United States v. Khalaf ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4590
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NASSER YUSEF MAHMOUD KHALAF,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00020-LHT-DLH-1)
Argued: May 11, 2010 Decided: August 4, 2010
Before WILKINSON and DAVIS, Circuit Judges, and C. Arlen BEAM,
Senior Circuit Judge of the United States Court of Appeals for
the Eighth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: David Grant Belser, BELSER & PARKE, Asheville, North
Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
ON BRIEF: Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In May 2008, a jury found Nasser Yusef Mahmoud Khalaf
guilty of immigration fraud and marriage fraud. The district
court sentenced him to time served. On appeal, Khalaf claims
the district court erred in denying his motions for acquittal,
challenges the sufficiency of the evidence and also challenges
the accuracy and sufficiency of the dates contained in the jury
charge on each count. We affirm.
I.
On June 27, 2005, Khalaf, a Palestinian national residing
in the West Bank, applied for a nonimmigrant visa to visit the
United States. This visa enables the holder to visit the United
States temporarily for pleasure or business. The purpose stated
on Khalaf's application was to visit the United States to
purchase clothing from APS Exports in Columbus, Ohio, for
shipment to Palestine. The application indicated that APS would
pay for his flight to, and accommodations in, the United States.
Additionally, Khalaf answered the standard questions regarding
whether his application was prepared by someone other than
himself (the answer was "no"), and he certified that all of the
information in the application was true and correct to the best
of his knowledge. The application further indicated that he had
previously been denied a visa on one prior occasion, when, in
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fact, he had previously been denied twice. After questioning by
a consular officer and after submitting a supplement to his
application, Khalaf was granted a visa on August 5, 2005.
Khalaf arrived in the United States on October 15, 2005.
At entry, Khalaf told the questioning immigration officer
that he intended to travel to Asheville, North Carolina, and
that he would stay at 68 Tunnel Road in Asheville, which was the
address of a Subway restaurant. The officer gave Khalaf
permission to remain in the United States on a B-2 visa for six
months with no travel restrictions. The government later
extended Khalaf’s departure date to September 30, 2006.
Khalaf never went to Ohio during his time in the United
States. He went immediately to Asheville and later began
working at a Subway. Khalaf met Petra Babb toward the end of
January 2006 when he hired Ms. Babb to work at the Subway. The
two dated for several months and spent nearly every night
together. Babb testified at trial that she recalled several
occasions when Khalaf mentioned his visa expiration date and
that "he needed to find somebody . . . to marry to stay in the
country." Khalaf and Babb married on December 1, 2006.
Khalaf was previously married in Palestine and obtained a
"revocable" divorce from Huda Khalaf on or about August 23,
2005, shortly before his departure from the West Bank. A
revocable divorce in Palestine means that it can be rescinded at
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a later time. According to the testimony of a United States
Immigration and Customs Enforcement (ICE) officer, the United
States government does not accept a revocable divorce as a final
divorce. Ms. Khalaf, along with Khalaf's biological daughter,
actually visited Asheville during the time Babb and Khalaf
courted. Ms. Khalaf applied for a nonimmigrant visa on December
12, 2005, which was granted, and she first entered the United
States in February 2006, remaining for approximately three
months. Ms. Khalaf returned to Asheville on a nonimmigrant
visa, along with her daughter, in October 2006. During her
visits in the United States, Ms. Khalaf stayed at the same
apartment complex where Khalaf resided. On April 4, 2007, Ms.
Khalaf married Abdelaziz Ammar, a United States citizen.
Khalaf and Babb moved in together after their December 1,
2006, marriage. Subsequently Khalaf inexplicably and routinely
would not return home about two to three nights each week.
One month after the marriage Khalaf arranged to transfer
employment to another Subway, "because it meant more money."
So, once married, Babb and Khalaf no longer worked together.
Early in 2007, Khalaf asked Babb if he could use her Medicaid
card in order to get medical care for Ms. Khalaf who had been in
an automobile accident. Khalaf also told Babb at this time that
Ms. Khalaf was pregnant with Khalaf’s second child. Babb then
rented and moved into a subsidized apartment and decided not to
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sponsor Khalaf on his green card application. Suddenly, Khalaf
became "very kind," doing "anything for [her] that he could
possibly do." On June 20, 2007, Babb signed and filed a
petition for alien relative, seeking residency for Khalaf based
upon the parties' marriage. The operative date in the indictment
is July 11, 2007, which is the date Khalaf's petition for
adjustment of immigration status was filed.
On December 6, 2007, an ICE agent arrested Khalaf on
charges of overstaying his nonimmigrant visa and being employed
without authorization. At the time of his arrest, Khalaf told
the agent that prior to coming to the United States he talked
with a friend who told Khalaf he could come to Asheville and
work at Subway. Khalaf mentioned the APS business venture but
explained that he had abandoned that plan when he learned that
people in the West Bank would not wear that clothing. Also,
when shown a copy of his application and his stated reason for
obtaining the visa, Khalaf told the agent that he had never seen
the application before but had gone to "a place that assists
people in applying for Visas." As to his marriage to Babb,
Khalaf claimed it was legitimate and that his relationship with
Ms. Khalaf was "over." However, Khalaf spent the night before
his arrest at Ms. Khalaf's residence. In Khalaf’s pocket at the
time of his arrest was a copy of a passport in the name of
Abdelaziz Ammar (the name of the man Ms. Khalaf had married) and
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Babb's North Carolina ID and driver's license, along with a copy
of the front page of a residential lease for 25 North Ivey
Street in the name of Ms. Khalaf and Abdelaziz Ammar.
Babb withdrew her petition for alien relative on December
13, 2007, following Khalaf's detention by immigration
authorities and after her visit with an immigration agent.
At trial, Khalaf's version of events was that he intended
to visit Ohio upon his arrival in the United States but went to
Asheville first because a friend offered to assist Khalaf with
translating. He explained that he divorced Ms. Khalaf before
leaving the West Bank because she was angry he was not bringing
her to the United States on the alleged business trip. He again
claimed that he loved Babb and that their marriage was
legitimate but testified that Babb drank heavily and did not
always come home. Khalaf acknowledged visiting Ms. Khalaf
frequently during her second visit in the United States but only
because his daughter was with her. He admitted having sex only
once with Ms. Khalaf, which resulted in pregnancy. Khalaf denied
filling out his own nonimmigrant visa application and admitted
that he had a tourist office, in the business of completing
these applications for others, assist him. Khalaf did not sign
his application, but claimed that he had read the application
and that it was all true. As to the portion of his application
stating that APS would pay for his travel and accommodations
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during his United States visit, Khalaf testified he did not
remember that part of the application, but that APS was not
going to pay him for these expenses. Any mistakes on his visa
application, he claimed, were the fault of the person who helped
him prepare the application.
II.
Following the government’s evidence, and again at the close
of all of the evidence, Khalaf moved under Federal Rule of
Criminal Procedure 29 for dismissal due to insufficient
evidence. We review the district court’s denial of a Rule 29
motion for judgment of acquittal de novo. United States v.
Kingrea, 573 F.3d 186, 194 (4th Cir. 2009); Fed. R. Crim. P. 29.
We are obliged to sustain a guilty jury verdict “if, viewing the
evidence in the light most favorable to the government, it is
supported by substantial evidence.” Kingrea, 573 F.3d at 194(quotation omitted). This court “ha[s] defined substantial
evidence as evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” United States v.
Alerre, 430 F.3d 681, 693 (4th Cir. 2005) (internal quotation
omitted). In conducting our review, we consider both
circumstantial and direct evidence, drawing all reasonable
inferences from such evidence in the government’s favor. United
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States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). Khalaf, as
the defendant challenging the sufficiency of the evidence,
“bears a heavy burden.” United States v. Beidler, 110 F.3d
1064, 1067 (4th Cir. 1997) (internal quotation omitted).
Here, the government presented circumstantial evidence that
Khalaf obtained and used his nonimmigrant visa knowing that it
was procured by means of a false claim or statement, as
proscribed by 18 U.S.C. § 1546(a), and as charged in Count I.
Section 1546(a) states:
Whoever knowingly . . . utters, uses, attempts to use,
possesses, obtains, accepts, or receives [any
immigrant or nonimmigrant visa] . . . or other
document prescribed by statute or regulation for entry
into or as evidence of authorized stay or employment
in the United States, knowing it to . . . have been
procured by means of any false claim or statement, or
to have been otherwise procured by fraud or unlawfully
obtained [shall be fined or imprisoned].
18 U.S.C. § 1546(a).
Khalaf essentially argues that the jury failed to give
proper weight to his testimony, but this court does not weigh
evidence or review witness credibility. United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Rather, it is the
role of the jury to judge the credibility of witnesses, resolve
conflicts in testimony, and weigh the evidence. United States
v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984). Here, stated in
simplest terms, the jury did not believe Khalaf’s version of
events.
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It is axiomatic that evidence of conduct after a statement
is made can certainly bear upon the intent of the declarant at
the time he made the statement. That is, Khalaf’s conduct
subsequent to his procurement of his nonimmigrant visa tended to
prove the falsity of his statement that the intended purpose of
his trip was to travel to Ohio to conduct business.
Notwithstanding Khalaf’s testimony that he had every intention
of going to Ohio to further his business ventures at the time he
applied for, and ultimately used, this nonimmigrant visa, we
find that the evidence, when viewed in the light most favorable
to the government, clearly supports the jury’s finding.
Likewise there was sufficient evidence that Khalaf entered
into the marriage with Babb for the purpose of evading a
provision of the immigration laws, as charged in Count II. See
8 U.S.C. § 1325(c). A conviction under section 1325(c) requires
the government to prove: (1) that the alien knowingly entered
into a marriage; (2) the marriage was entered into for the
purpose of evading a provision of the immigration laws; and (3)
the alien knew or had reason to know of the immigration laws.
United States v. Islam, 418 F.3d 1125, 1128 (10th Cir. 2005).
Despite Khalaf’s persistent attempts to focus our attention on
Babb’s belief in the legitimacy of her relationship with Khalaf
at the time the two wed, Babb’s state of mind is not at issue
today. And, while Babb’s subjective belief could be probative
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of the issue regarding the marriage’s legitimacy, it does not
carry the day as Khalaf seems to argue, and certainly does not
establish Khalaf’s intent. After reviewing the record in the
light most favorable to the government, we find the evidence
presented clearly supports the jury’s finding that Khalaf
engaged in marriage fraud in violation of 8 U.S.C. § 1325(c).
Accordingly, we conclude that there is substantial evidence
supporting the jury verdict on each count. The jury’s
conclusion that Khalaf never intended to further his clothing
business, but rather carried out a carefully crafted course of
action to use his marital status to attempt to alter his
immigration status is supported by substantial evidence.
Accordingly, the district court properly denied Khalaf’s Rule 29
motions for acquittal.
III.
Khalaf also challenges the dates charged to the jury on
each count. He does not, however, challenge the legal
sufficiency or validity of the indictment. We review for abuse
of discretion a district court’s rulings on jury instructions.
United States v. Bolden, 325 F.3d 471, 486 (4th Cir. 2003). The
reviewing court will not reverse “provided that the
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instructions, taken as a whole, adequately state the controlling
law.” Teague v. Bakker, 35 F.3d 978, 985 (4th Cir. 1994). *
Particularly, the instructions charged that Khalaf engaged
in visa fraud on or about October 15, 2005, the date Khalaf
entered the United States, until December 6, 2007, the date of
his arrest. The district court also instructed:
The indictment charges that the offenses were
committed on or about a certain date or dates. The
proof need not establish with certainty, the exact
date of the alleged offense. It is sufficient if the
evidence establishes beyond a reasonable doubt, that
the offense in question was committed on a date
reasonably near the date alleged.
Khalaf claims this unnecessarily expanded the statutory
offense, impermissibly suggested to the jury that the offense
was a continuing one, and confused and misled the jury in
violation of the Due Process Clause. If a crime was committed
at all, claims Khalaf, it was when the application was made in
Palestine, not four months later when he arrived in the United
States.
Section 1546(a) states that whoever "uses, attempts to use,
possesses, obtains, accepts, or receives" any "immigrant or
nonimmigrant visa," knowing the visa "to have been procured by
means of any false claim or statement" shall be fined or
imprisoned not more than ten years in the case of a first
*
Khalaf preserved his objections at trial regarding these
instructions, contrary to the government's claim on appeal.
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offense. 18 U.S.C. § 1546(a). Using the dates “on or about
October 15, 2005, until on or about December 6, 2007,” while not
a model of clarity, adequately instructs the jury under the
statute. Indeed, Khalaf used and possessed the nonimmigrant
visa during the times charged. Therefore, the district court
did not abuse its discretion when it allowed the “on or about”
dates as charged on the visa fraud count.
As to the marriage fraud count, Khalaf claims the court
abused its discretion when it included “on or about July 11,
2007” in the jury charge because that is the date he filed for
adjustment of status and not the actual date of marriage, which
was December 1, 2006, the only date Khalaf claims marriage fraud
could occur. Here, too, Khalaf claims this inclusion was
misleading and confusing in violation of the statute and denied
him due process because it invited the jury to convict Khalaf
for taking advantage of his legitimate but failing marriage to
obtain a more favorable immigration status. The statute
criminalizes "enter[ing] into a marriage for the purpose of
evading any provision of the immigration laws." 8 U.S.C. §
1325(c). While the date of December 1, 2006, could have been
included in the charging document and jury charge, allowing the
date on which Khalaf relied upon that marriage to adjust his
immigration status was not an abuse of discretion. It was on
the later date that the purpose behind the sham marriage-evading
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a provision of the immigration laws-revealed itself.
Accordingly, the district court did not abuse its discretion.
For the foregoing reasons, we affirm.
AFFIRMED
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