United States v. Paul Rudolph McGowan

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11511
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-00212-SCJ-LTW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL RUDOLPH MCGOWAN,
a.k.a. Paul Rudolph McGowen,
a.k.a. Gary Horatio Matthew,
a.k.a. Gary Hatio Matthew,
a.k.a. Stephen Walters,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 17, 2014)
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Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Paul Rudolph McGowan is a citizen of Jamaica. In 2010, an Immigration
Judge ordered him removed from the United States to Jamaica, and on December
22, 2011, he boarded a plane for Jamaica, having obtained from Jamaica a
temporary passport. McGowan’s stay in Jamaica was brief. On June 19, 2012,
agents of the Department of Homeland Security, Immigration and Customs
Enforcement (“ICE”) got word that McGowan was back in the United States,
obtained a warrant for his arrest, and arrested him shortly thereafter on June 29.1
On July 2, 2012, a Northern District of Georgia grand jury indicted McGowan for
illegally re-entering the United States as a previously removed alien, in violation of
8 U.S.C. §§ 1326(a), (b)(2) (2010). He pled not guilty to the charge and, on
January 22, 2013, stood trial before a jury.
Two weeks before McGowan’s trial, the Government gave him copies of
several foreign documents, including an Application for Taxpayer Registration
(“Application”) McGowan purportedly executed in Jamaica on March 20, 2012.
An individual submitted the Application to the Jamaican government under the
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The agents obtained a warrant for McGowan’s arrest on information that he was
wanted by the Rockdale County, Georgia, Sheriff’s Office for possession of a firearm by a
convicted felon. The agents attempted to arrest McGowan on June 22, but he fled on foot. A
week later, the agents were informed that he was residing in a home in Decatur, Georgia. They
approached the home, but McGowan saw them coming and ran into an adjoining wooded area.
The agents subdued McGowan and took him into custody after employing a Taser device.
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name Paul McGowan along with a photocopy of a Florida identification card in
that name, and listed his place of birth as Jamaica. Three days before trial, the
Government provided McGowan with a letter of certification from the
Superintendent of the Jamaican Police, which stated that the Application was a
copy of the original document, which was initially submitted to the Jamaican
Taxpayer Registration Centre Head Office but was transferred to the Jamaican
police in connection with a fraud investigation.
At the end of the first day of trial, McGowan moved in limine to exclude the
Application, which the Government planned to introduce into evidence the
following day, objecting to the late disclosure of the document and disputing its
authenticity. The District Court admitted the Application as presumptively
authentic without final certification under Federal Rule of Evidence 902(3)(A).
The jury convicted McGowan, and the District Court sentenced him to 90 months’
imprisonment, noting, in part, his extensive criminal history and lack of remorse.
McGowan appeals both his conviction and sentence. He seeks the vacation
of his conviction and a new trial on three grounds: (1) the Government’s disclosure
of the Application two weeks before trial amounted to discovery violation of
Federal Rule of Criminal Procedure 16 because the court should have continued
the trial or prohibited the Government from introducing the Application; (2) the
court erred in finding the Application authentic; and (3) the admission of the
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Application violated his rights under the Confrontation Clause of the Sixth
Amendment. McGowan also seeks the vacation of his sentence and a new
sentencing proceeding on the ground that his sentence is unreasonable because it is
excessive and resulted from the impermissible “double counting” of one of his
prior convictions. We address these grounds in turn.
I.
We review discovery rulings for abuse of discretion. United States v.
Campa, 529 F.3d 980, 992 (11th Cir. 2008). Rule 16 requires that the government
permit a defendant, upon request, to inspect all documents the government intends
to use in its case in chief. Fed. R. Crim. P. 16(a)(1)(E). Further, the government
has a continuing duty to disclose newly discovered evidence. See Fed. R. Crim. P.
16(c). If the court determines that a party violated Rule 16’s disclosure
requirements with respect to a certain item of evidence, the court may (1) order the
violating party to permit discovery or inspection; (2) grant a continuance,
(3) prohibit the violating party from introducing the evidence, or (4) “enter any
other order that is just under the circumstances.” Fed. R. Crim. P. 16(d)(2).
While the government may not leave evidence in the hands of a third party
to avoid disclosure, if the evidence is not in the government’s possession, custody,
or control, then it is not subject to discovery. United States v. Brazel, 102 F.3d
1120, 1150 (11th Cir. 1997) (“Nothing in this record, however, suggests that the
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prosecution deliberately left the [documents] with [the office that held them] to
avoid its discovery obligations.”).
We conclude that the Government’s disclosure of the Application did not
violate any of the discovery requirements of Rule 16. Although the Government
gave McGowan the Application only two weeks prior to trial, the record shows
that it did so immediately upon receiving the document, after exercising diligence
in trying to obtain it. The prosecutor swore as an officer of the court that she
requested the Application from the Jamaican authorities when she was first
assigned the case in September 2012, requested it again prior to January, and
immediately forwarded it to McGowan once she received it. McGowan presented
no evidence to the contrary.
Because the Government’s discovery obligation began only once it received
the Application, its disclosure immediately thereafter satisfied Rule 16’s discovery
requirements. We thus find no abuse of discretion in the court’s denial of
McGowan’s motion in limine.
II.
We review a district court’s decision that a particular piece of evidence has
been properly authenticated for an abuse of discretion. Thus, we will not disturb
the admission of the evidence “on appeal absent a showing that there is no
competent evidence in the record to support it.” United States v. Caldwell, 776
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F.2d 989, 1001 (11th Cir. 1985) (internal quotation marks omitted) (discussing
authentication through extrinsic evidence under Federal Rule of Evidence 901); see
also United States v. Koziy, 728 F.2d 1314, 1322 (11th Cir. 1984) (discussing self-
authentication under Federal Rule of Evidence 902(3)).
Authenticity is a prerequisite of admissibility. See Fed. R. Evid. 901. A
party may authenticate, or lay the foundation for, a document through extrinsic
evidence, as contemplated under Federal Rule of Evidence 901, or a document
may be self-authenticating under Rule 902. See Fed. R. Evid. 901–02. When a
document is “self-authenticating” under Rule 902, no extrinsic evidence of
authenticity is necessary. Fed. R. Evid. 902.
A foreign public document is “a document that purports to be signed or [as
in the present case] attested by a person who is authorized by a foreign country’s
law to do so.” Fed. R. Evid. 902(3). There are three ways in which a foreign
public document may be authenticated without additional extrinsic evidence under
Rule 902.
First, a document may be formally “self-authenticating” under the primary
paragraph of Rule 902(3), which requires a party to provide a final certification
indicating that “the official vouching for the document [the signor or attestor] is
who he purports to be.” United States v. Deverso, 518 F.3d 1250, 1256 (11th Cir.
2008) (internal quotation marks omitted). Second, where a foreign public
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document lacks the proper final certification required under Rule 902(3)’s primary
paragraph, subsection (A) of Rule 902(3) provides that the document may be
“treated as presumptively authentic” if two conditions are satisfied: (1) the parties
have been a “given a reasonable opportunity . . . to investigate the document’s
authenticity and accuracy”; and (2) “good cause” exists to excuse the missing final
certification. Fed. R. Evid. 902(3)(A). Finally, subsection (B) allows a foreign
public document “to be evidenced by an attested summary with or without final
certification” upon the same showing of good cause and reasonable opportunity for
inspection in subsection (A). Fed. R. Evid. 902(3)(B). “Good cause is a well
established legal phrase[;] [a]lthough difficult to define in absolute terms, it
generally signifies a sound basis or legitimate need to take judicial action.” In re
Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987) (internal
quotation marks omitted) (discussing good cause in the context of a issuing a
protective order).
A challenge to the reliability of information contained in a document
authenticated under Fed. R. Evid. 902(3) “goes to the weight of the evidence, not
its admissibility on grounds of authenticity.” Deverso, 518 F.3d at 1256; see also
Caldwell, 776 F.2d at 1002 (explaining that authentication merely involves
presenting sufficient evidence of a prima facie case of authenticity, and “the trier
of fact [ultimately decides] whether the proffered evidence is in fact what it
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purports to be”).
To obtain a conviction for illegal attempted reentry under 8 U.S.C.
§ 1326(a), the government must prove that the defendant: (1) was an alien at the
time of the attempted reentry; (2) had previously been deported; (3) had not
received the express consent of the Attorney General to apply for re-admission to
the United States since his previous deportation; and (4) attempted to enter the
United States. United States v. Marte, 356 F.3d 1336, 1345 (11th Cir. 2004).
We find no abuse of discretion in the District Court’s treatment of the
Application as presumptively authentic without final certification under Fed. R.
Evid. 902(3)(A). First, McGowan had a reasonable opportunity to inspect the
document. He received the document two weeks in advance of trial and never
contacted the Government with any questions or doubts as to its authenticity
during that time. He asserts that two weeks was insufficient for him to reasonably
inspect the two-page Application, but he neither explains why he was unable to do
so nor presents any evidence demonstrating the same.
Second, “good cause” excused the final certification requirement under Fed.
R. Evid. 902(3). The uncontroverted evidence showed that the inadequate
certification letter was due to the Jamaican government’s delayed cooperation.
That government provided the certification only three days prior to trial, despite
the prosecution’s diligence in requesting the document months earlier, and thus
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leaving the prosecution no time to obtain an additional certification before trial.
Furthermore, the attaché officer ICE’s Jamaica office, who personally obtained
copies of the Application from the Jamaican police department, the custodian of
the original document, testified to the document’s authenticity. That testimony and
the certification letter, even if insufficient to satisfy the final certification
requirement under Rule 902(3), were nonetheless evidence of the Application’s
authenticity. McGowan failed to present any evidence undermining such
authenticity. In sum, the record contains a “sound basis” underlying the court’s
ruling. See In re Alexander Grant, 820 F.2d at 356.
To the extent that McGowan attacks the ICE officer’s testimony on the
ground that the officer never spoke with anyone at the Jamaican Taxpayer
Registration Office and did not know whether McGowan was actually the person
who filled out the Application, his argument challenges the reliability of the
information contained in the Application, and thus, goes to the weight of the
evidence, not its authenticity. See, e.g., United States v. Doyle, 130 F.3d 523, 545
(2d Cir. 1997).
Finally, assuming that the court abused its discretion in admitting the
Application, the error was harmless. The Government presented substantial
evidence, beyond the Application, demonstrating McGowan’s alienage.
Specifically, the Government introduced (1) the Immigration Judge’s 2010
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decision ordering McGowan’s removal to Jamaica, (2) the temporary passport the
Jamaican government provided for McGowan’s transportation to Jamaica, which
stated that McGowan had admitted to being a citizen of Jamaica, and (3) ICE’s
certificate of nonexistence, which stated that McGowan was not a legal resident or
naturalized citizen of the United States.
III.
We review de novo a defendant’s claim that his Sixth Amendment right of
confrontation was denied. United States v. Gari, 572 F.3d 1352, 1361–62 (11th
Cir. 2009). If we determine that a denial occurred, we will not reverse if the error
was harmless. Id. at 1362. An alleged constitutional error is harmless if it appears
“beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.” Id. (internal quotation marks omitted). In making this
determination, we consider “the importance of the uncross-examined statements in
the prosecution’s case, whether those statements were cumulative, the presence or
absence of evidence corroborating or contradicting the testimonial statement on
material points, the extent of cross-examination otherwise permitted, and the
overall strength of the prosecution’s case.” Id. at 1363.
The Sixth Amendment’s Confrontation Clause provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. Const. amend. VI. The Clause prohibits the
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introduction of out-of-court statements that are “testimonial,” unless the declarant
is unavailable and the defendant had a prior opportunity to cross-examine the
declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L.
Ed. 2d 177 (2004).
Testimonial statements are ones a declarant “would reasonably expect to be
used prosecutorially.” United States v. Charles, 722 F.3d 1319, 1322 (11th Cir.
2013) (internal quotation marks and alterations omitted). In assessing whether a
statement is testimonial in nature, we look “only at the primary purpose” of the
questions that elicited the statement. United States v. Caraballo, 595 F.3d 1214,
1229 (11th Cir. 2010) (emphasis in original). In Caraballo, we rejected as
testimonial a standard Immigration and Naturalization Service (“INS”) alien-entry
form, emphasizing that the form was merely a “record of biographical data,” which
the INS routinely generated and primarily used for the purpose of tracking the
entry of aliens into the United States. Id. at 1228–29 (internal quotation marks
omitted). We further explained, “[i]t is of little moment that an incidental or
secondary use of the interviews [from which the forms were generated] underlying
the [] forms actually furthered a prosecution.” Id. at 1229.
Admission of non-testimonial hearsay against a criminal defendant is not
governed by Crawford, but still violates the Confrontation Clause unless the
statement falls into one of the hearsay exceptions, or otherwise carries a
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particularized guarantee of trustworthiness. United States v. Baker, 432 F.3d 1189,
1204 (11th Cir. 2005). Hearsay “is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” United States v. Jiminez, 564 F.3d 1280, 1287 (11th
Cir. 2009) (quoting Fed. R. Evid. 801(c) (internal quotation marks omitted)). The
Rules of Evidence provide that a statement made by a party against whom it is
offered is not hearsay. Fed. R. Evid. 801(d)(2)(A). Thus, a defendant’s own
out-of-court statement is not hearsay and its admission does not violate the
Confrontation Clause. United States v. Brown, 441 F.3d 1330, 1358–59 (11th Cir.
2006). Similarly a statement “made by a person whom the party authorized to
make [] on the subject” is nonhearsay when offered against the party. Fed. R.
Evid. 801(d)(2)(C).
In reviewing the admissibility of a hearsay statement, we are not limited to
the ground on which the document was admitted; we may affirm the admission
under any applicable hearsay exception or nonhearsay provision. See United
States v. Williams, 837 F.2d 1009, 1013 (11th Cir. 1988) (concluding that a
document was an admission by a party opponent, and thus nonhearsay under Rule
801(d)(2), and declining to address parties’ arguments as to whether the document
was a business record under Rule 803(6), the ground on which the district court
relied, noting that either rule was applicable given that the proper foundation had
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been laid); Campa, 529 F.3d at 998 (“We may affirm the decision of the district
court on any ground that finds support in the record.”) (discussing challenge to
peremptory strikes).
Here, in light of the court’s valid finding regarding authenticity, admission
of the Application did not violate McGowan’s rights under the Confrontation
Clause. First, the “statements” in the Application were non-testimonial. The
Government’s witness testified that the purpose of submitting a Taxpayer
Registration Application in Jamaica is to obtain a taxpayer number, the equivalent
of a Social Security number in the United States. Thus, an applicant would not
reasonably expect the form to be used prosecutorially. Charles, 722 F.3d at 1322.
Indeed, the Application is analogous to the contested INS form in Caraballo. It
requests “basic biographical information,” and is processed by the Taxpayer
Registration Office for all individuals who apply for a Taxpayer Registration
Number, just as the INS generates its entry form on all aliens who enter the United
States. See Caraballo, 595 F.3d at 1228–29.
Although McGowan argues that he could have expected the Application to
be used against him, the argument is unavailing because his subjective expectation
is not relevant. Moreover, in light of the Application’s primary administrative
purpose, its subsequent use at McGowan’s trial is “of little moment” and does not
render the Application testimonial. See id. at 1229.
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Second, the statements in the Application are nonhearsay. Assuming, based
on the instructions and format of the Application, that McGowan personally filled
it out, and was thus the declarant, the statements are nonhearsay as an admission
by a party opponent under Fed. R. Evid. 801(d)(2)(A). Even if the processing
officer filled out the Application from information provided and sworn to by
McGowan, McGowan authorized the officer to “make a statement on the subject,”
likewise rendering the statement nonhearsay under Fed. R. Evid. 801(d)(2)(C).
Finally, assuming that the court’s admission of the Application violated
McGowan’s rights under the Confrontation Clause, the error was harmless. As
previously noted, the Government presented strong evidence of McGowan’s
alienage, including an admission by McGowan that he was a Jamaican citizen, as
reported by the Jamaican government in McGowan’s temporary passport. In light
of that statement, the Application section that identified McGowan’s place of birth
as Jamaica was simply cumulative evidence of his alienage. And, the Immigration
Judge’s removal order and the temporary passport corroborated the information in
the Application demonstrating McGowan’s alienage.
In short, even if the District Court erred in admitting the Application, the
error was harmless beyond a reasonable doubt.
IV.
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McGowan argues that his sentence should be vacated and that the case
should be remanded for resentencing because the sentence is both substantively
unreasonable and the product of improper “double counting.” We review
McGowan’s reasonableness argument for abuse of discretion, United States v.
Hunt, 526 F.3d 739, 746 (11th Cir. 2008), and the double counting argument de
novo. United States v. Naves, 252 F.3d 1166, 1168 (11th Cir. 2001). We consider
these arguments in reverse order.
A.
In United States v. Adeleke, 968 F.2d 1159 (11th Cir. 1992), we held that, in
the context of the illegal reentry of a previously removed alien, where, as here, a
prior drug conviction increases the defendant’s base offense level pursuant to
U.S.S.G. § 2L1.2 (Unlawfully Entering or Remaining in the United States), and
also counts toward his criminal history, as in the case here, the resulting sentence is
not the product of impermissible double counting. Id. at 1160–61. Rather, the
calculation is permissible because the purpose of the criminal history category is
“to punish likely recidivists more severely, while the enhancement under § 2L1.2
is designed to deter aliens who have been convicted of a felony from re-entering
the United States.” Id. at 1161. Adeleke plainly forecloses McGowan’s double
counting argument.
B.
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A sentence is substantively unreasonable if it does not achieve the purposes
of sentencing stated in 18 U.S.C. § 3553(a), including the need for just punishment
and deterrence. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The
weight given to any specific § 3553(a) factor is committed to the sound discretion
of the district court, absent a clear error in judgment. United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008). The applicable Guidelines sentence range
for McGowan’s case calls for 77–96 months’ imprisonment. We ordinarily expect,
but do not automatically presume, that a sentence within the Guidelines range is
reasonable. Id.
We need not tarry long in concluding that McGowan’s sentence is
substantively reasonable. Considering McGowan’s propensity for reentry, his
steady criminal history and lack of remorse for his criminal conduct, the District
Court’s imposition of a sentence within the Guideline’s sentence range was clearly
appropriate to promote respect for the law, provide just punishment, and deter
McGowan from further criminal activity. See 18 U.S.C. § 3553(a)(2).
V.
For the reasons we have stated, McGowan’s conviction and sentence are
AFFIRMED.
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