United States v. Jorge Sosa , 608 F. App'x 464 ( 2015 )

FILED
NOT FOR PUBLICATION APR 28 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50072
Plaintiff - Appellee, DC No. 5:10 cr-0049 VAP
v.
MEMORANDUM*
JORGE SOSA, AKA Jorge Vinicio Sosa
Orantes, AKA Sosa Orantes, AKA Jorge
Sosa, Jr., AKA Jorge Vinicio,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted April 7, 2015
Pasadena, California
Before: D.W. NELSON, TASHIMA, and CLIFTON, Circuit Judges.
Jorge Sosa appeals his convictions under 18 U.S.C. § 1015(a) and § 1425(a)
for knowingly providing false information in a naturalization proceeding and
knowingly procuring naturalization in a manner contrary to law. Sosa failed to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
disclose on his naturalization application his past membership in the Guatemalan
Army and his participation in serious crimes during Guatemala’s long-running
internal conflict. In 1982, Sosa participated in the Dos Erres massacre, during
which Guatemalan soldiers killed approximately 160 civilians. We conclude that
Sosa’s convictions and the sentence under § 1425(a) were proper. We remand for
the limited purpose of correcting a discrepancy in Sosa’s concurrent sentence
under § 1015(a).
1. Sosa first asserts that the naturalization application questions that
prompted his provision of false information were fundamentally ambiguous,
rendering his convictions invalid. The application asked Sosa “Have you ever
committed a crime or offense for which you were not arrested?” Sosa answered
“No.” As applied to Sosa in this context, the question was not fundamentally
ambiguous. Sosa was involved in the killing of a large number of civilians,
quintessentially criminal actions that obviously fell within the heartland of the
question’s ambit. Cf. United States v. Culliton, 328 F.3d 1074, 1079-80 (9th Cir.
2003) (per curiam). Because the jury found in a special verdict that Sosa’s answer
to this question constituted a violation, we need not, and do not, consider whether
the other application question that Sosa also challenges was fundamentally
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ambiguous. See Zant v. Stephens, 462 U.S. 862, 897-98 (1983) (Rehnquist, J.,
concurring).
2. Next, Sosa contends that the district court gave §§ 1015(a) and
1425(a) impermissible extraterritorial effect by applying them to his actions in
Guatemala. Here, however, the conduct for which Sosa was convicted –
providing false answers on his naturalization application – occurred entirely within
the United States. We thus reject this challenge.
3. Sosa next contends that the evidence supporting his convictions is
legally insufficient. When reviewing for sufficiency, we “examine the evidence in
the light most favorable to the government and determine whether ‘any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” United States v. George, 420 F.3d 991, 999 (9th Cir. 2005)
(quoting Jackson v. Virginia, 433 U.S. 307, 319 (1979)). According to Sosa, the
evidence at trial was insufficient to establish that his false statements were made
knowingly. However, a rational juror could have inferred from the completed
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application bearing Sosa’s signature that Sosa’s omission of his past crimes was
deliberate. Cf. 8 C.F.R. §§ 208.3(c)(2), 1208.3(c)(2).1
4. Sosa raises an evidentiary challenge to the district court’s exclusion of
the cover page of a government witness’ immigration record, or “A-File.” Sosa
sought to introduce the cover page because a handwritten note inscribed on the
cover page states that in February 2009 Guatemala lifted an amnesty for soldiers
involved in war crimes at Dos Erres – a fact that might suggest Sosa did not regard
his actions at Dos Erres as crimes when he omitted them from the application. The
district court excluded the cover page as inadmissible hearsay, but Sosa contends
that this ruling was an abuse of discretion because the cover page falls into two
hearsay exceptions. Neither of the two exceptions to which Sosa points is availing.
Although A-Files generally are admissible under Fed. R. Evid. 803(8)’s public
records exception, the handwritten note at issue here falls outside the bounds of
that exception because, unlike ordinary public records, the note’s reliability is
questionable. See United States v. Orellana-Blanco, 294 F.3d 1143, 1150 (9th Cir.
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Sosa also challenges his conviction because question (B)(8)(a) of Part
10, which asked if Sosa had ever belonged to an organization or group, did not
specifically mention the military. Because, as we point out in Paragraph 1, above,
we do not rely on Sosa’s answer to question (B)(8)(a) to sustain Sosa’s
convictions, we need not decide whether the jury rationally could have inferred
that Sosa understood he was required to disclose foreign military service, i.e.,
whether there is sufficient evidence to sustain the convictions.
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2002) (noting that the public records exception “developed to admit the sundry
sorts of public documents for which no serious controversy ordinarily arises about
their truth”). We do not reach the contention that the cover page is admissible
under Fed. R. Evid. 801(d)(2) as an admission of a party opponent because it is not
known who made the notation or under what circumstances. It was, therefore, not
an abuse of discretion for the district court to conclude that the A-File’s cover page
was inadmissible both because of its lack of reliability and because it should not be
treated as an admission of a party opponent.
5. Sosa next argues that the district court improperly took judicial notice
of the convictions in Guatemalan court of other soldiers involved at Dos Erres.
The convictions were relevant under Fed. R. Evid. 401 because they helped show
that the soldiers’ actions at Dos Erres were criminal, which bears on whether
Sosa’s failure to disclose those actions on his application actually amounted to
false information. Although the convictions may have had some prejudicial effect,
the district court adequately limited that effect by providing a limiting instruction.
Cf. United States v. Santa-Cruz, 48 F.3d 1118, 1119-20 (9th Cir. 1995). Our rule
prohibiting the admission of the criminal convictions of co-defendants does not
apply here because Sosa was tried for immigration violations, not for his actions at
Dos Erres. No abuse of discretion occurred.
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6. Sosa contends that the prosecution committed misconduct by
presenting during closing argument the theory that the soldiers at Dos Erres killed
civilians in order to cover up their rape of the village’s women. Because Sosa did
not raise a misconduct claim at trial, our review is for plain error. United States v.
Wright, 625 F.3d 583, 610 (9th Cir. 2010). Here, the district court did not plainly
err because evidence at trial suggested that the Dos Erres soldiers’ orders changed
around the time rapes occurred. The government thus could have believed in good
faith that the cover up theory was true.
7. Sosa asserts that his sentence of 120 months’ imprisonment was
substantively unreasonable, given that his guidelines recommended sentence was
only six to twelve months. The district court did not abuse its discretion in
imposing this sentence. In a sentencing proceeding that covers many, many pages
of the Reporter’s Transcript, the district court fairly and fully covered all of the
sentencing factors listed in 18 U.S.C. § 3553(a). The crimes that Sosa lied about
on his naturalization application were exceptionally heinous, making the
circumstances of his offense distinct from most § 1015(a) and § 1425(a)
prosecutions. Moreover, our sister circuits have approved the imposition of
identical sentences for defendants convicted of lying about similar crimes. See
United States v. Munyenyezi, No. 13-1950, 2015 WL 1323336, *7-*9 (1st Cir.
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A.K. Marsh. 25, 2015); United States v. Jordan, 432 F. App’x 950, 951 (11th Cir. 2011)
(per curiam).
8. Last, we note an error in Sosa’s sentencing which the government
agrees should be corrected. The district court sentenced Sosa to 120 months’
imprisonment for his violation of § 1015(a), and 120 months’ imprisonment for
violating § 1425(a), to be served concurrently. Although the maximum sentence
for violating § 1425(a) is 120 months, the maximum sentence for violating §
1015(a) is only 60 months. We therefore remand this case to the district court so
that it can correct Sosa’s sentence under § 1015(a) to reflect that the statutory
maximum for this offense is 60 months, not 120 months.
• ! •
For the foregoing reasons, we reject each of Sosa’s arguments and affirm his
convictions. We also conclude that the district court did not abuse its discretion in
sentencing Sosa to 120 months’ imprisonment under § 1425(a). We remand to the
district court with directions to amend Sosa’s sentence to reflect that his concurrent
sentence under § 1015(a) is 60 months, not 120 months.
AFFIRMED and REMANDED.
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