United States v. Nyle Churchwell

Case: 14-20351 Document: 00513277044 Page: 1 Date Filed: 11/18/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20351 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, November 18, 2015
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
NYLE CHURCHWELL,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before STEWART, Chief Judge, and BARKSDALE, and PRADO, Circuit
Judges.
CARL E. STEWART, Chief Judge:
Nyle Churchwell (“Churchwell”) appeals his conviction of two counts of
aiding and abetting the making of a false statement in a passport application
in violation of 18 U.S.C. §§ 1542 and 2. The district court, over his objections,
sentenced Churchwell to a 42-month above-Guidelines sentence. For the
reasons stated herein, we AFFIRM.
I. Factual Background
This case arises out of multiple passport fraud conspiracies. Beginning
Case: 14-20351 Document: 00513277044 Page: 2 Date Filed: 11/18/2015
No. 14-20351
in 2007, Churchwell was employed as an Adjudication Manager for the
Houston Passport Agency (“HPA” or “the passport agency”) in Houston, Texas. 1
A. The C.F./M.V. 2 Passport
On October 11, 2007, Churchwell assisted Lorna Brown (“Brown”) and
Jacquelyn Venters (“Jacquelyn”) at the HPA in securing a false passport for
Brown’s relative, C.F. Jacquelyn was present because she agreed to submit a
passport application for C.F. by using her daughter’s name, M.V. Temi Russell
(“Russell”), an acquaintance of Churchwell, was also present; she previously
told Churchwell that Brown was coming to the passport agency for a passport.
At the passport agency, Jacquelyn submitted an application to Churchwell,
along with M.V.’s birth certificate, C.F.’s photo identification, and paperwork
provided by Brown. Churchwell advised Jacquelyn that her husband, Merlin
Venters (“Merlin”), was required to sign the application. Although Merlin was
absent, 3 Churchwell accepted either Brown’s or Jacqueline’s signature in place
of Jacqueline’s husband. 4 Merlin did not submit an affidavit with the
application to give consent for his purported child to receive a passport.
Churchwell documented both parents’ identification information on the
child’s application; however, the number that Churchwell wrote as the father’s
identification number matched Brown’s State of Texas driver’s license. The
photograph attached to the passport application in M.V.’s name depicted C.F.
1 Churchwell has worked at the passport agency since 1979; he was previously a
passport specialist and supervisory passport specialist. The HPA provides expedited services
to passport applicants who have an emergency or are traveling within a very short period of
time. As an adjudication manager, Churchwell managed, supervised, and performed
administrative work concerned with adjudicating applications for United States passports.
Passport specialists examine proof of identity and citizenship in order to issue United States
passports to United States citizens. Passport specialists report to supervisory passport
specialists, who report to the adjudication managers.
2 The initials C.F. and M.V. will be used due to the fact that both are minor children.
3 Brown told Churchwell that they “couldn’t get him” and were “pressed for time.”
4 According to Russell, Brown signed the application and returned it to Churchwell.
2
Case: 14-20351 Document: 00513277044 Page: 3 Date Filed: 11/18/2015
No. 14-20351
Neither M.V. nor C.F. were present when Jacquelyn and Brown submitted the
passport application for C.F. Churchwell signed and approved the passport for
issuance.
B. The Eric Gardner/ Jerald Law Passport
On April 15, 2010, a man claiming to be Jerald Law (“Law”) went to the
passport agency with Brown. Eric Gardner (“Gardner”) represented himself
as Law and submitted his photo with the Gardner/Law application to
Churchwell. Gardner gave Churchwell a “little scratch piece of paper” with a
Texas driver’s license number written on it as proof of identification. Gardner
also handed Churchwell an uncertified copy of his birth certificate. Churchwell
proceeded to write the numbers from the torn piece of paper on the passport
application in the section that required the driver’s license number and added
information on the application that was not on the piece of paper. 5 Gardner
also did not appear to know the answers to basic questions such as the name
of his employer; instead, he looked to Brown for the appropriate responses.
A passport specialist also assisting Gardner expressed concern to
Churchwell about the Gardner/Law application because of Gardner’s lack of
proper identification and missing information in his application. Churchwell
told the specialist to obtain a DS–71 form, which is required from an
identifying witness when the applicant does not have his primary
identification. However, because Brown did not have valid identification,
Brown could not serve as a witness. 6
5 Despite receiving no other information from Gardner, Churchwell (1) checked the
box for “Other” in the Identifying Documents section to indicate what document was provided
and wrote “STATE ID CARD,” (2) listed the expiration date on the application as “DOB 2012,”
(3) wrote “SAME” in the space for the applicant’s name, and (4) wrote down “TX” as the “Place
of Issue.”
6 Brown’s license was cut across the top, showing that it was invalid.
3
Case: 14-20351 Document: 00513277044 Page: 4 Date Filed: 11/18/2015
No. 14-20351
Churchwell nevertheless advised the specialist to accept the application
and prepare it for will call, which would allow Gardner to accept it after it was
prepared. When the specialist noted that Gardner’s application exhibited
many of the same fraud indicators as an application she reviewed days prior
for Churchwell, Churchwell stated that the earlier passports were not issued. 7
However, the passport specialist alleged that Churchwell’s statement was false
because the prior applicant’s passport was already distributed to the applicant.
C. Churchwell’s Investigation and Admissions
On June 4, 2012, Special Agent Matthew Ray (“the investigator”) of the
United States Diplomatic Security Service (“DSS”) interviewed Churchwell
about the disputed passports. Brian Clark (“Clark”), an assistant director at
the HPA, attended the interview at Churchwell’s request. While Churchwell
initially denied knowing the applicants or being involved with assisting them
in obtaining passports, the investigator revealed to Churchwell that the DSS
knew that Churchwell did know the applicants, had in fact assisted them in
obtaining passports, and that the DSS had telephone records indicating
conversations between Churchwell and either Russell or Brown. As a result,
Churchwell admitted that he knew Russell and Brown and helped them to
obtain passports, 8 but denied knowing that the applications were fraudulent.
II. Procedural History
On September 5, 2012, Churchwell was charged in a superseding
indictment with one count of conspiracy to commit passport fraud (Count 1)
7 The specialist previously assisted Russell, Brown, Jacquelyn, and Theodore Fox in
applying for a passport. The facts relating to this application formed the basis for Count 3 of
the indictment, a charge for which Churchwell was acquitted. See discussion supra.
8 Churchwell acknowledged issuing the passports and inputting both parents’ names
and identification numbers in the application. Churchwell stated that this information was
relevant because it “indicated that a person by the name of Merlin Venters with that ID
number appeared before him in person, and he copied down the information.” Churchwell
also identified his handwriting on the Gardner/Law application.
4
Case: 14-20351 Document: 00513277044 Page: 5 Date Filed: 11/18/2015
No. 14-20351
and three counts of aiding and abetting the willful and knowing making of a
false statement in a passport application (Counts 2-4) in violation of 18 U.S.C.
§§ 1542 and 2. Churchwell pleaded not guilty and a jury convicted him of
Counts 2 and 4. He was acquitted of Counts 1 and 3.
A probation officer prepared a Presentence Investigation Report that
determined that Churchwell had a total offense level of 13. This included a
two-level enhancement for an abuse of trust. The report considered
Churchwell’s Category I criminal history and gave an advisory guideline range
of 12-18 months in prison. The probation officer suggested that an upward
departure pursuant to the United States Sentencing Guidelines may be
warranted, and the Government moved for an upward departure or a variance
under 18 U.S.C. § 3553(a). Churchwell objected to a sentencing enhancement
based on the number of passports involved and to the Government’s motion for
an upward departure. The district court overruled Churchwell’s objections and
imposed above-guidelines concurrent sentences of 42 months in prison.
Churchwell timely appealed his conviction and sentence. On appeal,
Churchwell challenges (1) the sufficiency of the evidence at trial to support the
jury verdict, (2) the district court’s admission of lay opinion testimony, (3) the
district court’s allowance of comments made by a prosecutor during closing
argument that were allegedly prejudicial, and (4) the procedural and
substantive reasonableness of his above-Guidelines sentence.
III. Sufficiency of the Evidence
A. Standard of Review
This court reviews a claim of insufficient evidence de novo. See United
States v. Harris, 666 F.3d 905, 907 (5th Cir. 2012). We review the jury’s verdict
with great deference, and view all of the evidence in the light most favorable
to the verdict to determine whether any rational trier of fact could find guilt
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
5
Case: 14-20351 Document: 00513277044 Page: 6 Date Filed: 11/18/2015
No. 14-20351
“[T]he jury is free to choose among reasonable interpretations of the evidence.”
See United States v. Brugman, 364 F.3d 613, 615 (5th Cir. 2004).
B. C.F./M.V. Passport (Count 2)
Churchwell challenges his conviction for aiding and abetting the making
of a false passport application by alleging that there was insufficient evidence.
The record reveals that Churchwell’s conviction can be upheld because he
accepted and certified as true the C.F./M.V. passport application containing a
false signature, even though he knew that the purported father was not
present and did not in fact sign the passport application to give his consent.
The Government introduced sufficient evidence to establish the
substantive elements of the offense. To obtain a conviction under 18 U.S.C.
§ 1542, the Government must prove beyond a reasonable doubt that 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; United
States v. Reyes-Ochoa, 503 F. App’x 268, 269 (5th Cir. 2012). In order for a
parent to obtain a passport for a child under age 16, both parents must apply
in person at the passport agency. See 22 C.F.R. § 51.28(a)(2). Alternatively,
the application may be executed by only one of the parents if that parent shows
a notarized statement from the absent parent consenting to the issuance of the
passport. See id. § 51.28(a)(3)(i). When a parent, or another individual, signs
a passport application in place of the second parent, the signing individual has
willfully and knowingly made a false statement on the face of the passport
application. 9 Evidence at trial conclusively showed that either Jacquelyn or
9 See United States v. Baum, 380 F. Supp. 2d 187, 187–204 (S.D.N.Y. 2005) (holding
that the defendant, who did not have sole custody of her child and forged her ex–husband’s
signature on the child’s passport application, made a false statement in violation of 18 U.S.C.
§ 1542).
6
Case: 14-20351 Document: 00513277044 Page: 7 Date Filed: 11/18/2015
No. 14-20351
Brown made false statements on the child’s passport application when one of
the two signed falsely for Merlin and provided M.V.’s birth certificate and
C.F.’s photo as a part of the C.F. passport application.
While we have held that a defendant may be criminally liable for making
a false statement on a passport application, our case law has not yet addressed
the issue in this case: whether a government agent may be held criminally
liable for aiding and abetting where he accepts or certifies as true another’s
passport application that he knew contained false statements. Addressing an
issue of first impression, we hold that the record supports the district court’s
finding of Churchwell’s guilt. As a general rule, a defendant is guilty of aiding
and abetting if he “knowingly associated himself with and participated in the
criminal venture.” 18 U.S.C. § 2; United States v. Burgos, 94 F.3d 849, 873
(4th Cir. 1996). In United States v. Aifang Ye, the Ninth Circuit upheld a
conviction of aiding and abetting where the defendant assisted her brother-in-
law, Zhenyan, who signed her child’s passport application as the child’s father.
See 792 F.3d 1164, 1165–67 (9th Cir. 2015). Zhenyan used his brother’s name
and passport as identification. Id. at 1166. The defendant was charged with
aiding and abetting passport fraud because she agreed to sign and submit a
false application with knowledge of her brother-in-law’s false signature. Id.
Other circuits have considered whether aiding and abetting includes
certifying and accepting false statements. For example, in United States v.
Dunne, the Tenth Circuit suggested that a defendant may be held criminally
liable for aiding and abetting where he certified and accepted false information
in an audit report and other financial statements in documents submitted to
the United States government. See 324 F.3d 1158, 1162–64 (10th Cir. 2003).
It is undisputed that Churchwell participated in the criminal venture. We now
address whether he knowingly associated himself with this venture.
7
Case: 14-20351 Document: 00513277044 Page: 8 Date Filed: 11/18/2015
No. 14-20351
Churchwell’s argument that his negligence does not constitute aiding
and abetting is unavailing. He acknowledges that the passport agency’s
Foreign Affairs Manual required both parents to be present in order for a minor
child to obtain a passport, that Merlin was not present, and that either
Jacquelyn or Brown signed on his behalf. Churchwell points out, however, that
there was no evidence establishing that he knew that the passport application
was fraudulent. The Government counters that Churchwell was aware of the
passport agency procedure 10 and intentionally bypassed its two-parent consent
requirement. The Government thus contends that Churchwell made a false
statement by accepting and adjudicating the application despite Merlin’s
absence. In light of the record, we affirm the verdict.
Here, Churchwell, too, signed the passport application knowing of a false
signature made by someone other than the child’s father. He contends that
simply disregarding the passport agency’s policy and his mere negligence
precludes him from conviction because he did not know that the information
on the application was false or that Merlin had not given his wife permission
to sign on his behalf. This argument is of no moment because his signature
was a certification of the application’s contents as true. By certifying the
application, Churchwell acknowledged that both the father and mother were
present even after he witnessed someone other than Merlin sign the
application. Churchwell’s conduct, coupled with his training to detect
suspicious behavior, was sufficient to show a full understanding of the content
of the documents he signed. In fact, criminal culpability is particularly clear
here because the false statements were made in Churchwell’s presence during
his service as a government official executing his official duties, thereby
10 The Government contends that this is a “two-parent consent law.” See Pub. L. No.
106-113, Title II, § 236, 113 Stat. 1501 (1999); 22 C.F.R. § 51.28.
8
Case: 14-20351 Document: 00513277044 Page: 9 Date Filed: 11/18/2015
No. 14-20351
becoming a party to passport fraud. This act alone is sufficient to impose
criminal liability and his argument does not stand.
Accordingly, a review of the record shows that a reasonable jury was free
to reject Churchwell’s argument and find him guilty of aiding and abetting
passport fraud.
C. Eric Gardner/Jerald Law Passport (Count 4)
Churchwell also challenges the sufficiency of the evidence surrounding
the Gardner/Law passport. The Government has established the substantive
offense of making a false statement on the Gardner/Law passport application.
See 18 U.S.C. § 1542. We must now address whether Churchwell aided and
abetted the commission of this act. “[K]nowingly associat[ing] . . . with and
participat[ing] in [a] criminal venture” is sufficient to find criminal liability.
See 18 U.S.C. § 2; Burgos, 94 F.3d at 873. This court has expanded the
definition of knowledge to include circumstances where a defendant exhibits
deliberate ignorance. See United States v. Demmitt, 706 F.3d 665, 674–77 (5th
Cir. 2013). Deliberate ignorance requires that a defendant (1) be subjectively
aware of a high probability of the existence of the illegal conduct; and (2)
purposely contrive to avoid learning of the illegal conduct. Id. at 675. In
Demmitt, we concluded that a deliberate ignorance instruction to the jury was
proper where the defendant turned a blind eye to several instances of
suspicious conduct in a fraud conspiracy: clients directly informed the
defendant of missing money from their accounts; the defendant was copied on
letters sent to clients about incorrect charges on accounts; the defendant
tightly controlled the business by making various business decisions; and the
defendant took no actions to investigate or rectify the fraud. Id. at 673–74,
676; see also United States v. Barrera, 444 F. App’x 16, 21–23 (5th Cir. 2011)
(allowing the inference that a government agent who prepared falsified
documents for a government agency and made no effort to verify their truth
9
Case: 14-20351 Document: 00513277044 Page: 10 Date Filed: 11/18/2015
No. 14-20351
purposefully “hid her head in the sand” and was subjectively aware of the
probability of illegal conduct).
Churchwell’s impropriety is clear with regard to the Gardner/Law
passport application. He again points out that he did not knowingly and
willfully participate in including Law’s false identification information on the
application because he did not know that Gardner was not Law. He maintains
that his “negligence” in accepting the handwritten paper with the
identification number on it was not sufficient to show that he willfully and
knowingly made a false statement. The Government, on the other hand,
asserts that the conviction may be upheld in light of Churchwell’s deliberate
ignorance because Churchwell “deliberately blinded himself to Gardner’s true
identity when he accepted proof of identification from a torn piece of paper with
no photograph.”
Churchwell relies on a proposition from United States v. Gabriner: the
absence of evidence showing that a defendant knew that a passport applicant
provided false information is fatal to a prosecution for his knowing
participation in the inclusion of false statements on the passport application.
571 F.2d 48, 49–51 (1st Cir. 1978). However, Churchwell’s conduct clearly
shows a subjective awareness of a high probability of the fraud and that he
purposely contrived to avoid learning of the illegal conduct. Churchwell had
an ongoing relationship with co-defendant Russell, having met Russell shortly
after 1998. Churchwell exchanged multiple telephone calls with both Brown
and Russell and had previously assisted Russell in getting another passport.
Churchwell accepted proof of identification from a torn piece of paper with no
photograph from an applicant whom Russell told Churchwell about and whom
Brown brought to the passport agency. Finally, Churchwell independently
placed information on the application that was not provided by the applicant.
10
Case: 14-20351 Document: 00513277044 Page: 11 Date Filed: 11/18/2015
No. 14-20351
Each additional interaction amplifies the link between Churchwell and his
knowledge of the fraud.
Churchwell’s participation in multiple passport application transactions
over the years also indicates a subjective awareness of fraud. He served in a
managerial role that would expose him to several fraudulent acts, was aware
of the office requirements, and was aware of several suspicious factors. 11
Churchwell’s experience and knowledge of the passport regulations indicate
that he deliberately chose not to investigate whether Gardner was in fact Law.
Under the circumstances, the record suggests that there was sufficient
evidence from which a jury could reasonably find that Churchwell had
knowledge of Gardner’s intention to obtain a passport using false information
and that Churchwell deliberately blinded himself to the fraud therein.
IV. Lay Opinion Testimony
A. Standard of Review
We review a district court’s ruling on the admissibility of witness
testimony for an abuse of discretion. See United States v. Heard, 709 F.3d 413,
422 (5th Cir. 2013); United States v. Ebron, 683 F.3d 105, 133 (5th Cir. 2012).
Even if the district court abuses its discretion in admitting evidence, this court
will affirm “[u]nless there is a reasonable possibility that the improperly
admitted evidence contributed to the conviction.” United States v. Mendoza-
Medina, 346 F.3d 121, 127 (5th Cir. 2003) (internal quotation marks and
citation omitted).
11 Although participation in a single suspicious transaction might be insufficient to
show deliberate ignorance, this court has held that the “routine and repeated pattern of
suspicious transactions” may be sufficiently suspicious to infer subjective awareness of illegal
activity. See United States v. Nguyen, 493 F.3d 613, 620 (5th Cir. 2007).
11
Case: 14-20351 Document: 00513277044 Page: 12 Date Filed: 11/18/2015
No. 14-20351
B. The Testimony
Churchwell argues that the district court erred in admitting Clark’s
testimony about his belief that Churchwell knew fraud was involved in the
passport applications. Federal Rule of Evidence 701 provides that a lay
witness may offer an opinion so long as that opinion is “(a) rationally based on
the witness’s perception; (b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and (3) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.”
Although a witness may not give legal conclusions, “[a]n opinion. . . is not
objectionable simply because it embraces an ultimate. . . issue” for the jury’s
determination. United States v. Espino-Rangel, 500 F.3d 398, 400 (5th Cir.
2007). Churchwell does not contend that Clark’s conclusion that Churchwell
was not telling the truth about his commission of fraud was based on scientific
or technical knowledge or that it was not based on personal perceptions.
Instead, he asserts that the testimony was both irrelevant and unhelpful. We
disagree.
At trial, Clark first testified that he felt that Churchwell was eventually
truthful. On redirect, the prosecutor’s subsequent line of questioning allowed
Clark to add to his initial testimony that he did not believe Churchwell’s
statement when Churchwell said he did not know that the passports he
approved were frauds or that fraud was involved. The statement at issue on
appeal, “At the end I did not believe that [Churchwell was being honest],”
ultimately revealed that Clark did not accept as true that Churchwell was
telling the truth during his interview.
This statement was relevant to Clark’s overall testimony. Clark worked
with Churchwell and was in the interview room with Churchwell during the
entirety of the questioning by the investigator. Clark’s testimony called into
question the legitimacy of Churchwell’s initial denial of knowledge of fraud in
12
Case: 14-20351 Document: 00513277044 Page: 13 Date Filed: 11/18/2015
No. 14-20351
light of his experience with the applicable regulations and policies of the
passport agency, the sequence of events leading up to approving the C.F./M.V.
passport, the egregious deficiencies in the documentation provided by Gardner
in the Gardner/Law application, and Merlin’s obvious absence from the
passport agency. Clark’s response was directly linked to perceptions formed
as Churchwell responded to questioning and was relevant to Churchwell’s role
as a passport agent.
Churchwell further asserts that the evidence was not helpful to the jury
because they could have determined for themselves whether Churchwell was
telling the truth about his fraudulent intent. However, we have never held
that testimony is unhelpful merely because a jury might have the same opinion
as the testifying witness. See United States v. El-Mezain, 664 F.3d 467, 526–
27 (5th Cir. 2011); see accord United States v. Cruz-Rea, 626 F.3d 929, 935 (7th
Cir. 2010). When read in context, the introduction of the statement was helpful
to understanding Clark’s testimony. See Fed. R. Evid. 701(b). On cross-
examination, Clark initially stated to defense counsel that Churchwell
“eventually” told the truth about his involvement with the disputed passports.
The defense then elicited testimony that Churchwell first admitted to his
involvement in providing passports but had denied knowing that the
applications were fraudulent. Because Clark first stated that Churchwell was
truthful, the subsequent line of questioning on redirect, where Clark stated
that he ultimately did not believe Churchwell, helped to correct any
misapprehension by the jury that Churchwell’s eventual truthfulness was
Clark’s only opinion of him.
Although Churchwell maintains that the jury had the duty to determine
whether Churchwell was telling the truth and could have done so on their own,
the jurors did not personally view Churchwell’s conduct and behavior during
the interview, as Clark did. Clark “was in a unique position to observe
13
Case: 14-20351 Document: 00513277044 Page: 14 Date Filed: 11/18/2015
No. 14-20351
[Churchwell’s] demeanor,” Heard, 709 F.3d at 422, and formulate an opinion
that the prosecution sought to highlight. This was appropriate, especially after
the defense elicited testimony from Clark that Churchwell was truthful at
some point. We therefore find that the district court did not abuse its
discretion in admitting Clark’s testimony.
Even if the district court erred, such error would be harmless in light of
the wealth of evidence demonstrating Churchwell’s guilt. See United States v.
Ebron, 683 F.3d 105, 133 (5th Cir. 2012); Mendoza-Medina, 346 F.3d at 127.
Error is not harmless if there is a “reasonable possibility that the improperly
admitted evidence contributed to the conviction.” Mendoza-Medina, 346 F.3d
at 127 (internal quotation marks and citation omitted). Merely stating, as
Churchwell does, that Churchwell’s supervisor’s opinion “was devastating to
the defense” is insufficient to show that this testimony contributed to a guilty
verdict. The record contained enough other information for the jurors to reach
the same conclusion as Clark. See Espino-Rangel, 500 F.3d at 400–01
(concluding that the admission of lay opinion testimony was not error or was
harmless because the evidence was sufficient to support the conviction even in
the absence of the opinion testimony); see also El-Mezain, 664 F.3d at 512–13
(finding that any error in the admission of lay opinion testimony was harmless
because it was cumulative to other evidence presented). Clark’s testimony,
consistent with the view that Churchwell was involved in the fraud, is merely
cumulative of what was already showcased in the record. Thus, its inclusion
was harmless.
V. The Prosecutor’s Statements During Closing Argument
Churchwell next argues that the district court committed error by
allowing the prosecutor to make a hyperbolic comment when he presented facts
outside of the record during closing argument. As Churchwell did not object to
the prosecutor’s statement, we review this issue for plain error. See United
14
Case: 14-20351 Document: 00513277044 Page: 15 Date Filed: 11/18/2015
No. 14-20351
States v. Virgen-Moreno, 265 F.3d 276, 292 (5th Cir. 2001). To establish plain
error, a defendant must show a forfeited error that is clear or obvious and that
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). When the defendant meets this burden, we have the discretion to
correct the error and will do so only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id. This court considers three
factors in deciding whether a defendant’s substantial rights have been affected
by the Government’s statement during closing argument: “(1) the magnitude
of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy of any
cautionary instruction by the judge, and (3) the strength of the evidence
supporting the conviction.” United States v. Thompson, 482 F.3d 781, 785 (5th
Cir. 2007) (internal quotation marks and citation omitted). 12 The ultimate
question in determining whether a prosecutor’s comments amount to
reversible error is whether the prosecutor’s comments “so infected the trial
with unfairness as to make the resulting conviction a denial of due process.”
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)).
Churchwell contends that the prosecutor’s argument is (1) improper
because it includes evidence that is not in the record; and (2) prejudicial
because it affected his substantial rights. During closing arguments, defense
counsel minimized Churchwell’s conduct with respect to the fraudulent
passport applications, asserting that his actions were at most negligent and
that he may have “cut[] corners” on office policy but that there was no evidence
12 This court also considers whether the argument had some foundation in the record.
See United States v. Vaccaro, 115 F.3d 1211, 1216 (5th Cir. 1997). The prosecution is entitled
to make a fair response in rebuttal to the argument presented by the defense; in other words,
if the argument is an “invited response,” the court should also take into consideration the
arguments that invited the response. Id. The court “assume[s] that a jury has the common
sense to discount the hyperbole of an advocate, discounting the force of the argument.” Id.
15
Case: 14-20351 Document: 00513277044 Page: 16 Date Filed: 11/18/2015
No. 14-20351
that he knew of the fraud. Following this, the prosecutor focused the jury on
the seriousness of the offense, stating that Churchwell “abuse[d] his position
and his power that he had to issue one of the most valuable documents in the
world: a United States passport. People kill over that document. A passport
that allows you to open bank accounts abroad, travel within countries.” When
we consider the closing argument in light of the context in which it was given,
we do not agree that it was improper. 13 Notwithstanding, even if we were to
find that the prosecutor’s comments were improper, Churchwell’s substantial
rights were not affected.
A. Magnitude of Prejudicial Effect
First, while Churchwell is correct that there is no evidence presented in
the record to show that anyone has committed murder in order to obtain a
United States passport, the comments in the closing argument solely provide
an example of the importance of a United States passport and express the
prosecutor’s opinion of what should be the outcome of the case. In United
States v. Baptiste, the Fourth Circuit held that a prosecutor’s closing argument,
in which he used a metaphor involving a defendant’s hypothetical role in a
terrorist conspiracy, was not reversible probable error. 596 F.3d 214, 226–28
(4th Cir. 2010). The court noted that the prosecutor’s clear purpose in posing
the hypothetical was to provide the jury with an example of unforeseeable
13 While we do not find the prosecutor’s closing argument to be dispositive or command
reversal, we note that the Government’s counsel could have been less dramatic in its
argument to the jury. “Counsel is accorded wide latitude during closing argument.” United
States v. Reagan, 725 F.3d 471, 492 (5th Cir. 2013) (internal quotation marks and citation
omitted), cert. denied, 134 S. Ct. 1514 (2014). However, the prosecutor must discuss only
properly admitted evidence and reasonable inferences or conclusions that he or she wishes to
be drawn from that evidence. See United States v. Anderson, 755 F.3d 782, 797 (5th Cir.
2014).
16
Case: 14-20351 Document: 00513277044 Page: 17 Date Filed: 11/18/2015
No. 14-20351
criminal activity. Id. at 227. The remarks made clear that the government
was not alleging that the defendant was involved with terrorism. 14
Although a passport is in fact a document which could be used by
terrorists to present themselves as United States citizens or sought by
individuals involved with the drug trade who would conceivably kill for it,
nothing in the prosecutor’s remarks hint at an intent to show that Churchwell’s
conduct would lead to such acts. The prosecutor’s comments solely served to
highlight the extreme importance of a United States passport.
The prosecutor also merely bolstered testimony previously given at trial.
This court has squarely addressed this concern. Thompson, 482 F.3d at 786
(“[T]he prosecutor voiced his opinion about the conclusions that the jury should
reach based on the evidence, and engaged in a bit of . . . hyperbole, as trial
lawyers are want to do in closing arguments. And, absent some evidentiary
basis for those conclusions, his statements might have constituted improper
prosecutorial ‘testimony.’ In his closing argument, however, the prosecutor
directly linked his assertions to the evidence presented at trial.”).
At trial, Clark testified about the value of a United States passport,
saying it is “considered the most secured travel document in the world.” He
expressed the concern, without objection, “that a person that’s a terrorist . . .
might get an American passport.” He also testified that two individuals that
sought Churchwell’s assistance in obtaining passports, one of whom was
Gardner, had a history of trafficking or possessing drugs.
14Baptiste, 596 F.3d at 226–28. See also United States v. Gonzalez-Perales, 313 F.
App’x 677, 682–83 (5th Cir. 2008) (assuming that the jury was able to comprehend and
discount the prosecutor’s reference to the defendant as a “pro” in alien smuggling); Vaccaro,
115 F.3d at 1216 (finding no plain error in the prosecutor’s reference to the defendants as
“criminals”).
17
Case: 14-20351 Document: 00513277044 Page: 18 Date Filed: 11/18/2015
No. 14-20351
A passport may be used both for innocent and illegal acts. But by making
these comments, the prosecutor made clear his opinion of the case while using
the assistance of prior testimony: someone serving in Churchwell’s capacity is
tasked with safeguarding the proper distribution of such an important
document. In all attempts, he must prevent fraud.
B. Cautionary Instructions
Churchwell argues that even if counsel successfully objected, an
instruction to disregard the closing argument would not have cured the harm
and a mistrial would have been required upon request. The court did not
provide any cautionary instructions to the jury because Churchwell made no
objection before the district court. Nonetheless, we need not address whether
the instruction would “purge the taint of a prosecutor’s prejudicial comments”
because there is sufficient evidence to support Churchwell’s conviction and
thus to overcome any potential prejudicial effect. See United States v. Aguilar,
645 F.3d 319, 325–26 (5th Cir. 2011) (acknowledging that strong inculpatory
evidence can defeat a prosecutor’s prejudicial comments).
C. Strength of the Inculpatory Evidence
In light of the quantity of evidence against Churchwell, the court’s
allowance of the remark without a cautionary instruction did not affect
Churchwell’s substantial rights. As our earlier recitation of the evidence
makes clear, the testimony and exhibits offered by the government make a
guilty verdict reasonable. Id. Churchwell assisted two separate parties in
making false statements on a passport application where he (1) knowingly
certified as true a false passport application, and (2) deliberately ignored the
suspicious and fraudulent acts of a passport applicant. Each act,
independently, is sufficient to show knowledge of fraud sufficient to lead to a
conviction for aiding and abetting. Accordingly, the district court did not
commit reversible plain error.
18
Case: 14-20351 Document: 00513277044 Page: 19 Date Filed: 11/18/2015
No. 14-20351
VI. The Above-Guidelines Sentence
In Churchwell’s final argument, he alleges that his 42-month sentence
was procedurally and substantively unreasonable. He contends first, that the
upward variance was not justified because it was already included in the
calculation of the Guidelines sentencing range; second, that any interference
with government function was inherent in his offense and did not justify an
upward departure; and third, that a sentence of more than twice the top of the
Guideline range was unreasonable where the district court failed to adequately
explain why it was necessary to impose such a sentence. We disagree.
A. Standard of Review
We review sentences for reasonableness. Gall v. United States, 552 U.S.
38, 46 (2007). We first examine whether the district court committed any
significant procedural error, including “failing to adequately explain the
chosen sentence.” Id. at 51. If the district court’s decision is procedurally
sound, we will next consider the substantive reasonableness of the sentence
under an abuse-of-discretion standard. Id.; United States v. Mondragon-
Santiago, 564 F.3d 357, 360 (5th Cir. 2009). Churchwell did not object to the
district court’s alleged failure to provide reasons for the imposed sentence. We
therefore review this issue for plain error. See Mondragon-Santiago, 564 F.3d
at 361. In light of the record, the above-Guidelines sentence is both
procedurally and substantively reasonable. See United States v. Campos–
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (per curiam).
B. Procedural Reasonableness
As an initial matter, we note that the district court committed no
procedural error. “The district court must adequately explain the sentence to
allow for meaningful appellate review and to promote the perception of fair
sentencing.” Mondragon-Santiago, 564 F.3d at 360 (internal quotation marks
and citation omitted). While within-Guidelines sentences require little
19
Case: 14-20351 Document: 00513277044 Page: 20 Date Filed: 11/18/2015
No. 14-20351
explanation, the district court must give a more detailed explanation for a non-
Guidelines sentence. United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006);
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). “The farther a
sentence varies from the applicable Guideline sentence, the more compelling
the justification based on factors in section 3553(a) must be.” Smith, 440 F.3d
at 707 (internal quotation marks and citation omitted).
The district court calculated the applicable Guidelines range, allowed
both parties to present arguments as to what they believed the appropriate
sentence should be, and considered all of the section 3553(a) factors. See Gall,
552 U.S. at 51. In doing so, the district court adequately explained its
reasoning for choosing the sentence. The court stated that Churchwell’s
conduct went beyond merely approving the deficient passport applications: it
included ignoring and threatening subordinate employees who identified
potential fraud and sexually harassing passport couriers. The court also
concluded that Churchwell, in his managerial position at the HPA, created a
substantial risk of harm to governmental functions and to the integrity of the
passport system by ignoring the proper procedures for issuing passports. The
district court deemed the sentence appropriate in light of Churchwell’s overt
and egregious misconduct and abuse of trust in his administrative position at
the HPA.
Similarly, while Churchwell argues that undermining the integrity of
the passport system was inherent in the offense itself and thus did not warrant
a departure under section 5K2.7 of the United States Sentencing Guidelines, 15
the district court specified that the circumstances of the offense and
Churchwell’s characteristics warranted a variance under section 3553(a) or,
15Churchwell contends that the reasons given by the district court are not adequately
compelling to warrant the upward departure.
20
Case: 14-20351 Document: 00513277044 Page: 21 Date Filed: 11/18/2015
No. 14-20351
alternatively, a departure under section 5K2.7. The district court explained
that the imposed sentence was chiefly a variance under the section 3553(a)
factors. As the district court pointed out, Churchwell’s misconduct called into
question the overall integrity of the passport system and the likelihood that
applicants would receive fair and impartial treatment. Churchwell has not
established a clear or obvious procedural error. Because the district court’s
sentencing decision is procedurally sound, we must now consider the
substantive reasonableness of the sentence imposed.
C. Substantive Reasonableness
Churchwell also contends that his 42-month sentence is substantively
unreasonable because it is much higher than the advisory Guidelines range. 16
When conducting a review of substantive reasonableness, we consider the
totality of the circumstances, including the extent of any variance from the
Guidelines range. See Gall, 552 U.S. at 51. If the sentence is outside the
Guidelines range, we may not apply a presumption of unreasonableness. Id.
We may consider the extent of the deviation but must give due deference to the
district court’s decision that the section 3553(a) factors, as a whole, justify the
extent of the variance. Id. An above-Guidelines sentence unreasonably fails
to reflect the statutory sentencing factors set forth in section 3553(a) only
where it “(1) does not account for a factor that should have received significant
weight, (2) gives significant weight to an irrelevant or improper factor, or (3)
represents a clear error of judgment in balancing the sentencing factors.”
16 Churchwell maintains that his actions should not be considered an abuse of trust
because his conduct with the female couriers, while not to be encouraged, did not come to
light until the investigation began, was mainly consensual and did not warrant such a high
sentence. Churchwell also asserts that the “insignificant” disruption to the passport system
resulting from his conduct was inherent in the offense and did not warrant a variance. He
also indicates that his sentence was much higher than those received by his codefendants,
Russell and Brown.
21
Case: 14-20351 Document: 00513277044 Page: 22 Date Filed: 11/18/2015
No. 14-20351
Smith, 440 F.3d at 708. “The fact that the appellate court might reasonably
have concluded that a different sentence was appropriate is insufficient to
justify reversal of the district court.” Gall, 552 U.S. at 51.
First, the record demonstrates that the district court made an
individualized assessment of all relevant factors to determine whether a
sentence within the Guidelines range was sufficient but not greater than
necessary to achieve the goals of section 3553(a). The court pointed to
Churchwell’s egregious conduct in overruling subordinates who found evidence
of fraud and in demanding sexual favors from couriers. The court also stressed
the value of a United States passport and the harm caused by Churchwell’s
failure to abide by the policies despite his position of authority at the HPA.
Second, Churchwell’s arguments, see supra Part VI.A–C, do not show
that the district court gave weight to improper factors. The court noted that it
based its sentence on (1) the nature and circumstances of the offense and the
history and characteristics of the defendant pursuant to 18 U.S.C. § 3553(a)(1);
and (2) the seriousness of the offense in order to promote respect for the law
and provide just punishment for the offense. See 18 U.S.C. § 3553(a)(2)(A);
Smith, 440 F.3d at 708. Churchwell maintains that the variance was not
justified on the basis of an abuse of trust because that factor was taken into
account by the Guidelines and because his sexual relations with the couriers
was either consensual or unreported until the investigation began. However,
the district court specifically delineated between the abuse of trust arising
from Churchwell’s criminal conduct, which justified the two-level sentencing
enhancement, and his overall threatening and intimidating demeanor in
carrying out his duties at the HPA, which warranted the variance.
Churchwell’s argument that two of the couriers engaged in consensual sexual
conduct is also disingenuous: one of the couriers stated that Churchwell made
numerous sexual advances toward her and required her to engage in sexual
22
Case: 14-20351 Document: 00513277044 Page: 23 Date Filed: 11/18/2015
No. 14-20351
contact with him when she asked for a favor on a client’s passport. Although
the courier did not report him, her interview indicated that she was afraid of
retaliation from Churchwell, who could ensure that she was fired, and that she
feared for her safety. Churchwell admits that the courier rejected his
advances. Churchwell has not shown that the district court’s stated reliance
on his abuse of trust as a basis for a variance was improper.
Churchwell also asserts that the court’s sentence is improper because
the disruption to passport services was “insignificant.” This is not supported
by the record. A letter from the United States Department of State reflected
that as a result of Churchwell’s actions, an audit of passport applications
processed at the HPA required 11 employees to review over 1,400 applications
for evidence of malfeasance, which resulted in substantial cost to the passport
agency. The Government was required to institute additional procedures and
training sessions to attempt to resolve future misconduct. An Assistant
Secretary at the State Department also noted that Churchwell had involved
numerous subordinate employees in his fraudulent conduct, which resulted in
emotional distress and fears of reprisals. The aforementioned repercussions of
Churchwell’s conduct were not at all insignificant and were properly
considered by the district court.
Churchwell implies that his sentence should have been closer to those
received by his codefendants. See 18 U.S.C. § 3553(a)(6); United States v.
Candia, 454 F.3d 468, 476 (5th Cir. 2006); Smith, 440 F.3d at 709. However,
he has not shown that his codefendants, who were not employees of the HPA
and who were not directly responsible for ensuring the issuance of the
improper passports, were similarly situated to him.
Finally, Churchwell has not shown that there was a clear error in
judgment in balancing the sentencing factors. The district court properly
calculated the applicable Guidelines range, considered testimony and
23
Case: 14-20351 Document: 00513277044 Page: 24 Date Filed: 11/18/2015
No. 14-20351
supplemental materials provided by each party, and carefully articulated
permissible reasons for its variance. We therefore accord the sentencing
judge’s decision great deference in this determination, and affirm the sentence.
VII. Conclusion
For the aforementioned reasons, we AFFIRM the district court’s decision
in full.
24