U.S. v. Moses

Decision Date21 August 1996
Docket NumberNo. 95-10672,95-10672
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Anthony Olusanya MOSES, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Linda C. Groves, U.S. Attorney's Office, Dallas, TX, for Plaintiff-Appellee.

James A. Johnston, Dallas, TX, for Anthony Olusanya Moses.

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

Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

Anthony Olusanya Moses ("Moses") appeals his convictions for obtaining naturalization by fraud and making a false statement on an INS form. Moses argues that the evidence was insufficient to support either conviction and the district court erred in ordering a revocation of the approval of his application for naturalization. 1 We affirm in part and vacate and remand in part.

BACKGROUND

Moses, a Nigerian native, entered the United States sometime before 1985, married Janice Moses in 1985, and had two children. In 1987, while Janice was pregnant with their second child, the couple separated and Moses moved from their home in Shreveport, Louisiana to Texas. The children visited Moses on several occasions, and Janice apparently stayed in Moses's home at least once when she brought the children to Texas for a visit.

At no time after their separation in 1987 did Moses and Janice ever live together. Although the couple did not legally separate, Moses established a residence in the Dallas On May 20, 1992, Moses filed a Form N-400, "Application to File Petition for Naturalization," in which he represented that he was living with Janice and their two children in Grand Prairie, Texas. Moses did not disclose that he was living with Anderson or that he had fathered a child by her. During his interview with INS examiner Leonor Aguilar, Moses stated while under oath that Janice was a homemaker and gave Aguilar a Dallas-area phone number so that Aguilar could contact her. On August 17, 1992, Moses filed a Form N-445, "Notice of Final Naturalization Hearing," in which he represented that he had not separated from Janice since he filed the N-400 form in May 1992. Moses became a naturalized citizen on August 28, 1992.

area with Dianne Anderson, with whom he had a child. Janice did not attempt to reconcile with Moses, and testified at trial that she waited until 1993 to divorce him because she could not afford the cost of instituting the divorce proceedings. She further testified that she considered the marriage over in 1987, at the time she and Moses originally separated.

Moses was subsequently indicted for obtaining naturalization he was not entitled to, 18 U.S.C. § 1425(b) (Count III), and making a false statement on an INS form, 18 U.S.C. § 1001 (Count IV). 2 He was convicted on both counts and sentenced to seven months on each count, to be served concurrently. The district court then revoked Moses's naturalization and cancelled his citizenship. See 8 U.S.C. § 1451(e), (f). Moses timely appealed.

DISCUSSION
I. Conviction under Count III

Moses initially asserts that the evidence is insufficient to support his conviction on Count III, which alleged that Moses applied for and obtained naturalization and citizenship to which he was not entitled in violation of 18 U.S.C. § 1425(b). The standard for reviewing a conviction for sufficiency involves determining whether 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). "The evidence adduced at trial, whether it be direct, circumstantial or both, together with all inferences reasonably drawn from it, is viewed in the light most favorable to the verdict." United States v. Menesses, 962 F.2d 420, 426 (5th Cir.1992). The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except guilt, and the jury is free to choose among reasonable constructions of the evidence. See United States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995), and --- U.S. ----, 115 S.Ct. 1825, 131 L.Ed.2d 746 (1995).

Moses applied under a provision that permits an individual married to a United States citizen to apply for citizenship within three years of receiving resident status:

Any person whose spouse is a citizen of the United States may be naturalized ... if such person ... during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse....

8 U.S.C. § 1430(a); see 8 C.F.R. § 319.1(b)(1) (defining "living in marital union").

Section 1425(b) criminalizes conduct whereby an individual knowingly applies for or obtains naturalization or citizenship to which he or she is "not entitled." 18 U.S.C. § 1425(b). Although no court has addressed the requirements of section 1425(b), a review of the statute reveals three elements that must be proved beyond a reasonable doubt to convict an individual: (1) the defendant issued, procured, obtained, applied for, or otherwise attempted to procure naturalization or citizenship; (2) the defendant is not entitled naturalization or citizenship; and (3) the defendant knows that he or she is not entitled to naturalization or citizenship. Id. There is no dispute that Moses applied for and procured As to the second factor, the Government had to prove that Moses was not entitled to citizenship. Id. Moses initially asserts that the Government failed to prove that he made false representations on his application as alleged in the indictment. Moses concedes that a jury could find that he falsely stated on the application that Janice Moses was living with him in Texas, when in actuality she lived in Shreveport, Louisiana. He argues, however, that there is no evidence that he made the representations on his application that were alleged in the indictment:

naturalization and citizenship. Thus, our task is to determine whether the evidence sufficiently supports the other two elements.

[T]he defendant did falsely represent ... that he had resided continuously in the United States in marital union with his spouse, Janice Moses, for at least three years immediately preceding the date of the Application, when in truth and in fact he did not reside with his spouse on that date and had not continuously resided with his spouse in marital union since December 1987.

We reject Moses's contention that the evidence is insufficient to show that he falsely represented on his application that he lived in marital union with his wife. Congress did not define the term "living in marital union" in 8 U.S.C. § 1430. The INS has defined the term as "[a]n applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse." 8 C.F.R. § 319.1(b)(1). The INS thus envisions that a couple actually reside together in order for an applicant to take advantage of the "citizen spouse" provision for citizenship. Id.; see 8 U.S.C. § 1430(a). Given that the INS's interpretation of "living in marital union" is based on a permissible construction of the statute, it is entitled to great deference by this Court. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984) (noting that "considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer").

The only other Circuit 3 that specifically has addressed the issue of the correct interpretation of "living in marital union" has similarly concluded that the term requires that the applicant "actually reside[ ] with his current spouse for three years prior to the filing of the petition." United States v. Maduno, 40 F.3d 1212, 1216-17 (11th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 123, 133 L.Ed.2d 72 (1995); see In re Bashan, 530 F.Supp. 115, 120 (S.D.N.Y.1982) (concluding that "living in marital union" requires the applicant to actually reside with his or her citizen spouse); In re Kostas, 169 F.Supp. 77, 78 (D.Del.1958) (noting that although short periods of separation do not prevent a finding of "living in marital union," the statute does require that an applicant "live[ ] in close association with a citizen spouse"). But see In re Olan, 257 F.Supp. 884, 890 (S.D.Cal.1966) (holding that the term "living in marital union" means living in the status of a valid marriage).

We agree with the INS and the Eleventh Circuit that "living in marital union" should be construed as a requirement that the applicant actually reside with the citizen spouse in order to obtain naturalization under section 1430. See 8 C.F.R. § 319.1(b)(1); Maduno, 40 F.3d at 1217. The statute requires a marital union, not simply a marital state. It is clear that "living in marital union" indicates that the couple live together in a marital state. Although the application did not specifically ask whether Moses was living in marital union or living together with his citizen spouse, it did ask if Moses was married, the date of the marriage, and the present address of his citizen spouse. Clearly, the INS used these questions to ascertain whether Moses was living in marital union with his citizen spouse. On the application, Moses declared that he married Janice Moses in 1985 and was living with her and their children in Grand Prairie, Texas at the time he filed the application. Thus, by listing Janice's address to be the same as his and by informing the INS examiner that Janice was The more difficult issue in this case involves whether the Government presented sufficient evidence that Moses was not entitled to citizenship based on the fact that he and Janice did not reside together. Moses argues that even if he had truthfully answered the questions regarding the whereabouts of ...

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