U.S. v. Tirouda
| Decision Date | 10 January 2005 |
| Docket Number | No. 03-50446.,No. 03-50433.,No. 03-50434.,03-50433.,03-50434.,03-50446. |
| Citation | 394 F.3d 683 |
| 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. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
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.
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 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 that time, Ninth Circuit Pattern Jury Instruction No. 4.11 read:
You have heard testimony from [witness] who [admitted being] [was alleged to be] an accomplice to the crime charged. An accomplice is one who voluntarily and intentionally joins with another person in committing a crime. You should consider such testimony with greater caution than that of other witnesses.
Ninth Circuit Pattern Jury Instruction 4.11. Over defense objections, the district court agreed to the instruction. At the request of the defense, however, the district court modified Ninth Circuit Pattern Instruction No. 4.11 to reflect that Tata was indicted in the case, had pleaded not guilty, and was not on trial with the other defendants. No additional modifications or additions were requested by the defense. The instruction given was as follows:
You have heard testimony from Tata Tirouda, who was also indicted in this case. As I told you before, she has pled not guilty and she is not on trial here now. However, because the government alleges that she is an accomplice in the crimes charged, you should consider such testimony with greater caution than that of other witnesses.
After the jury returned a verdict convicting the Tiroudas on all counts, Zineddine filed a motion for a new trial, which alleged, inter alia, that the jury instruction regarding Tata's testimony was given in error. The district court denied the motion for a new trial, and this appeal ensued.
The district court did not violate the Tiroudas' due process rights by instructing the jury to consider Tata Tirouda's testimony with greater caution than that of other witnesses. We reject the Tiroudas' claim that an accomplice witness instruction is permitted only when an accomplice testifies for the government, and that by giving such an instruction, the district court violated their right to due process by precluding them from presenting their theory of defense.1
Although this question is one of first impression in our circuit, it is well-settled law that district courts have the discretion to give an accomplice witness instruction in cases where an accomplice testifies for the prosecution. The policy behind this rule — to allow district courts to alert juries of the possibility of perjured testimony — applies equally to cases where an accomplice testifies on behalf of the defendant. An accomplice's testimony may be suspect, regardless of whether he testifies for the prosecution or the defense. As recognized by the Fifth Circuit, United States v. Nolte, 440 F.2d 1124, 1126-27 (5th Cir.1971) (citation and quotations omitted). Therefore, the policy behind accomplice witness instructions supports allowing the district courts to exercise their discretion in giving such an instruction, whether an accomplice testifies for the prosecution or, as here, for the defense.
Moreover, both the Fifth and Seventh Circuits have ruled that there is no error in giving an accomplice witness instruction when the accomplice's testimony favors the defendant. See United States v. Urdiales, 523 F.2d 1245, 1248 (5th...
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