Case: 18-13620 Date Filed: 07/12/2019 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13620
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-20012-MGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CIN MUN TUANG,
a.k.a. Kam Sian Lian,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 12, 2019)
Before TJOFLAT, BRANCH and BLACK, Circuit Judges.
PER CURIAM:
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Cin Mun Tuang appeals his convictions for unlawful procurement of
citizenship or naturalization and misuse of evidence of citizenship or
naturalization. He argues that the admission of his applications for Lawful
Permanent Residency (“LPR”) and asylum, the jury instructions, and the
government’s closing argument constructively amended the indictment, in
violation of the Fifth Amendment. After review, 1 we affirm.
A constructive amendment to an indictment occurs when the theory or
evidence presented by the government or the jury instructions alter the essential
elements of the offense contained in the indictment to broaden the possible bases
for conviction beyond what is charged. United States v. Leon,
841 F.3d 1187,
1192 (11th Cir. 2016). Reversal is required when a district court constructively
amended the indictment and the defendant preserved the issue for appeal.
Id.
1
The parties dispute the standard of review—the Government asserts plain-error review
applies because Tuang failed to properly preserve his argument that the admission of evidence
concerning his LPR and asylum applications was improper, while Tuang maintains this Court
should review his claims de novo. The record shows Tuang objected to the Government’s
introduction of both his LPR and asylum applications, arguing they were not relevant because
the indictment charged him only with making false statements in the procurement of
naturalization, not in pursuing asylum or LPR status. He did not, however, specifically argue
that the admission of these documents—as well as the subsequent reference to them in the jury
instructions and the Government’s closing arguments—constructively amended the indictment.
In any case, we need not definitively resolve whether Tuang’s objection to the admission of the
applications was sufficient to preserve for appeal his argument that the indictment was
constructively amended, as we would affirm his convictions even under de novo review. See
United States v. Sammour,
816 F.3d 1328, 1335 (11th Cir. 2016) (stating we review de novo
whether an indictment was constructively amended at trial).
2
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Here, the jury instructions, closing argument, and evidence did not
constructively amend the indictment because they did not expand the essential
elements of the offense beyond what was charged. Tuang was charged under 18
U.S.C. § 1425(a), which makes it a crime to “knowingly procure[] or attempt[] to
procure, contrary to law, the naturalization of any person, or documentary or other
evidence of naturalization or of citizenship.” 18 U.S.C. § 1425(a). The statute
requires the government to prove that an illegal act by the defendant played some
role in his acquisition of citizenship. Maslenjak v. United States,
137 S. Ct. 1918,
1923 (2017).
Tuang’s asylum status was a required prerequisite to attaining LPR status,
which in turn was a required prerequisite to attaining naturalization. See 8 U.S.C.
§ 1159, 1429. Thus, the district court’s inclusion in its jury instructions that the
conviction could be based on a finding that Tuang lied on his asylum application,
LPR application, or naturalization application did not add bases for conviction that
were not charged in the indictment. See
Leon, 841 F.3d at 1192. Rather, the
instruction explained the proper bases on which a conviction under § 1425(a) may
be found. See United States v. Chahla,
752 F.3d 939, 947 (11th Cir. 2014)
(indicating a conviction under § 1425(a) may be based on fraudulent statements
made to obtain a statutorily required intermediate immigration status). Likewise,
3
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the government’s closing argument did not constructively amend the indictment
because it merely repeated the jury instructions’ correct statement of the law.
As to the admission of Tuang’s LPR and asylum applications, because
Tuang’s alleged illegal act was making false statements, the government was
required to prove that he lied about facts that would have mattered to an
immigration official because they would have justified denying naturalization or
would have led the official to conduct further investigation that would have turned
up facts justifying that result. See
Maslenjak, 137 S. Ct. at 1923. The
government’s introduction of Tuang’s LPR and asylum applications was relevant
to proving that element of the offense, and it therefore did not constructively
amend the indictment. See
Leon, 841 F.3d at 1192.
AFFIRMED.
4
