U.S. v. Tongo, 93-5326

• Decision Date: 07 February 1994
• Docket Number: No. 93-5326,93-5326
• Citation: 16 F.3d 1223
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Billy TONGO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1223

16 F.3d 1223

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Billy TONGO, Defendant-Appellant.

No. 93-5326.

United States Court of Appeals, Sixth Circuit.

Feb. 7, 1994.

Before: BOGGS and NORRIS, Circuit Judges; and BELL, District Judge. ^*

PER CURIAM.

Billy Tongo was convicted in federal district court on sixteen counts, involving fraudulently procuring United States citizenship; lying to obtain an American passport; fraudulently obtaining federally backed student loans; lying to a financial institution backed by the Federal Deposit Insurance Corporation (FDIC); and fraudulently obtaining housing subsidies by lying to the United States Department of Housing and Urban Development (HUD). He appeals from the sentence he received for his crimes: two consecutive two-year prison terms, totaling 48 months. For the reasons set forth below, we affirm.

I

Tongo, a native of Nigeria, entered the United States in 1981 on a student visa. ¹ The Immigration and Naturalization Service (INS) had approved his application to attend college in Macomb, Illinois. He never went to Illinois; rather, he headed straight for Tennessee. From the fall term of 1982 until May 1986, Tongo attended Tennessee State University in Nashville, where he earned a bachelor's degree in business administration (B.B.A.). For working capital to finance his education, he applied for and received federally guaranteed student loans, issued by Citibank, an FDIC-backed banking institution. Such student loans, by statute, are available only to United States citizens and lawful permanent residents (LPRs).

To qualify as an LPR, Tongo entered into a sham marriage ² with an American citizen, Carla Yvette Tuggle, in January 1983, ³ and he fraudulently procured LPR status through that ruse. After finishing college, Tongo attended Middle Tennessee State University from January 1987 to August 1989, where he obtained a master's degree in economics. He continued to obtain federal student loans from Citibank on the basis of his fraudulently-obtained permanent residency. In all, from 1983 to 1989, Tongo obtained close to $20,000 in such loans. Moreover, he began obtaining housing subventions from HUD by asserting his fraudulent permanent residency, by amplifying his requests with fraudulent claims that he had dependents to support, and by falsely understating his total outside income. Between 1986 to 1992, he received over $24,000 in such federal housing assistance.

In March 1989, Tongo was arrested by the Nashville police while soliciting a street prostitute. In Nashville, that charge is designated a misdemeanor. When the police asked him for identification, he presented a Tennessee driver's license with the name Tongo Olumide Koyejo. The name, the birthdate, and the social security number on the license all differed from Tongo's INS identification records.

Two months after the prostitution citation, Tongo petitioned the INS for citizenship. As part of the formal naturalization petition process, Tongo was interviewed by John Cook, the INS senior immigration examiner in Memphis. Cook asked whether Tongo had ever used any other name; he replied negatively. Furthermore, Tongo responded in the negative to the standard question of whether he had ever procured anyone for prostitution. He affirmed that his spouse, Carla, was still living with him. Having answered all of his interviewer's questions with the right answers, Tongo was recommended for citizenship, and he was naturalized in December 1989.

Sometime after he obtained citizenship, the INS began investigating the circumstances under which Tongo had been approved for naturalization in 1989. ⁴ In June 1992, INS agents arrested him at his place of employment. At that time, the agents asked him whether he wanted them to remove anything from his car, which was parked at the work site. He asked them to retrieve his driver's license, which was in the trunk. When they told him that they would do so and would inspect the document first, before handing it to him, he told the agents that, on second thought, he would rather that they not remove his license from his trunk. The INS officer, Agent Evans, honored Tongo's request. Afterwards, based on Tongo's suspicious behavior, Evans checked Tennessee state records and learned that no driver's license had ever been issued to a Billy Tongo. However, a Tongo Koyejo had received a driver's license, had received citations for traffic violations that involved the Tongo automobile, and had been arrested for soliciting a prostitute. With this new information, Evans obtained a warrant to search the vehicle. While executing the search warrant, the agent discovered various documents in the vehicle that related to Tongo's fraudulent applications for federal student loans.

INS Agent Evans also advised HUD that information revealed that Tongo may have fraudulently obtained Section 8 rent subsidies from the agency during a period when he was employed full-time at the Tennessee Mental Health Institute in Nashville. At the time, Tongo was paid $1,234 monthly as a psychiatric technician, and he was earning approximately $20,000 more than his annual base salary by working substantial overtime. A subsequent investigation revealed that Tongo had qualified for, and obtained, HUD subventions based on false statements regarding his income, his marital status, the number of his dependents, and his status in this country.

Tongo was charged with: (1) claiming a false social security number in order to conceal his identity during a criminal arrest; (2) making a false statement under oath in a matter relating to naturalization by denying that he had ever been arrested for a criminal offense; (3) making a false statement under oath in a matter relating to naturalization by denying that he had ever used another name; and (4) fraudulently obtaining citizenship. The indictment was superseded when the Government learned of his efforts to obtain a passport fraudulently (count 5) and of the student-loan fraud that he had been perpetrating between 1983 and 1989 (counts 6-10). The indictment was superseded again when his HUD fraud came to light, culminating in an eighteen-count second superseding indictment. He was convicted by a jury on counts 3-18.

For his convictions on counts 6 and 9-18, involving his fraudulently procuring numerous student loans and housing subsidies, Tongo was assigned a base offense level of six. U.S.S.G. Secs. 2F1.1(a), 3D1.2(d). A five-level enhancement was added because the loss involved was more than $40,000 but less than $70,000. Id. Sec. 2F1.1(b)(1)(F). Because Tongo's scheme required more than minimal planning and entailed the defrauding of more than one victim, an additional two-level enhancement was imposed. Id. Sec. 2F1.1(b)(2)(A), (B). Finally, because he lied about his finances when he applied to the magistrate judge for court-appointed counsel, his offense level was increased by two for attempting to impede or obstruct justice. Id. Sec. 3C1.1. As a result of the various sentencing enhancements, Tongo's adjusted offense level was set at fifteen for the offense group of Counts 6 and 9-18. Because he had been convicted on other criminal counts as well, involving fraudulent procuring of citizenship and a passport, his total offense level was revised upward by two more levels, pursuant to the multiple-count adjustment. Id. Sec. 3D1.4. With an offense level of seventeen and a criminal history category of I, Tongo's guideline range for counts 3-6 and 9-18 was 24-30 months. Accordingly, the district judge sentenced Tongo to 24 months for the combination of those offenses.

Unfortunately for Tongo, counts 7 and 8, fraudulently obtaining federal student loans from an FDIC-backed institution, involved activities before the United States Sentencing Guidelines took effect. Therefore, those counts were excluded from the guideline sentencing process, and Tongo received concurrent 24-month sentences for each of those two counts, but consecutive to the twenty-four-month guideline sentence. ⁵

Tongo appeals from his convictions on counts 3 and 4 of the second superseding indictment and from the court's decision to impose a separate prison sentence for the convictions on counts 7 and 8 that will run consecutive to the sentence imposed for the convictions on counts 3-6 and 9-18.

II

Whoever knowingly makes any false statement under oath, in any case, proceeding, or matter relating to, or under, or by virtue of any law of the United States relating to naturalization, citizenship, or registry of aliens ... [s]hall be fined ... or imprisoned ... or both.

18 U.S.C. Sec. 1015(a). Tongo argues that this law punishes only material misrepresentations, not minor lies. Consequently, he maintains that he was wrongly convicted on counts 3 and 4.

Tongo cites Kungys v. United States, 485 U.S. 759 (1988), in which the Court held that a naturalized citizen could be denaturalized for having lied during his citizenship-application process only if his lies could be shown by clear, unequivocal, and convincing evidence to have been "material." A lie meets the "materiality" test if it has a natural tendency to influence the decision of INS regarding whether to approve an application for citizenship. Id. at 771-72. Tongo adds that other American laws that incriminate lying, such as the perjury laws, also limit punishments exclusively to lies regarding "any material matter which [the declarant] does not believe to be true." 18 U.S.C. Sec. 1621 (emphasis added). Therefore, he maintains that the trial judge erred when he instructed the jury that "[i]t is not necessary [for the Government] to prove that the [immigration] official involved was, in fact,...