419 F.3d 142 (2nd Cir. 2005), 03-1503, United States v. Wu

Docket Nº:03-1503.
Citation:419 F.3d 142
Party Name:UNITED STATES of America, Appellee, v. Shitian WU, Defendant-Appellant.
Case Date:August 18, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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419 F.3d 142 (2nd Cir. 2005)

UNITED STATES of America, Appellee,


Shitian WU, Defendant-Appellant.

No. 03-1503.

United States Court of Appeals, Second Circuit.

Aug. 18, 2005

Argued: Sept. 29, 2004.

Darrell B. Fields, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, New York, for Defendant-Appellant.

Glen G. McGorty, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, on the brief, Amy K. Orange

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and Celeste L. Koeleveld, Assistant United States Attorneys, of counsel), New York, New York, for Appellee.

Before: McLAUGHLIN, POOLER, and WESLEY, Circuit Judges.

Judge POOLER concurs in part and dissents in part in a separate opinion.

WESLEY, Circuit Judge.


Sometime prior to December 1995, defendant Shitian Wu, an alien, obtained the birth certificate of Havelock Woo, a U.S.-born citizen who died in 1988. Defendant changed his name to Havelock Woo and petitioned to have various family members admitted to the United States under Woo's name. Specifically, he filed a Petition for Alien Relative 1 in which he stated, inter alia, Havelock Woo's place and date of birth as his own. After extended processing of the petition, Wu was required to submit an Affidavit of Support describing his financial status. The purpose of this affidavit was to assure immigration officials of Wu's ability to provide financial support for the relatives on whose behalf he petitioned. Defendant assumed the identity of Woo throughout this process which enabled him to petition as a U.S. citizen, thus allowing the potential for immigration of family members other than his wife and unmarried children.

Wu's trail of deceit is not nearly so limited, however. Wu became a lawful permanent resident in the United States only by convincing a friend who was a U.S. citizen to claim untruthfully that Wu was her adoptive father. Sometime thereafter, Wu obtained Havelock Woo's birth certificate and attempted to use it in an application for a U.S. passport as evidence that he was a U.S. citizen. The discrepancy in identity was discovered and the application denied. Only five months after this first attempt, Wu again applied for a U.S. passport using Woo's birth certificate and identity. He succeeded after convincing his insurance agent to file an affidavit in which she falsely claimed to be his niece. With his ill-gotten passport, Wu then sought to bring other family members to the United States, as noted above. After a number of failed attempts, he also used his passport to obtain a Social Security card under the identity of Havelock Woo. He then used that Social Security card to apply for Supplemental Security Income. It was only at this point that government officials uncovered Wu's extensive scheme of fraud and prosecuted him.

Wu was charged with three crimes involving his fraudulent activities. Although the Government missed the statute of limitations within which it could charge defendant for his false statements on the Petition for Alien Relative, a criminal charge for false statements on the Affidavit of Support was timely. In that regard, Wu was indicted under 18 U.S.C. § 1546(a) for "knowingly subscrib[ing] 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." Following a jury trial, Wu was convicted of this crime and two others not at issue here. 2 The materiality of defendant's false

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statements on the Affidavit of Support is the only substantial issue before the Court.


Defendant maintains that we should reverse his conviction under 18 U.S.C. § 1546(a) because his false statements are not material to the Affidavit of Support in which they were asserted. While he concedes the materiality of those same false statements when made in a Petition for Alien Relative, he argues that materiality as to the petition is irrelevant to this charge because the Government missed the statute of limitations on the petition itself. We disagree. While it is true that the falsehoods charged (date and place of birth) are not material to the affidavit in which they were asserted (an Affidavit of Support regarding Wu's finances), the financial affidavit is part of a larger application process aimed at bringing alien relatives into the United States and the statute is best understood as encompassing misrepresentations of material facts in that process no matter how many documents that may include. When assessed against this larger process, defendant's falsehoods--even as asserted in the Affidavit of Support--are clearly material.

Both the Government and Wu look to Kungys v. United States to define the proper focus of our inquiry. 485 U.S. 759, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988). Under Kungys, a falsehood is material if it has a natural tendency to influence the decisions of the decision maker. Id. at 772, 108 S.Ct. 1537. As this Court has previously noted, both the Supreme Court and this Court employ the natural tendency standard in "numerous contexts" to assess the materiality of a statement. United States v. An Antique Platter of Gold, 184 F.3d 131, 136 (2d Cir.1999). While this principle remains clear and controlling, some uncertainty remains as to its appropriate application to the facts before us.

Kungys involved an action against Juozas Kungys in which the United States sought to revoke Kungys' citizenship. The statute in question, 8 U.S.C. § 1451(a), criminalized procurement of naturalization "by concealment of a material fact." Id. at 773, 108 S.Ct. 1537 (internal quotation marks omitted). In 1947, Kungys applied for and received a visa to enter the United States, and in that application falsely stated his date and place of birth. Id. at 772-73, 108 S.Ct. 1537. In 1954, Kungys made the same false statements in the course of his naturalization proceedings. See id. at 761, 767, 773, 108 S.Ct. 1537. The Third Circuit in Kungys conceded that as to each proceeding, the false statements that Kungys made would not have precluded him from succeeding on his application. United States v. Kungys, 793 F.2d 516, 526 (3rd Cir.1986). The Third Circuit nevertheless determined that the misstatements satisfied the statute's materiality requirement, reasoning that, "had [Kungys] told the truth at the time he applied for his citizenship, the discrepancies between the truth and his visa materials would have resulted in either a field investigation or an outright denial of the petition." Id. at 533.

The Supreme Court reversed, instructing that a materiality requirement is not met where a falsehood would only have impacted the decision because--had the falsehood been corrected the second time stated--the decision maker would have noticed a discrepancy, pursued it, and thus

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influenced the decision made. See 485 U.S. at 775, 108 S.Ct. 1537. In Kungys, however, the Supreme Court clearly viewed the falsehood as "utterly immaterial both in the visa proceeding," which was not at issue in Kungys, " and in the naturalization proceeding," which was. Id. Thus, Kungys stands for the proposition that a falsehood--immaterial to both decisions in support of which it is asserted--cannot be made material "simply because it is repeated in both." Id.

Kungys does not inform us as to how to make a materiality determination where a falsehood is material to one, but not both, of the decisions in support of which it is asserted. We must then determine against which decision to assess the materiality of Wu's falsehoods to decide if the falsehood is merely an ancillary assertion...

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