U.S. v. Kavazanjian

Decision Date27 June 1980
Docket Number79-1244,Nos. 79-1243,s. 79-1243
Citation623 F.2d 730
PartiesUNITED STATES of America, Appellee, v. Edward KAVAZANJIAN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Mourad AVEDISSIAN, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Daniel Riesel, New York City, with whom Lawrence R. Sandak, and Winer, Neuburger & Sive, New York City, were on brief, for appellant, Edward Kavazanjian.

Marshall F. Newman, Boston, Mass., by appointment of the court, with whom Newman & Newman, P. C., Boston, Mass., was on brief, for appellant, Mourad Avedissian.

Alan D. Rose, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and WYZANSKI, Senior District Judge. *

BOWNES, Circuit Judge.

Following a jury trial in the District Court for the District of Massachusetts, appellants Edward Kavazanjian and Mourad Avedissian were convicted under 18 U.S.C. § 371 of conspiring both to defraud, and to commit offenses against, the United States and under 8 U.S.C. § 1324 of encouraging or inducing the entry into this country of aliens not lawfully entitled to enter or reside here. We conclude that an error of law tainted the indictment and therefore reverse the convictions.

I.

The case revolves around the efforts of the appellants to assist aliens mostly Armenian Christians of Iraqui citizenship who had gathered in Athens, Greece to avoid persecution in their country in coming to the United States and seeking political asylum. The evidence showed that, in the latter part of 1977, several dozen aliens arrived at United States airports in the status of "transits without visa" and then, in most cases, applied for asylum and were "paroled" into this country. A brief description of these immigration law devices must precede any further explication of the facts.

The transit without visa (TWOV) device is designed to facilitate international travel. It permits aliens travelling from one foreign country to another, which route entails a stopover in the United States, to proceed "in immediate and continuous transit" through this country without a passport or visa. 8 U.S.C. § 1182(d)(4)(C) (1970). An individual desiring to use the transit without visa privilege must establish, inter alia, that (1) he is admissible under the immigration laws, (2) he has confirmed means of transportation to at least the next country, and (3) he will accomplish his departure within eight hours after his arrival or on the next available transport. 8 C.F.R. § 214.2(c) (1980); accord, id. § 212.1(e)(1); 22 id. § 41.30. A TWOV is barred from applying for extension of temporary stay or for adjustment of his status to that of permanent resident, 8 U.S.C. § 1255(c)(3) (Supp. VI 1976); 8 C.F.R. § 214.2(c)(1) (1980), and the responsibility for his custody lies with the transportation line which brought him to the United States unless the Immigration and Naturalization Service (INS) intervenes. Id.

The parole device constitutes one of two alternative mechanisms for dealing with foreign nationals who seek asylum in the United States because of persecution in their native countries. The second device, known as conditional entry, is the more rigid; it permits the admittance each year of up to 10,200 aliens who, inter alia, have fled from, and are unable or unwilling to return to, a communist-dominated or Middle East country because of actual or threatened persecution on the basis of race, religion, or political opinion. 8 U.S.C. § 1153(a)(7) (1970). Two years after their conditional entry, these refugees are able to apply for permanent resident status. Id. The parole mechanism, by contrast, is not subject to any numerical limitation and is not contingent upon an alien's being otherwise admissible. 8 C.F.R. § 212.5 (1980). An additional distinction is that the availability of parole is not restricted to political refugees; the Attorney General is authorized to parole aliens into the United States "temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest." 8 U.S.C. § 1182(d)(5) (1970). As a result of this inherent flexibility, large numbers of aliens both refugees and others have been paroled into this country. 1 Unless a parolee gains permanent resident status in the interim pursuant to 8 U.S.C. § 1255 (1970), he is restored to his former status upon fulfillment of the conditions of parole or whenever parole is deemed no longer warranted. Id. § 1182(d)(5).

Count one of the indictment charged the defendants with three separate acts of conspiracy. First, it alleged that, by arranging for aliens to come to this country ostensibly as TWOV's and, upon their arrival, to claim asylum and obtain parole, the defendants conspired to defraud the United States by circumventing the TWOV and conditional entry programs, all in violation of 18 U.S.C. § 371. Second, the defendants were charged with conspiring to violate 8 U.S.C. § 1324 by encouraging or inducing the entry into the United States of aliens not lawfully entitled to enter or reside here. Finally, count one alleged that they conspired to violate 18 U.S.C. § 1001 and 18 U.S.C. § 2 by concealing material facts and making and causing others to make false statements in material matters within the jurisdiction of the INS. The second and third actions were said to constitute conspiracies to commit offenses against the United States, again in violation of 18 U.S.C. § 371. Counts two and three were substantive counts, alleging that the defendants violated 8 U.S.C. § 1324 by assisting two named aliens in seeking asylum and gaining parole after their arrival as TWOV's at Boston's Logan Airport. 2

II.

From the evidence presented at trial, the jury could have found as follows: The defendant Kavazanjian, an American citizen of Armenian descent, served for fourteen years until his retirement in 1976 as a criminal investigator in the New York district of the INS. Thereafter, he worked in New York as a travel agent and as a private consultant on immigration matters. Throughout this period, Kavazanjian volunteered substantial amounts of time to various Armenian church and philanthropic organizations in their efforts to assist Armenians both in this country and abroad. The defendant Avedissian is a young Armenian Christian who came to the United States in 1976 and acquired permanent resident status. In August of 1977, Kavazanjian employed Avedissian as an "intern" because of the latter's fluency in Arabic.

The defendants' activities were thereafter devoted in large part toward attempting to alleviate the plight of the Armenian community in Athens. Many of the residents there were Iraqui citizens, who had fled their country following the ascendency to power of the Baathist party and the ensuing persecution of Armenian Christians. 3 Their situation in Athens was unstable, for jobs were scarce and many of the arrivals were of uncertain immigration status and feared being forcibly returned to Iraq. Obtaining asylum in the United States was thus a widely-shared goal. However, only thirty conditional entry visas per month were available to be assigned by the consular office in Athens, resulting in substantial delays for most applicants.

As a solution to this problem, the defendants realized that, if these aliens could somehow reach this country and assert their status as refugees, they would be allowed to remain here. Consequently, they were instrumental in implementing a scheme whereby aliens would board airplanes in Athens, ostensibly as transits through the United States to third countries, and then claim asylum upon arrival at American airports. The TWOV status of these aliens avoided the need for United States visas. Between September and November of 1977, dozens of aliens were successful in reaching the United States by these means so much so that, on December 5, 1977, the TWOV privilege was revoked with respect to all Iraqui citizens. 42 Fed.Reg. 61449, 61451 (1977).

Sanharib Jallow, a co-defendant in this case who later pleaded guilty and testified for the government at trial, recruited many of the participants in this scheme, often with the promise that they would be met by a lawyer upon arrival in this country. 4 In return for a several hundred dollar fee plus costs, he procured for each alien a ticket and visa, and an appropriately stamped passport, for a country the route to which involved a stopover in New York or Boston. 5 Typically chosen as destinations were Mexico, Panama, and the Bahamas. 6 None of the aliens had any intention of actually transiting through the United States and proceeding to these locations. Jallow also frequently provided the travellers with what he termed "gifts" to be given to the defendants an envelope containing from $200 to $1200 for Kavazanjian, and a suitcase containing new clothes and occasionally a smaller sum of money for Avedissian. On some occasions, Jallow informed the defendants of the flight number and arrival time; on others, the defendants specified this information beforehand.

Other aliens became involved in this arrangement by contacting the defendants directly. Kavazanjian was well known throughout the Armenian community in Athens and his telephone number was readily available. Some aliens called with general requests for assistance, and were instructed to arrange a flight through a designated American airport. Others, already familiar with the TWOV procedure, phoned specifically to ask for assistance upon their arrival. In some instances, contact with the defendants was initiated by an alien's friends or relatives in the United States. As a rule, the travel plans were finalized only after agreement as to the defendants' fee had been reached. 7

The circumstances surrounding the arrival of these groups of aliens in New York or...

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