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United States of America v. Fairly W. Earls

December 27, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
FAIRLY W. EARLS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 10 CR 222--Joseph S. Van Bokkelen, Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge.

ARGUED SEPTEMBER 17, 2012--

Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.

On July 10, 2011, a jury found Fairly W. Earls ("Earls") guilty of making a false state- ment on a passport application, aggravated identity theft, and knowingly transferring a stolen identification document in violation of 18 U.S.C. § 1542, § 1028A(a)(1), and § 1028(a)(2). On October 5, 2011, the district court sentenced Earls to thirty-six months' imprisonment on Counts One and Three with a consecutive sentence of twenty-four months' imprisonment on Count Two. Earls' base offense level at sentencing was determined to be eight; however, through the application of a cross-reference listed in Sentencing Guidelines Sec- tion 2L2.2(c)(1)(A), Earls' offense level was increased to fifteen. On appeal, Earls challenges the admission of certain evidence at trial, as well as his sentence. For the following reasons, we affirm.

I. BACKGROUND

In February 1999, Earls was convicted in Wisconsin state court of three felony counts of sexual assault of a six- year-old child in violation of Wisconsin Statute § 948.02. Earls was sentenced to forty-five years' imprisonment and twenty years' probation. After exhausting his state court remedies, Earls sought a federal writ of habeas corpus, alleging ineffective assistance of counsel. In August 2004, we concluded that Earls' trial counsel was ineffective and ordered that either the writ be granted or the State retry Earls. See Earls v. McCaughtry, 379 F.3d 489 (7th Cir. 2004). The state opted to retry.

In February 2005, Earls posted a $25,000 cash bond with the Wisconsin state court. As a condition to Earls' release, he agreed to appear at all court dates, have no contact with minors, and notify the court if his address changed. When Earls bonded out of jail, he was listed as living with his sister Alice in Burbank, Illinois, a home Alice had previously shared with her ex-husband David Fuhrman.

On October 31, 2005, the state of Wisconsin filed a new case against Earls, charging him with twelve counts of bail jumping, in violation of Wisconsin Statute § 946.49. In October and November 2005, Earls violated his bond conditions by failing multiple times to appear in court for hearings and having contact with a minor. Conse- quently, a bench warrant was issued. In late Decem- ber 2005, Earls' $25,000 cash bond was forfeited. In

January 2006, Wisconsin law enforcement enlisted the United States Marshal Service to help track down Earls. The Marshal Service interviewed Earls' friends and family, including his sister Alice, but were unable to generate any leads.

Meanwhile, on December 9, 2005, an individual had requested the State of Illinois Department of Public Health to issue a certified copy of the birth certificate of David Fuhrman, Earls' former brother-in-law. This was done without Fuhrman's knowledge or consent. Then on March 14, 2006, the individual brought the birth certifi- cate, together with Fuhrman's divorce decree, to the Indiana Bureau of Motor Vehicles and obtained an Indiana state identification card in Fuhrman's name. Later that same day, the individual went to an Indiana post office and applied for a passport using the newly obtained Indiana state identification card and Illinois birth certificate. The passport application listed Fuhrman's correct name, date of birth, and social security number. Several weeks after the application was submitted, the Department of State issued a pass- port in the name of David Robert Fuhrman.

On June 21, 2006, the new Fuhrman passport was used to gain entry into Panama. The holder of the passport left Panama three days later and traveled to Nicaragua and Costa Rica. Additional passport stamps show that the passport holder entered Panama again in 2007.

In January 2008, Earls used the Fuhrman passport to obtain a Panamanian Retirement Tourist Visa in Fuhrman's name. Earls denied at trial that he was the individual that applied for the subject passport, how- ever, he did not dispute that he lived in Panama and used a passport in the name of David Fuhrman while living there.

In August 2010, nearly five years after Earls had failed to appear for his hearings in Wisconsin state court, the United States Marshal Service received a tip that Earls was living in Panama under the name David Fuhrman. The Marshal Service contacted the Depart- ment of State, which provided the photo used to obtain the Fuhrman passport. The deputy marshal in receipt of the photo recognized the man as Earls and notified the Department of State, which then reached out to the United States Embassy in Panama. In Panama, an investi- gator examined the immigration records and discovered that an individual identifying himself as David Fuhrman was living in Boquete. The investigator and Panama National Police went to Boquete and saw Earls walking into a grocery store. Earls was then arrested, returned to the United States, and subsequently indicted.

On July 10, 2011 a jury found Earls guilty of making a false statement on a passport application, aggravated identity theft, and knowingly transferring a stolen iden- tification document. The Presentence Investigation Report (PSR) recommended an offense level of fifteen. The PSR originally set a base offense level for Earls' of- fense at eight, but increased the offense level (through a cross-reference pursuant to § 2L2.2(c)(1)(A)) because Earls utilized the fraudulently obtained passport in the commission of a felony offense, namely bail jumping. After considering the PSR's recommendation, and evalu- ating the sentencing factors listed in 18 U.S.C. § 3553(a), the district court sentenced Earls to thirty-six months' imprisonment on Counts One and Three with a consecu- tive twenty-four months' imprisonment on Count Two. The district court ...


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