United States v. Mark S. Amar , 486 F. App'x 24 ( 2012 )

Case: 11-14544 Date Filed: 08/02/2012 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14544
Non-Argument Calendar
________________________
D.C. Docket No. 6:10-cr-00212-ACC-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK S. AMAR,
a.k.a. Mark Irwin Sachs,
a.k.a. Mark Spaulding,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 2, 2012)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 11-14544 Date Filed: 08/02/2012 Page: 2 of 7
Mark Amar was convicted on two counts of making a false statement on a
passport application, in violation of 18 U.S.C. § 1542. On appeal, he argues that
the evidence at trial was insufficient to support the verdict on either count. Upon
review of the record and consideration of the parties’ briefs, we affirm.
“We review de novo whether sufficient evidence supports a conviction,
resolving all reasonable inferences in favor of the verdict.” United States v.
Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). When considering a sufficiency
challenge, we must construe the evidence in the light most favorable to the
government and determine whether the jury could find the defendant guilty based
on the evidence. Id. Questions of credibility and weight of the evidence are left to
the jury, so we should affirm when the record provides a reasonable basis for the
conviction. Id.To establish that a defendant has made a false statement on a passport
application in violation of 18 U.S.C. § 1542, the government must prove the
defendant “willfully and knowingly ma[de] 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.” 18 U.S.C. § 1542. Notably, § 1542 does not
require that the false statement be of a material fact—that is, “any false statement”
is sufficient. See United States v. Ramos, 725 F.2d 1322, 1323 (11th Cir. 1984).
2
Case: 11-14544 Date Filed: 08/02/2012 Page: 3 of 7
We have held that “[t]he crime is complete when one makes a statement one
knows is untrue to procure a passport.” United States v. O’Bryant, 775 F.2d 1528,
1535 (11th Cir. 1985). “Good or bad motives are irrelevant.” Id.Here, the evidence justified a conclusion that the same individual—an
individual currently known as Mark Amar—filled out the 1986 passport
application in the name of “Mark Sachs,” the 2008 application in the name of
“Mark Spaulding,” and the 2009 application in the name of “Mark Amar.” First,
there was evidence demonstrating that it was Amar that applied for the 2008
passport as Mark Spaulding. Fingerprints for Amar matched those for the
individual applying as Mark Spaulding; Amar and Mark Spaulding supplied the
same social security number; and Amar successfully petitioned a Florida court to
change his name from Mark Spaulding to Mark Amar in 2009.
Second, sufficient evidence established that it was Amar who also applied
for a passport in the name of Mark Sachs more than twenty years earlier. The jury
could identify Amar as the individual depicted in the photographs submitted with
each of the passport applications. Likewise, by comparing the distinct features of
the signatures for “Mark Sachs” and “Mark Spaulding,” the jury could have
3
Case: 11-14544 Date Filed: 08/02/2012 Page: 4 of 7
concluded that the same individual signed these applications.1 Lastly, all three
passport applications were filed on behalf of an individual with the first name
Mark, who was approximately six feet tall, had blonde hair and blue eyes, and was
born on October 14, 1950.
Critically, evidence demonstrated that Amar was actually born in Brooklyn,
New York, with the legal, birth name of Mark Irwin Sachs, to parents Leonard
Sachs and Sadie Friedman. He was not, as he would represent, born in Woodland,
California, with the name Mark Spaulding, to parents John Spaulding and Shirley
Hall. Testimony from a clerk with the New York Department of Health, Vital
Records, explained that the birth certificate filed in connection with the 1986
passport application was a legitimate, certified document, and confirmed that an
individual named Mark Irwin Sachs, with parents Leonard Sachs and Sadie
Friedman, was born in Brooklyn, New York, on October 14, 1950. In contrast, a
support specialist for vital statistics and records at the Yolo County Clerk
Recorder’s office in Woodland, California, testified that the notification of birth
registration filed in connection with the 2008 and 2009 passport applications—a
1
We reject the Amar’s suggestion that the evidence here was legally insufficient
because there was no expert testimony to aid the jury in determining whether the individual in the
photograph was the defendant or whether the documents were signed by the same person. See,
e.g., United States v. Dawson, 608 F.2d 1038, 1040 (5th Cir. 1979); United States v. Bell, 833
F.2d 272, 276 (11th Cir. 1987).
4
Case: 11-14544 Date Filed: 08/02/2012 Page: 5 of 7
document connected to an individual named Mark Spaulding—did not exist in
their records, was not of original quality, and was not the type of document that
Yolo County or the State of California printed. She further testified that after
extensive searches by name, registration number, and date, she was unable to find
any record of a birth of an individual named Mark Spaulding. Based on this
evidence, the jury was justified in accepting the Government’s theory that Amar
had truthfully identified himself as Mark Sachs, born in New York, in his 1986
passport application, and the California notification of birth registration for Mark
Spaulding was a falsified document.
Accordingly, there was sufficient evidence that, as charged in Count One,
on his June 23, 2008, passport application, Amar falsely “stated he was Mark
Spaulding born in Woodland, California, when, as the defendant then and there
well knew, his true birth name was Mark Irwin Sachs who was born in New
York.” Amar argues the United States failed to show that this false statement was
made knowingly and willfully, “as opposed to a simple mistake.” However,
Amar’s knowledge was established by the fact that he submitted his New York
birth certificate in support of his 1986 passport application and accurately stated
therein that he was born in Brooklyn, New York. His decision to provide false
5
Case: 11-14544 Date Filed: 08/02/2012 Page: 6 of 7
names for his parents and to submit a fraudulent notification of birth registration
further supports the jury’s finding that Amar acted willfully and knowingly.
The evidence was likewise sufficient to show that, as charged in Count
Two, on his August 21, 2009, passport application, Amar falsely “stated he was
Mark Spaulding, when, as the defendant then and there well knew, his truth birth
name was Mark Irwin Sachs who was born in New York.” Amar emphasizes that
he submitted the 2009 application in the name of Mark Amar, his legal name at
that time. Therefore, he argues, the Government’s allegation in Count Two was
“simply wrong,” because the Government could not prove that he falsely stated he
was Mark Spaulding. Despite this argument’s surface appeal, we cannot agree
with Amar’s characterization.
True enough, Amar submitted the 2009 application in the name of Mark
Amar. Nevertheless, in response to the question of whether he had ever used other
names, Amar listed only Mark Spaulding, opting not to reveal that his given name
had been Mark Sachs. Further, Amar’s application provides the fictitious place of
birth and fictitious names of parents associated with Mark Spaulding, and Amar
submitted the fraudulent notification of birth registration in the name of Mark
Spaulding. He also attached documentation purporting to show that he had legally
changed his name from Mark Spaulding to Mark Amar, even though there is no
6
Case: 11-14544 Date Filed: 08/02/2012 Page: 7 of 7
evidence he ever legally changed his name to Mark Spaulding.2 This evidence
amply supported the jury’s finding that Amar’s 2009 passport application falsely
stated that he was Mark Spaulding.
AFFIRMED.
2
Amar’s suggestion that Mark Spaulding could not have been a false name because
he availed himself of his common law right to adopt any name he chooses is unpersuasive. At
the outset, we note that, even though Amar moved the district court for a judgment of acquittal,
he did not do so on this particular basis. Amar raises this common law change of name defense
for the first time on appeal, he did not request an appropriate jury instruction, and at no time did
he alert the district judge of the relevant authority. See, e.g., United States v. Wasman, 641 F.2d
326, 327 (5th Cir. 1981) (“[The defendant] correctly argues that under both common law and the
law of Florida a person may adopt any name he wishes without any legal proceedings provided it
is not done for fraudulent purposes.”); United States v. Mount, 757 F.2d 1315, 1318 (D.C. Cir.
1985) (“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.”); United States v. Cox, 593 F.2d 46, 48 (6th Cir. 1979) (explaining that,
under Michigan law, “a person may adopt any name he or she wishes, without resort to any court
and without any legal proceedings, provided it is not done for fraudulent purposes”). Therefore,
our review is for plain error. United States v. Hunerlach, 197 F.3d 1059, 1068 (11th Cir. 1999).
First, any alleged error based on this common law theory would not be plain. Second, the
record contains ample evidence by which the jury could conclude that Amar assumed the name
Mark Spaulding for fraudulent purposes. For example, Amar invented a fictitious set of parents,
lied about his place of birth, and submitted a false notification of birth registration. None of this
would have been necessary had Amar simply adopted a new name for a non-fraudulent purpose.
In addition, even though Amar used the name Mark Spaulding as early as 1972, he continued to
use his birth name, Mark Sachs, until at least 1986, the year he successfully applied for a passport
in that name. See Mount, 757 F.2d at 1319 (holding that evidence supported jury finding that
defendant adopted name for fraudulent purposes, and thus supported guilty verdict on false
statement charge, where defendant had secured passports in multiple other names and where one
of his passport applications was supported by a fraudulent birth certificate and driver’s license).
On this record, we discern no plain error.
7