869 F.3d 490 (7th Cir. 2017), 16-2253, United States v. Edwards

Docket Nº:16-2253
Citation:869 F.3d 490
Opinion Judge:Hamilton, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ENKHCHIMEG ULZIIBAYAR ' ENI' EDWARDS, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Debra Riggs Bonamici, Attorney, Peter S. Salib, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL. For ENKHCHIMEG U. EDWARDS, Defendant - Appellant: Scott J. Frankel, Attorney, FRANKEL & COHEN, Chicago, IL.
Judge Panel:Before WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges.
Case Date:August 24, 2017
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 490

869 F.3d 490 (7th Cir. 2017)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ENKHCHIMEG ULZIIBAYAR " ENI" EDWARDS, Defendant-Appellant

No. 16-2253

United States Court of Appeals, Seventh Circuit

August 24, 2017

Argued May 17, 2017.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 CR 421-1 -- Richard A. Posner, Circuit Judge, sitting by designation.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Debra Riggs Bonamici, Attorney, Peter S. Salib, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.

For ENKHCHIMEG U. EDWARDS, Defendant - Appellant: Scott J. Frankel, Attorney, FRANKEL & COHEN, Chicago, IL.

Before WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges.

OPINION

Hamilton, Circuit Judge.

Defendant-Appellant Enkhchimeg Ulziibayar Edwards goes by the nickname Eni Edwards. She was charged with two counts of witness tampering in violation of 18 U.S.C. § 1512(b)(3) (Counts I and II) and two counts of making false statements on an official questionnaire for federal employment in violation of 18 U.S.C. § 1001(a)(2) (Counts III and IV). A jury convicted Edwards on all four counts. The trial judge, who was skeptical about both the strength of the government's evidence and whether the case merited criminal prosecution, imposed a below-guideline sentence of two years of probation and a $2,000 fine.

Edwards has appealed her convictions, raising three issues. She argues that the witness tampering statute, § 1512(b)(3), is void for vagueness. She also argues that the evidence was insufficient to support any of the four counts of conviction. We reject both of these arguments and affirm Edwards's false statement convictions, Counts III and I V.

We address first, though, Edwards's strongest argument, which is that the jury instructions for the witness tampering charges were faulty and that the error denied her a fair trial on Counts I and II. On that issue, we agree with Edwards. The trial judge refused both sides' request to instruct the jury on one essential element of the charges. As this case was framed under § 1512(b)(3), Edwards could be convicted only if she " corruptly" attempted to persuade another person to hinder, delay, or prevent communication of information to federal criminal investigators. The instructions given at trial failed to include the corruption element. They could have allowed the jury to convict Edwards of engaging in conduct that, under Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), did not constitute corrupt persuasion and therefore did not amount to criminal witness tampering. We cannot say this error was harmless, so we vacate Edwards's convictions on Counts I and II and remand for a possible new trial on those witness tampering counts, if the government opts to pursue them. We also vacate Edwards's sentence on all counts and remand for resentencing.

I.

Factual Background and Procedural History

To explain how this unusual prosecution came about, we first sketch Edwards's personal history and her history of government employment. Edwards is a naturalized United States citizen who emigrated from Mongolia in 1996. She applied in 2008 to become an officer with United States Customs and Border Protection (CBP). She was hired in 2009. Edwards went through a federal background investigation in 2009 and a reinvestigation in 2014.

To facilitate these investigations, Edwards was required to submit Standard Form 86, Questionnaire for National Security Positions (SF-86), and supplemental forms. The 2014 SF-86 required her to answer truthfully, among many other things, whether she " EVER provided financial support for any foreign national." Edwards answered no. A supplemental questionnaire asked Edwards in 2014 whether she " ever helped anyone enter or stay in the U.S. illegally." Again Edwards answered no. The government charged, and the jury found, that both answers were false. The path to those findings began more than fifteen years ago.

A.

Tsasa Erdenekhuu and her Marriage to Michael Rosel

Back in 2001, years before Eni Edwards applied to work for CBP, her Mongolian cousin Tsansanchimeg Erdenekhuu, known as " Tsasa" and sometimes as " Tasha," entered the United States on a student visa. Tsasa violated the terms of her visa and was eventually arrested by immigration authorities and placed in removal proceedings. Edwards posted a cash bond to secure Tsasa's release, using funds from Edwards's parents. Tsasa was released to Edwards's custody.

In early 2003, Edwards introduced Tsasa to her friend and co-worker, Michael Rosel. According to Rosel's later testimony at Edwards's 2016 trial, he saw Tsasa casually a couple of times. Edwards then surprised him by asking him to marry Tsasa so she could remain in the United States. Rosel testified that when Edwards floated the idea of a marriage, he had no romantic interest in the much younger Tsasa, and she had expressed no romantic interest in him. He also testified that he told Edwards he was concerned about the potential illegality of the arrangement, but that Edwards assured him he had nothing to worry about.

According to Rosel's testimony, Edwards badgered him over several months about marrying Tsasa. Eventually Rosel gave in. He and Tsasa were married in July 2003 in Las Vegas, Nevada. Shortly after the wedding, the couple applied for a " green card" for Tsasa to make her a lawful permanent resident of the United States as the spouse of a U.S. citizen. The marriage did not last long, though. Rosel abandoned the green card petition and the couple filed for divorce. In May 2004 the marriage was dissolved and Tsasa and Rosel went their separate ways.

B.

The Visa Fraud Investigation and the Focus on Edwards

We now turn to a completely different episode, but the one that first led to the investigation of Edwards and ultimately to her criminal trial. In 2008, a Chicago-based organization called the American Mongolian Association (AMA) invited a group of Mongolian throat singers to perform at a cultural festival. Defendant Edwards had been volunteering with the organization, and many of the throat singers listed her contact information on their visa applications. Edwards communicated with the consular section at the United States embassy in Ulaanbaatar, Mongolia. She identified herself as a vice president of the AMA and advocated for the applicants. Ultimately, the embassy official responsible for reviewing the petitions denied most of them. Based in part on his past experience with the AMA, the official believed the organization was attempting to facilitate visa fraud.

The embassy referred the matter to the Diplomatic Security Service, an investigative branch of the U.S. Department of State. In July 2012, Special Agent Douglas Miller got in touch with a contact at the Chicago office of CBP. That person introduced Miller to Edwards, who by that time was employed as a CBP officer at O'Hare International Airport. Unaware of Edwards's past involvement with the AMA, Miller asked her whether she was willing to help with the visa fraud investigation. Edwards agreed to help with English-Mongolian translation.

Some weeks later, just before a briefing with Edwards about the investigation, Special Agent Miller came across a file identifying Edwards as an AMA vice president. He was stunned. He later testified that " at no point in the investigation" had Edwards informed the agency about her involvement with the AMA. Edwards did not attend the briefing. The investigation moved forward, but the focus then shifted to Edwards herself.

Investigators acquired Edwards's bank records and discovered that she maintained a joint account with her cousin Tsasa. By reviewing Tsasa's immigration file, investigators learned of the 2003 marriage between Tsasa and Rosel, which Special Agent Miller described as having " significant indicators ... for marriage fraud." Miller located Rosel and interviewed him. In what later became the focus of the witness tampering charges in Counts I and II, Miller asked Rosel to call Edwards on a recorded line and to ask her questions that the investigators had prepared. Rosel reluctantly agreed. He made two such calls on January 8 and 9, 2013.

C.

The January 2013 Calls

During the first call on January 8, Rosel told Edwards that State Department agents had contacted him and asked about Tsasa. Edwards did not immediately advise Rosel to cooperate fully. She advised Rosel to tell the agents that he and Tsasa " met at a common friend's party, we dated, we got married, it didn't work out ... we got divorced, and I haven't ... talked to her or met with her at all since then." Edwards repeated this advice many times in the 23-minute call. She added: " It's not like...

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