U.S. v. Chowdhury, 97-2246

• Decision Date: 12 April 1999
• Docket Number: No. 97-2246,97-2246
• Citation: 169 F.3d 402
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wali Ahmed CHOWDHURY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 402

169 F.3d 402

UNITED STATES of America, Plaintiff-Appellee, v. Wali Ahmed CHOWDHURY, Defendant-Appellant.

No. 97-2246.

United States Court of Appeals, Sixth Circuit.

Argued June 10, 1998.

Decided March 3, 1999.

Rehearing Denied April 12, 1999.

Ralph M. Hursey (argued), Ft. Lauderdale, FL; Sidney Kraizman (briefed), Kraizman & Kraizman, Detroit, MI, for Defendant-Appellant.

Kathleen Moro Nesi (argued), Office of the U.S. Attorney, Detroit, MI; Krishna S. Dighe (briefed), Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellee.

Before: BATCHELDER, DAUGHTREY, and GILMAN, Circuit Judges.

OPINION

DAUGHTREY, Circuit Judge.

Defendant Wali Ahmed Chowdhury appeals his conviction of marriage fraud, for which he was sentenced to six months incarceration and three years of supervised release. Specifically, Chowdhury contends that the trial court (1) erred in instructing the jury on the marriage fraud statute; (2) abused its discretion in restricting his testimony concerning his reasons for leaving Bangladesh; (3) erred in recommending deportation of the defendant at sentencing; and (4) failed both to address Chowdhury personally and to determine whether he wished to make a statement before imposing the sentence. We find no reversible error and affirm the judgment of conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Wali Ahmed Chowdhury, a Bangladeshi citizen, was admitted into the United States in April 1988, using a Bangladesh passport with his photograph but issued in the name of another, Alim Uddin Chowdhury. He possessed a visa that allowed him to remain in the country for two months. Chowdhury applied for political asylum in the United States, but his application was denied by an immigration judge, who nevertheless granted Chowdhury "withholding of deportation." Unlike a permanent legal resident or a refugee, a person whose deportation has been withheld may not petition for family members to enter the country, may not travel outside of the United States, and is not eligible for certain other benefits, although he may obtain employment authorization. This status is indefinite, but it is subject to change, and Chowdhury testified that it was his understanding that it could be withdrawn at any time.

Chowdhury entered the United States through Texas and lived and worked in New York for several years before moving to Michigan in 1991 or 1992. In October 1992, he married Alonda Shepard, a United States citizen, who then filed an initial immigration petition on Chowdhury's behalf. An Immigration and Naturalization Service officer, Darlene Katz, approved the petition after interviewing the couple. About three months later, Katz revoked the approval after receiving a letter from Chowdhury in which he notified the Immigration and Naturalization Service that he was divorcing Ms. Shepard. The default judgment of divorce was entered on August 30, 1993.

On October 22, 1993, Chowdhury married Beverly Davis, and it is this marriage for which he was charged with marriage fraud. According to Davis, she was introduced to Chowdhury by Syed Manki Miah, who is known by his friends as "Sam." She testified that she had known Sam for about four years and that the second time she met with him he mentioned Wali to her. At this second visit, she and Sam discussed the possibility of her marrying Wali, whom she had never met, in exchange for money. According to Davis, Sam told her she would get $500 when she got married, $500 when she went to see the lawyer, and $500 if she went to immigration. She also said that Sam told her that she did not have to have sexual relations with Wali. Some time after this conversation, Sam brought Wali to meet Davis and to make arrangements. According to Davis, during this visit Wali agreed to marry her after he and Sam spoke with each other in another room in their native language.

Davis and Chowdhury were married by an imam in the presence of several of Chowdhury's friends. There were no invitations to the wedding, and Davis did not have any friends or family present at the ceremony. Chowdhury gave Davis a wedding ring, but not an engagement ring, and there was no formal reception or honeymoon.

After the ceremony, the married couple and a friend of Chowdhury went to McDonald's, and then the couple went back to Davis's house. Chowdhury and Davis gave different accounts of what followed. Chowdhury testified that he and his new wife consummated the marriage. More specifically, he said they engaged in sex twice, but that she did not like having sex with him, and he did not understand why. He explained that he thought that perhaps she liked his money and not him, and that this was the reason he later decided to divorce her. Chowdhury testified that he loved Davis when he married her and that she was "really nice to him." He said that he gave her $500 to buy something to wear for the wedding, but she told him she would rather save the money.

According to Chowdhury, about a week after the wedding, Davis asked him about his family, and he told her that he had not seen his mother in almost 11 years. She then told him that she knew all about how "to apply" for his immigration status because her brother and sister had married "foreign people," and she suggested that they hire a lawyer to help with his application. He testified that the reason he went to see a lawyer was that Davis had told him that he could get permission to visit his mother. On cross-examination, however, Chowdhury admitted that the lawyer whom they went to see was the same lawyer who helped him fill out his documents with respect to his application with Alonda Shephard. Still, he insisted that he did not know that he had to get married to stay in this country.

In contrast, Davis testified that they never consummated the marriage and that Chowdhury never lived with her. She said that he gave her $500 cash after they got married and another $500 after they met with the lawyer.

After Chowdhury divorced Davis in August 1995, he married his current wife, who is also from Bangladesh and with whom he has an infant son. Chowdhury has been employed at all times since he entered the United States, and at the time of his trial he was working as a busboy.

Darlene Katz assigned special agent Greg Adducci to investigate Chowdhury and Davis for marriage fraud in September 1994. Adducci and his partner visited Davis at home in the evening and found that Chowdhury was not there and that the only items of his clothing in the house were two pairs of pants. After questioning Davis about her marriage, the agent told her he did not believe her story and that marriage fraud is a crime. Adducci read Davis her rights, and Davis waived her rights and agreed to give a statement. Davis entered into an agreement with the government the day before she testified at Chowdhury's trial. According to the agreement, the government would not prosecute her for marriage fraud if she testified truthfully.

At the conclusion of the trial, a jury found the defendant guilty of marriage fraud, in violation of 8 U.S.C. § 1325, and the district court sentenced him to six months in federal prison and three years of supervised release. At the sentencing hearing, the judge said that he would recommend deportation to the Immigration and Naturalization Service, although this was not suggested in the Presentence Investigation Report. Chowdhury now appeals his conviction and the recommendation of deportation.

ANALYSIS

This court "reviews a jury charge in its totality to determine whether it fairly and adequately submits the issues and law to the jury." United States v. Milligan, 17 F.3d 177, 182 (6th Cir.1994). "A judgment may only be reversed if the instructions, viewed in their totality, were confusing, misleading or prejudicial." Id. "Where, in formulating instructions, the 'district court engages in statutory construction as a matter of law, ... [the Sixth Circuit] review[s][the] conclusions de novo.' " United States v. Buckley, 934 F.2d 84, 87-88 (6th Cir.1991) (quoting United States v. Brown, 915 F.2d 219, 223 (6th Cir.1990)).

Where the issue is properly preserved for appeal, we will reverse a conviction for failure to give a requested jury instruction only when that requested charge is a correct statement of law, is not substantially covered by the charge already submitted to the jury, and concerned a point so important to the trial that the failure to give it substantially impaired presentation of the defendant's theory of the case. United States v. Leal, 75 F.3d 219, 227 (6th Cir.1996).

Finally, we review the trial court's determination of relevancy for abuse of discretion. United States v. Hawkins, 969 F.2d 169, 174 (6th Cir.1992) (per curiam).

1. Jury Instructions

The statute under which Chowdhury was charged and convicted provides:

Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more that 5 years, or fined not more that $250,000, or both.

8 U.S.C. § 1325(c). The district court described the elements of the offense to the jury as follows:

First, that Wali Chowdhury entered into a marriage with Beverly Davis. Second, that Wali Chowdhury knowingly entered into the marriage for the purpose of evading the United States immigration laws. Third, that Wali Chowdhury knew or had reason to know of the relevant immigration laws.

During trial Chowdhury objected to several aspects of these instructions. His principal argument on appeal concerns the court's instruction with respect to the third element of the charged offense, "that Wali Chowdhury knew or had reason to know of the relevant immigration laws." The defendant wanted this instruction to read that the defendant "kn[ew] that this was a criminal violation of the United States Immigration Laws." He argues that the "had reason to know" language improperly creates criminal liability for marriage fraud based upon...