United States v. Gabriella Ferroni-Carli ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-15831 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 7, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-14020-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIELLA FERRONI-CARLI,
a.k.a. Gabriele Ferroni-Carli,
a.k.a. Astrid Gabriele Feldmann,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 7, 2009)
Before DUBINA, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Gabriella Ferroni-Carli appeals her conviction for falsely pretending or
assuming to be a duly accredited foreign diplomat, in violation of 18 U.S.C. § 915.
On appeal, Ferroni-Carli argues that: (1) the evidence was insufficient for a
reasonable jury to convict her of pretending to be a diplomat “duly accredited to
the United States,” with “intent to deceive or defraud”; and (2) the omission of the
word “duly” from in front of the word “accredited” in the trial court’s special jury
instructions violated her right to a fair trial. After careful review, we affirm.
We review a district court’s denial of a motion for judgment of acquittal de
novo. United States v. Hunt, 526 F.3d 739, 744 (11th Cir. 2008). “We review jury
instructions de novo to determine whether they misstate the law or mislead the jury
to the prejudice of the party who objects to them.” United States v. Campa, 529
F.3d 980, 992 (11th Cir. 2008).
First, we find no merit in Ferroni-Carli’s claim that the evidence was
insufficient to support her conviction. In reviewing the sufficiency of the
evidence, we consider the evidence “in the light most favorable to the jury verdict,
and draw all reasonable inferences and credibility determinations in favor of the
Government.” United States v. Ellisor, 522 F.3d 1255, 1271 (11th Cir. 2008).
“[I]t is not necessary that the evidence exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt,
provided that a reasonable trier of fact could find that the evidence established guilt
beyond a reasonable doubt.” Id. (quotation omitted).
2
To prove a claim under 18 U.S.C. § 915, it is necessary to show: “(1) false
assumption or pretension to be a consular official duly accredited as such to the
United States; (2) in such pretended character the obtaining of a thing of value; and
(3) an intent to defraud.” Cortez v. United States, 328 F.2d 51, 52 (5th Cir. 1964);1
see also 18 U.S.C. § 915.
In our analysis of the false pretension element in Cortez, we looked to:
(1) documentation from the State Department confirming that the defendant, a
former Guatemalan consul, lacked consular status during the time in question; and
(2) evidence showing that he “pretended to act as Guatemalan consul” during that
time period, including the fact that he maintained the same office he used when he
was consul, continued to sign his letters as consul, and transacted official business
as consul. Cortez, 328 F.2d at 52-53. We did not separately analyze whether the
misrepresentation included the use of falsified documents indicating due
accreditation. See id.; see also United States v. Callaway, 446 F.2d 753, 754 (3rd
Cir. 1971) (holding -- in the only other published circuit case addressing § 915 --
that, “[a]bsent evidence to the contrary, any misrepresentation designed to obtain
something of value implies the representation that the status, which would produce
the thing of value sought, exists in the person making the misrepresentation”).
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent former Fifth Circuit decisions issued prior to October 1, 1981.
3
With regard to the third element, the Supreme Court has held, in analyzing a
similar statute, that “the words ‘intent to defraud’ . . . ‘do not require more than
that the defendants have, by artifice and deceit, sought to cause the deceived
person to follow some course he would not have pursued but for the deceitful
conduct.’” Cortez, 328 F.2d at 53 (quoting United States v. Lepowitch, 318 U.S.
702, 704 (1943)).2
Here, the evidence was sufficient for a reasonable jury to convict Ferroni-
Carli of falsely pretending to be a duly accredited diplomat. It is uncontested that
she was not a diplomat entitled to immunity. Nevertheless, the government’s
witnesses testified that Ferroni-Carli: (1) presented a diplomatic passport to police
and stated that she was a diplomat; and (2) stated that she had diplomatic immunity
when asked to confirm her status. Drawing all inferences and credibility choices in
the government’s favor, see Ellisor, 522 F.3d at 1271, a reasonable jury could have
credited the government’s witnesses over Ferroni-Carli’s unsworn tape-recorded
statement that she never claimed to be a diplomat. Likewise, her claim that she
was entitled to diplomatic immunity within the United States could have supported
2
The second element of the statute is not at issue in the present case. See United States
v. Levy, 379 F.3d 1241, 1242-43 (11th Cir. 2004) (holding that issues not raised on appeal may
be deemed waived).
4
an inference that she was claiming to be “duly accredited to the United States.”
See Cortez, 328 F.2d at 53; Callaway, 446 F.2d at 754.
The evidence also was sufficient for a reasonable jury to convict her of
doing so “with intent to deceive or defraud.” 18 U.S.C. § 915. By her own
admission, Ferroni-Carli knew that she was not entitled to diplomatic immunity.
The evidence that she nevertheless claimed to be a diplomat entitled to immunity
and insisted that the police allow her to leave, could support a reasonable inference
that she made that representation “with the design to mislead,” especially in light
of the evidence that a DUI investigation against her would have proceeded but for
her false claim. Thus, a reasonable trier of fact could find that the evidence
established Ferroni-Carli’s guilt under § 915 beyond a reasonable doubt, and we
affirm her conviction on that basis.
We likewise reject Ferroni-Carli’s argument that the trial court’s special jury
instructions violated her right to a fair trial. We consider challenged jury
instructions in the context “of the entire jury charge, in light of the indictment,
evidence presented[,] and argument of counsel.” United States v. Johnson, 139
F.3d 1359, 1366 (11th Cir. 1998) (quotations omitted). When these instructions, as
a whole, accurately convey the applicable law, “there is no reason for reversal even
though isolated clauses may, in fact, be confusing, technically imperfect, or
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otherwise subject to criticism.” United States v. Beasley, 72 F.3d 1518, 1525 (11th
Cir. 1996).
Here, the jury instructions did not misstate the law relating to § 915 to the
prejudice of Ferroni-Carli.3 First, the district court separately and accurately
instructed the jury on the three elements of § 915, including the phrase “duly
accredited” in relation to the first element, and Ferroni-Carli did not challenge this
instruction. Second, it instructed the jury that it only could find her guilty if all of
the elements were proved beyond a reasonable doubt. Thus, when viewed in the
proper context, the omission of the word “duly” from the subsidiary instructions --
which (1) noted that “an accredited foreign diplomat” who commits a crime in the
United States generally may not be prosecuted, and (2) ordered the jury to consider
whether Ferroni-Carli “believed herself to be an accredited official,” in
determining her intent -- was not misleading or prejudicial. Johnson, 139 F.3d at
1366. Accordingly, we affirm Ferroni-Carli’s conviction.
AFFIRMED.
3
If a party fails to state specific grounds for objecting to the jury instructions at trial, we
review the claim for plain error. United States v. Schlei, 122 F.3d 944, 973 (11th Cir. 1997).
“Plain error occurs where (1) there is an error; (2) that is plain or obvious; (3) affecting the
defendant’s substantial rights in that it was prejudicial and not harmless; and (4) that seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.” United States v.
Raad, 406 F.3d 1322, 1323 (11th Cir. 2005) (quotations omitted). While plain error review
arguably applies here, it is not necessary for us to decide the issue because the more lenient de
novo standard supports the challenged instructions.
6