United States v. Nguyen

• Decision Date: 18 July 2016
• Docket Number: No. 15-2687,15-2687
• Citation: 829 F.3d 907
• Parties: United States of America, Plaintiff–Appellee v. Julia Ngoc Nguyen, also known as Loan Nguyen, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

829 F.3d 907

United States of America, Plaintiff–Appellee

v.Julia Ngoc Nguyen, also known as Loan Nguyen, Defendant–Appellant.

No. 15-2687

United States Court of Appeals, Eighth Circuit.

Submitted: March 17, 2016

Filed: July 18, 2016

Rehearing and Rehearing En Banc Denied Aug. 24, 2016.^*

Counsel who presented argument on behalf of the appellant and appeared on the brief was Bradley Ryan Hansen, AFPD, of Sioux City, IA.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Craig Peyton Gaumer, AUSA, of Des Moines, IA.

Before MURPHY, BEAM, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

A jury convicted Julia Ngoc Nguyen of multiple offenses relating to immigration fraud and government-benefits fraud. At sentencing, the district court, over Nguyen's objection, applied a two-level sentencing guidelines enhancement based on the number of victims affected by Nguyen's crimes. The court then sentenced Nguyen to a total of 87 months' imprisonment and three years' supervised release. Nguyen now appeals, raising multiple challenges to her convictions and sentence. We affirm the convictions, except for count 18. We affirm Nguyen's sentence, except that we direct the district court to vacate the $100 special assessment associated with count 18.

I.

After a lengthy investigation by state and federal law enforcement, a federal grand jury indicted Nguyen on twenty-two counts, including attempted naturalization fraud, 18 U.S.C. § 1425(a) ; theft of government funds, 18 U.S.C. § 641 ; social-security fraud, 42 U.S.C. § 1383a(a)(3) ; false use of a social security number, 42 U.S.C. § 408(a)(7)(B) ; aggravated identity theft, 18 U.S.C. § 1028A(a)(1) ; false statements to a government agency, 18 U.S.C. § 1001(a)(1) ; health-care fraud, 18 U.S.C. § 1347 ; and mail fraud, 18 U.S.C. § 1341. During the four-day trial, the Government presented the testimony of twenty-four witnesses describing the events that gave rise to these charges.

Regarding the attempted naturalization fraud, the Government called three witnesses. The first, an immigration officer, discussed the process of applying for naturalization in the United States. He informed the jury that a successful applicant must pass an English-proficiency and literacy test and a civics examination addressing the applicant's understanding of United States history and government. He also explained that an applicant is excused from completing these tests if she has a mental or physical disability and if she submits an N-648 form on which a doctor certifies that this condition prevents her from learning or demonstrating language abilities or knowledge of United States history and civics. The Government then called N.B. and T.B., two immigrants to the United States. Both women testified that they paid Nguyen to assist them in obtaining citizenship. N.B. previously failed the English-proficiency and civics tests before she contacted Nguyen. T.B. also struggled with this requirement, and she failed the tests even after consulting with Nguyen. Unbeknownst to these witnesses, Nguyen convinced a physician, Dr. S., to complete N-648 forms for T.B. and N.B. with falsified medical information, even though neither woman had a qualifying disability that would excuse her from the English-proficiency or civics exams. These falsified N-648 forms were then submitted on T.B.'s and N.B.'s behalf and filed with their applications for naturalization.

To prove the theft-of-government-funds and social-security-fraud counts, the Government focused on Nguyen's unlawful receipt of Social Security Income (“SSI”). The Government presented evidence of bank records and testimony from bankers and special agents to show that Nguyen received SSI payments intended for herself and three different individuals—Q.N., C.P., and T.N.—from approximately 2007 through 2014. All of these payments either were mailed to a post-office box associated with Nguyen or directly deposited into a bank account controlled by Nguyen. Special agents from the Department of Homeland Security and the Social Security Administration (“SSA”) testified that C.P. and Q.N. were not present in the United States during much of the time the government paid benefits intended for them. Indeed, Q.N. permanently departed the country in December 2008 on a commercial airplane on which Nguyen also was a passenger. T.N. also left the country for more than thirty days on multiple occasions without notifying the SSA, and the government thus incorrectly continued to issue benefits to her. In total, Nguyen received $33,350.00 of SSI benefits intended for Q.N., $7,115.60 of SSI benefits intended for C.P., and $33,052.00 of SSI benefits intended for T.N.

As the recipient of these three income streams, Nguyen was required to report the additional income to the SSA to determine her eligibility for SSI. A claims representative from the SSA testified that Nguyen reported no income when she initially applied for SSI benefits and again when she completed the benefit-renewal statement. In addition, SSA special agents testified that Nguyen submitted a written statement that contained an admission that she knew she was receiving benefits illegally.

With respect to the counts of false statements to a government agency, the Government presented evidence that, from 2010 through 2012, Nguyen received subsidized housing from the United States Department of Housing and Urban Development (“HUD”); however, she failed to disclose her actual income, including the SSI payments intended for Q.N., C.P., and T.N. Regarding the counts for false use of a social security number and aggravated identity theft, a witness from the Iowa Department of Revenue testified that, from 2011 through 2012, after Q.N. had left the United States permanently, someone fraudulently used Q.N.'s social security number and name to apply for and receive two $999 payments from the Iowa Rental Reimbursement Program. These payments were delivered to an address in Des Moines. Nguyen admitted to SSA agents that she filled out the application on Q.N.'s behalf and that she “got [Q.N.'s] check.” Similar rebate payments for T.N. and C.P. were delivered to Nguyen's post-office box and deposited in Nguyen's account while the intended recipients were out of the country.

The Government also presented evidence that Nguyen fraudulently obtained payments for health-care services from the Consumer-Directed Attendant Care (“CDAC”) program administered by the state of Iowa. A CDAC income-management specialist testified that a benefits applicant must submit a doctor-certified Medicaid level-of-care form indicating that the applicant has a qualifying medical condition. If the applicant qualifies, Iowa Medicaid funds the cost of her care. Witnesses testified that Nguyen submitted a form on which she falsely claimed that she used a cane and required assistance for tasks such as bathing and dressing. As a result of these misrepresentations, Nguyen received CDAC benefits from July 2012 until March 2013.

Finally, the Government addressed the mail-fraud counts by examining the mailings that had been sent to Nguyen's post-office box regarding Q.N.'s food-assistance benefits. Because neither Q.N. nor Nguyen reported Q.N.'s permanent departure from the United States, food-assistance benefits, in the form of an electronic benefits card (“EBT”), continued to be mailed to the post-office box controlled by Nguyen. From 2009 through 2013, the Iowa Department of Human Services mailed several decision notices and two replacement EBT cards, all of which were intended for Q.N., to Nguyen's post-office box. The Government also presented video footage from a local Walmart showing that a woman matching Nguyen's description used these benefits to make purchases while Q.N. was in Vietnam.

At the close of evidence, Nguyen moved for judgment of acquittal on all counts. The district court denied the motion. Nguyen also objected to the jury instructions for the attempted naturalization-fraud counts. She maintained that the court should have instructed the jury that the Government had to prove that N.B. and T.B., the applicants, were ineligible for naturalization. Nguyen also objected to the instruction's definition of “material” as it related to the counts of attempted naturalization fraud. The district court overruled both objections. Ultimately, the jury convicted Nguyen on all counts. After the trial, Nguyen renewed her motion for judgment of acquittal, which the district court denied.

At sentencing, the district court, over Nguyen's objection, applied a two-level sentencing guidelines enhancement because Nguyen's fraud offenses involved ten or more victims. The district court sentenced Nguyen to concurrent terms of 63 months' imprisonment for the naturalization-fraud, theft-of-government-funds, health-care-fraud, and mail-fraud counts. The court also imposed a term of 60 months' imprisonment, to run concurrently with the first 63-month sentence, for the counts related to social-security fraud, false use of a social security number, and false statements to a government agency. Finally, the court imposed a consecutive sentence of 24 months' imprisonment for the aggravated identity-theft counts. Together, her sentences amounted to 87 months' imprisonment, plus three years of supervised release. This sentence fell at the bottom of her advisory guidelines range of 87-92 months' imprisonment. The court assessed a $100 special assessment for each count.

II.

On appeal, Nguyen raises several challenges. She renews her argument that the district court's jury instructions on the naturalization-fraud charges were improper. She also argues that the court erred by denying her motion for judgment of acquittal on all counts. Third, she contends that the district court improperly applied a two-level sentencing guidelines enhancement because the Government did not show that her conduct affected ten or more victims. Finally, she argues that the court...