11-3918-cr
United States v. Joselito Vazquez Gomez

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after
January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this
Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party
must cite either the Federal Appendix or an electronic database (with the notation “summary order”).
A party citing a summary order must serve a copy of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel
Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 30th day
of August, two thousand twelve.

PRESENT:

          JOSÉ A. CABRANES,
          PETER W. HALL,
          RAYMOND J. LOHIER, JR.,

                               Circuit Judges.
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UNITED STATES OF AMERICA,

                               Appellee,

          v.                                                                               No. 11-3918-cr

JOSELITO VAZQUEZ GOMEZ,

                               Defendant-Appellant.

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FOR DEFENDANT-APPELLANT:                                                                   Mary Elizabeth Mulligan,
                                                                                           Jessica A. Murzyn, Friedman
                                                                                           Kaplan Seiler & Adelman
                                                                                           LLP, New York, NY.




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FOR APPELLEE:                                                             Jonathan Cohen, Brent S.
                                                                          Wible, Assistant United States
                                                                          Attorneys, for Preet Bharara,
                                                                          United States Attorney for the
                                                                          Southern District of New
                                                                          York, New York, NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Alvin K. Hellerstein, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Defendant-appellant Joselito Vazquez Gomez (“Vazquez Gomez”) appeals from a judgment
of conviction entered on September 22, 2011, on four counts relating to his use of a false identity.
In particular, a jury found Vazquez Gomez guilty of (1) making false statements on a passport
application on September 15, 2008, in violation of 18 U.S.C. § 1542; (2) using another person’s
Social Security number to apply for a passport on September 15, 2008, in violation of 42 U.S.C.
§ 408(a)(7)(B); (3) using another person’s Social Security number to apply for a New York learner’s
permit on October 16, 2007, in violation of 42 U.S.C. § 408(a)(7)(B); and (4) committing aggravated
identity theft in connection with the first and second counts in violation of 18 U.S.C. § 1028A. The
District Court sentenced Vazquez Gomez to 45 months’ imprisonment and 3 years of supervised
release. We assume the parties’ familiarity with the facts and procedural history of this case.

         On appeal Vazquez Gomez argues that the District Court erred (1) by refusing to accept his
guilty plea, thus leading to a greater sentence; (2) by admitting his prior statements absent proof that
he voluntarily waived his Miranda rights; and (3) by denying his motion to vacate his conviction and
grant a new trial. Finally, Vazquez Gomez claims numerous purported errors, including several
evidentiary rulings, the government’s failure to fully disclose his prior oral statement, and the
insufficiency of evidence showing that he knew he was using identifying information belonging to
another person. For the reasons stated below, we reject each of these arguments and affirm
Vazquez Gomez’s conviction.

                                             DISCUSSION

         We review a District Court’s rejection of a guilty plea for an abuse of discretion, see Santobello
v. New York, 404 U.S. 257, 262 (1971), keeping in mind that “[a] district court by definition abuses its
discretion when it makes an error of law,” Koon v. United States, 518 U.S. 81, 100 (1996). “We review
a district court’s determination regarding the constitutionality of a Miranda waiver de novo and a
district court’s underlying factual findings for clear error.” United States v. Carter, 489 F.3d 528, 534
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(2d Cir. 2007). We review a District Court’s evidentiary decisions, including its admission of
defendant statements absent prior governmental disclosure, for an abuse of discretion. United States
v. Thai, 29 F.3d 785, 804 (2d Cir. 1994). Finally, we review a challenge to the sufficiency of the
evidence de novo, and we will “affirm if the evidence, when viewed in its totality and in the light most
favorable to the government, would permit any rational jury to find the essential elements of the
crime beyond a reasonable doubt.” United States v. Geibel, 369 F.3d 682, 689 (2d Cir. 2004).

         Vazquez Gomez first argues that the District Court erred by not allowing him to plead
guilty. He cites cases standing for the proposition that (in his words) “[a] district court may not
reject a guilty plea because the defendant refuses to admit facts extraneous to the elements required
to prove the offense charged.” Appellant’s Br. 14 (citing United States v. Rea-Beltran, 457 F.3d 695,
701-02 (7th Cir. 2006); United States v. Washington, 969 F.2d 1073, 1077-78 (D.C. Cir. 1992)). These
cases are beside the point. Whatever limits might apply to a District Court’s preallocution search for
substantive evidence, the court may surely (for procedural reasons) try to determine the actual name
of the defendant. And that is exactly what happened here. The court stated: “I’m going to want to
know what his name was at birth. . . . I’m not going to just simply take a plea that satisfies perhaps
the tactical requirements of passport fraud without getting the essential information of the defendant
before me.” The judge was acting well within his discretion to delay acceptance of a plea of guilty
until he established the defendant’s identity.

        Vazquez Gomez next argues that the District Court clearly erred in finding by a
preponderance of the evidence that he voluntarily waived his Miranda rights prior to giving oral and
written statements. We disagree. Federal agents testified at an evidentiary hearing that Vazquez
Gomez understood English, consented to have his Miranda rights read in English, and stated in
English that he understood each of the Miranda warnings. The agents also testified that they asked
Vazquez Gomez whether he wanted a lawyer and he responded that he did not. The government
also presented recordings of telephone calls that Vazquez Gomez made from jail in which he
conversed in English. After considering all the evidence, the District Court denied the defendant’s
motion to suppress, finding “no doubt” that he “had a basic understanding of the questions that
make up the Miranda warnings.” The District Court found the agents’ testimony to be credible, and
the court also pointed to the recorded telephone calls as demonstrating an understanding of English
sufficient to comprehend the Miranda warnings. Based on this evidence, the court concluded that “it
was the defendant’s choice to give the statement he did.” After reviewing the record, we are not left
with “the definite and firm conviction that a mistake has been committed,” United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948), and therefore we will not disturb the District Court’s
assessment of the agents’ credibility and its finding that Vazquez Gomez voluntarily waived his
Miranda rights.



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         Finally, Vazquez Gomez argues that the District Court erred by denying his motion to vacate
his conviction and order a new trial. In that motion Vazquez Gomez argued (1) that the
government violated Rule 16 of the Federal Rules of Criminal Procedure by failing to fully disclose
his oral confession, (2) that the government had failed to prove beyond a reasonable doubt that he
knew that the means of identification he used belonged to a real person, and (3) that the District
Court had committed other evidentiary errors. We reject these arguments for substantially the
reasons stated in the District Court’s order dated March 4, 2011 (and filed March 7, 2011) denying
the defendant’s motion. Most importantly, the government did disclose the most critical part of
Vazquez Gomez’s prior oral statement when it turned over Agent Payne’s interview notes stating, in
relevant part: “1999 - paid $500 - knew it was a real number.” Given Vazquez Gomez’s written
statement, which identified his purchase of at least some of the false identification documents in
1999 for $500, Agent Payne’s notes alerted the defense to the substance of Vazquez Gomez’s
admission that he knew he was using the means of identification of a real person.

                                         CONCLUSION

         We have considered all of defendant’s arguments on appeal and find them to be without
merit. Accordingly, for the reasons stated above, we AFFIRM the judgment of the District Court
in its entirety.

                                              FOR THE COURT,
                                              Catherine O’Hagan Wolfe, Clerk of Court




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