U.S. v. White, 92-3130

Citation303 U.S.App.D.C. 54,1 F.3d 13
Decision Date27 July 1993
Docket NumberNo. 92-3130,92-3130
PartiesUNITED STATES of America v. Blaine A'mmon WHITE, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (90cr0427-01).

Blaine A'mmon White, pro se.

Valinda Jones, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., at the time the brief was filed, John R. Fisher and Eric A. Dubelier, Asst. U.S. Atty., were on the brief, for appellee.

Before: MIKVA, Chief Judge, SILBERMAN and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Appellant claims that his convictions for passport fraud and for aiding and abetting passport fraud violated the Double Jeopardy Clause. He also raises a number of challenges to his sentence under the Sentencing Guidelines. We affirm the convictions and reject appellant's objections to his sentence.

I.

The facts are essentially undisputed. Acting on behalf of a client on November 1, 1989, Blaine White, who is an attorney, obtained a birth certificate from the Maryland vital records office bearing the name William S. Baldwin. Subsequently, on November 13, he signed an affidavit in support of the same client's application for a United States passport. White swore that he had known the applicant for five years, that he knew the applicant was a United States citizen, and that the applicant's name was William S. Baldwin. The birth certificate was used as proof of identity in the passport application.

Appellant was originally charged in a two-count indictment with document fraud, 18 U.S.C. Sec. 1028(a)(4), and passport fraud, 18 U.S.C. Sec. 1542. Section 1028(a)(4) makes it a crime to "knowingly possess[ ] an identification document (other than one issued lawfully for the use of the possessor) or a false identification document, with the intent such document be used to defraud the United States," and section 1542 makes it unlawful to "willfully and knowingly make[ ] any false statement in an application for [a] passport."

The government attempted to establish that White had been involved in a scheme to obtain false identification documents for a Canadian citizen, Harold D. Linden, a/k/a Norman Harold Moore, who was residing in this country illegally and who had retained White as an attorney. The real William S. Baldwin had died two days before White applied for the birth certificate (his obituary appeared in the newspaper on October 31) and the government sought to prove that White knew he was obtaining the dead man's birth record. An official from the vital records office testified that White received the birth certificate under a special procedure that the office used to allow attorneys to obtain the records of deceased persons. Had Baldwin still been alive, White could not have obtained the certificate without a notarized authorization from Baldwin himself. White testified, however, that his client, the individual identified at trial as Harold Linden, had always been known to him as William Baldwin, and that he had no idea that there was any special procedure used in issuing deceased persons' records. Thus, White claimed that he had no idea that he was acquiring a dead person's birth certificate and asserted that the affidavit he signed at the passport office was true to the best of his knowledge.

The jury acquitted White of document fraud under section 1028(a)(4), but could not reach a verdict on the passport charge. The district judge declared a mistrial on the latter count and dismissed the charge without prejudice.

White was subsequently reindicted on a five-count indictment that charged, among other crimes, making false statements in an affidavit accompanying a passport application, 18 U.S.C. Sec. 1542 (Count IV) (this was the same charge on which there had been a hung jury in the first trial) and aiding and abetting Linden in making false statements in a passport application "by supplying Linden with a false name, William Smith Baldwin, and false Social Security number" (Count V). According to the government, appellant not only provided Linden with a birth certificate, but also copied a Social Security number from a client's file in his law firm and gave the number to Linden to use on the passport application. Appellant moved to dismiss the charges on double jeopardy grounds. According to appellant, the jury in the first trial conclusively determined that he did not know that Linden was not William Baldwin. Any subsequent prosecution that would call into question that jury determination would be barred by the collateral estoppel component of the double jeopardy protection. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Appellant also contended that under Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), evidence of his conduct in obtaining the birth certificate could not be used in any subsequent prosecution because he had already been acquitted on the document fraud count.

The district court denied appellant's motion, see United States v. White, 757 F.Supp. 45 (D.D.C.1990), and appellant brought an interlocutory appeal. We rejected appellant's collateral estoppel argument and held that the jury's verdict in the first trial did not conclusively determine the issue of appellant's knowledge. See United States v. White, 936 F.2d 1326, 1329 (D.C.Cir.) (White I ), cert. denied, --- U.S. ----, 112 S.Ct. 381, 116 L.Ed.2d 332 (1991). We reasoned that, had the jury actually concluded that appellant did not know of Linden's double identity, it would also have acquitted appellant on the passport charge. See id. In that interlocutory appeal, we did not reach the question whether Grady v. Corbin barred prosecution of Count V (aiding and abetting passport fraud), because the government agreed to limit its use of the evidence concerning the acquisition of the birth certificate. See id. at 1330. The government conceded that it could not "prove either the conduct of unlawfully procuring the birth certificate from the vital records office with intent to defraud the U.S. at that time, or of unlawfully possessing it with such intent at the passport office, as an essential element of the offenses charged in the second indictment." Id. at 1330 n. 2.

In the second trial, the government reintroduced part of the evidence it had used in the first trial relating to the document fraud charge. The jury convicted on both Counts IV and V but acquitted appellant on all other counts.

II.
A.

Appellant relies exclusively on the Supreme Court's decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), to argue that in his second trial the government violated the Double Jeopardy Clause, see U.S. CONST., Amend. 5 ("[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb."), by prosecuting him for the same offense of which he was acquitted in the first trial. But Grady has been overruled, see United States v. Dixon, --- U.S. ----, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), and the Supreme Court has made clear that the so-called Blockburger test is the sole test for determining whether the crimes charged in successive prosecutions are the "same offense" for double jeopardy purposes. See id. --- U.S. at ----, 113 S.Ct. at 2860; see also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger analysis focuses strictly on the statutory elements of crimes: two offenses are not the same as long as each requires proof of an element the other does not. See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.

There can be little doubt that document fraud under 18 U.S.C. Sec. 1028(a)(4) is not the same offense as either passport fraud or aiding and abetting passport fraud under 18 U.S.C. Secs. 1542 & 2. Under section 1028 the government must prove that the accused (i) knowingly possessed an identification document, (ii) that was not lawfully issued for his use, (iii) with the intent to defraud the United States. Passport fraud, in contrast, requires proof that the accused (i) willfully and knowingly make a false statement in a passport application, (ii) with the intent to secure issuance of a United States passport contrary to the laws and regulations governing the issuance of passports. Even if we were to assume, arguendo, that the nature of the intent required in each crime was essentially the same, each statute still requires proof of an element the other does not. Document fraud under section 1028 requires possession of an identification document, while passport fraud under section 1542 requires proof that the accused made a false statement in a passport application. The elements could hardly be more distinct. And, of course, aiding and abetting passport fraud must, a fortiori require proof of an element that document fraud does not, because the government must prove both that someone committed the principal offense, see, e.g., United States v. Raper, 676 F.2d 841, 849 (D.C.Cir.1982), and that the accused aided and abetted commission of the crime. Thus, the government must prove the same elements of passport fraud--which, as we have already noted, are different from those for the offense of identification document crime described in section 1028--and then must prove aiding and abetting. Even if the government sought to prove aiding and abetting by referring to exactly the same conduct that it previously had attempted to use to prove document fraud--that is, if the government sought to prove aiding and abetting by the very act of acquiring the dead man's birth certificate--it would not offend the Double Jeopardy Clause. The same actions can constitute an offense under two distinct statutes and can be prosecuted separately under each as long as the statutes do not define a single offense under Blockburger. See Block...

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