United States v. Worku
Decision Date | 01 September 2015 |
Docket Number | No. 14–1218.,14–1218. |
Court | U.S. Court of Appeals — Tenth Circuit |
Parties | UNITED STATES of America, Plaintiff–Appellee, v. Kefelegne Alemu WORKU, a/k/a Habteab Berhe Temanu, a/k/a Habteab B. Temanu, a/k/a Tufa, a/k/a Kefelegn Alemu, Defendant–Appellant. |
Jessica E. Yates (Bethany A. Gorlin, with her on the briefs) Snell & Wilmer, L.L.P., Denver, CO, for Defendant–Appellant.
J. Bishop Grewell, Assistant U.S. Attorney (John F. Walsh, United States Attorney, with him on the brief) Office of the United States Attorney, Denver, CO, for Plaintiff–Appellee.
Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.
Mr. Kefelegne Alemu Worku is an Ethiopian man who entered the United States after assuming the identity of an Eritrean man, Mr. Habteab Berhe Temanu. Using Mr. Berhe's identity, Mr. Worku lived in the Denver area for years and eventually became a U.S. citizen.
Immigration authorities learned that Mr. Worku was using a false identity and suspected that he had tortured Ethiopian prisoners in the 1970s. After an investigation and trial, Mr. Worku was convicted of three crimes:
The court sentenced Mr. Worku to 22 years, relying in part on a finding that he had committed these crimes to conceal violations of human rights in Ethiopia.
On appeal, Mr. Worku makes four contentions:
We reject these challenges and affirm.
In the first two contentions, Mr. Worku attacks his conviction for the first time on appeal. Because these contentions were not raised in district court, we confine our review to the plain-error standard. United States v. Burns, 775 F.3d 1221, 1223 (10th Cir.2014). To establish plain error, Mr. Worku must show an error that is plain, affects his substantial rights, and seriously affects the fairness, integrity, or public reputation of the judicial proceedings.Id. Applying this standard of review, we reject Mr. Worku's challenges to his conviction.
Mr. Worku argues that his conviction under Counts 1 and 3 violated the Double Jeopardy Clause. Count 1 was based on 18 U.S.C. § 1425(a) and (b), and Count 3 was based on 18 U.S.C. § 1546(a). These statutes criminalize the fraudulent use of immigration or naturalization documents. 18 U.S.C. § 1425(a), (b) (2006) ; 18 U.S.C. § 1546(a) (2006).
United States v. Morehead, 959 F.2d 1489, 1506–07 (10th Cir.1992). For the sake of argument, we can assume that Mr. Worku has satisfied the first three prongs of the plain-error test.
But even with these assumptions, we must affirm the conviction on Counts 1 and 3 because Mr. Worku has not satisfied the fourth prong of the plain-error standard. Under this prong, we must affirm when evidence of guilt “on the challenged point is ‘overwhelming’ and ‘essentially uncontroverted.’ ” United States v. Edeza, 359 F.3d 1246, 1251 (10th Cir.2004). In our view, the evidence of guilt would have remained overwhelming and essentially uncontroverted even if the charges in Counts 1 and 3 had been more clearly identified with different acts.
Mr. Worku argues that his conviction under Counts 1 and 3 constituted a double-jeopardy violation in part because the two counts were based on the same conduct: misrepresentations in his form for naturalization (N–400 form). But the government contends that Counts 1 and 3 related to different conduct: Count 1 related to misrepresentations in Mr. Worku's form for naturalization (N–400 form), and Count 3 related to misrepresentations in Mr. Worku's application for permanent residence (I–485 form).
According to Mr. Worku, this distinction was blurred in the jury instructions. The instruction for Count 1 referred to lies in Mr. Worku's form for naturalization (N–400 form). But the jury instruction for Count 3 did not refer to any specific documents. Instead, the instruction referred to conduct occurring over a time span that covered both Mr. Worku's form for naturalization (N–400 form) and his application for permanent residence (I–485 form).
For the sake of argument, we can assume that the jury relied on Mr. Worku's form for naturalization (N–400 form) as the basis for finding Mr. Worku guilty under both counts (1 and 3). But even then, the government could easily have cured the alleged error by narrowing the charge in Count 3 to exclude the form for naturalization (N–400 form). See United States v. Goode, 483 F.3d 676, 682 (10th Cir.2007) ( ).
And we can reasonably expect that the government would have modified the charge to avoid the alleged double-jeopardy violation. In closing argument, the government linked Count 3 with the form for permanent residence, indicating an intent to match the counts to different conduct. See, e.g., R., vol. VI, at 377 () ; R. vol. V, at 405–06 ( ).
If the jury instruction for Count 3 had been narrowed to false statements in the form for permanent residence, we know that the jury would have found Mr. Worku guilty of lying in two different documents, constituting two separate acts. In both forms, the defendant stated under oath that his name was “Habteab Berhu Temanu.” But the defendant never denied that he had used a false name on both forms.
Without any dispute on this fact, the jury found that Mr. Worku had used a false name. This finding is spelled out in the special interrogatories for Count 1, where the jury found that “the government [had] proved beyond a reasonable doubt that [Mr. Worku] falsely identified himself as ‘Habteab Berhe Temanu’ ” in the naturalization form (N–400). R., vol. I, at 327. Mr. Worku made the same representation in his form for permanent residence (I–485 form). Thus, the jury's finding of a lie in the naturalization form (N– 400 form) would have required a finding that Mr. Worku had lied on the form for permanent residence (I–485 form). And a finding that Mr. Worku had lied on the I–485 form would have required the jury to find guilt on Count 3. See R., vol. I, at 255 ( ).
Under these circumstances, we conclude that the evidence of guilt would have remained overwhelming and essentially uncontroverted even if the two counts had more clearly identified different acts. Thus, Mr. Worku has failed to show that the alleged double-jeopardy violation seriously affected the fairness, integrity, or public reputation of the proceedings, leading us to affirm based on the fourth prong of the plain-error standard. See United States v. Sinks, 473 F.3d 1315, 1320–21 (10th Cir.2007).1
Mr. Worku was also convicted of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). The subsection provides:
(1) In general.—Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.
18 U.S.C. § 1028A(a)(1) (2006) (emphasis added). Mr. Worku obtained permission to use Mr. Berhe's identity from his children. As a result, Mr. Worku argues that he had “lawful authority” to use Mr. Berhe's identity. We reject the claim under the plain-error standard because the alleged error would not have been obvious.
Mr. Berhe's children approached Mr. Worku, asking him to tell federal authorities that he was their father. Their actual father had developed dementia, and the children feared he could not complete the interview requirements for admission into the United States.
But Mr. Worku has not presented any cases suggesting that the children could lawfully allow another person to use their father's identity. Rather, Mr. Worku has provided cases indicating at most that § 1028A(a)(i) is not violated when someone allows use of his or her own identity. These cases are inapplicable, for Mr. Worku does not allege consent from the person whose identity was used: Mr. Berhe. Thus, even if the district court had erred, the error would not have been obvious.2
In these circumstances, we conclude that Mr. Worku has not established plain error.
Mr. Worku raises procedural and substantive challenges to his...
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