United States v. Amir Reza Katkhordeh ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1138
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Amir Reza Katkhordeh, *
*
Appellant. *
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Submitted: October 20, 2006
Filed: February 22, 2007
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Before SMITH, BOWMAN, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
A jury convicted appellant Amir Reza Katkhordeh of knowingly making a false
statement of material fact on his visa application, in violation of 18 U.S.C. § 1546(a).
He was sentenced to a term of six months’ imprisonment. Katkhordeh appeals,
arguing that there was insufficient evidence to support the verdict. We affirm the
judgment of the district court.1
1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
I.
Katkhordeh, a native and citizen of the Islamic Republic of Iran, immigrated to
the United States on June 20, 2000. Prior to his arrival, Katkhordeh applied for and
received a special preference visa under 8 U.S.C. § 1153(a)(2)(B), as the unmarried
son of a lawful permanent resident. On his visa application, Katkhordeh listed himself
as “Single (Never Married).” When asked to list the name of his spouse, if any, he
replied “N/A (not applicable),” and he gave the same response when asked to list his
children.
In 2003, Katkhordeh applied to join the Army Reserves. The military provides
extra pay and benefits to soldiers with spouses and children, and Katkhordeh
submitted a signed form stating that he had been married since 1993, and had a son
who was born in 1998. He also submitted an English translation of his wife’s Iranian
identity card, which corroborated these statements. This document listed the date of
marriage as 1993 and included the name of a son and his date of birth.
In November 2005, a grand jury charged Katkhordeh with knowingly making
a false statement of material fact in his visa application. The indictment alleged that
the application contained two false statements: (1) that Katkhordeh was unmarried,
and (2) that Katkhordeh had no children. The district court instructed the jury that it
could find Katkhordeh guilty if the government proved beyond a reasonable doubt that
either statement knowingly misrepresented a material fact, so long as the jury agreed
unanimously on at least one material misrepresentation. The jury returned a verdict
of guilty.
II.
Katkhordeh challenges the sufficiency of the evidence supporting his
conviction. He argues the government failed to prove either that he was married at the
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time he applied for a visa, or that his statement that he had no children was knowingly
and materially false. When we review a claim that the evidence was insufficient to
support a conviction, we view the evidence in the light most favorable to the
prosecution. We accept all reasonable inferences in favor of the verdict, and affirm
unless no reasonable juror could have convicted the defendant. United States v.
Walker, 393 F.3d 842, 846 (8th Cir.), cert. denied, 126 S. Ct. 463 (2005).
Katkhordeh qualified for a special preference visa only if he was unmarried
when he entered the United States. 8 U.S.C. § 1153(a)(2)(B). To convict Katkhordeh
of falsely representing that he was unmarried, the government was required to prove
beyond a reasonable doubt that Katkhordeh was indeed married prior to his entry into
the United States on June 20, 2000. For evidence of this fact, the government relied
on documents Katkhordeh submitted when he applied to the Army Reserves in 2003.
In his signed application, Katkhordeh listed Fatemeh Lotfi Afshar as his spouse and
stated that they were married on April 8, 1993. Katkhordeh’s military file also
included a copy of Afshar’s Iranian identity card, which lists the same marriage date.
Although there was a skirmish at trial about precisely how the identity card was
furnished to the Army, Katkhordeh ultimately admitted that he submitted the
document as proof of marriage and proof of a child. (T. Tr. at 376).
The government buttressed this documentary evidence with the testimony of
FBI Agent Frederick Aldridge, who had interviewed Katkhordeh in the course of the
criminal investigation. According to Aldridge, Katkhordeh admitted that the Iranian
government considered him officially married in 1993, and that he considered himself
married in 1997, just prior to the birth of his son. (T. Tr. 247).
Katkhordeh’s defense at trial was that he and Afshar were not married, but had
a relationship known in Iran as a sigheh. A sigheh, as recognized in Shi’a Islam, is
a temporary relationship between a man and a woman that falls short of marriage. The
defense relied primarily on Katkhordeh’s testimony and four exhibits. First, a
document titled “Common Law Marriage Covenant,” which purports to be a sigheh
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agreement between Katkhordeh and Afshar, and is dated April 8, 1993. Second, an
Iranian marriage certificate, stating that Katkhordeh and Afshar were married on July
10, 2000, after Katkhordeh arrived in the United States. Third, an affidavit from an
“Official Marriage Minister” in Iran stating that Katkhordeh’s 1993 ceremony was a
sigheh, not a permanent marriage. Finally, an affidavit from Afshar, stating that she
had been “in concubine relation with” Katkhordeh prior to his arrival in the United
States. A defense expert, an Iranian-born special education teacher, stated that
although she had never before seen a sigheh agreement, she had no reason to question
the authenticity of these documents.
A government expert questioned the reliability of the defense exhibits, and
supported the validity of the government’s documents. The witness, Ladan Archin,
is a native Iranian who works for the Department of Defense and specializes in Iran
and Iraq policy. Archin testified that Afshar’s identity card, which lists the date of her
marriage to Katkhordeh as April 1993, appears to be a copy of an official Iranian
document. In contrast, Archin testified that defense exhibit 7, purporting to be a
“Common Law Marriage Covenant,” does not resemble an official sigheh agreement,
because it is handwritten and contains no government stamps. Archin also opined that
it was unlikely, after Afshar became pregnant in 1997, that Katkhordeh and Afshar
remained in a sigheh as opposed to an official marriage, because unwed mothers in
Iran are extremely rare. Archin testified that the date on the defense’s marriage
certificate, July 10, 2000, could have been the date Katkhordeh recorded his marriage,
rather than the actual date of his marriage. Finally, Archin testified that in her
opinion, based on the documentary evidence and her knowledge of Iranian culture,
Katkhordeh and Afshar were married in 1993.
We conclude that the evidence was sufficient to allow a reasonable juror to
convict Katkhordeh for falsely stating that he was unmarried when he entered the
United States. Katkhordeh’s signed application to the Army Reserves stated that he
was married in 1993, and he submitted his wife’s official Iranian identity card to
confirm this information. While the defense countered with documents of its own, a
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reasonable juror could have credited the government’s evidence, especially in light of
expert testimony that cast doubt on the defense exhibits and offered an expert opinion
that Katkhordeh was married in 1993. The jury was also entitled to discount
Katkhordeh’s testimony that his 1993 relationship was merely a sigheh, in light of his
statements to the Army Reserves and to FBI agents that he was married in 1993 or
1997. Based on this evidence, a reasonable juror could have found that Katkhordeh
was married prior to 2000.
Katkhordeh argues that the government did not introduce “normal evidence of
marriage,” such as proof that Katkordeh and Afshar shared the same name, household,
and finances. Relying on Garcia-Jaramillo v. INS, 604 F.2d 1236, 1238 (9th Cir.
1979), he argues that “valid marriages entered into by parties not intending to live
together as husband and wife are not recognized for immigration purposes.” Adams
v. Howerton, 673 F.2d 1036, 1040 (9th Cir. 1982). Garcia-Jaramillo, however,
simply recognized that where an alien enters into a “sham” marriage with an
American citizen for the purpose of evading the immigration laws of the United
States, the alien will not be eligible for benefits accorded to certain “married” aliens.
There is no suggestion that Katkhordeh’s marriage in Iran prior to 2000 was
undertaken for the purpose of evading the immigration laws, so the precedents
concerning “sham” marriages in the immigration context are inapplicable. The
absence of sharing arrangements for names, households, and finances does not, as a
matter of law, render a legally married person nonetheless “unmarried” for purposes
of 8 U.S.C. § 1153(a)(2)(B), such that he is eligible for a special preference visa.
Katkhordeh also argues that there was insufficient evidence to show that he
made a false statement on his visa application when he claimed to have no children.
He contends that his statement was not material to his visa application, see United
States v. West Indies Transp., Inc., 127 F.3d 299, 305 (3d Cir. 1997), and that there
was insufficient evidence that he knew he had a child at the time he applied for a visa.
We need not consider these points, because there was sufficient evidence to convict
Katkhordeh on the ground that he falsely claimed in his visa application that he was
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unmarried. When the district court submits to the jury two grounds for conviction,
one of which is supported by sufficient evidence and one of which is not, and it is
impossible to tell on what ground the jury unanimously convicted the defendant, we
assume the jury based its general verdict of guilty on the sufficient ground. United
States v. Mullins, 446 F.3d 750, 756-757 (8th Cir. 2006); see Griffin v. United States,
502 U.S. 46, 56-57 (1991). Therefore, even assuming for the sake of argument that
the evidence was insufficient to convict Katkhordeh for making a false statement
regarding his child, the verdict would stand.
* * *
For these reasons, the judgment of the district court is affirmed.
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