United States v. Qayyum

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
July 6, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellant,

v. No. 04-1509
ABDUL QAYYUM ; CHRIS
M ARIE W ARREN, a/k/a C hristie
W arren; HA RO O N RA SH ID ;
SA IM A SA IM A ; IR FA N
KAM RAN,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 03-CR-127-B)

John W . Van Lonkhuyzen, United States Department of Justice, Criminal
Division, W ashington, D.C., (David M . Gaouette, Assistant United States
Attorney, Denver Colorado; William J. Leone, United States A ttorney, Denver,
Colorado; and Steven A. Tyrrell, United States Department of Justice, Criminal
Division, W ashington, D.C., with him on the briefs), for Plaintiff-Appellant.

Raymond P. M oore, Federal Public D efender, Denver, Colorado, for D efendant-
Appellee Abdul Qayyum.

Jeffrey S. Pagliuca, Holland & Pagliuca, P.C., Denver, Colorado, for D efendant-
Appellee Haroon Rashid.

Thomas J. Hammond, Thomas J. Hammond, P.C., Denver, Colorado, filed a brief
for Defendant-Appellee Chris M arie W arren.
M arc M ilavitz, Boulder, Colorado, filed a brief for Defendant-Appellee Saima
Saima.

Donald R. Knight, Knight & M oses, Littleton, Colorado, filed a brief for
Defendant-Appellee Irfan Kamran.

Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.

H E N RY, Circuit Judge.

This case requires us to determine whether the district court, before trial,

improperly dismissed one count of a multi-count indictment concerning the

alleged immigration of an unlawful alien into the United States. The count at

issue charges Abdul Qayyum, Chris M arie W arren, Haroon Rashid, Saima Saima,

and Irfan Kamran (“the Defendants”) with conspiracy to defraud the United

States, in violation of 18 U.S.C. § 371. The indictment alleges the conspiracy’s

purpose was that “an otherwise inadmissible alien . . . fraudulently and unlaw fully

would enter and remain in the United States.” The Defendants filed a motion to

dismiss the § 371 conspiracy count. The district court granted the motion,

concluding that the statute of limitations barred prosecution. The government

now appeals dismissal of the count. W e exercise jurisdiction under 18 U.S.C. §

3731 and reverse the pre-trial dismissal of the count.

-2-
 I. BACKGROUND

The Third Superceding Indictment charges the Defendants with (1)

conspiracy to defraud the government by obstructing the regulation and control of

the immigration of aliens into the United States, in violation of 18 U.S.C. § 371

(Count One); (2) making false statements to a government agent, in violation of

18 U.S.C. § 1001 (Counts Two through Six, charging the D efendants separately);

and (3) conspiracy to harbor an illegal alien, in violation of 8 U.S.C. §

1324(a)(1)(A)(v)(I) and (a)(1)(B)(i) (Count Eight). The indictment, returned on

December 16, 2003, also charges Sajjad Nasser and Imran Khan with the

conspiracy counts (Counts One and Eight) and charges M r. Nasser with making a

false statement (Count Seven). M r. Nasser and M r. Khan, however, did not move

to dismiss Count One with the Defendants and are not parties to this appeal.

Only Count One of the Third Superceding Indictment is at issue here. The

grand jury charges in Count One that from on or about M arch 4, 1996, until on or

about M arch 21, 2003, the Defendants, M r. Nasser, and M r. Khan knowingly

conspired “to defraud the United States by obstructing, interfering, impairing,

impeding and defeating, through fraudulent and dishonest means, the legitimate

functioning of the government, that is, the regulation and control of immigration

of aliens into the United States.” Aplt’s App. at 187 ¶ 1. Count One further

specifies that “[i]t w as the purpose and object of the conspiracy that IM RAN

KHAN, an otherwise inadmissible alien, with the assistance of [the Defendants

-3-
and M r. Nasser], fraudulently and unlawfully would enter and remain in the

United States.” Id. ¶ 2.

Count One further charges the manner and means of the § 371 conspiracy:

a. At various time[s] between on or about M arch 4, 1996, and on or
about August 19, 1997, through fraudulent and deceptive means,
including but not lim ited to the filing of false immigration
documents, one or more of the defendants arranged for the entry
of IM RAN KHAN, an illegal alien, into the U nited States.

b. At various times between on or about August 19, 1997, and on or
about M arch 21, 2003, one or more of the defendants provided
IM RAN KHAN with housing and other forms of support in order
to continue his unlawful presence in the U nited States.

c. At various times on or about August 19, 1997, and on or about
M arch 21, 2003, one or more of the defendants concealed from
and/or falsely represented the true status of IM RAN KHAN in
the United States in order to continue his unlawful presence in
the U nited States.

Id. at 187-88 ¶ 3.

The count goes on to allege nine overt acts in furtherance of the § 371

conspiracy: (1) on or about M arch 4, 1996, M r. Qayyum filed an immigrant visa

petition falsely representing that M r. Khan was his “child,” knowing the

information to be false; (2) on or about M arch 4, 1996, M s. W arren filed an

affidavit of support falsely representing that M r. Khan was her stepson, knowing

the information to be false; and (3) on or about August 19, 1997, M r. Khan

unlawfully entered the United States. Id. at 188 ¶ 4. The indictment further

charges that between D ecember 2002 and M arch 2003, (4) M r. Qayyum, (5) M s.

-4-
Saima, (6) M r. Kamran, (7) M s. W arren, (8) M r. Rashid, and (9) M r. Nasser

individually and falsely stated to a federal agent that M r. Khan was the biological

son of M r. Q ayyum, when each knew the information to be false. Id. at 188-89 ¶

4. The government maintains that M r. Khan is the nephew–not the biological

son–of M r. Q ayyum.

The Defendants moved to dismiss Count One as time barred by the five-

year statute of limitations under 18 U.S.C. § 3282(a). The district court granted

the Defendants’ motion in an oral ruling:

As elucidated in the overt acts alleged, the fraud charged w as fraud
allegedly com mitted to secure Imran Khan’s entry into the United
States. Once he was admitted to the United States on August the 19th,
1997, his status from an alien applicant, if you will, changed to one, I
will assume, fraudulently obtained as being a legal alien immigrant, but
there’s nothing else to be done to secure the immigration into the
U nited States. Once the fraud was complete by securing his entry into
the U nited States, the crime was complete. That is more than five years
from the completion of the offense, and the motion will be granted as
to Count 1. Count 1 will be dismissed.

Aplt’s App. at 322. The court later issued a written order reiterating that it had

dismissed Count One “[f]or the reasons stated on the record during the November

2, 2004 hearing.” Id. at 254 (O rder, dated Nov. 4, 2004).

II. D ISC USSIO N

Count One charges Defendants with a violation of 18 U.S.C. § 371, which

is the federal general conspiracy statute prohibiting conspiracies “to defraud the

-5-
United States . . . in any manner or for any purpose.” To prosecute the

Defendants under § 371, the government must prove “(1) an agreement; (2) to

break the law; (3) an overt act; (4) the purpose of which is to further the object of

the conspiracy; and (5) that the defendant entered the conspiracy willfully.”

United States v. Davis, 965 F.2d 804, 811-12 (10th Cir. 1992). The prosecution is

subject to a five-year statute of limitations. See 18 U.S.C. § 3282(a) (“Except as

otherwise expressly provided by law, no person shall be prosecuted, tried, or

punished for any offense, not capital, unless the indictment is found or the

information is instituted within five years next after such offense shall have been

committed.”).

“To satisfy the statute of limitations, the prosecution must show that the

conspiracy continued to exist five years prior to the indictment . . . and that ‘at

least one overt act in furtherance of the conspiratorial agreement was performed

within that period.’” United States v. Hauck, 980 F.2d 611, 613 (10th Cir. 1992)

(quoting Grunewald v. United States, 353 U.S. 391, 397 (1957)). “The fact that

the conspiracy began outside the limitations period will not prevent prosecution

as long as at least one overt act in furtherance of the conspiracy occurred within

five years of the indictment.” United States v. United M ed. & Surgical Supply

Corp., 989 F.2d 1390, 1398 (4th Cir. 1993). The First Superceding Indictment,

issued on M ay 22, 2003, first charged the Defendants with § 371 conspiracy.

“The filing of an indictment tolls the limitations period for the charges contained

-6-
in the indictment,” and a superceding indictment relates back to the original

indictment’s date if the superceding indictment “does not broaden or substantially

amend the original charges.” United States v. Zvi, 168 F.3d 49, 54 (2d Cir. 1999)

(internal quotation marks omitted). Count One of the Third Superceding

Indictment therefore survives if the government establishes that the conspiracy

existed on M ay 22, 1998, and at least one overt act in furtherance of the

conspiracy was performed after that date.

“W e review de novo the district court’s legal conclusion concerning the

scope of the conspiracy,” United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir.

2001), and the court’s dismissal of the count on statute-of-limitations grounds,

United States v. Reitmeyer, 356 F.3d 1313, 1316 (10th Cir. 2004). See also

United M ed. & Surgical Supply Corp., 989 F.2d at 1398 (explaining that in a

defendant’s pre-trial motion to dismiss an indictment as time barred, a court

reviews de novo “whether those facts [alleged in the indictment] demonstrate a

failure timely to prosecute their case”).

Before w e can determine w hether the statute of limitations bars

prosecution, we must first understand the scope of the § 371 conspiracy alleged in

Count One. “To determine the scope of the alleged conspiratorial agreement, the

court is bound by the language of the indictment.” Hitt, 249 F.3d at 1015. “W e

test the indictment solely on the basis of the allegations made on its face, and

such allegations are to be taken as true.” Reitmeyer, 356 F.3d at 1316-17

-7-
(internal quotation marks omitted).

The Supreme Court analyzed the statute of limitations in a conspiracy

prosecution in Grunewald. There, three petitioners fraudulently obtained “no

prosecution” rulings from the Bureau of Internal Revenue for two businesses’ tax

evasion cases. 353 U.S. at 395. After the petitioners’ favorable rulings in 1948

and 1949, they acted to conceal “the irregularities in the disposition of the [two

tax] cases.” Id. An indictment, returned on October 25, 1954, charged the

petitioners with § 371 conspiracy to defraud the United States to obtain “no

prosecution” rulings. “The indictment further charged that part of the conspiracy

was an agreement to conceal the acts of the conspirators.” Id. at 394. After a

jury convicted the petitioners, they challenged their conviction, arguing that the

statute of limitations barred their prosecution.

In Grunewald, the applicable three-year statute of limitations barred

prosecution unless (1) the conspiracy still existed on October 25, 1951, and (2)

the petitioners performed an overt act in furtherance of the conspiracy after that

date. Id. at 396. Based on the record, the Court concluded that prosecution was

barred because no direct evidence established the conspirators originally agreed to

conceal the crime after its commission. Id. at 404-06. Therefore, acts of

concealment after the “no prosecution” rulings could not be considered overt acts

in furtherance of the conspiracy.

“[T]he crucial question in determining whether the statute of limitations has

-8-
run is the scope of the conspiratorial agreement, for it is that which determines

both the duration of the conspiracy, and whether the act relied on as an overt act

may properly be regarded as in furtherance of the conspiracy.” Id. at 397. The

Court rejected the notion that “the duration of a conspiracy can be indefinitely

lengthened merely because the conspiracy is kept a secret . . . to avoid detection

and punishment after the central criminal purpose has been accomplished.” Id. at

405. If courts allowed “a conspiracy to conceal to be inferred or implied from

mere overt acts of concealment,” such a practice “would extend the life of a

conspiracy indefinitely.” Id. at 402. The Court made it clear, however, that acts

of concealment can sometimes further a criminal conspiracy. “[A] vital

distinction must be made between acts of concealment done in furtherance of the

main criminal objectives of the conspiracy, and acts of concealment done after

these central objectives have been attained, for the purpose only of covering up

after the crime.” Id. at 405. In some conspiracies, “the successful

accomplishment of the crime necessitates concealment.” Id.

Here, the government maintains that the grand jury has alleged a continuing

conspiracy, and the 2002-03 overt acts charged in Count One support the

conspiracy’s objective that M r. Khan fraudulently “remain in the United States.”

According to the Defendants, Count One’s charging paragraph limits the scope of

the conspiracy to M r. Khan’s fraudulent entry into the United States. They

contend that the overt acts alleged within the five-year limitations period are

-9-
merely “false denials of the original criminal act under questioning by law

enforcement.” A ple. Q ayyum’s B r. at 13. The Defendants maintain that while

Count One vaguely alleges that they supported and concealed M r. Khan to

maintain his status in the United States, the indictment does not charge any

specific acts to support these allegations. See Aplt’s App. at 187 ¶ 3(b).

Assuming (as we must) at this stage of the proceedings that the

indictment’s allegations are true, see Reitmeyer, 356 F.3d at 1316-17, Count One

on its face indicates that the statute of limitations does not bar prosecution. The

count charges that the “purpose and object of the conspiracy” was for the

Defendants to fraudulently assist M r. Khan to “enter and remain in the United

States.” Id. at 187 ¶ 2 (emphasis added). The 2002-03 overt acts charged in the

indictment further the Defendants’ alleged objective to help M r. Khan “remain in”

the country, and these alleged acts clearly fall w ithin the statute of limitations.

Given the grand jury’s express description of the conspiracy’s purpose and object,

the alleged false statements to government agents “formed part of the [charged]

conspiracy because they did not follow the accomplishment of its central criminal

objectives but rather were acts in furtherance of those aims.” United States v.

Walker, 653 F.2d 1343, 1348 (9th Cir. 1981); see also United States v. Kissel, 218

U.S. 601, 607 (1910) (describing how a conspiracy continues “when the plot

contemplates bringing to pass a continuous result that will not continue without

the continuous co-operation of the conspirators to keep it up”).

-10-
 The plain language of Count One convinces us that the grand jury charged a

continuing conspiracy in which “the successful accomplishment of the crime

necessitates concealment.” Grunewald, 353 U.S. at 405. The possible ambiguity

in Count One stems not from the clear description of the “purpose and object of

the conspiracy,” Aplt’s App. at 187 ¶ 2, but rather from the language in the

count’s opening paragraph that the Defendants conspired to defraud “the

regulation and control of immigration of aliens into the United States,” id. ¶ 1.

W e decline to adopt the position of the district court and the Defendants that,

based on the count’s first paragraph, the conspirators necessarily achieved the

only purpose of the conspiracy when M r. K han gained entry into the country.

Count One is therefore distinguished from the decisions cited by

Defendants, where courts concluded that a conspiracy terminated following the

completion of the only objective alleged in the indictment. Defendants first rely

on United States v. Davis, 533 F.2d 921 (5th Cir. 1976). In Davis, two men

formed a business consortium and submitted a fraudulent contract proposal to the

United States Department of Labor (“the Department”) to train 450 unemployed

people to be dry-cleaning employees. Id. at 924-26. They falsely stated in their

proposal that nineteen consortium members had agreed to train the workers. The

defendants were charged with § 371 conspiracy, and “the sole object of the

conspiracy as charged was to make false statements and representations to the

Department.” Id. at 927. The defendants had made the false statements in the

-11-
proposal more than five years before the return of the indictment. The five-year

statute of limitations therefore barred prosecution because the charged conspiracy

“had run its course with the submission of the false statements to the Department

. . . , and the subsequent issuance of the contract by the Department in reliance on

the falsifications w as not for purposes of the statute of limitations an overt act in

furtherance of the conspiracy.” Id. at 928.

Count One is also unlike the charged conspiracy in United States v. Roshko,

969 F.2d 1 (2d Cir. 1992). There, the government alleged that M eir Roshko (1)

entered into a sham marriage with a United States citizen to obtain a green card,

(2) divorced that wife after receiving the green card, and (3) later married Irene

Roshko, who eventually obtained permanent resident status. Id. at 2. The

indictment charged that the Roshkos had conspired to defraud the government “by

seeking changes in the immigration status of [M r. Roshko] based on a sham

marriage to a United States citizen.” Id. at 3. Relying on the plain language of

the indictment, the circuit rejected the government’s view that the conspiracy also

included as its objective M s. Roshko’s later “acquisition of permanent resident

status.” Id. at 7. The “singular objective, as alleged in the indictment, was

achieved and the conspiracy terminated . . . when the IN S approved M eir’s

application for a green card.” Id. at 7-8. The Second Circuit subsequently

dismissed the count as time barred because M r. Roshko’s acquisition of the green

card was more than five years before the grand jury returned its indictment.

-12-
 The charged conspiracies in Davis and Roshko are narrower than Count

One. Neither Davis nor Roshko charged a continuing conspiracy, and those

agreements terminated, upon the completion of their sole objectives, outside of

the relevant statute of limitations. In contrast, Count One alleges that the

Defendants conspired to help M r. Khan enter and remain in the United States, and

the count charges overt acts in furtherance of the conspiracy (such as the false

statements) within the five-year limitations period.

In sum, the district court improperly dismissed Count One in light of the

plain language describing the conspiracy’s scope and our responsibility at this

stage of the proceedings to take the count’s allegations as true. On remand, a

factfinder must determine after hearing the evidence whether the alleged false

statements from 2002 and 2003 were (1) only acts of concealment after

accomplishing the Defendants’ sole objective to bring M r. Khan into the United

States, or (2) were part of an ongoing conspiracy in which the “plot

contemplate[d] bringing to pass a continuous result that will not continue without

the continuous co-operation of the conspirators to keep it up.” Kissel, 218 U.S. at

607; see also United States v. Cannistraro, 800 F. Supp. 30, 78 (D.N.J. 1992)

(“The ultimate question of whether acts are in furtherance of the conspiracy or

only for purposes of concealment depends on the objectives of the conspiracy, a

determination of which is a question of fact for the jury.”).

On remand, the government can only obtain a conviction by proving that

-13-
the Defendants’ conspiracy existed on M ay 22, 1998 and originally included an

agreement to help M r. Khan “remain in the United States.” See Grunewald, 353

U.S. at 404 (rejecting the government’s contention of a continuing conspiracy

because “[t]here is not a shred of direct evidence in this record to show anything

like an express original agreement among the conspirators to continue to act in

concert in order to cover up, for their own self-protection, traces of the crime

after its commission”). For the purposes of our review, though, it is irrelevant

whether the government could eventually succeed at trial or should have charged

a narrower conspiracy.

III. C ON CLU SIO N

Accordingly, we REVERSE the district court’s dismissal of Count O ne.

-14-