U.S. v. Maduno, 93-9429

• Citation: 40 F.3d 1212
• Decision Date: 27 December 1994
• Docket Number: No. 93-9429,93-9429
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Uchechukwu Alex-Synthey MADUNO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1212

40 F.3d 1212

UNITED STATES of America, Plaintiff-Appellee, v. Uchechukwu Alex-Synthey MADUNO, Defendant-Appellant.

No. 93-9429.

United States Court of Appeals Eleventh Circuit.

Dec. 27, 1994.

R. Gary Spencer, Asst. Federal Public Defender, Federal Defender Program, Atlanta, GA, for appellant.

James R. Harper, III, Amy Levin Weil, Asst. U.S. Attys., Office of U.S. Atty., Atlanta, GA, for appellee.

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

Before BIRCH and DUBINA, Circuit Judges, and JOHNSON, Senior Circuit Judge.

DUBINA, Circuit Judge:

Appellant Uchechukwu Alex-Synthey Maduno ("Maduno") appeals his conviction and sentence for a violation of 18 U.S.C. Sec. 1425(b), which charged that Maduno did knowingly apply for, procure, and obtain naturalization and citizenship for himself to which he was not entitled. We affirm.

I. STATEMENT OF THE CASE

A. Facts

Maduno entered the United States on a two-year student visa in 1983. He met Stella Tabor Okeke ("Okeke"), a United States citizen, in November of 1983. Maduno and Okeke were married in April 1984. The couple established their household in Oxford, Mississippi, along with Okeke's three children, presumably from a prior marriage. This home was student housing at the University of Mississippi, where Maduno was a student. Due to the size of the apartment, the children moved to their maternal grandmother's house approximately one month after the couple moved into the apartment. Maduno and Okeke lived in the apartment from April 1984 to June 1986. Maduno never adopted Okeke's children and provided no financial support for them.

After a little more than two years of marriage, Okeke separated from Maduno. She considered the marriage to be a complete failure and moved in with her mother and children. She testified at Maduno's trial that she had no intentions of reconciling her marriage with him and believed that the marriage was no longer continuing. Although the couple remained separated, there was no divorce decree entered. Okeke attempted to obtain a divorce in 1986, but the petition was rejected because she was unable to locate Maduno after he left the University of Mississippi. She filed a new petition in 1992 and also mailed several letters to Maduno informing him that she did not intend to reconcile their marital relationship.

From 1986 to 1993, Maduno provided no spousal or child support. He moved to Atlanta, Georgia, and lived in various apartment complexes throughout the city, including the Parktown North apartments. His roommates at Parktown North were three males named Chukwndi Maduno, Emunall, ¹ and Paul Maduno. On the lease form, Maduno indicated that he was married, but he did not list the name of his spouse. The apartment complex manager testified at Maduno's trial that she never saw any women living in the apartment.

After moving out in 1986, Okeke did not see Maduno until the trial in 1993. Okeke never lived with Maduno in Atlanta and did not hear from him for three years. After moving out, her first contact with him was a telephone conversation in 1989. During 1991 and 1992, Okeke received letters from Maduno asking Okeke to say that they lived together at different addresses in California, Georgia and other places. Maduno also called Okeke in 1993 and invited her to Georgia in order to resolve their marital problems. Okeke declined the offer.

Maduno applied for his certificate of naturalization on June 13, 1988. This application was based upon his marriage to Okeke. He interviewed with the immigration examiner on September 22, 1988. On his application, Maduno indicated that he was married to Okeke and they resided at 1418 North Cliff Valley Way in Atlanta, Georgia. According to immigration procedures, the examiner would question applicants if different addresses were shown for the spouses. Maduno signed the petition which stated that he had lived with his spouse in marital union for the preceding three years.

After his application was approved, a final naturalization hearing was conducted. This hearing is conducted to determine if the applicant is still eligible for naturalization. On the accompanying form, Maduno indicated that he was not separated or divorced. He received his certificate of naturalization on February 10, 1989.

During the trial, Okeke testified that the couple ceased living together in June 1986. Maduno offered testimony of several witnesses who said that they saw or spoke to Okeke. Peter Ekwealor stated that he spoke to Okeke over the telephone, but never met her in person. Randy Smith testified that he saw a woman enter Maduno's apartment, but he was not introduced to her. Benjamin Wells Payne mentioned that he saw Maduno and his wife on one occasion at the Parktown North apartments. Tracey L. Rush, a roommate of Maduno's former roommate Chukwndi Maduno, stated that she saw the couple in church together on one occasion.

B. Procedural History

On January 20, 1993, a federal grand jury in the Northern District of Georgia returned a four-count indictment against Maduno. Counts One and Three charged that Maduno knowingly obtained naturalization that he was not entitled to, in violation of 18 U.S.C. Sec. 1425(b). Counts Two and Four were dismissed. After a trial by jury, Maduno was convicted of both counts and sentenced to a six-month term of imprisonment as well as twenty-four months of supervised release. The district court also imposed a $1,000.00 fine and a $100.00 special assessment. After the sentencing hearing, the district court revoked Maduno's certificate of naturalization pursuant to 8 U.S.C. Sec. 1451(f). Maduno then perfected this appeal. ²

II. ISSUES

1. Whether the district court erred in its instruction to the jury regarding the definition of "living in marital union."

2. Whether the district court erred in declining to give Maduno's proffered theory of defense instruction to the jury.

3. Whether the district court had jurisdiction to cancel Maduno's certificate of naturalization after he filed his notice of appeal.

III. STANDARD OF REVIEW

A district court's refusal to give a requested instruction in its charge to the jury is reviewed under an abuse of discretion standard. United States v. Morales, 978 F.2d 650, 652 (11th Cir.1992). Reversible error for failure to give a requested instruction occurs if the proffered instruction was substantially correct, the requested instruction was not addressed in charges actually given, and failure to give the instruction seriously impaired the defendant's ability to present an effective defense. United States v. Mendoza-Cecelia, 963 F.2d 1467, 1478 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 436, 121 L.Ed.2d 356 (1992). Whether a court has jurisdiction over a particular case is a question of law subject to plenary review. See Mars v. Mounts, 895 F.2d 1348, 1351 (11th Cir.1990).

IV. ANALYSIS

A. Definition of "Living in Marital Union"

This is an issue of first impression in our circuit and there is very little case law on the issue.

Maduno was convicted of violating 18 U.S.C. Sec. 1425(b), which makes it a crime for an individual to knowingly obtain naturalization that he is not entitled to. The statute provides:

Whoever, whether for himself or another person not entitled thereto, knowingly issues, procures or obtains or applies for or otherwise attempts to procure or obtain naturalization, or citizenship, or a declaration of intention to become a citizen, or a certificate of arrival or any certificate or evidence of naturalization or citizenship, documentary or otherwise, or duplicates or copies any of the foregoing--

Shall be fined not more than $5,000 or imprisoned not more than five years, or both.

In order to become naturalized, a person whose spouse is a citizen of the United States must, immediately preceding the date of filing his petition for naturalization, reside continuously, after being lawfully admitted for permanent residence, within the United States for at least three years, and during the three years immediately preceding the date of filing of his petition, live in marital union with the citizen spouse. See 8 U.S.C. Sec. 1430(a). We are persuaded that Maduno was not entitled to naturalization because he misrepresented his marital status on his application for naturalization.

The district court's definition of "living in marital union" requires the individual petitioning for naturalization to actually reside with his spouse. Maduno contends that "living in marital union" means living in the status of a valid marriage. Maduno bases his contention on the district court's decision in In re Olan, 257 F.Supp. 884 (S.D.Cal.1966). In Olan, the spouse physically left the home for two and one-half months during the requisite period. During that time, however, the husband continued to supply financial support to his wife and family. Id. at 887. Moreover, the district court had the testimony of both the husband and the wife that there was no intent of permanent separation during the two and one-half months. Additional evidence indicated that the husband, although he slept elsewhere, still used the marital home to receive his personal mail, to store his clothes and books, and to serve as the address on his voter's registration card. Id. Based upon these facts, the court in Olan concluded that "living in marital union" meant "living in the status of a valid marriage." Id. at 890.

In the present case, we have the testimony from Okeke that she considered the marriage over when she moved out of the apartment. Also, Maduno did not provide any financial support to Okeke or her children after the couple separated. Thus, the facts in this case are distinguishable from those in Olan.

The government relies upon Petition for Bashan, 530 F.Supp. 115 (S.D.N.Y.1982), for the proposition that the district court's definition of "living in marital union" was correct. The Bashan court concluded that the term ...