United States v. Leavitt Rodriguez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4471
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEAVITT RODRIGUEZ, a/k/a Jose Luis Rosario Colon,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:10-cr-00748-CCB-1)
Submitted: March 28, 2013 Decided: April 30, 2013
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven Gene Berry, Bethesda, Maryland, for Appellant. Leo
Joseph Wise, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leavitt Rodriguez was convicted by a jury of making a
false statement in a passport application, in violation of 18
U.S.C. § 1542 (2006) (counts one and three), and aggravated
identity theft, in violation of 18 U.S.C. § 1028A (2006) (counts
two and four). He was sentenced to a total term of 42 months’
imprisonment. Rodriguez noted a timely appeal. Counsel has
filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), conceding that there are no meritorious issues for
appeal but questioning whether: (1) the evidence was sufficient
to support the verdict; (2) Rodriguez was unconstitutionally
removed from the courtroom during his trial; (3) the district
court inappropriately referred to him as “Leavitt Rodriguez;”
and (4) counsel was ineffective. Although advised of his right
to file a supplemental pro se brief, Rodriguez has not done so.
Finding no error, we affirm.
The evidence presented at Rodriguez’s trial, viewed in
the light most favorable to the Government, see United States v.
Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), established
that Rodriguez twice applied for a United States passport using
the social security number and other identifying information
from Jason Anthony Bell, who died in 2009. We find the evidence
sufficient to support convictions under both statutes.
2
Next, counsel asserts that Rodriguez was improperly
excluded from the courtroom. The record reveals that Rodriguez
was twice removed from the courtroom following angry outbursts,
and after being duly warned of the consequences of his behavior.
The court may order the removal of a defendant “when the court
warns the defendant that it will remove the defendant from the
courtroom for disruptive behavior, but the defendant persists in
conduct that justifies removal from the courtroom.” Fed. R.
Crim. P. 43(c). With respect to removal of a defendant, the
Supreme Court has stated: “[A] defendant can lose his right to
be present . . . if, after he had been warned by the judge that
he will be removed if he continues his disruptive behavior, he
nevertheless insists on conducting himself in a manner so
disorderly, disruptive, and disrespectful of the court that his
trial cannot be carried on with him in the courtroom.” Illinois
v. Allen, 397 U.S. 337, 343 (1970). We conclude that the
district court acted within its discretion in removing Rodriguez
from the courtroom.
Rodriguez also argues that the district court
improperly referred to him as “Leavitt Rodriguez,” even after he
filed a motion to be identified only as Jose Luis Rosario Colon.
According to the testimony of Rodriguez’s uncle and a Special
Agent from the United States Department of State, Rodriguez
assumed the name Jose Colon after arriving in the United States.
3
However, as the district court noted at the beginning of the
trial, the only relevant issue is whether he was Jason Anthony
Bell, not whether his name was Rodriguez or Colon. The court
also instructed the jury accordingly. We find no prejudice
suffered by Rodriguez as a result of references to his legal
name in addition to his assumed name.
Finally, counsel asserts that Rodriguez was denied
effective assistance of counsel. In the absence of conclusive
evidence of ineffective assistance of counsel on the face of the
record, such claims are not cognizable on direct appeal. United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Because the
record does not conclusively establish or even suggest that
trial counsel rendered ineffective assistance, we decline to
address this claim on direct appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Rodriguez’s conviction and sentence. This
court requires that counsel inform Rodriguez, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Rodriguez requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Rodriguez.
4
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
5