Unpublished Disposition, 940 F.2d 1537 (9th Cir. 1990)

No. 91-10001.

United States Court of Appeals, Ninth Circuit.

Before CHAMBERS and SNEED, Circuit Judges, and KELLEHER,^*  District Judge.

MEMORANDUM^** 

Defendant, Ronald Sotelo, appeals from his convictions for making false statements in a passport application, misuse of a passport, and perjury. We affirm defendant's convictions.

FACTS

On July 26, 1987, pursuant to a search warrant, federal agents seized passports belonging to Mr. and Mrs. Ronald Sotelo from the Sotelos' home in Hayward, California. Before leaving the Sotelos' residence, the agents completed an inventory list of items taken, including the passports, and reviewed that list with Mr. Sotelo ("Sotelo"). The passports were then logged into the custody of the Drug Enforcement Administration and transferred to the State Department.

On April 11, 1990, Sotelo completed an application for a new passport. In response to a question on the application, he stated, under oath, that the "disposition" of his previous passport was "lost." Sotelo also completed a second form regarding a "lost or stolen passport." On this form, responding to the question, "How was passport lost or stolen?," Sotelo wrote "misplaced?" He also stated that he had discovered the loss of his passport in January of 1990, and that he had "look [ed] for it." He did not mention that the passport was in government custody.

Sotelo planned to travel to La Paz, Bolivia in order to attend his son's wedding. Assistant U.S. Attorney Mary Pougiales learned of Sotelo's travel plans and of his statements on the new passport application, but her attempts to stop Sotelo were unsuccessful. An agent of the State Department arrested Sotelo upon his return from Bolivia on May 22, 1990.

The prosecution charged Sotelo with 1) making a false statement in a passport application, in violation of 18 U.S.C. § 1542 (1988), 2) misuse of passport, in violation of 18 U.S.C. § 1544, and 3) perjury, in violation of 18 U.S.C. § 1621. On October 15, 1990, a jury returned guilty verdicts on all counts. Defendant appeals, arguing 1) that the evidence was insufficient to sustain his convictions, 2) that prosecutorial misconduct occurred at trial, and 3) that the counts of false passport application and perjury were multiplicitous.

DISCUSSION

This court has jurisdiction under 28 U.S.C. § 1291 (1988). In evaluating the sufficiency of the evidence to sustain a conviction, we review the evidence in the light most favorable to the prosecution to determine whether " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Normandeau, 800 F.2d 953, 959 (9th Cir. 1986) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Prosecutorial comments to which the defendant objects are reviewed for harmless error. United States v. Sherlock, 865 F.2d 1069, 1082 (9th Cir. 1989). The trial court's decision not to consolidate counts is an issue of law that is reviewed de novo. United States v. Douglass, 780 F.2d 1472, 1477 (9th Cir. 1986).

A. Sufficiency of the Evidence: Were Sotelo's Statements "Literally True"?

Sotelo first contends that the evidence was insufficient to sustain his convictions because the answers he gave in his passport application, regarding the disposition of his previous passport, were literally true. He supports this argument by attempting to broadly define his responses, "lost" and "misplaced," to include any situation where an item is not in one's possession. Under this broad interpretation, he argues, his words truthfully described the government seizure of his passport.

Sotelo is wrong. It is true that a witness may not be convicted of perjury for an answer that is literally true but not responsive to the question asked and arguably misleading by negative implication. See Bronston v. United States, 409 U.S. 352, 355, 357 (1973). In Bronston, the Supreme Court held that " [i]f a witness evades, it is the lawyer's responsibility to recognize the evasion and to bring the witness back to the mark." Id. at 358-59.

However, Bronston does not protect a defendant who bends the meaning of a responsive but untruthful answer into a distorted shape in order to conform to the facts. See United States v. Tobias, 863 F.2d 685, 689 (9th Cir. 1988). In Tobias, the defendant denied knowing an individual despite evidence of numerous telephone calls between their homes. Id. He claimed his answer was literally true, by narrowly defining the word "know" to include only close friendship or contact. Id. at 686-87. This court rejected his argument, because although " [w]hether someone knows another individual admittedly can be interpreted in different ways ... a rational trier of fact could find that in this context Tobias' testimony was false. His strained definition of 'knowing' was only an unsuccessful effort to explain his contradictory answers." Id. at 689; accord United States v. Crippen, 570 F.2d 535, 537 (5th Cir. 1978) ("words [are] to be understood in their common sense, not as they might be warped by sophistry or twisted in pilpul"), cert. denied, 439 U.S. 1069 (1979).

Sotelo's claim clearly falls outside Bronston and within Tobias. Unlike Bronston, Sotelo directly responded to the original question as well as several follow-up questions rather than using a "truthful" answer to evade the question. Bronston, 409 U.S. at 362. Instead, like Tobias, Sotelo is attempting to use a very strained definition of his words to explain his somewhat contradictory answers. Tobias, 863 F.2d at 689. As in Tobias, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find that Sotelo knew that his passport was in government custody and lied when he claimed it had been lost.

B. Did the Prosecutor's Comments in Closing Argument Constitute Prejudicial Error?

Next, Sotelo argues that comments made by the prosecution in closing arguments were improper and require reversal. In order to evaluate the potential prejudicial impact of a comment in closing argument, it must be considered in the context of the entire trial. United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir. 1987). Even if error has occurred it is considered harmless beyond a reasonable doubt if there is overwhelming evidence of guilt throughout the record. See United States v. Ortiz, 776 F.2d 864, 865 (9th Cir. 1985), cert. denied, 475 U.S. 1097 (1986).

Sotelo's claim is based on the prosecution's reference to a conversation between the U.S. Attorney and Sotelo's attorney, in which the U.S. Attorney refused to return Sotelo's previous passport. The prosecutor inferred that Sotelo subsequently applied for a new passport because he knew, from the conversation between attorneys, that the government would not return his old one. Sotelo denies that he knew of the information the prosecution attributed to him. He further contends that the prosecutor knew of that denial, and that the attribution contradicted the judge's evidentiary instructions before trial.

Given the context of the entire Sotelo trial, the challenged comments were not prejudicial. Irrespective of whether Sotelo had actual knowledge of the U.S. Attorney's refusal to return his passport, the weight of evidence against Sotelo in this case was overwhelming. Sotelo knew that the government had seized his passport. He knew it had not been lost. The statements on his application were clearly documented and clearly false. Even if we assume that the prosecutor's inference was error, it was harmless error.¹ 

C. Were the Counts of False Passport Application and Perjury Multiplicitous?

Sotelo finally argues that the charges of false passport application and perjury were multiplicitous because they arose from the same statements made on the same passport application. This claim also lacks merit.

When a single act violates two distinct statutory provisions, it is appropriate to charge the offender under both statutes if each provision requires proof of a fact that the other does not. See Blockburger v. United States, 284 U.S. 299, 304 (1932). In applying this test, this court has ruled that the statutory elements of each offense, not the particular manner in which they were committed, are controlling. United States v. Solomon, 753 F.2d 1522, 1527 (9th Cir. 1985). Thus, the evaluation is performed in the abstract, without regard to the circumstances of each particular case.

The two statutory provisions here, sections 1542 and 1621, qualify as separate offenses under the Blockburger test. A conviction under section 1542 for "false statement in application and use of passport" requires proof of the following facts: 1) a knowing and willful false statement, 2) in a passport application, with 3) intent to induce issuance of a passport. See 18 U.S.C. § 1542. The elements required for conviction of perjury under section 1621 are 1) a knowing and willful false statement, which is 2) made under oath. See 18 U.S.C. § 1621.

Clearly, section 1542 requires proof of a fact that section 1621 does not, namely, that the false statements were made in a passport application to induce issuance of a passport. Meanwhile, section 1621 requires proof of an oath, which is not required by section 1542 because not all passport applications are made under oath.

The defendant was required to take an oath in this instance. Normally, passport applications are not verified by oath except for first time applicants or persons who have not been issued passports within the past twelve years. See 22 C.F.R. Sec. 51.21(a) (1991); see also 22 U.S.C. § 213. However, a person with a previously issued passport must submit that passport in order to bypass the oath requirement. See 22 C.F.R. Sec. 51.21(c) (3). Therefore, because Sotelo had lost his previous passport, he was treated as a first time applicant and was required to submit to an oath.

The fact that an oath was administered in this case does not affect our analysis because the statutory provisions, not the facts of the case, are controlling. Solomon, 753 F.2d at 1527. Thus, the two offenses are separate for Blockburger purposes, and Sotelo's claim of multiplicitous counts fails.

AFFIRMED.