United States v. Jorge Sosa

FILED
NOT FOR PUBLICATION APR 28 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50072

Plaintiff - Appellee, DC No. 5:10 cr-0049 VAP

v.
MEMORANDUM*
JORGE SOSA, AKA Jorge Vinicio Sosa
Orantes, AKA Sosa Orantes, AKA Jorge
Sosa, Jr., AKA Jorge Vinicio,

Defendant - Appellant.

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding

Argued and Submitted April 7, 2015
Pasadena, California

Before: D.W. NELSON, TASHIMA, and CLIFTON, Circuit Judges.

Jorge Sosa appeals his convictions under 18 U.S.C. § 1015(a) and § 1425(a)

for knowingly providing false information in a naturalization proceeding and

knowingly procuring naturalization in a manner contrary to law. Sosa failed to

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
disclose on his naturalization application his past membership in the Guatemalan

Army and his participation in serious crimes during Guatemala’s long-running

internal conflict. In 1982, Sosa participated in the Dos Erres massacre, during

which Guatemalan soldiers killed approximately 160 civilians. We conclude that

Sosa’s convictions and the sentence under § 1425(a) were proper. We remand for

the limited purpose of correcting a discrepancy in Sosa’s concurrent sentence

under § 1015(a).

1. Sosa first asserts that the naturalization application questions that

prompted his provision of false information were fundamentally ambiguous,

rendering his convictions invalid. The application asked Sosa “Have you ever

committed a crime or offense for which you were not arrested?” Sosa answered

“No.” As applied to Sosa in this context, the question was not fundamentally

ambiguous. Sosa was involved in the killing of a large number of civilians,

quintessentially criminal actions that obviously fell within the heartland of the

question’s ambit. Cf. United States v. Culliton, 328 F.3d 1074, 1079-80 (9th Cir.

2003) (per curiam). Because the jury found in a special verdict that Sosa’s answer

to this question constituted a violation, we need not, and do not, consider whether

the other application question that Sosa also challenges was fundamentally

2
ambiguous. See Zant v. Stephens, 462 U.S. 862, 897-98 (1983) (Rehnquist, J.,

concurring).

2. Next, Sosa contends that the district court gave §§ 1015(a) and

1425(a) impermissible extraterritorial effect by applying them to his actions in

Guatemala. Here, however, the conduct for which Sosa was convicted –

providing false answers on his naturalization application – occurred entirely within

the United States. We thus reject this challenge.

3. Sosa next contends that the evidence supporting his convictions is

legally insufficient. When reviewing for sufficiency, we “examine the evidence in

the light most favorable to the government and determine whether ‘any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” United States v. George, 420 F.3d 991, 999 (9th Cir. 2005)

(quoting Jackson v. Virginia, 433 U.S. 307, 319 (1979)). According to Sosa, the

evidence at trial was insufficient to establish that his false statements were made

knowingly. However, a rational juror could have inferred from the completed

3
application bearing Sosa’s signature that Sosa’s omission of his past crimes was

deliberate. Cf. 8 C.F.R. §§ 208.3(c)(2), 1208.3(c)(2).1

4. Sosa raises an evidentiary challenge to the district court’s exclusion of

the cover page of a government witness’ immigration record, or “A-File.” Sosa

sought to introduce the cover page because a handwritten note inscribed on the

cover page states that in February 2009 Guatemala lifted an amnesty for soldiers

involved in war crimes at Dos Erres – a fact that might suggest Sosa did not regard

his actions at Dos Erres as crimes when he omitted them from the application. The

district court excluded the cover page as inadmissible hearsay, but Sosa contends

that this ruling was an abuse of discretion because the cover page falls into two

hearsay exceptions. Neither of the two exceptions to which Sosa points is availing.

Although A-Files generally are admissible under Fed. R. Evid. 803(8)’s public

records exception, the handwritten note at issue here falls outside the bounds of

that exception because, unlike ordinary public records, the note’s reliability is

questionable. See United States v. Orellana-Blanco, 294 F.3d 1143, 1150 (9th Cir.

1
Sosa also challenges his conviction because question (B)(8)(a) of Part
10, which asked if Sosa had ever belonged to an organization or group, did not
specifically mention the military. Because, as we point out in Paragraph 1, above,
we do not rely on Sosa’s answer to question (B)(8)(a) to sustain Sosa’s
convictions, we need not decide whether the jury rationally could have inferred
that Sosa understood he was required to disclose foreign military service, i.e.,
whether there is sufficient evidence to sustain the convictions.
4
2002) (noting that the public records exception “developed to admit the sundry

sorts of public documents for which no serious controversy ordinarily arises about

their truth”). We do not reach the contention that the cover page is admissible

under Fed. R. Evid. 801(d)(2) as an admission of a party opponent because it is not

known who made the notation or under what circumstances. It was, therefore, not

an abuse of discretion for the district court to conclude that the A-File’s cover page

was inadmissible both because of its lack of reliability and because it should not be

treated as an admission of a party opponent.

5. Sosa next argues that the district court improperly took judicial notice

of the convictions in Guatemalan court of other soldiers involved at Dos Erres.

The convictions were relevant under Fed. R. Evid. 401 because they helped show

that the soldiers’ actions at Dos Erres were criminal, which bears on whether

Sosa’s failure to disclose those actions on his application actually amounted to

false information. Although the convictions may have had some prejudicial effect,

the district court adequately limited that effect by providing a limiting instruction.

Cf. United States v. Santa-Cruz, 48 F.3d 1118, 1119-20 (9th Cir. 1995). Our rule

prohibiting the admission of the criminal convictions of co-defendants does not

apply here because Sosa was tried for immigration violations, not for his actions at

Dos Erres. No abuse of discretion occurred.

5
6. Sosa contends that the prosecution committed misconduct by

presenting during closing argument the theory that the soldiers at Dos Erres killed

civilians in order to cover up their rape of the village’s women. Because Sosa did

not raise a misconduct claim at trial, our review is for plain error. United States v.

Wright, 625 F.3d 583, 610 (9th Cir. 2010). Here, the district court did not plainly

err because evidence at trial suggested that the Dos Erres soldiers’ orders changed

around the time rapes occurred. The government thus could have believed in good

faith that the cover up theory was true.

7. Sosa asserts that his sentence of 120 months’ imprisonment was

substantively unreasonable, given that his guidelines recommended sentence was

only six to twelve months. The district court did not abuse its discretion in

imposing this sentence. In a sentencing proceeding that covers many, many pages

of the Reporter’s Transcript, the district court fairly and fully covered all of the

sentencing factors listed in 18 U.S.C. § 3553(a). The crimes that Sosa lied about

on his naturalization application were exceptionally heinous, making the

circumstances of his offense distinct from most § 1015(a) and § 1425(a)

prosecutions. Moreover, our sister circuits have approved the imposition of

identical sentences for defendants convicted of lying about similar crimes. See

United States v. Munyenyezi, No. 13-1950, 2015 WL 1323336, *7-*9 (1st Cir.

6
Mar. 25, 2015); United States v. Jordan, 432 F. App’x 950, 951 (11th Cir. 2011)

(per curiam).

8. Last, we note an error in Sosa’s sentencing which the government

agrees should be corrected. The district court sentenced Sosa to 120 months’

imprisonment for his violation of § 1015(a), and 120 months’ imprisonment for

violating § 1425(a), to be served concurrently. Although the maximum sentence

for violating § 1425(a) is 120 months, the maximum sentence for violating §

1015(a) is only 60 months. We therefore remand this case to the district court so

that it can correct Sosa’s sentence under § 1015(a) to reflect that the statutory

maximum for this offense is 60 months, not 120 months.

• ! •

For the foregoing reasons, we reject each of Sosa’s arguments and affirm his

convictions. We also conclude that the district court did not abuse its discretion in

sentencing Sosa to 120 months’ imprisonment under § 1425(a). We remand to the

district court with directions to amend Sosa’s sentence to reflect that his concurrent

sentence under § 1015(a) is 60 months, not 120 months.

AFFIRMED and REMANDED.