United States v. Odeh

• Decision Date: 25 February 2016
• Docket Number: No. 15–1331.,15–1331.
• Citation: 815 F.3d 968
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Rasmieh Yousef ODEH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

815 F.3d 968

UNITED STATES of America, Plaintiff–Appellee,

v.Rasmieh Yousef ODEH, Defendant–Appellant.

No. 15–1331.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 14, 2015.

Decided and Filed: Feb. 25, 2016.

ARGUED:Michael E. Deutsch, People's Law Office, Chicago, IL, for Appellant. Jonathan Tukel, United States Attorney's Office, Detroit, Michigan, for Appellee. ON BRIEF:Michael E. Deutsch, People's Law Office, Chicago, Illinois, for Appellant. Jonathan Tukel, United States Attorney's Office, Detroit, Michigan, for Appellee.

Katherine M. Gallagher, Center for Constitutional Rights, New York, New York, for Amicus Curiae.

Before: BATCHELDER, MOORE, and ROGERS, Circuit Judges.

ROGERS, J., delivered the opinion of the court and an opinion in Part II.b, in which MOORE, J., joined in part and in the judgment in part, and BATCHELDER, J., joined in part. MOORE, J. (p. 985), delivered a separate opinion concurring in part and in the judgment in part. BATCHELDER, J. (pp. 985–88), delivered a separate opinion concurring in part and dissenting in part.

OPINION

ROGERS, Circuit Judge.

Rasmieh Odeh appeals the judgment entering her conviction and sentence for violating 18 U.S.C. § 1425(a), which criminalizes knowingly procuring naturalization contrary to law. Odeh was convicted by a jury in November 2014 for making false statements in her naturalization application and to an immigration officer. The prosecution was based on Odeh's statements, among others, that she had never been arrested, convicted, or imprisoned, even though she was arrested, convicted, and imprisoned in Israel in 1969–1970 for her role in the bombing of a supermarket and an attempted bombing of the British Consulate.

On appeal, Odeh's primary argument is that she was denied the right to present a complete defense because the district court precluded her witness, an expert in post-traumatic stress disorder (PTSD), from testifying about why Odeh did not know that her statements were false. Odeh maintains that the expert would have testified that Odeh's alleged torture in an Israeli prison gave her PTSD, which shaped the way that she viewed questions about her criminal history in the naturalization application. Because this type of testimony is not categorically inadmissible to negate a defendant's knowledge of the falsity of a statement, the district court must reconsider the admissibility of the testimony. Odeh's remaining objections to other evidentiary rulings and the reasonableness of her sentence are without merit.

In October 2013, Odeh was charged in a single-count indictment with violating 18 U.S.C. § 1425(a), the criminal denaturalization statute. Section 1425(a) provides that "[w]hoever knowingly procures or attempts to procure, contrary to law, the naturalization of any person" shall be fined or imprisoned. The indictment alleges that Odeh "procured her citizenship despite her criminal history and despite her having made ... material false statements" related to her criminal history and to the truth of the statements in her immigrant visa application. The elements of the § 1425(a) violation, according to the district court's jury instruction, were that (1) Odeh was naturalized, (2) Odeh made a false statement in her naturalization application or during her naturalization interview, (3) Odeh knew the falsity of the statement, (4) the statement was material, and (5) Odeh procured citizenship as a result of the false statement, meaning that without the statement, her application would have been denied.¹ After a jury convicted Odeh, the district court revoked Odeh's citizenship, as is required by 8 U.S.C. § 1451(e), and sentenced her to eighteen months' imprisonment.

The Government's case was based on false statements that Odeh made in her naturalization application, to a federal immigration officer who interviewed Odeh after she submitted her naturalization application, and in her application for an immigrant visa. Odeh does not dispute that her statements were false. Odeh's immigration history and criminal history before moving to the United States are briefly described as follows.

In 1994, Odeh submitted an immigrant visa application to the United States State Department in Amman, Jordan. On the application, Odeh stated that she had continuously lived in Amman since 1948. Odeh also answered "No" in response to the questions of whether she had "ever been arrested, convicted, or ever been in a prison," whether she had been convicted of "a crime involving moral turpitude," and whether she had been "convicted of 2 or more offenses for which the aggregate sentences were 5 years or more." These answers were false. Odeh lived in both Israel and Lebanon before moving to Jordan in 1983. In 1969 and 1970, Odeh was arrested in Israel, charged by a military indictment, and convicted on several charges by a military court for her role in a bombing in a supermarket that killed two civilians and wounded others, and for her role in an attempted bombing of the British Consulate. One of Odeh's convictions related to her membership in the Popular Front for the Liberation of Palestine, which was designated a "foreign terrorist organization" by the United States Secretary of State in 1997. Odeh received two life sentences and served ten years in prison before being released in 1979 in a prisoner exchange. The State Department did not discover any of the false statements and granted Odeh's visa.

Following the visa approval, Odeh lived in the United States for approximately ten years before applying for citizenship in 2004. On the naturalization application, questions related to criminal history began with the phrase "Have you EVER ". The word "ever" was capitalized and in bold in each question. As an example, one question asked: "Have you EVER been charged with committing any crime or offense?" Other questions in the same format asked about prior arrests, convictions, and prison sentences. Odeh falsely answered "No" to each of these questions. Odeh also falsely answered "No" in response to questions asking whether she had "EVER given false or misleading information to any U.S. government official while applying for any immigration benefit" and whether she had "EVER lied to any U.S. immigration official to gain entry or admission into the United States."

After submitting the application, Odeh was interviewed by an immigration officer with the Department of Homeland Security, Jennifer Williams. Williams verbally repeated each question on Odeh's application and confirmed that Odeh's original answers were correct. Williams testified at trial that pursuant to her department's policy, in every interview, she added the phrase "anywhere in the world" at the end of every criminal history question. Williams thus testified that instead of asking, for example, whether Odeh had ever been charged with committing any crime, she asked whether Odeh had ever been charged with committing any crime anywhere in the world. Odeh did not change any of her answers related to her criminal history. Her naturalization application was approved and she worked as a community organizer with the Arab–American Action Network for the next ten years, providing services for immigrant women. At trial, a Government witness testified that if Odeh had been truthful on her application or in her interview, she would have been ineligible for citizenship due to false statements on her immigrant visa application and a statutory bar prohibiting entry to anyone who has engaged in a "terrorist activity."² See 8 U.S.C. § 1101(f)(6) (providing that any person "who has given false testimony for the purpose of obtaining any [immigration] benefits" is not of good moral character); § 1182(a)(3)(B)(i)(I) (rendering ineligible for admission foreigners who "ha[ve] engaged in a terrorist activity"); § 1182(a)(3)(B)(iii)(V) (defining terrorist activity).

At trial, the Government introduced Israeli documents from 1969–1975 related to Odeh's arrest, indictment, convictions, and sentence. The Government used the documents to prove the falsity and materiality of Odeh's statements, her knowledge of their falsity, and that she procured citizenship because of the statements. These documents were admitted under a mutual legal assistance treaty between the United States and Israel. See Treaty Between the Government of the United States of America and the Government of the State of Israel on Mutual Assistance in Criminal Matters, U.S.–Isr., Jan. 26, 1998, T.I.A.S. No. 12925 [hereinafter MLAT]. The MLAT provides, in pertinent part, that a requesting state may request "copies of any documents, records, or information which are in the possession of a government department or agency of th[e requested] State but which are not publicly available." Id. art. IX, ¶ 2. The MLAT also provides that where there is an appropriate authentication by the requested state, "[n]o further authentication or certification shall be necessary in order for such records to be admissible" in United States court proceedings. Id.

In pretrial motions, Odeh opposed admitting the Israeli documents on the basis that the Israeli military court system "does not operate in accordance with fundamental fairness, due process or international law," because, she alleged, the Israeli presence in the West Bank in 1969 was illegal and the Israeli military systematically tortured Palestinians. Odeh asserted that her confession to the bombing was the result of severe torture by the Israeli military for over twenty-five days, including beatings, electric shocks, and rape. Odeh also asked the district court to order the Government to stipulate that Odeh had been convicted and imprisoned for a "serious offense," in lieu of admitting the Israeli documents. In the alternative, Odeh asked the court to redact language in the Israeli indictment related to the details of the charges. The court admitted the documents over Odeh's objections, reasoning that the fairness of the Israeli court...