United States v. David Vyner , 846 F.3d 1224 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 2016 Decided January 27, 2017
No. 14-3091
UNITED STATES OF AMERICA,
APPELLEE
v.
DAVID VYNER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cr-00144-1)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender. Tony Axam Jr., Assistant
Federal Public Defender, entered an appearance.
David P. Saybolt, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief was Elizabeth Trosman,
Assistant U.S. Attorney.
Before: ROGERS, BROWN* and MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
*
Circuit Judge BROWN concurs in the judgment.
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ROGERS, Circuit Judge: On appeal from his conviction upon
entering a guilty plea to violating 18 U.S.C. § 1546(a), David
Vyner contends that he was denied his right to the effective
assistance of counsel under the Sixth Amendment to the
Constitution. Section 1546(a) penalizes the knowing possession
of an altered document prescribed by statute or regulation for
entry into the United States. Vyner admitted he knowingly
possessed an altered foreign passport but contends that Section
1546(a) covers only documents issued by the United States, not
by foreign governments. Alternatively, even if Section 1546(a)
contemplates foreign documents, he contends that the altered
foreign passport he possessed had already expired and the
statutes and regulations governing entry into the United States
call for an unexpired passport. Vyner, therefore, concludes that
his counsel’s failure to advise him that his conduct did not
satisfy the elements of the crime charged and counsel’s advice
to plead guilty fall below the constitutional standard of
reasonable competence. Had he known his conduct did not
satisfy the elements of Section 1546(a), Vyner asserts that he
would not have pled guilty.
For the following reasons, we conclude Vyner has failed to
show that his counsel’s conduct at the time of his plea fell below
the standard of reasonable competence under the first prong of
Strickland v. Washington, 466 U.S. 668, 687, 689 (1984), and
therefore we do not reach the prejudice prong. Although an
open question in this circuit, two circuit courts of appeal had
held prior to Vyner’s plea that Section 1546(a) covers foreign
passports, and no circuit court had held to the contrary. Under
the rule of contemporary assessment, see id. at 690, counsel had
reason to conclude Section 1546(a) encompasses foreign
passports. Similarly, reasonably competent counsel could have
understood Section 1546(a), in view of its statutory and
regulatory predicates, to criminalize the knowing possession of
an altered foreign passport that had expired. And by advising a
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guilty plea, pursuant to a plea agreement with the government,
counsel ensured that Vyner avoided a mandatory two-year
sentence on the count that the government agreed to dismiss in
exchange for Vyner’s plea to a count with fourteen months’
maximum imprisonment under the Sentencing Guidelines.
Accordingly, we affirm.
I.
In 2011, Vyner was indicted in Count 1, for fraud and
misuse of visas, permits, and other documents in violation of 18
U.S.C. § 1546(a), and in Count 2, for aggravated identity theft,
in violation of 18 U.S.C. § 1028A(a)(1). In April 2014, he pled
guilty to Count 1, and in accordance with the parties’ plea
agreement, the government dismissed Count 2, which carried a
mandatory sentence of two years’ imprisonment, 18 U.S.C.
§ 1028A(a)(1).
At the plea hearing pursuant to Federal Rule of Criminal
Procedure 11, Vyner agreed to the government’s proffer of
undisputed facts. See Plea Tr. 12–13 (Apr. 25, 2014). As
relevant, the proffer stated that on December 28, 2010, Deputy
United States Marshals went to a Washington D.C. hotel, where
Vyner had reserved a room, in order to execute an arrest warrant
issued by a judge of the Circuit Court of Broward County,
Florida. The Marshals arrested Vyner in the hotel lobby and
secured his hotel room. Upon obtaining a search warrant,
federal Diplomatic Security Service agents seized from Vyner’s
hotel room an Albanian diplomatic passport issued in the name
of Adrian Shima, the former Second Secretary to the Albanian
Embassy in Washington, D.C., and bearing a passport
photograph of Vyner. The passport contained an expiration date
of January 25, 2010, and a stamped entry of “VALID UNTIL
DEC 2015” in an area intended to show the passport’s renewed
validity date. The agents also seized a rubber stamp that left an
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imprint identical to the stamp on Mr. Shima’s passport, as well
as inkpads, an X-ACTO knife, a metal-edged ruler, laminating
materials, a counterfeit test pen, glue sticks, and a sheet of
passport photographs of Vyner (with one photograph missing)
identical to the photograph in Mr. Shima’s passport. Vyner
admitted that he knew Mr. Shima’s expired passport had been
altered because Mr. Shima’s photograph had been removed and
replaced with a photograph of himself and agreed that this
evidence established beyond a reasonable doubt that he
knowingly possessed, without lawful authority, an altered
Albanian diplomatic passport.
The district court accepted Vyner’s plea to Count 1, and
sentenced him to 364 days’ imprisonment. Vyner appeals the
judgment of conviction, contending that his trial counsel
provided constitutionally deficient advice and that he was
prejudiced as a result. Our review of his ineffective assistance
of counsel challenge is de novo. United States v. Abney, 812
F.3d 1079, 1086–87 (D.C. Cir. 2016); see United States v.
Nwoye, 824 F.3d 1129, 1134–35 (D.C. Cir. 2016).
II.
Under Strickland v. Washington, 466 U.S. 668,
[a] convicted defendant’s claim that counsel’s
assistance was so defective as to require reversal of a
conviction . . . has two components. First, the
defendant must show that counsel’s performance was
deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as
the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that
the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious
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as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process
that renders the result unreliable.
Id. at 687; see United States v. Toms, 396 F.3d 427, 432 (D.C.
Cir. 2005). This standard also applies to “ineffective-assistance
claims arising out of the plea process.” Hill v. Lockhart, 474
U.S. 52, 57 (1985).
To establish deficient performance, the defendant must
demonstrate that counsel’s advice was not “within the range of
competence demanded of attorneys in criminal cases.” Id. at 56(quotation omitted). The issue is to be assessed as of the time of
counsel’s challenged conduct and without “the distorting effects
of hindsight.” Strickland, 466 U.S. at 689. Indeed, “the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.” Id. (citation omitted). And where “the record
does not explicitly disclose . . . counsel’s actual strategy or lack
thereof . . . , the presumption may only be rebutted through a
showing that no sound strategy posited by . . . [the government]
could have supported the conduct.” United States v. Abney, 812
F.3d 1079, 1087 (D.C. Cir. 2016) (quoting Thomas v. Varner,
428 F.3d 491, 500 (3d Cir. 2005) (citing Yarborough v. Gentry,
540 U.S. 1, 8 (2003))).
Section 1546(a) appears in Chapter 75, “Passports and
Visas,” and subjects criminal penalties to whoever:
[K]nowingly forges, counterfeits, alters, or falsely
makes any immigrant or nonimmigrant visa, permit,
border crossing card, alien registration receipt
card, or other document prescribed by statute or
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regulation for entry into or as evidence of
authorized stay or employment in the United States,
or utters, uses, attempts to use, possesses, obtains,
accepts, or receives any such visa, permit, border
crossing card, alien registration receipt card, or
other document prescribed by statute or regulation
for entry into or as evidence of authorized stay or
employment in the United States, knowing it to be
forged, counterfeited, altered, or falsely made, or to
have been procured by means of any false claim or
statement, or to have been otherwise procured by
fraud or unlawfully obtained.
18 U.S.C. § 1546(a) (emphases added). The italicized words
were enacted in 1986, when Congress amended Section 1546(a)
“to expand its reach.” United States v. Ryan-Webster, 353 F.3d
353, 362 (4th Cir. 2003) (citing H.R. REP. NO. 99-682(I), at 94
(1986); S. REP. NO. 99-132, at 31 (1985)). Previously, Section
1546(a) had referred to any immigrant or non-immigrant visa,
permit, or other document “required for entry into the United
States,” 18 U.S.C. § 1546(a) (1985), and courts had strictly
construed the statute, at times concluding the statute did not
cover certain documents relating to immigration and border
control. For example, the Supreme Court held that the statute
did not cover alien registration receipt cards because such
documents may “be used for re-entry” in some instances but
“are not required for entry,” United States v. Campos-Serrano,
404 U.S. 293, 298 (1971), and a federal district court ruled the
statute did not apply to foreign passports because unlike visas or
permits, the primary purpose of foreign passports was not the
“facilitation of entry into the United States,” United States v.
Vargas, 380 F. Supp. 1162, 1168 (E.D.N.Y. 1974). The current
version of Section 1546(a) requires, as relevant, the government
to prove (1) the defendant knowingly possesses a document, (2)
knowing it to be forged, counterfeited, altered, or falsely made,
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and (3) the document is prescribed by statute or regulation for
entry into the United States.
A.
Vyner does not contest that he possessed the Albanian
passport or that it was “altered” within the meaning of Section
1546(a). Instead, he contends that the altered Albanian passport
is not a document “prescribed by statute or regulation” for entry
because it was not issued by the United States. This court has
not addressed the question of statutory interpretation, and it is
unnecessary to do so now. The question presented by Vyner’s
appeal is whether his trial counsel’s performance was
“deficient,” Strickland, 466 U.S. at 687, which hinges on
whether it was reasonable for counsel to advise Vyner to plead
guilty to Count 1 rather than challenge the government’s
interpretation of Section 1546(a).
At the time Vyner pled guilty, two federal courts of appeal
had interpreted the clause “other documents prescribed by
statute or regulations for entry into . . . the United States,” 18
U.S.C. § 1546(a), to include foreign passports, making the
knowing possession of an altered foreign passport a crime under
Section 1546(a), even if the statute is strictly construed. No
other federal courts of appeal had held to the contrary. In
United States v. Rahman, 189 F.3d 88 (2d Cir. 1999), the
Second Circuit held that “a passport issued by a foreign
government is clearly a document ‘prescribed by statute or
regulation for entry into the United States,’ and knowing
possession of a forged or altered foreign passport is an offense
under the plain meaning of Section 1546(a).” Id. at 119.
Similarly, the Fifth Circuit had held in United States v. Osiemi,
980 F.2d 344 (5th Cir. 1993), that because “a foreign passport
is clearly, and typically, one document ‘prescribed by statute or
regulation for entry’ into the United States[,] [t]he possession of
a counterfeit or altered foreign passport . . . is an offense under
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the plain language of § 1546(a).” Id. at 346. Both courts relied
on 8 U.S.C. § 1181(a), a statutory predicate for the Section
1546(a) offense, which provides that “no immigrant shall be
admitted into the United States unless . . . he . . . presents a valid
unexpired passport or other suitable travel document.” See
Rahman, 189 F.3d at 118–19; Osiemi, 980 F.2d at 346. These
courts also looked to federal regulations, similarly predicates for
the Section 1546(a) offense, which require certain aliens to
present a “valid unexpired visa . . . and an unexpired passport,”
8 C.F.R. § 212.1, as well as “a valid passport with an expiration
date of at least 60 days beyond the expiration date of the
immigrant’s visa,” for entry into the United States, Osiemi, 980
F.2d at 346 (citing 8 C.F.R. § 211.2(a)); see also Rahman, 189
F.3d at 119. Because “the passports referred to in [8 U.S.C.
§ 1181(a) and 8 C.F.R. §§ 211.2(a), 212.1] are necessarily ones
issued by foreign governments,” Rahman, 189 F.3d at 119
(citing 22 C.F.R. §§ 51.2(a), 51.3(a)–(c), 51.80(a)), the Second
and Fifth Circuits concluded that foreign-issued passports are
prescribed by statute or regulation for entry into the United
States within Section 1546(a)’s plain meaning. Rahman, 189
F.3d at 119; Osiemi, 980 F.2d at 346.
Still, Vyner maintains that he was denied effective
assistance of counsel because a foreign passport is not a
document “prescribed by statute or regulation” for entry into the
United States. Emphasizing that “penal statutes are to be
construed strictly,” Appellant’s Br. 8 (quoting United States v.
Campos-Serrano, 404 U.S. 293, 297 (1971)), he points out that
courts had held that Section 1546(a) does not apply to foreign
passports because the statute refers only to entry documents
issued by the United States. See id. at 9 (citing, for example,
United States v. Restrepo-Granda, 575 F.2d 524 (5th Cir. 1978);
United States v. Vargas, 380 F. Supp. 1162 (E.D.N.Y. 1974)).
He further maintains that while Congress has since “amended
§ 1546(a) to include specific U.S.-issued documents – border
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crossing cards and alien registration receipt cards – . . . [it] has
never amended the statute to include foreign-issued documents,
such as passports.” Id. Both the Second and Fifth Circuits
focused on amended Section 1546(a)’s broad incorporation of
immigration documents, and concluded that these “pre-1986
cases . . . are not helpful to [defendant’s] argument,” Osiemi,
980 F.2d at 346, because “[r]egardless of whether a foreign
passport was or was not a document required for entry into the
United States before the 1986 amendment, the 1986 amendment
expanded the [statute’s] language,” id. at 347 (emphasis in
original); see Rahman, 189 F.3d at 119. Vyner does not explain
why the Second and Fifth Circuits’ treatment of these pre-1986
cases is flawed and proffers nothing to suggest these
interpretations were being challenged by other defense counsel
at the time of his plea, let alone being called into question by a
court. Indeed, the lone post-1986 case Vyner cites, United
States v. Fox, 766 F. Supp. 569, 572 (N.D. Tex. 1991), which
ruled that a passport from a non-existent country was not a
“document” covered by Section 1546(a), not only addressed a
different interpretative question than that facing Vyner’s trial
counsel, but in Osiemi, 980 F.2d at 347–48, the Fifth Circuit
overruled Fox “to the extent that it [was] inconsistent” with the
conclusion that Section 1546(a) “proscribe[s] possession of a
counterfeit passport . . . issued by a foreign government.”
Last year, the Ninth Circuit held in United States v.
Thomsen, 830 F.3d 1049 (9th Cir. 2016), that Section 1546(a)
does not apply to United States passports. The court noted that,
by contrast with Section 1543, which penalizes “[w]hoever
falsely makes, forges, counterfeits, mutilates, or alters any
passport or instrument purporting to be a passport,” 18 U.S.C.
§ 1543, “the words ‘passport’ and ‘passport card’ are
conspicuous by their absence from § 1546(a),” Thomsen, 830 at
1061. Indeed, the court observed that Section 1546(a) “is the
only statute in the group of statutes [in Chapter 75] relating to
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‘passports and visas’ that does not contain the word ‘passport.’”
Id. This omission confirmed the court’s interpretation that
Section 1546(a) does not cover U.S. passports. Id. at 1061–62.
Vyner views Thomsen to support his position that Section
1543’s explicit reference to the word “passport” and its
corresponding absence from Section 1546(a) indicates that
Section 1546(a) should be interpreted also to exclude passports
issued by foreign governments. After all, when Congress
“wants to penalize misuse of passports it knows how to do so.”
Reply Br. 2.
But Vyner’s view that Thomsen supports his interpretation
of Section 1546(a) is not well taken. First, the Ninth Circuit’s
opinion concerns U.S. passports, not foreign passports, and does
not necessarily conflict with the interpretation of Section
1546(a) by the Second and Fifth Circuits. In Thomsen, 830 F.3d
at 1061, the Ninth Circuit interpreted Section 1546(a) to apply
only to “immigration-related documents” that an alien would
use, and because U.S. passports are not issued to aliens but “to
United States citizens for travel abroad and reentry,” id. at 1059
n.5, they were not related to immigration and therefore not
covered by the statute. In contrast, the Second and Fifth Circuits
analyzed statutory and regulatory predicates for the Section
1546(a) offense that relate to foreign-issued passports, which
unlike U.S. passports, are issued to and used by aliens. In
Thomsen, the Ninth Circuit did not mention these provisions or
Rahman or Osiemi, all of which are on point in Vyner’s case.
Second, even assuming Thomsen conflicts with the other
circuit court decisions would not show that Vyner’s counsel
rendered “deficient” assistance under Strickland. The Supreme
Court applies the rule of contemporary assessment in evaluating
claims of ineffective assistance of counsel. See Lockhart v.
Fretwell, 506 U.S. 364, 372 (1993); Strickland, 466 U.S. at 690;
see also Maryland v. Kulbicki, 136 S. Ct. 2, 4 (2015). Given the
11
state of the law at the time and the government’s conditional
agreement to dismiss Count 2, the decision of Vyner’s counsel
to leave the government’s interpretation of Section 1546(a)
unchallenged does not show that counsel’s conduct was
“deficient.” Moreover, Vyner has proffered nothing to show
that defense counsel at the time of his plea were commonly or
successfully challenging the interpretation of Section 1546(a) by
the Second and Fifth Circuits, a showing that could strengthen
his position that counsel’s conduct fell below “prevailing
professional norms.” Strickland, 466 U.S. at 688; see Abney,
812 F.3d at 1088–89; United States v. Fields, 565 F.3d 290, 298
(5th Cir. 2009). Lastly, Vyner’s suggestion during a colloquy
with the court that he should have been charged under Section
1543, not Section 1546(a), Oral Arg. Tr. 40:18–22, does not
show that reasonably competent counsel could not have
concluded his client’s knowing possession of the altered foreign
passport also violated Section 1546(a), which alone bans
possession of an altered immigration document.
B.
The statutory and regulatory predicates for the Section
1546(a) offense that identify foreign passports as documents
used for entry into the United States require that the passports be
“valid” and “unexpired.” 8 U.S.C. § 1181(a); 8 C.F.R.
§§ 211.2(a), 212.1. Vyner contends that because the altered
passport in his possession had expired eleven months before his
arrest, his conduct did not violate Section 1546(a). The
government does not dispute that the “VALID UNTIL DEC
2015” stamp failed to extend the passport’s expiration date for
lack of the required signature of the Consular office and the
Albanian seal. See Appellee’s Br. 14; Ltr., Arian Spasse,
Consular Offr., Emb. of Rep. of Alb., to Spec. Agt. Charles
Cashion (Jan. 6, 2011). Vyner’s alternative statutory contention
nonetheless fails.
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Even assuming an “altered” passport could, in its original
form, be both “valid” and “unexpired,” the same is not true of
foreign passports that are “counterfeit, forged, or falsely made”
under Section 1546(a) because they are by definition not
“valid.” Vyner’s interpretation that a fraudulent foreign
passport must also be “valid” and “unexpired” in order to be
covered by Section 1546(a) would therefore not only make
lawful the knowing possession of an altered and expired foreign
passport but, by logical extension, also the knowing possession
of a counterfeit foreign passport. See Appellee’s Br. 13. Vyner
offers no reason that Section 1546(a) must necessarily be
interpreted, or even should be interpreted, to prohibit possession
of an altered, unexpired foreign passport while allowing
possession of a counterfeit foreign passport. His interpretation
conflicts with the interpretation by the Second and Fifth
Circuits that Section 1546(a) plainly “criminalize[s] the
knowing possession of any counterfeit or altered [immigration]
document[s],” which includes “[f]oreign passports.” Osiemi,
980 F.2d at 348; see also Rahman, 189 F.3d at 119. It is also
contrary to the presumption against construing a statute to
render it ineffective in whole or in part. See, e.g., FTC v.
Manager, Retail Credit Co., Miami Branch Office, 515 F.2d
988, 994 (D.C. Cir. 1975); see also Wilderness Soc’y v. Morton,
479 F.2d 842, 855 (D.C. Cir. 1973). Although Vyner’s
interpretation may be plausible, on this record there is no
persuasive reason to conclude that his counsel was
constitutionally deficient for following the Second and Fifth
Circuits’ more expansive interpretation of Section 1546(a) and
declining to interpret the statute in a way that would frustrate its
embrace of the laws governing entry into the United States.
Finally, “[p]lea bargains are the result of complex
negotiations, . . . [where] defense attorneys must make careful
strategic choices in balancing opportunities and risks,” Premo v.
Moore, 562 U.S. 115, 124 (2011), including “pleading to a lesser
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charge and obtaining a lesser sentence,” id. This dynamic
“make[s] strict adherence to the Strickland standard all the more
essential when reviewing the choices an attorney made at the
plea bargain stage.” Id. at 125. As a condition of Vyner’s guilty
plea to Count 1, the government agreed to dismiss Count 2,
which carried a two-year mandatory prison sentence, 18 U.S.C.
§ 1028A(a)(1); the Guideline sentencing range for Count 1 was
8 to 14 months. Of course, counsel who successfully bargains
for the dismissal of charges during plea negotiations is not
immunized from being determined constitutionally deficient on
other grounds. Cf., e.g., Gonzalez v. United States, 722 F.3d
118, 119–124 (2d Cir. 2013); United States v. Iberson, 705 F.
Supp. 2d 504, 507–09 (W.D. Va. 2010). Counsel’s assistance to
Vyner, however, was well within the bounds of the competence
required of counsel in criminal cases in view of the sole and
prevailing interpretation in the federal circuit courts of appeal,
the plain text of Section 1546(a)’s statutory and regulatory
predicates, and the absence of challenges to those interpretations
at the time of Vyner’s guilty plea.
Accordingly, we hold, based on the district court record, see
United States v. Rashad, 331 F.3d 908, 910 (D.C. Cir. 2003),
and without a need to consider the prejudice prong of the
Strickland standard, that Vyner has failed to meet his burden
under Strickland to show that no competent counsel could
reasonably conclude that Vyner’s undisputed conduct
constituted a violation of Section 1546(a), much less reasonably
advise Vyner to plead guilty to Count 1, and we affirm.