U.S. v. Kone
| Citation | 307 F.3d 430 |
| Decision Date | 10 October 2002 |
| Docket Number | No. 00-2070.,No. 00-2338.,No. 00-2270,00-2070.,00-2270,00-2338. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Yaya KONE, Feranba Keita, Noha Fofana, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Nancy A. Abraham (argued and briefed), Assistant United States Attorney, Flint, MI, Patricia G. Gaedeke, Office of the U.S. Atty., Detroit, MI, for Appellee.
Daniel G. Van Norman (argued and briefed), Lapeer, MI, Thomas V. Wilhelm (argued and briefed), Waterford, MI, N.C. Deday LaRene (argued and briefed), LaRene & Kriger, Detroit, MI, Noha Fofana, Milan, MI, for Appellants.
Before RYAN, BOGGS, and COLE, Circuit Judges.
Yaya Kone and Feranba Keita appeal their convictions and sentences after a jury found them guilty of visa fraud by entering into sham marriages and filing petitions for adjustment in status visas, in violation of 18 U.S.C. § 1546. Noha Fofana appeals his conviction and sentence after a jury found him guilty of conspiracy to defraud the United States by arranging sham marriages between foreign nationals and United States citizens, and submitting false documents and making false representations to the Immigration and Naturalization Service (INS), in violation of 18 U.S.C. § 371. For the following reasons, we AFFIRM the defendants' convictions and sentences.
The defendants ran and/or were involved with a sham marriage scheme designed to evade provisions of the immigration laws regarding residency and citizenship in the United States. The leader of the conspiracy, Noha Fofana, arranged the marriages and his contact, John Oliver, performed the weddings in Findlay, Ohio.
Fofana would receive between $3,000 and $10,000 from individual foreign nationals to arrange a marriage to a United States citizen. Fofana would pay these United States citizens between $500 and $800 for the wedding and an additional $750 after their INS interview. Fofana provided additional assistance by filling out any necessary paperwork and would pay up to $200 for anyone who would recruit other prospective spouses willing to "sponsor" a foreign national.
On September 24, 1998, Yaya Kone, a citizen of the Ivory Coast, married Beverly Collins, a United States citizen, in Findlay, Ohio. Afterward, Kone submitted INS form I-485, a petition for adjustment in status, indicating that he had never sought to procure a visa by fraud or willful misrepresentation of a material fact.
On July 27, 1999, Feranba Keita, a citizen of Sigiri, Guinea, married Tasha Coleman, a United States citizen, in Findlay, Ohio. Thereafter, Keita submitted INS form I-485 indicating that he was living at 509 W. York, Ave., Flint, Michigan, Coleman's address, and that he had never sought to procure a visa by fraud or willful misrepresentation of a material fact.
On November 17, 1999, the government filed an 18-count indictment in the United States District Court for the Eastern District of Michigan against Fofana, Kone, and 26 other defendants, charging conspiracy to defraud the United States, in violation of 18 U.S.C. § 371. The indictment also charged Kone with visa fraud, in violation of 18 U.S.C. § 1546. A superseding indictment was filed on December 29, 1999, that charged Kone and Keita with visa fraud, in violation of 18 U.S.C. § 1546, and Fofana with conspiracy to defraud the United States, in violation of 18 U.S.C. § 371. All three defendants entered pleas of not guilty and the case proceeded to trial.
At the close of trial, Kone and Keita separately moved for judgments of acquittal pursuant to Federal Rule of Criminal Procedure 29. The court denied these motions.
The jury found Kone and Keita guilty of visa fraud in violation of 18 U.S.C. § 1546, and the district court sentenced both defendants to terms of six months' imprisonment and two years of supervised release. The jury found Fofana guilty of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and the district court sentenced Fofana to 46 months' imprisonment and two years of supervised release.
All three defendants filed timely appeals raising, in total, five issues for our review.
Kone and Keita contend that the district court erred when it denied their motions for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29.
We review de novo, a district court's refusal to grant a motion for judgment of acquittal. United States v. Keeton, 101 F.3d 48, 52 (6th Cir.1996). The relevant inquiry "is 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." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This rule applies whether the evidence is direct or circumstantial. United States v. Stone, 748 F.2d 361, 363 (6th Cir.1984). Moreover, "[i]t is not necessary that circumstantial evidence remove every reasonable hypothesis except that of guilt." Id.
To convict for visa fraud, in violation of 18 U.S.C. § 1546, the government must prove that: (1) the defendant made a false statement under penalty of perjury with respect to a material fact; (2) the statement was made in an application, affidavit, or other document required by the immigration laws or regulations; and (3) the defendant made the statement knowing that it was false. 18 U.S.C. § 1546(a).
1.
Yaya Kone
Kone contends that on his INS petition for adjustment in status, he truthfully stated that he was not seeking to procure a visa by fraud or willful misrepresentation. The government contends that Kone attempted to procure a visa by way of a sham marriage.
We are persuaded by the following evidence that the district court did not err when it denied Kone's motion for judgment of acquittal: Beverly Collins's testimony that she was recruited to participate in Fofana's marriage sham scheme and promised a total of $1000 to marry Kone; Collins's testimony that she had spent less than one hour with Kone prior to their marriage in September 1998; and testimony indicating that after the Ohio wedding ceremony the group returned to Michigan and Collins received a partial $500 payment, was dropped off at her house, and spent her wedding night alone. Although Collins admitted to having sexual relations on one occasion with Kone, she acknowledged that they never lived together. Additionally, Kone's employment records corroborate that he maintained a separate residence in New York after the marriage. Also after the marriage, Kone did not provide financial assistance to Collins other than $50 he left in a joint bank account. Gail Johnson, who married Mohamed Bamba on the same day that Kone married Collins, corroborated Collins's story. Moreover, Mohamed Bamba, N'Guanouho Bamba, and Mamadou Camara testified that Kone told them that Fofana had arranged his marriage to Collins for $4000, and that because of potential problems with his INS paperwork, he moved from New York back to Michigan.
When viewing the evidence in a light most favorable to the government, we conclude that the government met the standard as set forth in Jackson. Jackson, 443 U.S. at 319, 99 S.Ct. 2781. The district court did not err when it refused to grant Kone's motion for judgment of acquittal.
2.
Feranba Keita
Keita contends that the allegedly fraudulent statement listed on his I-485 application for status as a permanent resident (that he was living at 509 W. York Ave., Flint, Michigan) was not a material fact and, therefore, the district court erred when it denied his motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29.
The parties agree that materiality, in the context of a Section 1546 prosecution, is defined as "a natural tendency to influence, or [] capab[ility] of influencing, the decision of the decisionmaking body to which it was addressed." Kungys v. United States, 485 U.S. 759, 770, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988) (internal quotation marks and citations omitted). Under a set of virtually indistinguishable facts, the Fifth Circuit determined that listing a fraudulent address on a defendant's I-485 petition was a material fact because "it was capable of affecting the functioning of a governmental agency, in this case the INS." United States v. Al-Kurna, 808 F.2d 1072, 1075 (5th Cir.1987).
The fact that Keita's application was incomplete is immaterial to whether he violated 18 U.S.C. § 1546(a). Nowhere does the statute require that the agency actually make a determination based on the fraudulent misstatements; rather, the statement need only be capable of influencing the decisionmaking body, here the INS. Clearly, Keita's statement that he was living at a certain address with his "wife," Tasha Coleman, is material to the INS's determination of whether to grant Keita permanent residence status based on a legitimate marriage to a United States citizen.
We conclude that the district court did not err when it denied Keita's motion for judgment of acquittal because the statement on his I-485 application for status as a permanent resident — that he was living at 509 W. York Ave., Flint, Michigan — was a material fact that had the capability of affecting the decision of the INS in granting Keita's permanent residence status.
Keita contends that the district court committed reversible error when it refused to supplement the jury instruction on materiality to include a statement that the government maintained the burden of proof.
This court reviews a jury instruction to determine whether it was a correct interpretation of the relevant law. Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 822 (6th Cir.2000). If the trial court's interpretation of the law was erroneous, our review focuses on whether the...
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