United States Court of Appeals
For the First Circuit
No. 99-2096
UNITED STATES OF AMERICA,
Appellee,
v.
PARAMJIT SINGH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Selya, Circuit Judge
Coffin and Cyr, Senior Circuit Judges.
Brian T. Tucker and Rath, Young and Pignatelli Professional
Association on brief for appellant.
Paul M. Gagnon, United States Attorney, and Jean B. Weld,
Assistant United States Attorney, on brief for the United
States.
July 28, 2000
SELYA, Circuit Judge. A jury found defendant-appellant
Paramjit Singh guilty of (a) making a false statement to a
government agency (in an application for a Social Security
card), and (b) possessing a counterfeit immigration document.
See 18 U.S.C. §§ 1001(a)(2), 1546(a). Singh appeals. We
affirm.
I.
Background
We elucidate the relevant facts in the light most
favorable to the government, consistent with record support.
See United States v. Houlihan, 92 F.3d 1271, 1277 (1st Cir.
1996); United States v. Spinney, 65 F.3d 231, 233 (1st Cir.
1995).
On March 24, 1998, the appellant, a nineteen-year-old
citizen of India, entered the United States on a tourist visa.
This visa bore an Immigration and Naturalization Service (INS)
B2 classification and authorized the appellant to remain in the
United States for six months as a visitor for pleasure, but
forbade him to work. Shortly before landing in the United
States, the appellant received an INS arrival/departure form
(known as an I-94 form) that likewise reflected a B2
classification.
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The appellant stayed for a time with relatives in
Delaware. On September 17, he went to the Wilmington branch
office of the Social Security Administration (accompanied by an
aunt), signed an application indicating that he was a "Legal
Alien Not Allowed to Work," and procured a Social Security card
that, consistent with his visa and his B2 classification,
prohibited him from gainful employment. He apparently used this
Social Security card to obtain driver's licenses.
The appellant overstayed his allotted six months and
remained illegally in the United States after his visa expired.
On March 11, 1999, he repaired to the Globe Agency in Brooklyn,
New York, paid that firm $300, and left his passport. Eight
days later, he returned. A representative of the agency handed
over his passport, a counterfeit I-94 form, and a completed
application for a Social Security card that linked the appellant
to an unfamiliar mailing address in Nashua, New Hampshire. The
I-94 form showed a bogus Q1 classification1 and a fictitious visa
expiration date of September 1999. To make matters worse, it
falsely described the appellant as a legal alien permitted to
work.
1
This classification is intended to describe an alien who
entered the United States as a participant in a cultural
exchange program.
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The appellant then entered a van supplied by the Globe
Agency and was transported, along with several other aliens, to
a Social Security branch office in New Hampshire. Upon arrival,
he signed the pre-prepared application (which, among other
things, indicated that he was a "Legal Alien Allowed to Work"),
presented the phony documents to Amy Gauvreau (a clerk at the
local Social Security office), and sought the issuance of a
work-permitting Social Security card. The scheme backfired,
however, because Gauvreau became suspicious and called INS
agents to the scene. INS agent Kevin Clouthier arrested the
appellant after a brief interrogation in which the appellant
conversed in comprehensible English.
Although the appellant did not testify at trial, the
defense presented evidence designed to show that the appellant
lacked guilty knowledge. This evidence included testimony by
the appellant's aunt that she spoke in the Punjabi tongue when
communicating with him because of his poor command of English,
and that she had assisted him in obtaining his first Social
Security card because he lacked proficiency in English. In a
similar vein, the defense adduced testimony from a psychologist
to the effect that the appellant had a "borderline to low
average" ability to understand documents written in English.
Finally, the defense noted that the fake I-94 form had been
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tucked into the appellant's passport, and intimated that the
Globe Agency had inserted it there without his knowledge.
Asserting that the evidence as a whole failed to
establish guilty knowledge, the appellant moved for a judgment
of acquittal. See Fed. R. Crim. P. 29(a). The district court
denied the motion, and the jury returned guilty verdicts on both
counts. The district court subsequently imposed a six-month
home-confinement sentence, levied a $250 special assessment, and
placed the appellant on probation for two years. This appeal
followed.
II.
Discussion
The appellant advances two assignments of error.
First, he challenges the sufficiency of the evidence. Second,
he protests the district court's decision to instruct the jury
on willful blindness. We consider these points sequentially.
A.
Sufficiency of the Evidence
The appellant maintains that his motion for judgment
of acquittal should have been granted because the evidence
failed to establish his guilty knowledge. We review the denial
of a motion for judgment of acquittal de novo. See United
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States v. Staula, 80 F.3d 596, 604 (1st Cir. 1996). Where, as
here, such a motion is premised on a claim of evidentiary
insufficiency, it will necessarily fail if the proof, viewed in
the manner most congenial to the government's theory of the
case, allows a rational jury to find the defendant guilty beyond
a reasonable doubt. See id. Such a finding may, of course, be
predicated in whole or in part on circumstantial evidence. See
Spinney, 65 F.3d at 234.
We start with the appellant's argument as it pertains
to the counterfeit I-94 form and the consequent violation of
section 1546(a).2 While there is no direct evidence that the
appellant knew that the Globe Agency had supplied him with an
apocryphal document, the circumstances strongly suggest that he
went there for that very purpose. This inference is bolstered
by the appellant's colloquy with Agent Clouthier which, although
oriented more toward discovering the genesis of the ersatz form
2The statute of conviction provides in pertinent part:
Whoever knowingly . . . uses, attempts to use,
possesses, obtains, accepts or receives any [immigrant
or non-immigrant] visa, permit, border crossing card,
alien registration receipt card, or other document
prescribed by statute or regulation for entry into or
as evidence of authorized stay or employment in the
United States, knowing it to be forged, counterfeit,
altered, or falsely made [shall be punished as
provided].
18 U.S.C. § 1546(a).
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than the state of the appellant's knowledge, nonetheless
supports an inference that the fraudulent nature of the
documentation came as no surprise to the appellant.
We need not tarry. The jury had before it the
appellant's admission (to Clouthier) that he purchased the
counterfeit I-94 form and presented it in New Hampshire. The
receipt for it was found on the appellant's person. Moreover,
the jury had before it evidence of a furtive course of conduct
(e.g., the appellant's payment of a substantial fee and his
travel to a place with which he had no apparent connection to
apply for a card that was readily available elsewhere) and
evidence that the document flatly contradicted the limitations
contained in the appellant's visa. On this record, inferring
the appellant's guilty knowledge from the available
circumstantial evidence fell well within the scope of the jury's
authority to evaluate the proof and determine its impact. See,
e.g., Staula, 80 F.3d at 604; Spinney, 65 F.3d at 234; United
States v. Olbres, 61 F.3d 967, 971 (1st Cir. 1995).
The appellant's argument in respect to the "false
statement" conviction runs along much the same lines — and it
meets the same fate.3 He again emphasizes his lack of facility
3The statute of conviction provides in pertinent part:
[W]hoever, in any matter within the jurisdiction of
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with the English language and insists that the evidence failed
to establish his guilty knowledge. In his view, the evidence
suggests that he stumbled upon the Globe Agency and unwittingly
purchased bogus documents, unaware that they falsely portrayed
him as a legal alien allowed to work.
To the extent — if at all — that this is a plausible
argument, it certainly is not a compelling one. A rational jury
logically could conclude that the evidence, including testimony
that the appellant had communicated intelligently with Agent
Clouthier, demonstrated that he had a better grasp of English
than his attorney professed. On this record, we cannot say that
the jury was barred from concluding (as it apparently did) that
the appellant purposefully approached the Globe Agency and that
he knew enough to discern the obvious differences in respect to
his work status between his first Social Security application
and the one he submitted in New Hampshire. See United States v.
the executive, legislative, or judicial branch of the
Government of the United States, knowingly and
willfully—
. . . .
(2) makes any materially false, fictitious, or
fraudulent statement or representation . . .
. . . .
shall be [punished as provided].
18 U.S.C. § 1001(a)(2).
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O'Brien, 14 F.3d 703, 707 (1st Cir. 1994) (holding that a jury
may "credit particular testimony, while discounting other
testimony that arguably points in a different direction").
B.
Willful Blindness
We turn now to the appellant's second assignment of
error. The district court, over the appellant's timely
objection, gave a willful blindness instruction. The appellant
insists that no such instruction was warranted. We disagree.
A willful blindness instruction is justified when the
defendant claims to lack guilty knowledge, yet the evidence,
taken in the light most favorable to the government, suffices to
support an inference that he deliberately shut his eyes to the
true facts. See United States v. Gabriele, 63 F.3d 61, 66 (1st
Cir. 1995). Even then, however, the instruction, taken in
context, must avoid any suggestion that an inference of guilty
knowledge is obligatory rather than permissive. See id. In
this case, the appellant does not fault the language of the
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instruction.4 Hence, we concentrate our attention on the
substantive aspects of the test.
We begin with whether the record sufficiently reflects
a claim by the appellant that he lacked guilty knowledge. We
think that it does. Singh did not take the stand and, thus, did
not directly place in issue the absence of guilty knowledge.
However, that circumstance is not dispositive.
The transcript makes manifest (by counsel's opening
statement, his choice of witnesses, his cross-examination, his
motion for judgment of acquittal, and his summation) that the
appellant premised his defense largely on the government's
failure to prove guilty knowledge. The first prong of the test
4The district court stated:
In deciding whether the defendant acted knowingly,
you may infer that the defendant had knowledge of a
fact if you find that he deliberately closed his eyes
to a fact that otherwise would have been obvious to
him. In order to find knowledge, you must find that
two things have been established. First, that the
defendant was aware of a high probability that the
fact existed.
Second, that the defendant consciously and
deliberately avoided learning of that fact. That is
to say, the defendant willfully made himself blind to
that fact. It is entirely up to you to determine
whether he deliberately closed his eyes to the fact
and, if so, what inference, if any should be drawn.
However, it is important to bear in mind that mere
negligence or mistake in failing to learn the fact is
not sufficient. There must be a deliberate effort to
remain ignorant of the fact.
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for a willful blindness instruction does not depend on a showing
of an explicit denial of guilty knowledge out of the defendant's
own mouth; that requirement is satisfied so long as a practical
evaluation of the record reveals that the defense was pitched in
that direction. See United States v. Brandon, 17 F.3d 409, 452
n.73 (1st Cir. 1994); United States v. Lizotte, 856 F.2d 341,
343 (1st Cir. 1988). Here, the appellant's arguments sounded a
consistent refrain: that he lacked guilty knowledge. No more
was exigible.
The government also passes the second half of the test.
To be sure, the record contains some evidence which, viewed
favorably to the appellant, might suggest a lack of guilty
knowledge (e.g., the fact that the phony I-94 form was not
carried separately by him, but, instead, had been inserted in
his passport). But at this stage of the proceedings, the
evidence must be viewed from a prosecution-friendly vantage
point. See Spinney, 65 F.3d at 233.
By like token, the appellant's claim that the
government failed to show any discrete acts of purposeful
avoidance is true as far as it goes — but it does not go very
far. The government has no burden to prove willful blindness by
direct evidence; it is sufficient if the government adduces
evidence that warning signs existed sufficient to put a
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reasonably prudent person on inquiry notice (and, thus,
sufficient to permit a factfinder to infer conscious avoidance
of guilty knowledge). See United States v. Cunan, 152 F.3d 29,
39 (1st Cir. 1998).
In this instance, the jury reasonably could consider
the stark contrast between the mechanics of the appellant's
original procurement of a Social Security card and his later
venture as a red flag, including, for example, the Globe
Agency's request that he leave his passport and the van ride to
a remote locale (along with other aliens) to process an
ostensibly routine application. See United States v. Bilis, 170
F.3d 88, 93 (1st Cir. 1999); United States v. Camuti, 78 F.3d
738, 744 (1st Cir. 1996). The jury also could consider that the
appellant spent $300 for a new set of documents of a kind that
he originally had received without charge. Finally, the jury
could consider the timing of these events, for the appellant
knew (or so the jury could have found) that his visa had long
since expired.
To say more would be supererogatory. Even if the
appellant did not read (and thus did not know with certitude the
contents of) the papers given to him at the Globe Agency, he had
ample reason to suspect their false nature. Consequently, the
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trial court did not err in giving a willful blindness
instruction.
III.
Conclusion
We need go no further. After reviewing the briefs and
the record with care, we are fully persuaded that the lower
court did not go astray either in denying the appellant's motion
for judgment of acquittal or in charging the jury. We conclude,
therefore, that the appellant was fairly tried and lawfully
convicted.
Affirmed.
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