U.S. v. Darif

• Decision Date: 03 May 2006
• Docket Number: No. 05-3377.,05-3377.
• Citation: 446 F.3d 701
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anouar DARIF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 701

446 F.3d 701

UNITED STATES of America, Plaintiff-Appellee, v. Anouar DARIF, Defendant-Appellant.

No. 05-3377.

United States Court of Appeals, Seventh Circuit.

Argued March 30, 2006.

Decided May 3, 2006.

COPYRIGHT MATERIAL OMITTED

John K. Mehochko (argued), Office of the United States Attorney, Rock Island, IL, for Plaintiff-Appellee.

Raphael M. Scheetz (argued), Cedar Rapids, IA, for Defendant-Appellant.

Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.

FLAUM, Chief Judge.

Defendant-Appellant Anouar Darif ("Defendant"), was charged in a three-count superceding indictment with conspiracy to commit marriage fraud, in violation of 18 U.S.C. § 371, marriage fraud, in violation of 8 U.S.C. § 1325(c), and witness tampering, in violation of 18 U.S.C. § 1512(b)(1). The first two counts were based on allegations that Defendant, a native of Morocco, paid $3000 to Dianna Kirklin ("Kirklin"), an American citizen, to marry him and help him obtain a United States visa. The third count was based on a letter that Defendant sent to Kirklin while he was in jail pending trial, in which he urged Kirklin to contradict testimony she gave before the grand jury in Defendant's case.

Before proceeding to trial, Defendant filed a motion in limine seeking to prevent the government from introducing into evidence letters he had written to Kirklin. Defendant also filed a motion to dismiss for improper selective prosecution. The district court denied both of Defendant's motions. The district court also rejected several of Defendant's proposed jury instructions. A jury found Defendant guilty on all three counts. Defendant appeals. For the following reasons, we affirm.

I. Background

In November 2000, Ouaffa Melliani offered Dianna Kirklin a deal: Kirklin would receive $3000 if she flew to Morocco, married Defendant, and helped Defendant obtain paperwork necessary to stay in the United States. Melliani had known Defendant while she was also living in Morocco, but Kirklin and Defendant were strangers. Defendant had tried and failed on two previous occasions to obtain a United States visa. Kirklin accepted Melliani's offer. Melliani provided Kirklin with detailed written instructions about how to behave when she arrived in Morocco, especially when dealing with the American Embassy. Melliani also gave Kirklin $1000, with the remaining $2000 to be paid when Kirklin returned from Morocco.

Kirklin flew to Morocco, arriving on Saturday, November 25, 2000. Defendant met Kirklin at the airport, holding a sign with her name written on it, and greeted her with a handshake. The following Monday, Defendant and Kirklin began visiting various government offices in Morocco to obtain the paperwork necessary to marry. On December 5, 2000, Defendant and Kirklin were married. They celebrated at a party with Defendant's family and friends. They did not consummate the marriage and stayed in separate rooms for the remainder of Kirklin's trip. Defendant helped Kirklin fill out an I-130 Petition for Alien Relative form, which Kirklin would later submit to the Immigration and Naturalization Service ("INS") to begin the process of obtaining a visa for Defendant.

Kirklin left Morocco on December 14, 2000. Defendant remained in Morocco, waiting to obtain a United States visa. Melliani paid Kirklin the remaining $2000. On December 26, 2000, Kirklin submitted the Petition for Alien Relative form to the INS. The INS approved the petition on April 14, 2001.

On November 8, 2001, Defendant submitted to the United States Consulate in Morocco an application for a visa to enter the United States, based on his status as a spouse of a United States citizen. The consulate issued Defendant a visa that day. On December 10, 2001, Defendant presented the visa to United States Immigration in Chicago and was admitted into the United States as a spouse of a United States citizen. Defendant went to Kirklin's home in Rock Island, Illinois, where he allegedly believed he would be living. Kirklin initially told Defendant that he could not stay with her. She claims to have felt sorry for him, however, and let him live with her for three months before she asked him to leave. Defendant then moved into an apartment with Melliani. He later took a job as a long-distance truck driver, which required him to be on the road for long stretches of time. While living apart from Kirklin, Defendant claims to have corresponded with her on a regular basis, taken her out to dinner numerous times, and attended her family functions. The couple filed joint federal and state tax returns and opened a joint bank account. Defendant and Kirklin, however, did not consummate their marriage, and there was evidence that Defendant had a sexual relationship with another woman during the time he was married to Kirklin.

On June 16, 2004, Defendant and Melliani were jointly charged with conspiracy to commit marriage fraud. Defendant also was charged with a substantive count of marriage fraud. Both counts against Defendant were based on his marriage to Dianna Kirklin in December 2000. Melliani was charged with a substantive count of marriage fraud. Both counts against Melliani were based on Melliani's marriage to Jeremy Cozadd ("Cozadd") in January 2002. The charge alleged that Melliani paid Cozadd $5000 to marry her after her United States visa expired.

On September 10, 2004, Melliani plead guilty to Count Four and was sentenced to time served and two years supervised release. Defendant's case remained scheduled for trial on January 24, 2005. On December 16, 2004, the government filed a superceding indictment against Defendant. The new indictment included the conspiracy to commit marriage fraud and marriage fraud counts, and added a new count for witness tampering, which allegedly occurred in October 2004.

Defendant filed a motion to dismiss due to selective prosecution, arguing that the government acted improperly by prosecuting Defendant and Melliani, who were Arabs, and not charging the two alleged American co-conspirators, Kirklin and Cozadd. The district court denied the motion.

Defendant also filed a motion in limine regarding the marital communications privilege. Defendant requested that the district court prohibit the government from introducing correspondence between Defendant and Kirklin. The content of one of those letters was the basis for the witness tampering offense added to Defendant's superceding indictment. The district court found that the marital privilege did not apply and denied the motion.

Defendant's case went to trial on April 25, 2005. During the government's case in chief, the district court granted the government's motion to give Kirklin immunity in return for her testimony. The district court then stated, in response to a question by defense counsel, that the marital testimonial privilege was not available to Kirklin and that she was required to testify against Defendant.

After the close of the government's evidence, the district court denied Defendant's renewed motions regarding selective prosecution and marital privilege and denied Defendant's motion for judgment of acquittal. The district court also rejected several of Defendant's proposed jury instructions on the marriage fraud counts. On April 27, 2005, the jury convicted Defendant on all three counts.

On August 5, 2005, the district court sentenced Defendant to 21 months imprisonment on each count, to run concurrently, three years supervised release, and a $300 special assessment.

II. Discussion

A. Marital Privileges

Defendant raises two challenges related to marital privilege: first, that the district court erred by finding that the marital communications privilege did not prevent disclosure of letters Defendant wrote to Kirklin while he was in jail; and second, that the district court erred by finding that Kirklin could not assert the marital testimonial privilege and refuse to testify as a witness for the government.

"We review the trial court's resolution of a marital privilege issue for an abuse of discretion." United States v. Westmoreland, 312 F.3d 302, 306 (7th Cir. 2002). "[S]pecial deference is given to the evidentiary rulings of the district court." United States v. Lea, 249 F.3d 632, 641 (7th Cir.2001). If we find that evidence barred by a marital privilege was improperly admitted, "we must determine whether the error was harmless." Westmoreland, 312 F.3d at 309.

1. Marital communications privilege

The marital communications privilege, which Defendant attempted to assert before the district court, "applies only to communications made in confidence between the spouses during a valid marriage." Lea, 249 F.3d at 641. The privilege may be asserted by either spouse. Id. It "exists to ensure that spouses generally, prior to any involvement in criminal activity or a trial, feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law." Westmoreland, 312 F.3d at 307 n. 3.

Prior to trial, Defendant filed a motion in limine seeking to prevent the government from introducing into evidence several letters written between Defendant and Kirklin. One of these letters, written by Defendant and postmarked October 12, 2004, formed the basis of the witness tampering count. The letter stated, in relevant part:

Dianna Don't be scared for no body

I know [the INS agent] told you "in stade to have two person in prison we will have three". see just for those words that is unconstitutional. there is nothing nothing they will do to you nothing. even if you change the hole thing you told them, One: you can say I was under pressure; two: you can say that at that time you forgot to take your medecin. three: you can just say that my husband and I we were having a family problemes at the time and after that we worked it out and we are just fine now. the maximum points you will have if you lie or change what you said in front of the grand jury is 4 point...