In The United States Court Of Appeals For The Ninth Circuit

Transcription

1 Case: /24/2013 ID: DktEntry: 15-1 Page: 1 of 26 APPEAL NO In The United States Court Of Appeals For The Ninth Circuit UNITED STATES OF AMERICA Plaintiff-Appellee v. ROWENA AGNES URUMELOG Defendant-Appellant ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN MARIANA ISLANDS, NO. CR The Honorable Ramona V. Manglona, Chief Judge GOVERNMENT S ANSWERING BRIEF ALICIA A.G. LIMTIACO, United States Attorney Districts of Guam & the Northern Mariana Islands Garth R. Backe, Assistant United States Attorney 3rd Floor, Horiguchi Building P.O. Box Saipan, MP (670) Attorneys for Plaintiff-Appellee

2 Case: /24/2013 ID: DktEntry: 15-1 Page: 2 of 26 TABLE OF CONTENTS TABLE OF AUTHORITIES iii STATEMENT OF JURISDICTION STATEMENT OF THE ISSUES STANDARDS OF REVIEW STATEMENT OF THE CASE STATEMENT OF THE FACTS I. IMMIGRATION APPLICATION PROCESS IN GENERAL II. DEFENDANT S FIRST MARRIAGE AND FORM I III. DEFENDANT S SECOND MARRIAGE AND FORM I-130 (THE OFFENSE OF CONVICTION) SUMMARY OF THE ARGUMENT ARGUMENT I. THE GOVERNMENT INTRODUCED SUFFICIENT EVIDENCE THAT DEFENDANT KNOWINGLY SUBSCRIBED TO A FALSE STATEMENT OF A MATERIAL FACT IN AN IMMIGRATION DOCUMENT II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING EVIDENCE OF FACTS REGARDING DEFENDANT S MARITAL RELATIONSHIPS WITH HER FORMER AND PRESENT HUSBANDS III. U.S.S.G. 2L2.1 APPLIED BECAUSE DEFENDANT S CONDUCT INVOLVED A FALSE STATEMENT IN THE IMMIGRATION APPLICATION OF ANOTHER IV. DEFENDANT DID NOT CARRY HER BURDEN IN PROVING THAT SHE WAS ENTITLED TO A THREE LEVEL REDUCTION UNDER U.S.S.G. 2L2.1(b)(1), NOR COULD SHE HAVE i

3 Case: /24/2013 ID: DktEntry: 15-1 Page: 3 of 26 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF RELATED CASES ii

4 Case: /24/2013 ID: DktEntry: 15-1 Page: 4 of 26 TABLE OF AUTHORITIES SUPREME COURT CASES Neder v. United States, 527 U.S. 1 (1999) CIRCUIT COURT CASES United States v. Ajugwo, 82 F.3d 925 (9th Cir. 1996) United States v. Alvarez-Farfan, 338 F.3d 1043 (9th Cir. 2003) United States v. Anyanwu, 2011 WL (9th Cir. March 4, 2011) United States v. Bailleaux, 685 F.2d 1105 (9th Cir. 1982) United States v. Becker, 2003 WL (9th Cir. May 16, 2003) United States v. Bellucci, 995 F.2d 157 (9th Cir. 1993) United States v. Bradshaw, 690 F.2d 704 (9th Cir. 1982) United States v. Castaneda, 16 F.3d 1504 (9th Cir. 1994) United States v. Crooks, 804 F.2d 1441 (9th Cir. 1986) United States v. Domanski, 1995 WL (7th Cir. March 2, 1995) , 16 United States v. Duranseau, 19 F.3d 1117 (6th Cir. 1994) United States v. Flores-Blanco, 623 F.3d 912 (9th Cir. 2010) United States v. Hinostroza, 297 F.3d 924 (9th Cir. 2002) United States v. Howard, 894 F.2d 1085 (9th Cir. 1990) iii

5 Case: /24/2013 ID: DktEntry: 15-1 Page: 5 of 26 United States v. Jenkins, 785 F.2d 1387 (9th Cir. 1986) United States v. Johnson, 132 F.3d 1279 (9th Cir. 1997) United States v. Johnson, 820 F.2d 1065 (9th Cir. 1987) United States v. Juan-Manuel, 222 F.3d 480 (8th Cir. 2000) United States v. Meling, 47 F.3d 1546 (9th Cir. 1995) United States v. Nicholson, 846 F.2d 1383 (9th Cir. 1988) United States v. Perez-Ruiz, 169 F.3d 1075 (7th Cir. 1999) United States v. Principe, 203 F.3d 849 (5th Cir. 2000) United States v. Rivera, 516 F.3d 500 (6th Cir. 2008) United States v. Roberts, 253 F.3d 1131 (8th Cir. 2001) , 12 United States v. Romero, 282 F.3d 683 (9th Cir. 2002) United States v. Sameni, 1992 WL (9th Cir. Sept. 23, 1992) United States v. Serag, 2006 WL (4th Cir. May 30, 2006) United States v. Verduzco, 373 F.3d 1022 (9th Cir. 2004) United States v. Vizcarra-Martinez, 66 F.3d 1006 (9th Cir. 1995) United States v. Vo, 413 F.3d 1010 (9th Cir. 2005) United States v. Watkins, 591 F.3d 780 (5th Cir. 2009) United States v. Woodson, 526 F.2d 550 (9th Cir. 1975) iv

6 Case: /24/2013 ID: DktEntry: 15-1 Page: 6 of 26 DISTRICT COURT CASES United States v. Ajayi, 935 F. Supp. 90 (D.R.I. 1996) STATUTES 18 U.S.C. 1546(a) RULES Fed. R. Evid. 404(b) OTHER AUTHORITIES Merriam-Webster s Collegiate Dictionary (10th ed. 1997) Ninth Circuit Model Criminal Jury Instructions (2010) U.S.S.G. 2L , 18 v

7 Case: /24/2013 ID: DktEntry: 15-1 Page: 7 of 26 STATEMENT OF JURISDICTION The Government agrees with Defendant s limited statement of jurisdiction, but adds only that this Court also has jurisdiction under 28 U.S.C and 48 U.S.C , STATEMENT OF THE ISSUES The Government agrees with Defendant s Statement of the Issues, except for the argumentative assertion in paragraph 2 that allowing evidence at trial of alleged marriage fraud [gave] the jury an impermissible basis up which to place guilt and ultimately to convict [her] of a crime for which she was neither charged nor indicted. Appellate Brief of Defendant at 2. STANDARDS OF REVIEW The Government agrees with Defendant s Standards of Review as they pertain to sufficiency of the evidence, admission of evidence, and alleged errors at sentencing. STATEMENT OF THE CASE The Government agrees with Defendant s Statement of the Case. 1

8 Case: /24/2013 ID: DktEntry: 15-1 Page: 8 of 26 STATEMENT OF THE FACTS I. IMMIGRATION APPLICATION PROCESS IN GENERAL U.S. Citizenship and Immigration Services ( USCIS ) Form I-130, Petition for Alien Relative ( Form I-130 ), is submitted by a U.S. citizen (the Petitioner ) in order to obtain immigration benefits for his or her alien spouse (the Beneficiary ). TR 20-23, 63-64, 69; ER ; , 174; SER Form I-130 requires information about both the Petitioner and Beneficiary, such as their date of marriage and present living address, as well as information about any of their past marriages or petitions. ER In addition, at the end of Form I-130, the Petitioner must affix his or her signature under the following warnings and certification: WARNING: USCIS investigates claimed relationships and verifies the validity of documents. USCIS seeks criminal prosecutions when family relationships are falsified to obtain visas. PENALTIES: By law, you may be imprisoned for not more than five years or fined $250,000, or both, for entering into a marriage contract for the purpose of evading any provision of the immigration laws. In addition, you may be fined up to $10,000 and imprisoned for up to five years, or both, for knowingly and willfully falsifying or concealing a material fact or using any false document in submitting this petition. YOUR CERTIFICATION: I certify, under penalty of perjury under the laws of the United States of America, that the foregoing is true and 1 TR refers to the trial transcript; Tr. Dkt. No. refers to the trial court docket number; ER refers to Defendant s Excerpts of Record; and SER refers to the Government's Supplemental Excerpts of Record. 2

9 Case: /24/2013 ID: DktEntry: 15-1 Page: 9 of 26 correct. Furthermore, I authorize the release of any information from my records that U.S. Citizenship and Immigration Services needs to determine eligibility for the benefit that I am seeking. TR 43-45; ER , The Beneficiary, for his or her part, must submit a Form I-485 ( Form I-185"), Application to Register Permanent Resident Status, which is mailed together with the Form I-130 to USCIS. TR 20-21, 93; ER ; SER 1-2. Form I-485 also includes a signature certification at the end of the document, subjecting the Beneficiary to the penalty of perjury for any false statements. ER 121. After the forms are received by USCIS, an adjudicator is assigned to review the answers to verify their accuracy. TR 44; ER 149. All answers hold equal importance to an adjudicator as each one relates in some way to the ultimate determination of whether the Petitioner will be granted a benefit. TR 66; ER 171. One particular sign of fraud to an adjudicator, however, is when the Petitioner and Beneficiary are not residing together at the time of the application, because that signals the possibility that the Petitioner and Beneficiary are not in a legitimate marital union. TR 76; ER 181. Adjudicators also look into other, more subtle signs of fraud, like children from outside the relationship, as that raises questions about the prior relationships and/or marriages of the Petitioner or the Beneficiary. TR 81-82; ER

10 Case: /24/2013 ID: DktEntry: 15-1 Page: 10 of 26 The names provided on the forms (including prior names and aliases) are run through various federal databases to check whether the person has any criminal history or any other type of history which might warrant further investigation. TR 29, 68, 71; ER 173, 176; SER 5. Furthermore, in Part D, Question 2 on Form I-130, the Petitioner is asked: Have you ever before filed a petition for this or any other alien? ER 117. If he or she answers yes, he or she is then required to provide the name, place and date of filing and result. TR 88; ER 117, 193. To uncover possible patterns of benefit fraud, a query of the Combined Links Application Information Management System (CLAIMS) may be made in connection with this answer to uncover discrepancies or overlaps between the Form I-130 and any other immigration forms previously filed. TR ; ER The last step of the application process consists of the Petitioner and Beneficiary submitting themselves to an interview (hereinafter referred to as the marriage interview ), where an adjudicator puts them under oath and goes over their answers on the forms. TR 24, 44-45, ; ER , ; SER 6. II. DEFENDANT S FIRST MARRIAGE AND FORM I-130 Jahangir Alam ( Alam ), a citizen of Bangladesh, and Rowena Agnes Urumelog ( Defendant ), a citizen of the United States, met while both worked as 4

11 Case: /24/2013 ID: DktEntry: 15-1 Page: 11 of 26 taxi drivers on the island of Saipan, which is part of the Commonwealth of the Northern Mariana Islands ( CNMI ). TR 39, 110; ER , 144, 212. Although she believed Alam was already married to a woman back in Bangladesh with whom he had a son (TR 113; ER 215), Defendant married Alam at the Saipan Mayor s Office on September 15, 2000, after he promised to provide for her family. TR 110; ER 212; SER 7. On January 22, 2003, USCIS received a Form I-130 on Alam s behalf signed by Defendant (the 2003 Form I-130 ). TR 40-41; ER , Defendant also traveled to Guam from the CNMI with Alam for their marriage interview, but after they were rejected by the adjudicator, Alam got angry and left Defendant in Guam. TR 112; ER 214. The two were later divorced on May 6, TR 49-50; ER ; SER At no time, however, had Defendant and Alam ever consummated the marriage. TR 114; ER 216. III. DEFENDANT S SECOND MARRIAGE AND FORM I-130 (THE OFFENSE OF CONVICTION) On November 20, 2008, Defendant married Abdullah Al Mamun ( Mamun ) at the CNMI Lieutenant Governor s Office. ER 116, 134. Like Alam, Mamun was a citizen of Bangladesh, met Defendant while working as a taxi driver on Saipan, and promised Defendant to provide for her family. TR 110; ER 116, 212. Mamun and 5

12 Case: /24/2013 ID: DktEntry: 15-1 Page: 12 of 26 Defendant likewise never had sex. TR 114; ER 216. On April 20, 2009, USCIS received a Form I-130 signed by Defendant on Mamun s behalf (the 2009 Form I-130 ). ER Importantly, the no box was checked in Part D, Question 2, which asked whether Defendant had ever filed a previous immigration petition. TR 88; ER 117, 193. Defendant and Mamun s marriage interview was conducted on Saipan on July 6, TR 97-98; ER Prior to going into the interview, Mamun asked Defendant to lie if she was asked whether they had had sex. TR 113; ER 215. When later asked that question, Defendant falsely stated they had. TR 114; ER 216. The adjudicator presiding over the interview, however, found their marriage questionable and the matter was eventually referred to the Department of Homeland Security ( DHS ) to conduct a criminal investigation. TR 32-36; ER SUMMARY OF THE ARGUMENT The district court properly denied Defendant s Motion for Judgment of Acquittal because the Government presented sufficient evidence that she knowingly subscribed to a false statement in her 2009 Form I-130. Furthermore, the evidence related to the fraudulent nature of her marriage to Mamun was intrinsic and inextricably intertwined to the charged offense, and such evidence pertaining to 6

13 Case: /24/2013 ID: DktEntry: 15-1 Page: 13 of 26 Alam was admissible under Federal Rule of Evidence 404(b). Defendant s remaining arguments are unsupported and/or contrary to law. ARGUMENT I. THE GOVERNMENT INTRODUCED SUFFICIENT EVIDENCE THAT DEFENDANT KNOWINGLY SUBSCRIBED TO A FALSE STATEMENT OF A MATERIAL FACT IN AN IMMIGRATION DOCUMENT. In order to convict, the Government was required to prove: (1) Defendant made or subscribed as true a false statement; (2) Defendant acted with knowledge that the statement was untrue; (3) the statement was material to the activities or decisions of the U.S. Citizenship and Immigration Services ( USCIS ); that is, it had a natural tendency to influence, or was capable of influencing, the agency s decisions or activities; (4) the statement was made under oath or penalty of perjury; and (5) the statement was made on an application, affidavit, or other document required by immigration laws or regulations. See Ninth Circuit Model Criminal Jury Instruction (Fraud False Statement on Immigration Document (18 U.S.C. 1546(a))). While Defendant s brief mentions the Government s proof on elements (1) and (4), see, e.g., Appellate Brief of Defendant at 19, 23-25, it primarily focuses on element (2), i.e., that she acted with knowledge that the statement was untrue. Or as she contends: The problem in this case the error here is that the evidence adduced 7

14 Case: /24/2013 ID: DktEntry: 15-1 Page: 14 of 26 at trial does not support a finding by an [sic] rational trier of fact that [Defendant] [ ] knew that the second petition, prepared by attorney Torres, contained a representation that she had not, in fact, filed such a petition in the past. Id. at 19. See also id. at 25 ( it is irrational to conclude that [Defendant] knowingly subscribed as true attorney Joaquin Torres [sic] mistaken answer in Part D(2) of the Mamun I- 130 ). The arguments raised by Defendant, however, must fail. That the 2009 Form I-130 contains a false statement which was made under penalty of perjury is shown on the document itself. And regardless of whether an attorney actually checked the no box, Defendant, by affixing her signature on the form, adopted, or subscribed to, the false statement as if she had done it herself. See Merriam-Webster s Collegiate Dictionary 1173 (10th ed. 1997) ( subscribe means to give consent or approval to something written by signing ). See also United States v. Bellucci, 995 F.2d 157, 159 (9th Cir. 1993) ( Thus, even if it were true that Ms. Martello simply checked the box marked no to indicate that [Defendant] was not involved in a lawsuit without seeking [Defendant] s response to that question, by signing the form [Defendant] adopted the lie as his own and represented it as true. ). While Defendant suggests there was no evidence she was the person who actually signed her name, the jury was entitled to find she had by comparing that signature with the signatures on four other 8

15 Case: /24/2013 ID: DktEntry: 15-1 Page: 15 of 26 2 documents admitted at trial indeed, two of which were Defendant s own exhibits. See, e.g., United States v. Alvarez-Farfan, 338 F.3d 1043, 1045 (9th Cir. 2003) ( The law does not require a questioned document examiner to vouch for the similarity of handwriting, but instead, allows the jury to determine for itself whether the same person s handwriting appears on two documents. ); United States v. Woodson, 526 F.2d 550, 551 (9th Cir. 1975) ( In the absence of extreme or unusual circumstances not present here, we see no reason why handwriting comparisons cannot be made by jurors, and conclusions drawn from them, either in the presence or absence of expert opinion. ). As for evidence that Defendant knew the false statement was there when she signed it, the jury was allowed to find that fact based upon her signature alone. See, e.g., United States v. Crooks, 804 F.2d 1441, 1448 (9th Cir. 1986) (signature on tax return is sufficient to establish knowledge once it has been shown that the return was false); United States v. Nicholson, 846 F.2d 1383 (9th Cir. 1988) (unpublished) ( signature on the tax return is prima facie evidence that [Defendant] knew of its contents ). See also United States v. Duranseau, 19 F.3d 1117, 1121 (6th Cir. 1994) 2 These documents consisted of Government s Exhibit 3 (the 2003 Form I-130) and Exhibit 4 (Defendant and Alam s Marriage License and Certificate), see ER ; SER 7, and Defendant s Exhibit A (Form G-28, Notice of Entry of Appearance as Attorney or Representative) and Exhibit E (Defendant and Mamun s Marriage License and Certificate), see ER ,

16 Case: /24/2013 ID: DktEntry: 15-1 Page: 16 of 26 (affirming conviction on appeal because jury could infer Defendant was the person who checked the no box since sufficient evidence was presented that he signed the affidavit). That is especially appropriate here as Defendant s signature was not just at the end of the two page document it was directly below the all-important question and answer: ER 117 (cropped). Accordingly, viewed in the light most favorable to the Government, a rational trier of fact could have found that Defendant was aware the Form I-130 falsely stated that she had never submitted a previous petition. 3 Although not highlighted, the evidence discussed in the following section (relating to Defendant s marital relationships with her former and present husbands) can also be used in determining whether there was sufficient evidence to support her conviction; indeed, even if, as Defendant argues, it was wrongly admitted. See United States v. Castaneda, 16 F.3d 1504, 1510 (9th Cir. 1994). 10

17 Case: /24/2013 ID: DktEntry: 15-1 Page: 17 of 26 II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING EVIDENCE OF FACTS REGARDING DEFENDANT S MARITAL RELATIONSHIPS WITH HER FORMER AND PRESENT HUSBANDS. Contrary to Defendant s assertions, the admission of evidence regarding the questionable nature of her marriages to Alam and Mamun such as that both men promised to take care of her family; that she never had sex with either of them; and that Mamun instructed her to lie during their marriage interview was entirely appropriate. In regards to Mamun, such evidence was intrinsic, or res gestae, to the charge because the formation of their marriage was a necessary preliminary to the false statement on the marriage-based form. See, e.g., United States v. Watkins, 591 F.3d 780, 784 (5th Cir. 2009) ( Evidence of bad acts is intrinsic to a charged crime when... the other acts were necessary preliminaries to the crime charged. ); United States v. Roberts, 253 F.3d 1131, 1134 (8th Cir. 2001) (evidence admissible as res gestae because it helped to explain both the genesis and the execution of the charged crime). It was also inextricably intertwined as it helped the Government offer a coherent and comprehensible story regarding the commission of the crime, United States v. Vizcarra-Martinez, 66 F.3d 1006, (9th Cir. 1995), including Defendant s motivation for making the false statement in the first place. See, e.g., United States v. Bradshaw, 690 F.2d 704, 708 (9th Cir. 1982) ( Although it is true 11

18 Case: /24/2013 ID: DktEntry: 15-1 Page: 18 of 26 that motive need not be proved [for the charged crime], it is far from irrelevant. Motive is evidence of the commission of any crime. ). And since it was probative in explain[ing] the circumstances of the [charged offense] and the nature of [Defendant and Mamun s] relationship vis-a-vis the crime, Roberts, 253 F.3d at 1135, its admission was not barred under Federal Rule of Evidence 403. See, e.g., United States v. Bailleaux, 685 F.2d 1105, 1111 n.2 (9th Cir. 1982) ( As used in Rule 403, unfair prejudice means that the evidence[ s] [ ] admission results in some unfairness to the defendant because of its non-probative aspect. ). The evidence related to Alam, on the other hand, was admissible under Rule 404(b), because it was relevant to prove [her] motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed. R. Evid. 404(b). This Court has recognized that Rule 404(b) is a rule of inclusion, and evidence is admissible under Rule 404(b) if it is relevant to an issue in the case other than [the] defendant s criminal propensity. United States v. Meling, 47 F.3d 1546, 1557 (9th Cir. 1995) (internal citations and quotations omitted). Accordingly, such evidence should be admitted as long as: (1) the evidence tends to prove a material point; (2) the prior act is not too remote in time; (3) the evidence is sufficient to support a finding that the defendant committed the other act; and (4) (in cases where knowledge and intent are at issue) the act is similar to the offense charged. See 12

19 Case: /24/2013 ID: DktEntry: 15-1 Page: 19 of 26 United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005) (citing United States v. Verduzco, 373 F.3d 1022, 1027 (9th Cir. 2004)). In this case, the fact that Defendant had previously entered into a sham marriage with Alam and submitted a Form I-130 on his behalf as well helped show numerous material issues at trial, such as Defendant s knowledge of the scheme she entered into with Mamun in addition to her understanding of the immigration application process in general. See, e.g., United States v. Serag, 2006 WL , *3 (4th Cir. May 30, 2006) (in prosecution under 18 U.S.C and 1546(a), district court did not abuse discretion in admitting evidence of defendant's prior involvement in procuring fraudulent marriages because testimony was offered to show [his] knowledge and understanding of both the marriage-fraud scheme in particular and the immigration process in general ). The evidence was also not too remote in time from the act charged in the Indictment. See, e.g., United States v. Johnson, 132 F.3d 1279, 1283 (9th Cir. 1997) (thirteen years since a prior bad act is not too remote in time). Nor was it supported by insufficient evidence, as most of it derived from Defendant s voluntary interview with Special Agent Acosta on September 14, TR ; ER See, e.g., United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002) (describing the third prong of the Rule 404(b) test as a low threshold that may be satisfied by the testimony of a single witness). Lastly, 13

20 Case: /24/2013 ID: DktEntry: 15-1 Page: 20 of 26 the conduct Defendant engaged in with Alam was virtually identical to the conduct she later engaged in with Mamun. See, e.g., United States v. Jenkins, 785 F.2d 1387, 1395 (9th Cir. 1986) (in case charging defendant with making false statements to obtain Federal Housing Authority ( FHA ) loans, court properly admitted Rule 404(b) evidence about irregularities in a prior conventional loan defendant arranged, because [t]he fact that [he] used fraudulent means to secure conventional loans is probative on issues of intent, knowledge, good faith and absence of mistake in dealing with the FHA transactions ). Indeed, it can fairly be said that pretending to be in legitimate marriages with aliens from Bangladesh and making false statements in their immigration filings was Defendant s modus operandi over the period in question. See, e.g., United States v. Anyanwu, 2011 WL (9th Cir. March 4, 2011) (in prosecution under 18 U.S.C. 1546(a), district court did not abuse discretion in admitting evidence of a previous immigration petition as it was probative of [Defendant] s modus operandi in making false statements to obtain citizenship for his relatives ). See also United States v. Hinostroza, 297 F.3d 924, 928 (9th Cir. 2002) ( It is precisely the similarity of subsequent Rule 404(b) acts that increases, not decreases, their probative nature and their relevance in showing knowledge, intent or modus operandi. ). Therefore, the district court did not abuse its discretion in admitting this evidence under Rule 404(b). 14

21 Case: /24/2013 ID: DktEntry: 15-1 Page: 21 of 26 It was also not an abuse of discretion to do it over Defendant s Rule 403 objection because the court engaged in the proper analysis in overruling it. TR 107; ER ; SER 13. See also United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir. 1987) ( [A]s long as it appeared from the record that the trial judge performed the balancing required by Rule 403, we would not overturn the court's decision. ). Moreover, even if the admission of the evidence was prejudicial, its effect was [sufficiently] minimized by the district court s limiting instruction to the jury, United States v. Flores-Blanco, 623 F.3d 912, 920 (9th Cir. 2010). Tr. Dkt. No. 38 at 13-14; SER 14. Most importantly, in no circumstance is reversal warranted because none of the evidence was necessary to sustain Defendant s conviction. See Government s Argument, Part I, supra. See also Neder v. United States, 527 U.S. 1, 18 (1999) (error is harmless where it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error ). III. U.S.S.G. 2L2.1 APPLIED BECAUSE DEFENDANT S CONDUCT INVOLVED A FALSE STATEMENT IN THE IMMIGRATION APPLICATION OF ANOTHER. U.S.S.G. 2L2.1 was intended to encompass an individual s illegal assistance of others attempting to evade immigration law. United States v. Domanski, 1995 WL 87178, *3 (7th Cir. March 2, 1995). See also United States v. Ajayi, 935 F. Supp. 90, (D.R.I. 1996) (U.S.S.G. 2L2.1 applies to false statements made on behalf 15

22 Case: /24/2013 ID: DktEntry: 15-1 Page: 22 of 26 of another person s passport application and establishes a higher base offense level to reflect the fact that trafficking in fraudulently obtained passports is more serious than fraudulently obtaining passports for one's own use. ). In contrast, U.S.S.G. 2L2.2 the provision Defendant argues applies to her was intended to apply to offenses committed by an alien in furtherance of his attempt to unlawfully remain in the United States. Domanski, 1995 WL at *3 (emphasis added). See also United States v. Rivera, 516 F.3d 500, 502 (6th Cir. 2008) (2L2.2 pertains to documents procured for one's own use ); United States v. Principe, 203 F.3d 849, & n.3 (5th Cir. 2000) (applying 2L2.2 because defendant was convicted of fraudulent acquisition of immigration documents for one s own use ). Therefore, because Defendant, a U.S. citizen, made the false statement in furtherance of the immigration application of her alien spouse, the district court did not err in selecting 2L2.1 as the controlling guideline section. See, e.g., United States v. Becker, 2003 WL , *1 (9th Cir. May 16, 2003) (unpublished) ( Because Appellant s conduct involved providing fraudulent documents in order to help others obtain United States visas, this section is more appropriate than 2L2.2, which concerns acquiring such documents for one s own use. ) (emphasis in original). 16

23 Case: /24/2013 ID: DktEntry: 15-1 Page: 23 of 26 IV. DEFENDANT DID NOT CARRY HER BURDEN IN PROVING THAT SHE WAS ENTITLED TO A THREE LEVEL REDUCTION UNDER U.S.S.G. 2L2.1(b)(1), NOR COULD SHE HAVE. While U.S.S.G. 2L2.1 permits a three (3) level reduction [i]f the offense was committed other than for profit, U.S.S.G. 2L2.1(b)(1), Defendant gets it backwards when she argues [n]othing in the Offense Characteristics of the PSR, nor in the facts adduced at trial, suggests that the offense for which [she] was convicted was for profit. Appellate Brief of Defendant at 34. Indeed, it was her burden not the Government s to prove by a preponderance of the evidence that the provision applied. See United States v. Ajugwo, 82 F.3d 925, 929 (9th Cir. 1996) ( we have placed the burden on the defendant to prove by a preponderance of the evidence that she should receive a sentence reduction under the guidelines based upon some mitigating factor ); United States v. Howard, 894 F.2d 1085, 1089 (9th Cir. 1990) ( the government bears the burden of proof if it is attempting to adjust the offense level upwards, but the defendant bears the burden of proof if he is attempting to lower the offense level ). See also United States v. Sameni, 1992 WL , *2 (9th Cir. Sept. 23, 1992) (Defendant bears the burden of proving that a reduction of his sentence is warranted [under U.S.S.G. 2L2.1(b)(1)] ). Therefore, because Defendant did not offer any evidence on this issue at sentencing, nor does she point to any now on appeal, the district court s ruling was not erroneous. 17

24 Case: /24/2013 ID: DktEntry: 15-1 Page: 24 of 26 Nevertheless, even assuming she had, Defendant could have never satisfied her burden given her admission that Mamun promised to take care of her family and had given her cases of beer. TR 110; ER 212. See, e.g., Application Note 1 to U.S.S.G. 2L2.1 ( other than for profit means no payment or expectation of payment ) (emphasis added); United States v. Juan-Manuel, 222 F.3d 480, 485 (8th Cir. 2000) ( the words payment and expectation of payment [ ] can refer to something other than money ); United States v. Perez-Ruiz, 169 F.3d 1075, 1076 (7th Cir. 1999) ( Compensation is payment [ 2L2.1(b)(1)], and whether in specie or in some other form does not matter. ). CONCLUSION For the foregoing reasons, the Government respectfully requests that this Court affirm the denial of Defendant s motion for acquittal and affirm her conviction and sentence. Dated this 24th day of January, ALICIA A.G. LIMTIACO United States Attorney Districts of Guam & the Northern Mariana Islands By: s/ Garth R. Backe Garth R. Backe Assistant United States Attorney 18

25 Case: /24/2013 ID: DktEntry: 15-1 Page: 25 of 26 CERTIFICATE OF SERVICE I hereby certify that on January 24, 2013 (PST), I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. By: s/ Garth R. Backe Garth R. Backe Assistant United States Attorney 19

26 Case: /24/2013 ID: DktEntry: 15-1 Page: 26 of 26 CERTIFICATE OF RELATED CASES The undersigned counsel certifies that there are no related cases pending before the Ninth Circuit Court of Appeals. Dated this 24th day of January, By: s/ Garth R. Backe Garth R. Backe Assistant United States Attorney 20