Justia Federal District Court Opinions

Appellant after trial to a jury was convicted on each of four counts of an indictment charging him with falsely representing himself to be a United States citizen, making false statements in applications for an immigrant visa and a passport, and using false documents. 18 U.S.C. §§ 911, 1015(c), 1542 and 1546 (1970). The court sentenced him to a one year prison term on each count to be served concurrently. In all these transactions1 appellant represented himself to be a citizen of the United States by reason of his birth in Puerto Rico whereas the government contended that he was born in the Dominican Republic. We affirm.

Appellant's primary objection on this appeal is that the trial court erred in permitting the government to introduce into evidence over his objection various documents purporting to establish that he was a citizen of the Dominican Republic. All of the items in contention except one2 are official documents from the Dominican Republic upon which the government relied to establish the falsity of appellant's claims to United States citizenship. Appellant contends that since the documents are official in nature it was improper for the court to admit them in reliance on 18 U.S.C. § 34913 which he asserts applies only to unofficial foreign documents. He points to 28 U.S.C. § 1741 (1970) and Fed.R.Civ.P. 44(a)(2)⁴ as providing the proper avenues for putting into evidence foreign official documents.⁵ While we agree that Rule 44(a)(2) is the appropriate vehicle for admitting such documents, we hold that its requirements were complied with here.

There can be little dispute that Rule 44(a)(2) is the applicable and appropriate rule in these circumstances. At trial the government introduced copies of the official documents. Although the rule permits the use of copies it requires that they be attested to by a person authorized to do so and "accompanied by a final certification as to the genuineness of the signature and official position of the attesting person." United States v. Leal, 509 F.2d 122, 126 (9th Cir. 1975). The final certification must be made by "a diplomatic official of the United States or (a) diplomatic or consular official of the foreign country assigned or accredited to the United States." Id. As to the disputed documents here the government presented a copy of each accompanied by an attestation of its authenticity by the Dominican official in charge of the records from which it was obtained. In the case of four documents (Exhibits 2, 3, 6 and 7, see n.2 supra ) the government also provided final official certification from Mr. H. H. Buzbee, the United States Consul in the Dominican Republic. Thus, with regard to these documents the precise terms of Rule 44(a)(2) were complied with and there can be no dispute as to their admissibility despite the fact that the trial court did not explicitly admit them in reliance on the rule. In the case of the remaining documents, however, the last step of final certification was not complied with. The government contends it was able to bridge this gap by proffering extrinsic evidence in support of particular documents. For example, with regard to exhibit 10, see n.2 supra, the government presented testimony from Mr. Andres Linares, a Dominican official in charge of the demographic records for the area in which appellant was born. Linares, who had authorized the photocopy of the portion of the birth registry presented in evidence, testified as to the official procedure by which the records were kept. The government contends that in this fashion it followed what was "in essence Rule 44(a)(2) procedure," see United States v. Leal, supra at 127. However, we do not uphold the evidentiary validity of the documents in question on this ground.

We note that the final sentence of Rule 44(a)(2) permits a court "for good cause shown" to admit attested copies without final certification, see n.4 supra, in recognition of the fact that "in some situations it may be difficult . . . to satisfy the basic requirements of the rule. . . ." Advisory Committee's Note to Rule 44, 39 F.R.D. 69, 116 (1966). See United States v. Leal, supra at 126. In the present case appellant was shown all the documents and furnished copies of them. In addition, the trial court wisely adjourned the trial for an extra day in order to permit appellant's counsel to examine all the documents in detail. Since these documents dealt only with the date and location of appellant's birth and his family origins, facts within his intimate personal knowledge, it would appear he had more than ample opportunity to ascertain their accuracy. Furthermore, although he objected to the admissibility of the documents on the ground of improper certification, appellant "raised no objection directed to the absence of good cause . . ." as set forth in Rule 44(a)(2). United States v. Pacheco-Lovio, 463 F.2d 232, 234 (9th Cir. 1972). Under these circumstances we cannot say that the decision of the trial court to admit the challenged documents was improper.6

Appellant also contends that the court erred in not dismissing Counts III and IV of the indictment which charged violations of 18 U.S.C. §§ 911 and 1015(c) respectively. Both counts concern appellant's attempt to enter the United States as a citizen in January, 1975. On that occasion he presented a false Puerto Rican birth certificate as evidence of his asserted citizenship status. Appellant claims that this act does not amount to a false representation of citizenship within the meaning of the statute.7 However, this claim cannot prevail. He presented the birth certificate at the International Airport, Isla Verde, Puerto Rico at a checkpoint where an immigration official was seeking to determine the nationality of arriving passengers.⁸ Given this context appellant's act was sufficient to constitute a violation of § 911. Ackerschott v. United States, 139 F.2d 114 (9th Cir. 1943); see Chow Bing Kew v. United States, 248 F.2d 466, 469 (9th Cir.), cert. denied, 355 U.S. 889, 78 S.Ct. 259, 2 L.Ed.2d 188 (1957); United States v. Franklin, 188 F.2d 182 (7th Cir. 1951).

Also, we are not persuaded by appellant's claim that the false birth certificate he presented to the immigration official is not the type of documentary evidence of citizenship covered by § 1015(c).9 There is ample evidence to indicate that birth certificates are routinely relied on by Puerto Rican officials to determine alien or citizen status. Consequently, appellant's presentment of the certificate in support of a claim of citizenship when he knew it to be based on false information clearly places it among those documents whose use Congress meant to bar through enactment of this statute. See Dolan v. United States, 133 F. 440 (8th Cir. 1904). Cf. United States v. Bithony, 472 F.2d 16, 22 (2d Cir.), cert. denied, 412 U.S. 938, 93 S.Ct. 2771, 37 L.Ed.2d 397 (1973); United States v. Adielizzio, 77 F.2d 841, 843 (2d Cir. 1935).

We have examined appellant's other assignments of error and find them to be insubstantial.

Affirmed.