United States v. Ngige

• Decision Date: 17 March 2015
• Docket Number: No. 14–1136.,14–1136.
• Citation: 780 F.3d 497
• Parties: UNITED STATES, Appellee, v. Jecinta Wambui NGIGE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

780 F.3d 497

UNITED STATES, Appellee

v.Jecinta Wambui NGIGE, Defendant, Appellant.

No. 14–1136.

United States Court of Appeals, First Circuit.

March 17, 2015.

Lawrence Gatei, with whom Immigration & Business Law Group, LLP was on brief, for appellant.

Gail Fisk Malone, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before BARRON, SELYA, and STAHL, Circuit Judges.

Opinion

STAHL, Circuit Judge.

Following a bench trial on a record of stipulated facts, the district court convicted Defendant–Appellant Jecinta Wambui Ngige of conspiring to defraud the United States by participating in a sham marriage to secure a change in her immigration status. On appeal, she argues that the prosecution was time-barred because she committed no overt act in furtherance of the conspiracy within the five-year period before the return of the indictment. We affirm.

I. Facts and Background

On June 13, 2012, a federal grand jury returned an indictment charging Ngige with conspiracy to defraud the United States, in violation of 18 U.S.C. § 371. The indictment alleged that a third party (later identified as James Mbugua); MF (later identified as Michael Frank), a citizen of the United States; and Ngige, a citizen of Kenya who had entered the United States lawfully but whose authorization to remain in the United States had expired, “knowingly and willfully conspired and agreed ... to participate in a sham marriage, and to make sworn false statements about that marriage to agencies of the United States Government, for the purpose of defrauding the United States.” The indictment maintained that the conspiracy had two objectives: (1) for Ngige's co-conspirators to profit financially by accepting payments from her in exchange for participating in the sham marriage; and (2) for Ngige to “acquire a change of her United States immigration status to which she would not otherwise have been entitled by making false representations to agencies of the United States government about her marriage to and relationship with [Frank].”

The indictment charged Ngige with committing eight overt acts in furtherance of the conspiracy. According to the indictment, Ngige (1) arranged with another individual (Mbugua) to meet a United States citizen willing to marry her; (2) traveled to Maine on January 30, 2004, to meet Frank and, with him and other co-conspirators, apply for a marriage license, falsely stating on the application that she and Frank lived together; and (3) entered into a sham marriage with Frank, knowing that the “sole purpose of the wedding was to permit her to apply for a change in her immigration status to which she would not otherwise have been entitled.” The indictment alleged that Ngige then (4) signed a Form I–485, dated March 19, 2004, seeking to adjust her immigration status on the basis of her marriage, which was subsequently filed with the U.S. Citizenship and Immigration Service (“USCIS”); (5) along with the Form I–485, filed or caused to be filed a Form I–130, also dated March 19, 2004, bearing Frank's forged signature and falsely representing that the two lived together in Attleboro, Massachusetts; and (6) filed or caused to be filed various documents in support of the I–485 and I–130 petitions, some purporting to show that she and Frank lived together although they did not. The indictment further stated that sometime after the I–485 and I–130 petitions were filed with USCIS, Frank refused to assist Ngige with her change of immigration status request, and thereafter, Ngige (7) signed and filed a Form I–360, seeking a change of immigration status under the Violence Against Women Act (“VAWA”) on the grounds that her citizen-spouse, Frank, was abusive to her. The Form I–360, dated August 14, 2006, falsely stated that she and Frank currently lived together. Finally, the indictment alleged that (8) on August 6, 2007, Ngige filed a psychological evaluation in support of her Form I–360 VAWA petition. That evaluation, dated September 28, 2006, contained various material falsehoods about the trajectory of Ngige's relationship with Frank.

In the district court, Ngige filed a motion to dismiss the indictment as time-barred, arguing that the filing of the psychological evaluation on August 6, 2007—the only overt act alleged within the five-year statute of limitations period, see 18 U.S.C. § 3282(a) —was not done in furtherance of the charged conspiracy. She also asserted that both she and Frank withdrew from the conspiracy in 2006, and that she had disavowed the conspiracy by filing for divorce. The district court denied the motion, holding that Ngige's arguments rested on disputes of fact which would need to be resolved by the presentation of evidence at trial. United States v. Ngige, No. 2:12–cr–00098–JAW, 2013 WL 950689, at *2 (D.Me. Mar. 12, 2013).

Ngige waived her right to a jury trial, and the case proceeded to a bench trial on a record of stipulated facts and attendant exhibits. The following paragraphs summarize the stipulations before the court.

Ngige, a native of Kenya, traveled to the United States on a visitor's visa in December 2001. After her visa expired six months later, she remained in the United States without a legal basis for doing so. Sometime prior to January 30, 2004, Ngige agreed to pay Mbugua to introduce her to a United States citizen willing to marry her for financial consideration. The stipulations averred that this arrangement had “two goals. One was for Mbugua and the U.S. citizen/husband to make money. The other was for Ms. Ngige to be able to apply for lawful residency ... as the spouse of a U.S. citizen by marrying Frank and pretending to establish a life with him.”

On January 30, 2004, Ngige traveled from Massachusetts to Maine to meet with Mbugua and Frank. Ngige and Frank obtained a marriage license, untruthfully indicating that they lived together in Lewiston, Maine. The two were then married in a brief civil ceremony. Ngige paid Mbugua, who gave some of the money to Frank. Ngige then returned to Massachusetts. At Ngige's request, Frank traveled to Massachusetts three times after the wedding, and on at least one occasion, she paid Frank the cost of his travel. While he was in Massachusetts, Ngige and Frank organized immigration paperwork and took steps to make it appear as though they lived together, such as opening a joint bank account.

On March 19, 2004, Ngige signed a Form I–485, Application to Register Permanent Resident or Adjust Status, to adjust her immigration status based on her marriage to Frank. The Form I–485 was filed with USCIS, along with a Form I–130, Petition for Alien Relative, which purported to bear Frank's signature, and various documents in support of the petitions. The I–130 form and some of the supporting documents represented that Ngige and Frank lived together in Attleboro, Massachusetts, in order to “create the impression that she and Mr. Frank lived together and shared a life when they did not.”

USCIS scheduled Ngige's change-of-status request for an interview and mailed her notice of a date and time. Frank refused to accompany her to the interview, even after she traveled to Maine twice to convince him to continue helping her with her petition. The parties stipulated that sometime in 2005, during Ngige's second trip to Maine, Frank withdrew from the conspiracy and had no further involvement in it.

The stipulations stated that on January 31, 2006, Ngige filed for divorce and that her complaint for divorce falsely stated that she and Frank lived together until January 6, 2005. The divorce was finalized in April 2007. On August 14, 2006, while the divorce was still pending, Ngige signed and submitted the Form I–360 VAWA petition seeking a change in immigration status as a self-petitioning spouse of an abusive U.S. citizen. On the form, she named Frank as the abusive citizen-spouse and wrote that the two lived together in Attleboro from February 2006 until “present.” In support of her petition, Ngige submitted multiple documents previously submitted to USCIS in March 2004 with the I–485 and I–130 forms.

On July 15, 2007, USCIS informed Ngige that the agency could not act on her VAWA I–360 petition absent evidence that Frank subjected her to battery or extreme cruelty. In response, on August 6, 2007, Ngige filed a psychological evaluation dated September 28, 2006. The evaluation contained Ngige's knowingly false statements purporting to describe how she and Frank met, began dating, and married before Frank became emotionally abusive to Ngige. The evaluation reported that Ngige suffered from depression and panic attacks due to the abuse. Upon receipt of the evaluation, USCIS requested further documentation of spousal abuse. Ngige submitted no further documentation, and USCIS denied her VAWA petition on November 2, 2007.

Aside from the foregoing stipulations and six attendant exhibits, neither party sought to introduce any further evidence. On September 9, 2013, the district court found Ngige guilty of conspiracy as charged in the indictment. Ngige requested written findings of fact, see Fed.R.Crim.P. 23(c), which the district court issued on September 18, 2013. United States v. Ngige, No. 2:12–cr–00098–JAW, 2013 WL 5303725 (D.Me. Sept. 18, 2013). The district court adopted the parties' stipulations as its findings of fact, id. at *1, and explained its guilty verdict, id. at *4–5. On January 29, 2014, the district court sentenced her to four months in prison, followed by one year of supervised release. This appeal followed.

II. Analysis

Ngige's appeal rests on her contention that the district court incorrectly found that the filing of the psychological evaluation in support of her VAWA petition constituted an overt act in furtherance of the charged conspiracy. We address this and related arguments at both the motion to dismiss and motion for acquittal stages of the proceedings.

A. Sufficiency of the Indictment

We begin with our de novo...