[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.
6
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.”
7
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.
12
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.
14
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.
15
United States v. KuKu
Combined Opinion