Appeal from a judgment of conviction and sentence entered in the United States District Court for the Southern District of New York (Duffy, J.), convicting defendant-appellant, following a jury trial, of (1) reentering the United States after deportation following a conviction for an aggravated felony; (2) making a false claim of United States citizenship; and (3) knowingly engaging in the use of a means of identification of another person in relation to a false claim of United States citizenship. On appeal, defendant-appellant challenges the jury instruction as to the elements of (3) (aggravated identity theft) and claims denial of his right to be present at trial.
Affirmed in part and vacated in part.
The opinion of the court was delivered by: Miner, Circuit Judge
Before: MINER and CABRANES, Circuit Judges, and BERMAN, District Judge.*fn1
Defendant-appellant Juan Tureseo ("Tureseo") appeals from a June 28, 2007 judgment of conviction and sentence entered in the United States District Court for the Southern District of New York (Duffy, J.). Tureseo was convicted, following a three-day jury trial, of (1) reentering the United States after deportation following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2) ("Count One"); (2) making a false claim of United States citizenship, in violation of 18 U.S.C. § 911 ("Count Two"); and (3) knowingly engaging in the transfer, possession, or use, without lawful authority, of a means of identification of another person during and in relation to the commission of falsely claiming United States citizenship as charged in Count Two, in violation of 18 U.S.C. § 1028A ("Count Three"). The District Court sentenced Tureseo to a term of imprisonment of 125 months on Counts One and Two, and a consecutive term of imprisonment of 24 months on Count Three, to be followed by a term of 1 year of supervised release. A mandatory special assessment of $300 was also imposed. On appeal, Tureseo challenges the jury instruction as to the elements of Count Three and claims denial of his right to be present at trial. Applying, inter alia, the Supreme Court's decision in Flores-Figueroa v. United States, - S.Ct. -, 2009 WL 1174852 (May 4, 2009), we affirm in part and vacate in part the District Court's judgment of conviction and sentence. We accordingly remand to the District Court for further proceedings.
A. The Deportation of Juan Tureseo
At an immigration hearing held on November 17, 1997, Tureseo admitted that he was not a United States citizen, that he was a native and citizen of El Salvador, and that he was in the United States without permission. At the conclusion of the proceedings, the immigration judge found Tureseo present in the United States without having been properly admitted or paroled, in violation of 8 U.S.C. § 1182(a)(6)(A)(i), and ordered him removed to El Salvador. Prior to his removal, Tureseo had been convicted in state court of attempted assault in the second degree with intent to cause physical injury with a weapon. In November 1997, an official of the former Immigration and Naturalization Service, now the Department of Homeland Security ("DHS"), witnessed the departure of Tureseo, by then also known as Jose Victorino Fuentes, from the United States at John F. Kennedy Airport in Jamaica, New York, on "Lasca" flight 681, pursuant to the removal order. Before being placed on that flight, Tureseo was photographed and fingerprinted by immigration authorities for purposes of completing a Warrant of Deportation.
B. Defendant Tureseo's Arrest and Trial
In May 2006, Immigration and Customs Enforcement ("ICE") was notified by the New York City Police Department that a previously deported alien - later identified as defendant Tureseo - had been arrested on or about May 3, 2006. After reviewing the documents contained in Tureseo's immigration file, ICE agents attempted to locate him. They eventually found Tureseo at an address in Brooklyn, New York. When questioned by the agents at that apartment, however, Tureseo first claimed that his name was "Danny Ortega." After being told that "it's a crime to lie to federal agents," however, he conceded that he was, in fact, Juan Tureseo. Tureseo then admitted that he was born in El Salvador, that he had been deported from the United States before, that he did not have permission to re-enter the United States, and that he knew it was illegal for him to re-enter the United States. The agents arrested Tureseo, and upon a search, the agents found on him a New York State Learner's Permit in the name of "Danny Ortega," as well as a New York State Benefit Identification Card in the name of "Danny Ortega."
Following his arrest, a grand jury returned an Indictment on August 10, 2006, charging Tureseo with illegal re-entry into the United States after removal from the United States subsequent to a conviction for the commission of an aggravated felony. Philip Weinstein of the Federal Defenders of New York was initially appointed to represent Tureseo. Tureseo told Weinstein that he was, in fact, Danny Ortega, a United States citizen. Tureseo asked Weinstein to contact his wife, who would supply proof of his citizenship. Weinstein did so and received a copy of a birth certificate indicating the birth of "Danny Ortega" in Puerto Rico. Weinstein then forwarded the birth certificate to the United States Attorney's Office for the Southern District of New York to obtain a dismissal of the illegal re-entry charge.*fn2
On December 4, 2006, the grand jury returned a Superseding Indictment, charging Tureseo with illegal re-entry, false claim of United States citizenship, and the knowing unauthorized use of a means of identification of another person during and in relation to his false claim of United States citizenship.
At trial, the government called as a witness a person bearing the name of Danny Ortega. This person identified the information contained in the birth certificate produced by Tureseo as his own. He testified that the certificate listed his name, birthplace, mother's name, mother's birthplace, father's name, and father's birthplace.The government also called Margarita Ortiz, who was Ortega's mother.Ortiz testified that the contents of the birth certificate proffered by Tureseo pertained to her son, Danny Ortega. She confirmed ...