United States v. Daniel, No. 17-20541

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: JERRY E. SMITH, Circuit Judge
• Citation: 933 F.3d 370
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Justice DANIEL ; Letrishia A. Andrews, also known as Letrishia Ann Andrews, also known as Letrishia Andrews Daniel, Defendants–Appellants. United States of America, Plaintiff–Appellee, v. Folarin H. Alabi, also known as Folarin Henry Alabi, also known as Henry, Defendant–Appellant.
• Decision Date: 30 July 2019
• Docket Number: No. 17-20543,No. 17-20541

933 F.3d 370

UNITED STATES of America, Plaintiff–Appellee,
v.
Justice DANIEL ; Letrishia A. Andrews, also known as Letrishia Ann Andrews, also known as Letrishia Andrews Daniel, Defendants–Appellants.

United States of America, Plaintiff–Appellee,
v.
Folarin H. Alabi, also known as Folarin Henry Alabi, also known as Henry, Defendant–Appellant.

No. 17-20541
No. 17-20543

United States Court of Appeals, Fifth Circuit.

FILED July 30, 2019

Eileen K. Wilson, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Carmen Roe, Esq., Houston, TX, for Defendant-Appellant Justice Daniel.

Kimberly S. Keller, Keller Stolarczyk P.L.L.C., Boerne, TX, for Defendant-Appellant Letrishia A. Andrews, also known as Letrishia Ann Andrews, also known as Letrishia Andrews Daniel.

Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Folarin Alabi, Justice Daniel, and Letrishia Andrews were convicted of crimes related to their involvement in a marriage-fraud conspiracy. They appeal, raising issues regarding their convictions and sentences. We affirm.

I.

Co-conspirators recruited U.S. citizens to marry Nigerian nationals so that the Nigerians could obtain legal immigration status. U.S. Citizenship and Immigration Services ("CIS") uncovered the conspiracy and, together with the Department of Homeland Security ("DHS"), investigated.

CIS Officers Anna Lam and Marva Hebert reviewed the files for Daniel and others and determined that their marriages to U.S. citizens were fraudulent. The investigation included examination of immigration petitions, applications, documentation, pictures, when and with whom the alien entered the United States, when the couple got married, when they applied for immigration benefits, their ages, whether they were living together, and whether the couple had children together or with someone else during the marriage. DHS Agent Ramon Oyegbola conducted a second investigation and agreed that the marriages were fraudulent, forming that judgment after surveilling the suspected individuals’ residences, examining documents, and interviewing the suspects and other connected people.

Alabi was charged with two counts of aiding and abetting marriage fraud in violation of 8 U.S.C. § 1325(c) and 18 U.S.C. § 2. The count that proceeded to trial charged that Alabi had aided and abetted the marriage of Daniel for the purpose of evading U.S. immigration law. Daniel was charged with one count of marriage fraud in violation of 8 U.S.C. § 1325(c). Andrews was charged with one count of aiding and abetting marriage fraud in violation of 8 U.S.C. § 1325(c) and 18 U.S.C. § 2, one count of theft of government money in violation of 18 U.S.C. § 641, and two counts of making false statements related to Supplemental Nutrition Assistance Program benefits in violation of 8 U.S.C. § 1001(a)(3). All three defendants were also charged with conspiracy to commit marriage fraud in violation of 8 U.S.C. § 1325(c) and 18 U.S.C. § 371.

933 F.3d 376

II.

After a joint trial, the jury convicted on all counts. The district court sentenced Alabi to 18 months’ imprisonment and one year of supervised release ("SR"); and Andrews to 24 months’ imprisonment, three years of SR, $5629 in restitution, and a $500 special assessment, and imposed, among others, a special condition of SR requiring her "not knowingly [to] purchase, possess, distribute, administer, or otherwise use any psychoactive substances, including synthetic marijuana or bath salts, that impair a person’s physical or mental functioning, whether or not intended for human consumption, except as with the prior approval of the probation officer."

Alabi (1) challenges the sufficiency of the evidence to support the verdict that he conspired to commit marriage fraud and aided and abetted marriage fraud and (2) contends that the district court erred in denying his proposed jury instruction "that would [have] require[d] the jury to find that [he] intended to evade the immigration law at the time the marriage was entered." Daniel avers that the court erred in refusing to sever his case from Andrews’s. Andrews maintains that the court erred in imposing the psychoactive-substances special condition.

III.

A.

Alabi asserts that "[t]he evidence was insufficient to prove that [he] knowingly entered the conspiracy to commit immigration fraud or to aid and abet immigration fraud." He maintains that neither the testimony of Anisha Gable, another co-conspirator, nor the immigration agents’ testimony, including the evidence of red flags indicative of marriage fraud that were present in Daniel’s marriage, supported that Alabi intended to join the conspiracy or knew of Daniel’s and Andrews’s intent to evade the immigration laws by marrying. Alabi attacks Gable’s testimony as uncorroborated and circumstantial and therefore insufficient to support the inference that he had the requisite knowledge and intent to join the conspiracy. He also rehashes impeaching evidence against Gable.

Alabi repeatedly mentions his view that absent evidence he received money to introduce a U.S. citizen to a Nigerian for marriage purposes, the requisite intent is not shown. Alabi further maintains that "[t]he indicators of fraud discovered by investigators ... were false statement and altered documents that were submitted after the marriage," but "there was no evidence that [he] had any involvement or knowledge" of those documents when the marriage was entered into. He urges that "there was no evidence that [he] was involved with submitting documents connected to any of the marriages in this case or that [he] instructed or directed others about how to submit these documents that were determined to be indicative of fraud." Consequently, "[t]he evidence was ... insufficient to support an inference that Alabi knew about the conspiracy and intentionally joined the conspiracy."

Regarding his conviction for aiding and abetting marriage fraud, Alabi contends that the evidence was insufficient "because there was no evidence that he actively participated in Daniel’s marriage for the purpose of evading the immigration laws." He denies that the evidence demonstrated "that he shared Daniel[’s] intent to violate the immigration laws."

1.

"We review challenges to the sufficiency of the evidence de novo" but are "nevertheless highly deferential to the verdict."

933 F.3d 377

United States v. Chapman , 851 F.3d 363, 376 (5th Cir. 2017) (internal quotation marks and citation omitted). "[W]e consider all evidence presented and all inferences reasonably drawn therefrom in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Vinagre-Hernandez , 925 F.3d 761, 764 (5th Cir. 2019) (internal quotation marks and citation omitted). "[A] defendant seeking reversal on the basis of insufficient evidence swims upstream." United States v. Mulderig , 120 F.3d 534, 546 (5th Cir. 1997).

2.

"To prove a conspiracy under 18 U.S.C. § 371, the government ha[s] to prove (1) an agreement between two or more persons to pursue an unlawful objective; (2) the defendant’s knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the members of the conspiracy in furtherance of the objective of the conspiracy." United States v. Ongaga , 820 F.3d 152, 157 (5th Cir. 2016) (citation omitted). "An agreement may be inferred from concert of action, voluntary participation may be inferred from a collocation of circumstances, and knowledge may be inferred from surrounding circumstances." United States v. Bieganowski , 313 F.3d 264, 277 (5th Cir. 2002) (cleaned up and citation omitted).

Title 8 U.S.C. § 1325(c) states that "[a]ny individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both." To prove marriage fraud, the government must show "only that the defendant (1) knowingly entered into a marriage (2) for the purpose of evading any provision of the immigration laws." Ongaga , 820 F.3d at 160.

"The federal aiding and abetting statute, 18 U.S.C. § 2, states that a person who ... aids, abets, counsels, commands, induces or procures ... the commission of a federal offense is punishable as a principal." Rosemond v. United States , 572 U.S. 65, 70, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014) (internal quotation marks omitted). "[A] person is liable under § 2 for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense’s commission." Id. at 71, 134 S.Ct. 1240. The statute "comprehends all assistance rendered by words, acts, encouragement, support, or presence, ... even if that aid relates to only one (or some) of a crime’s phases or elements." Id. at 73, 134 S.Ct. 1240 (internal quotations marks and citation omitted).

3.

The evidence was sufficient to support the verdict that Alabi knowingly entered the conspiracy to commit, and...