U.S. v. Biheiri

• Decision Date: 21 January 2004
• Docket Number: No. CRIM.A. 03-365-A.,CRIM.A. 03-365-A.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Soliman S. BIHEIRI

299 F.Supp.2d 590

UNITED STATES of America v. Soliman S. BIHEIRI

No. CRIM.A. 03-365-A.

United States District Court, E.D. Virginia. Alexandria Division.

January 21, 2004.

COPYRIGHT MATERIAL OMITTED

Gordon D. Kromberg, Assistant United States Attorney, United States Attorney's Office, Alexandria, VA, for Plaintiff.

James Clyde Clark, Land, Clark, Carroll & Mendelson PC, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

Defendant Soliman S. Biheiri was convicted by a jury on October 9, 2003 on two counts of an indictment charging him with (1) procuring his own naturalization contrary to law in violation of 18 U.S.C. § 1425(a), and (2) swearing to certain false statements made in his Application for Naturalization on August 21, 2000 in violation of 18 U.S.C. § 1015(a). The government at sentencing seeks a number of guidelines enhancements, all of which are sharply disputed by defendant and thus the subject of this memorandum opinion.

I.

Defendant, a naturalized United States citizen of Egyptian origin, was tried on two counts of a three-count indictment.¹ Count 1 of the indictment alleged a violation of 18 U.S.C. § 1425(a) for defendant's procurement of his own naturalization contrary to law by making certain false statements in an Application for Naturalization (Form N-400) submitted on March 15, 1999 and sworn to by defendant on August 21, 2000. Specifically, the government alleged and proved at trial that defendant made the following two false statements on his Application for Naturalization: (1) At Part 3 of his Application, under the heading "Absences from the U.S.," defendant stated that he had been absent from the United States only once in the five years preceding his Application, when in fact he had been absent sixteen times during the preceding five years; and (2) at Part 7 of his Application, defendant stated he had not knowingly committed a crime for which he had not been arrested, when in fact he (i) knowingly made certain false statements concerning his prospective employer and work experience in an Application for Alien Employment Certification on August 8, 1991, (ii) knowingly used a false writing containing materially false statements regarding his prospective employer and the position being offered to him in support his Second Preference Petition (Form N-140) on April 2, 1993, and (iii) knowingly submitted his materially false Application for Alien Employment Certification and Second Preference Petition in support of his Application for Immigrant Visa and Alien Registration to the American Embassy in Bern, Switzerland on December 21, 1993, all of which acts were violations of 18 U.S.C. §§ 1001(a) and 1015(a) for which he had not been arrested. Count 3 of the indictment alleged, and the government proved at trial, a violation of 18 U.S.C. § 1015(a) for defendant's swearing to the false statements made in his Application for Naturalization on August 21, 2000 before an Immigration and Naturalization Service ("INS") district adjudications officer. A jury found defendant guilty on both counts.

The matter is now at the sentencing stage. A statutorily-mandated consequence of the § 1425(a) conviction has already been imposed and carried out: Defendant has been required to surrender his American citizenship certificate, which has been received and cancelled; he is no longer an American citizen. See United States v. Biheiri, Criminal No. 03-365-A (Dec. 18, 2003) (Order of Denaturalization).

The remaining aspects of defendant's sentence must now be determined. In this respect, the government, relying chiefly on § 3A1.4 of the sentencing guidelines, seeks, by various theories, to enhance defendant's guidelines range on the basis of his business dealings with certain terrorist individuals and organizations. Citing these same dealings, the government also seeks, alternatively, an upward departure pursuant to U.S.S.G. § 5K2.0. Because the departure and enhancements sought are so substantial, the record facts adduced by the parties regarding defendant's offenses of conviction and his dealings with terrorists and terrorist organizations are recited here at some length.

II.

A. Facts Underlying Defendant's Convictions.²

Born in Egypt and educated in Switzerland, defendant first entered the United States on January 25, 1985 on a tourist visa. This visa status allowed defendant to remain in the United States for six months, during which period he was prohibited from working here. He subsequently obtained an H1-B visa, which permits aliens to work in this country provided they fill certain specialty occupations. In order to receive an H1-B visa, an alien must be sponsored by an employer in the United States. An H1-B visa allows an alien to work in the United States for up to six years. Importantly, receipt of such a visa is conditioned on the requirement that the sponsored alien employee work only for the sponsoring employer. Defendant's sponsoring employer for his H1-B visa was Cambridge Computers and Instruments, Inc. ("CCI"), a company located in Cambridge, Massachusetts. Yet, defendant never actually worked for CCI; instead, he lived in New Jersey and operated BMI, Inc., an Islamic investment firm he incorporated in New Jersey in 1986. Indeed, the record reflects that defendant served as BMI's President from its inception until its bankruptcy in the late 1990s. In this capacity, defendant used BMI as a holding company for various operating entities, including BMI Leasing, Inc., BMI Real Estate Development, Inc. ("BMI REDI"), and BMI Trade and Investment, Inc. Defendant also conducted business through a series of limited partnerships, primarily BMI REDI, investing in projects to develop housing projects in Maryland, including Barnaby Knolls, Meridian Village, Combs Garden, and LaDova Heights.

On August 8, 1991, the Department of Labor received defendant's Application for Alien Employment Certification. In Part A, this application falsely stated that BMI was making an offer of employment to defendant for the position of Vice President subject to supervision by BMI's president. Hussein Ibrahim signed this form as BMI's President, and falsely swore to it under penalty of perjury. Defendant completed Part B of this form, falsely identifying BMI as his "prospective employer" when, in fact, he had been BMI's President for several years. He also falsely stated in Part B of the form that vice president of BMI was the "occupation in which alien is seeking work," when, in fact, defendant was already the President and Hussein Ibrahim was the Vice-President. Moreover, defendant falsely identified his work experience by stating that he worked for CCI on a full-time basis between August 1985 and May 1990.

Defendant's labor certification request was approved by the Department of Labor on January 29, 1993. Thereafter, on April 2, 1993, Hussein Ibrahim submitted to the INS an Immigrant Petition for Alien Worker, supported by the false labor certification. Like the labor certification request, this form falsely described defendant's proposed employment as Vice President of BMI and it, too, was signed under penalty of perjury by Hussein Ibrahim. Attached to this Immigrant Petition was a letter dated March 9, 1993, signed by Hussein Ibrahim as President of BMI, falsely stating that BMI wished to employ defendant, falsely describing defendant's work experience at CCI, and adding a fabricated description of the duties of the position defendant was to fill. On April 8, 1993, the INS approved this Immigrant Petition for Alien Worker.

The approved Immigrant Petition for Alien Worker was then forwarded to the United States Embassy in Bern, Switzerland and relied upon by the Department of State when it issued his immigrant visa. To obtain this visa, defendant on December 21, 1993 completed an Application for Immigrant Visa and Alien Registration, the contents of which he swore to before a consular officer in Switzerland. Defendant also submitted the Immigrant Petition for Alien Worker and another letter which supported the bogus BMI offer of employment. This letter, dated December 9, 1993, falsely stated that defendant would be employed by BMI as a vice president upon entering the United States. This letter was again signed by Hussein Ibrahim as Chairman of BMI and was notarized by Gamal Ahmed, an employee of BMI. The Department of State approved defendant's application on December 21, 1993 and defendant, visa in hand, returned to the United States as a permanent resident alien on December 23, 1993.

Precisely five years later, defendant on December 23, 1998 executed an Application for Naturalization (Form N-400), which he sent to the INS on March 15, 1999. As noted earlier, the application contained false statements in two sections. Under the heading "Absences from the U.S.," defendant initially answered "no" to the question "[h]ave you been absent from the U.S. since becoming a permanent resident?" and then left blank a table on the form for listing absences from the United States. Subsequently, the Naturalization Examiner reviewed the Application with defendant at his naturalization interview on August 21, 2000. In the course of this review, defendant changed his answer regarding absences from the United States by listing a single visit to Egypt from January 1, 1999 through January 16, 1999. This trip occurred after defendant had executed the Application, but before he had submitted it to the INS. In any event, defendant's statement that he had been absent from the United States only once since becoming a permanent resident was false. In fact, convincing evidence presented at trial showed that defendant had been absent from the United States sixteen times in the five years preceding his Application for Naturalization.

In addition, at Part 7 of the Application, Question 15a asks the applicant, "Have you ever knowingly committed any crime for which you have not been arrested?" Defendant answered...