United States v. Ortega
| Decision Date | 28 July 2011 |
| Docket Number | CR 10-2444 TUC DCB (DTF) |
| Parties | United States of America, Plaintiff, v. Olga Clarissa Ortega, Defendant |
| Court | U.S. District Court — District of Arizona |
The Court accepts and adopts the Magistrate Judge's Report and Recommendation (R&R) (doc. 39) as the findings of fact and conclusions of law of this Court as to Defendant's Motion to Dismiss Counts 2-15 (Doc. 12), as follows: 1) denying the motion in part as to any multiplicity between Counts 5-7 and 13-15 and 2) dismissing Count 12 for multiplicity with Count 13. For all the reasons given by the Magistrate Judge, the Court denies the Motion to Dismiss Indictment for Lack of Jurisdiction (Doc. 19); Motion to Dismiss Counts 2, 5, 8, 12, and 13 for Lack of Jurisdiction (Doc. 31), and Motion to Dismiss Counts 5, 6, and 7 for Failure to State a Claim (Doc. 32).
The Court denies the Defendant's Motion in Limine to Grant Full Faith and Credit to State Court Judgment (Doc. 33).
On June 6, 2011, Magistrate Judge D. Thomas Ferraro issued a R&R in regard to Defendant's motions. The Magistrate Judge found multiplicity between Counts 5-7 and 13-15, but recommends denying the Motion to Dismiss for Multiplicity, except as to Counts 12 and 13. Any multiplicity between Counts 5-7 and 13-15, existing after trial, will be remedied by post-trial dismissal for multiplicity.
The Magistrate Judge found the current immigration appeal does not divest this Court of jurisdiction over the case, and the Court has jurisdiction over the October-2005 passport application even though it was made outside the United States. The Magistrate Judge found a passport qualifies as an immigration document under 18 U.S.C. 1546(a).
The Defendant has filed objections. The Government filed a half-page Response, which does not make any objection to the R&R.
The duties of the district court in connection with a R&R are set forth in Rule 59 of the Federal Rules of Criminal Procedure and 28 U.S.C. § 636(b)(1). The district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Fed. R. Crim. P. 59(b)(3); 28 U.S.C. § 636(b)(1). "The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b); see also Fed. R. Crim. P. 59(b)(3).
Where the parties object to a R&R, "[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made." 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objection is filed, the district court need not review the R&R de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). Therefore, to the extent that no objection has been made, arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (); see also, Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) ()
The Court considers the objections filed by the Defendant and the parties' briefs considered by the Magistrate Judge in regard to the motions as they pertain to the objections raised by the Defendant.
The Defendant filed three applications for a United States passport and claimed under oath to be a United States citizen and submitted a birth certificate showing her to be born in the United States. The three applications form the basis of Counts 2-10 and 12-15. Thereafter, she applied for admission into the United States at the port of entry in Nogales, Arizona, claiming to be a United States citizen. This conduct forms the basis for Counts 1 and 11.
October 27, 2005, the Defendant filed a passport application at the United States Consulate in Nogales, Sonora, Mexico, as charged in Counts Two (18 U.S.C. § 1542: False Statement in a Passport Application), Five (18 U.S.C. § 1546: False Statement in an Application for Entry Document), Eight (18 U.S.C. § 911: False Claim to United States Citizenship), Twelve (18 U.S.C. § 1001(a)(2): Oral False Statements), and Thirteen (18 U.S.C. § 1001(a)(3): Written False Statements). (Doc. 5: Indictment.)
January 23, 2008, the Defendant filed a passport application at the Pima County Courthouse, as charged in Counts Three (18 U.S.C. § 1542: False Statement in a Passport Application), Six (18 U.S.C. § 1546: False Statement in an Application for EntryDocument), Nine (18 U.S.C. § 911: False Claim to United States Citizenship), and Fourteen (18 U.S.C. § 1001(a)(3): Written False Statements). Id.
May 28, 2010, the Defendant again filed a passport application at the Pima County Courthouse, as charged in Counts Four (18 U.S.C. § 1542: False Statement in a Passport Application), Seven (18 U.S.C. § 1546: False Statement in an Application for Entry Document), Ten (18 U.S.C. § 911: False Claim to United States Citizenship), and Fifteen (18 U.S.C. § 1001(a)(3): Written False Statements). Id.
August 22, 2010, the Defendant applied for admission into the United States through the port of entry in Nogales, Arizona, as charged in Counts One (8 U.S.C. 1326: Attempted Reentry After Deportation) and Eleven (18 U.S.C. § 1001(a)(3): False Claim to United States Citizenship). Id.
Under the Double Jeopardy Clause, no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Constitution Amend. V. Therefore, "[a]n indictment may not charge a single offense in several counts without offending the rule against multiplicity." (R&R at 3) there was one continuous course of action and 2) her actions constitute one crime not multiple crimes. Like the Magistrate Judge, the Court rejects both arguments.
"Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 303-04 (1932).
The Magistrate Judge made a careful comparison of the elements of the four offense statutes: 18 U.S.C. §§ 911, 1001(a)(3), 1542, and 1546. He found each require proof of a fact not required by the other statutes, except sections 1001 and 1546. Both require a written knowing false representation and proof that the representation is material, butsection 1001 requires the false representation to be about a matter within the jurisdiction of one of the government's three branches which is entirely subsumed within the requirement in section 1546 that the representation be in an application for a United States' immigration document. Section 1001 does not have an element different from those in section 1546, but section 1546 contains the additional element that the false statement be made under oath. Therefore, the Magistrate Judge correctly found it was premature to dismiss the section 1546 offenses, Counts 5-7, because there will be no multiplicity with the section 1001 offenses, Counts 13-15, if the Government fails to prove that the false statements were made under oath.
Because the Court agrees with the Magistrate Judge's analysis and conclusion that a passport qualifies as an immigration document under 18 U.S.C. § 1546(a), the Court must address Defendant's objection that if the Court so finds, then multiplicity exists between the section 1546(a) offenses and the section 1542 offenses because both require proof of an application for a passport. While true, this is not sufficient to make the counts multiplicitous because section 1542 does not require proof of materiality, United States v. Hart, 291 F.3d 1084, 1085 (9th Cir. 2002); it requires the false statement be made with the intent to induce the issuance of a passport. Whereas, materiality is a requirement for an offense under section 1546(a). (R&R at 5.) Counts 2-4 do not fail for multiplicity.
In her Objection, the Defendant agrees with the Magistrate Judge's finding of multiplicity as between Counts 5-7 and 12-15, but objects to the recommendation that the remedy for this multiplicity is to vacate post-trial any multiplicitous convictions.
The Fifth Amendment concern is that multiple sentences may result. See United States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008) (). So while the government may constitutionally include both offenses in the indictment and may permissibly prosecute a defendant for both offenses through trial, the accused may not suffer two convictions or sentences on the indictment. Ball v. United States, 470 U.S. 856, 865 (1985). As recommended by the Magistrate Judge for the counts involving sections 1546 and 1001, the remedy is post-trial dismissal for multiplicity.
The Defendant argues that "likewise," the Court should be concerned that multiplicity "may suggest to the jury that the defendant committed more than one crime." United States v. Dixon, 921 F.2d 194, 196 (8th Cir. 1990). The Court...
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