United States v. McFarlane

Decision Date08 July 2021
Docket NumberNo. 4:19-CR-83-D,4:19-CR-83-D
Parties UNITED STATES of America v. Anthony Morris MCFARLANE, Defendant.
CourtU.S. District Court — Eastern District of North Carolina

Sebastian Kielmanovich, Assistant US Attorney, United States Attorney's Office, Raleigh, NC, for United States of America.

ORDER

JAMES C. DEVER III, United States District Judge

On July 15, 2020, a grand jury in the Eastern District of North Carolina issued a second superseding indictment and charged Anthony Morris McFarlane ("McFarlane" or "defendant") with violating 18 U.S.C. §§ 1015(c), 1425(b), 1542, and 1546(a) [D.E. 32]. On September 3, 2020, McFarlane moved to dismiss the eleven counts in the second superseding indictment [D.E. 39] and filed exhibits in support [D.E. 40]. On October 6, 2020, the government responded in opposition [D.E. 45].

In 1998 and 1999, McFarlane lied about his criminal history to the Immigration and Naturalization Service ("INS"). In January 1999, without correcting those lies, McFarlane obtained his United States citizenship. In February 1999, McFarlane used his new citizenship to obtain a United States passport. In 2009, McFarlane renewed his 1999 passport and submitted his 1999 passport as part of the renewal process. In 2019, McFarlane needed to renew his 2009 passport. In this case, the United States seeks to criminally prosecute McFarlane for allegedly making false statements in 2018, 2019, and 2020 concerning the renewal of his 2009 passport. The government theorizes that McFarlane's 1998 and 1999 false statements infected his 1999 United States citizenship, his 1999 passport, and his 2009 passport, and thereby made various statements in 2018, 2019, and 2020 to be false or fraudulent. As explained below, the criminal statutes on which the government relies do not allow the government to use McFarlane's 1998 false statement and 1999 false statement to prosecute McFarlane for his conduct in 2018, 2019, and 2020. Thus, the court grants McFarlane's motion to dismiss and dismisses the eleven charges in the second superseding indictment.

I.

On May 14, 1996, McFarlane was not a citizen of the United States and applied for naturalization. See [D.E. 45] 1. Question 15-b of the application asked, "Have you ever ... been arrested ... for breaking or violating any law or ordinance excluding traffic regulations?" [D.E. 32] 1 (quotation omitted). McFarlane answered "no" to question 15-b and signed the application under penalty of perjury, certifying that his answers were true and correct. See [D.E. 45] 1.

On June 23, 1998, while McFarlane's application for naturalization was pending, authorities in Syracuse, New York, arrested McFarlane and charged him with first-degree sexual abuse, alleging sexual contact with a child less than 11 years old. See [D.E. 32] 1–2. On July 20, 1998, McFarlane appeared before an INS officer in Buffalo, New York, for a naturalization interview. See id. The officer placed McFarlane under oath and, during the interview, McFarlane amended his response to question 15-b to "yes", referenced a 1994 Florida arrest for armed sexual battery that was dismissed in 1995, but did not disclose his June 23, 1998 arrest (the "1998 false statement"). See id.; [D.E. 45] 2.

On December 3, 1998, a grand jury in Onondaga County, New York, indicted McFarlane for first degree sexual abuse of a child and endangering the welfare of a child. See [D.E. 32] 2.

On January 20, 1999, McFarlane completed a notice of naturalization oath ceremony form. See id. Question 3 of the form asked "AFTER the date you were first interviewed on your Application for Naturalization ... [h]ave you been ... indicted ... for breaking or violating any law or ordinance, including traffic violations?" Id. McFarlane answered "no," signed the form certifying his answers were true and correct (the "1999 false statement"), participated in a naturalization ceremony, and received United States citizenship. See id.; [D.E. 45] 3.

On February 16, 1999, McFarlane applied for a United States passport. See [D.E. 45] 4. As evidence of his United States citizenship, McFarlane presented his 1999 naturalization certificate. See id. On February 26, 1999, the Department of State issued McFarlane a United States passport (the "1999 passport"). See id.

On July 19, 1999, McFarlane pleaded guilty in Onondaga County, New York, to attempted first-degree sexual abuse of a child less than 11 years old. See id.

On March 20, 2009, McFarlane applied to renew his United States passport. See id. at 5. As part of his application, McFarlane submitted his 1999 passport. See id. McFarlane signed a declaration in the application stating that "I declare under penalty of perjury all of the following: ... I have not knowingly and willfully made false statements or included false documents in support of this application." Id. (quotation omitted). On April 11, 2009, the Department of State renewed McFarlane's passport (the "2009 passport"). See id.

On February 27, 2019, McFarlane again applied to renew his United States passport using Form DS-82, U.S. Passport Renewal Application for Eligible Individuals. See id. As part of the application, McFarlane returned his 2009 passport and signed a declaration in the application stating that "I declare under penalty of perjury all of the following: ... I have not knowingly and willfully made false statements or included false documents in support of this application." Id. On April 1, 2019, the Department of State advised McFarlane that he was ineligible to renew his passport using Form DS-82 because he had been convicted in 1999 of a sex offense against a minor. See id. & n.4. The Department of State told McFarlane that he should renew his passport using Form DS-11. See id.

On April 8, 2019, McFarlane submitted Form DS-11 to the Department of State. See id. at 6. On Form DS-11, McFarlane stated that he had submitted his 2009 passport in support of his application and signed the Form DS-11 certifying under penalty of perjury that he did not include false documents in support of the application. See id. On April 22, 2019, the Department of State renewed McFarlane's passport (the "2019 passport"). See id.

II.

An indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged[.]" Fed. R. Crim. P. 7(c)(1). "[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) ; see United States v. Mathis, 932 F.3d 242, 257 (4th Cir. 2019) ; United States v. Williams, 152 F.3d 294, 299 (4th Cir. 1998). Generally an indictment must "set forth the offense in the words of the statute itself," and the statutory language "must be accompanied with such a statement of the facts ... [that] will inform the accused of the specific offence ... with which he is charged." Hamling, 418 U.S. at 117–18, 94 S.Ct. 2887 (quotation omitted); see United States v. Blankenship, 846 F.3d 663, 668 (4th Cir. 2017).

A district court may dismiss an indictment for errors or irregularities in the grand jury proceeding where there is actual prejudice to the defendant. See, e.g., United States v. Brewer, 1 F.3d 1430, 1433 (4th Cir. 1993) ; United States v. Vanderhorst, 2 F. Supp. 3d 792, 796 (D.S.C. 2014). In order to demonstrate such prejudice, a defendant must show that (1) "the irregularity substantially influence[d] the decision to indict," or (2) "there is grave doubt that the decision to indict was free from the substantial influence of such irregularities." Brewer, 1 F.3d at 1433 (alteration and quotation omitted); see Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988). Such an error or irregularity includes "an infirmity of law in the prosecution." United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012) (quotation omitted); see United States v. Odom, 721 F. App'x 254, 255 (4th Cir. 2018) (per curiam) (unpublished); United States v. Snipes, 611 F.3d 855, 866 (11th Cir. 2010). For example, if a defendant demonstrates that the allegations in the indictment, even if true, do not state an offense, then a court must dismiss the alleged offense. See, e.g., United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004) ; United States v. Coia, 719 F.2d 1120, 1123 (11th Cir. 1983) ; United States v. Granados-Alvarado, 350 F. Supp. 3d 355, 358 (D. Md. 2018) ; cf. Russell v. United States, 369 U.S. 749, 768 & n.15, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (a purpose of the specificity requirement in an indictment "is to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction" (quotation omitted)); United States v. Bergrin, 650 F.3d 257, 268 (3d Cir. 2011) ("[The district court's] determination must be based on whether the facts alleged in the indictment, if accepted as entirely true, state the elements of an offense and could result in a guilty verdict."); United States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002) ("Thus, the indictment must also contain a statement of the essential facts constituting the offense charged." (emphasis and quotation omitted)). However, "a court may not dismiss an indictment ... on a determination of facts that should [be] developed at trial." Engle, 676 F.3d at 415 ; see United States v. Treacy, 677 F. App'x 869, 873–74 (4th Cir. 2017) (unpublished).

A.

Counts one, five, and six allege that McFarlane violated 18 U.S.C. § 1542 on October 24, 2018, and February 27, 2019. See [D.E. 32] 1–2, 5–7. Section 1542 makes it a crime for a person to

willfully and knowingly make[ ] any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority
...

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