Issuance of United States Passport Is Not Conclusive Proof Of Citizenship/ No Brady Violation Where Defense Declines Continuance/ No Judicial Estoppel Where Inconsistencies Explained

United States v. Moreno , No. 12-1460 (3d Cir. 7/3/13) concerned a conviction for  false representation of United States citizenship. Ms. Moreno, born in Mexico in 1971, was adopted by  U.S. citizen nine years later. In 1981, New Mexico issued a birth certificate stating that her place of birth was Mexico.  Her conviction for possession with intent to distribute a controlled substance and false imprisonment, led to deportation proceedings, and after the Fifth Circuit affirmed a Board of Immigration Appeals determination that she was not a citizen, she was deported, in 2006, to Mexico.

In 2007, without permission, she returned to the United States and applied for a passport, listing New Mexico as her place of birth. The passport was issued, but seized by the Border Patrol in Texas. The passport was never revoked though. She was detained by ICE, but released pending further investigation.  In 2011, after she asked, DHS told her she was not a citizen.  Later that year, she traveled to the United States Virgin Islands and in response to a question about her citizenship, she gave an immigration officer her New Mexico driver’s license.  She also stated, in response to questions, that she was a U.S. citizen, gave them a certificate of live birth from New Mexico, and a copy of her U.S, passport.  Following inquiries to DHS, Ms. Moreno was arrested for falsely representing herself to be a U.S. citizen in violation of 18 U.S.C. §911. Following a jury trial, she was convicted.

On appeal, Ms. Moreno raised five issues. The first was that the District Court erred in denying her motion for acquittal because the issuance of a passport constituted conclusive proof of citizenship. 22 U.S.C. §2705   provides that a passport is proof of citizenship. However, §2705 provides that the passport is proof of citizenship only if it is issued to a citizen of the United States. Ms. Moreno was never a citizen, so the passport was not proof of citizenship. (A passport can be issued not only to a United States citizen, but to a United States “national,” which includes persons, though not citizens, owe permanent allegiance to the United States. 8 U.S.C. §1101(22) Ms. Moreno did not argue she was a United States national.). The Court noted that some other courts have held that a passport is conclusive proof of citizenship, but it expressly declined to adopt that interpretation.

The next issue Ms Moreno raised was whether the District Court erred by not instructing the jury that the issuance of the passport was conclusive proof of United States citizenship. Given its first ruling, the Court decided that failure to give that instruction was not error.

Ms. Moreno next argued that the government’s disclosure, the day before trial , of documents showing a DHS investigation concluding the passport was valid but calling for further investigation into her citizenship and that deportation should be stayed until her passport was revoked. She claimed this was a Brady violation, but she forewent an offer of a continuance, and an opportunity to cross-examine a government witness about the documents. Because she had sufficient opportunity to use the documents she did not suffer prejudice from the untimely disclosure.

Ms. Moreno’s argument that the District Court unfairly prevented her from introducing and FOIA documents and an FBI report listing her citizenship as “United States.” Because the jury had already heard evidence about government decisions listing her as  United States citizen, the documents were cumulative and would have caused juror confusion. The Court also rejected her argument that the government was judicially estopped from denying that she was a citizen because the passport had not been revoked. Passports issued in error are not automatically revoked, so the government had not asserted inconsistent positions.

Judge Smith dissented, posting that under  22 U.S.C. §2705, the passport should have been treated as conclusive proof of citizenship.