U.S. v. Tagalicud
| Decision Date | 12 March 1996 |
| Docket Number | Nos. 95-10201,s. 95-10201 |
| Citation | 84 F.3d 1180 |
| Parties | 96 Cal. Daily Op. Serv. 3785, 96 Daily Journal D.A.R. 6140 UNITED STATES of America, Plaintiff-Appellee, v. Linda Agbayani TAGALICUD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Francisco Agustin TAGALICUD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Kauilani HOSE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Tarcila Tagalicud HOSE, Defendant-Appellant. to 95-10204. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Donna M. Gray, Assistant Federal Public Defender, Honolulu, Hawaii, for defendant-appellant Linda Agbayani Tagalicud.
Stephen M. Shaw, Honolulu, Hawaii, for defendant-appellant Francisco Agustin Tagalicud.
Elizabeth Fisher (Argued), and Carmen DiAmore-Siah (On the Briefs), Honolulu, Hawaii, for defendant-appellant Michael Kauilani Hose.
Johnaaron Murphy Jones, Honolulu, Hawaii, for defendant-appellant Tarcila Tagalicud Hose.
Omer G. Poirier, Assistant United States Attorney, Honolulu, Hawaii, for plaintiff-appellee.
Appeals from the United States District Court for the District of Hawaii, Manuel L. Real, District Judge, Presiding. D.C. Nos. CR-93-02175-01-MLR--CR-93-02175-04-MLR.
Before THOMPSON, KLEINFELD and TASHIMA, Circuit Judges.
INTRODUCTION
The essential question raised by this case is how a judge must instruct in a multi-defendant case in which the defendants are charged with similar marriage fraud offenses.
Two Hawaiians, Linda Agbayani and her 18 year-old son Michael Hose, married two individuals in the Philippines, Francisco Tagalicud and his sister Tarcila Tagalicud. The government presented evidence that these marriages were entered into after minimal acquaintance, so that the Hawaiians could get money and the Filipinos visas. The spouses never actually met before the Hawaiians' brief trip to the Philippines, where they were married. When the 18 year-old boy's friends asked him why he was married, he said "oh, it's not like for real," it's "for money."
On the other hand, the four defendants presented evidence that they really did mean to be married. They showed the jury a video tape of the two-couple marriage ceremony. It appears to be in church, with a priest officiating, and a substantial number of family members, friends, and acquaintances watching. Then the video tape moves to a reception, with ordinary wedding customs and a large crowd eating and drinking. The defendants also presented letters they had written each other during the six months before the wedding. After the wedding, the Filipino wife of the 18 year-old boy had moved for a temporary restraining order against him in Hawaii, claiming that he hit her, which sounds more consistent with spouses living together, albeit unhappily, than with a commercial transaction, money for marriage license and visa, after which the parties go their separate way.
The government presented evidence showing that after the spouses had all arrived in the United States, the mother and her 18 year-old son lived together, and the brother and sister lived together at their aunt's house. In addition, the government presented the 18-year-boy's surreptitiously taped remarks above, and another in which he said
All four of the spouses were indicted for conspiracy to defraud the Immigration and Naturalization Service through sham marriages and false statements in immigration documents. The alleged false statements were that the 18 year-old lived at a separate address from his mother, and that his mother was employed and had no dependents. In addition, the individuals were charged with entering into sham marriages in order to evade the immigration laws.
All four defendants were convicted, and appeal. Though numerous grounds are raised, our reversal on one of the grounds obviates the need to deal with most of the others.
We first take up the sufficiency of evidence challenges, because they would lead to reversal without retrial. The test of sufficiency is "whether, after reviewing 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." United States v. Vgeri, 51 F.3d 876, 879 (9th Cir.1995) (quotations omitted).
Michael Kauilani Hose argues that the evidence was insufficient to establish the requisite mens rea for conspiracy. We disagree. The jury could have concluded that he lied about his address, and lied about taking money for the marriage, in order to cover up immigration fraud. The evidence was sufficient. The jury could have inferred that he would not have lied, had he not had the requisite intention to commit the underlying offense.
Tarcila Tagalicud Hose argues that she was not adequately identified in court.
Her own testimony in court, however, identified her as a participant in the marriage, so the jury had evidence from which it could conclude that she was the defendant charged. Her sufficiency challenge also fails
Reversal is necessary because of error in jury instructions. The indictment charged the defendants as follows:
Linda Agbayani Tagalicud
Count I--Conspiracy, 18 U.S.C. § 371
Count II--Marriage Fraud, 8 U.S.C. § 1325(b)
Count IV--False Immigration Document, 18 U.S.C. § 1546 1
Count VI--False Immigration Document, 18 U.S.C. § 1546
Francisco Agustin Tagalicud
Count I--Conspiracy, 18 U.S.C. § 371
Count II--Marriage Fraud, 8 U.S.C. § 1325(b)
Michael Kauilani Hose
Count I--Conspiracy, 18 U.S.C. § 371
Count III--Marriage Fraud, 8 U.S.C. § 1325(b)
Count V--False Immigration Document, 18 U.S.C. § 1546
Tarcila Tagalicud Hose
Count I--Conspiracy, 18 U.S.C. § 371
Count III--Marriage Fraud, 8 U.S.C. § 1325(b)
The district judge explained the elements of conspiracy in terms of "all four defendants." No challenge is made to the conspiracy instruction itself, although the instructions are challenged as a whole.
For the remaining counts, the district judge did not sort out the charges by defendant, and did not explain what had to be proved against each defendant for each count. Instead, the judge described all of the crimes in terms of the charges against Linda Agbayani Tagalicud. The jury was not given any instructions along the lines of "in order to find Francisco Agustin Tagalicud guilty of x, you must find a, b and c." The jury was given a copy of the indictment, oral instructions telling them what had to be proved against Linda Tagalicud on each count with which she was charged, and no express instructions at all, except for the conspiracy instruction, relating to the other three defendants. The judge did not explain which parts of the instructions relating to Linda Tagalicud applied to which charges against any of the other three defendants.
Appellants do not challenge the correctness of the instructions as to Linda Tagalicud. Their argument is that the court erred by instructing only as to her, and leaving it to the jury to infer what had to be proved against each of the other defendants.
After the judge gave his oral instructions, but before the jury retired to deliberate, the lawyers for the government and defendants objected to the court's failure to instruct expressly about the defendants other than Linda Agbayani Tagalicud. They pointed out the possibility of jury mistake. The judge decided not to give additional instructions, because he had instructed that "the cases against each defendant should be considered separately and individually."
As to Francisco Agustin Tagalicud, Michael Kauilani Hose, and Tarcila Tagalicud Hose, reversal is required, because there were no instructions telling the jury what it had to find in order to convict them. We review de novo whether a jury instruction misstates elements of a crime. United States v. Stein, 37 F.3d 1407, 1409 (9th Cir.1994). Arguably this is an issue of "formulation of jury instructions," which we review for abuse of discretion, to determine " 'whether or not the instructions taken as a whole were misleading or represented a statement inadequate to guide the jury's deliberations.' " Powell, 955 F.2d at 1210 (quoting United States v. Kessi, 868 F.2d 1097, 1101 (9th Cir.1989)). We need not decide whether the instructions are more properly viewed as failing to state the elements of the crimes against the three defendants other than Linda Agbayani Tagalicud The government argues that the instructions did not misstate or omit any elements, because each of the crimes with which the other three defendants were charged contained the same elements as one of the crimes with which Linda Tagalicud was charged. Thus, for example, although none of the other three defendants was the subject of an instruction about marriage fraud, Linda Tagalicud was, so the jury could have inferred that for the government to convict any of them, it would have to prove the same things that it had to prove against Linda Tagalicud. Likewise, according to the government, the jury could have inferred what had to be proved on each of the other charges against each of the other defendants.
or as a formulation which stated the elements but did not expressly state what had to be proved for which charges against which defendants. Either way, reversal is required. "Failing to instruct jurors about an essential element of a crime is constitutional error because it lets them convict without finding the defendant guilty of that element." United States v. Caldwell, 989 F.2d 1056, 1060 (9th Cir.1993). "The jury must receive clear instruction as to what
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