US v. Naserkhaki

• Decision Date: 18 October 1989
• Docket Number: Crim. No. 89-00108-A.
• Citation: 722 F. Supp. 242
• Parties: UNITED STATES of America v. Mohammad NASERKHAKI.
• Court: U.S. District Court — Eastern District of Virginia

722 F. Supp. 242

UNITED STATES of America v. Mohammad NASERKHAKI.

Crim. No. 89-00108-A.

United States District Court, E.D. Virginia, Alexandria Division.

October 18, 1989.

Christine Wright, Asst. U.S. Atty., Alexandria, Va., for plaintiff.

Marvin D. Miller, Alexandria, Va., for defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

This is a prosecution of a resident alien for making material false statements to the United States Immigration and Naturalization Service ("INS"). A jury convicted defendant (i) of violating 18 U.S.C. § 1001 by making two false statements in an application submitted to the INS for a Refugee Travel Document ("RTD") and (ii) of violating 18 U.S.C. § 1546 by using the fraudulently obtained RTD to enter the United States on three different occasions.¹ Defendant now seeks acquittal, or a new trial, pursuant to Fed.R.Crim.P. 29(c), on the ground that the allegedly false statements in his RTD application were not material, as required by law.

For the reasons stated here, the Court concludes that only one of the two misrepresentations was material. Because the jury's verdict did not separately address each misrepresentation, there is no reliable means of ascertaining whether the jury's verdict was based on one or both misrepresentations and, if on one, which one. Accordingly, defendant is entitled to a new trial.

Facts

Defendant, an Iranian national, was forced to flee his country after the Khomeini regime came to power. He entered the United States in July, 1982 through Los Angeles International Airport. At that time, defendant was classified as a student. In August 1985, pursuant to 8 U.S.C. § 1158(a), the Attorney General granted defendant refugee status as a political asylee.² Soon after entering the United States, defendant moved to Virginia. In Virginia, defendant has participated in political activities aimed at the overthrow of the current Iranian government. These efforts continue to this day.

This prosecution grows out of two RTD applications made by defendant. In essence, an RTD is the functional equivalent of a passport for the refugees. It provides refugees who travel to other countries with documentation that they are legal residents of the United States. Refugees in possession of RTDs can travel to other countries and then reenter the United States legally on their return.

In 1986, defendant visited Canada, allegedly fleeing a death squad sent by the Iranian government. By the fall of 1986, defendant was back in the United States. On October 1, 1986, while in New York, defendant applied for an RTD at the New York INS office and requested that it be issued that same day. He was informed that the New York office could not comply with this request because his file was located in the INS office in Virginia. Given this, defendant chose not to pursue obtaining an RTD in New York. Instead, a week later, on October 8, 1986, defendant filed another RTD application in Arlington, Virginia. In completing the Virginia application, defendant made the two misrepresentations here at issue. First, defendant noted on the form that he had not previously applied for an RTD from the United States.³ Second, defendant claimed that he had last entered the United States in Los Angeles in the early 1980's. Both statements were false. Contrary to his answers on the RTD application, defendant had submitted an RTD application in New York only the week prior, and had most recently reentered the United States from Canada, through Michigan, not California. Unaware of these misrepresentations, the INS issued the RTD. Thereafter, defendant used the RTD to enter the United States on three occasions: in June 1987, September 1987 and May 1988.⁴

In October 1986, the Federal Bureau of Investigation commenced investigation of the case at bar. In March 1989, a five count indictment was returned against the defendant.⁵ Count I charged defendant with:

Knowingly, wilfully and unlawfully making, using and submitting a false application and supporting documents to the Immigration and Naturalization Service on or about October 7, 1986⁶ for the purpose of obtaining a Refugee Travel Document, in violation of 18 U.S.C. § 1001.

Counts II, III and IV charged defendant with "knowingly wilfully and unlawfully using a fraudulently procured RTD to enter the United States on or about" June 2, 1987, September 18, 1987 and May 8, 1988 respectively, all in violation of 18 U.S.C. § 1546. Thus, finding the defendant guilty of fraudulently obtaining an RTD through false statements, as charged in Count I, was a necessary predicate to finding defendant guilty on Counts II, III and IV.

At trial, Phyllis Howard, a 20-year employee of INS, was the government's principal witness on the materiality of both misstatements. On this issue, Howard testified that an applicant's representation concerning the date and place of the applicant's last entry into the United States is important because it provides the INS agent processing the application with information pertinent to (i) whether the applicant's entry into the United States was legal and (ii) whether the applicant has undertaken any travel that would jeopardize his asylee status. In response to a hypothetical question, Howard stated that a misrepresentation concerning the last date or place of United States entry would cut off an INS line of inquiry as to the foreign countries visited and the reason for the travel. In so limiting inquiry, she explained, the INS examiner would be deprived of the opportunity to determine whether the applicant was entitled to retain asylee status. Howard also testified, in conclusory fashion, that the applicant's failure to notify the INS Arlington office of the New York RTD application was material. Howard stated that the fact that an applicant made a prior application for an RTD "may or may not" affect the examiner's consideration of the present RTD; it would depend on what was submitted in support of the application and whether the previous application had been denied. Yet Howard did not explain how supporting documents or a prior denial of an RTD would be germane to the examiner's consideration of the present RTD application under the criteria set out in the regulations. Howard also broadly asserted that an examiner needs to know of prior RTD applications to determine if the applicant continues to be an asylee, but her testimony never clarified how this determination could be made from knowledge or examination of the mere application for an RTD. On cross examination, Howard conceded that defendant, as a refugee, ordinarily would be entitled to the issuance of the RTD. Even so, she explained, the issuance of the RTD would not necessarily be automatic.⁷ In this regard, Howard offered an example of a political asylee requesting an RTD to travel to the country from which the applicant had claimed asylum. Such a request may indicate that political asylee status is no longer appropriate because the applicant apparently no longer fears for his or her life.

At the conclusion of the evidence, the Court instructed the jury, inter alia, that both alleged misstatements were material. Following deliberations, the jury found the defendant guilty of the charges in Counts I through IV of the Indictment. Specifically, the jury concluded that defendant's RTD application included material misstatements in violation of 18 U.S.C. § 1001 and that he subsequently used the fraudulently obtained RTD to enter the United States on three occasions in violation of 18 U.S.C. § 1546. This motion for acquittal, or a new trial, followed.

Analysis

Analysis of the motion at bar properly begins with recognition of the settled principle that the materiality of misrepresentations charged under 18 U.S.C. § 1001 is a question of law for the Court.⁸ The next step in the analysis is to define the standard by which to measure the materiality of defendant's misstatements. Defendant argues that the appropriate materiality standard, found in Kungys v. United States, 485 U.S. 759, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988), "is whether or not the misrepresentation would have actually affected the conclusion at issue." Defendant's Reply, dated July 6, 1989 at 11. Defendant's argument is only half right; the appropriate standard can be found in Kungys, but defendant misreads that decision and thus misstates the standard.⁹ A review of Kungys is instructive.

Kungys involved an attempt by the government to have petitioner denaturalized pursuant to 8 U.S.C. § 1451(a).¹⁰ Three grounds were alleged for the denaturalization: (i) that petitioner had participated in the 1941 execution of Lithuanian citizens, (ii) that petitioner had falsely stated his place and date of birth in his visa and naturalization applications, and (iii) that petitioner's citizenship had been illegally procured under § 1451 for lack of "good moral character" required by 8 U.S.C. § 1427(a). It is the Supreme Court's treatment of the second ground that is chiefly relevant here.¹¹ Speaking for a majority,¹² Justice Scalia held, inter alia, that the test for materiality under 8 U.S.C. § 1451(a) is no different from the materiality standard used in connection with a number of federal statutes criminalizing the making of false statements to public officials. The most prominent of these statutes being 18 U.S.C. § 1001. Kungys, 108 S.Ct. at 1546. This holding makes Kungys, a denaturalization case, relevant to the instant § 1001 false statement case. After equating "materiality" under 8 U.S.C. § 1451(a) with that under 18 U.S.C. § 1001 and other like statutes, Justice Scalia went on in Kungys to frame the common materiality standard as follows:

Whether the misrepresentation or concealment was predictably capable of affection, i.e., had a natural tendency to affect, the official decision.

108 S.Ct. at 1547. This formulation, not surprisingly, has a long pedigree in § 1001 decisional law.¹³ It is, moreover, fully consistent with ...