United States v. Okoro ( 2021 )

Case: 20-20631 Document: 00515830051 Page: 1 Date Filed: 04/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 21, 2021
No. 20-20631 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Chijioke Victor Okoro, also known as Chiji V. Okoro, also
known as Victor Okoro,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:19-CV-4837
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Chijioke Victor Okoro appeals the district court’s order granting the
Government’s Rule 12(c) Motion for Judgment on the Pleadings. Okoro was
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-20631
naturalized in 1999 but convicted of various federal crimes in 2002. The
Government moved to revoke his naturalization. We AFFIRM.
I. Factual and Procedural History
Chijioke Victor Okoro was a licensed physician in Houston, Texas
from 1989 to 2003. He owned and operated several medical clinics. Okoro is
a native of Nigeria, and he applied for naturalization in November 1997.
Immigration and Naturalization Services (INS) approved his application in
May 1999. On June 25, 1999, Okoro was admitted as a naturalized citizen and
issued a Certificate of Naturalization.
In February 2002, a grand jury indicted Okoro on twenty-five counts,
including (1) fifteen counts of mail fraud under 18 U.S.C. § 1341; (2) three
counts of filing false federal income tax returns under 26 U.S.C. § 7206(1);
and (3) seven counts of health care fraud under 18 U.S.C. § 1347.The counts
stemmed from Okoro’s conduct between 1995 and 2002. During that time,
Okoro billed Medicare for treatments that he never provided and funneled
the excess payments to his clinics. In October 2002, a jury convicted him of
all twenty-five counts. Okoro was ultimately sentenced to 151 months
imprisonment and three years of supervised release in August 2005.1
In December 2019, the Government filed a complaint seeking
revocation of Okoro’s naturalization on four grounds: (1) he illegally
procured naturalization because he committed a crime involving moral
turpitude during the statutory period; (2) he illegally procured his
naturalization because he committed unlawful acts adversely reflecting on his
moral character during the statutory period; (3) he illegally procured
1
Okoro was originally sentenced to the same length of imprisonment in 2002, but
he appealed. We affirmed his conviction and remanded for resentencing. United States v.
Okoro, 213 F. App’x 348, 352 (5th Cir. 2007) (per curiam).
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naturalization by providing false testimony during his naturalization
interview; and (4) he willfully misrepresented and concealed material facts
during his naturalization proceedings.
The district court granted the Government’s Rule 12(c) motion,
concluding that Okoro illegally procured his naturalization while having
committed unlawful acts adversely reflecting on his moral character. The
district court did not reach the other grounds for the motion. This appeal
followed.
II. Standard of Review
“We review [the] district court’s dismissal under Federal Rule of
Civil Procedure 12(c), applying the same de novo standard as to a Rule
12(b)(6) motion to dismiss.” Aldridge v. Miss. Dep’t of Corr., 990 F.3d 868,
873 (5th Cir. 2021).
III. Discussion
Okoro argues that the district court erred when it granted the
Government’s motion. He argues that the granting of the motion violated his
right to due process and that the motion was improperly granted in light of
material fact issues and possible affirmative defenses.
1. Due Process Concerns
Okoro asserts that the district court erred by granting the motion
because “denaturalizing an individual without the full benefits of trial results
in severe due process deprivations.” We disagree.
Okoro argues that he was deprived of his right to allocution before
being deemed denaturalized. Federal Rule of Criminal Procedure
32(i)(4)(A)(ii) requires sentencing judges to permit defendants to speak
before they are sentenced. FED. R. CRIM. P. 32(i)(4)(A)(ii). The right is
only guaranteed in criminal proceedings. See FED. R. CRIM. P. 1(a)(1)
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(“These rules govern the procedure in all criminal proceedings in the United
States district courts, the United States courts of appeals, and the Supreme
Court of the United States.). “A denaturalization suit is not a criminal
proceeding.” Schneiderman v. United States, 320 U.S. 118, 160 (1943). Okoro
did not have a right to allocution under the Federal Rules, and we decline his
invitation to expand the right to non-criminal proceedings.
Okoro does not identify any other rights of which he was allegedly
deprived. Moreover, our sister circuits have concluded that denaturalization
proceedings require fewer due process protections than criminal
proceedings. See United States v. Mandycz, 447 F.3d 951, 962 (6th Cir. 2006);
United States v. Schellong, 717 F.2d 329, 336 (7th Cir. 1983). We thus cannot
conclude that Okoro was deprived of his right to due process.
2. Merits of the Government’s Motion
Okoro next argues that the district court impermissibly granted the
Government’s motion because there were material fact issues and affirmative
defenses that he could have raised. We disagree.
Though the Government listed four justifications for denaturalizing
Okoro, the district court only granted the motion pursuant to one of the
Government’s justifications. The district court concluded that the pleadings
demonstrate that Okoro committed unlawful acts reflecting on his moral
character during the statutory period.
To acquire citizenship, one must meet several statutory requirements
under 8 U.S.C. § 1427. Section 1427(a)(3) provides that “[n]o person . . .
shall be naturalized unless such applicant . . . during all the periods referred
to in this subsection has been and still is a person of good moral character . .
. .” Applicants must maintain good moral character for a statutory period
spanning from five years before they file their application for naturalization
to the day that they take the oath. Id. at § 1427(a).
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Though Congress did not define “good moral character,” it listed
convictions for various offenses that prevent individuals from establishing
good moral character. See 8 U.S.C. § 1101(f)(1)–(9); 8 C.F.R. § 316.10(b)(1)–
(3). The list is not exhaustive. See § 1101(f)(9) (“The fact that any person is
not within any of the foregoing classes shall not preclude a finding that for
other reasons such person is or was not of good moral character.”).
Applicants must also avoid committing offenses that adversely reflect upon
their moral character during the statutory period. See § 316.10(b)(3)(iii).
We must determine whether the Government’s pleadings
demonstrate by “clear, convincing, and unequivocal evidence” 2 that Okoro
lacked good moral character from November 6, 1992 to June 25, 1999. The
Government’s complaint alleges that between June 1996 and June 1999,
Okoro committed criminal acts including mail fraud and aiding and abetting
in violation of 18 U.S.C. §§ 1341 and 2.
Okoro was convicted in 2002, more than three years after the period
during which he was required to demonstrate good moral character. Though
Okoro was not convicted of these offenses during the statutory period, the
Government proved that he committed the offenses during that time. Okoro’s
offenses involve “dishonesty, false, statement, or fraud [and] reflect
adversely on moral character.” United States v. Dor, 729 F. App’x 793, 798
(11th Cir. 2018) (per curiam).
The offenses fall within § 316.10(b)(3)(iii)’s prohibition on offenses
that adversely reflect upon one’s moral character. The statute compels the
conclusion that Okoro lacked good moral character absent extenuating
circumstances. Id. at § 316.10(b)(3)(iii). The district court concluded that
2
Fedorenko v. United States, 449 U.S. 490, 505 (1981) (quoting Schneiderman, 320
U.S. at 125).
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Okoro did not present evidence of any extenuating circumstances, and we
agree.
Okoro’s final argument is that he has affirmative defenses of laches
and the statute of limitations. However, he failed to raise those defenses
before the district court. Okoro’s only claim to an affirmative defense is a
statement in his answer that “[He] Will Assert Appropriate Affirmative
Defenses to the Government Claim.”
Okoro argues that his statement adequately raised affirmative
defenses, but he relies on cases that are readily distinguishable. He relies on
United States v. GSD&M Idea City LLC, No. 3:11–CV–1154, 2014 WL
11320447 (N.D. Tex. June 10, 2014). In GSD&M Idea City, the district court
concluded that a non-pleaded affirmative defense was adequately raised
because the elements of the defense appeared “on the face of the complaint
and in judicially noticeable facts and materials.” 2014 WL 11320447 at *3.
No affirmative defenses are apparent from the pleadings, so the
district court could not consider any potential defenses. Okoro failed to raise
the defenses and may not present them for the first time on appeal. See FDIC
v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994) (“If an argument is not raised to
such a degree that the district court has an opportunity to rule on it, we will
not address it on appeal.”).
IV. Conclusion
For the aforementioned reasons, we AFFIRM the district court’s
order granting the Government’s Rule 12(c) Motion for Judgment on the
Pleadings.
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