United States v. Charles M. Mount

757 F.2d 1315, 244 U.S. App. D.C. 320, 1985 U.S. App. LEXIS 28461

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 26, 1985
• Docket: 84-5111
• Status: Published

Opinions

Opinion for the court filed by District Judge GREENE.

Concurring opinion filed by Circuit Judge BORK.

HAROLD H. GREENE, District Judge:

This is an appeal from a conviction of making a false statement in an application for a passport in violation of 18 U.S.C. § 1542. Appellant claims, first, that the District Court erred in failing to order the suppression of evidence seized by British police officers during the search of his residence in Great Britain, and second, that the evidence was insufficient to support the guilty verdict. We affirm.

I

On January 29, 1983, Charles Merrill Mount, a United States citizen, was arrested by British police officers in the village of Henley, England, for failing to return a rental car on time. He was searched at the police station and, while he was still in police custody, the officers also searched his residence on two separate occasions.¹ As a result of the searches, the officers discovered five different United States passports, in the names respectively of Charles Merrill Mount, Charles David Kern, Thomas Kelly Clinard, Edward George Hearn, and Sidney C. Nussenbaum.² These passports and other evidence were eventually turned over to the American authorities, but United States officials did not become involved in appellant’s problems with the British police until after the searches had been completed.³

Some nine months later, appellant was indicted by a grand jury in the U.S. District Court for the District of Columbia on four counts of making false statements. After a jury trial, he was acquitted of three of the charges (relating to the Clinard, Hearn, and Nussenbaum passport applications) and convicted of one (that relating to the application for the Kern passport). Judge William B. Bryant suspended the imposition of sentence and placed appellant on probation for a period of one year. This appeal followed.

II

Appellant contends that the District Court erred in denying his motion to suppress the passports and other evidence⁴ seized by the British police as a result of the searches of his residence in England and subsequently furnished to United States prosecutorial authorities. It is his contention that use of this evidence in a trial in federal court violates the Fourth Amendment’s exclusionary rule. We hold that this doctrine does not warrant suppression in these circumstances.

The principal purpose of the exclusionary rule is the deterrence of unlawful police conduct, the theory being that such deterrence tends to foster obedience to the mandate of Fourth Amendment. United States v. Janis, 428 U.S. 433, 446, 96 S.Ct. 3021, 3028, 49 L.Ed.2d 1046 (1976); United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974); Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960). In circumstances where application of the rule does not result in appreciable deterrence, its use is not warranted. United States v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Desist v. United States, 394 U.S. 244, 254 n. 24, 89 S.Ct. 1030, 1036 n. 24, 22 L.Ed.2d 248 (1969); United States v. Calandra, supra.

It is obvious, and the decisions have therefore recognized, that since United States courts cannot be expected to police law enforcement practices around the world, let alone to conform such practices to Fourth Amendment standards by means of deterrence, the exclusionary rule does not normally apply to foreign searches conducted by foreign officials. See, e.g., United States v. Janis, supra, 428 U.S. at 455-56 n. 31, 96 S.Ct. at 3032-33 n. 31; United States v. Hensel, 699 F.2d 18, 25 (1st Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1317 (1983); United States v. Cotroni, 527 F.2d 708, 711-12 (2d Cir.1975), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1976); United States v. Hawkins, 661 F.2d 436, 455-56 (5th Cir.1981), cert. denied, 456 U.S. 991, 102 S.Ct. 2274, 73 L.Ed.2d 1287 (1982); Stowe v. Devoy, 588 F.2d 336, 341 (2d Cir.1978), cert. denied, 442 U.S. 931, 99 S.Ct. 2862, 61 L.Ed.2d 299 (1979); United States v. Morrow, 537 F.2d 120, 139-40 (5th Cir.1976), cert. denied sub nom. Martin v. United States, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977); United States v. Rose, 570 F.2d 1358, 1361-62 (9th Cir.1978); United States v. Callaway, 446 F.2d 753, 755 (3rd Cir.), cert. denied, 404 U.S. 1021, 92 S.Ct. 694, 30 L.Ed.2d 670 (1972).

The exclusionary rule does apply to a foreign search if American officials or officers participated in some , significant way, for in such a situation the deterrence principle may be deemed to operate. See, e.g., Stowe v. Devoy, supra; United States v. Morrow, supra; United States v. Rose, supra; Stonehill v. United States, 405 F.2d 738, 743 (9th Cir.1968), cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969). This exception to the usual foreign search rule does not provide any comfort to this appellant, however, for it is clear from the record that there was no United States participation whatever in either of the searches of his residence. As indicated above, note 3 supra, the American authorities did not even know about his first search until after the second search had been effected. The motion to suppress was properly denied by the District Court.⁵

Ill

The second issue raised by the appeal is whether the evidence was sufficient to support the guilty verdict.⁶ Under the terms of 18 U.S.C. § 1542, the government must prove that the defendant made a false statement with knowledge of its falsity and that he had the specific intent to secure the issuance of a passport. Where use of a false name is charged, the prosecution must show, first, that the name was not, in fact, the defendant’s name, and second, that the defendant assumed the name for a fraudulent purpose. See United States v. Cox, 593 F.2d 46 (6th Cir.1979).

Appellant argues that the name Charles David Kern was not a false name, his theory being that at common law an individual has a right to adopt any name that he chooses without necessarily proceeding by way of a petition to a court for a formal change of name, and that he had simply availed himself of that common law right. Appellant’s legal premise is correct; ⁷ but that does not help him on the facts of this case.

Briefly, it was appellant’s contention at the trial that he used the Kern name (as well as the names of Clinard, Hearn, and Nussenbaum)⁸ to escape from the harassment of an attorney working for his mother or his wife’s family⁹ and to allow him to cope with well-publicized litigation concerning his work as an art historian.¹⁰

While recital of these purposes does not appear, on its face, to present a credible defense, it also cannot, without more, be dismissed out of hand. Accordingly, the District Court quite properly submitted appellant’s theory of the case to the jury.¹¹ But it is obvious that the jury was not obliged to accept appellant’s version — and we are not obliged to reverse — if that version was contradicted by credible evidence indicating a fraudulent purpose. There was ample evidence here of such a purpose.

First. Appellant not only had in his possession a valid passport in his own name (Mount), but over a five-year period he had applied for and secured passports in no less than four different other names.¹² That circumstance alone would seem to negate appellant’s common law change of name theory, and it would likewise permit the trier of facts to infer a fraudulent purpose.

Second. Appellant’s application for the Kern passport was supported by an Ohio birth certificate and a Virginia’s driver license. Both of these documents were false. Here again, a fraudulent purpose springs easily to mind.

Third. Even more compelling evidence of such a purpose emerges from the facts surrounding appellant’s acquisition of the Kern passport. Using his own name Charles Merrill Mount, appellant was convicted on March 8, 1982, on a plea of guilty in federal court in Virginia on a felony charge of making threatening telephone calls,¹³ and he was ordered to return to court for sentencing on April 9, 1982. Seven days before the sentencing date, he applied for a passport in the Kern name¹⁴ — a fact which suggests that he sought to secure that particular passport so that, in the event the court sentenced him to serve a term of imprisonment, he could use it to flee¹⁵ prior to the commencement of any such service.¹⁶ As it turned out, appellant was sentenced to a probationary term, and immediate use of the Kern passport accordingly became unnecessary. However, when in November 1982 probation revocation proceedings were initiated, appellant did use the Kern passport to travel to Great Britain.¹⁷

On these facts, the jury had ample justification for finding that appellant had adopted the Kern name for fraudulent purposes, and it was likewise justified, on that basis, in returning a guilty verdict on the false statement charge.

We find no error, and the judgment of conviction is accordingly

Affirmed.

1 . It is undisputed that the officers did not have a warrant for these searches. One of the searches involved the opening of a locked suitcase.

2 . There is a dispute whether the Kern passport was seized from appellant's person or from his home and whether appellant consented to the searches of his home. The District Court found that appellant had not consented to the searches; it did not explicitly resolve the dispute regarding the location of the seizure.

3 . The British police contacted these authorities (through a telegram to Interpol in London) the day after the first search. Actual contact with American officials was made the day after the second search. No search of appellant's person or premises was conducted thereafter.

4 . In addition to the passports, the police seized various identification papers matching appellant’s several passports.

5 . We reject as entirely without merit appellant's alternative argument that the evidence should be suppressed in the exercise of the courts' supervisory power over the administration of criminal justice. No court has ever endorsed reliance on that power in circumstances such as these where the actions of foreign law enforcement authorities could not be regarded as shocking the judicial conscience by any legitimate test. As for the broader questions of interpretation and policy which surround the issue of the present existence of the supervisory power, we believe that decision thereon should await a case in which they may be weighed in the context of the employment of foreign police actions which, unlike those in this case, are at least arguably shocking and where the court is able, in that context, to consider such factors as the precise nature of those actions and the probative value of the evidence.

6 . The general standard for evaluating the sufficiency of the evidence in a criminal case is whether, viewing the evidence in the light most favorable to the government, a reasonable mind might fairly conclude beyond a reasonable doubt that the defendant is guilty. See United States v. Davis, 562 F.2d 681 (D.C.Cir.1977); Crawford v. United States, 375 F.2d 332 (D.C.Cir.1967); Curley v. United States, 160 F.2d 229 (D.C.Cir,), cert. denied, 331 U.S. 837, 67 S.Ct. 1512, 91 L.Ed. 1850 (1947).

7 . United States v. Cox, supra.

8 . Appellant was born in 1928 as Sherman M. Suchow. He legally changed his name to Charles Merrill Mount in 1963. It has not been charged, nor could it have been, that he could not validly use the Mount name.

9 . This harassment was said to be related to a custody battle involving appellant’s four children. Appellant’s mother and his wife’s family are claimed to have participated in that battle which, according to appellant, included such events as the kidnapping of his children by his wife, and the refusal of a court in Ireland to permit him to be sworn while touching the Bible because he is not a Roman Catholic.

10 . These purposes would allegedly all have been achieved by incognito travel in Europe.

11 . The trial judge instructed the jury as follows: As I have indicated to you, the defendant is charged with falsely stating his name in an application for a passport. And he denies the offense and asserts that he truthfully stated his name in the application.

He’s indicated to you that at the time he applied for these passports that he had adopted these names for other purposes. And I instruct you that a person may assume or be known by different names. No law against that.

A person may adopt any name without resort to legal proceedings. You don’t have to go to court. People do have their names changed by legal proceedings, but you don’t have to, provided it is not done for any fraudulent purpose.

In deciding whether the defendant adopted the names he asserts non-fraudulently, that is, without a fraudulent purpose, you should consider all the evidence and testimony, including the circumstances under which he adopted the name, the length of time under which he claims to have been known by this name, and whether he consistently used the name in the circumstances under which the name was adopted.

Transcript at 588.

12 . The real Edward George Hearn and the real Sidney Z. Nussenbaum testified that they had not given permission to appellant for the use of their names. Thomas Kelley Clinard died in 1970, long before appellant decided to use his name. Charles David Kern did not testify at the trial.

13 . Until his arrest on that charge, appellant had been living in Virginia under the name Edward G. Hearn.

14 . Appellant stated that he was "uncertain” whether he had ever been known as Charles David Kern prior to that time.

15 . Appellant did not inform the probation officer who was preparing his presentence report of his impending name change.

16 . Particularly in the case of offenders without a prior record of violence or flight, it is not unusual for judges to permit their voluntary surrender if sentenced to imprisonment in order to allow them to wind up their affairs.

17 . On the day appellant was informed by his probation officer that a warrant had been issued for his arrest for violation of probation, he checked into a motel under the name of Hearn, and one week later he travelled to Great Britain by way of Canada and Spain under the name Charles David Kern. After entering Great Britain, appellant first used the name of Clinard; later he rented a car under the name Hearn; and he finally took up residence in England under the name of Lynn Proby.