Case 2:11-cr-02039-WFN

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MICHAEL C. ORMSBY United States Attorney Eastern District of Washington SHAWN N. ANDERSON Assistant United States Attorney 402 E. Yakima Avenue, Suite 210 Yakima, WA 98901 (509) 454-4425 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) ) JOSEPH ANDERSON EVANS, SR., ) ) Defendant. ) _______________________________) Nos. CR-10-2121-WFN CR-11-2039-WFN

GOVERNMENT'S MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE OF BIRTH IN IDAHO

COMES NOW the Plaintiff, United States of America, by and through MICHAEL C. ORMSBY, United States Attorney for the Eastern District of Washington and SHAWN N. ANDERSON, Assistant United States Attorney for the Eastern District of Washington, pursuant to Fed. R. Crim. P. 47 and Fed. R. Evid. 104 and 403, and hereby submits this memorandum in support of its motion to precluding the admission of the Defendant's alleged Idaho birth certificate at trial. FACTUAL BACKGROUND A. Idaho Petition for Birth Certificate On March 16, 2011, the Defendant informed the Court during the course of a pretrial conference that he would rely on an alleged birth certificate as evidence of his birth in the State of Idaho. Ct. Rec. 67. The Defendant obtained the certificate by petitioning the District Court of the Second Judicial District of the State of

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Idaho, in and for the County of Nez Perce.1

The documents reveal

that on April 1, 2010, the Defendant petitioned the court for a declaratory judgment in an effort to establish a record of his birth in the State of Idaho. The petition notes that on December

17, 2009, the Idaho Department of Health and Welfare informed the Defendant that his request for a delayed birth certificate was denied.2 follows: The documentation that has been reviewed by this office is not sufficient for placing a delayed birth certificate on file with the Bureau of Vital Records due to the fact that correspondence indicates that you have used the following other names and dates of birth: Ceniceros Mora Ramon, Joey Shippentower Evans born March 23, 1963, and Joseph Ann Shippentower Evans your request for a delayed birth certificate is denied. The Defendant further disclosed that the Department of Health and Welfare required him to obtain a court order before the agency would issue a certificate. The Defendant denied ever using the The petition further describes Idahos explanation as

names recited by that agency. The Defendant also filed an affidavit in support of his petition. The document lists, among other things, his alleged full name, date and place of birth, and various family statistics. He

also claimed prior membership in the United States Marine Corps and

Attached as Exhibit 1 are copies of documents contained within the court file at the Clerks Office for Nez Perce County, Idaho. Attached as Exhibit 2 is a recording of the hearing for the Defendants petition. A transcript of the hearing is included as Exhibit 3. The government is awaiting receipt of pertinent documents from the State of Idaho, Department of Health and Welfare, Bureau of Vital Records, and may supplement the record once they are received and reviewed. MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE - 2
2

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current membership in the Marine Corps Association.

His stated

purpose in obtaining the certificate was to further obtain a United States Passport enhancement to his Washington drivers license. Attached to an amended petition, the Defendant included two

separate affidavits to support his claim of birth.

The two

affiants are alleged relatives of the Defendant who certified to the Defendants birth in Lapwai, Idaho. However, there is no

evidence that either affiant had first hand knowledge of the Defendants birth. Additional documents indicate that the affiants would not appear at the scheduled hearing. A hearing on the Defendants petition occurred on May 6, 2010. The Defendant appeared alone and presented no witnesses. After

being sworn in, the Defendant engaged in a lengthy colloquy with the court. The Defendant stated his full name as Joseph Anderson He alleged the same personal statistics The court inquired into the In response,

Evans Shippentower, Sr.

contained in his written pleadings.

Defendants basis of knowledge regarding his birth.

the Defendant alleged that he was always told that he was born in Idaho. Furthermore, since he was raised in Oregon it had never

occurred to him to get a birth certificate from the State of Idaho. He claimed he needed the certificate to obtain an enhancement on his drivers license, which would thereby enable travel to Canada. According to the Defendant, his family was his only source of personal birth information. The Defendant also attempted to

proffer an alleged Social Security Administration record in support of his claim. The court did not appear find the document

probative. MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE - 3

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The Defendant later offered the court an account of his alleged service in the United States Marine Corp. have enlisted in San Diego, California, in 1968. claimed active duty in Vietnam from 1969 through 1975. He claimed to He further Along the

way he accumulated 12 years of combat duty, to include earning a Purple Heart. The Defendant was evasive in explaining his

retirement from the Marine Corp, simply stating that he continued his service by taking charge of the Marine Toys for Tots program in Yakima, Washington. Based on limited information from the Department of Health and Welfare, the judge questioned the Defendant regarding other assumed names and a different date of birth. However, the Defendant denied the use of any other names or the other date of birth. court specifically in questioned Health and the Defendant records, the When the regarding Defendant

inconsistencies

Welfare

claimed to be confused at the time as a result of post traumatic stress from Vietnam. B. Prior Claims of Birth The Defendant has been matched through fingerprint and

photograph identification to an existing A-file maintained by United States Immigration and Customs Enforcement. According to The

the file, the Defendants true name is Roman Ceniceros Mora.

file also indicates that the defendant is a citizen and national of Mexico by birth. Records contained therein indicate that the

Defendant has used a number of aliases, including Jose Grejeda Vasquez. He has also alleged places of birth in California and

MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE - 4

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Texas.3

The A-file contains no evidence that the Defendant claimed

an Idaho place of birth during those early encounters with the United States criminal justice system. During early 1984, the Defendant produced a false birth certificate, which alleged a place of birth in Pendleton, Oregon, during an attempted entry into the United States from Canada at the Oroville, Washington, Port of Entry (POE).4 The Defendant gave the

document to Border Patrol as proof of United States citizenship by birth. During a subsequent interview with INS, the Defendant He

alleged his true and correct name as Joseph Ann Shippentower.

continued to allege being born in Pendleton, Oregon, on May 19, 1950, to Alfonse William Shippentower and Mary Ann Shippentower. Importantly, he conceded to previously using the name Ceniceros and that he had previously been convicted for transporting aliens under the name Jose Grejeda Vasquez. Regardless, the Defendant was

certain of the validity of his alleged Oregon birth certificate. The Defendant was subsequently convicted in the United States District Court for the Eastern District of Washington for

Possession of a False Birth Certificate, in violation of 18 U.S.C. 1028. EDWA CR-84-0052-JLQ. On October 30, 1984, the Defendant

was deported from the United States to Mexico at Nogales, Arizona. The Defendant returned to the United States following his 1984 deportation. On July 29, 1989, the Defendant was assaulted by a

A-file documents pertaining to prior immigration investigations are attached as Exhibit 4. Documents from the 1984 investigation and the final judgment are attached as Exhibit 5. MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE - 5
4

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hitch-hiker while traveling through Montana. was included in a be on the lookout

The Defendants name notification to law

enforcement in the search for the suspect.5

A Border Patrol agent

at the Oroville, Washington, POE recognized the Defendants name and advised a nearby INS agent of the Defendants location and alien status. Defendant During the course of an interview by INS, the that his true and correct name was Roman

stated

Ceniceros-Mora. He further disclosed that he was born in Mexico on August 9, 1951. He also admitted using the name Joseph

Shippentower since 1975.

On September 1, 1989, the Defendant

appeared before a magistrate in the District of Montana on the charge of Illegal Reentry, in violation of 8 U.S.C. 1326. a subsequent change of plea hearing, the Defendant During instead

maintained his innocence.

He also indicated that he was an

American Indian with a birth certificate to support his claim. The Defendant offered the alleged birth certificate, which was accepted by the court over the objection of the Defendants counsel. subsequently found the Defendant guilty. A jury

Judgment was entered on

January 1990. The Defendant was deported from the United States to Mexico on October 18, 1990, at El Paso, Texas. On May 25, 2010, an individual identifying himself as Joseph Anderson Evans Shippentower executed an application for a United States Passport Washington. Washington As at a United of States Postal the name Office in Yakima, a

proof

identity, in the

Defendant of

provided A.

driver's

license

Joseph

Evans

Documents from the 1989 investigation and the final judgment are attached as Exhibit 6. MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE - 6

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Shippentower.

The Defendant also provided a delayed Idaho birth

certificate that was issued on May 20, 2010, in the name of Joseph A. Evans Shippentower, with a date of birth of 5/19/50 and place of birth at Lapwai, Nez Perce Indian Reservation, Idaho. The

Defendant also provided the alleged names of his parents, in addition to stating that he was a retired Marine. On June 11, 2010, the Seattle Passport Agency sent the

Defendant a letter requesting additional secondary evidence of citizenship. In response, on June 18, 2010, the Defendant

submitted a letter from the Idaho Department of Health and Welfare. The letter stated that Idaho refused the Defendant's request to file delayed birth certificate. On June 29, 2010, the Defendant

also submitted a DS-10 Birth Affidavit completed by the defendant's alleged aunt, Eleonor Seymour Shippentower. Special Agent Peter Galeotti ("Agent Galeotti") of the

Department of State, Diplomatic Security Service (DSS), Seattle Resident Office (SRO), began an investigation into the authenticity of the delayed birth certificate and the Defendant's claimed identity. Agent Galeotti learned that the delayed birth

certificate was issued based on a court order from Nez Perce County, Idaho, as describe above. Agent Galoetti also learned that the Defendant was receiving social security benefits and food stamps. Furthermore, the Defendant had received veteran's benefits in the early 1990's and claimed to be a Vietnam veteran. On October 28, 2010, Agent Galoetti, Special Agent Judy Kiander ("Agent Kiander") from the OIG Social Security

Administration, and Special Agent Dana Epperson ("Agent Epperson") MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE - 7

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from the Office of Inspector General, traveled to Yakima in an attempt to interview the Defendant. When they arrived at the

Defendants residence, they observed him standing inside of his garage. Epperson observed that the Defendants vehicle had

disabled veteran license plates.6

The Defendant invited Agent The

Galoetti, Agent Kiander, and Agent Epperson into his house.

Defendant asked for identification. Agent Galoetti, Agent Kiander, and Agent Epperson all showed their official identification

documents to the subject.

The Defendant then asked all three to At that time, Agent Galoetti took

have a seat in his living room.

out the original passport application, supporting documents, and documents from the Defendant's A-file. documents to the Defendant. Agent Galoetti showed the

The Defendant then stated that he had The Defendant

submitted the application and supporting documents.

then identified documents from his immigration file. The documents included photographs from an Oregon identification card and a Washington drivers license.7 The Defendant denied that he had The

been deported in the past or that he was from Mexico.

Defendant advised that he had been in the military from 1968-1980 and had served in Vietnam. Agent Galoetti asked the Defendant if he would voluntarily provide his fingerprints, to which the Defendant readily agreed. The fingerprints taken from the Defendant were later determined to match those associated with ICE A-file, including executed warrants

Photos of the plates and similar evidence are attached as Exhibit 7.

7

Copies of the photographs are attached as Exhibit 8.

MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE - 8

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of deportation contained therein, of Roman Ceniceros Mora. Records of the Social Security Administration indicate the defendant originally applied for a Social Security Card in Phoenix, Arizona, on October 24, 1990, less than a week after his prior deportation. was offered: 1. 2. 3. 4. 5. 6. 7. Name at birth: Joseph A. Evans Shippentower. Date of birth: May 19, 1950 Place of Birth: Lapwai, Idaho Citizenship: U.S. Citizen Race/Ethnicity: North American Indian or Alaskan Native Mother's name: Mary Ann Florence Father's Name: Gasper Williams Shippentower The application indicates the following information

The defendant was eventually issued Social Security Number (SSN) ###-##-8990. During the application, the defendant also used a

Military Service Card that displayed the number ###-##-1950 as evidence of his identity. C. That number is not a valid SSN.

Investigation into Defendants Military Service The Defendants A-file contains evidence of prior attempts by

the government to research his claims of military service.8

As

indicated from the record of the Idaho proceeding, the Defendants claims of military service have consistently been a part of his assumed identity. During prior investigations, the Defendant has

never been able to produce a Department of Defense DD Form 214 as proof of military service. All prior inquires with pertinent

government agencies have resulted in no evidence of prior service by the Defendant. Most recently, the Marine Corps History Division, Historical

Documents related to prior inquiries are attached as Exhibit 9. MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE - 9

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Reference

Branch,

of

the

United

States

Marine

Corps

(USMC)

completed an investigation of the Defendants alleged service in the USMC. The following names and dates of birth were researched:

GRAJEDA, JOSE LUIS VASQUEZ CENICEROS, MORA JOSE RAMON CENICEROS-MARA, JOSE ROMAN CENICEROS-MORA, JOSE RAMON CHACON, JOSEPH ANN CINESEROS, ROMANO GARCIA-LOPEZ, RAYMOND GRAJEDA, JOE GRAJEDA, JOE VASQUEZ GRAJEDA, JOSE GRAJEDA, JOSE LUIS GRAJEDA, JOSE VASQUEZ GRAJEDA, JOSEPH GRAJEDA-JOSE, LUIS VASQUEZ GRAJEDA SHIPPENTOWER, JOSE LUIS GRAJEDA VASQUEZ, JOE GRAJEDA-VASQUEZ, JOSE GRAJEDA-VASQUEZ, JOSE LUIS GRAJEDA-VASQUEZ, JOSE RAMON GRAYEDA-VASQUEZ, JOE LOUIS LOPEZ, JOSE LOPEZ-MORA, JOSE RAMON LOPEZ-MORA, ROMAN MORA, ROMAN L SHIPENTOWER, JOSE LUIS SHIPENTOWER, JOSEPH ANN SHIPPENTOWER, JOSEPH SHIPPENTOWER, JOSEPH A SHIPPENTOWER, JOSEPH ANDERSON EVANS SHIPPENTOWER, JOSEPH ANN SHIPPENTOWER, JOSEPH GRAJEDA VASQUEZ, JOSE LUIS CENICEROS-MORA, ROMAN MORA, ROMAN CENICEROS SHIPPENTOWERE, JOSEPH GRADJEDA-VASQUE, JOSE MORA, ROMAN LOPEZ ROMAN, CENICEROS MORA CENICEROS-MORA, ROMAN JOSE EVANS, JOPSEPH 1948-05-09 1948-05-19 1950-05-19 1951-08-09 No matching casualty cards were found for the Vietnam War for any MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE - 10

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of the above names.

The absence of such evidence undermines the

Defendants claim of physical injury during that service period, and further excludes him from the lawful receipt of a Purple Heart award. As for identifying men who served in the Marine Corps, a

record repository known as the Master Locator microfilm was viewed and revealed no identical matches to the above names and dates of birth.

ARGUMENT The United States Constitution provides an accused with a meaningful behalf." opportunity to introduce relevant evidence on his

United States v. Cruz-Escoto, 476 F.3d 1081, 1088 (9th

Cir. 2007) (quoting Menendez v. Terhune, 422 F.3d 1012, 1033 (9th Cir. 2005)). However, a defendant's right to present relevant

evidence is not unlimited, but rather is subject to reasonable restrictions. United States v. Scheffer, 523 U.S. 303, 308 (1998). A defendant's interest in presenting such evidence may thus bow to accommodate process. Chambers v. other Rock legitimate v. Arkansas, 410 interests 483 U.S. U.S. 284, in the 55 criminal trial

44, 295

(1987)(quoting accord,

Mississippi,

(1973));

Michigan v. Lucas, 500 U.S. 145, 149 (1991). Federal Rule of Evidence 104 provides in pertinent part that: (a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. ... MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE - 11

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The proponent has the burden of proof, by a preponderance of the evidence, of satisfying the requirements of Rule 104(a), Bourjaily v. United States, 483 U.S. 171 (1987), for issues other than privilege. The Court must resolve preliminary questions of fact

determinative of the admissibility of evidence challenged under technical evidentiary rules. Carbo v. United States, 314 F.2d 718, 737 (9th Cir. 1963), cert. denied, 377 U.S. 953. While Rule 104 provides a mechanism for challenging the admission of evidence, other Rules of Evidence provide the

substantive basis.

Federal Rule of Evidence 403 provides that:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. (emphasis added) Rule 403 confers broad discretion on a trial judge in excluding evidence. United States v. Hearst, 563 F.2d 1331, 1348-49 (9th

Cir. 1977), cert. denied, 435 U.S. 1000 (1978). The application of the rule, by its plain language, involves two steps: (1) assessing the probative value of the proffered evidence and (2) balancing that probative weight against the listed three "dangers" or three "considerations. A court measures the probative value of evidence by its tendency to make the existence of any fact that is of consequence ... more probable or less probable than it would be without the evidence. United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982)(quoting Fed. R. Evid. 401). At trial in this matter, the jury will determine whether in fact the Defendant is an alien. To aid their deliberations, the

jurors will be instructed that an alien is a person who is not a MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE - 12

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natural-born or naturalized citizen of the United States. 9th Cir. Crim. Jury Instr. 9.8 (2010). On March 16, 2011, the Defendant

informed the Court during the course of a pretrial conference that he would rely on the previously described alleged birth certificate as evidence of his birth in the State of Idaho. Ct. Rec. 67. The

Defendant has further proposed the following jury instruction: An official Idaho birth certificate is prima facie evidence of the facts stated in that certificate. Prima facie evidence means that an official Idaho birth certificate raises a presumption that the facts it states are true. If the presumption is unrebutted, then prima facie evidence is sufficient to establish the truth of the facts. Ct. Rec. 46 at 4. The parties dispute the validity of the

birth certificate as a true and correct record of the birth of the Defendant. instruction. The government also objects to defendants proposed The government therefore brings this motion to

challenge the admissibility of the document. A true and correct birth certificate, evidencing birth in the United States, would tend to make the existence of alienage less probable than it would be without the evidence. The Defendants

entire claim of citizenship hangs on the order of the Idaho court that granted his petition for issuance of a birth certificate. However, the order was issued based on allegations made by the Defendant in an non-adversarial proceeding. The court clearly had

no knowledge of the Defendants criminal history, much less the significant nature of it. Specifically, the court had no knowledge that the Defendant had previously tried to use a counterfeit Oregon birth certificate to enter the United States, resulting in a criminal conviction. The court similarly lacked knowledge of the

Defendants prior conviction for Illegal reentry, where his own MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE - 13

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counsel would not support his efforts to mislead a court and jury with a similar false claim of birth in Idaho. Unfortunately, the

court only knew of the decision by the Bureau of Vital Statistics in denying the Defendants prior request for a certificate. When

the court explored potential inconsistencies, the Defendant offered denials and a false claim of post traumatic stress. The judge

later thanked the Defendant for service, presumably based on the Defendants claim of military service.9 The Idaho court also lacked evidence from the Defendants Afile and the investigation of the pending matters. That evidence

disproves every material representation made by the Defendant to the court as a basis for issuing the order. misrepresentations included his: 1. 2. 3. 4. 5. 6. Name, Parents names, Date of birth, Place of birth, Lack of a lawfully issued Social Security number, and Military Service with the United States Marine Corps. The Defendants

No witnesses testified at the hearing, resulting in proof by affidavit. There is no evidence that any of the affiants witnessed the Defendants determine birth. Moreover, with there is no foundation to of the

whether

persons

personal

knowledge

Defendants birth ever disclosed those facts such that they are common knowledge of family members. Fed. R. Evid. 803(20) advisory committees note.

The final moments of the hearing suggest that the Defendant may have displayed items of Marine Corps memorabilia at counsel table throughout the hearing. MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE - 14

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The Government has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before a tribunal that produces a fair result. Singer v. U.S., 380 U.S. 24,

36 (1965). In summary, the alleged birth certificate, while issued pursuant to a court order, is not competent evidence of the Defendants birth in Idaho. The certificate loses any probative

value once the Defendants carefully crafted foundation is removed. The document is merely additional evidence of the history of fraud committed by the Defendant upon the courts of the United States. Beyond the lack of probative value, the official appearance of the document creates the danger of misleading the jury as to the Defendants alienage. The evidence therefore fails the 403

balancing test by either measure.

CONCLUSION Consideration of the Defendants recent efforts to obtain a birth certificate, in light of his prior conduct, reveal obvious and serious deficiencies in the competency of this evidence. Based on the foregoing, the Court should prevent a miscarriage of justice and preclude the admission of the Defendants alleged Idaho birth certificate at trial. Respectfully submitted this 4th day of April, 2011. Respectfully submitted, MICHAEL C. ORMSBY United States Attorney s/Shawn N. Anderson SHAWN N. ANDERSON Assistant United States Attorney

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I hereby certify that on April 4, 2011, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the following: Alison K. Guernsey, attorney for the defendant.

s/Shawn N. Anderson Shawn N. Anderson Assistant United States Attorney United States Attorneys Office 402 E. Yakima Avenue, Suite 210 Yakima, WA 98901 Phone: (509) 454-4425 Fax: (509) 454-4435

MEMORANDUM IN SUPPORT OF MOTION TO PRECLUDE ADMISSION OF EVIDENCE - 16