United States v. Lebreault Feliz , 807 F.3d 1 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1616
UNITED STATES OF AMERICA,
Appellee,
v.
SAMUEL STALIN LEBREAULT-FELIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.
Larry J. Ritchie was on brief for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief for
appellee.
November 25, 2015
BARRON, Circuit Judge. Samuel Stalin Lebreault Feliz
("Lebreault") appeals his convictions on two counts of passport
fraud, one count of false representation to the Social Security
Administration, and one count of theft of public money. He
contends that the District Court erred in barring him from
presenting the defenses of duress and necessity as to the first
count of passport fraud, and that this error also prejudiced his
ability to defend against the other counts against him. In
addition, Lebreault contends that the District Court erred in
denying his motion for acquittal as to the second count of passport
fraud. We affirm the convictions.
I.
On October 15, 2014, Lebreault was convicted of two
counts of passport fraud pursuant to 18 U.S.C. § 1542, one count
of false representation to the Social Security Administration
pursuant to 42 U.S.C. § 408(a)(6), and one count of theft of public
money pursuant to 18 U.S.C. § 641. On May 29, 2014, Lebreault was
sentenced to serve thirty-three months in prison with three years
of supervised release. He was also ordered to pay restitution for
theft of public funds.
The passport fraud convictions arise from Lebreault's
efforts to secure a passport first for himself and then, years
later, for his daughter. These convictions relate to his use of
false identities in his applications for each passport. The other
- 1 -
convictions arise from Lebreault's use of a false identity in
connection with his efforts to work in the United States and to
secure government benefits for himself and his children.
With respect to the first count of passport fraud, on
November 18, 2003, Lebreault submitted a passport application to
officials at the United States embassy in Caracas, Venezuela using
a false identity, "Juan Antonio Castro Pizarro" ("Castro
identity"). On the basis of this application, Lebreault was issued
a temporary, limited passport to return to the United States. Upon
arrival in Miami, Lebreault admitted to United States immigration
officials in a sworn statement that he had used a false identity
to obtain the passport and that he was actually "Antonio Jose
Rodríguez Rodríguez" ("Rodríguez identity") from Venezuela (which,
it turned out, was also a false identity).
With respect to the second count of passport fraud, on
June 14, 2007, Lebreault applied from the United States for a
passport for his then-seven-year-old daughter Adriana Lebreault,
a United States citizen. Federal regulations require parents of
a minor to execute the passport application on the minor's behalf
and to provide certain evidence of parentage, which includes
identifying information. See 22 C.F.R. § 51.28(a)(2). Lebreault
used the false Rodríguez identity when executing Adriana's
passport application.
- 2 -
With respect to the other convictions, on June 1, 2011,
Lebreault submitted an application for a replacement social
security card using the false Rodríguez identity.1 In addition,
Lebreault used the false Rodríguez identity in signing a number of
forms under penalty of perjury between 2006 and 2012 to establish
and maintain eligibility for the Department of Housing and Urban
Development Section 8 program, which provides housing and utility
subsidies. Lebreault received $121,077 worth of benefits under
this program between 2007 and 2013 for himself and his children.
At trial, Lebreault sought to raise duress and necessity
defenses on the first count of passport fraud. His proffer in
support of those defenses describes a purported incident that he
contends occurred in the Dominican Republic well before he first
applied for a passport in Venezuela so that he could travel from
Venezuela to the United States. The District Court, assuming the
truth of the proffer, found that the proffered facts did not
suffice to support the requested defenses given the absence of
imminent harm and the availability of reasonable alternatives to
violating the law. For those reasons, the District Court barred
Lebreault from presenting the duress and necessity defenses and
denied the jury instruction that Lebreault requested regarding
1 On September 17, 2010, Lebreault obtained special
immigration status as an abused spouse of a United States citizen.
That status provided him with a basis to work legally in the United
States and to receive public benefits.
- 3 -
those defenses. Lebreault then asked for reconsideration on the
basis of a supplemented proffer, but the District Court affirmed
its prior ruling for substantially the same reasons it had given
the first time.
Lebreault moved for acquittal on the second count of
passport fraud. He argued that he could not be found guilty of
making false statements "contrary to the laws [and rules]
regulating the issuance of passports" -- as the relevant statute
requires, see 18 U.S.C. § 1542 -- because he was applying for a
passport for a United States citizen, his minor daughter, who was
entitled to a passport. The District Court denied Lebreault's
motion for judgment of acquittal on this count.
II.
Duress is an affirmative defense that requires proof
that "the defendant committed a crime as a result of (1) an
immediate threat of serious bodily injury or death (2) that the
defendant reasonably believed was true, (3) without a reasonable
opportunity to escape or frustrate the threat." United States v.
Diaz-Castro, 752 F.3d 101, 108 (1st Cir. 2014). The closely
related affirmative defense of necessity requires proof that the
defendant "(1) was faced with a choice of evils and chose the
lesser evil, (2) acted to prevent imminent harm, (3) reasonably
anticipated a direct causal relationship between his acts and the
harm to be averted, and (4) had no legal alternative but to violate
- 4 -
the law." United States v. Maxwell, 254 F.3d 21, 27 (1st Cir.
2001).
Lebreault argues that he was wrongly barred from
presenting evidence of duress and necessity to the jury in
defending against the first count of passport fraud. "But
precisely because a defendant is entitled to have [his evidence
be] . . . judged by the jury, it is essential that the testimony
given or proffered meet a minimum standard as to each element of
the defense so that, if a jury finds it to be true, it would
support an affirmative defense . . . ." United States v. Bailey,
444 U.S. 394, 415 (1980). As a result, "when the proffer in
support of an anticipated affirmative defense is insufficient as
a matter of law to create a triable issue, a district court may
preclude the presentation of that defense entirely." Maxwell, 254
F.3d at 26. And when a district court does so, we review the
decision de novo. See id.
Lebreault proffered the following facts in support of
his right to present these defenses. He asserted that on May 8,
2003, he and a friend, Cesar, were involved in an altercation in
the Dominican Republic with robbers that culminated in Cesar's
death. On the advice of a state senator, the proffer continued,
Lebreault spoke with a district attorney in the country, who
confirmed Cesar's death and told Lebreault that Cesar's family
believed he was responsible for the murder. Lebreault further
- 5 -
proffered that Cesar's uncle was a general in the Dominican
Republic police.
Lebreault contended in his proffer that he then went
into hiding in another town in the Dominican Republic for three
months and was told by the district attorney with whom he had
previously spoken about the incident that it was not safe for him
to return to his hometown in that country. Lebreault further
proffered that he subsequently fled to Venezuela and that, while
he was in that country, his father was charged with Cesar's murder
and tortured while in custody and that his brother died under
suspicious circumstances. Lebreault also proffered that all the
people involved in the incident that led to Cesar's death were
arrested and died in jail.
On the basis of these events, Lebreault contends that he
eventually decided to use the false Castro identity to obtain a
passport so that he could travel from Venezuela to the United
States. And thus he argues that duress and necessity are available
as affirmative defenses.
Even accepting these proffered facts, however, we do not
see how they show that the District Court erred in barring
Lebreault from presenting duress and necessity defenses. By
Lebreault's own account, there was a six-month lapse in time
between the incident in the Dominican Republic and his application
for a United States passport, which occurred while Lebreault was
- 6 -
in an entirely different country and after he had been in that
country for a full three months. Lebreault has thus failed to
come close to demonstrating that the District Court erred in
finding that he made an insufficient showing of imminent harm or
lack of reasonable alternatives to violating the law. See, e.g.,
United States v. Bello, 194 F.3d 18, 26-27 (1st Cir. 1999) (finding
no imminence where there was a cooling-off period of eighteen hours
after threat of harm); United States v. Arthurs, 73 F.3d 444, 448-
49 (1st Cir. 1996) (finding that defendant could have discarded
drugs or sought help in the minutes between being threatened in a
cruise ship bathroom and then exiting that ship with contraband).
Even the out-of-circuit precedent on which Lebreault
principally relies, United States v. Contento-Pachon, 723 F.2d 691
(9th Cir. 1984), is of no help to him. That case involves readily
distinguishable facts regarding the requirement of imminence, see
id. at 693-94 (finding that threat of harm was still imminent where
lapse of time between initial threat and crime was a matter of
days and where defendant was told he would be under constant
surveillance), and that case explains that the lack-of-reasonable-
alternatives requirement generally cannot be satisfied once the
"defendant has reached a position where he can safely turn himself
in to [or call on] the authorities", see id. at 695.
Accordingly, Lebreault's attempt to challenge this
conviction on the ground that he was wrongly barred from presenting
- 7 -
duress and necessity defenses is without merit, and thus so, too,
is his contention that the jury should have been instructed on
those defenses. Lebreault has also waived any argument that his
inability to present the requested defenses prejudiced his ability
to defend against the other counts against him. He conceded below
that he could not "in good faith" present the defenses with respect
to those other counts. And he does not contend that he sought to
introduce evidence pertaining to the facts in the proffer for any
other purpose. Having waived this issue below, Lebreault may not
resurrect it on appeal. See United States v. Gaffney-Kessell, 772
F.3d 97, 100 (1st Cir. 2014).
III.
Lebreault next argues that the District Court erred in
denying his motion for judgment of acquittal on the second count
of passport fraud. We review the denial of a motion for judgment
of acquittal de novo, construing the evidence in a "prosecution-
friendly light." United States v. George, 761 F.3d 42, 48 (1st
Cir. 2014). And after performing that review, we reject
Lebreault's challenge to his conviction under the first clause of
18 U.S.C. § 1542.2
2 The statute provides in relevant part:
"Whoever 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 laws regulating the issuance of passports or the rules
- 8 -
Lebreault contends that he cannot be convicted under the
first clause of § 1542 because his daughter is a United States
citizen and is therefore entitled to a passport. And Lebreault
contends that this fact makes the issuance of a passport to her
not "contrary to the laws [and rules] regulating the issuance of
passports." 18 U.S.C. § 1542. Lebreault is less than clear,
however, as to why his daughter's citizenship bars his conviction,
and we conclude that it does not.
Lebreault may mean to argue that he can only be found
guilty under the first clause of § 1542 if his false statements
were "contrary to the laws [and rules] regulating the issuance of
passports," id., and would have materially influenced the decision
of the agency charged with processing passport applications. We
have previously stated, however, that the first clause of § 1542
does not contain such a materiality requirement, see United States
v. Salinas, 373 F.3d 161, 167 (1st Cir. 2004), and other Circuits
have so held, see, e.g., United States v. Hart, 291 F.3d 1084,
1085 (9th Cir. 2002) (per curiam) ("We . . . now explicitly hold
that proof of materiality is not required for this [§ 1542]
offense."); United States v. Hasan, 586 F.3d 161, 167 (2d Cir.
2009) (joining other circuit courts in holding that the aspect of
§ 1542 at issue does not contain a materiality requirement).
prescribed pursuant to such laws . . . Shall be fined under
this title, imprisoned . . . or both." 18 U.S.C. § 1542.
- 9 -
Moreover, even assuming the relevant provision contains
a materiality requirement, Lebreault's challenge still fails. We
do not see how the federal regulation requiring Lebreault to
"provide documentary evidence of parentage" when applying for a
passport on behalf of a minor, including "the names of the parent
or parents," was not violated when Lebreault provided a false
parental name. 22 C.F.R. § 51.28(a)(2). And a jury could
reasonably find on this record that the false statements made
"contrary to" the regulation materially influenced the decision of
the agency charged with processing passport applications. In fact,
the government offered testimony that the State Department would
not have issued a passport to Adriana had it known that her
passport application contained false information as to the
identity of her father. Thus, we reject Lebreault's assertion --
to the extent he means to make it -- that because Adriana was
legally entitled to a passport (by virtue of her status as a United
States citizen), he cannot be convicted under the first clause of
§ 1542 because the false information he supplied was not material.
At oral argument, Lebreault's counsel separately
indicated that there might be a distinct question as to whether
Lebreault possessed the requisite intent to commit the second count
of passport fraud. But we decline to decide here whether the first
clause of 18 U.S.C. § 1542 sets forth a specific intent
requirement, such that there may be liability only if the defendant
- 10 -
specifically "intends to induce or secure the issuance of a
passport contrary to the laws [and rules] regulating the issuance
of passports" (emphasis added). See United States v. Aifang Ye,
792 F.3d 1164, 1168 (9th Cir. 2015) (joining other circuit courts
in holding that the first clause of § 1542 does not embody a
specific intent requirement). As the government correctly points
out, Lebreault did not develop this argument in his briefs, and it
is therefore waived. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.").
IV.
For the reasons above, the judgment of the District Court
is affirmed.
- 11 -