United States v. Ye

• Decision Date: 10 July 2015
• Docket Number: No. 12–10576.,12–10576.
• Citation: 792 F.3d 1164
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. AIFANG YE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

792 F.3d 1164

UNITED STATES of America, Plaintiff–Appellee,

v.AIFANG YE, Defendant–Appellant.

No. 12–10576.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 19, 2015.

Filed July 10, 2015.

David G. Banes (argued), O'Connor Berman Dotts & Banes, Saipan, Commonwealth of the Northern Mariana Islands, for Defendant–Appellant.

Ross K. Naughton (argued), Assistant United States Attorney, and Alicia A.G. Limtiaco, United States Attorney, United States Attorneys' Office, Saipan, Commonwealth of the Northern Mariana Islands, for Plaintiff–Appellee.

Appeal from the District Court for the Northern Mariana Islands, Ramona V. Manglona, Chief District Judge, Presiding. D.C. No. 1:12–cr–00009–RVM–2.

Before: RICHARD R. CLIFTON, N. RANDY SMITH, and MICHELLE T. FRIEDLAND, Circuit Judges.

OPINION

FRIEDLAND, Circuit Judge:

Following a jury trial, Aifang Ye appeals her convictions relating to the provision of false information on a passport application. She argues that the district court's jury instructions erroneously failed to condition her convictions on a finding that she intended to violate the passport laws. We hold that the crimes for which Ye was convicted are not specific intent crimes, so her challenges to the jury instructions fail. Ye's additional argument that the government's failure to call certain translators as witnesses at trial violated her rights under the Confrontation Clause is foreclosed by precedent. We therefore affirm.

I. Background

Aifang Ye and her husband, Xigao Cheng, both Chinese citizens, traveled from China to Saipan in September 2011. Ye's tourist visa permitted her to stay until October 2011. Xigao returned to China in September, but Ye, who was pregnant with their second child, overstayed her visa. In February 2012, Ye gave birth to her daughter, Jessie, in Saipan. Jessie's place of birth makes her a U.S. citizen entitled to a U.S. passport.

Parents of a U.S. citizen child under age 16 may obtain a U.S. passport for the child if both parents apply in person at the passport office. Alternatively, the application may be executed by only one of the parents if that parent shows a notarized statement or affidavit from the absent parent consenting to the issuance of the passport. 22 C.F.R. § 51.28(a)(3)(i).

Ye and her husband wished to obtain a U.S. passport for Jessie but, because drawing attention to the birth of a second child might have created difficulties for them at home, Ye did not want to have her husband seek a notarized statement. On the advice of Kaiqi Lin, whom Ye had hired to provide translation and document preparation services, her husband instead gave his passport to his brother Zhenyan Cheng, who would be traveling to Saipan. Zhenyan then traveled to Saipan, bringing his brother's passport with him to Saipan.

Lin drove Ye and Zhenyan to the passport office in Saipan. Zhenyan presented the passport office employee with his brother's passport, without showing his own passport or a power of attorney from his brother. Ye signed the application as Jessie's mother and Zhenyan signed as Jessie's father, using his brother's name.

Unfortunately for Ye, the Department of Homeland Security (“DHS”) had Lin under surveillance that day. After Ye, Zhenyan, and Lin left the passport office, a DHS agent approached Lin in his car and saw two Chinese passports on the passenger seat—Ye's and her husband's. Lin provided the passports to the DHS agent at his request. The agent confirmed that Zhenyan had not had his own passport with him at the passport office.

Zhenyan later was arrested and gave a statement to a DHS agent using the U.S. Citizenship and Immigration Services (“USCIS”) “Language Line” for translation assistance. The next day, Ye voluntarily came to the DHS office and provided her own statement using the USCIS Language Line.

Ye then cooperated with the government in its investigation of Lin by placing a recorded phone call to him. Despite Ye's cooperation, both Ye and Zhenyan were indicted. Zhenyan was charged with violating 18 U.S.C. § 1542, which prohibits providing false information in a passport application, and Ye was charged with aiding and abetting that violation. Both were charged with conspiracy to violate § 1542.

Following a joint trial, the jury acquitted Zhenyan but convicted Ye of both counts. Ye timely appealed her convictions.

II. Discussion

A. Specific Intent

The statute under which Ye was convicted, 18 U.S.C. § 1542, provides:

Whoever willfully and knowingly makes any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States, either for his own use or the use of another, contrary to the laws regulating the issuance of passports or the rules prescribed pursuant to such laws; or

Whoever willfully and knowingly uses or attempts to use, or furnishes to another for use any passport the issue of which was secured in any way by reason of any false statement—

Shall be [subject to criminal liability].

Ye was convicted under the first paragraph of this statute.

Ye argues that the statute's use of “willfully and knowingly” makes providing a false statement in a passport application a specific intent crime-meaning that it requires the intentional violation of a known legal duty. Ye contends that the district court's instructions defining “willfully” and “knowingly” failed to reflect this requirement.

We review de novo whether jury instructions accurately described the elements of the charged crime. United States v. Liu, 731 F.3d 982, 987 (9th Cir.2013). We hold that a violation of § 1542 does not require specific intent. A conviction under the first paragraph of § 1542 requires only that, in applying for a passport, the defendant made a statement that the defendant knew to be untrue.

The Supreme Court long ago established that the second paragraph of § 1542 does not require specific intent. In Browder v. United States, the Court defined “willfully and knowingly” in the second paragraph to mean “deliberately and with knowledge and not something which is merely careless or negligent or inadvertent.” 312 U.S. 335, 341, 61 S.Ct. 599, 85 L.Ed. 862 (1941). ¹ This definition does not require that the defendant knew that her action was unlawful.

Although Browder analyzed the second paragraph of § 1542 rather than the first, “[a] term appearing in several places in a statutory text is generally read the same way each time it appears.” Ratzlaf v. United States, 510 U.S. 135, 143, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). This principle counsels us to apply the Supreme Court's definition of “willfully and knowingly” in the second paragraph of § 1542 to the identical language in the first paragraph. Other circuits that have considered the issue agree that Browder's definition applies to the first paragraph and that, therefore, no part of the statute has a specific intent requirement. See United States v. George, 386 F.3d 383, 389 (2d Cir.2004) (Sotomayor, J.); Liss v. United States, 915 F.2d 287, 293 (7th Cir.1990); United States v. O'Bryant, 775 F.2d 1528, 1535 (11th Cir.1985).

Notwithstanding Browder, Ye argues that our decision in United States v. Winn, 577 F.2d 86 (9th Cir.1978), established that the first paragraph of § 1542 creates a specific intent crime. The defendant in Winn had challenged his conviction under that paragraph on the ground that there was insufficient evidence to prove specific intent. Id. at 90. We affirmed because sufficient evidence supported the defendant's conviction. Id. at 91. In describing the jury instructions given at trial, we stated that the district court had “correctly instructed the jury that ‘an act is done willfully if done voluntarily and intentionally and with the specific intent to do something the law forbids; that is to say, with a purpose either to disobey or disregard the law.’ ” Id. Contrary to Ye's reading, Winn was solely a sufficiency-of-the-evidence case, so its approval of the “willfully” jury instruction is best understood as stating that the instruction had not improperly reduced the government's burden of proof. Given that there was sufficient evidence in Winn to support the jury's finding that the defendant had specific intent, there was no need for us to consider whether the statute actually required specific intent.²

More recently, and in a case in which the elements of § 1542 were in dispute, we followed Browder in interpreting the first paragraph of the statute. In United States v. Suarez–Rosario, we stated:

“The gravamen of the offense ... is the making of a false statement.” United States v. Cox, 593 F.2d 46, 48 (6th Cir.1979). Thus, the “crime is complete when one makes a statement one knows is untrue to procure a passport.” United States v. O'Bryant, 775 F.2d 1528, 1535 (11th Cir.1985). Knowing use of any false statement to secure a passport, including the use of a false name or birth date, constitutes a violation of § 1542. Liss v. United States, 915 F.2d 287, 293 (7th Cir.1990). Therefore, under the terms of 18 U.S.C. § 1542, the government must prove that the defendant made a willful and knowing false statement in an application for a passport or made a willful and knowing use of a passport secured by a false statement.

237 F.3d 1164, 1167 (9th Cir.2001) (alteration in original). This description did not include specific intent among the elements of the offense. Although the parties in Suarez–Rosario had not raised the issue of specific intent, it is notable that we relied on Browder and cases from three other circuits that had interpreted § 1542 as not including a specific intent requirement. Id. (citing Browder, 312 U.S. at 340, 61 S.Ct. 599; Liss, 915 F.2d at 293; O'Bryant, 775 F.2d at 1535; Cox, 593 F.2d at 48).

We now join our sister circuits and hold that, consistent with Browder, a conviction under the first paragraph of 18 U.S.C. § 1542 does not require specific intent. Because all of Ye's arguments about purported flaws in...