United States v. KuKu

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 95-9552
________________________

D. C. Docket No. 1:94-CR-280-4-RCF

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRENDA KUKU,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 2, 1997)

Before BLACK, Circuit Judge, HILL and HENDERSON, Senior Circuit
Judges.

PER CURIAM:
 Brenda Kuku (Kuku) was convicted of offenses arising from her participation

in a conspiracy to unlawfully produce social security cards and sell them to illegal

aliens. We address two issues raised by Kuku on appeal: (1) whether the district

court erred in permitting a co-defendant witness to invoke the Fifth Amendment

privilege after the co-defendant entered a guilty plea but before the co-defendant

was sentenced; and (2) whether the district court erred in using U.S.S.G. § 2F1.1

rather than U.S.S.G. § 2L2.1 to calculate Kuku’s sentence.1 We hold that the

district court properly sustained the witness’ invocation of the Fifth Amendment

privilege, but that the district court erred in using § 2F1.1 rather than § 2L2.1 to

calculate Kuku’s sentence.

I. BACKGROUND

Kuku worked as a service representative for the Social Security

Administration (SSA). Her duties included accepting social security applications,

checking the applications for the required documentation, inputting applicant

information into the SSA computer system, and processing changes to SSA records.

1
Kuku also raised the following issues: (1) whether the district court erred in admitting
testimony regarding the prior convictions of Kuku’s ex-boyfriend and ex-husband; (2) whether the
evidence was sufficient to support Kuku’s conviction for encouraging and inducing aliens to reside
in the United States; (3) whether the district court erred in assessing a two-point enhancement to
Kuku’s sentence after determining that Kuku held a position of trust at the Social Security
Administration; and (4) whether the district court erred in assessing a four-point aggravating role
enhancement to Kuku’s sentence. After carefully considering these issues, we affirm the district
court. See 11th Cir. R. 36-1.

2
SSA guidelines require that a social security application be accompanied by

documentation establishing the applicant’s age, citizenship, and lawful admission

to the United States. Applicants over age 18 are required to have a personal

interview.

Kuku used her position at the SSA to engage in a conspiracy in which social

security cards were unlawfully produced and sold to illegal immigrants. Pursuant

to the conspiracy, a number of individuals with close ties to the Indian and Pakistani

communities in the Atlanta area solicited illegal aliens from those communities to

purchase social security cards.2 At trial, illegal aliens testified that they purchased

the social security cards for various reasons, including to apply for federal benefits,

to attend school, and to obtain employment. Kuku’s role in the conspiracy was to

approve the applications filed on behalf of the solicited illegal aliens, whom she

never met. The applications were not accompanied by the required documentation.

Social security cards were mailed to the illegal aliens at various in-state addresses,

although it appears that some of the illegal aliens lived in other states. The

testimony at trial regarding the number of cards produced by the conspiracy

conflicted; between 800 and 1,300 cards were produced, and the illegal aliens were

2
The co-conspirators who solicited illegal aliens included Shanez Master, Sherali Master,
and Minaz Ali Moody, all of whom were named in the indictment.

3
charged prices ranging from less than $100 to $800, with most cards being sold for

prices between $300 and $500.

The three co-conspirators who solicited the illegal aliens each entered into

plea agreements with the Government. Kuku went to trial and the jury convicted

her of conspiring to defraud the United States, in violation of 18 U.S.C. § 371;

encouraging and inducing aliens to reside in the United States, in violation of 8

U.S.C. § 1324(a)(1)(A)(iv); making false statements on applications for social

security cards, in violation of 18 U.S.C. § 1001; and producing social security cards

without lawful authority, in violation of 18 U.S.C. § 1028(a)(1). The court

sentenced Kuku to 60 months’ imprisonment and 3 years’ supervised release, and

imposed a special assessment of $2,200 ($50 for each of the 44 counts on which she

was convicted).

II. MOODY’S INVOCATION OF THE FIFTH AMENDMENT

Kuku asserts the district court erred in permitting Minaz Ali Moody

(Moody), one of Kuku’s co-conspirators, to invoke his Fifth Amendment privilege

when Kuku attempted to call Moody to testify at trial. At the time of Kuku’s trial,

Moody had entered a guilty plea and agreed to testify as a prosecution witness, but

had not yet been sentenced. Kuku’s counsel sought to elicit from Moody that

Moody did not know Kuku in order to rebut testimony that Kuku was at the heart

4
of the conspiracy. Kuku contends that her Sixth Amendment compulsory process

and confrontation rights entitled her to compel Moody to testify.

The Government responds that Moody could properly invoke the Fifth

Amendment because information elicited from Moody could have adversely

affected his sentence. Furthermore, information elicited from Moody during the

Government’s cross-examination would have incriminated him in another crime

involving the distribution of drivers’ licenses to illegal aliens in exchange for

money. The district court agreed with the Government that Moody’s testimony

posed a sufficient threat of self-incrimination to trigger the Fifth Amendment

privilege.

The question of whether a defendant retains the Fifth Amendment privilege

after entering a guilty plea but before being sentenced is one of first impression

in this Circuit. The other circuits that have considered the issue have all held that

a defendant does retain the Fifth Amendment privilege until sentencing. See

United States v. De La Cruz, 996 F.2d 1307, 1312-13 (1st Cir. 1993) (defendant’s

right to compulsory process did not override witness’ Fifth Amendment privilege,

despite witness’s guilty plea, where testimony could incriminate witness prior to

sentencing or implicate witness in other crimes); United States v. Hernandez, 962

F.2d 1152, 1161 (5th Cir. 1992) (“impending sentencing may furnish grounds for

5
a legitimate fear of incurring additional criminal liability from testifying, in which

case the privilege should remain in effect”); United States v. Lugg, 892 F.2d 101,

103 (D.C. Cir. 1989) (“the convicted but unsentenced defendant retains a

legitimate protectable Fifth Amendment interest in not testifying as to

incriminating matters that could yet have an impact on his sentence”).

We agree and hold that a defendant retains the Fifth Amendment privilege

against self-incrimination prior to sentencing, despite having entered a guilty plea,

because of the possible impact that compelled testimony may have on the

defendant’s as yet undetermined sentence. In addition, the prospect of Moody

incriminating himself in a separate crime if compelled to testify permits him to

invoke the Fifth Amendment privilege. The district court did not err in sustaining

Moody’s invocation of the Fifth Amendment privilege.

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 III. THE DISTRICT COURT’S SENTENCING CALCULATION

Kuku contends that the district court erred in calculating her offense level

based on U.S.S.G. § 2F1.1,3 rather than on U.S.S.G. § 2L2.1,4 which specifically

applies to offenses involving counterfeit identification documents. We review the

district court’s factual findings for clear error and the district court’s application of

law de novo. United States v. Kirkland, 985 F.2d 535, 537 (11th Cir. 1993).

A. The District Court’s Use of U.S.S.G. § 2F1.1

In calculating Kuku’s sentence, the district court determined the applicable

sentencing guideline section for each offense of conviction by referring to the

Statutory Index to the United States Sentencing Guidelines (Appendix A). U.S.S.G.

§ 1B1.1(a). The Statutory Index matches each federal criminal statute to a

corresponding list of sentencing guidelines. Where multiple counts of conviction

have been adjudged, the calculation process is repeated for each count. U.S.S.G.

§ 1B1.1(d). The district court grouped Kuku’s offenses because they involved

substantially the same harm, U.S.S.G. § 3D1.2, and used a single guideline to

3
U.S.S.G. § 2F1.1 is entitled “Fraud and Deceit; Forgery; Offenses Involving Altered or
Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States.” This
guideline is applicable “to a wide variety of fraud cases.” United States v. Orton, 73 F.3d 331, 333
(11th Cir. 1996).
4
U.S.S.G. § 2L2.1 is entitled “Trafficking in a Document Relating to Naturalization,
Citizenship, or Legal Resident Status, or a United States Passport; False Statement in Respect to the
Citizenship or Immigration Status of Another; Fraudulent Marriage to Assist Alien to Evade
Immigration Law.”

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calculate the sentence. U.S.S.G. § 3D1.3(a). Pursuant to § 3D1.3(a), the district

court selected this single guideline by determining which of the offenses in the

group produces the “highest offense level of the counts in the Group.” The district

court determined that 18 U.S.C. § 1001 produced the highest offense level because

Appendix A directs that violations of 18 U.S.C. § 1001 be sentenced based on

§ 2F1.1, which produced an offense level that was higher than the offense level

produced by the guidelines for the other counts.5 In reaching this determination, the

district court overruled Kuku’s objection and did not examine her underlying

offense conduct to determine whether § 2F1.1 actually envisioned Kuku’s offense

conduct.

B. Offense Conduct Underlying the Conviction

There are two places in the sentencing guidelines that permit the district court

to examine the underlying offense conduct to determine whether the case is

atypical, thereby warranting application of another guideline: (1) the introductory

note to Appendix A; and (2) Comment 13 to § 2F1.1.6

5
Our review is limited to the two guideline sections argued before the district court.
6
The commentary is entitled to “controlling weight unless it is plainly erroneous or
inconsistent” with the guideline itself. See Stinson v. United States, 508 U.S. 36, 45, 113 S. Ct.
1913, 1919 (1993).

8
 The introductory language of Appendix A explains: “If, in an atypical case,

the guideline section indicated for the statute of conviction is inappropriate because

of the particular conduct involved, use the guideline section most applicable to the

nature of the offense conduct charged in the count of which the defendant was

convicted. (See §1B1.2.).” Section 1B1.2(a) of the Guidelines directs the court to

determine the applicable guideline based on “the offense of conviction (i.e., the

offense conduct charged . . . .).” U.S.S.G. § 1B1.2(a).7

This general focus on the offense conduct of the defendant is buttressed when

applying § 2F1.1 by Comment 13, which states:

Sometimes, offenses involving fraudulent statements are prosecuted
under 18 U.S.C. § 1001, or a similarly general statute, although the
offense is also covered by a more specific statute. . . . Where the
indictment or information setting forth the count of conviction . . .
establishes an offense more aptly covered by another guideline, apply
that guideline rather than §2F1.1.

U.S.S.G. § 2F1.1, comment. (n. 13); see also United States v. Castaneda-Gallardo,

951 F.2d 1451, 1452 (5th Cir. 1992) (“Comment 13 to § 2F1.1 explicitly grants the

district court the discretion to look for the most applicable guideline when the

Statutory Index refers the court to § 2F1.1.”). Thus, the final question before

7
Under this Circuit’s precedent, a district court should look at the specific offense conduct
underlying the conviction to ensure that the listed guideline is actually appropriate in each case.
United States v. Shriver, 967 F.2d 572, 574 (11th Cir. 1992) (citing United States v. Day, 943 F.2d
1306, 1307 (11th Cir. 1991)).

9
applying § 2F1.1 is whether another guideline section more aptly covers the offense

conduct on which the conviction was based.8 Accordingly, it must be determined

whether Kuku’s offense conduct that violated 18 U.S.C. § 1001 is “more aptly”

sentenced by a guideline other than § 2F1.1.9

C. Kuku’s Specific Offense Conduct is More Aptly Characterized by § 2L2.1

8
See United States v. Carrillo-Hernandez, 963 F.2d 1316, 1317-18 (9th Cir. 1992)
(determining which guideline was “most analogous” to the offense conduct underlying an 18
U.S.C. § 1001 conviction); United States v. Obiuwevbi, 962 F.2d 1236, 1242 (7th Cir. 1992)
(following Comment 13's instruction to determine which guideline more aptly covered the
offense conduct underlying an 18 U.S.C. § 1001 conviction). The Seventh Circuit has examined
Comment 13 to § 2F1.1 in United States v. Rubin, 999 F.2d 194 (7th Cir. 1993). In Rubin, the
defendant was convicted of criminal antitrust conspiracy for price fixing, and mail fraud for
concealing the conspiracy. The offense level for the antitrust count was determined based on
U.S.S.G. § 2R1.1 (“Antitrust Offenses”), and the offense level for the mail fraud count was
determined by § 2F1.1. Because § 2F1.1 produced the more serious offense level, the district
court used § 2F1.1 to calculate the sentence for the grouped counts. The Seventh Circuit
reversed the district court’s use of § 2F1.1 based on Comment 13, stating:
[T]he defendants’ mail fraud was directly related to the price-fixing scheme and
was not a separate course of conduct. . . . The nature of the conduct charged in
counts two and three dealt with price-fixing rather than with mail fraud.
Therefore, Application Note 13 requires that the defendants be sentenced under
the Antitrust Offense Guideline, section 2R1.1, and not under the Fraud or Deceit
Guideline, section 2F1.1, even though the Statutory Index lists section 2F1.1 as
the ordinarily applicable Guideline for offenses under [the mail fraud statute].
Id. at 199.
9
The Government points to United States v. Jackson, 117 F.3d 533 (11th Cir. 1997), for
the proposition that the defendant’s offense conduct is not the appropriate focus in selecting a
guideline. In Jackson, a police officer was convicted of theft but was sentenced using § 2H1.1,
the guideline governing civil rights violations, rather than § 2B1.1, the guideline for theft
offenses. This Circuit held that the district court erred because the jury conviction was for theft
and the indictment “did not charge a civil rights violation or give any indication that a civil
rights violation was implicated.” Id. at 536, 538. Kuku’s indictment is distinguishable because
the essence of her indictment was that she engaged in a conspiracy to traffic in unlawfully
produced social security cards.

10
 Kuku’s offense conduct is more appropriately sentenced under § 2L2.1 than

under § 2F1.1 for three reasons: (1) the descriptive language of § 2L2.1 more

specifically characterizes Kuku’s offense conduct than does § 2F1.1; (2) Comment

11 to § 2F1.1 suggests that Kuku’s offense conduct is more aptly covered by

§ 2L2.1; and (3) the loss-based method of sentence enhancement used by § 2F1.1

does not suit the nature of Kuku’s offense conduct.

First, the language of § 2L2.1 better describes Kuku’s offense conduct.

Each social security card produced by Kuku qualifies as “a Document Relating to

Naturalization, Citizenship, or Legal Resident Status” under § 2L2.1. Section

2L2.1 has in fact been applied in cases involving counterfeit social security cards.

See United States v. Marquez, 48 F.3d 243, 245 (7th Cir. 1995) (referring to

counterfeit alien registration cards and counterfeit social security cards as

“counterfeit identification documents”); see also United States v. Coello, 899 F.

Supp. 1240, 1243 (S.D.N.Y. 1995) (defining “identification document” as any

document which, when completed, is intended or commonly accepted to identify

individuals). Accordingly, the conduct described in § 2L2.1 more aptly

characterizes Kuku’s offense conduct than the general language of § 2F1.1.10

10
The Ninth Circuit dealt with a factually similar decision between applying § 2F1.1 or
§ 2L2.1 in United States v. Velez, 113 F.3d 1035 (9th Cir. 1997). In Velez, the defendant was
convicted of filing false applications and false statements with the INS. The district court used
§ 2F1.1 to calculate the defendant’s sentence. The Ninth Circuit looked to Comment 13 and

11
 Second, § 2F1.1 provides further assistance regarding the sentencing of

offenses involving counterfeit identification documents or access devices. In

determining whether to sentence violations of 18 U.S.C. §§ 1028 and 1029 pursuant

to § 2F1.1 or § 2L2.1, Comment 11 explains that § 2L2.1 more accurately describes

offense conduct similar to Kuku’s:

Offenses involving fraudulent identification documents and access
devices, in violation of 18 U.S.C. §§ 1028 and 1029, are also covered
by this guideline. Where the primary purpose of the offense involved
the unlawful production, transfer, possession, or use of identification
documents for the purpose of violating, or assisting another to violate,
the laws relating to naturalization, citizenship, or legal resident status,
apply §2L2.1 or §2L2.2, as appropriate, rather than §2F1.1.

U.S.S.G. § 2F1.1, comment. (n. 11). Although Comment 11 does not expressly

address 18 U.S.C. § 1001, its analysis of the offense conduct is equally applicable.

The primary purpose of Kuku’s offense appears to have been assisting illegal

aliens in violating the laws relating to naturalization, citizenship, and legal

resident status, as contemplated by Comment 11. Indeed, the fact that Comment

11 describes Kuku’s conduct but lists 18 U.S.C. §§ 1028 and 1029 rather than 18

U.S.C. § 1001 as the statute under which such conduct would be prosecuted

reversed the district court, concluding that “the Index is only an ‘interpretive aid’ and that courts
should apply the ‘most applicable guideline.’” Id. at 1037. The Ninth Circuit explained that the
district court should have applied § 2L2.1 because it more specifically addressed the defendant’s
offense conduct: “By its very title § 2L2.1 concerns false statements relating to naturalization
and immigration.” Id. at 1038.

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suggests that the guidelines do not contemplate that Kuku’s conduct would be

prosecuted as a violation of 18 U.S.C. § 1001. Given this framework, it is difficult

to imagine that Kuku’s conduct is most aptly characterized as an 18 U.S.C. § 1001

offense resulting in a § 2F1.1 sentence.11 A strict focus on the technicalities of the

sentencing process obscures the overarching directive to match the guideline to the

offense conduct which formed the basis of the underlying conviction.

Third, the method of sentence enhancement used by § 2F1.1 demonstrates

the difficulty of applying that section to Kuku’s offense conduct. The

enhancement structure in § 2F1.1 is based in part on the amount of loss suffered

by the victim as a result of the defendant’s fraud. U.S.S.G. § 2F1.1(b)(1). The

awkwardness in the present case arises because the loss suffered by the

government from Kuku’s conduct cannot be quantified. Comment 8 to § 2F1.1

suggests that the defendant’s gain is an alternative estimate of loss, but states that

11
The Government argues that Comment 11 of § 2F1.1 is literally inapplicable because
the primary purpose of Kuku’s production of the social security cards was to earn money, not
to assist “another to violate, the laws relating to naturalization, citizenship, or legal resident
status.” U.S.S.G. § 2F1.1, comment. (n. 11). This argument proves too much. The
Government’s interpretation of Comment 11 would make § 2L2.1 applicable only where the
offense conduct is engaged in for non-monetary reasons. The structure of § 2L2.1 belies this
contention. Section 2L2.1(b)(1) explicitly assumes that the offense conduct was engaged in for
profit, and then provides for a three-level reduction “[i]f the defendant committed the offense
other than for profit.” See also United States v. Torres, 81 F.3d 900, 902 (9th Cir. 1996)
(considering the issue of profit versus personal motive only to determine whether three-level
reduction was applicable). Furthermore, we are only consulting Comment 11 for guidance in
applying Comment 13.

13
this method “will ordinarily underestimate the loss.” U.S.S.G. § 2F1.1, comment.

(n. 8). It is not clear whether this alternative estimate of loss applies where the

defendant’s gain bears no relation to the loss suffered by the victim (the

government).12 This difficulty in determining loss demonstrates the problem with

applying § 2F1.1 to the present facts. See Velez, 113 F.3d at 1038 (noting this

difficulty). Section 2L2.1 is more appropriate in this context because subsection

(b)(2) increases the offense level based on the number of documents fraudulently

produced, rather than on the amount of loss to the victim.13

12
Compare United States v. Chatterji, 46 F.3d 1336, 1342 (4th Cir. 1995) (holding that
gain may not serve as a substitute for loss where there is no actual loss), United States v.
Andersen, 45 F.3d 217, 221 (7th Cir. 1994) (not substituting gain for loss when sentencing
defendant who sold cattle drugs without FDA approval because “there is no persuasive evidence
of monetary loss”), and United States v. Haddock, 12 F.3d 950, 960-61 (10th Cir. 1993) (“If
gain to the defendant does not correspond to any actual, intended, or probable loss, the
defendant’s gain is not a reasonable estimate of loss.”) with United States v. Adam, 70 F.3d
776, 781-82 (4th Cir. 1995) (using gain as a substitute for loss in determining the sentence for
a scheme in which physicians received kickbacks for referrals paid out of welfare funds,
emphasizing the special Congressional findings regarding welfare fraud) and United States v.
Cambra, 933 F.2d 752, 756 (9th Cir. 1991) (using the defendant’s gain to calculate
§ 2F1.1(b)(1) enhancement in case of fraud on the FDA involving the sale of counterfeit
steroids).
13
Kuku uses the awkwardness in determining loss to argue that § 2F1.1 should be used
to calculate her sentence without any enhancement for loss, which would produce a lower
offense level than is produced under § 2L2.1. Because we hold that § 2L2.1 is the appropriate
guideline, we do not reach the merits of Kuku’s argument; we merely note that Kuku’s ability
to make this argument demonstrates the awkwardness of applying § 2F1.1 to Kuku’s offense
conduct.

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 IV. CONCLUSION

The district court did not err in sustaining Moody’s invocation of the Fifth

Amendment privilege. The district court did, however, err in applying U.S.S.G.

§ 2F1.1 to calculate Kuku’s sentence because § 2L2.1 more aptly characterizes

Kuku’s offense conduct.

AFFIRMED in part, VACATED in part, and REMANDED for resentencing.

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