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--------------------------------------------------------------------------------
Case Name:
USA V SUAREZ-ROSARIO 
Case Number: Date Filed: 
00-50373 01/29/01 
--------------------------------------------------------------------------------
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
                                                     No. 00-50373
Plaintiff-Appellee,
                                                     D.C. No.
v.                                                    CR-00-00099-1-BTM
FLORENCIO SUAREZ-ROSARIO,
                                                     OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding

Argued and Submitted
January 11, 2001--Pasadena, California

Filed January 29, 2001

Before: Stephen S. Trott, Sidney R. Thomas and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Thomas
_________________________________________________________________
COUNSEL

Robert A. Garcia; San Diego, California, for the defendant-
appellant.

Michael G. Wheat; Assistant United States Attorney; San
Diego, California, for the plaintiff-appellee.
_________________________________________________________________
OPINION

THOMAS, Circuit Judge:

At issue in this appeal is whether proof of true identity is
an essential element of the government's proof for a convic-
tion pursuant to 18 U.S.C. S 1542 for using a passport
obtained through the use of a false statement and making a
false statement in an application for another passport. We
conclude it is not and affirm the judgment of conviction.

I

So, as a young Capulet agonized, what's in a name? Plenty,
according to Florencio Suarez-Rosario, who would prefer us
to know him as Benjamin Vasquez. Suarez-Rosario's present
pseudonym predicament began in October 1999, when he
sought entry into the United States at the crowded San Ysidro
Port of Entry in California, where destiny comes to wait in
line. There, he first drew appellation attention, not because of
his own nom de guerre, but his companion's: she presented
false identification to a customs officer. Upon questioning,
she confessed that her true name was Trinidad Landeros Mon-

                               1251
tiel, that she was married to the man she was accompanying,
and that his name was Florencio Suarez-Rosario. Unfortu-
nately, this representation was not consistent with the passport
tendered by the defendant, which bore his likeness, but listed
the name of Benjamin Vasquez. When questioned, Suarez-
Rosario admitted to being married and having a daughter with
Landeros. This was corroborated by the picture the defendant
carried of a little girl, labeled Stefanny Suarez Landeros.
Sensing a potential "borderline" personality disorder, the cus-
toms agent elected to confiscate defendant's passport. This
did not deter Suarez-Rosario; within a month he had applied
for a new passport under the name of Benjamin Vasquez
Arriola. The birth certificate he used to apply for both pass-
ports identifies the resident born as Benjamin Armenta
Vasquez.

Defendant was indicted on two counts under 18 U.S.C.
S 1542 alleging that he (1) secured a passport through the use
of a false statement and then presented that passport to gain
entry into the United States and (2) made a false statement in
an application for another passport. The indictment was not
ambiguous: it listed Florencio Suarez-Rosario as the defen-
dant.

Image and identity met at trial when the real Benjamin
Vasquez, whose birth was indicated by the birth certificate
that defendant had been using, testified, along with his mother
and sister. Vasquez testified that he had not filed the 1991
passport application, nor the 1999 passport application. The
1991 application listed Mr. Vasquez's parents as the appli-
cant's parents. The 1999 version changed the last name of the
mother from Armenta to Arriola, and stated that the applicant
was married to Trinidad Landeros.

After the government rested its case, defendant made a
Rule 29 motion for acquittal, arguing that the government had
failed to prove that defendant was Florencio Suarez-Rosario.
See  Fed. R. Crim. P. 29. The district court ruled that the gov-

                               1252
ernment was not required to prove beyond a reasonable doubt
as an element of the charged offenses that defendant was, in
fact, Florencio Suarez-Rosario. However, fearing an identity
crisis, the court also offered to allow the government to
reopen its case. Thereafter, the government recalled the cus-
toms agent who testified that Landeros told him the defendant
was her husband, that she said his name was Florencio
Suarez-Rosario, and that the defendant initially admitted to
being the father of the little girl in the picture found in his
wallet, which stated her name as Stefanny Suarez Landeros.
After the government rested its case again, defendant made
another unsuccessful Rule 29 motion. Compounding the cog-
nomen confusion, the defendant produced three witnesses,
who all testified they had known him as Benjamin Vasquez.
In short, the defense theory mirrored the ruminations of long-
shoreman philosopher Eric Hoffer: "we are what other people
say we are; we know ourselves chiefly by hearsay."

After resting, the defendant requested that the judge
instruct the jury that the prosecution had to prove beyond a
reasonable doubt that he was Florencio Suarez-Rosario. The
judge rejected defendant's tendered instruction on the basis
that it was not an element of either offense underS 1542.
Eventually, this latter day version of "To Tell the Truth"

ended when the jury rose to pronounce Suarez-Rosario guilty.
The defendant timely appealed his conviction.

II

[1] The district court correctly concluded that proof of true
identity is not an element of a violation of 18 U.S.C. S 1542,
which applies to:

       [w]hoever willfully and knowingly makes 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, either for
      his own use or the use of another, contrary to the

                               1253
      laws regulating the issuance of passports or the rules
      prescribed pursuant to such laws; or

       [w]hoever willfully and knowingly uses or
      attempts to use, or furnishes to another for use any
      passport the issue of which was secured in any way
      by reason of any false statement . . . .

18 U.S.C. S 1542.

[2] This section was not enacted solely to criminalize the
use of a false identity. Rather, "[t]he purpose of this act was
to punish the use of passports obtained by false statements."
Browder v. United States, 312 U.S. 335, 340 (1941). "The
gravamen of the offense . . . is the making of a false state-
ment." United States v. Cox, 593 F.2d 46, 48 (6th Cir. 1979).
Thus, the "crime is complete when one makes a statement one
knows is untrue to procure a passport." United States v.
O'Bryant, 755 F.2d 1528, 1535 (11th Cir. 1985). Knowing
use of any false statement to secure a passport, including the
use of a false name or birth date, constitutes a violation of
S 1542. Liss v. United States, 915 F.2d 287, 293 (7th Cir.
1990). Therefore, under the terms of 18 U.S.C. S 1542, the
government must prove that the defendant made a willful and
knowing false statement in an application for a passport or
made a willful and knowing use of a passport secured by a
false statement. Thus, whether Montague or Capulet, Suarez-
Rosario or Vasquez, proof of true identity is not an element
of a S 1542 crime. For the purposes of S 1542, it matters not
who you are, but who you are not.

[3] In sum, the district court correctly concluded that proof
of true identity is not an element of either of theS 1542
crimes of (1) using a passport obtained through the use of a
false statement or (2) making a false statement in an applica-
tion for a passport. Neither the district court's denial of the
Rule 29 motion, nor its submission of a jury instruction that
omitted a true identity proof requirement, was erroneous.

                               1254
Suarez-Rosario also argues that, because the government
alleged his name in the indictment, it must prove his true
name at trial. However, even assuming the indictment mis-
stated the true name, an immaterial misidentification in an
indictment is not grounds for reversal. United States v. Ever-
ett, 692 F.2d 596, 601 (9th Cir. 1982).

III

A district court is afforded wide discretion in determining
whether to allow the government to reopen and introduce evi-
dence after it has rested its case. United States v. Woodring,
444 F.2d 749, 751 (9th Cir. 1971). One purpose of Rule 29
motions is to alert the court to omitted proof so that, if it so
chooses, it can allow the government to submit additional evi-
dence. See United States v. Tisor, 96 F.3d 370, 380 (9th Cir.
1996) (discussing United States v. Davis, 583 F.2d 190, 195-
96 (5th Cir. 1978)). Here, the court was well within its discre-
tion to allow the government to reopen its case to present evi-
dence that defendant was indeed Suarez-Rosario.

AFFIRMED.
                               1255


					
					


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