U.S. v. Ali

• Decision Date: 27 February 2009
• Docket Number: No. 07-6446.,07-6446.
• Citation: 557 F.3d 715
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kanadi Mohamed ALI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

557 F.3d 715

UNITED STATES of America, Plaintiff-Appellee, v. Kanadi Mohamed ALI, Defendant-Appellant.

No. 07-6446.

United States Court of Appeals, Sixth Circuit.

Argued: October 22, 2008.

Decided and Filed: February 27, 2009.

ARGUED:

Leslie I. Ballin, Ballin, Ballin & Fishman, Memphis, Tennessee, for Appellant. Stephen C. Parker, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

ON BRIEF:

Leslie I. Ballin, Ballin, Ballin & Fishman, Memphis, Tennessee, for Appellant. Stephen C. Parker, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: MOORE, GRIFFIN, and BRIGHT, Circuit Judges.^*

GRIFFIN, J., delivered the opinion of the court. BRIGHT, J. (p. 727), delivered a separate concurring opinion. MOORE, J. (pp. 727-29), delivered a separate opinion concurring in part and dissenting in part.

OPINION

GRIFFIN, Circuit Judge.

Defendant Kanadi Mohamed Ali appeals his conviction for knowingly making a false statement under oath relating to naturalization, citizenship, or registry of aliens in violation of 18 U.S.C. § 1015(a).¹ The indictment charged that defendant Ali knowingly and falsely answered "no" to the question on his N-400 Application for Naturalization asking, "Have you ever . . . been married to more than one person at the same time?" The government contends that defendant Ali was married to more than one person at the same time because he married Paula Sweet in Georgia before his divorce to Farida Bouhiaoui in Canada became final. Defendant Ali counters that his answer was truthful as a matter of law because his attempted marriage to Sweet was "void ab initio" under state bigamy laws which void attempted second marriages when the first has not yet been dissolved. Ali entered a conditional plea of guilty to the charge under Federal Rule of Criminal Procedure 11(a)(2),² while reserving the right to appeal the district court's rulings (1) denying his motion to dismiss the indictment and (2) granting the government's motion to exclude his "mistake of law defense."

For the reasons that follow, we affirm the district court's denial of the motion to dismiss the indictment, reverse the district court's grant of the government's motion to exclude the "mistake of law" defense, and remand for further proceedings.

I.

Kanadi Mohamed Ali is a citizen of Israel who lives as a permanent resident in Nashville, Tennessee. On February 15, 1993, Ali married Farida Bouhiaoui, a Canadian citizen, in Montreal, Canada. Ali and Bouhiaoui separated in November 1993, and Ali moved to Georgia. The Montreal Superior Court mailed Ali a "Declaration" of divorce written in French and dated February 16, 1995. The "Declaration" was not a judgment of divorce, although Ali, who does not read or write French (but speaks some French), maintains that he mistakenly interpreted it as such. Later that year, on October 11, 1995, Ali married Paula Sweet in Georgia.

The Montreal Superior Court mailed Ali an "Amended Declaration" of divorce dated January 19, 1996. According to Ali, it was at that time that he realized he was not yet divorced from Bouhiaoui and that he had a "problem." In June 1996, the Montreal Superior Court entered a "Judgment of Divorce" finalizing the divorce between Ali and Bouhiaoui. Ali then remarried Sweet in Tennessee on November 16, 1996.

On December 13, 1996, Ali signed an application for permanent residence (green card) in the United States, using his marriage to Sweet, an American citizen, as the basis for his request. Ali received a permanent resident card on April 1, 1998. On September 15, 2000, Ali and Sweet were divorced.

On March 24, 2003, Ali filed an N-400 Application for Naturalization. Question 22.d. of section D of the application, entitled "Good Moral Character," asked, "Have you ever: . . . [b]een married to more than one person at the same time?" Ali checked the box for "No." In a handwritten attachment to the application, Ali disclosed his marriage and divorce to Bouhiaoui and his November 1996 marriage to Sweet in Tennessee. He did not reveal, however, his October 1995 marriage to Sweet in Georgia.

During his final interview for naturalization on November 30, 2005, Ali, represented by counsel, orally reaffirmed under oath his answer of "no" to question 22.d. and signed a section swearing that his answers in the application were truthful. Immigration authorities later discovered the overlap in Ali's marital relations with Bouhiaoui and Sweet and denied Ali's citizenship application.

On May 9, 2006, a grand jury returned a two-count indictment against Ali. Count One charged him with knowingly making a false statement under oath on his N400 Application for Naturalization by answering "no" to the question asking whether he had "ever . . . been married to more than one person at the same time[,]" in violation of 18 U.S.C. § 1015(a). Count Two charged him with knowingly making a false statement under oath on his N-400 Application for Naturalization by answering "no" to the question asking whether he had "ever given false or misleading information to any U.S. government official while applying for any immigration benefit or to prevent deportation, exclusion, or removal[,]" in violation of 18 U.S.C. § 1015(a).

On February 6, 2007, Ali filed a motion to dismiss the indictment, arguing that his answer of "no" to the question asking whether he had "ever been married to more than one person at the same time" was true as a matter of law. Specifically, Ali asserted that under either Georgia or Tennessee law, his attempted marriage to Sweet in October 1995 was void ab initio and that, therefore, he was never actually "married" to Sweet during the period in which he was still married to Bouhiaoui. The government opposed the motion but later stipulated at a hearing on a separate motion that Ali's attempted marriage to Sweet in October 1995 was void ab initio. The district court denied the motion to dismiss by oral order following a hearing on March 29, 2007.

On July 5, 2007, the government filed a motion to exclude what it called Ali's "mistake of law defense." The motion characterized one of Ali's principal defense theories—that he honestly believed that his attempted marriage to Sweet in October 1995 did not result in a legal "marriage"— as a "mistake of law defense." The government requested that the court preclude Ali from testifying about his knowledge regarding the statuses of his marriages and the manner in which he interpreted the question forming the basis of the charges against him. Ali responded that the government mischaracterized his defense theory as a "mistake of law defense" and urged the court to permit him to prove to the jury that he did not "know" that the answer he provided to question 22.d. was false, thereby negating the mens rea element of the offense. Following a hearing on July 9, 2007, the district court entered an oral order granting the government's motion to exclude the "mistake of law defense."

Immediately after the district court granted the government's motion, Ali entered a conditional plea of guilty under Rule 11(a)(2) of the Federal Rules of Criminal Procedure to Count One of the indictment, reserving in the plea agreement the right to appeal the district court's denial of his motion to dismiss the indictment and its grant of the government's motion to exclude his "mistake of law defense." Pursuant to the plea agreement and the government's motion, the district court dismissed Count Two of the indictment. It sentenced Ali to a one-year term of probation.

Ali timely appealed.

II.

A.

Ali contends that the district court erred in denying his motion to dismiss the indictment on the basis that neither party disputes that his attempted marriage to Sweet in October 1995 was "void ab initio" under both Georgia and Tennessee law. Because the attempted marriage was a nullity, Ali asserts that he could not, as a matter of law, have made a false statement in violation of 18 U.S.C. § 1015(a) when he answered "no" to the question asking whether he had "ever . . . been married to more than one person at the same time[.]" We disagree.

As a threshold matter, the government characterizes Ali's defense as a claim of "actual innocence" and contends that such a defense may not be raised in a motion to dismiss the indictment. The government, however, did not raise that issue before the district court. Although "we may exercise our discretion to review an issue not raised below in exceptional cases or particular circumstances, or when the rule would produce a plain miscarriage of justice," United States v. Chesney, 86 F.3d 564, 567-68 (6th Cir.1996), no such exceptional circumstances are present here. Thus, the issue is waived.

B.

Assuming arguendo that the issue was properly raised or that exceptional circumstances exist, the argument is without merit. Rule 12(b)(2) of the Federal Rules of Criminal Procedure permits a party to "raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue[,]" and Rule 12(b)(3)(B) permits a court "at any time while the case is pending . . . [to] hear a claim that the indictment or information fails to . . . state an offense." A motion under Rule 12 is therefore appropriate when it raises questions of law rather than fact. See United States v. Levin, 973 F.2d 463, 469 (6th Cir.1992) (affirming the district court's dismissal of an indictment when "undisputed extrinsic evidence" demonstrated that "the government was, as a matter of law, incapable of proving" an element of the offense). We explained in Levin that:

Rule 12 of the Federal Rules of Criminal Procedure and its component parts encourage district courts to entertain and dispose of pretrial criminal motions before trial if they are capable of determination without trial of the general issues. Moreover, district courts may make preliminary findings of fact necessary to decide questions of law...