United States v. Thiongo

United States Court of Appeals
For the First Circuit
No. 02-2452

UNITED STATES OF AMERICA,

Appellee,

v.

WANJIKU THIONGO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Selya, Circuit Judge,
Stapleton,* Senior Circuit Judge,
and Baldock,** Senior Circuit Judge.

Robert L. Sheketoff for appellant.
Mark E. Howard, Assistant United States Attorney, with whom
Thomas Colantuono, United States Attorney, was on brief for
appellee.

September 15, 2003

*
Of the Third Circuit, sitting by designation.
**
Of the Tenth Circuit, sitting by designation.
 BALDOCK, Senior Circuit Judge. A jury convicted

Defendant Wanjiku Thiongo of various charges related to a two-year

conspiracy to gain illegal admission into the United States for

Kenyan nationals. Specifically, the jury convicted Defendant of

conspiracy to commit visa fraud, in violation of 18 U.S.C. §§ 371

and 1546(a); conspiracy to encourage or induce an alien to enter,

or reside, in the United States, in violation of 18 U.S.C. § 371

and 8 U.S.C. §§ 1324(a)(1)(A)(iv) and (v)(I); and eight counts of

obtaining visas for entry into the United States through fraud, in

violation of 18 U.S.C. § 1546(a). After adjusting the base offense

level for Defendant’s aggravating role in the conspiracy, the

district court sentenced Defendant to 51 months’ imprisonment. We

have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm

Defendant’s convictions, but remand for resentencing.

I.

The jury found Defendant procured, or caused to be

procured, B1/B2 tourist visas for seventy-seven Kenyan nationals.

The Kenyans’ visa applications gave as the reason for travel

various cultural or agricultural programs. The Kenyan nationals

did not intend to attend the programs. Instead, each Kenyan

intended to enter the United States and stay. Defendant charged

the Kenyans between one thousand and four thousand dollars plus

airfare for her assistance in obtaining entry into the United

States.

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 Aliens may enter the United States lawfully under various

types of visas tailored to the type of stay. B1/B2 non-immigrant

visas are designed to permit a short term stay (usually between 30

and 60 days) for business or tourist purposes. To obtain a B1/B2

visa, an applicant must establish that he or she has a legitimate

reason for travel, that the stay is temporary in nature, that the

applicant has sufficient means to finance the proposed trip, and

that the applicant has sufficient business or family ties in the

home country to assure the United States Consular Officer of his or

her intent to return.

To demonstrate a legitimate reason for travel, an

applicant must provide supporting documentation. For example, an

individual seeking to travel on business must provide evidence of

the planned business activities such as an agenda or the names and

addresses of the people with whom the applicant will be meeting.

A personal interview usually is required, but may be waived if the

applicant is traveling with a group for a specific purpose. In

third-world countries such as Kenya, the visa denial rate is well

over fifty percent because these countries historically have had a

high percentage of visa recipients fail to return from the United

States following entry.

The evidence at trial established that Defendant

fraudulently obtained letters indicating she was planning various

cultural or agricultural programs. The Kenyan nationals sought

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B1/B2 non-immigrant visas, giving these events as the reason for

travel and providing copies of the letters as documentation.

In September 1997, seventeen Kenyan nationals obtained

B1/B2 visas from the U.S. embassy in Nairobi, Kenya to attend a

twenty-one-day agricultural program at McIntosh College. Robert

Decolfmaker, the President of McIntosh College, testified that he

provided Defendant a letter in which he agreed to assist her in

organizing an agricultural tour through the college. According to

Decolfmaker, he never heard from Defendant after providing the

letter, Defendant never organized an agricultural tour through the

college, and no Kenyan national stayed at the college. Several of

the Kenyan nationals testified that they paid several thousand

dollars for a B1/B2 visa to attend the agricultural program and

that they were told upon arrival that the agricultural program did

not exist.

In October 1998, seventeen Kenyan nationals obtained

B1/B2 visas from the U.S. embassy in Harare, Zimbabwe to attend the

Boston International Festival, a one-week international exchange

program for artists. Defendant obtained the visas during a visit

to Zimbabwe. Five of the Kenyan nationals testified at trial that

they had not completed a visa application, but had paid Defendant

several thousand dollars to obtain a visa on his or her behalf.

They also testified that they were not artists, and that none of

the travelers intended to attend or attended the festival. Upon

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their arrival in the United States, the Kenyan nationals were

transported not to Boston, but to Defendant’s house in Milford,

Connecticut.

Also in October 1998, sixteen Kenyan nationals received

B1/B2 visas from the U.S. embassy in Stockholm, Sweden to

participate in a student exchange program at Price Farm School in

New Hampshire. Defendant obtained the visas during a visit to

Sweden. Jane Miller, the owner of the Price Farm School, testified

that she provided Defendant with paperwork inviting Kenyan students

to travel to the United States on a three-week cultural exchange

program. After providing the paperwork, Ms. Miller did not hear

from Defendant again. Defendant used the paperwork to solicit a

letter of support for the visa applications from New Hampshire

Congressman Charles Bass. No Kenyan national attended the Price

Farm School. Several of the Kenyan nationals testified that they

were not aware they were to visit the Price Farm School, that they

paid Defendant several thousand dollars to obtain a visa on their

behalf, and that they intended to enter the United States to stay,

several joining family members that had previously entered through

Defendant’s assistance.

Finally, in April 1999, twenty-seven Kenyan nationals

obtained B1/B2 visas from the U.S. embassy in Lusaka, Zambia to

attend a multi-week dairy tour in New Hampshire and Vermont.

Defendant obtained the visas during a visit to Zambia in March.

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Three Kenyan nationals testified that they did not fill out visa

applications, but had paid Defendant several thousand dollars to

obtain visas on their behalf. They also testified that they were

not dairy farmers, and that they did not visit any dairy farms in

the United States.

Defendant testified in her own defense at trial. On

appeal, she asserts the district court abused its discretion in

admitting evidence of Defendant’s prior bad acts under Fed. R.

Evid. 608(b) and in permitting the prosecutor to repeatedly ask

Defendant to comment on the accuracy of other witnesses’ testimony.

Defendant also asserts the court erred in adjusting her offense

level based on her aggravated role in the offense.

II.

Defendant first contends the district court abused its

discretion in permitting the prosecutor to inquire about prior bad

acts. The court admitted the evidence as impeachment material

pursuant to Federal Rule of Evidence 608(b). Rule 608(b) permits

a party to introduce on cross-examination specific instances of

conduct for the purpose of attacking the witness’ credibility if

the evidence is “probative of truthfulness or untruthfulness.” See

Fed. R. Civ. P. 608(b). The admissibility of such evidence is

determined by weighing several factors including whether the

instances of prior conduct bear some similarity to the conduct at

issue, whether they were recent or remote in time, and whether the

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evidence is cumulative of other evidence. See United States v.

Simonelli, 237 F.3d 19, 23 (1st Cir. 2001). Whether to admit

specific instances of conduct to impeach the credibility of a

witness is a decision left to the sound discretion of the district

court. See United States v. Mateos-Sanchez, 864 F.2d 232, 236-37

(1st Cir. 1988). We review the court’s decision for an abuse of

discretion. Id.

The prosecutor began by asking Defendant questions

designed to establish that Defendant’s current husband fathered her

first child just a few months before she served as a legal witness

in his marriage to an American citizen. The prosecutor’s questions

also elicited the fact that Defendant had been married to another

man when she gave birth to the child. In response to defense

counsel’s objection, the prosecutor explained that she was

attempting to establish that Defendant signed a legal document

attesting to the authenticity of a marriage she knew was entered

into solely for the purpose of evading immigration laws. The

prosecutor asserted that Defendant had placed her credibility at

issue by commenting on the testimony of other witnesses and that

evidence of her willingness to assist others in evading immigration

laws clearly was probative of her truthfulness. The district court

agreed.

As 608(b) evidence, Defendant’s willingness to serve as

a legal witness to a sham marriage designed to avoid immigration

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laws is fairly probative of Defendant’s truthfulness. The evidence

indicated Defendant willingly participated in the marriage ceremony

of her current husband and another woman, a marriage her husband

entered into solely to obtain a green card and eventually his

citizenship.1 The evidence further revealed Defendant obtained her

own green card by later marrying the same man. Her willingness to

engage in these acts shows Defendant was willing to engage in

deceptive practices to avoid immigration laws. The evidence was

especially relevant as it bore significant similarities to the

conduct at issue in the trial.2 The district court did not abuse

its discretion in admitting this evidence.

1
At oral argument, Defendant noted for the first time that the
prosecutor failed to ask Defendant whether she signed the marriage
license. Defendant argued that her mere participation in the
marriage ceremony, absent evidence she signed the license as a
legal witness, was not probative of her truthfulness. Defendant’s
argument challenges the prosecutor’s evidence in support of her
proffer rather than the district court’s ruling. Defendant did not
raise the matter before the district court, an act which would have
permitted the Government to introduce the required evidence.
Defendant also did not raise this argument in her briefs.
Accordingly, we will not entertain the argument on appeal. See
Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990)
(arguments not made before the district court and not raised in
appellant’s opening brief are waived).
2
On appeal, Defendant asserts the prior conduct was too remote
to be relevant. The marriage occurred in 1981 while the conduct at
issue in the trial occurred in 1998-1999. Defendant did not raise
this issue before the trial court. Thus the panel would review the
remoteness claim only for plain error. United States v. Gaines,
170 F.3d 72, 82 (1st Cir. 1999). As remoteness is but one factor
to be considered, the district court did not plainly err in
admitting the evidence despite the length of time between the prior
conduct and the conduct at issue.

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 Evidence Defendant bore the man’s child while married to

another does not appear to be relevant or probative of Defendant’s

truthfulness or untruthfulness. The district court arguably erred

in admitting this evidence.3 But we need not determine whether the

district court abused its discretion because any error in admitting

this evidence was harmless. The weight of the remaining evidence

against Defendant was substantial and it is extremely unlikely the

verdict would have been any different absent evidence of

Defendant’s marital infidelity.

III.

Defendant next asserts the prosecutor improperly asked

Defendant to comment on the accuracy of other witnesses’ testimony.

During cross-examination, the prosecutor twice asked Defendant

whether two Government witnesses were lying. Defendant did not

object to the first question, but did object the second time. The

district court sustained the objection, instructing the prosecutor

that she could ask whether Defendant disputed the testimony, but

not whether a witness was lying. The prosecutor complied with this

instruction, asking Defendant only whether she disputed the

3
The district court also arguably sustained Defendant’s
objection as to this evidence. At sidebar, the prosecutor stated
she had not intended to elicit information about Defendant’s
marriage to another man at the time she gave birth. The district
court agreed that the prosecutor “probably did not realize that she
would elicit a response that [Defendant] was married to someone
else.” After the district court made his admissibility finding,
the prosecutor did not refer again to Defendant’s marital
infidelity. Defendant did not request a limiting instruction.

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testimony or felt a witness was “mistaken.” Defendant argues the

district court erred in instructing the prosecutor she could

continue asking Defendant to comment on the credibility of

Government witnesses. Defendant did not object to this instruction

at trial. Accordingly, the panel reviews this claim only for plain

error. Gaines, 170 F.3d at 82.

This Court has held it is improper for an attorney to ask

a witness whether another witness lied on the stand. Id. at 81-82

(citing United States v. Fernandez, 145 F.3d 59, 64 (1st Cir.

1998)). Underlying this rule is the concept that credibility

judgments are for the jury, not witnesses, to make. Id.

Accordingly, the district court properly sustained Defendant’s

objection to the prosecutor’s first questions. But this Court also

has clarified that asking whether a witness was “wrong” or

“mistaken” is proper because the witness is “not required to choose

between conceding the point or branding another witness as a liar.”

Id. (“Asking a witness whether a previous witness who gave

conflicting testimony is ‘mistaken’ highlights the objective

conflict without requiring the witness to condemn the prior witness

as a purveyor of deliberate falsehood, i.e., a ‘liar.’”). Thus,

the prosecutor’s remaining questions were permissible and

Defendant’s claim is without merit. Defendant also makes no

attempt to explain how the alleged error was prejudicial as

required to establish plain error.

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 IV.

Finally, Defendant asserts the district court erred in

enhancing her sentence pursuant to U.S.S.G. § 3B1.1 based on her

aggravated role in the criminal activity.4 U.S.S.G. § 3B1.1(a)

provides for a four-point offense level enhancement if the

sentencing court determines a defendant “was an organizer or leader

of a criminal activity that involved five or more participants or

was otherwise extensive.” To properly apply § 3B1.1, “a district

court must make both a status determination–a finding that the

defendant acted as a leader or organizer of the criminal

activity–and a scope determination–a finding that the criminal

activity met either the numerosity or the extensiveness benchmarks

established by the guidelines.” United States v. Tejada-Beltran,

50 F.3d 105, 110 (1st Cir. 1995). Assessing a defendant’s role in

the offense generally is a fact-specific task. Id. We review the

district court’s factual findings in support of the enhancement for

clear error. Id. We review de novo the district court’s legal

4
Specifically, Defendant argues the district court erred in
finding Defendant organized or lead the Kenyans for whom she
arranged to procure visas. Although not well articulated,
Defendant basically asserts the applicable guidelines do not permit
the sentencing court to consider the aliens involved in determining
whether to apply the enhancement. Defendant developed this
argument more fully before the district court in her written
objections to the sentencing report and during the sentencing
hearing. The district court expressly addressed the issue during
sentencing, and despite Defendant’s failure to articulate her claim
with precision, the Government’s brief on appeal responds fully to
her argument.

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interpretations of the relevant sentencing guidelines. United

States v. Nedd, 262 F.3d 85, 93 (1st Cir. 2001).

During sentencing the district court expressly adopted

the factual findings and legal conclusions contained in the

Presentence Investigation Report. In doing so, the district court

applied the § 3B1.1 aggravating role adjustment to both the

conspiracy to induce count and the conspiracy to commit visa fraud

count.5 But it appears from the sentencing transcript that the

5
The sentencing report calculated a total offense level of 24.
In calculating Defendant’s sentence, the report first grouped
together the count involving conspiracy to commit visa fraud and
the counts involving obtaining a non-immigrant visa by means of a
false claim or statement. The report correctly used U.S.S.G. §
2L2.1 to apply a base level offense of 11. It then enhanced the
sentence by 6 because the offense involved more than 25 but less
than 99 documents. See U.S.S.G. § 2L2.1(b)(2). The report then
added 4 points because it found Defendant organized a criminal
activity that was otherwise extensive pursuant to U.S.S.G. §
3B1.1(a). Finally, it added 2 points for obstruction of justice.
This resulted in a total offense level of 23.
The report then calculated the offense level for the count
involving conspiracy to induce an alien to come to, enter, or
reside in the United States. The report correctly used § 2L1.1 to
calculate a base offense level of 12. It then added 6 points
because the offense involved more than 25 but less than 99 aliens.
The report added 4 points pursuant to U.S.S.G. § 3B1.1 after
finding Defendant organized a criminal activity that was otherwise
extensive. Finally, it added 2 points for obstruction of justice.
This resulted in an offense level of 24.
Pursuant to § 3D1.2(b), the sentencing report then grouped
together the two calculations. Under U.S.S.G. § 3D1.3(a), the
court is to calculate the total offense level as the highest
offense level of grouped counts under §3D1.2(a)-(c). Application
Note 1 of that section states that “[t]he offense level for a count
refers to the offense level from Chapter Two after all adjustments
from Parts A, B, and C of Chapter Three.” Therefore, the offense
level for each offense must take into account the aggravating role
adjustment under §3B1.1, separately, before the counts are grouped.
After calculating the total offense level after adjustments for

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district court did not intend to apply the aggravating role

adjustment to the conspiracy to induce count; rather, it intended

to apply the adjustment only to the conspiracy to commit visa fraud

count.6

Application of the aggravating role adjustment to the

conspiracy to commit visa fraud count was proper based on the

district court’s determination that Defendant organized a scheme

that was otherwise extensive. The court determined that the

criminal activity in which Defendant engaged was extensive in light

of the “breadth of activities, when measured in terms of duration,

number of clients, or geographic reach.” The court also properly

concluded that the aliens were criminally liable for their

participation in the visa fraud and thus could be considered

organized “participants” in the conspiracy. Thus, the district

court properly determined that, with respect to the conspiracy to

commit visa fraud count, Defendant met both the status and scope

prongs necessary to apply a four-point enhancement under § 3B1.1.

See Tejada-Beltran, 50 F.3d at 110-112.

each count, the sentencing court sentences the defendant based on
the count that produced the highest total offense level. Pursuant
to § 3D.3(a), the report used the highest offense level to
determine the sentence, in this case 24.
6
The district court discussed in detail the applicability of
the enhancement as to both counts during the sentencing hearing.
See Sentence Hearing Transcript at 3-24. The court repeatedly
distinguished between the conspiracy to commit visa fraud count and
the conspiracy to induce count.

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 But the court erred in adopting the sentencing report’s

recommendation to apply the aggravating role adjustment to the

conspiracy to induce count. This count is governed by U.S.S.G. §

2L1.1. The application notes to this guideline section provide:

“For the purposes of § 3B1.1 (Aggravating Role), the aliens

smuggled, transported, or harbored are not considered participants

unless they actively assisted in the smuggling, transporting or

harboring of others.”7 See U.S.S.G. § 2L1.1, comment. (n.2).

Applying the guideline, this Court has ruled that “in the absence

of any evidence that [a defendant] exercised control over other

persons or was otherwise responsible for organizing them in the

commission of an offense,” the mere fact that the defendant was

involved in an extensive criminal activity does not support a

finding the defendant was an organizer or leader under § 3B1.1.

See Tejada-Beltran, 50 F.3d at 111 (quoting United States v.

Fuller, 897 F.2d 1217, 1221 (1st Cir. 1990)). More succinctly,

“Section 3B1.1 does not apply to a defendant who merely organizes

or supervises a criminal activity that is executed without the aid

of others.” Id. (quoting Fuller, 897 F.2d at 1221)(emphasis in the

original, internal quotations omitted).

7
This application note applies only to the sentencing
guideline applicable to the conspiracy to induce count. The
conspiracy to commit visa fraud count, calculated under 2L2.1,
contains no such instruction.

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 At the sentencing hearing, the court found Defendant

executed the criminal activities largely on her own. The court

expressly declined to apply the enhancement based on the

involvement of other non-aliens in the criminal conspiracy.8 Based

on this factual finding, Defendant did not meet the status prong

and did not qualify for an organizer or leader enhancement pursuant

to § 3B1.1 on the conspiracy to induce count. See Tejada-Beltran,

50 F.3d at 110-112. The sentence report found Defendant to be an

organizer based on the involvement of non-alien individuals. In

adopting the sentence report, the district court adopted factual

findings in direct conflict with its prior express findings. The

court’s express factual findings also conflict with its decision to

impose the § 3B1.1 enhancement on the conspiracy to induce count.

8
The Government argues that Defendant occupied a leadership
role over numerous individuals including individuals named
“Johanna” and “Wanderi.” The district court expressly rejected
this as a basis for applying the § 3B1.1 enhancement, noting that
Defendant employed these individuals only to a “limited extent” and
would have committed the same crimes in essentially the same way
absent the assistance of these individuals. Specifically, the
court stated: “I would not consider [Defendant] to be an organizer
or leader of Wanderi or Johanna in the sense contemplated by this
guideline . . . . four levels is a very significant increase in
someone’s criminal culpability, and her use of Wanderi and Johanna
by itself doesn’t warrant that big an increase in her criminal
culpability.” Sentence Hearing Transcript at 17-18. The district
court’s finding that the involvement of non-aliens in Defendant’s
criminal activity did not warrant a four-level enhancement pursuant
to § 3B1.1 was not clearly erroneous.

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For these reasons, we remand to the district court for

resentencing.9

V.

For the reasons stated, we AFFIRM Defendant’s

convictions. We REMAND for resentencing in accordance with this

opinion.

9
We recognize Defendant’s current sentence falls within the
sentence range applicable upon remand. But the district court
during sentencing expressed its view that a lower sentence would be
appropriate. We remand to give the court an opportunity, at its
discretion, to sentence Defendant as it deems just.

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