United States v. Churchwell

• Decision Date: 18 November 2015
• Docket Number: No. 14–20351.,14–20351.
• Citation: 807 F.3d 107
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Nyle CHURCHWELL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

807 F.3d 107

UNITED STATES of America, Plaintiff–Appellee

v.Nyle CHURCHWELL, Defendant–Appellant.

No. 14–20351.

United States Court of Appeals, Fifth Circuit.

Nov. 18, 2015.

Anna Elizabeth Kalluri (argued), Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Randolph Lee Schaffer, Jr. (argued), Houston, TX, for Defendant–Appellant.

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

Before STEWART, Chief Judge, and BARKSDALE, and PRADO, Circuit Judges.

CARL E. STEWART, Chief Judge:

Nyle Churchwell ("Churchwell") appeals his conviction of two counts of aiding and abetting the making of a false statement in a passport application in violation of 18 U.S.C. §§ 1542 and 2. The district court, over his objections, sentenced Churchwell to a 42–month above-Guidelines sentence. For the reasons stated herein, we AFFIRM.

I. Factual Background

This case arises out of multiple passport fraud conspiracies. Beginning in 2007, Churchwell was employed as an Adjudication Manager for the Houston Passport Agency ("HPA" or "the passport agency") in Houston, Texas.¹

A. The C.F./M.V.² Passport

On October 11, 2007, Churchwell assisted Lorna Brown ("Brown") and Jacquelyn Venters ("Jacquelyn") at the HPA in securing a false passport for Brown's relative, C.F. Jacquelyn was present because she agreed to submit a passport application for C.F. by using her daughter's name, M.V. Temi Russell ("Russell"), an acquaintance of Churchwell, was also present; she previously told Churchwell that Brown was coming to the passport agency for a passport. At the passport agency, Jacquelyn submitted an application to Churchwell, along with M.V.'s birth certificate, C.F.'s photo identification, and paperwork provided by Brown. Churchwell advised Jacquelyn that her husband, Merlin Venters ("Merlin"), was required to sign the application. Although Merlin was absent, ³ Churchwell accepted either Brown's or Jacqueline's signature in place of Jacqueline's husband.⁴ Merlin did not submit an affidavit with the application to give consent for his purported child to receive a passport.

Churchwell documented both parents' identification information on the child's application; however, the number that Churchwell wrote as the father's identification number matched Brown's State of Texas driver's license. The photograph attached to the passport application in M.V.'s name depicted C.F. Neither M.V. nor C.F. were present when Jacquelyn and Brown submitted the passport application for C.F. Churchwell signed and approved the passport for issuance.

B. The Eric Gardner/ Jerald Law Passport

On April 15, 2010, a man claiming to be Jerald Law ("Law") went to the passport agency with Brown. Eric Gardner ("Gardner") represented himself as Law and submitted his photo with the Gardner/Law application to Churchwell. Gardner gave Churchwell a "little scratch piece of paper" with a Texas driver's license number written on it as proof of identification. Gardner also handed Churchwell an uncertified copy of his birth certificate. Churchwell proceeded to write the numbers from the torn piece of paper on the passport application in the section that required the driver's license number and added information on the application that was not on the piece of paper.⁵ Gardner also did not appear to know the answers to basic questions such as the name of his employer; instead, he looked to Brown for the appropriate responses.

A passport specialist also assisting Gardner expressed concern to Churchwell about the Gardner/Law application because of Gardner's lack of proper identification and missing information in his application. Churchwell told the specialist to obtain a DS–71 form, which is required from an identifying witness when the applicant does not have his primary identification. However, because Brown did not have valid identification, Brown could not serve as a witness.⁶

Churchwell nevertheless advised the specialist to accept the application and prepare it for will call, which would allow Gardner to accept it after it was prepared. When the specialist noted that Gardner's application exhibited many of the same fraud indicators as an application she reviewed days prior for Churchwell, Churchwell stated that the earlier passports were not issued.⁷ However, the passport specialist alleged that Churchwell's statement was false because the prior applicant's passport was already distributed to the applicant.

C. Churchwell's Investigation and Admissions

On June 4, 2012, Special Agent Matthew Ray ("the investigator") of the United States Diplomatic Security Service ("DSS") interviewed Churchwell about the disputed passports. Brian Clark ("Clark"), an assistant director at the HPA, attended the interview at Churchwell's request. While Churchwell initially denied knowing the applicants or being involved with assisting them in obtaining passports, the investigator revealed to Churchwell that the DSS knew that Churchwell did know the applicants, had in fact assisted them in obtaining passports, and that the DSS had telephone records indicating conversations between Churchwell and either Russell or Brown. As a result, Churchwell admitted that he knew Russell and Brown and helped them to obtain passports,⁸ but denied knowing that the applications were fraudulent.

II. Procedural History

On September 5, 2012, Churchwell was charged in a superseding indictment with one count of conspiracy to commit passport fraud (Count 1) and three counts of aiding and abetting the willful and knowing making of a false statement in a passport application (Counts 2–4) in violation of 18 U.S.C. §§ 1542 and 2. Churchwell pleaded not guilty and a jury convicted him of Counts 2 and 4. He was acquitted of Counts 1 and 3.

A probation officer prepared a Presentence Investigation Report that determined that Churchwell had a total offense level of 13. This included a two-level enhancement for an abuse of trust. The report considered Churchwell's Category I criminal history and gave an advisory guideline range of 12–18 months in prison. The probation officer suggested that an upward departure pursuant to the United States Sentencing Guidelines may be warranted, and the Government moved for an upward departure or a variance under 18 U.S.C. § 3553(a). Churchwell objected to a sentencing enhancement based on the number of passports involved and to the Government's motion for an upward departure. The district court overruled Churchwell's objections and imposed above-guidelines concurrent sentences of 42 months in prison.

Churchwell timely appealed his conviction and sentence. On appeal, Churchwell challenges (1) the sufficiency of the evidence at trial to support the jury verdict, (2) the district court's admission of lay opinion testimony, (3) the district court's allowance of comments made by a prosecutor during closing argument that were allegedly prejudicial, and (4) the procedural and substantive reasonableness of his above-Guidelines sentence.

III. Sufficiency of the Evidence

A. Standard of Review

This court reviews a claim of insufficient evidence de novo . See United States v. Harris, 666 F.3d 905, 907 (5th Cir.2012). We review the jury's verdict with great deference, and view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "[T]he jury is free to choose among reasonable interpretations of the evidence." See United States v. Brugman, 364 F.3d 613, 615 (5th Cir.2004).

B. C.F./M.V. Passport (Count 2)

Churchwell challenges his conviction for aiding and abetting the making of a false passport application by alleging that there was insufficient evidence. The record reveals that Churchwell's conviction can be upheld because he accepted and certified as true the C.F./M.V. passport application containing a false signature, even though he knew that the purported father was not present and did not in fact sign the passport application to give his consent.

The Government introduced sufficient evidence to establish the substantive elements of the offense. To obtain a conviction under 18 U.S.C. § 1542, the Government must prove beyond a reasonable doubt that the defendant "willfully and knowingly ma[de] any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States." 18 U.S.C. § 1542 ; United States v. Reyes–Ochoa, 503 Fed.Appx. 268, 269 (5th Cir.2012). In order for a parent to obtain a passport for a child under age 16, both parents must apply in person at the passport agency. See 22 C.F.R. § 51.28(a)(2). Alternatively, the application may be executed by only one of the parents if that parent shows a notarized statement from the absent parent consenting to the issuance of the passport. See id. § 51.28(a)(3)(i). When a parent, or another individual, signs a passport application in place of the second parent, the signing individual has willfully and knowingly made a false statement on the face of the passport application.⁹ Evidence at trial conclusively showed that either Jacquelyn or Brown made false statements on the child's passport application when one of the two signed falsely for Merlin and provided M.V.'s birth certificate and C.F.'s photo as a part of the C.F. passport application.

While we have held that a defendant may be criminally liable for making a false statement on a passport application, our case law has not yet addressed the issue in this case: whether a government agent may be held criminally liable for aiding and abetting where he accepts or certifies as true another's passport application that he knew contained false statements. Addressing an issue of first impression, we hold that the record supports the district court's finding of Churchwell's guilt. As a...