United States v. Ongaga
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Citation | 820 F.3d 152 |
| Docket Number | No. 14–20235.,14–20235. |
| Parties | UNITED STATES of America, Plaintiff–Appellee v. Rebmann ONGAGA; Andrew Mokoro; Herman Ogoti; Alfonso Ongaga, Defendants–Appellants. |
| Decision Date | 13 April 2016 |
820 F.3d 152
UNITED STATES of America, Plaintiff–Appellee
v.
Rebmann ONGAGA; Andrew Mokoro; Herman Ogoti; Alfonso Ongaga, Defendants–Appellants.
No. 14–20235.
United States Court of Appeals, Fifth Circuit.
April 13, 2016.
John A. Reed (argued), Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.
John Moreno Parras (argued), Joseph William Varela, Esq. (argued), Dallas Craig Hughes, Esq. (argued), John Riley Friesell (argued), Houston, TX, for Defendants–Appellants.
Rebmann Ongaga, Houston, TX, pro se.
Appeals from the United States District Court for the Southern District of Texas.
Before JONES, WIENER, and HIGGINSON, Circuit Judges.
WIENER, Circuit Judge:
Defendants Andrew Mokoro, Herman Ogoti, Alfonso Ongaga, and Rebmann Ongaga appeal their separate judgments of conviction. We affirm all of the convictions, with the exception of Herman Ogoti's and Rebmann Ongaga's convictions for marriage fraud.
I.
FACTS AND PROCEEDINGS
A grand jury returned an indictment in November 2010, charging Andrew Mokoro (“Mokoro”), Herman Ogoti (“Ogoti”), Alfonso Ongaga (“Alfonso”), and Rebmann Ongaga (“Rebmann”) with conspiracy to commit marriage fraud, marriage fraud, and fraud and misuse of visa, permits, and other documents. In May 2012, a grand jury returned a ten count second superseding indictment against the defendants. Count One charged Mokoro, Ogoti, Alfonso, and Rebmann with conspiracy to commit marriage fraud, in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1325(c). The indictment alleged that the object of their conspiracy was to knowingly enter into marriages and to help others enter into marriages for the purpose of evading immigration laws, in violation of 8 U.S.C. § 1325(c). Counts Two, Three, and Four charged Ogoti, Rebmann, and Mokoro, respectively,
with marriage fraud, in violation of 8 U.S.C. § 1325(c). Counts Five, Six, and Seven charged Ogoti, Mokoro, and Rebmann, respectively, with fraud and misuse of visa, permits, and other documents, in violation of 18 U.S.C. § 1546(a). Count Eight charged Rebmann with tampering with a witness, in violation of 18 U.S.C. § 1512(b)(3). Counts Nine and Ten charged Alfonso and Ogoti, respectively, with unlawful procurement of naturalization, in violation of 18 U.S.C. § 1425(b).
After a six-day trial, a jury found the defendants guilty on all counts, with the exception of Rebmann's witness-tampering count. The evidence showed that the defendants—all Kenyan nationals—married members of a closely connected group of American women to gain residency and citizenship. The defendants then prepared fraudulent immigration forms and took additional steps to make their marriages appear legitimate. The evidence further showed that the defendants sought to procure American spouses for other Kenyan nationals—some residing in the United States, others residing in Kenya—for the same purpose.
II.
ANALYSIS
A. Count One
Count One charged the defendants with conspiracy to commit marriage fraud, in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1325(c). All of the defendants contend that Count One should be dismissed because the government failed to prove an offense occurring within the statute of limitations. All of the defendants preserved their challenges to the sufficiency of the evidence by moving for acquittal under Federal Rule of Criminal Procedure 29 at the conclusion of the government's case and again at the close of all evidence, so our review is de novo.1 We view all evidence in the light most favorable to the government, drawing all reasonable inferences and credibility choices in favor of the jury's verdict.2 We will affirm the jury's verdict if we conclude that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.3
The statute of limitations for conspiracy to commit marriage fraud in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1325(c) is five years.4 To prove a conspiracy under 18 U.S.C. § 371, the government had 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.5
For this charge to be timely, the government had to prove “the existence of the
conspiracy within the five years prior to the return of the indictment, and ... the commission of at least one overt act by one of the conspirators within that period in furtherance of the conspiratorial agreement.”6
The defendants first contend that the government did not prove a single conspiracy; rather, they assert, their individual participations in any conspiracy ended on the occurrence of their respective marriages. It next follows, they each argue, that because each of their marriages occurred more than five years before the original indictment, the charge in Count One is untimely. In other words, the defendants contend that the government failed to prove an overt act of a single conspiracy occurring within the limitations period.
Initially, we examine whether the government proved a single conspiracy. “The principal considerations in counting the number of conspiracies are (1) the existence of a common goal; (2) the nature of the scheme; and (3) the overlapping of the participants in the various dealings.”7 Whether the evidence shows a single conspiracy or multiple conspiracies is a fact question for the jury to decide.8 “We will affirm the jury's finding that the government proved a single conspiracy unless the evidence and all reasonable inferences, examined in the light most favorable to the government, would preclude reasonable jurors from finding a single conspiracy beyond a reasonable doubt.”9
The government alleged that the common goal of the conspiracy was for the defendants to enter into marriages for the purpose of evading immigration laws, in violation of 8 U.S.C. § 1325(c). The indictment elaborated that the common goal was not only to accomplish the defendants' marriages, but also to facilitate the marriages of other Kenyan nationals so that they could enter or remain in the United States. The evidence supported these allegations. For example, Alfonso met his wife through Lawrence Adams, whom Alfonso asked if he knew a woman he could marry to gain citizenship in exchange for money. Alfonso later paid Adams to marry Alfonso's friend so that the friend could obtain American citizenship. Ogoti entered into his own fraudulent marriage. His wife, Sabrina Adams, introduced her daughter Deshae Adams and Adams's friend, Dyshae Foster, to the defendants. Mokoro entered into his own fraudulent marriage and offered Deshae Adams and Dyshae Foster money to travel to Kenya to marry Kenyan men, and he tried to help them obtain passports. Rebmann also entered into his own fraudulent marriage and took Deshae Adams and Dyshae Foster shopping to buy them clothes and luggage for their trip to Kenya.
The nature of the scheme looks to whether “the activities of one aspect of the scheme are necessary or advantageous to the success of another aspect of the scheme or to the overall success of the venture.”10 Here, the defendants' marriages allowed them to stay in the United States to recruit potential spouses. Further, the success of the defendants' marriages encouraged others to participate in
the scheme. For example, Mokoro's wife, Tequila Rhymes, testified that she decided to marry Mokoro after observing and hearing about Alfonso's fraudulent marriage.
The final prong “examines the interrelationships among the various participants in the conspiracy.”11 “The more interconnected the relationships, the more likely it is that there is a single conspiracy.”12 Here, the participants were either family members or friends and the conspiracy largely existed to help other family members and friends gain American citizenship. Through this close network of family members and friends, the defendants entered their own fraudulent marriages and helped other do the same.
Considering this evidence, we conclude that a reasonable jury could have found that the government proved a single ongoing conspiracy to commit marriage fraud.
Concluding that the government proved a single conspiracy, we turn to whether the government proved overt acts of the conspiracy occurring within the limitations period. The government alleged and presented evidence of several overt acts in the indictment which were within the limitations period, most notably the efforts of several defendants to have Deshae Adams and Dyshae Foster travel to Kenya to marry individuals so that they would be able to gain an immigration benefit. Because the government alleged and proved an overt act occurring with the limitations period, the charge in Count One was timely and we...
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