U.S. v. Chu, 92-10095

• Decision Date: 21 September 1993
• Docket Number: No. 92-10095,92-10095
• Citation: 5 F.3d 1244
• Parties: 39 Fed. R. Evid. Serv. 555 UNITED STATES of America, Plaintiff-Appellee, v. Kong Yin CHU, a.k.a.: Alfred Chu, Chu Kong Yin, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1244

5 F.3d 1244

39 Fed. R. Evid. Serv. 555

UNITED STATES of America, Plaintiff-Appellee, v. Kong Yin CHU, a.k.a.: Alfred Chu, Chu Kong Yin, Defendant-Appellant.

No. 92-10095.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 11, 1993.

Decided Sept. 21, 1993.

Doron Weinberg, Nina Wilder, Law Offices of Doron Weinberg, San Francisco, CA, for defendant-appellant.

Barbara Brennan Silano, Asst. U.S. Atty., San Francisco, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: POOLE, BOOCHEVER, and FERNANDEZ, Circuit Judges.

BOOCHEVER, Circuit Judge:

Kong Yin Chu (a.k.a. Chu Kong Yin) appeals his conviction for making a material false statement under oath on an immigration application in violation of 18 U.S.C. Sec. 1546. We affirm.

BACKGROUND

On November 15, 1983, Chu completed an Application for Status as a Permanent Resident at the offices of the Immigration and Naturalization Service. That application included the following question: "I ____ have ____ have not been arrested, convicted or confined in a prison. (If you have been, explain.)" Chu put an "X" next to "have not." The application also called for the applicant to "list below all organizations, societies, clubs, and associations, past or present, in which you have held membership in the United States or a foreign country, and the periods and places of such membership." Chu responded by stating, "None." Finally, the application asked whether the applicant had committed or been convicted of a crime involving moral turpitude. Chu indicated that he had not.

On September 20, 1988, a six-count indictment was filed against Chu in the district court. Counts One and Four charged that Chu made false statements to federal agents (Count One) and on the immigration application (Count Four) by indicating that he had never been a member of an organization, society or club when he had previously been convicted of membership in a triad society in Hong Kong. Counts Two and Five charged that Chu made false statements to federal agents (Count Two) and on the immigration application (Count Five) by stating that he had never been arrested or convicted of a crime when he had previously been convicted in Hong Kong of larceny, carnal knowledge of a girl between the ages of 13 and 16, criminal intimidation, and gambling in a gambling establishment. Counts Three and Six charged that Chu made false statements to federal agents (Count Three) and on the immigration application (Count Six) by stating that he had never been arrested or convicted of a crime of moral turpitude when he had been convicted of the aforementioned crimes.

Chu was convicted on all six counts on May 12, 1989. On appeal, we reversed the convictions on Counts One, Three, Four, and Six because certain exhibits contained hearsay and had been admitted into evidence without adequate foundation. United States v. Chu Kong Yin, 935 F.2d 990 (9th Cir.1991). We further held that double jeopardy barred retrial on the reversed counts and remanded for retrial on Counts Two and Five.

On remand, the district court granted Chu's motion to strike from the indictment any reference to previous convictions other than the one for gambling. Before trial Chu stipulated to the gambling conviction, and the district court excluded all evidence of Chu's other convictions. On January 10, 1992, the jury convicted Chu of Count Five and acquitted him of Count Two.

Chu was sentenced on February 14, 1992, and filed a timely notice of appeal. We have jurisdiction over the appeal pursuant to 28 U.S.C. Sec. 1291.

DISCUSSION

I. Adequacy of Jury Instructions Defining "Oath."

Section 1546 makes it a crime to

knowingly make[ ] under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, knowingly subscribe[ ] as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly present[ ] any such application, affidavit, or other document containing any such false statement....

18 U.S.C. Sec. 1546(a) (1988) (emphasis added). Chu argues that the district court misstated in its jury instructions the requirements for making a statement under oath. The district court initially gave the following instruction on the Sec. 1546 charge:

In order for the defendant to be found guilty of [violating Sec. 1546], the government must prove each of the following elements beyond a reasonable doubt.

....

First, that the defendant made a false statement;

Second, that such false statement was made knowingly;

Third, that the statement was material to the Immigration and Naturalization Service's activities or decisions;

Fourth, that such statement was made under oath;

And fifth, that such statement was made ... in an application required by the immigration laws or regulations prescribed thereunder of the United States of America.

During its deliberations the jury submitted the following written question to the judge: "Does 'such statement was made under oath' mean signing your name, verbally swearing or both ...?" The court responded orally to the jury as follows:

No. You don't have to verbally raise your hand and swear. However, when you sign I John Doe so swear, you have to understand that your writing is your acknowledging that you swear.

But there's no formal requirement that you raise your right-hand, stand up and raise your right-hand. It's just that, but you have to know when you do write your name you're swearing on the correctness of it.

Because Chu did not object to the instruction at the time it was given, we review the instruction for plain error. United States v. McCollum, 802 F.2d 344, 346 (9th Cir.1986). Accordingly, we may reverse Chu's conviction for failing to give a proper instruction only if it " 'so affected the jury's ability to consider the totality of the evidence fairly that it tainted the verdict and deprived [Chu] of a fair trial.' " United States v. Hoac, 990 F.2d 1099, 1108 (9th Cir.1993) (quoting United States v. Smith, 962 F.2d 923, 935 (9th Cir.1992)).

We are unaware of any case law that elaborates on the Sec. 1546 requirements for making a statement under oath. Because the general perjury statute, 18 U.S.C. Sec. 1621, ¹ also uses the word "oath," however, we draw on cases defining the term in that context. Principles of statutory construction encourage us to construe "oath" as used in Sec. 1546 the same as "oath" as used in Sec. 1621 both because the language is similar and because Sec. 1546 was enacted after Sec. 1621. See Northcross v. Board of Educ., 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1973) (similar language used in two different civil rights laws should be interpreted similarly); Nachman Corp. v. Pension Benefit Guaranty Corp., 592 F.2d 947, 952-53 n. 6 (7th Cir.1979) (earlier specific definition of a term may properly color subsequent use of same term), aff'd, 446 U.S. 359, 100 S.Ct. 1723, 64 L.Ed.2d 354 (1980).

In United States v. Yoshida, 727 F.2d 822, 823 (9th Cir.1983), we held in interpreting Sec. 1621 that

[n]o particular formalities are required for there to be a valid oath. It is sufficient that, in the presence of a person authorized to administer an oath ... the affiant by an unequivocal act consciously takes on himself the obligation of an oath, and the person undertaking the oath understood that what was done is proper for the administration of the oath and all that is necessary to complete the act of swearing.

The district court's instructions adequately trace this statement.

Chu is correct that the district court neither explicitly found that Ruben Banda, the Immigration Examiner, was authorized to administer the oath nor instructed the jury on the requirement. Chu did not request such an instruction, nor did he raise the issue by objecting to the instruction given. It is clear, however, that immigration officers have the authority to administer oaths. 8 C.F.R. Sec. 287.5 (1993). Accordingly, we hold that the district court's instruction did not constitute plain error.

II. Sufficiency of the Evidence to Convict Chu of Violating Sec. 1546.

Chu contends that because Banda could not specifically recall interviewing him but could only testify that it was his practice to place interviewees under oath, there was insufficient evidence to convict him of violating Sec. 1546. Typically, in reviewing a challenge to the sufficiency of the evidence, we ask whether, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Where the defendant fails to move for a judgment of acquittal under Fed.R.Crim.P. 29(a) on the ground that the evidence is insufficient to support the verdict, however, we examine the issue "under a more rigorous standard of review for plain error to prevent a 'miscarriage of justice.' " United States v. Roston, 986 F.2d 1287, 1289 (9th Cir.1993) (quoting United States v. Curtis, 568 F.2d 643, 647 (9th Cir.1978)), petition for cert. filed (1993). Because Chu did not make a Rule 29(a) motion, we review his claim for plain error.

Banda's testimony is sufficient for a jury to find that he placed Chu under oath. Banda testified that it was his practice to bring applicants into the interviewing cubicle and administer an oath before questioning them about their applications, that his signature on the application proved he conducted Chu's interview, and that the other red marks throughout the application indicated that ordinary procedure was followed in this case. Moreover, Chu signed the application under the paragraph which reads:

I, _______, do swear (affirm) that I know the contents of this application...