U.S. v. Alameh, Docket No. 02-1514.

Citation341 F.3d 167
Decision Date22 August 2003
Docket NumberDocket No. 02-1514.
PartiesUNITED STATES of America, Appellee, v. Fadi ALAMEH, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

MICHAEL G. McGOVERN, Assistant United States Attorney for the Southern District of New York, for James B. Comey, United States Attorney for the Southern District of New York (Meir Feder, Assistant United States Attorney, on the brief), for Appellee.

MICHAEL S. POLLOK, New York, N.Y. (David Tolchin, on the brief), for Defendant-Appellant.

Before: CALABRESI, RAGGI, and WESLEY, Circuit Judges.

CALABRESI, Circuit Judge.

On August 21, 2002, after a bench trial before Judge Kimba M. Wood of the United States District Court for the Southern District of New York, defendant Fadi Alameh was convicted of one count of unlawful procurement of naturalization in violation of 18 U.S.C. § 1425(b). On appeal, the defendant challenges this conviction on multiple grounds, claiming 1) that the statute of limitations had expired by the time the indictment was filed, 2) that the district court erred a) by not permitting pre-trial discovery to establish whether the government was selectively prosecuting the defendant based upon his Arab ethnicity and b) in concluding that the government did not selectively prosecute the defendant based upon his Arab ethnicity, 3) that there was insufficient evidence at trial to establish that the defendant knowingly violated the statute, 4) that the district court erred by not making sufficient findings of fact as required by Rule 23(c) of the Federal Rules of Civil Procedure, 5) that the indictment should be dismissed because of pre-indictment delay, 6) that the statute under which the defendant was convicted was unconstitutionally vague, and 7) that the district court erred in permitting the testimony of an alleged co-conspirator. We affirm the judgment below.

I. Background

Defendant came to the United States from Lebanon in 1983 on a student visa, and was denied reinstatement of student status in 1985. The INS issued an Order to Show Cause why he should not be deported, and shortly thereafter Mr. Alameh married Ana Margarita Aviles, an American citizen. In December 1985, Alameh applied for status as a lawful permanent resident (LPR) based on his marriage to Aviles, and in March 1986 that status was granted.

In September 1989, Alameh filed a petition for naturalization claiming that he had been married to a U.S. citizen for three or more years. He abandoned this petition after an INS interview in which he was instructed to return with "evidence of marital union." Alameh and Aviles divorced in August 1990. In February 1991, Alameh filed another application for citizenship, this time relying on the fact that he had held a green card for five years or more. He was granted a certificate of naturalization on November 6, 1991.

In February 2000, the U.S. Attorney's Office for the Southern District of New York opened an investigation of Alameh. On Oct. 30, 2001, Alameh was indicted on one count of violating 18 U.S.C. § 1425(b), by allegedly obtaining citizenship on the basis of fraud. A bench trial was conducted at which Alameh's former wife, Aviles, testified that she was paid approximately $5,000 to marry Alameh, that she married him the day she met him, that two other couples also entered into green card marriages on that day, that she only saw Alameh a few times after their marriage, and that she never lived at the address listed on their marriage certificate. Alameh was found guilty and sentenced to two years of probation, with one month of that to be served in a community confinement center. The district court also issued an order revoking Alameh's citizenship, as required under 8 U.S.C. § 1451(e)-(f), but stayed that order pending this appeal.

II. Discussion
A. Statute of Limitations

The defendant was indicted under 18 U.S.C. § 1425(b), which has a ten year statute of limitations, 18 U.S.C. § 3291. Alameh does not dispute that he was indicted within that ten year period. Instead, he argues that the prosecution is time-barred because it depends upon a finding that he had illegally obtained LPR status in violation of 18 U.S.C. § 1546(a), which has a five-year statute of limitations, 18 U.S.C. § 3282. The defendant's claim has no merit. Defendant is not being prosecuted for violating § 1546(a), but for violating § 1425(b). Section 1425(b) applies to persons "not entitled" to citizenship or naturalization who "knowingly procure[] or obtain[] or appl[y] for ... citizenship." § 1425(b). The reason that the accused is "not entitled" is irrelevant to the statute's requirements and to its limitations period. Accordingly, the fact that Alameh's lack of entitlement is based upon a fraudulent application for LPR status for which the statute of limitations has run does not matter. The district court correctly denied defendant's statute of limitations claim.

B. Selective Prosecution

Alameh alleges that the decision to prosecute him was based upon his Arab and Muslim identity. He sought discovery to support this claim,1 and offered two kinds of evidence in support of his motion. First, he provided affidavits from immigration attorneys declaring that the kind of prosecution brought against him was unprecedented, and that prosecutions of immigrants from the Middle East have "dramatically increased" in the past few years, most notably after September 11, 2001. Second, he offered statistical evidence derived from a search conducted through CourtLink (a subsidiary of LexisNexis) identifying all individuals charged in the Southern and Eastern Districts of New York2 under § 1435 and two similar marriage and immigration statutes.3 The defense obtained a list of more than 400 names, and classified the accused according to whether it thought they did or did not have Arab or Muslim sounding surnames. If one credits the reliability of this dubious method, the results appear striking: Before September 11, 2001, fifteen percent of all such charges were brought against individuals with Arab or Muslim surnames, and eighty-five percent were brought against non-Arab / non-Muslim individuals. After September 11, 2001, these proportions were inverted: eighty-five percent of charges were brought against individuals with Muslim or Arab surnames, and only fifteen percent against non-Arab / non-Muslim individuals. The district court, however, noted that the case against Alameh was "strong" and "very far along" as of September 11, 2001, and concluded that the proffered evidence was insufficient to support discovery.

We review the district court's factual findings regarding denial of discovery for clear error, and its legal conclusions de novo. Cf. United States v. Koh, 199 F.3d 632, 639 (2d Cir.1999). As we have noted, "the decision as to whether to prosecute generally rests within the broad discretion of the prosecutor." United States v. White, 972 F.2d 16, 18 (2d Cir.1992). This broad discretion is proper because "the decision to prosecute is particularly ill-suited to judicial review." Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). Of course, this discretion cannot be exercised in extra-legal fashion, and it is properly "subject to constitutional constraints." United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). The equal protection component of the Fifth Amendment is one of the most important of these constraints, and thus "the decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification." United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (internal quotation marks omitted).

To make out a claim of selective prosecution, a defendant confronts a deliberately "rigorous standard," id. at 468, 116 S.Ct. 1480; he must provide "clear evidence" that the prosecutorial decision or policy in question had both "`a discriminatory effect and ... was motivated by a discriminatory purpose.'" Id. at 465, 116 S.Ct. 1480. The discriminatory effect prong requires a showing that "similarly situated individuals of a different [classification] were not prosecuted." Id. A defendant seeking to show discriminatory purpose must show "`that the decisionmaker... selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group.'" Wayte, 470 U.S. at 610, 105 S.Ct. 1524 (quoting Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)). Such purpose may, however, be demonstrated through circumstantial or statistical evidence. See Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) ("Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available."); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). There is nothing unusual in this, for federal law does not generally distinguish between direct and circumstantial evidence, and permits a conviction-which requires proof beyond a reasonable doubt-to be based entirely on circumstantial evidence. See, e.g., Desert Palace, Inc. v. Costa, ___ U.S. ___, ___, 123 S.Ct. 2148, 2154, 156 L.Ed.2d 84 (2003).

The standard for discovery is "correspondingly rigorous," Armstrong, 517 U.S. at 468, 116 S.Ct. 1480, but of course not identical to the standard applied to the merits. Rather than "clear" evidence of discriminatory effect and motive (as required for the merits), to obtain discovery defendants need only produce "some" evidence of discriminatory effect and intent. See United States v. Bass, ...

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