United States v. Ngige

United States Court of Appeals
For the First Circuit

No. 14-1136

UNITED STATES,

Appellee,

v.

JECINTA WAMBUI NGIGE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Barron, Selya, and Stahl,
Circuit Judges.

Lawrence Gatei, with whom Immigration & Business Law Group,
LLP was on brief, for appellant.
Gail Fisk Malone, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

March 17, 2015
 STAHL, Circuit Judge. Following a bench trial on a

record of stipulated facts, the district court convicted Defendant-

Appellant Jecinta Wambui Ngige of conspiring to defraud the United

States by participating in a sham marriage to secure a change in

her immigration status. On appeal, she argues that the prosecution

was time-barred because she committed no overt act in furtherance

of the conspiracy within the five-year period before the return of

the indictment. We affirm.

I. Facts and Background

On June 13, 2012, a federal grand jury returned an

indictment charging Ngige with conspiracy to defraud the United

States, in violation of 18 U.S.C. § 371. The indictment alleged

that a third party (later identified as James Mbugua); MF (later

identified as Michael Frank), a citizen of the United States; and

Ngige, a citizen of Kenya who had entered the United States

lawfully but whose authorization to remain in the United States had

expired, "knowingly and willfully conspired and agreed . . . to

participate in a sham marriage, and to make sworn false statements

about that marriage to agencies of the United States Government,

for the purpose of defrauding the United States." The indictment

maintained that the conspiracy had two objectives: (1) for Ngige's

co-conspirators to profit financially by accepting payments from

her in exchange for participating in the sham marriage; and (2) for

Ngige to "acquire a change of her United States immigration status

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to which she would not otherwise have been entitled by making false

representations to agencies of the United States government about

her marriage to and relationship with [Frank]."

The indictment charged Ngige with committing eight overt

acts in furtherance of the conspiracy. According to the

indictment, Ngige (1) arranged with another individual (Mbugua) to

meet a United States citizen willing to marry her; (2) traveled to

Maine on January 30, 2004, to meet Frank and, with him and other

co-conspirators, apply for a marriage license, falsely stating on

the application that she and Frank lived together; and (3) entered

into a sham marriage with Frank, knowing that the "sole purpose of

the wedding was to permit her to apply for a change in her

immigration status to which she would not otherwise have been

entitled." The indictment alleged that Ngige then (4) signed a

Form I-485, dated March 19, 2004, seeking to adjust her immigration

status on the basis of her marriage, which was subsequently filed

with the U.S. Citizenship and Immigration Service ("USCIS"); (5)

along with the Form I-485, filed or caused to be filed a Form I-

130, also dated March 19, 2004, bearing Frank's forged signature

and falsely representing that the two lived together in Attleboro,

Massachusetts; and (6) filed or caused to be filed various

documents in support of the I-485 and I-130 petitions, some

purporting to show that she and Frank lived together although they

did not. The indictment further stated that sometime after the I-

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485 and I-130 petitions were filed with USCIS, Frank refused to

assist Ngige with her change of immigration status request, and

thereafter, Ngige (7) signed and filed a Form I-360, seeking a

change of immigration status under the Violence Against Women Act

("VAWA") on the grounds that her citizen-spouse, Frank, was abusive

to her. The Form I-360, dated August 14, 2006, falsely stated that

she and Frank currently lived together. Finally, the indictment

alleged that (8) on August 6, 2007, Ngige filed a psychological

evaluation in support of her Form I-360 VAWA petition. That

evaluation, dated September 28, 2006, contained various material

falsehoods about the trajectory of Ngige's relationship with Frank.

In the district court, Ngige filed a motion to dismiss

the indictment as time-barred, arguing that the filing of the

psychological evaluation on August 6, 2007 -- the only overt act

alleged within the five-year statute of limitations period, see 18

U.S.C. § 3282(a) -- was not done in furtherance of the charged

conspiracy. She also asserted that both she and Frank withdrew

from the conspiracy in 2006, and that she had disavowed the

conspiracy by filing for divorce. The district court denied the

motion, holding that Ngige's arguments rested on disputes of fact

which would need to be resolved by the presentation of evidence at

trial. United States v. Ngige, No. 2:12-cr-00098-JAW, 2013 WL

950689, at *2 (D. Me. Mar. 12, 2013).

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 Ngige waived her right to a jury trial, and the case

proceeded to a bench trial on a record of stipulated facts and

attendant exhibits. The following paragraphs summarize the

stipulations before the court.

Ngige, a native of Kenya, traveled to the United States

on a visitor's visa in December 2001. After her visa expired six

months later, she remained in the United States without a legal

basis for doing so. Sometime prior to January 30, 2004, Ngige

agreed to pay Mbugua to introduce her to a United States citizen

willing to marry her for financial consideration. The stipulations

averred that this arrangement had "two goals. One was for Mbugua

and the U.S. citizen/husband to make money. The other was for Ms.

Ngige to be able to apply for lawful residency . . . as the spouse

of a U.S. citizen by marrying Frank and pretending to establish a

life with him."

On January 30, 2004, Ngige traveled from Massachusetts to

Maine to meet with Mbugua and Frank. Ngige and Frank obtained a

marriage license, untruthfully indicating that they lived together

in Lewiston, Maine. The two were then married in a brief civil

ceremony. Ngige paid Mbugua, who gave some of the money to Frank.

Ngige then returned to Massachusetts. At Ngige's request, Frank

traveled to Massachusetts three times after the wedding, and on at

least one occasion, she paid Frank the cost of his travel. While

he was in Massachusetts, Ngige and Frank organized immigration

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paperwork and took steps to make it appear as though they lived

together, such as opening a joint bank account.

On March 19, 2004, Ngige signed a Form I-485, Application

to Register Permanent Resident or Adjust Status, to adjust her

immigration status based on her marriage to Frank. The Form I-485

was filed with USCIS, along with a Form I-130, Petition for Alien

Relative, which purported to bear Frank's signature, and various

documents in support of the petitions. The I-130 form and some of

the supporting documents represented that Ngige and Frank lived

together in Attleboro, Massachusetts, in order to "create the

impression that she and Mr. Frank lived together and shared a life

when they did not."

USCIS scheduled Ngige's change-of-status request for an

interview and mailed her notice of a date and time. Frank refused

to accompany her to the interview, even after she traveled to Maine

twice to convince him to continue helping her with her petition.

The parties stipulated that sometime in 2005, during Ngige's second

trip to Maine, Frank withdrew from the conspiracy and had no

further involvement in it.

The stipulations stated that on January 31, 2006, Ngige

filed for divorce and that her complaint for divorce falsely stated

that she and Frank lived together until January 6, 2005. The

divorce was finalized in April 2007. On August 14, 2006, while the

divorce was still pending, Ngige signed and submitted the Form I-

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360 VAWA petition seeking a change in immigration status as a self-

petitioning spouse of an abusive U.S. citizen. On the form, she

named Frank as the abusive citizen-spouse and wrote that the two

lived together in Attleboro from February 2006 until "present." In

support of her petition, Ngige submitted multiple documents

previously submitted to USCIS in March 2004 with the I-485 and I-

130 forms.

On July 15, 2007, USCIS informed Ngige that the agency

could not act on her VAWA I-360 petition absent evidence that Frank

subjected her to battery or extreme cruelty. In response, on

August 6, 2007, Ngige filed a psychological evaluation dated

September 28, 2006. The evaluation contained Ngige's knowingly

false statements purporting to describe how she and Frank met,

began dating, and married before Frank became emotionally abusive

to Ngige. The evaluation reported that Ngige suffered from

depression and panic attacks due to the abuse. Upon receipt of the

evaluation, USCIS requested further documentation of spousal abuse.

Ngige submitted no further documentation, and USCIS denied her VAWA

petition on November 2, 2007.

Aside from the foregoing stipulations and six attendant

exhibits, neither party sought to introduce any further evidence.

On September 9, 2013, the district court found Ngige guilty of

conspiracy as charged in the indictment. Ngige requested written

findings of fact, see Fed. R. Crim. P. 23(c), which the district

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court issued on September 18, 2013. United States v. Ngige, No.

2:12-cr-00098-JAW, 2013 WL 5303725 (D. Me. Sept. 18, 2013). The

district court adopted the parties' stipulations as its findings of

fact, id. at *1, and explained its guilty verdict, id. at *4–5. On

January 29, 2014, the district court sentenced her to four months

in prison, followed by one year of supervised release. This appeal

followed.

II. Analysis

Ngige's appeal rests on her contention that the district

court incorrectly found that the filing of the psychological

evaluation in support of her VAWA petition constituted an overt act

in furtherance of the charged conspiracy. We address this and

related arguments at both the motion to dismiss and motion for

acquittal stages of the proceedings.

A. Sufficiency of the Indictment

We begin with our de novo review of the district court's

refusal to dismiss the indictment on statute of limitations

grounds. United States v. Stewart, 744 F.3d 17, 21 (1st Cir.

2014).

The government charged Ngige under 18 U.S.C. § 371, which

is subject to the general five-year statute of limitations for

criminal actions, see 18 U.S.C. § 3282(a). The indictment was

filed on June 13, 2012. To be timely, the indictment must allege

that the conspiracy still existed and that at least one overt act

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in furtherance of the conspiracy was committed after June 13, 2007.

See Stewart, 744 F.3d at 21. Both parties agreed below and on

appeal that only the filing of the psychological evaluation on

August 6, 2007 fits within § 3282(a)'s five-year time frame. Ngige

argues that submitting the psychological evaluation cannot be

considered an overt act in furtherance of the conspiracy charged,

because her co-conspirators did not contemplate utilizing VAWA to

achieve a change in Ngige's immigration status. See Grunewald v.

United States, 353 U.S. 391, 397 (1957) ("[T]he crucial question in

determining whether the statute of limitations has 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.").

The problem with Ngige's argument is that it fails to

attack the facial validity of the indictment and instead challenges

the government's substantive case. An indictment must allege each

of the required elements of conspiracy, but the government need not

put forth specific evidence to survive a motion to dismiss.

Stewart, 744 F.3d at 21 (citing Fed. R. Crim. P. 7(c)(1)). When a

defendant seeks dismissal of an indictment, courts take the facts

alleged in the indictment as true, mindful that "the question is

not whether the government has presented enough evidence to support

the charge, but solely whether the allegations in the indictment

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are sufficient to apprise the defendant of the charged offense."

United States v. Savarese, 686 F.3d 1, 7 (1st Cir. 2012). Indeed,

"courts routinely rebuff efforts to use a motion to dismiss as a

way to test the sufficiency of the evidence behind an indictment's

allegations." United States v. Guerrier, 669 F.3d 1, 4 (1st Cir.

2011).

Here, the indictment alleged that the conspiracy's

objective was to pay Frank and Mbugua to help Ngige "acquire a

change of her United States immigration status" by "making false

representations . . . about her marriage to and relationship with

[Frank]." The psychological evaluation filed in support of the

VAWA petition, which the indictment alleged contained "material

falsehoods" about the relationship, sought to achieve just that.

The district court properly concluded that Ngige's more limited

characterization of the conspiracy's scope, along with her

contention that the conspiracy had ended before the filing of the

psychological evaluation, rested on factual disputes left to the

factfinder. See Stewart, 744 F.3d at 22; see also United States v.

Upton, 559 F.3d 3, 11 (1st Cir. 2009) ("Determining the contours of

the conspiracy ordinarily is a factual matter entrusted largely to

the jury.").

B. Sufficiency of the Evidence

Ngige raises various challenges to the sufficiency of the

evidence supporting her conviction. She again asserts that the

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filing of the psychological evaluation in support of her VAWA

petition cannot be considered an overt act because it exceeded the

scope of the charged conspiracy. Ngige also argues that the

conspiracy was no longer ongoing at the time she filed the

psychological evaluation. We review a bench trial conviction de

novo, examining the facts and inferences in the light most

favorable to the verdict. United States v. Tum, 707 F.3d 68, 69

(1st Cir. 2013).

To make out a case of conspiracy under 18 U.S.C. § 371,

the government must show the existence of an agreement with an

unlawful object (here, marriage fraud, see 8 U.S.C. § 1325(c)), the

defendant's knowing participation in the conspiracy, and an overt

act in furtherance of that agreement. United States v. Serunjogi,

767 F.3d 132, 139 (1st Cir. 2014). Ngige concedes that the record

establishes the existence of the conspiracy and her knowing

participation in it, but argues that the scope of the conspiracy

was limited to pursuing a change in her immigration status through

the "ordinary" marriage-based application process -- that is,

through a Form I-130 and a Form I-485 -- and thus that filing the

psychological evaluation in support of her VAWA application

constituted her own unilateral deed beyond the bounds of the

parties' agreement. Without the filing of the psychological

evaluation, her argument goes, the prosecution is time-barred.

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 We find this argument unavailing. Nowhere in the

parties' stipulations adopted by the district court does it say

that the three co-conspirators solely agreed to a change-in-

immigration application through a Form I-130 and a Form I-485.

Instead, the record amply supports the contention that Ngige,

Mbugua, and Frank agreed more generally to facilitate a sham

marriage in order to make Ngige eligible for lawful residency.

Ngige's status as a spouse of a citizen triggered her eligibility

to file a Form I-360 VAWA-based petition for a change in status.

See 8 U.S.C. § 1229b(b)(2)(A)(i). Thus, her VAWA petition, along

with the psychological evaluation submitted in support, was merely

a shift in tactics to achieve the same basic goal: to capitalize on

a sham marriage in order to achieve a change in immigration status.

Cf. Stewart, 744 F.3d at 23 n.5 ("[J]ust because a conspiratorial

objective could have been achieved via different means does not

suggest that the means selected were not in furtherance of the

conspiracy."); United States v. Sarantos, 455 F.2d 877, 883 (2d

Cir. 1972) (in a marriage fraud case, rejecting argument that the

scope of the conspiracy was limited to the filing of the initial

visa petition and upholding conviction where defendant knew the

objective of the conspiracy was to achieve permanent residency for

co-conspirator, even though "he may not have been familiar with

every step that would be taken by his co-conspirators to achieve

. . . [the conspiracy's] objective[]").

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 As an alternative ground for reversal, Ngige argues that

the conspiracy terminated when Frank withdrew in 2005, and thus the

conspiracy had ended by the time she filed the psychological report

in August 2007. But nothing in the record supports the contention

that the third co-conspirator, Mbugua, had ever withdrawn his

involvement. An inactive co-conspirator is "'presumed to be a

continuing member'" of an ongoing conspiracy unless the defendant

has established that co-conspirator's withdrawal. United States v.

Pizarro-Berríos, 448 F.3d 1, 10 (1st Cir. 2006) (quoting United

States v. Robinson, 390 F.3d 853, 882 (6th Cir. 2004)). Although

the stipulations are silent as to Mbugua's role in the conspiracy

after Ngige paid him for his services, the "[m]ere cessation of

activity in furtherance of the conspiracy does not constitute

withdrawal." United States v. Ciresi, 697 F.3d 19, 27 (1st Cir.

2012) (alteration in original) (citation omitted); see also Smith

v. United States, 133 S. Ct. 714, 720 (2013) ("Passive

nonparticipation in the continuing scheme is not enough to sever

the meeting of minds that constitutes the conspiracy.").

Finally, Ngige contends that the conspiracy was no longer

ongoing in August 2007 because she herself withdrew from the

conspiracy in January 2006, when she filed for divorce.

"Withdrawal is a demanding defense requiring affirmative evidence

of an effort to defeat or disavow [the conspiracy] . . . ." United

States v. Potter, 463 F.3d 9, 20 (1st Cir. 2006); see also Ciresi,

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697 F.3d at 27 (describing the standard for withdrawal as "'strict'

and not easily met" (quoting United States v. Piper, 298 F.3d 47,

53 (1st Cir. 2002))). It is arguably true that when she filed for

divorce in January 2006, Ngige had given up on convincing Frank to

continue supporting her Form I-130/Form I-485 petition. But later

that same year she utilized her status as the spouse of a U.S.

citizen to file a VAWA-based Form I-360 to achieve a change in her

immigration status, and the following year, she submitted the

psychological evaluation to buttress that petition. Cf. Stewart,

744 F.3d at 24 (holding that rescinding one type of change-of-

immigration-status petition does not constitute abandonment of the

conspiracy). While Ngige took steps to dissolve the marriage, she

continued to submit false statements to USCIS about her

relationship with Frank in order to achieve the ultimate goal of a

change in her immigration status. Nothing in the record supports

Ngige's contention that she withdrew from the conspiracy; to the

contrary, the record supports the conclusion that she continued to

take affirmative steps to achieve the conspiracy's objective. Cf.

Upton, 559 F.3d at 10 ("A conspiracy endures as long as the co-

conspirators endeavor to attain the 'central criminal purposes' of

the conspiracy." (quoting Grunewald, 353 U.S. at 401)).

In sum, we conclude that the record amply supports the

district court's guilty verdict.

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 III. Conclusion

For the foregoing reasons, we affirm Ngige's conviction.

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