United States v. Geoffry Kouevi

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 10-3529
UNITED STATES OF AMERICA
v.
GEOFFRY KOUEVI
a/k/a Kangni
GEOFFRY KOUEVI,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(Crim. No. 2-07-cr-00785-004)
District Judge: Hon. Jose L. Linares
Argued: October 5, 2011
Before: McKEE, Chief Judge, FUENTES, Circuit Judge, and
GREENBERG, Senior Circuit Judge
(Opinion filed: October 24, 2012)
MICHAEL A. BALDASSARE, ESQ. (Argued)
Baldassare & Mara, LLC
57 Broad Street, Suite 900
Newark, New Jersey 07102
Attorney for Appellant
PAUL J. FISHMAN, ESQ.
United States Attorney
CAROLINE SADLOWSKI, ESQ. (Argued)
Deputy Chief, Appeals Division
970 Broad Street
1
Newark, New Jersey 07102
Attorneys for Appellee
OPINION
McKEE, Chief Judge.
Geoffry Kouevi appeals his convictions for visa fraud
and conspiracy to commit visa fraud. His primary argument
on appeal is that his conduct is not criminalized by the part of
the statute he was indicted under. His appeal raises a question
of statutory construction that is an issue of first impression in
this Circuit. For the reasons that follow, we will affirm the
judgment of conviction.
I. FACTS AND PROCEDUDRAL HISTORY
Geoffry Kouevi, also known as “Kangni,” was born
and raised in Lome, Togo. The Government contends that
from 2001 until 2005, Kouevi conspired with others to use
fraudulent means to obtain “authentic” visas for at least 34
people through the American Embassy in Togo, and that
those persons then used those visas to enter the United States.
The scheme involved “diversity visas.”
The United States makes diversity visas available to
citizens of countries who send relatively low numbers of
immigrants to the United States each year. The visas are a
means of promoting diversity within the annual pool of
immigrants entering the United States. See Coraggioso v.
Ashcroft, 355 F.3d 730, 732 (3d Cir. 2004) (citing 8. U.S.C.
§ 1153(c)). Individuals in Togo applied for diversity visas
by entering the diversity visa lottery. If they won that lottery,
they became eligible to apply for permanent resident status in
the United States, and if that status was granted, they were
then permitted to immigrate with their spouse and children.
The lottery winners were classified as DV-1 applicants;
spouses were classified as DV-2 applicants; and their children
were classified as DV-3 applicants.
According to the evidence at Kouvei‟s trial, Kouevi
worked for the leader and organizer of the conspiracy,
Akouavi Kpade Afolabi, otherwise known as “Sister,” and
with other co-conspirators, to obtain authentic visas through
2
fraudulent means by working with individuals in Togo who
were actually eligible for diversity visas, but were unable to
either complete the necessary paperwork, pay the required
fees, or afford the airfare to the United States. According to
the Government, Afolabi paid the required fees of persons
who were eligible for the diversity lottery and assisted them
in completing their paperwork. In exchange, Afolabi required
the applicants to falsely represent that other unrelated
individuals were their spouses and/or children, so that those
individuals could also obtain visas to enter the United States
under the program.
Kouevi played two roles in this conspiracy. He was
responsible for coordinating the preparation of false
documents used to support the fraudulent visa applications,
and he tutored participants in the details of their false
identities to prepare them for their interviews at the American
Embassy in Togo. He also accompanied visa applicants to
government offices in Togo and helped them acquire false
passports, marriage certificates, and similar documents
required to support their visa applications. This included
obtaining additional false evidence of purported relationships
including fake wedding rings and fake wedding pictures. He
quizzed the applicants about the details of their identities and
otherwise coached them in how to successfully interview at
the American Embassy. He then took them to the American
Embassy for their interviews. In return, Afolabi helped
Kouevi fraudulently obtain his own visa and paid his costs for
the visa and airfare to come to the United States.
Kouevi came to the attention of The Department of
Homeland Security (“DHS”) after Afolabi was arrested. DHS
Investigators concluded that Afolabi had enticed girls as
young as 13 from villages in West Africa with promises of
education and employment in the United States. The
Government contends that, using the visas she obtained with
the assistance of Kouevi and others, Afolabi, brought the girls
to the United States and forced them to work at hair braiding
salons for up to 16 hours a day, 6 to 7 days a week, for
several years, without any pay. These girls were forced into
what can only be described as “slave labor;” they were also
subjected to beatings, verbal and psychological abuse and
rape.
3
On January 15, 2009, a federal grand jury sitting in
Newark, New Jersey, returned a 23-count Superceding
Indictment against Afolabi, Kouevi and two others. Kouevi
was charged with one count of conspiracy to commit visa
fraud, in violation of 18 U.S.C. § 371; and two counts of visa
fraud, in violation of 18 U.S.C. § 1546(a) and § 2 (aiding and
abetting).
On July 14, 2009, the district court severed Kouevi‟s
case from his co-defendants, who were charged with more
serious crimes, including forced labor.1 A federal grand jury
subsequently returned a two-count indictment charging
Kouevi with conspiracy to commit visa fraud, in violation of
18 U.S.C. § 37, and visa fraud, in violation of 18 U.S.C. §
1546(a).
The Government called nine witnesses at the ensuing
trial. They included Ouyi Nabassi, Bella Hounakey (“B.H.”),
Awa Fofana (“A.F.”), Ahoeft Amah (“A.A.”), and Vida
Anagblah (“V.A.”). These witnesses testified about their own
visa applications and embassy interviews, and their
interactions with and observations of Afolabi and Kouevi in
connection with those applications and interviews, and the
applications and interviews of others.
The jury convicted Kouevi on both counts and he was
sentenced to 26 months imprisonment. This appeal followed.
II. DISCUSSION2
1
Because the DHS concluded that Kouevi did not know that
his co-conspirators were engaged in forced labor, he was not
charged with that offense.
2
In his brief, Kouevi makes five arguments in support of his
appeal. However, only one issue merits discussion, i.e., that
his conviction for violating the first paragraph of 18 U.S.C. §
1546(a) should be reversed because that provision of the
statute does not criminalize the use of authentic immigration
documents that are procured by fraud. The other four
arguments are as follows: (1) the conviction for violating §
1546(a) must be reversed because it was based on an
unconstitutional constructive amendment of the indictment;
4
A. THE CONVICTION FOR VIOLATING 18 U.S.C. §
1546(a).
Kouevi contends that his conviction for violating 18
U.S.C. § 1546(a) should be reversed because the paragraph of
the statute he was convicted of violating does not criminalize
activities involving authentic immigration documents. His
argument attempts to distinguish between producing a
counterfeit or fraudulent passport or visa and obtaining an
authentic passport or visa by fraudulent means. He argues that
Congress only intended to criminalize the former conduct and
since the evidence here only proved the latter conduct, his
actions are not criminal under § 1546(a).3
Kouevi was charged with violating 18 U.S.C. §
1546(a) by conspiring and aiding and abetting others:
to utter, use, possess, obtain,
accept and receive immigrant
visas, namely diversity visas, for
entry into and as evidence of
authorized stay and employment
in the United States, knowing that
the diversity visas have been
(2) the district court erroneously permitted Officer Ayala to
testify without any notice to the defense; (3) the conviction
must be reversed based upon statements made during the
Government‟s rebuttal; and (4) the sentence should be
vacated and the matter remanded because the district court
failed to make specific findings before imposing a six-level
increase under U.S.S.G. § 2L2.1(b)(2)(B).
We have reviewed these four arguments and conclude that
they do not merit further discussion. Indeed, Kouevi‟s
constructive amendment claim is dependent on his claim that
the first paragraph of 18 U.S.C. § 1546(a) does not apply to
the use of authentic immigration documents procured by
fraud.
3
“We apply a plenary standard of review to issues of
statutory interpretation.” United States v. Randolph, 364 F.3d
118, 121 (3d Cir. 2004) (citation omitted).
5
procured by means of false claims
and statements and otherwise
procured by fraud and unlawfully
obtained.
Kouevi and the Government agree that he was charged under
the first paragraph of § 1546(a),4 which provides:
Whoever knowingly forges,
counterfeits, alters or falsely
makes any immigrant or
nonimmigrant visa, . . . or other
document prescribed by statute or
regulation for entry into the
United States, or utters, uses,
attempts to use, possesses,
obtains, accepts, or receives any
such 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
be . . . procured by means of any
false claim or statement, or to
have been otherwise procured by
fraud or unlawfully obtained
[commits an offense under this
section].
18 U.S.C. § 1546(a).
Kouevi contends that the first paragraph of § 1546(a),
should not apply to his conduct because it only reaches forged
visas. He argues that the text of the statute shows that
Congress did not intend to criminalize possessing an
authentic visa that was obtained by fraud, such as a visa
obtained by lying on an application or during a visa interview
- as happened here. According to Kouevi, the fourth
paragraph of § 1546(a) prohibits that conduct, and he was not
charged that portion of the statute. The fourth paragraph of §
4
Section 1546 is captioned “Fraud and misuse of visas,
permits, and other documents.”
6
1546(a), states:
Whoever knowingly makes under
oath, or as permitted under
penalty of perjury under section
1746 of title 28, United States
Code, knowingly subscribes as
true, any false statement with
respect to a material fact in any
application, affidavit, or other
document required by the
immigration laws or regulations
prescribed thereunder, or
knowingly presents any such
application, affidavit, or other
document which contains any
false statement or which fails to
contain any reasonable basis in
law or fact [commits an offense
under this section].
18 U.S.C. § 1546(a).
Kouevi argues that because he was charged with the
first paragraph, and not the fourth paragraph, his conviction
must be reversed.5 In short, he asks us to reverse his
conviction because the visas he helped procure were
authentic, and not forged. Thus, he claims that the district
court should have granted his motion for judgment of
acquittal at the close of the Government‟s case. See
Fed.R.Crim.P. 29.
First, Kouevi contends that in United States v.
Campos-Serrano, 404 U.S. 293 (1971), the Supreme Court
concluded that the first paragraph of § 1546(a) does not
prohibit the possession or use of authentic immigration
5
Kouevi‟s contention that the fourth paragraph of § 1546(a)
criminalizes the possession of an authentic immigration
document obtained by fraud is incorrect. The fourth
paragraph criminalizes making a false statement when
applying for an immigration document.
7
documents that were obtained by fraud.6 He relies on the
following excerpt from the Court‟s opinion:
The statutory provision in
question prohibits, inter alia, the
counterfeiting or alteration of, or
the possession, use, or receipt of
an already counterfeited or altered
“immigrant or nonimmigrant visa,
permit, or other document
required for entry into the United
States.”
Campos-Serrano, 404 U.S. at 295. According to Kouevi, it is
clear from this statement that the Court concluded that the
first paragraph of the statute prohibits only the possession or
use of a forged immigration document, not the possession or
use of an authentic immigration document that was obtained
6
The first paragraph of § 1546(a) in effect in 1971 provided:
Whoever . . . knowingly forges,
counterfeits, alters, or falsely
makes any immigrant or
nonimmigrant visa, permit, or
other document required for entry
into the Unites States, or utters,
uses, attempts to use, possesses,
obtains, accepts, or receives any
such visa, permit, or document,
knowing it to be forged,
counterfeited, altered, or falsely
made, or to have been procured
by means of any false statement,
or to have been otherwise
procured by fraud or unlawful
conduct. . . .
Campos-Serrano, 404 U.S. at 295 n.1.
8
Much of his argument rests upon his interpretation of
Campos-Serrano. We are not persuaded.
The issue in Campos-Serrano was whether the
possession of a counterfeit alien registration card was
punishable under the first paragraph of § 1546(a). The Court
held that it was not because alien registration cards were not
required for entry into the United States. Campos-Serrano,
404 U.S. at 296. The alien registration cards were issued after
the alien had entered and took up residence in the United
States, and played no part in the entry. The cards were
merely intended to identify the bearer as a lawfully registered
alien residing in the United States. They played no role in the
alien‟s entry. Id.In short, the issue before the Court was whether a
particular forged document was proscribed by the statute, not
whether the first paragraph of the statute criminalizes the
possession of an authentic immigration document obtained by
fraud. The language Kouevi relies upon is merely the
Court‟s summation of a portion of the first paragraph of the
statute; it is not an explanation of the statute‟s reach or scope.
Indeed, it is apparent to us that by identifying the crimes,
“inter alia,” that § 1546(a) covers, the Court was not
attempting to describe the entire reach of the first paragraph
of § 1546(a).
The Court of Appeals for the Ninth Circuit agrees. The
defendant in United States v. Krstic, 558 F.3d 1010 (9th Cir.
2009), also contended that the first paragraph of § 1546(a)
does not criminalize the possession of authentic immigration
documents obtained by fraud, and he relied upon the same
language in United States v. Campos-Serrano that Kouevi
relies upon. In rejecting that argument, the court explained:
The passage on which Krstic
relies merely serves as general
background information about the
statute; it does not purport to be a
comprehensive catalog of all
conduct prohibited by the statute.
The Court‟s usage of the phrase
“inter alia” confirms this reading.
9
558 F.3d at 1014.
Nonetheless, Kouevi contends that appellate courts
have followed Campos-Serrano‟s lead and have opined that
the first paragraph of the statute was not intended to
criminalize activities related to authentic immigration
documents obtained by fraud, and that it cannot be read to
reach that conduct. However, the cases Kouevi cites simply
summarize a portion of the first paragraph of § 1546(a), while
interpreting other language in the statue. The following
examples illustrate this point.
In United States v. Uvalle-Patricio, 478 F.3d 699, 702
(5th Cir. 2007), the court of appeals wrote that “[t]he first
paragraph of § 1546(a) criminalizes possession of forged
immigration documents.” (citation omitted). The defendant
in Uvalle-Patricio was charged with possession of blank
immigration permits, which is prohibited by the second
paragraph of § 1546(a),7 not the first paragraph. Thus, the
court of appeals‟ statement simply summarizes a portion of
the first paragraph of § 1546(a), not a description of all of the
conduct prohibited by it.
In United States v. Ryan-Webster, 353 F.3d 353 (4th
Cir. 2003), the court of appeals wrote:
While the fourth paragraph of §
1546(a) deals with documents
containing false statements, the
first paragraph of § 1546(a)
directly concerns documents
containing, inter alia, forgeries.
Id. at 363 n.16 (emphasis in original). The defendant there
forged the signatures of purported employers on certain
documents in order to obtain legal permanent resident cards
for her clients. The issue was whether those documents were
prescribed by statute or regulation for entry into the United
States or prescribed as evidence of an authorized stay or
7
The second paragraph of § 1546(a) generally criminalizes
the possession, by persons not authorized by the Attorney
General or another proper official, of materials that can be
used to produce false immigration documents.
10
employment in the United States. The issue was not whether
the first paragraph criminalizes the possession of authentic
immigration documents procured by fraud. Here, again, the
court‟s statement was merely its summation of the first
paragraph, and its use of “inter alia” once again makes that
clear.
Finally, in United States v. Osiemi, 980 F.2d 344, 348
(5th Cir.1993), the court of appeals, commenting on the first
paragraph of § 1546(a), wrote: “[S]trictly construed, taken
literally, and given its plain and ordinary meaning, the
language of § 1546(a), as amended, criminalizes the knowing
possession of any counterfeited or altered document
prescribed by statute or regulation for entry into the United
States.” The issue in Osiemi was whether a counterfeit
foreign passport is a document “prescribed by statute or
regulation” for entry into the United States within the
meaning of § 1546(a). Id. at 346. The defendant contended
that because the counterfeit foreign passport was not issued
by the United States and/or because it did not contain a
United States entry visa, no offense had been committed
under § 1546(a). Id. at 345. The court of appeals held that a
foreign passport was typically a document required for entry
into the United States and, therefore, the possession of a
counterfeit foreign passport was an offense under § 1546(a).
The issue was not whether the defendant possessed an
authentic immigration document obtained by fraud. Thus, the
court‟s statement about § 1546(a) was limited to the facts
before it and cannot be taken to describe all of the conduct
proscribed by the first paragraph of § 1546(a).
The only court of appeals that has directly addressed
Kouevi‟s contention has rejected it and has held that the
possession of an authentic immigration document obtained by
fraud is a crime under the first paragraph of § 1546(a). The
defendant in United States v. Krstic, supra, was charged with
knowingly possessing an alien registration card which he
knew to have been procured by means of a materially false
statement. Krstic, 558 F.3d at 1012. The indictment did not
charge that the alien registration card was forged,
counterfeited, altered or falsely made. Id. Rather, it simply
charged Krstic with obtaining an alien registration card by
means of a false statement. Id.11
Krstic made the same argument that Kouevi now urges
upon us about the limited reach of the first paragraph of 18
U.S.C. § 1546(a).8 The district court agreed with him and
dismissed the indictment, id. at 1012-13, and the Government
appealed. The court of appeals began its analysis by noting
that:
At first glance, the statute appears
to prohibit two independent acts.
The first part criminalizes
“knowingly forg[ing],
counterfeit[ing], alter[ing], or
falsely mak[ing]” an immigration
document. The second part seems
to punish “possess[ing]” an
immigration document “knowing
it to be forged, counterfeited,
altered, or falsely made, or to
have been procured by means of
any false claim or statement.”
558 F.3d at 1013. The Government wanted the court to
interpret the statute in “this bifurcated way.” Id.However, the court reasoned that “[t]he words „any
such‟. . . which appear between the paragraph‟s two halves,
8
As recited above, the first paragraph of § 1546(a) provides:
Whoever knowingly forges, counterfeits, alters
or falsely makes any immigrant or
nonimmigrant visa, . . . or other document
prescribed by statute or regulation for entry into
the United States, or utters, uses, attempts to
use, possesses, obtains, accepts, or receives any
such 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 be forged,
counterfeited, altered, or falsely made, or to
have been procured by means of any false claim
or statement, or to have been otherwise
procured by fraud or unlawfully obtained
[commits an offense under this section].
18 U.S.C. § 1546(a).
12
complicate our task.” Id. It said:
Krstic contends that “any such”
refers back to the phrase
“knowingly forges, counterfeits,
alters, or falsely makes any
immigrant or nonimmigrant visa.”
In Krstic‟s view, the statute
contemplates an immigration
document that has been forged,
counterfeited, altered, or falsely
made, not an authentic document.
The Government, on the other
hand, maintains that “any such” is
shorthand for the phrase
“immigrant or nonimmigrant.”
According to the Government,
“[t]here is simply no reason why
the verbs from the first clause
should be converted into
adjectives applicable to the
second.”
Id. The court was not persuaded by either reading. Id.(“neither side has the better of this argument.”).
Rather, the court concluded that it could not resolve
the question solely by parsing the statutory text. Id. at 1015.9
Accordingly, it turned to the legislative history. The court
held that the legislative history demonstrated to its
satisfaction
that § 1546(a)‟s first paragraph
does not require proof of an
already forged, counterfeited, or
falsely made immigration
document. The section prohibits
possessing an otherwise authentic
document that one knows has
been procured by means of a false
claim or statement.
9
The court of appeals in Krstic found that the plain language
of the statute was ambiguous. 558 F.3d at 1015.
13
Id. at 1017 (emphasis added). The court explained:
Common sense confirms our
interpretation. As the
Government correctly points out,
reading § 1546(a)‟s first
paragraph as applying only to an
already forged or counterfeited
immigration document results in
“leaving beyond the statute‟s
scope the obvious harm of using
or possessing an authentic
document that one knows to have
been procured by fraud or false
statement to immigration
authorities.” To be sure, Krstic
could have been charged under
the fourth paragraph of § 1546(a),
as well as under 8 U.S.C. §
1306(c), two provisions that
prohibit making false statements
to immigration authorities. The
first paragraph of § 1546(a),
however, criminalizes acts that
neither the fourth paragraph of §
1546(a) nor 8 U.S.C. § 1306(c)
covers: possession of an
immigration document that was
fraudulently obtained. In view of
the statutory history, we decline to
adopt a reading that would
effectively decriminalize such
conduct.
Id. (emphasis in original).
Legislative history is only an appropriate aid to
statutory interpretation when the disputed statute is
ambiguous. See Bruesewitz v. Wyeth Inc., 561 F.3d 233, 244
(3d Cir. 2009), aff’d Bruesewitz v. Wyeth LLC, 131 S.Ct.
1068 (2011). However, a fundamental canon of statutory
construction removes any ambiguity here, and provides a
more direct path to the result reached in Krstic.
14
Reading the statute as Kouevi suggests we must would
have the practical effect of reading some of the language out
of the statute. The only way to give meaning to the whole
paragraph is to read the term “any such” as referring to the
list of immigration documents, but not to the ways in which
the immigration documents were falsified.10 Otherwise, the
last clause (“or to have been procured by means of any false
claim or statement, or to have been otherwise procured by
fraud or unlawfully obtained,”) is transformed into
surplusage; it would add absolutely nothing to what comes
before it.11 Such a reading would violate a fundamental
canon of statutory construction. See, e.g., Duncan v. Walker,
533 U.S. 167, 174 (2001) (“It is our duty to give effect, if
possible, to every clause and word of a statute.”) (citation and
internal quotation marks omitted); United States v. Nordic
Village, 503 U.S. 30, 36 (1992) (It is a settled rule “that a
statute must, if possible, be construed in such fashion that
every word has some operative effect.”) (citation omitted);
Cushman v. Trans Union Corp., 115 F.3d 220, 225 (3d Cir.
1997) (“We strive to avoid a result that would render
statutory language superfluous, meaningless, or irrelevant.”)
(citation omitted).
Despite the fact that the plain language of the first
paragraph of § 1546(a) prohibits the possession and use of
authentic immigration documents obtained by fraud, Kouevi
contends that Congress‟s actions since Campos-Serrano show
that the first paragraph of § 1546(a) has always been limited
to forged documents. He claims that since Campos-Serrano,
Congress has amended § 1546(a) eight times, and notes that
10
To arrive at the result that Kouevi wants, the term “any
such” would have to be read to refer to the list of the ways in
which the immigration documents were falsified, but not to
the documents themselves. However, such a reading would
make the final clause of the first paragraph surplusage and
ineffective.
11
As noted, see n.9, supra, the Krstic court found that the
plain language of the statute was ambiguous, but, as the
Government points out, it did not consider the surplusage
created by the ambiguity it believed was present.
15
Congress has never amended the statute to alter Campos-
Serrano‟s conclusion that the first paragraph of § 1546(a)
applies only to the possession or use of an already
counterfeited or forged immigration document.12 However,
this is not persuasive because, as we have explained, the
Court in Campos-Serrano did not attempt to describe the
entire reach of § 1546(a), nor did it purport to do so.
Moreover, Kouvei‟s reading would mean that, in
enacting this statute, Congress criminalized use of a forged or
fraudulent visa, but did not intend to also criminalize
obtaining an otherwise valid visa by means of forgery or
fraud. We think it extraordinarily unlikely that Congress
intended that result. See, e.g., In re Kaiser Aluminum Corp.,
456 F.3d 328, 338 (3d Cir. 2006) (“A basic tenet of statutory
construction is that courts should interpret a law to avoid
absurd or bizarre results.”) (citation omitted).
Kouevi‟s second argument relies on the amendment
history of § 1546(a) and other immigration statutes. He
claims that history demonstrates that Congress did not intend
the terms “falsely makes” and “falsely made” in § 1546(a) to
cover authentic diversity visas that were fraudulently
obtained. Kouevi notes that in 1996, Congress amended 8
U.S.C. § 1324c and added a definition of “falsely make.”
Section 1324c of Title 8 is captioned: “Penalties for
document fraud.” Section 1324c(f) was added in 1996. That
12
According to Kouevi, Campos-Serrano controls because
Congress‟s failure to amend a statute after the Supreme Court
interprets it (especially where Congress has otherwise
amended the statute) is evidence that Congress agrees with
the Court‟s interpretation.
In support of that statement Kouevi cites to Safeco, Inc. v.
Burr, 551 U.S. 47, 58 (2007) (noting “the interpretative
assumption that Congress knows how we construe statutes
and expects us to run true to form”); Comm’r of Internal
Revenue v. Engle, 464 U.S. 206, 225 (1984) (“We usually
presume that Congress is . . . aware of [our longstanding]
interpretation of a statute and [adopts] that interpretation
when it re-enacts [the] statute without [explicit] change . . .
.”).
16
amendment defines “falsely make” as follows:
For purposes of this section, the
term “falsely make” means to
prepare or provide an application
or document, with knowledge or
in reckless disregard of the fact
that the application or document
contains a false, fictitious, or
fraudulent statement or material
representation, or has no basis in
law or fact, or otherwise fails to
state a fact which is material to
the purpose for which it was
submitted.
8 U.S.C. § 1324c(f).
According to Kouevi, Congress added this definition at
the request of the former Immigration and Naturalization
Service (“INS”) in response to decisions by the Executive
Office for Immigration Review, Office of the Chief
Administrative Hearing Officer (“OCAHO”) which held that
“falsely make” does not include providing false information
on application forms. See, e.g., United States v. Remileh, 5
OCAHO 724, 1995 WL 139207, at *1 (O.C.A.H.O. Feb. 7,
1995) (“[T]he attestation of an employee to false information
on a Form I-913 does not constitute the creation of a „falsely
made‟ document in violation of 8 U.S.C. § 1324(c).”). As
Kouevi sees it, Congress‟s decision to amend 8 U.S.C. §
1324(c), by defining “falsely make” to include making false
statements to obtain an immigration document, demonstrates
that the question presented here, i.e., whether the first
paragraph of 18 U.S.C. § 1546(a) applies to authentic
immigration documents obtained by fraud, was “foremost in
the mind of Congress in 1996, well after Campos-Serrano,”
yet the first paragraph of § 1546(a) was not amended. Again,
we are not persuaded.
As we have explained, the statement from Campos-
Serrano which Kouevi relies upon was not intended to define
the parameters of the first paragraph of § 1546(a). Moreover,
13
Form I-9 is an Employment Eligibility Form.
17
Kouvei‟s reliance on the language of the amendment creates
a problem for him. It shows that when Congress was asked to
clarify the meaning of “falsely make” in another context, it
defined the term to include documents procured by fraud.
However, we need not discuss this claim in detail because it
is rooted in Kouvei‟s interpretation of Campos-Serrano, and
we have already explained why that case simply does not
support Kouevi‟s contention that the first paragraph of §
1546(a) does not criminalize the possession or use of an
authentic immigration document obtained by fraud.
Moreover, our interpretation of the first paragraph of
§ 1546(a) is consistent with the Court‟s analysis in United
States v. Moskal, 498 U.S. 103 (1990). There, while
construing a different statute, the Court held that “falsely
made” “encompasses genuine documents containing false
information.” Id. at 110. The statute at issue in Moskal was
18 U.S.C. § 2314, which prohibits the interstate or foreign
transportation of “any falsely made, forged, altered, or
counterfeited securities or tax stamps, knowing the same to
have been falsely made, forged, altered, or counterfeited.”
Moskal was a participant in a title-washing scheme. Id. at
105. Other participants in the scheme bought used cars in
Pennsylvania, rolled-back the odometers, and altered the titles
to reflect the lower mileage. Id. The altered titles were then
sent to other participants who submitted them to authorities in
Virginia. Id. The Virginia authorities, who were unaware of
the title alterations, issued Virginia titles containing the false
mileage figures. Id. at 105-06. The washed titles were then
sent back to Pennsylvania, where they were used to facilitate
sales to unsuspecting buyers. Id. at 106. Moskal sent altered
titles to Virginia and he received the washed titles back when
they were returned to Pennsylvania. Id.Moskal was convicted of violating 18 U.S.C. § 2314by receiving two washed titles. On appeal, he made the same
linguistic argument in challenging his conviction under 18
U.S.C. § 2314 that Kouvei makes here in challenging his
conviction under 18 U.S.C. § 1546(a). Moskal claimed his
conduct did not violate § 2314 because, although he was
participating in a fraud (and thus had the requisite statutory
intent), the washed titles were not themselves “falsely made.”
Id. at 107. He contended that since an authentic title had been
18
issued by appropriate state agencies that were unaware of any
underlying fraud, the resulting title was genuine. Since the
title that the state issued was valid, Moskal claimed they
were not “falsely made” as required by the statute of
conviction. Id.
The Court‟s explanation of why it disagreed with
Moskal is fatal to Kouevi‟s argument here. In rejecting the
argument, the Supreme Court explained:
We think that the words of § 2314
are broad enough, on their face, to
encompass washed titles
containing fraudulently tendered
odometer readings. Such titles are
“falsely made” in the sense that
they are made to contain false, or
incorrect, information.
Id. at 108-09. The Court also rejected the claim that falsely
made documents were synonymous with forged or
counterfeited documents. It wrote:
Short of construing “falsely
made” in this way, we are at a
loss to give any meaning to this
phrase independent of the other
terms in § 2314, such as “forged”
or “counterfeited,” By seeking to
exclude from § 2314‟s scope any
security that is “genuine” or valid,
Moskal essentially equates
“falsely made” with “forged” or
“counterfeited.” His construction
therefore violates the established
principle that a court should give
effect, if possible, to every clause
or word of a statute.
Id. at 109 (citation omitted) (emphasis in original).
Moskal had argued that at common-law “falsely made”
had an established common-law meaning equivalent to
forgery. 498 U.S. at 114. Therefore, “falsely made”
excluded authentic or genuine documents that were merely
19
false in content. Id. Accordingly, Moskal contended that
Congress should be presumed to have adopted this common-
law definition in construing § 2314. “[W]here a federal
criminal statute uses a common-law term of established
meaning without otherwise defining it, the general practice is
to give that term its common-law meaning.” Id. (citation
omitted). However, Moskal concluded that the meaning of
“falsely made” was ambiguous at common law.
Despite the rather obvious fact that Moskal‟s reasoning
clearly applies here Kouevi cites United States v. Merklinger,
16 F.3d 670 (6th Cir. 1994), in arguing that courts should
limit Moskal to statutes that require a departure from the
common law meaning of “falsely made” in order to punish
conduct that Congress intended to reach. Id. at 673-74 & n.4.
This argument again focuses on the fact that the fourth
paragraph of § 1546(a), prohibits the possession or use of an
authentic immigration document obtained by fraud.
According to Kouevi, it is therefore unnecessary to interpret
the first paragraph of § 1546(a) to include authentic
immigration documents obtained by fraud.
However, the argument ignores the fact that Kouevi‟s
conduct is not punished by another provision of the statute.
As noted, the fourth paragraph of § 1546(a) does not punish
the possession or use of authentic immigration documents
obtained by fraud. Rather, it prohibits making a false
statement when applying for an immigration document.
Nevertheless, Kouevi claims “additional legal
authority” demonstrates that the first paragraph of § 1546(a)
does not apply to authentic immigration documents obtained
by fraud. He relies on various rather tangential authorities
such as the model jury instructions. He points out the
instructions pertaining to the first paragraph of § 1546(a) tell
jurors that the Government must prove that “the defendant
uttered, used, attempted to use, possessed, obtained, accepted
or received a forged, counterfeited, altered or falsely made
document.” Moore‟s Federal Model Jury Instructions,
Chapter 47, Instruction 47-2 (underlining is Kouevi‟s).
He then quotes the following statement from United
States v. Polar, 369 F.3d 1248 (11th Cir. 2004):
20
The district court specifically
instructed the jury as follows:
The indictment charges the
defendant with violation of Title
18 United States Code, Section
1546(a). That provision makes it
a federal crime to knowingly
possess a false or counterfeit Visa
or other document required as
evidence of an unauthorized stay
or employment in the United
States.
Id. at 1251 n.2 (emphasis in original).
Lastly, Kouevi notes that the United States Attorneys‟
Manual states “The first paragraph of 18 U.S.C. § 1546(a)
proscribes the forging, counterfeiting, altering, or falsely
making of certain immigration documents or their use,
possession, or receipt.”
www.usdoj.gov/usao/eouse/foia_reading_room/usam/title9/cr
m01524.htm. Kouevi submits that description from the
Manual clearly means that the first paragraph of § 1546(a)
prohibits the possession of “certain immigration documents”
only if they were forged, counterfeited, altered, or falsely
made. As he sees it, that description does not mean that the
first paragraph of § 1546(a) prohibits the possession of
authentic immigration documents that were obtained by
fraud.
Kouevi‟s “additional legal authority” argument is
meritless. As the Government notes, Model Jury Instruction
47-2 was drafted to cover one application of the first
paragraph of § 1546(a), i.e., the use of forged documents. Id.
(“The indictment charges the defendant with using (or
attempting to use or uttering or possession or obtaining or
accepting or receiving) a forged (or falsely made or
counterfeit or altered) visa (or specify other document).” The
Model Instruction cited by Kouevi does not address the
portion of the first paragraph which he was charged with
violating, viz., the possession of an authentic immigration that
21
was procured by fraud.
The jury instruction in Polar also provides no comfort
to Kouevi. The defendant there had a passport which
contained a counterfeit Alien Documentation Identification
Telecommunication stamp mark (“ADIT”) and he used the
passport to obtain Social Security cards.14 The issue before
the court was whether the defendant‟s use of the passport
containing a fraudulent ADIT stamp violated § 1546(a). The
district court‟s instruction was thus fashioned to meet the
evidence of offending conduct there. The instruction had
nothing to do with whether the first paragraph of § 1546(a)
applies to the possession or use of authentic immigration
documents obtained by fraud.
Finally, we hardly need respond to Kouevi‟s attempt to
elevate a statement from the United States Attorneys‟ Manual
to the status of legal authority. The Manual is an internal
agency practice guide and it is not a definitive statement of
the law, as the Manual expressly indicates.15 Kouevi‟s
14
An ADIT stamp mark “is placed in an alien‟s passport at a
port of entry or at an [INS] district office; . . . this stamp
mark serves as temporary proof of lawful permanent
residence in the United States; . . . and . . . serves as INS
authorization for employment, such that a passport with an
ADIT stamp mark can be used as identification to obtain a
valid Social Security card.” Polar, 368 F.3d at 1250 n.1.
15
See United States Attorneys‟ Manual, Section 1-1.00,
“Purpose.” (“The United States Attorneys' Manual is
designed as a quick and ready reference for United States
Attorneys, Assistant United States Attorneys, and Department
attorneys responsible for the prosecution of violations of
federal law. It contains general policies and some procedures
relevant to the work of the United States Attorneys' offices
and to their relations with the legal divisions, investigative
agencies, and other components within the Department of
Justice. . . . The Manual provides only internal Department of
Justice guidance. It is not intended to, does not, and may not
be relied upon to create any rights, substantive or procedural,
enforceable at law by any party in any matter civil or
criminal. Nor are any limitations hereby placed on otherwise
22
argument invites us to cherry-pick the language of the Manual
that affords arguable support for his position while ignoring
other language that expressly negates using the Manual as
legal authority. Moreover, the statement he relies upon is not
intended to limit the application of the first paragraph of §
1546(a) to forged documents; it merely refers to one of the
first paragraph‟s applications.
Lastly, Kouevi attempts to rely on the rule of lenity.
We have explained the operation of that rule as follows:
In interpreting an ambiguous
criminal statute, the court should
resolve the ambiguity in the
defendant‟s favor. The rule of
lenity applies in those situations
in which a reasonable doubt
persists about a statute‟s intended
scope even after resort to the
language and structure, legislative
history, and motivating policies of
the statute. The rule is not
properly invoked simply because
a statute requires consideration
and interpretation to confirm its
meaning. It applies only if there
is such grievous ambiguity or
uncertainty in a statute that, after
seizing everything from which aid
can be derived, the Court can
make no more than a guess as to
what Congress intended.
United States v. Doe, 564 F.3d 305, 315 (3d Cir. 2009)
(citations, internal quotation marks and bracket omitted).
However, we do not think that the statute in question is
sufficiently ambiguous to justify resort to the rule of lenity.
“The simple existence of some statutory ambiguity, however,
is not sufficient to warrant application of the rule of lenity, for
most statutes are ambiguous to some degree.” Dean v. United
States, 556 U.S. 568, 577 (2009) (citation omitted).
lawful litigative prerogatives of the Department of Justice.”).
23
Kouevi does not explain the purported “ambiguity” in
the first paragraph of § 1546(a). He simply states that
“history and structure allow for a reading that limits the scope
of the first paragraph of § 1546(a) ¶ 1 to offenses involving
only forged documents, and which excludes authentic
documents procured by fraud.” Therefore, he submits that
“[i]n accordance with the rule of lenity, these alternate
readings of § 1546(a) ¶ 1 mean that the conviction should be
reversed.” Kouevi‟s Br. at 23.
However, these are simply conclusory statements that
do not demonstrate any ambiguity. More importantly, as we
have explained, we cannot breathe sufficient ambiguity into
the first paragraph to justify applying the rule of lenity
without ignoring the canons of statutory construction we have
discussed. The plain language of the statute reveals that the
first paragraph of § 1546(a) must be read to prohibit the
possession or use of authentic immigration documents which
are obtained by fraud.
III. CONCLUSION
For all of the above reasons, we will affirm the district
court.
24