United States v. Sadig , 271 F. App'x 290 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4733
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HAYDAR BADAWI SADIG,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-03-62)
Argued: November 2, 2007 Decided: December 27, 2007
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the opinion,
in which Judge Traxler and Judge Shedd concurred.
ARGUED: Anthony Glen Scheer, RAWLS, DICKINSON & SCHEER, P.A.,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
A jury found Haydar Badawi Sadig (“Sadig”) guilty of knowingly
attempting to procure citizenship contrary to law, in violation of
18 U.S.C. § 1425(a). When Sadig originally submitted his
application for naturalization, he truthfully indicated that he had
not been arrested or charged with violating any laws. After
submitting his application, but prior to his pre-naturalization
interview, Sadig was arrested on misdemeanor assault charges and
felony interference with a flight crew, which he subsequently
failed to disclose. During his interview, moreover, he signed a
form representing, under penalty of perjury, that the information
he had submitted was true and correct. Because we find that the
district court did not abuse its discretion in denying Sadig’s
request to instruct the jury that an applicant for naturalization
has no duty to volunteer information at the interview and because
we find that the district court did not err in its instruction, we
affirm.
I.
Sadig, a Sudan native, was granted permanent asylum in 1993.
On August 2, 2000, Sadig applied for citizenship by submitting a
completed N-400 form. Question 15(b) on the form asks if the
applicant has ever “been arrested, cited, charged, [or] indicted .
. .for breaking or violating any law or ordinance[,]” to which
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Sadig truthfully answered in the negative. J.A. 241. While
returning to the United States from overseas on November 14, 2000,
however, Sadig was involved in an altercation with the airline
flight crew. Upon arrival, Sadig was arrested and charged with
felony interference with a flight crew and three counts of
misdemeanor assault. Those charges were still pending at the time
of his pre-naturalization interview on August 7, 2001.1
At the interview, Sadig reviewed his previously completed N-
400 form, which contained a check mark in the “No” box next to
question 15(b). The final section of the form instructs the
applicant not to complete it until directed to do so at the
interview. The paragraph under the instruction reads as follows:
“I swear that I know the contents of this application, . . . that
the corrections, numbered 1 through 9 were made at my request, and
that this amended application, is true to the best of my knowledge
and belief.” J.A. 242. The form also contains the following
statement:
I certify . . . under penalty of perjury under the laws
of the United States of America that this application,
and the evidence submitted with it, is all true and
correct. I authorize the release of any information from
my records . . . to determine eligibility for the benefit
I am seeking.
1
Sadig ultimately pleaded guilty to the misdemeanors and was
sentenced to a term of two years’ probation.
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J.A. 242. Sadig signed the form during the interview, and was
subsequently granted U.S. citizenship.
In December 2003, Immigration and Customs Enforcement agents
learned that Sadig became a citizen following his November 2000
arrest and that there was no reference to that arrest on his
application even though the pre-naturalization interview was
conducted after the arrest. Sadig was subsequently charged with
three crimes alleging violations committed by him at his pre-
naturalization interview. Count One charged Sadig with knowingly
making a false statement under oath in a matter relating to and
under a law of the United States relating to naturalization,
citizenship and registry of aliens, in violation of 18 U.S.C.
§ 1015(a). Count Two charged Sadig with knowingly and willfully
making a materially false, fictitious and fraudulent statement and
representation, in violation of 18 U.S.C. § 1001(a)(2). Finally,
Count Three charged Sadig with knowingly procuring and attempting
to procure, contrary to law, the naturalization of a person and
other evidence of naturalization and citizenship, in violation of
18 U.S.C. § 1425(a).2 J.A. 11-12.
Sadig’s jury trial commenced on May 20, 2004. At trial, the
government presented the testimony of Charles Seagle Cross
(“Cross”), a retired Immigration and Naturalization Service (“INS”)
2
On May 19, 2004, the district court granted the government’s
motion to dismiss Counts Four and Five.
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agent with 31 years of experience as an immigration examiner.3 The
district court accepted Cross as an expert in immigration and
naturalization procedures. Mr. Cross testified that the
naturalization process begins with the filing of an application,
the N-400 form, after which the applicant appears before an
adjudicator for a pre-naturalization interview. According to Mr.
Cross, the purpose of the interview is to “give the applicant the
chance to establish that they [sic] are entitled to the benefit
that they are seeking,” noting that the applicant has the burden of
establishing his or her entitlement to citizenship. J.A. 43.
Mr. Cross further described the interview process. He
testified that the adjudicator places the applicant under oath,
asking him to swear or affirm that the contents of the application
are correct. The adjudicator routinely asks the applicant every
question contained in the application. If a change is required,
based on the answers provided by the applicant, the adjudicator
notes that change in red ink and numbers the change. While Cross
testified that all of the questions on the application are
important, he stated that 15(b), which asks whether the applicant
3
As of March 1, 2003, INS ceased to exist as an agency within
the Department of Justice. Its functions are now performed by
three agencies within the Department of Homeland Security: (1) the
Bureau of Immigration and Customs Enforcement, responsible for the
enforcement of immigration laws; (2) the Bureau of Citizenship and
Immigration Services, responsible for administering services and
benefits under the immigration laws; and (3) the Bureau of Customs
and Border Protection, responsible for the United States Border
Patrol. See 68 Fed. Reg. 10922-01 (Mar. 6, 2003).
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has “knowingly committed any crime for which [he has] not been
arrested” or has “been arrested, cited, charged, indicted,
convicted, fined or imprisoned for breaking or violating any law or
ordinance, excluding traffic regulations,” J.A. 241, is the most
significant. If the applicant were to report that he had been
charged with a crime, the adjudicator would ask about the nature of
the criminal conduct with which he was charged. Then, following
the interview, the applicant would be required to complete a form
related to the criminal behavior and provide the adjudicator with
a certified copy of the charging document. According to Cross, an
applicant would not be approved for naturalization while the
charges were pending. Once the charges were resolved, the
adjudicator would make a determination as to whether the conduct
was serious enough to justify denying the applicant citizenship.
On cross-examination, when asked whether he was aware of any
federal regulation or published manual requiring that every
question on the application be asked during an interview, Cross
answered that he was not aware of any such written policy, but that
it was the standard practice of every adjudicator with whom he
worked to ask every question, particularly number 15. Cross also
affirmed that every applicant has a duty to answer all question on
the N-400 form honestly and truthfully. When asked whether an
applicant has a legal duty to volunteer information not asked by
the adjudicator during the interview, Cross responded that the law
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requires that an applicant remain eligible for naturalization up to
the moment he is sworn-in, but acknowledged that there is no
written regulation or rule requiring an applicant to voluntarily
update his application.
Regina Bryant (“Bryant”), the adjudicator who interviewed
Sadig, testified next. Bryant stated that she worked for the
agency for 24 years, of which 15 were spent conducting interviews.
It was her practice to begin each interview by placing the
applicant under oath. After that, she would go through the entire
application with the applicant to make sure that all of the
information on the application was correct, marking each question
asked in red ink. Like Cross, Bryant testified that number 15 was
the most important question on the application; when she would
reach that question, she would pause briefly so as to emphasize its
significance. With respect to the certification under penalty of
perjury language at the end of the application, Bryant stated that
she would instruct the applicant to read the statement and sign it
if he agreed with it; then she would sign the form as well.
Based on what Bryant could tell from Sadig’s application, she
had in fact asked him all of the questions, including number 15,
because each question had a red check mark next to it. According
to Bryant, had Sadig changed his answer to question 15 from the
“no” that he originally reported to a “yes,” she would have made
notes next to the question. Further, Bryant noted that Sadig’s
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application reflected nine changes based on information gathered
during the interview and that Sadig had signed the application in
her presence. Bryant had signed the form as well.
The government’s final witness, Special Agent John Scott
Sherrill (“Agent Sherrill”), was an investigator working with the
Bureau of Immigration and Customs Enforcement. Agent Sherrill
testified that he began investigating Sadig’s alleged
naturalization fraud in 2003 after learning that Sadig had become
a citizen, following his arrest on assault charges, without having
mentioned the arrest on his application. When Agent Sherrill
questioned Sadig about his failure to report his arrest during his
pre-naturalization interview, Sadig responded that while the
adjudicator had asked him most of the questions on the application,
she had not asked him about criminal charges or convictions.
Similarly, when testifying on his own behalf at trial, Sadig
stated that the adjudicator did not ask him every question on the
application and that the interview only lasted between ten and
fifteen minutes. Sadig specifically stated that the adjudicator
did not ask him question 15(b), related to his criminal conduct.
Because he had not been asked, he did not volunteer any
information, consistent with the legal advice he had received.4
4
Sadig’s wife also testified that she and her husband had
considered withdrawing their citizenship applications after Sadig’s
arrest, but decided against it after consulting with their friend,
a law professor at Emory Law School in Atlanta, Georgia. They
decided that Sadig should testify truthfully if asked about his
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Sadig also testified that at the end of his interview, Bryant
handed him numerous documents, in addition to the N-400 form, which
he signed without reading. In particular, Sadig testified that he
did not read the statement regarding providing truthful evidence
under penalty of perjury at the end of the application prior to
signing it.
With respect to Count Three, charging him with attempting to
procure naturalization contrary to law, Sadig filed proposed jury
instructions essentially stating that there is no legal duty for an
applicant to volunteer any information during the pre-
naturalization interview. The government opposed the instruction,
noting that the form itself requires that an applicant affirm at
the conclusion of the interview that everything in the application
is correct. The government argued that the proposed instruction
would be misleading and confusing in light of that requirement.
The district court declined to give the proffered instruction.
Instead, it instructed the jury as to the elements of the offense
by tracking the language of the statute.5
criminal charges that had arisen since the filing of his
application, but that he would not volunteer any information.
5
The judge instructed the jury that Sadig
could be found guilty of [knowingly procuring citizenship
contrary to law] only if each of the following elements
of the crime [was] proved beyond a reasonable doubt:
First, that the defendant procured or attempted to
procure citizenship. Second, that it was contrary to the
law to procure such citizenship. And third, that he knew
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During closing arguments, the government disputed Sadig’s
contention that an applicant has no duty to volunteer information
during a pre-naturalization interview by stating “[t]hat is not the
law and that is not accurate.” J.A. 551. The government explained
to the jury that the purpose of the “under penalty of perjury”
language was to compel an applicant to inform INS if information
contained in the application was inaccurate. See J.A. 242.
The jury acquitted Sadig of Counts One and Two involving
knowingly making false statements, but convicted him of Count
Three. Sadig now appeals, arguing that because the district court
refused to give his proposed jury instructions as to Count Three,
the jury received improper instruction as to the law.
II.
We first turn to the issue of whether the district court
abused its discretion by not giving Sadig’s proposed jury
instruction. United States v. Russell, 971 F.2d 1098, 1107 (4th
Cir. 1992) (a district court’s “decision to give (or not to give)
a jury instruction . . . [is] reviewed for abuse of discretion.”).
A “district court should give the instruction that a criminal
defendant requests as to any defense as long as the instruction: 1)
has an evidentiary foundation; and 2) accurately states the law
it was contrary to the law to procure such citizenship.
J.A. 571-72.
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applicable to the charged offense.” United States v. Stotts, 113
F.3d 493, 496 (4th Cir. 1997). Even if these factors are
satisfied, failure to give the defendant’s instruction is not
reversible error unless a defendant can show that the record as a
whole demonstrates prejudice. See United States v. Ellis, 121 F.3d
908,923 (4th Cir. 1997).
Sadig contends that the district court abused its discretion
by refusing to give his proposed instruction that “[t]he law does
not require that someone being interviewed volunteer information to
the INS.” J.A. 455. This argument is a red herring. While Sadig
is technically correct that no legal requirement compels an
applicant to volunteer information during an interview, the law
does require an applicant to remain eligible for naturalization up
until the date he is administered the oath of allegiance. Further,
the burden is on the applicant to prove such eligibility. Berenyi
v. Dist. Dir., INS, 385 U.S. 630, 637 (1967); 8 C.F.R. § 316.2 (b)
(“The applicant shall bear the burden of establishing by a
preponderance of the evidence that he or she meets all of the
requirements for naturalization[.]”); 8 C.F.R. § 316.10(a)(1) (“An
applicant for naturalization bears the burden of demonstrating that
. . . he or she has been and continues to be a person of good moral
character. This includes the period between the examination and
the administration of the oath of allegiance.”).
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Moreover, the N-400 form and the interview are the process
through which an applicant proves eligibility. The form itself
requires that all information be true as of the date of the
interview and obligates the applicant to sign an oath to that
effect. The applicant imposes a requirement on himself to be
forthcoming by swearing “under penalty of perjury” that the
information in the application is true as of the date of the
interview. See J.A. 242. Even if the applicant does not have a
generalized duty to volunteer information, the oath at the end of
the application specifically and absolutely requires that the
answers be true and correct. Read together, the form and
regulations required Sadig to respond in any manner necessary,
including volunteering information, to ensure that the statements
in the N-400 were accurate.
A jury instruction that the applicant does not have a duty to
volunteer information would fly in the face of the affirmative
obligation to prove his eligibility by answering the questions on
the N-400 form truthfully, and would be at best misleading and at
worst an inaccurate statement of the law. The district court did
not abuse its discretion in refusing to give such an instruction,
and it was well within the province of the jury to decide that
Sadig’s failure to disclose the charges against him constituted the
knowing procurement of citizenship contrary to law.
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Even if Sadig could have shown that the court abused its
discretion, he did not demonstrate that the failure to give his
requested instruction, in light of the record as a whole, was
prejudicial error. See Ellis, 121 F.3d at 923.. To find such an
error, we would have to conclude that the evidence was insufficient
to support a finding that by failing to disclose the charges, Sadig
knowingly procured citizenship contrary to law. Cf United States
v. Tipton, 90 F.3d 861, 883 (4th Cir. 1996). For the reasons
stated above, we cannot reach such a conclusion.
Although Sadig specifically challenged the failure to give his
proffered jury instruction and acknowledged at oral argument that
if we disagree we can properly affirm the district court, out of an
abundance of caution we will briefly address the question of
whether the court’s instruction as to Count Three fairly stated the
controlling law.
III.
We review de novo the legal question of whether a court has
properly instructed the jury on the elements of an offense. United
States v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996). With respect to
the adequacy of the instructions, this court “accord[s] the
district court much discretion and will not reverse provided that
the instructions, taken as a whole, adequately state the
controlling law.” Teague v. Bakker, 35 F.3d 978, 985 (4th Cir.
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1994); see also United States v. Cobb, 905 F.2d 784, 788-89 (4th
Cir. 1990).
Section 1425(a) criminalizes the conduct of any person who
“knowingly procures or attempts 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). As noted
above, the district court instructed the jury that they could only
convict Sadig of this offense if they found (1) that Sadig procured
or attempted to procure citizenship, (2) that it was contrary to
the law to procure such citizenship, and (3) that Sadig knew it was
contrary to the law to procure such citizenship.
Sadig admits, as indeed he must, that the district court’s
instruction accurately tracked the language of the statute.
Nonetheless, for reasons that parallel those in support of his
proffered instructions, Sadig maintains that the jury instruction
did not fairly and adequately state controlling law. According to
Sadig, Cross’s testimony and the government’s closing argument left
the jury with an improper understanding of the law: that there was
a “legal requirement imposed on citizenship applicants to
voluntarily update their application when there is a change as to
one of the questions asked when they originally apply.”
Appellant’s Br. at 13. Therefore, Sadig contends that Cross and
the government misstated the law and the court erred in not
clarifying their misstatements in the jury instructions.
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This argument must also fail. Cross’s testimony and the
government’s closing arguments were not misstatements of the law,
rather they were accurate reflections of the requirements of the N-
400 form. Cross only testified within the scope of his expertise
as to INS procedures and the requirements of its application. He
acknowledged that nothing in the regulations or the adjudicator’s
field manual states that an applicant has a duty to voluntarily
update his application and then simply reiterated the affirmative
obligations imposed by the form and the regulations. To the extent
that Cross testified as to what the law is, it is not a
misstatement that an applicant must remain eligible up until the
time he takes his oath. See Berenyi, 385 U.S. at 637. As we have
already explained, any instruction to the contrary would simply be
incorrect. Similarly, the government’s closing argument merely
enforced what was in fact a correct statement as to the
requirements of the application that the information therein be
true and correct under penalty of perjury. Therefore we must
disagree with Sadig’s contention that the testimony left the jury
with an incorrect understanding of the law that the district court
needed to clarify.
IV.
Because we find that the court did not abuse its discretion in
denying to give Sadig’s proposed jury instruction, and because we
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further find that the district court did not err in its
instruction, the judgment of the district court is
AFFIRMED.
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