U.S. v. Karaouni

• Citation: 379 F.3d 1139
• Decision Date: 24 August 2004
• Docket Number: No. 03-10327.,03-10327.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ali Abdulatif KARAOUNI, aka Ali Abdelatif Karaouni, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1139

379 F.3d 1139

UNITED STATES of America, Plaintiff-Appellee, v. Ali Abdulatif KARAOUNI, aka Ali Abdelatif Karaouni, Defendant-Appellant.

No. 03-10327.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 2004.

Filed August 24, 2004.

Patience Milrod, Fresno, CA, for the defendant-appellant.

David L. Gappa, Fresno, CA; McGregor W. Scott and Samantha S. Spangler, Sacramento, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California; Oliver W. Wanger, District Judge, Presiding. D.C. No. CR-02-05339-OWW.

Before: FERGUSON, REINHARDT, and PAEZ, Circuit Judges.

REINHARDT, Circuit Judge:

After a two-day trial, Ali Abdulatif Karaouni was convicted of violating 18 U.S.C. § 911 by falsely claiming to be a United States citizen when he checked a box on an Immigration and Naturalization Service (INS) I-9 Employment Eligibility Verification Form next to the following printed statement: "I attest, under penalty of perjury, that I am ... [a] citizen or national of the United States."¹

On appeal, Karaouni contends that the evidence was insufficient to support his conviction because no rational juror could find beyond a reasonable doubt that, by checking the box on the I-9 Form, he made a claim to be a U.S. citizen as opposed to a U.S. national. Because a claim to be a U.S. national, even if false, does not constitute a violation of 18 U.S.C. § 911, we reverse the district court's judgment and vacate Karaouni's conviction and sentence.

I.

At the two-day trial, documents were admitted into evidence from Karaouni's INS file which establish the following facts. In January 1992, Karaouni entered the United States carrying a Lebanese passport and was authorized to stay through July 1992.² In August 1992, Karaouni submitted an application to the INS requesting permission to remain in the United States to accept employment. On this application, Karaouni stated that Lebanon was his place of birth and his country of citizenship. In January 1993, the INS granted Karaouni permission to remain until January 1994. Four months later, Karaouni was hired by a Kentucky Fried Chicken restaurant in Fresno, California. At that time, he completed an I-9 Employment Eligibility Verification Form on which he checked the box attesting that he was "an alien authorized to work until 1/01/94."

In December 1993, the INS denied an asylum application that Karaouni had filed the previous year.³ An Immigration Judge ordered him deported in February 1995, but he remained in the country and subsequently married Elizabeth Rodriguez, a U.S. citizen, in October 1997.

Although Karaouni did not testify during the trial, Rodriguez was called as a witness for the defense. Rodriguez testified that, soon after she married Karaouni, they hired George Shalub, an immigration lawyer, because "we knew Ali had problems with his immigration ... so we wanted to fix this." Shalub prepared an INS I-130 sponsorship petition for Rodriguez to file on Karaouni's behalf as the first step in the process to become a permanent resident on the basis of his marriage to a U.S. citizen.⁴ Although Shalub did not provide the couple with a detailed explanation of the legal process, according to Rodriguez, "he made it seem like there was no way that this form could be disapproved because I'm a U.S. citizen and through me, he could stay here."⁵

In October 1998, Karaouni took the next step in the process to change his status. He signed an I-485 application to register as a permanent resident and a supporting biographic information form. In these documents, Karaouni stated that he was currently "out of status" and that his nationality was Lebanese. The INS denied Karaouni's application to register as a permanent resident in December 2001 because he failed to appear for a hearing.

In June 1998 — after Rodriguez filed the I-130 sponsorship petition but before Karaouni submitted the I-485 change-ofstatus application — Karaouni applied to work as a patient transporter, catering assistant, or dietary aid at St. Agnes Medical Center in Fresno, California. On his employment application, he checked a box indicating that he could "provide proof of U.S. citizenship and/or the legal right to work in the United States." He was hired a month later. When Karaouni completed the required I-9 Employment Eligibility Verification Form on July 7, 1998, he checked the box next to the statement: "I attest, under penalty of prejury, that I am ... [a] citizen or national of the United States."

On September 4, 2002, INS Agent Hector Bencomo arrested Karaouni, seized various documents, and conducted an interrogation. Thereafter, Karaouni was arraigned on a two-count indictment. Both counts pertained specifically to the statement to which Karaouni attested on the July 1998 I-9 Form. The second count, which charged Karaouni with making false statements on an immigration form in violation of 18 U.S.C. § 1001(a)(2), was dismissed by the district court pursuant to a motion by the government. The only remaining charge at trial was contained in the first count: falsely claiming to be a U.S. citizen in violation of § 911.

The jury found Karaouni guilty of violating § 911 and, in June 2003, he was sentenced to three months in custody and twelve months of supervised release. By the time of Karaouni's sentencing, however, he had already served more than three months because he had been incarcerated since his September 2002 arrest. Accordingly, he was released and deported to Lebanon, where he is currently residing.

II.

When, as in this case, a defendant preserves a challenge to the sufficiency of the evidence to support a conviction by making a proper motion for acquittal under Federal Rule of Civil Procedure 29, we review the claim de novo. United States v. Carranza, 289 F.3d, 634, 641 (9th Cir.2002). We must determine whether, "after 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." United States v. Booth, 309 F.3d 566, 574 n. 5 (9th Cir.2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)).

Before examining the challenge to the sufficiency of the evidence to support a conviction under § 911, we note that this statute was not the only legal tool that the government could have used to hold Karaouni accountable for his statement on the I-9 Form. In fact, the second count of the indictment charged Karaouni with violating 18 U.S.C. § 1001(a)(2), which is a far broader statute than § 911. It criminalizes any false statement in a proceeding before a government agency, not just a false claim of U.S. citizenship.⁶ The government's decision to dismiss the § 1001(a)(2) charge prior to trial may have been a tactical error; nevertheless, our review is limited to the sole count upon which the government chose to proceed.

There are three essential elements of a § 911 violation. The government had the burden of proving beyond a reasonable doubt that: (1) Karaouni made a false claim of U.S. citizenship; (2) his misrepresentation was willful (i.e. voluntary and deliberate); and (3) it was conveyed to someone with good reason to inquire into his citizenship status. United States v. Romero-Avila, 210 F.3d 1017, 1020-21 (9th Cir.2000); Chow Bing Kew v. United States, 248 F.2d 466, 469 (9th Cir.1957).⁷ It is the first element that is at issue on appeal.

It is undisputed that Karaouni was not a U.S. citizen in July 1998, when he verified his eligibility to work at St. Agnes Medical Center by checking a box on the I-9 Form next to the printed statement: "I attest, under penalty of perjury, that I am ... [a] citizen or national of the United States." However, Karaouni contends that no rational trier of fact could find beyond a reasonable doubt that his verification of the printed statement on the I-9 Form constituted a violation of § 911 because the printed statement was phrased in the disjunctive. See Prince v. Jacoby, 303 F.3d 1074, 1080-81 (9th Cir.2002) (explaining that the use of the disjunctive "or" suggests that terms in a sequence should not be interpreted as synonyms). According to Karaouni, by checking the box next to the printed statement, which the government presumably drafted with care, he merely claimed that he was a citizen or a national, not that he was a citizen and not that he was a citizen and a national.

This syntactic distinction is critical because the legal definitions of U.S. national and U.S. citizen are not synonymous. All citizens of the United States are nationals, but some nationals, such as persons born in American Samoa and other U.S. territorial possessions, are not citizens. 8 U.S.C. § 1408; Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 967-69 (9th Cir.2003). Indeed, the term "national of the United States" is defined as including "a person who, though not a citizen of the United States, owes permanent allegiance to the United States." 8 U.S.C. § 1101(a)(22). Thus, a claim to be a U.S. national is not a claim to be a citizen, but a claim to be a member of a broader group that includes citizens as well as others.⁸

A plain reading of the statute shows beyond any question that the provision covers only false claims of U.S. citizenship and not false claims of U.S. nationality. "It has long been settled that penal statutes are to be construed strictly, and that one is not to be subjected to a penalty unless the words of the statute plainly impose it." United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971) (internal quotation marks and citations omitted); see also United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (summarizing the canon of strict construction for criminal statutes). Whereas the plain language of § 911 refers only to citizenship, the U.S.Code...