          United States Court of Appeals
                     For the First Circuit

No. 14-1616

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                 SAMUEL STALIN LEBREAULT-FELIZ,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Denise J. Casper, U.S. District Judge]


                             Before

                       Howard, Chief Judge,
              Torruella and Barron, Circuit Judges.


     Larry J. Ritchie was on brief for appellant.
     Mark T. Quinlivan, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief for
appellee.


                        November 25, 2015
           BARRON, Circuit Judge.          Samuel Stalin Lebreault Feliz

("Lebreault") appeals his convictions on two counts of passport

fraud, one count of false representation to the Social Security

Administration, and one count of theft of public money.                    He

contends   that   the   District   Court    erred   in   barring   him   from

presenting the defenses of duress and necessity as to the first

count of passport fraud, and that this error also prejudiced his

ability to defend against the other counts against him.                    In

addition, Lebreault contends that the District Court erred in

denying his motion for acquittal as to the second count of passport

fraud.   We affirm the convictions.

                                    I.

           On October 15, 2014, Lebreault was convicted of two

counts of passport fraud pursuant to 18 U.S.C. § 1542, one count

of false representation to the Social Security Administration

pursuant to 42 U.S.C. § 408(a)(6), and one count of theft of public

money pursuant to 18 U.S.C. § 641.         On May 29, 2014, Lebreault was

sentenced to serve thirty-three months in prison with three years

of supervised release.     He was also ordered to pay restitution for

theft of public funds.

           The passport fraud convictions arise from Lebreault's

efforts to secure a passport first for himself and then, years

later, for his daughter.      These convictions relate to his use of

false identities in his applications for each passport.            The other

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convictions arise from Lebreault's use of a false identity in

connection with his efforts to work in the United States and to

secure government benefits for himself and his children.

             With respect to the first count of passport fraud, on

November 18, 2003, Lebreault submitted a passport application to

officials at the United States embassy in Caracas, Venezuela using

a   false    identity,   "Juan   Antonio    Castro    Pizarro"    ("Castro

identity"). On the basis of this application, Lebreault was issued

a temporary, limited passport to return to the United States. Upon

arrival in Miami, Lebreault admitted to United States immigration

officials in a sworn statement that he had used a false identity

to obtain the passport and that he was actually "Antonio Jose

Rodríguez Rodríguez" ("Rodríguez identity") from Venezuela (which,

it turned out, was also a false identity).

             With respect to the second count of passport fraud, on

June 14, 2007, Lebreault applied from the United States for a

passport for his then-seven-year-old daughter Adriana Lebreault,

a United States citizen.     Federal regulations require parents of

a minor to execute the passport application on the minor's behalf

and to provide certain evidence of parentage, which includes

identifying information.     See 22 C.F.R. § 51.28(a)(2).        Lebreault

used   the   false   Rodríguez   identity   when     executing   Adriana's

passport application.


                                    - 2 -
             With respect to the other convictions, on June 1, 2011,

Lebreault    submitted    an   application   for   a   replacement   social

security card using the false Rodríguez identity.1           In addition,

Lebreault used the false Rodríguez identity in signing a number of

forms under penalty of perjury between 2006 and 2012 to establish

and maintain eligibility for the Department of Housing and Urban

Development Section 8 program, which provides housing and utility

subsidies.     Lebreault received $121,077 worth of benefits under

this program between 2007 and 2013 for himself and his children.

             At trial, Lebreault sought to raise duress and necessity

defenses on the first count of passport fraud.             His proffer in

support of those defenses describes a purported incident that he

contends occurred in the Dominican Republic well before he first

applied for a passport in Venezuela so that he could travel from

Venezuela to the United States.       The District Court, assuming the

truth of the proffer, found that the proffered facts did not

suffice to support the requested defenses given the absence of

imminent harm and the availability of reasonable alternatives to

violating the law.       For those reasons, the District Court barred

Lebreault from presenting the duress and necessity defenses and

denied the jury instruction that Lebreault requested regarding


     1  On September 17, 2010, Lebreault obtained special
immigration status as an abused spouse of a United States citizen.
That status provided him with a basis to work legally in the United
States and to receive public benefits.
                                  - 3 -
those defenses.     Lebreault then asked for reconsideration on the

basis of a supplemented proffer, but the District Court affirmed

its prior ruling for substantially the same reasons it had given

the first time.

           Lebreault moved for acquittal on the second count of

passport fraud.     He argued that he could not be found guilty of

making   false    statements   "contrary    to   the   laws   [and   rules]

regulating the issuance of passports" -- as the relevant statute

requires, see 18 U.S.C. § 1542 -- because he was applying for a

passport for a United States citizen, his minor daughter, who was

entitled to a passport.        The District Court denied Lebreault's

motion for judgment of acquittal on this count.

                                   II.

           Duress is an affirmative defense that requires proof

that "the defendant committed a crime as a result of (1) an

immediate threat of serious bodily injury or death (2) that the

defendant reasonably believed was true, (3) without a reasonable

opportunity to escape or frustrate the threat."         United States v.

Diaz-Castro, 752 F.3d 101, 108 (1st Cir. 2014).               The closely

related affirmative defense of necessity requires proof that the

defendant "(1) was faced with a choice of evils and chose the

lesser evil, (2) acted to prevent imminent harm, (3) reasonably

anticipated a direct causal relationship between his acts and the

harm to be averted, and (4) had no legal alternative but to violate
                                    - 4 -
the law."     United States v. Maxwell, 254 F.3d 21, 27 (1st Cir.

2001).

            Lebreault    argues    that     he    was    wrongly    barred   from

presenting    evidence    of    duress    and    necessity   to     the   jury   in

defending    against    the    first    count    of   passport     fraud.    "But

precisely because a defendant is entitled to have [his evidence

be] . . . judged by the jury, it is essential that the testimony

given or proffered meet a minimum standard as to each element of

the defense so that, if a jury finds it to be true, it would

support an affirmative defense . . . ."               United States v. Bailey,

444 U.S. 394, 415 (1980).              As a result, "when the proffer in

support of an anticipated affirmative defense is insufficient as

a matter of law to create a triable issue, a district court may

preclude the presentation of that defense entirely."                Maxwell, 254

F.3d at 26.     And when a district court does so, we review the

decision de novo.      See id.

            Lebreault proffered the following facts in support of

his right to present these defenses.             He asserted that on May 8,

2003, he and a friend, Cesar, were involved in an altercation in

the Dominican Republic with robbers that culminated in Cesar's

death.   On the advice of a state senator, the proffer continued,

Lebreault spoke with a district attorney in the country, who

confirmed Cesar's death and told Lebreault that Cesar's family

believed he was responsible for the murder.                  Lebreault further
                                         - 5 -
proffered that Cesar's uncle was a general in the Dominican

Republic police.

              Lebreault contended in his proffer that he then went

into hiding in another town in the Dominican Republic for three

months and was told by the district attorney with whom he had

previously spoken about the incident that it was not safe for him

to return to his hometown in that country.                Lebreault further

proffered that he subsequently fled to Venezuela and that, while

he was in that country, his father was charged with Cesar's murder

and tortured while in custody and that his brother died under

suspicious circumstances.        Lebreault also proffered that all the

people involved in the incident that led to Cesar's death were

arrested and died in jail.

            On the basis of these events, Lebreault contends that he

eventually decided to use the false Castro identity to obtain a

passport so that he could travel from Venezuela to the United

States. And thus he argues that duress and necessity are available

as affirmative defenses.

            Even accepting these proffered facts, however, we do not

see   how   they   show   that   the   District   Court   erred   in   barring

Lebreault from presenting duress and necessity defenses.                   By

Lebreault's own account, there was a six-month lapse in time

between the incident in the Dominican Republic and his application

for a United States passport, which occurred while Lebreault was
                                        - 6 -
in an entirely different country and after he had been in that

country for a full three months.        Lebreault has thus failed to

come close to demonstrating that the District Court erred in

finding that he made an insufficient showing of imminent harm or

lack of reasonable alternatives to violating the law.       See, e.g.,

United States v. Bello, 194 F.3d 18, 26-27 (1st Cir. 1999) (finding

no imminence where there was a cooling-off period of eighteen hours

after threat of harm); United States v. Arthurs, 73 F.3d 444, 448-

49 (1st Cir. 1996) (finding that defendant could have discarded

drugs or sought help in the minutes between being threatened in a

cruise ship bathroom and then exiting that ship with contraband).

          Even the out-of-circuit precedent on which Lebreault

principally relies, United States v. Contento-Pachon, 723 F.2d 691

(9th Cir. 1984), is of no help to him.     That case involves readily

distinguishable facts regarding the requirement of imminence, see

id. at 693-94 (finding that threat of harm was still imminent where

lapse of time between initial threat and crime was a matter of

days and where defendant was told he would be under constant

surveillance), and that case explains that the lack-of-reasonable-

alternatives requirement generally cannot be satisfied once the

"defendant has reached a position where he can safely turn himself

in to [or call on] the authorities", see id. at 695.

           Accordingly,   Lebreault's    attempt   to   challenge   this

conviction on the ground that he was wrongly barred from presenting
                                 - 7 -
duress and necessity defenses is without merit, and thus so, too,

is his contention that the jury should have been instructed on

those defenses.       Lebreault has also waived any argument that his

inability to present the requested defenses prejudiced his ability

to defend against the other counts against him.          He conceded below

that he could not "in good faith" present the defenses with respect

to those other counts.       And he does not contend that he sought to

introduce evidence pertaining to the facts in the proffer for any

other purpose.      Having waived this issue below, Lebreault may not

resurrect it on appeal.       See United States v. Gaffney-Kessell, 772

F.3d 97, 100 (1st Cir. 2014).

                                     III.

               Lebreault next argues that the District Court erred in

denying his motion for judgment of acquittal on the second count

of passport fraud.        We review the denial of a motion for judgment

of acquittal de novo, construing the evidence in a "prosecution-

friendly light."       United States v. George, 761 F.3d 42, 48 (1st

Cir.       2014).   And    after   performing   that   review,   we   reject

Lebreault's challenge to his conviction under the first clause of

18 U.S.C. § 1542.2


       2 The statute provides in relevant part:
       "Whoever willfully and knowingly makes 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, either for his own use or the use of another, contrary
       to the laws regulating the issuance of passports or the rules
                                   - 8 -
          Lebreault contends that he cannot be convicted under the

first clause of § 1542 because his daughter is a United States

citizen and is therefore entitled to a passport.    And Lebreault

contends that this fact makes the issuance of a passport to her

not "contrary to the laws [and rules] regulating the issuance of

passports."   18 U.S.C. § 1542.     Lebreault is less than clear,

however, as to why his daughter's citizenship bars his conviction,

and we conclude that it does not.

          Lebreault may mean to argue that he can only be found

guilty under the first clause of § 1542 if his false statements

were "contrary to the laws [and rules] regulating the issuance of

passports," id., and would have materially influenced the decision

of the agency charged with processing passport applications.   We

have previously stated, however, that the first clause of § 1542

does not contain such a materiality requirement, see United States

v. Salinas, 373 F.3d 161, 167 (1st Cir. 2004), and other Circuits

have so held, see, e.g., United States v. Hart, 291 F.3d 1084,

1085 (9th Cir. 2002) (per curiam) ("We . . . now explicitly hold

that proof of materiality is not required for this [§ 1542]

offense."); United States v. Hasan, 586 F.3d 161, 167 (2d Cir.

2009) (joining other circuit courts in holding that the aspect of

§ 1542 at issue does not contain a materiality requirement).


     prescribed pursuant to such laws . . . Shall be fined under
     this title, imprisoned . . . or both." 18 U.S.C. § 1542.
                                 - 9 -
              Moreover, even assuming the relevant provision contains

a materiality requirement, Lebreault's challenge still fails.                   We

do not see how the federal regulation requiring Lebreault to

"provide documentary evidence of parentage" when applying for a

passport on behalf of a minor, including "the names of the parent

or parents," was not violated when Lebreault provided a false

parental name.         22 C.F.R. § 51.28(a)(2).                And a jury could

reasonably find on this record that the false statements made

"contrary to" the regulation materially influenced the decision of

the agency charged with processing passport applications. In fact,

the government offered testimony that the State Department would

not have issued a passport to Adriana had it known that her

passport   application        contained    false    information      as    to   the

identity of her father.        Thus, we reject Lebreault's assertion --

to the extent he means to make it -- that because Adriana was

legally entitled to a passport (by virtue of her status as a United

States citizen), he cannot be convicted under the first clause of

§ 1542 because the false information he supplied was not material.

              At    oral   argument,      Lebreault's      counsel    separately

indicated that there might be a distinct question as to whether

Lebreault possessed the requisite intent to commit the second count

of passport fraud. But we decline to decide here whether the first

clause   of    18    U.S.C.    §   1542   sets     forth   a    specific    intent

requirement, such that there may be liability only if the defendant
                                          - 10 -
specifically "intends to induce or secure the issuance of a

passport contrary to the laws [and rules] regulating the issuance

of passports" (emphasis added).        See United States v. Aifang Ye,

792 F.3d 1164, 1168 (9th Cir. 2015) (joining other circuit courts

in holding that the first clause of § 1542 does not embody a

specific intent requirement).        As the government correctly points

out, Lebreault did not develop this argument in his briefs, and it

is therefore waived.    See United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied   by   some   effort   at    developed   argumentation,   are

deemed waived.").

                                     IV.

          For the reasons above, the judgment of the District Court

is affirmed.




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