United States v. Hadima , 160 F. App'x 224 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-22-2005
USA v. Hadima
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2667
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2667
UNITED STATES OF AMERICA
v.
SAMEH HADIMA,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
D.C. Crim. 04-cr-00178-1
District Judge: The Honorable William W. Caldwell
Submitted Under Third Circuit LAR 34.1(a)
November 18, 2005
Before: BARRY and AMBRO, Circuit Judges, and POLLAK,* District Judge
(Opinion Filed: December 22, 2005)
OPINION
*
The Honorable Louis H. Pollak, District Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
BARRY, Circuit Judge
Sameh Hadima appeals his conviction for making a false statement about a material
fact in an immigration document, in violation of 18 U.S.C. § 1546(a). For the reasons
stated below, we will vacate the conviction.
In August 2000, Hadima, a native of Egypt, married Kathy Masden, a United
States citizen. In January 2001, Hadima filed an application to register as a permanent
resident. His application was approved in June 2001, and he was granted conditional
permanent resident status based on his marriage to a United States citizen. In April 2003,
two months before his conditional resident status was set to expire, Hadima filed an
Application for Naturalization (N-400) and a Petition to Remove Conditions of Residence
(Form I-751) (“Petition”). The basis for Hadima’s Petition was that “[his] conditional
residence [was] based on [his] marriage to a U.S. citizen . . . and [they were] filing th[e]
petition together.” (App. at 7.) Therefore, both Hadima and his wife were required to
sign the Petition. Hadima admits that he signed Masden’s name. He claims, and the
government has never disputed, that Masden expressly authorized him to do so.1
In July 2004, Hadima was charged, in an eight-count Second Superseding
Indictment, with marriage fraud, in violation of 18 U.S.C. § 1325(c); making false
statements in the course of an official investigation, in violation of 18 U.S.C. § 1007;
1
Hadima has consistently claimed that Masden signed a copy of the Petition at their
home, but that he was away on active duty with the United States Army Reserves when
the filing deadline arrived. He called Masden, “and she explicitly and specifically
authorized him to sign her name on another I-751 Petition.” Appellant’s Br. at 13.
2
making false statements in immigration documents, in violation of 18 U.S.C. § 1546; and
aiding and abetting the foregoing offenses, in violation of 18 U.S.C. § 2. In November
2004, Hadima entered into a written plea agreement in which he agreed to plead guilty to
an Information charging him with making a false statement in an immigration document,
in violation of 18 U.S.C. § 1546, in exchange for which the government agreed to dismiss
the Indictment. Hadima pleaded guilty to the agreed-upon charge and was sentenced to
three months in prison and assessed $100. He has served his sentence.
Before accepting Hadima’s guilty plea, the District Judge conducted the colloquy
required by Federal Rule of Criminal Procedure 11(b)(2), and asked the prosecutor to
outline what the government would have been prepared to prove at trial. The prosecutor
provided some background information, and then stated:
On or about April 8, 2003, [Citizenship and Immigration Services]
accepted a petition to remove conditions on residence -- conditions on his
residence, a Form I-175, that was filed by the defendant and Masden based
on their marriage. Now that form was required to be signed by both the
alien, in this case the defendant, and the United States citizen, in this case
Ms. Masden Hadima. The form also contained a certification that it
actually was being signed by the persons whose names appeared on the
form.
That form was completed, signed, and mailed to Citizenship and
Immigration Services, however, by the Defendant while he was on active
duty in the United States Army. The Defendant contends that he requested
permission to retrieve another form, this one reportedly signed by Ms.
Masden Hadima herself, to send to immigration officials, but he was denied
that opportunity by people in his command. The Defendant also contends
that he had oral permission from Ms. Masden Hadima to sign her name to
that form before sending it to immigration officials.
Nonetheless, as the Defendant well knew, he, in fact, signed [Masden’s] name to
that form. Knowing it was not being signed by her, and then submitted that form to
immigration officials as if it had been signed by her personally.
3
(App. at 49-50) (emphasis added). The District Judge asked Hadima if he agreed with
that statement of the facts, and Hadima replied, “Yes, Your Honor.” (App. at 51.)
Satisfied that all of the Rule 11 requirements were met, the Judge accepted the guilty
plea. However, the facts as stated by the prosecutor were not correct. The government
now admits that the prosecutor “mis-spoke” when he said that the form contained a
separate certification that it was actually being signed by the persons whose names
appeared on the form. Appellee’s Br. at 13 n.3. No such certification exists.
Hadima seeks to have his conviction vacated on the ground that he did not commit
a crime when he signed his wife’s name. We admit to some surprise that the government
has persisted in opposing this request even though it has been forced to admit that there
was no separate certification signed by Hadima, much less one stating that Hadima’s wife
had, in fact, signed her own name. That would have been a false statement. So, too,
would it have been a false statement had her signature been “falsified” which is “where,”
the government alleged, “the offense lies.” (App. at 50-51).
Generally, knowing and voluntary guilty pleas waive all non-jurisdictional defects.
See Woodward v. United States, 426 F.2d 959, 964 (3d Cir. 1970) (“A[n unconditional]
plea of guilty waives all non-jurisdictional defenses . . . .”); Abram v. United States, 398
F.2d 350, 350 (3d Cir. 1968) (same). However, “application of th[is] rule is misplaced”
when “a defendant’s actions do not constitute a crime and . . . the defendant is actually
innocent of the charged offense.” United States v. Andrade, 83 F.3d 729, 731 (5th Cir.
1996). Courts have permitted attacks on guilty pleas in the interest of justice when the
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defendant has pled guilty to something that was not a crime. See, e.g., Andrade, 83 F.3d
729 (permitting an attack on a guilty plea where “intervening law has established that a
defendant’s actions do not constitute a crime . . . .”); United States v. Barnhardt, 93 F.3d
706 (10th Cir. 1996) (allowing the defendant to attack the validity of his conviction “if
the facts he pled guilty to are subsequently determined not to be criminal”); United States
v. Barboa, 777 F.2d 1420 (10th Cir. 1985) (vacating defendant’s sentence on the ground
that his guilty plea was invalid because his actions did not constitute a crime); Woodward
v. United States, 426 F.2d 959, 964 (3d Cir. 1970) (“[T]he truth of [a] defendant’s claim
of innocence may provide a basis for a finding that the guilty plea was not entered
intelligently or that withdrawal of the plea is necessary to correct manifest injustice.”)
We agree that, as the Tenth Circuit put it, a defendant who pled guilty to
something which was not a crime “is not now precluded from raising this jurisdictional
defect, which goes ‘to the very power of the State to bring the defendant into court to
answer the charge brought against him.’” Id. Permitting a guilty plea to stand when the
defendant’s actions do not constitute a crime would be a miscarriage of justice.
We must, therefore, determine whether Hadima committed a crime. It is
undisputed that Hadima signed his wife’s name to the Petition. Hadima claims, and the
government has not disputed, that he had her permission to sign her name, and that he
believed it was legal for him to do so. These facts do not establish a violation of 18
U.S.C. § 1546(a), which provides, in relevant part that:
“Whoever knowingly makes under oath, or . . . knowingly subscribes as
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true, any false statement with respect to a material fact in any application,
affidavit, or other document required by the immigration laws or regulations
prescribed thereunder, or knowingly presents any such application,
affidavit, or other document containing such statement -- Shall be fined
under this title or imprisoned not more than five years, or both.”
We do not agree with the government that Hadima “made a false statement when
he signed both his and his ‘wife’s’ names on the Form I-571.” Appellee’s Br. at 26. We
refuse to find that signing a spouse’s name, with permission, constitutes a “false
statement” within the meaning of § 1546(a). No federal court has ever found an
authorized signature to be a violation of any federal false statement statute, and the
Second Circuit, for one, expressly found that a defendant’s assertion that he was
authorized to sign his spouse’s name was an affirmative defense to a charge of violating
18 U.S.C. § 1014, a similarly worded false statement statute.2 United States v. West, 666
F.2d 16 (2d Cir. 1981); see also United States v. Hamer, 10 Fed. Appx. 205, 216 (4th Cir.
2001) (“[H]ad the evidence supported a finding that Douglas authorized [the defendant]
to apply for credit in Douglas’s name for Douglas’s benefit and with the intent to bind
Douglas, the authority would have negated the intent required to support a conviction
under § 1014.”); United States v. Nelson, 485 F. Supp. 941, 944 (D. Mich. 1980).
We, therefore, conclude, given Hadima’s uncontested assertion that he had
permission to sign his wife’s name on the Petition, that he did not commit a crime. We
2
Section 014 states, in relevant part that: “Whoever knowingly makes any false statement
or report . . . for the purpose of influencing in any way the action of the Farm Credit
Administration, Federal Crop Insurance Corporation or a company the Corporation reinsures . . .
shall be fined not more than $1,000,000 or imprisoned not more than 30 years or both.”
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will vacate his judgment of conviction.3
3
As part of the plea agreement, Hadima agreed “that the United States may . . .
reinstate any dismissed counts in the event that the charges to which [he] has pleaded
guilty . . . are subsequently vacated . . . [and he] further agrees to waive any defenses to
the reinstatement of those charges . . . .” (App. at 25-26.) We are confident that the
government will let this case end – now.
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