Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1990)

MEMORANDUM^* 

Appellant Adelheid Maria Praml is a native and citizen of the Federal Republic of Germany, in the United States on a visitor visa. In 1988, a federal grand jury returned a four-count indictment against Praml. The first two counts were for passport fraud: the first for stating a false name and the second for stating a false place of birth on a passport application, 18 U.S.C. § 1542. The third count was for misuse of a social security number, i.e., Praml's falsely representing a social security number as her own to obtain a U.S. citizen's passport, 42 U.S.C. § 408(g). The fourth count was for possession of a false identification document with intent that such document be used to defraud the United States in obtaining a passport, 18 U.S.C. § 1028(a) (4). A jury convicted Praml on all counts and the district court sentenced her to five years probation on each count, the sentences to be served concurrently. Praml now appeals her convictions, alleging infirmities in the indictment, the admission of improper evidence and ineffective assistance of counsel. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for resentencing.

DISCUSSION

A multiplicitous indictment is one charging the same offense in more than one count. United States v. Sue, 586 F.2d 70, 71 n. 1 (8th Cir. 1978). Praml argues that Count II is multiplicitous because the indictment improperly "splintered" facts constituting a single offense into two separate counts. She also contends that Count III is multiplicitous because, in this case, Counts I and III arise from the same conduct.

Praml failed to object to the indictment prior to trial, thereby waiving her objection. Fed. R. Crim. P. 12(b) (2); Note to Subdivision (b) (1) and (2). Thus, we may reverse only upon a showing of plain error. Fed. R. Crim. P. 52(b); See United States v. Kennedy, 726 F.2d 546, 548 (9th Cir.), cert. denied, 469 U.S. 965 (1984). "Plain error is 'highly prejudicial error affecting substantial rights.' " Id. (quoting United States v. Gilman, 684 F.2d 616, 620 (9th Cir. 1982)).

Counts I and II of the indictment charged Praml with making separate false statements on the same passport application. It is impermissible to impose multiple punishment under the same statute for several false statements within a single document. See Sue, 586 F.2d at 70 (making false statements in different paragraphs of a single security agreement constitutes only one criminal violation of 18 U.S.C. § 1014); United States v. Sahley, 526 F.2d 913, 918 (5th Cir. 1976) (same); see also United States v. UCO Oil Co., 546 F.2d 833, 838 (9th Cir. 1976), cert. denied, 430 U.S. 966 (1977) ("In the absence of some evidence to the contrary, it is difficult to assume Congress intended that a defendant found guilty of falsifying one document be exposed to two or more sentences...."). Thus, Count II is multiplicitous and the district court's failure to consolidate Counts I and II constituted plain error.¹ 

Count III also charges Praml with making a false statement on her passport application, but it arises under a different statute than does Count I. To determine whether Congress intended the same conduct to be punishable under two criminal provisions, we inquire "whether each provision requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). Here, the statutes implicated in Counts I and III, 18 U.S.C. § 1542 and 42 U.S.C. § 408(g), each require proof not required by the other. Section 1542 requires a false statement made in an application for a passport. Section 408(g) punishes false representation of a social security number to obtain a government benefit. The elements of one provision are not subsumed within the other. Moreover, the purposes of the statutes are different. Section 1542 is designed to protect the integrity of passports, whereas section 408(g) protects the integrity of the social security system. Counts I and III, therefore, are not multiplicitous.

Praml asserts that the trial court improperly allowed testimony that described her violations of immigration laws, referred to her fraudulent attempt to obtain an Arizona driver's license, and was unfairly prejudicial. Because Praml failed to object to the admission of this testimony at trial, we review for plain error. United States v. Vaccaro, 816 F.2d 443, 453 (9th Cir.), cert. denied, 484 U.S. 914 (1987); Fed.R.Evid. 103.

Evidence of other crimes, wrongs or acts may be admitted for limited purposes under Fed.R.Evid. 404(b). Before such evidence is admitted, however, the following prerequisites must be met: (1) there must be sufficient evidence to support a finding by the jury that the defendant committed the prior act, Huddleston v. United States, 485 U.S. 681, 685 (1988); (2) the prior conduct must not be too remote in time from the commission of the crime charged; (3) the prior conduct must, in certain cases, be similar to the offense charged; and (4) the prior conduct must be introduced to prove an element of the charged offense that is a material issue in the case. See United States v. Miller, 874 F.2d 1255, 1268 (9th Cir. 1989). Once these prerequisites have been satisfied, the court must then balance the probative value of the evidence against the danger of unfair prejudice. United States v. Bailleaux, 685 F.2d 1105, 1110 (9th Cir. 1982); Fed.R.Evid. 403.

Under this standard, the challenged testimony of Stephen R. Usiak, Holly Johnson, and that of Lorraine Ansley not related to the traffic citation allegedly issued to Praml, is admissible under Rule 404(b) as evidence of Praml's motive and plan to obtain a U.S. passport. The remainder of the challenged testimony is not so clearly admissible. The testimony of Lorraine Ansley related to the traffic citation fails to satisfy the first requirement of Bailleaux. Moreover, the testimony of William Flynn regarding the "Ivan the Terrible" case and of Jan Abbott describing the value of a U.S. passport could be viewed as more prejudicial than probative. The trial court, however, has substantial discretion in ruling upon such questions. Even if there were some doubt whether that discretion had been exceeded, the questionable testimony was not of such significance that its admission rises to the level of plain error. When all of the evidence is considered, including the falsified passport application, the driver's license bearing Praml's photograph but the name of Holly Johnson, and testimony that Praml used Holly Johnson's birth certificate as identification to obtain the passport--it is clear that there was no undue prejudice or miscarriage of justice. Thus, the trial court's decision to admit the challenged testimony, in the absence of any objection by the defense, did not constitute plain error.

Praml alleges a prejudicial joinder of Count IV in the indictment. We review a claim of misjoined charges de novo. United States v. Smith, 795 F.2d 841, 850 (9th Cir. 1986), cert. denied, 481 U.S. 1032 (1987).

Under Fed. R. Crim. P. 8(a):

Two or more offenses may be charged in the same indictment ... if the offenses charged ... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

If it appears that a party is prejudiced by a joinder, the court may order separate trials or other relief. Fed. R. Crim. P. 14. Praml failed to object to joinder under Rule 8 or to move for severance under Rule 14 at trial. This failure waives the issue. Smith, 795 F.2d at 850; United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir. 1989). Even if the issue were not waived, the counts were properly joined under Rule 8(a). Praml has not demonstrated "that joinder was so manifestly prejudicial that it outweighed the dominant concern with judicial economy." United States v. Armstrong, 621 F.2d 951, 954 (9th Cir. 1980).

Lastly, Praml asserts that her trial counsel failed to provide effective assistance. We review this claim de novo. United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986).

To establish ineffective assistance of counsel, Praml must show: 1) that counsel failed to exercise the skill, judgment, or diligence of a reasonably competent attorney; and 2) that this failure was reasonably likely to have altered the outcome of the trial. Vaccaro, 816 F.2d at 455 (citing Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)). Praml has failed to make the required showing. Although there was some unexplained failures to object, counsel's performance did not fall below the standard of a reasonably competent attorney. Moreover, his performance was not so prejudicial that it was reasonably likely to have altered the outcome of the case.

Conclusion

The district court's failure to consolidate Counts I and II constituted plain error. Consequently, we remand for resentencing with instructions to vacate and stay the judgment of conviction on one of the two multiplicitous counts. Sanchez-Lopez, 879 F.2d at 549-50; Douglass, 780 F.2d at 1477 n. 1. The result below is affirmed in all other respects.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.