United States v. Kwame Djanson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4854
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KWAME ESSEL DJANSON, a/k/a Quarmey Gyanson Essel, a/k/a
Samuel Kofi Essel,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:13-cr-00177-LO-1)
Submitted: June 27, 2014 Decided: July 11, 2014
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Caroline S.
Platt, Appellate Attorney, Brooke Sealy Rupert, Assistant
Federal Public Defender, Alexandria, Virginia, for Appellant.
Dana J. Boente, United States Attorney, Dina S. Finkel, Special
Assistant United States Attorney, Gene Rossi, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kwame Essel Djanson appeals his conviction for
unlawful procurement of naturalization, in violation of 8 U.S.C.
§ 1425(a) (2012), * and the district court’s order revoking his
naturalization. Finding no error, we affirm.
Djanson first claims that the indictment failed to
state an offense, and the district court therefore erred in
denying his timely motion to dismiss. He argues that “an
indictment for an offense which includes a ‘contrary to law’
element — without stating which law the defendant’s conduct
violated — is inadequate because it does not set forth the
elements of the offense with sufficient specificity.”
(Appellant’s Br. at 26-27).
In reviewing the denial of a motion to dismiss an
indictment, we review the district court’s factual findings for
clear error and its legal conclusions de novo. United States v.
Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005). “When a criminal
defendant challenges the sufficiency of an indictment prior to
the verdict, we apply a heightened scrutiny.” United States v.
Kingrea, 573 F.3d 186, 191 (4th Cir. 2009). A federal
*
Djanson does not appeal his remaining convictions for
making a false statement in connection with the purchase of a
firearm and making a false statement in an application for a
passport.
2
indictment must contain the elements of the offense charged,
fairly inform the defendant of the charge, and enable the
defendant to plead double jeopardy as a defense to future
prosecutions for the same offense. United States v. Resendiz–
Ponce, 549 U.S. 102, 108 (2007); see Fed. R. Crim. P. 7(c)(1).
After reviewing the statutory language and the
language contained in the indictment, we conclude that the
indictment properly set forth the elements of the offense
charged, fairly informed Djanson of the charge, and informed him
of the material false statements that he was charged with
making. Although the phrase “contrary to law” is not defined in
§ 1425(a), it has been interpreted to mean a violation of the
laws governing naturalization. See United States v. Puerta, 982
F.2d 1297, 1300-01 (9th Cir. 1992) (“The statute does not define
the phrase ‘contrary to law.’ Presumably the ‘law’ referred to
is the law governing naturalization.”); see also Fedorenko v.
United States, 449 U.S. 490, 506 (1981) (recognizing that “there
must be strict compliance with all of the congressionally
imposed prerequisites to the acquisition of citizenship” and
that “[f]ailure to comply with any of these conditions renders
the certificate of citizenship ‘illegally procured,’ and
naturalization that is unlawfully procured can be set aside”).
Because knowingly making material false statements to procure
naturalization is always contrary to the law, we find Djanson’s
3
argument without merit and we uphold the district court’s denial
of the motion to dismiss.
Djanson next alleges that the district court erred in
failing to give his proposed jury instruction on the § 1425(a)
charge and contends that the court failed to properly instruct
the jury on the “contrary to law” element of the offense. We
review de novo a claim that a jury instruction failed to
correctly state the applicable law. See United States v.
Jefferson, 674 F.3d 332, 351 (4th Cir. 2012). “A trial court
has ‘considerable discretion in choosing the specific wording of
[its] instructions,’ and we will not reverse unless an
instructional error ‘is determined to have been prejudicial,
based on a review of the record as a whole.’” United States v.
Whitfield, 695 F.3d 288, 305 (4th Cir. 2012) (quoting Figg v.
Schroeder, 312 F.3d 625, 640 (4th Cir. 2002)), cert. denied, 133
S. Ct. 1461 (2013). In conducting our review, we do “not view a
single instruction in isolation; rather we consider whether
taken as a whole and in the context of the entire charge, the
instructions accurately and fairly state the controlling law.”
United States v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996).
We have thoroughly reviewed Djanson’s proposed
instruction and the instructions given by the district court in
the context of its entire charge to the jury. As discussed
above, we conclude that the Government was not required to
4
specify an underlying predicate offense in order to charge
Djanson with a § 1425(a) violation. Moreover, to the extent
that Djanson contends that the instructions never set forth the
element that his statements must be “contrary to law,” we
conclude that the entire charge, taken as a whole, accurately
and fairly stated the controlling law. See id. Because Djanson
has failed to show that the “contrary to law” element was not
substantially covered by the district court’s jury charge or
that the failure to further define “contrary to law” seriously
impaired his ability to conduct his defense, see United
States v. Hassan, 742 F.3d 104, 129 (4th Cir.), cert. denied, __
S. Ct. __, 2014 WL 1747984 (U.S. June 9, 2014) (No. 13-9948), we
conclude that no error occurred. See United States v. Latchin,
554 F.3d 709, 715 (7th Cir. 2009) (considering jury instructions
on § 1425(a) charge).
Djanson next argues that there was insufficient
evidence to support his conviction. We review a district
court’s decision to deny a Fed. R. Crim. P. 29 motion for a
judgment of acquittal de novo. United States v. Smith, 451 F.3d
209, 216 (4th Cir. 2006). A defendant challenging the
sufficiency of the evidence faces a heavy burden. United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). The
verdict of a jury must be sustained “if, viewing the evidence in
the light most favorable to the prosecution, the verdict is
5
supported by ‘substantial evidence.’” Smith, 451 F.3d at 216(citations omitted). Substantial evidence is “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.” Id. (internal quotation marks and citation
omitted). Furthermore, “[t]he jury, not the reviewing court,
weighs the credibility of the evidence and resolves any
conflicts in the evidence presented.” Beidler, 110 F.3d at 1067(internal quotation marks and citation omitted). “Reversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” Id. (internal quotation marks
and citation omitted).
In attacking the sufficiency of the evidence, Djanson
argues that “no witness specified which law [his] procurement of
naturalization was ‘contrary to’ such that it violated
§ 1425(a).” (Appellant’s Br. at 34). As explained above, we
conclude that this argument is without merit. Moreover, our
review of the record convinces us that substantial evidence
clearly supported the jury’s verdict in this case.
Finally, Djanson contends that the district court
erred in entering an order of denaturalization. Pursuant to 8
U.S.C. § 1451(e) (2012),
When a person shall be convicted under section 1425 of
Title 18 of knowingly procuring naturalization in
violation of law, the court in which such conviction
6
is had shall thereupon revoke, set aside, and declare
void the final order admitting such person to
citizenship, and shall declare the certificate of
naturalization of such person to be canceled.
Jurisdiction is conferred on the courts having
jurisdiction of the trial of such offense to make such
adjudication.
He argues that his judgment of conviction does not become final
until after he has exhausted his rights to appeal, and alleges
“the district [sic] erred when it concluded that it could not
wait to issue the denaturalization order until this appeal, and
any potential resulting petition for certiorari, have been
resolved.” (Appellant’s Br. at 36).
We conclude that Djanson’s argument is contrary to the
plain language of the statute. Upon a § 1425(a) conviction, the
statute provides that the trial court “shall thereupon revoke,
set aside and declare void” the order admitting a defendant to
citizenship and “shall” cancel the certificate of
naturalization. 8 U.S.C. § 1451(e). Moreover, the cases to
consider this statutory provision have found that revocation of
naturalization is automatic, ministerial, and involves no
exercise of discretion. See, e.g., Latchin, 554 F.3d at 716(“Under 8 U.S.C. § 1451(e), a conviction for knowingly procuring
naturalization in violation of the law results in automatic
denaturalization.”); Bridges v. United States, 199 F.2d 845, 846
(9th Cir. 1952) (rejecting defendant’s claim that he is not
‘convicted’ until all appellate remedies have been exhausted and
7
finding that the revocation is “meant to be a part of the
criminal proceedings and not a separate proceeding. This is
indicated by the language of the subsection itself which states
that when a person is convicted of obtaining citizenship by
fraud, his citizenship shall ‘thereupon’ be revoked in the same
court where he was convicted.”), reversed on other grounds by
346 U.S. 209 (1953). We therefore uphold the district court’s
denaturalization order.
Accordingly, we affirm the criminal judgment and the
district court’s order revoking naturalization. We dispense
with oral argument because the facts and legal contentions are
adequately expressed in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
8