United States v. Olusola

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 8, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-5214
v. (N.D. Oklahoma)
SA RA H ME RC Y O LU SO LA , (D.C. No. 06-CR-72-01-CV E)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, A ND ER SO N and BROR BY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant/appellant Sarah M ercy Olusola was found guilty, following a
jury trial, of one count of making a false statement on a passport application, in
violation of 18 U.S.C. § 1542, and one count of making a false claim to be a
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
U nited States citizen, in violation of 18 U.S.C. § 911. She was sentenced to two
years probation, to run concurrently, and was assessed a $100 fine per count, as
well as a $100 special monetary assessment per count. Olusola appeals her
conviction, which we affirm.
BACKGROUND
On August 26, 2001, Olusola, a citizen of Nigeria, entered the United
States as a non-immigrant M -1 student, planning to study at the Rhema Bible
Training Center in Broken Arrow, Oklahoma. 1 Olusola’s visa was valid through
June 30, 2005. At some point between her arrival and the expiration of her visa
on June 30, 2005, Olusola’s status shifted from M -1 to M -2, indicating that she
was married to an M -1 student.
On December 22, 2004, Olusola made an I-360 special immigrant petition
to become a religious worker with Air Travel and Tours, an entity which arranged
tours to Nigeria. Olusola, an attorney in Nigeria, represented that she was the
director and president of Air Travel and Tours. On July 8, 2005, the I-360 special
immigrant petition was denied because Air Travel and Tours was not a religious
organization. Olusola applied for and received tax exempt status for Air Travel
and Tours as a not-for-profit charitable organization.
1
An M -1 student is a vocational or other non-academic student.
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In June 2005, both Olusola and her husband filed I-539 forms to become
religious workers. Those were approved and Olusola became an R-2 non-
immigrant, while her husband was an R-1 non-immigrant. This extended
Olusola’s visa until June 30, 2008.
On September 30, 2005, Olusola applied for a United States passport at the
United States Post Office in Broken Arrow, Oklahoma. On the application, she
indicated that her parents, Daw n Louise Gore and Charles Chester Brooks III,
were born in the United States. As proof of her identity, Olusola provided her
Oklahoma drivers license. As proof of her citizenship, Olusola provided a State
of Oklahoma “Certificate of Foreign Birth,” dated July 20, 2005, which indicated
that Olusola was born in Lagos, Nigeria, on M arch 24, 1964. 2 The Certificate
clearly states the following: “This Certificate is Not Proof of U.S. Citizenship.”
Olusola swore the information on the application was correct and recited the oath
before United States postal employee Jack Hope. By signing the application,
Olusola represented the following: “I declare under penalty of perjury that I am a
United States citizen.”
On October 24, 2005, the passport application was forwarded first to the
Houston Passport Agency Anti-Fraud Office and then to the Diplomatic Security
Service for investigation because of Olusola’s use of the Certificate of Foreign
2
Oklahoma typically issues Certificates of Foreign Birth to adults who
adopt foreign-born children. There is no prohibition, however, against one being
issued to an adopted adult.
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Birth as proof of her United States citizenship. The Houston Passport Agency
discovered that, on July 12, 2005, Olusola had been adopted in Oklahoma by
Dawn Louise Gore and Charles Chester Brooks III, both U nited States citizens.
On January 18, 2006, Olusola was interviewed by a special agent with the
United States Department of State Diplomatic Security Service. The agent
testified at her trial that Olusola was “uncooperative and not forthcoming.” Tr. of
Jury Trial at 44, R. Vol. III.
Olusola testified at her trial that she thought her adoption by Gore and
Brooks w ould bestow upon her United States citizenship: “It meant I was a
citizen because I was adopted.” Id. at 57. How ever, she conceded on cross-
examination that the Certificate of Foreign Birth “doesn’t go to [her] citizenship
at all.” Id. at 61. She also conceded that there was never any assurance or
reference to Olusola becoming a citizen during the adoption proceeding. Olusola
admitted she “did not go through a naturalization process,” id. at 64, and that no
representative of the U nited States government had ever told her she w as a
citizen. The jury returned guilty verdicts on both counts.
Olusola appeals, arguing that it was plain error for the district court to fail
to give the jury an instruction on good faith. W e affirm.
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D ISC USSIO N
“W hen no objection to a jury instruction was made at trial, the adequacy of
the instruction is reviewed de novo for plain error.” United States v. Visinaiz,
428 F.3d 1300, 1308 (10th Cir. 2005), cert. denied, 126 S. Ct. 1101 (2006).
“Plain error occurs when there is (i) error, (ii) that is plain, which (iii) affects the
defendant’s substantial rights, and which (iv) seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Ruiz-
Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007). Thus, we must determine if it
was plain error for the district court to fail to give a good faith instruction.
“A defendant is entitled to a good faith instruction when he has interposed
the defense of good faith, has requested the instruction, and when there is
sufficient evidence to support it.” United States v. Overholt, 307 F.3d 1231, 1247
(10th Cir. 2002). Furthermore, unlike most other circuits, “[w]e have held that
when those conditions are met, a good faith instruction is required, even if an
instruction on willfulness has been given.” Id.Olusola argues that she “squarely raised good faith as her sole theory of
defense.” Appellant’s Br. at 8. Olusola did testify at several points that she
thought her adoption by two United States citizens made her a citizen. The
special agent who interviewed her also testified that she told him she thought the
adoption conferred citizenship. However, she also conceded that the adoption
decree “doesn’t go to [her] citizenship at all.” Tr. of Jury Trial at 61, R. Vol. III.
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Furthermore, she conceded that she did not attach the adoption decree to her
passport application, nor did she even bring it with her when she filled out and
signed the application, thereby undermining her claim that her belief in her
citizenship was based upon the adoption decree.
Additionally, in closing arguments, Olusola’s counsel did not argue good
faith. Rather, he argued that Olusola sent her passport application off and
expected the government to tell her if she was or was not a citizen:
She fills out a passport application, she says on there she’s a citizen,
she sends it off to the U nited States government. W ho better knows
if she’s a citizen or not but the United States Government. She
expected to hear back from them. No, you’re not a citizen. Yes, you
are a citizen. She knew she hadn’t gone through any naturalization
process.
Tr. of Closing Arguments at 10, R. Supp. Vol. II. That is hardly consistent with
the defense that she sent off her passport application in good faith, believing that
her adoption had automatically conferred citizenship on her. Additionally,
Olusola was hardly a naive or unsophisticated person. Rather, she had been
trained as a law yer in Nigeria; she had filled out paperwork to successfully
petition for changes in her legal status in the United States; and she had
negotiated the process of having her company, of which she was the director and
president, be declared a not-for-profit charitable institution. This all undermines
her claim that she thought her adoption decree automatically changed her
citizenship status in the United States.
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Accordingly, even were we to agree that she argued good faith as a defense
at trial, the evidence does not support such a defense. Because the evidence did
not support such a defense, it was not error, let alone plain error, for the district
court to fail to give such an instruction.
C ON CLU SIO N
For the foregoing reasons, we AFFIRM the judgment in this case.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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