U.S. v. Tirouda

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 394 F.3d 683
• Docket Number: No. 03-50446.,No. 03-50433.,No. 03-50434.,03-50433.,03-50434.,03-50446.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Zoubida Amirat TIROUDA, aka; Zoubida Amirit Tirouda, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Salah Tirouda, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Zineddine Tirouda, Defendant-Appellant.
• Decision Date: 10 January 2005

394 F.3d 683 UNITED STATES of America, Plaintiff-Appellee,
v.
Zoubida Amirat TIROUDA, aka; Zoubida Amirit Tirouda, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Salah Tirouda, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Zineddine Tirouda, Defendant-Appellant. No. 03-50433. No. 03-50434. No. 03-50446. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 7, 2004. Filed January 10, 2005.

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Mark F. Fleming and Lori B. Schoenberg, Federal Defenders of San Diego, Inc., San Diego, CA, for appellant Zineddine Tirouda.

Robert A. Garcia, San Diego, CA, for appellant Zoubida Tirouda.

Michael J. McCabe, San Diego, CA, for appellant Salah Tirouda.

Carol C. Lam, United States Attorney; Roger W. Haines, Jr., Assistant U.S. Attorney; and Michael G. Wheat, Assistant U.S. Attorney, San Diego, CA, for the appellee.

Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. Nos. CR-00-00100-IEG, CR-00-00100-IEG, CR-00-00100-IEG.

Before: WALLACE, T.G. NELSON, and WARDLAW, Circuit Judges.

WARDLAW, Circuit Judge.

Zineddine, Salah, and Zoubida Tirouda appeal from judgments convicting them of passport and immigrant fraud offenses in violation of 18 U.S.C. §§ 371, 1542, and 1546. We have jurisdiction pursuant to 28 U.S.C. § 1291. We consider whether the district court violated the Tiroudas' due process rights by instructing the jury to consider an alleged accomplice's testimony, which favored the Tiroudas, with greater caution than that of other witnesses. We also consider whether the district court erred in failing to define "accomplice" in that instruction. We join the Fifth and Seventh Circuits in holding that there is no error in giving an accomplice witness instruction when the accomplice's testimony favors the defendant. Nor did the failure to define "accomplice" in the accomplice witness instruction amount to plain error because, taken as a whole, the instructions were clear and any lack of clarity did not prejudice the Tiroudas.

BACKGROUND

In 1993, Zineddine Tirouda came to the United States as a visitor for pleasure, using a B-2 visa he obtained at the United States Embassy in Paris. Later that year, he filed an application for political asylum in which he claimed that he was an Algerian citizen, born in Algeria.

In 1995, Zineddine moved from New York to California to take a job with J. Mueller, Inc. In an effort to regularize Zineddine's immigration status so that he could work at the company legally, J. Mueller retained the services of several immigration attorneys. At this time, Zineddine completed United States Immigration Form I-9, in which he stated that he was an alien with temporary work authorization. J. Mueller's attorneys also applied for an H1B visa on Zineddine's behalf and sought to obtain a labor certification to adjust Zineddine's status to that of a lawful permanent resident. In the interim, Zineddine received temporary work authorization while his applications were being processed.

Eventually, Zineddine's H1B visa was approved. To retrieve the visa, however, Zineddine was required to return to Algeria. Since he refused to do so, J. Mueller contacted attorney Peter Larrabee to determine if Zineddine's asylum application was viable. Larrabee told J. Mueller that he was one-hundred percent certain that Zineddine's asylum claim was not viable.

In early 1999, shortly before his asylum hearing was to be held and his H1B visa

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was to expire, Zineddine retained an attorney and claimed for the first time in an official United States document that he was a United States citizen born in Meridian, Mississippi. Zineddine filed a lawsuit against the State of Mississippi to compel it to issue a delayed birth certificate. In his pleadings, he claimed that he was born in Meridian, Mississippi, on May 1, 1964, with a midwife in attendance. To augment his claim of birth in Mississippi, Zineddine flew his parents, Amar and Tata Tirouda, from Algeria to Mississippi to testify on his behalf. Before they left Algeria, Amar and Tata visited the United States Embassy in Algiers to apply for visas. On their visa applications, both Amar and Tata stated that it was to be their first visit to the United States. United States records indicate that this was indeed their first visit to the United States.

On August 17, 1999, in Meridian, Mississippi, Zineddine, Amar, and Tata Tirouda testified under oath in a chancery court that Zineddine was born in Mississippi in 1964 when Amar and Tata were in the United States looking for work. After the hearing, the Mississippi court ordered the issuance of a delayed Mississippi birth certificate for Zineddine.

After receiving the delayed Mississippi birth certificate, Zineddine completed a United States passport application. In his application, Zineddine used the birth certificate to support his claim that he was born in Mississippi. On September 3, 1999, Zineddine's parents filed separate affidavits in support of Zineddine's passport application.

After the government conducted an investigation into Zineddine's past, Zineddine was charged with conspiracy to possess immigration documents obtained by fraud, in violation of 18 U.S.C. §§ 371 and 1546, and making false statements in application for a United States passport, in violation of 18 U.S.C. § 1542. Zineddine's parents, Amar and Tata Tirouda, were also charged with making false statements in documents filed in support of an application for a United States passport, in violation of 18 U.S.C. § 1542. In a related matter, Zineddine's wife, Zoubida Tirouda, and his brother, Salah Tirouda, were charged with conspiracy to possess immigration documents obtained by fraud, in violation of 18 U.S.C. §§ 371 and 1546, and possession of immigration documents obtained by fraud, in violation of 18 U.S.C. § 1546.

Zineddine, Salah, and Zoubida Tirouda were tried together. At their joint trial, Tata Tirouda testified on Zineddine's behalf against her counsel's advice because she also was indicted for passport fraud. Tata testified that in 1964 she gave birth to Zineddine in Meridian, Mississippi. She provided great detail about the circumstances surrounding her trip to the United States and her time in Meridian both before and after Zineddine's birth.

At the jury instruction conference before closing arguments, the government requested that the district court give an accomplice witness instruction for Tata Tirouda. At...