U.S. v. Oloyede

• Decision Date: 13 January 1993
• Docket Number: 91-5850,Nos. 91-5833,s. 91-5833
• Citation: 982 F.2d 133
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oluwole OLOYEDE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Clifford C. COOPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 133

982 F.2d 133

UNITED STATES of America, Plaintiff-Appellee, v. Oluwole OLOYEDE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Clifford C. COOPER, Defendant-Appellant.

Nos. 91-5833, 91-5850.

United States Court of Appeals Fourth Circuit.

Argued May 6, 1992.

Decided Nov. 24, 1992.

As Amended Jan. 13, 1993.

Harry Levy, Schulman, Treem, Kaminkow & Gilden, P.A., Baltimore, MD, argued (Robert B. Schulman, Andrew H. Levine, on brief), for defendant-appellant Cooper.

James Clyde Clark, Land, Clark, Carroll & Mendelson, P.C., Alexandria, VA, argued, for defendant-appellant Oloyede.

Jeanne Marie Gardes, Office of the U.S. Atty., Alexandria, VA, argued (Richard Cullen, U.S. Atty., Robinson Nottingham, Renee R. Christina, Sp. Asst. U.S. Attys., on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, CHAPMAN, Senior Circuit Judge, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.

OPINION

PER CURIAM:

Appellants Clifford C. Cooper and Oluwole Oloyede were convicted of a scheme to defraud the United States Immigration and Naturalization Service ("INS") by falsifying documents for citizenship applications of Nigerians and Ethiopians. Appellants raise a number of issues on appeal. However, we find it necessary to consider only two questions: whether 8 U.S.C. § 1324(a)(1)(D), which proscribes harboring of aliens, encompasses activities directed solely to illegal aliens already living in this country, and whether the evidence obtained in a search of Cooper's office should have been suppressed because the search warrant either was overly broad in scope or violative of the attorney-client privilege. We affirm the convictions.

Regarding the statutory question, appellants contend that this is a purely legal question of statutory construction requiring de novo review under United States v. Burroughs, 564 F.2d 1111, 1119 (4th Cir.1977). The government argues that the applicable standard is the familiar one, "[w]hether, viewing the evidence in the light most favorable to the government, any rational trier of facts could have found the defendant guilty beyond a reasonable doubt." United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982). However, the court agrees with appellants that the scope of the statute, not sufficiency of the evidence, is at issue and that this is a legal question requiring de novo review.

I.

Appellant Cooper was an immigration lawyer in Arlington, Virginia whose practice consisted of representing Nigerians and Ethiopians in various immigration actions before INS. Appellant Oloyede, a Nigerian national, was a part-time cab driver who also ran the "Towers Network," a Washington, D.C. organization which assisted Nigerian aliens. Oloyede sold false employment, social security and other supporting documents to illegal aliens and referred the aliens to Cooper for preparation of their INS applications.

Eight of Cooper's clients, all illegal aliens, were arrested for submitting fraudulent documents in support of their citizenship applications. Testifying against appellants at trial, the illegal aliens stated that they had come to the United States as students or had arrived on visitor visas, or without permission. Each had failed to return home after graduation or upon expiration of his or her visa.

Five of the witnesses came to the United States to attend school. Rasheed Apapa, studying for his Ph.D. in theology at Southeastern University, had resided in the United States continuously since September 7, 1986. Yussuf Gbadamosi attended Montgomery College and Howard University, from which he obtained a Bachelor of Science Degree in Microbiology. He graduated from the College of Pharmacy in 1981 and was attending graduate school at Southeastern University for a Masters Degree in Business Administration. His student work permit expired in 1987 and he needed a permanent resident status so that he could use his pharmacy license to practice in Maryland. Both Benjamin Fawehinmi and Donald Ngundam attended Howard University and both became registered pharmacists in the District of Columbia after graduation. Asimiyu Momo attended school in this country and married an American. Momo lost his passport and needed a residency permit to travel to Nigeria to visit his parents.

The other three witnesses came to the United States to find work. Abideen Lamedi arrived as a visitor from the United Kingdom in 1989 and settled in Raleigh, North Carolina, where he held two jobs. Surat Animashaun came to the United States May 11, 1989, and was working illegally. Emmanuel Babatunde lived with his brother in New Jersey and had worked there since June 13, 1989. Although they spoke English with heavy accents, the testimony of these eight witnesses poignantly expressed their urgent need of legal status.

The evidence at trial showed a distinct pattern of appellants luring well-educated, employed aliens to Cooper's office by offering to sell them a legal status they could not otherwise obtain. The aliens paid appellants between $1,600 and $3,500 for a completed fraudulent immigration application. Cooper accompanied these aliens to the immigration hearings, using his authority as an attorney to guide and counsel them through the process.

II.

Appellants were convicted under 8 U.S.C. § 1324(a)(1)(D) which states, in pertinent part:

Any person who encourages an alien to reside in the United States, knowing or in reckless disregard of the fact that such residence is or will be in violation of law, shall be fined in accordance with Title 18, or imprisoned not more than five years, or both, for each alien in respect to whom any violation of this paragraph occurs.

This section was added by the Immigration Reform and Control Act of 1986 ("IRCA"). The parties agree that there are no reported cases in which this statute has been used to convict someone who assisted aliens already living in the United States.

The starting point of our analysis is the statute itself; the language of the statute controls where it is not ambiguous or unconstitutional. United States v. Luskin, 926 F.2d 372, 376 (4th Cir.1991); see also Touche Ross & Co. v. Reddington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979).

Appellants maintain that Section 1324(a)(1)(D) is solely directed to acts bringing aliens into the country. However, the plain language states, "knowing that [the illegal alien's] residence is or will be in violation of the law." (Emphasis supplied). Because the use of the verb "is" clearly connotes the present status of the illegal aliens' residence in this case within the United States, it can only be understood to apply expressly to actions directed towards illegal aliens already in this country.

In addition, the statute applies to "any person." Thus, appellants' argument that IRCA was intended to apply only to employers must fall. Congress intended to give broad scope to the class of persons whose conduct is proscribed by the statute.

Lastly, appellants argue that their conduct merely assisted aliens in avoiding detection of an illegal status and did not rise to the level of "encourag[ing] an alien to reside in the United States." In the absence of any controlling authority, the district court turned to Black's Law Dictionary which defines "encourage" to include actions taken to embolden or make confident, and concluded that appellants' actions permitted illegal aliens to be more confident that they could continue to reside with impunity in this country. The district court also found that by selling false citizenship papers, appellants helped those aliens to reside in this country by providing them with an opportunity to gain employment, support themselves, and avoid having to return to their native lands. "While offering them a chance to stand equally with all other American citizens, defendants encouraged them to continue to reside here." Joint Appendix at 318.

We arrive at the same conclusion on a somewhat different basis. The word "encourage" does not appear elsewhere in IRCA; hence, the statute as a whole does not assist with its definition. However, the development of the conduct proscribed by this section may be traced from the language of the predecessor statute to the language in the current law to arrive at a clear understanding of the meaning of "encourage" in § 1324(a)(1)(D). Subsection (a) of the former § 1324 stated, in pertinent part:

Any person who willfully or knowingly encourages or induces, or attempts to encourage or induce, either directly or indirectly, the entry into the United States of any alien not lawfully entitled to enter or reside within the United States, shall be guilty of a felony.

Criminal sanction in the predecessor statute extended only to bringing aliens into the country.

IRCA revised this statutory scheme by extending its reach to additional specific conduct. Currently, § 1324(a)(1) subsection (A) proscribes bringing an alien into the country, subsection (B) prohibits transporting an illegal alien within the United States; subsection (C) forbids concealing, harboring or shielding an alien from detection; and subsection (D) bars encouraging aliens either to come into the country or to reside in this country once they are here. Thus, IRCA worked a substantial expansion in the types of activities held criminal under this statute. IRCA's plain language distinguishes between these distinct categories of behavior and indicates that "encouraging" is not limited to bringing in, transporting or concealing illegal aliens. Rather, "encouraging" relates to actions taken to convince the illegal alien to come to this country or to stay in this country. Appellants' actions reassured their clients that they could continue to work in the United States, that they would not be subject to the threat of imminent detection and deportation, and that they could travel back to their homeland without risk of being...