United States v. Ngige
| Decision Date | 18 September 2013 |
| Docket Number | 2:12-cr-00098-JAW |
| Parties | UNITED STATES OF AMERICA v. JECINTA WAMBUI NGIGE |
| Court | U.S. District Court — District of Maine |
On September 9, 2013, the Court issued a guilty verdict in a jury-waived trial. Minute Entry (ECF No. 46). Before the finding of guilty, Ms. Ngige moved for specific findings of fact under Federal Rule of Criminal Procedure 23(c); this Order responds to Ms. Ngige's Rule 23(c) motion.
This case is unusual in that the Government and Ms. Ngige presented the Court with a stipulated record, which formed the sole factual basis for the Court's verdict. Stipulation of the Parties (ECF No. 37) (Stipulation). Neither the Government nor Ms. Ngige presented any testimony or exhibits apart from the Stipulation. Accordingly, the Court's factual findings mirror the facts in the Stipulation of the Parties, which the Court expressly adopts as its findings of fact under Federal Rule of Criminal Procedure 23(c). This result may dissatisfy Ms. Ngige, who—by making the Rule 23(c) motion—is likely seeking an explanation of why the Government's charge is not barred by the applicable statute of limitations. Viewed charitably toward Ms. Ngige, Rule 23(c) may envision such an explanation and, if not, the Court is not prohibited from giving one. To this end, the Court willfurther explain its guilty verdict to allow Ms. Ngige to fully exercise, if she wishes to do so, her right of appeal.
First setting aside the statute of limitations issue, the Stipulation compels a guilty verdict. To prove a conspiracy to violate 18 U.S.C. § 371, the Government must prove the following elements beyond a reasonable doubt: (1) that the agreement specified in the indictment and not some other agreement or agreements existed between at least two people to defraud the United States; (2) that Ms. Ngige willfully joined in that agreement, (3) that one of the conspirators committed an overt act during the period of the conspiracy in an effort to further the conspiracy. Judge D. Brock Hornby's 2013 Revisions to Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 4.18.371(a) (updated Jun. 26, 2013). The definition of "defraud the United States" includes obstructing or interfering with one of the United States Government's lawful functions, by deceit, or trickery, or dishonest means. See United States v. Goldberg, 105 F.3d 770, 773 (1st Cir. 1997). The facts in the Stipulation confirm that Ms. Ngige entered into a sham marriage with Michael Frank, a United States citizen, "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 to [Mr. Frank]." Indictment at 2 (ECF No. 2).
Ms. Ngige's defense to the conspiracy charge follows an extended train of logic: (1) that the indictment charges and the Stipulation describes only one act within the five-year statute of limitations period; (2) that even if Ms. Ngige engagedin a conspiracy to defraud the United States with acts before the applicable statute of limitations, the conspiracy based on the sham marriage was completed when her sham husband refused to continue to participate; (3) that Ms. Ngige hatched a new scheme—one based on the Violence Against Women Act (VAWA); and (4) that, even though she acted on her new plan within the statute of limitations, there was no conspiracy because a conspiracy requires the participation of more than one person.
To provide specific context, the grand jury indicted Ms. Ngige on June 13, 2012. The applicable statute of limitations under 18 U.S.C. § 3282(a) is five years "after such offense shall have been committed," meaning that in this case, acts before June 13, 2007 would generally be beyond the statute of limitations. As alleged in the indictment, the one act performed after June 13, 2007 is:
On August 6, 2007, in support of her I-360 VAWA petition, Defendant filed a report of Psychological Evaluation dated September 28, 2006. That report sets forth Defendant's narrative of her relationship with [Michael Frank], which contains material falsehoods. On November 2, 2007, [the United States Citizenship and Immigration Service] denied Defendant's VAWA petition.
Indictment ¶ 9. The parties' Stipulation confirms the accuracy of this allegation:
Stipulation ¶ 18. Paragraph eighteen of the Stipulation of the parties, which the Court has found as a fact, thus proves the indictment's allegation.
Under well-established law, "[a] conspiracy endures as long as the co-conspirators endeavor to attain the 'central criminal purposes' of the conspiracy." United States v. Upton, 559 F.3d. 3, 10 (1st Cir. 2009) (quoting in part Grunewald v. United States, 353 U.S. 391, 401 (1957)). Where some portion of the conspiracy took place beyond the limitations period, the Government must prove beyond a reasonable doubt that "the conspiracy as . . . finally formulated, was still in existence on [June 13, 2007], and that at least one overt act in furtherance of the conspiracy was performed after that date." Grunewald, 353 U.S. at 396. In other words, "the crucial question . . . is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy." Id. at 397.
Consequently, the inquiry narrows to the nature of the conspiracy that Ms. Ngige and others decided to perpetrate. Ms. Ngige seeks to constrain the conspiracy to include only the sham marriage and a fraudulent application for United States citizenship based on the asserted legitimacy of the sham marriage. The Government defines the conspiracy was more broadly to include the use of the sham marriage to Mr. Frank to obtain United States citizenship. The Court finds that the original conspiracy, as alleged, was broader than Ms. Ngige's limited view.
First, to support her position, Ms. Ngige cites United States v. Hitt 249 F.3d 1010 (D.C. Cir. 2001) for the proposition that "[t]he indictment's references to subsequent events do not point to acts in furtherance of the alleged conspirators' common goal and therefore may not be relied upon to extend the conspiracy to a period within the statute of limitations." Id. at 1017. In Hitt, the Court of Appeals for the District of Columbia Circuit examined the indictment to determine whether the acts performed within the limitations period were part of the conspiracy the grand jury alleged. Id. at 1015 (). The Hitt Court concluded that the within-time acts were not in furtherance of the conspiracy alleged in the indictment and therefore they could not extend the duration of the alleged conspiracy. Id. at 1015-17.
Here, by contrast, the indictment alleges broadly that the "object of the conspiracy [was] for Defendant 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 [Michael Frank]" and expressly alleged that her filing of the psychological report under her VAWA petition was part of that conspiracy. Indictment at 2-4. Unlike Hitt, the allegations in this indictment are both broad and specific enough to capture the within-time VAWA petition. This is because filing the VAWA petition directly advanced Ms. Ngige's goal of "acquir[ing] a change of her . . . immigration status to which she would not otherwise have beenentitled." Id. Under the Grunewald standard, this act is sufficiently related to the scope of the conspiracy to establish her criminal liability.
The next issue is whether there is a "variance between the indictment and the facts proved at trial." United States v. Franco-Santiago, 681 F.3d 1, 7 (1st Cir. 2012). This problem arises when an indictment charges a broad conspiracy but the proven...
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