-Appellant. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 326

641 F.2d 326

7 Fed. R. Evid. Serv. 1527

UNITED STATES of America, Plaintiff-Appellee, v. Milton WASMAN, Defendant-Appellant.

No. 79-5643.

United States Court of Appeals, Fifth Circuit.

Unit B

April 2, 1981.

Richard M. Gale, Miami, Fla., for defendant-appellant.

Kevin M. Moore, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before VANCE, HATCHETT and ANDERSON, Circuit Judges.

VANCE, Circuit Judge:

Milton R. Wasman was convicted by a jury in the United States District Court for the Southern District of Florida for "willfully and knowingly" making a false statement in an application for a United States passport in violation of 18 U.S.C. § 1542. ¹ On appeal Wasman contends that the trial court erred in rejecting evidence that he had legally assumed a non-Semitic name to use in business dealings with Arab investors. We agree and reverse because of the erroneous exclusion of this evidence which deprived defendant of a valid defense. ²

On March 1, 1978 Milton Wasman submitted an application for a United States passport to a passport agent in Miami, Florida. Wasman applied for the passport in the name of David Hibbert Hendrick, Jr., an old classmate of Wasman's from law school at the University of Miami, who had died in 1961. ³ Wasman presented two recent photographs of himself. At the time the application was made, the defendant informed the passport agent that he had forgotten his wallet. He introduced his secretary, Barbara Bucci, who could identify him. Bucci gave an affidavit identifying Wasman as Hendrick. The passport was issued and subsequently used by Wasman, travelling as Hendrick.

Wasman readily concedes that he applied for the passport in the Hendrick name. He disputes that in doing so he made a false statement. He correctly argues that under both common law and the law of Florida a person may adopt any name he wishes without any legal proceedings provided it is not done for fraudulent purposes. In re Adoption of Long, 56 So.2d 450 (Fla.1952). His argument is patterned after the holding of the sixth circuit in United States v. Cox, 593 F.2d 46 (6th Cir.1979) that section 1542 is not violated by a person who states a legally adopted name on a passport application, even if such adoption of name was without resort to any court. The government concedes that there was no illicit purpose connected with Wasman's assumption of the name Hendrick. In formulating the ruling now before us, however, the trial judge seems to have been influenced by his stated disapproval of Wasman's use of a non-semitic name in dealing with Arabs. ⁴

In a one-count indictment Wasman was charged with making a false statement in an application for a passport in violation of 18 U.S.C. § 1542. At trial the government introduced evidence that Wasman had not used his correct name or birth certificate in obtaining a passport in the name of Hendrick. ⁵ After the government rested, it moved to limit defense evidence that it anticipated on the basis of defendant's opening statement, ⁶ and Rules 401, 402 and 403 of the Federal Rules of Evidence.

Wasman's attorney made clear to the trial judge that he sought to offer evidence that there was no bad purpose involved in his assuming another name for business reasons. An extensive offer of proof was made outside the presence of the jury. According to the proffer Wasman would testify that he had been involved in a business relationship with Ronnie Comninos since the early 1970's in the development of a tract of land in central Florida called "Traders Cove." Wasman's role was to oversee development activities; Comninos acted as a European broker who solicited money from European investors. As a result of business reversals in the project in the fall of 1977 animosity developed between Wasman and Comninos resulting in litigation. In the latter part of 1977 and early part of 1978 Wasman communicated with Comninos and subsequently arranged a meeting in London in mid-February of 1978. Wasman travelled to London to meet with Comninos and Andrew Connolly, who represented himself as an agent for a group of wealthy Arabs seeking to invest in Florida land. The three men discussed the possibility of Wasman becoming an agent for Connolly in Florida. Connolly pointed out that Wasman's semitic last name would be a detriment in dealing with Arab principals and that Wasman should adopt a non-semitic-sounding name.

After Wasman met with the two men in London, he returned to Miami and began contacting corporations and agencies who had large tracts of land for sale in Florida. Additionally, Wasman obtained a passport in the name of his former classmate Hendrick, with the help of Ms. Bucci, who was told of the necessity of using a non-semitic name.

Defense counsel's proffer also included testimony by Wasman as to events which occurred subsequent to the issuance of the passport. On the 4th or 5th of March 1978 he travelled to London where he met Comninos and Connolly and, under the name Hendrick, gave a presentation to some Arabs. After the presentation Connolly told him that it would be necessary for Wasman, Connolly and a third man to travel to southern Spain to meet with an Arab sheik. When Wasman travelled to the sheik's home near Marbella, Spain, he was told by Connolly that he was being kidnapped. Connolly made a ransom demand on behalf of some Italian clients who wanted over half a million dollars because of problems with a Florida land transaction. Wasman agreed to the demands of Connolly and was released. He eventually made his way back to Miami and reported the matter to the FBI.

In addition to the proffer of Wasman's testimony, defense counsel stated that he would introduce several exhibits to substantiate the trips made by Wasman to London and Spain as well as pictures of bruises and lacerations incurred by Wasman during his ordeal. He also stated that he would call several witnesses, including Comninos, a private detective hired to identify and find Connolly, the security officer of the London hotel in which Wasman stayed, and the FBI agent assigned to the case.

Following a lengthy discussion, the trial judge granted the government's motion. ⁷

Defense counsel subsequently requested clarification of the court's ruling, inquiring as to whether all the proffered evidence was excluded. When the trial judge answered in the affirmative, the defense rested and renewed a prior motion for acquittal under Rule 29. Thereafter, the jury was brought into the courtroom and advised that the matters contained in the defendant's opening statement would be excluded.

After the court's explanation, the jury was excused to allow the attorneys to discuss the proposed jury instructions. The court indicated that it would stick with 9A of the Pattern Jury Instructions on the definition of willfully. ⁸ Following the conference, the jury returned, closing arguments were made and the judge charged the jury. During the course of jury deliberation, the jury requested the judge to define the word "willfully." Over objection of defense counsel the trial judge gave a supplemental jury instruction that differed from the original jury charge on the definition of willfulness. ⁹ On appeal, defendant contends that the district judge committed reversible error in its supplemental jury instruction. Because we find that the trial court committed reversible error in excluding the proffered evidence, we do not reach this issue.

In concluding that reversible error was committed in the exclusion of the proffered evidence, we recognize that the trial court is vested with wide discretion in determining whether evidence is relevant. United States v. 110 Bars of Silver, 3 Crucibles of Silver, 11 Bags of Silver Coins, 508 F.2d...