United States v. Kouevi

• Decision Date: 24 October 2012
• Docket Number: No. 10–3529.,10–3529.
• Parties: UNITED STATES of America v. Geoffry KOUEVI a/k/a Kangni Geoffry Kouevi, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

698 F.3d 126

UNITED STATES of America

v.Geoffry KOUEVI a/k/a Kangni

Geoffry Kouevi, Appellant.

No. 10–3529.

United States Court of Appeals,Third Circuit.

Argued: Oct. 5, 2011.

Opinion filed: Oct. 24, 2012.

Michael A. Baldassare, Esq. (Argued), Baldassare & Mara, LLC, Newark, NJ, for Appellant.

Paul J. Fishman, Esq., United States Attorney, Caroline Sadlowski, Esq. (Argued), Deputy Chief, Appeals Division, Newark, NJ, for Appellee.

Before: McKEE, Chief Judge, FUENTES, Circuit Judge, and GREENBERG, Senior Circuit Judge.

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 PROCEDURAL 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 Kouevi'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 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 individualscould 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.

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. DISCUSSION²A. 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 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 § 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. SeeFed.R.Crim.P. 29.

First, Kouevi contends that in United States v. Campos–Serrano, 404 U.S. 293, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971), the Supreme Court concluded that the first paragraph of § 1546(a) does not prohibit the possession or use of authentic immigration 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, 92 S.Ct. 471. According to Kouevi, it is clear from this...