UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-10672
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY OLUSANYA MOSES,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Texas
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August 21, 1996
Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
Anthony Olusanya Moses ("Moses") appeals his convictions for
obtaining naturalization by fraud and making a false statement on
an INS form. Moses argues that the evidence was insufficient to
support either conviction and the district court erred in ordering
a revocation of the approval of his application for
naturalization.1 We affirm in part and vacate and remand in part.
1
Moses also argues that the district court erred by refusing to
submit to the jury the issue of the materiality of the false
BACKGROUND
Moses, a Nigerian native, entered the United States sometime
before 1985, married Janice Moses in 1985, and had two children.
In 1987, while Janice was pregnant with their second child, the
couple separated and Moses moved from their home in Shreveport,
Louisiana to Texas. The children visited Moses on several
occasions, and Janice apparently stayed in Moses's home at least
once when she brought the children to Texas for a visit.
At no time after their separation in 1987 did Moses and Janice
ever live together. Although the couple did not legally separate,
Moses established a residence in the Dallas area with Dianne
Anderson, with whom he had a child. Janice did not attempt to
reconcile with Moses, and testified at trial that she waited until
1993 to divorce him because she could not afford the cost of
instituting the divorce proceedings. She further testified that
she considered the marriage over in 1987, at the time she and Moses
originally separated.
On May 20, 1992, Moses filed a Form N-400, "Application to
File Petition for Naturalization," in which he represented that he
was living with Janice and their two children in Grand Prairie,
Texas. Moses did not disclose that he was living with Anderson or
statement alleged in Count IV of the indictment. The Government
concedes that the failure to submit materiality to the jury was
constitutional error. See United States v. Gaudin, U.S. , 115
S. Ct. 2310, 2320, 132 L. Ed.2d 444 (1995).
2
that he had fathered a child by her. During his interview with INS
examiner Leonor Aguilar, Moses stated while under oath that Janice
was a homemaker and gave Aguilar a Dallas-area phone number so that
Aguilar could contact her. On August 17, 1992, Moses filed a Form
N-445, "Notice of Final Naturalization Hearing," in which he
represented that he had not separated from Janice since he filed
the N-400 form in May 1992. Moses became a naturalized citizen on
August 28, 1992.
Moses was subsequently indicted for obtaining naturalization
he was not entitled to, 18 U.S.C. § 1425(b) (Count III), and making
a false statement on an INS form, 18 U.S.C. § 1001 (Count IV).2 He
was convicted on both counts and sentenced to seven months on each
count, to be served concurrently. The district court then revoked
Moses's naturalization and cancelled his citizenship. See 8 U.S.C.
§ 1451(e), (f). Moses timely appealed.
DISCUSSION
I. Conviction under Count III
Moses initially asserts that the evidence is insufficient to
support his conviction on Count III, which alleged that Moses
applied for and obtained naturalization and citizenship to which he
was not entitled in violation of 18 U.S.C. § 1425(b). The standard
2
Counts I and II of the indictment charged Moses with making
false statements on HUD mortgage applications. These counts were
dismissed on the Government's motion before trial.
3
for reviewing a conviction for sufficiency involves determining
whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.2d 560
(1979). "The evidence adduced at trial, whether it be direct,
circumstantial or both, together with all inferences reasonably
drawn from it, is viewed in the light most favorable to the
verdict." United States v. Menesses, 962 F.2d 420, 426 (5th Cir.
1992). The evidence need not exclude every reasonable hypothesis
of innocence or be wholly inconsistent with every conclusion except
guilt, and the jury is free to choose among reasonable
constructions of the evidence. See United States v. Bermea, 30
F.3d 1539, 1551 (5th Cir. 1994), cert. denied, U.S. , 115 S. Ct.
1113, 130 L. Ed.2d 1077 (1995), and U.S. , 115 S. Ct. 1825, 131
L. Ed.2d 746 (1995).
Moses applied under a provision that permits an individual
married to a United States citizen to apply for citizenship within
three years of receiving resident status:
Any person whose spouse is a citizen of the United States
may be naturalized . . . if such person . . . during the
three years immediately preceding the date of filing his
application has been living in marital union with the
citizen spouse . . . .
8 U.S.C. § 1430(a); see 8 C.F.R. § 319.1(b)(1) (defining "living
in marital union").
Section 1425(b) criminalizes conduct whereby an individual
knowingly applies for or obtains naturalization or citizenship to
4
which he or she is "not entitled." 18 U.S.C. § 1425(b). Although
no court has addressed the requirements of section 1425(b), a
review of the statute reveals three elements that must be proved
beyond a reasonable doubt to convict an individual: (1) the
defendant issued, procured, obtained, applied for, or otherwise
attempted to procure naturalization or citizenship; (2) the
defendant is not entitled naturalization or citizenship; and (3)
the defendant knows that he or she is not entitled to
naturalization or citizenship. Id. There is no dispute that Moses
applied for and procured naturalization and citizenship. Thus, our
task is to determine whether the evidence sufficiently supports the
other two elements.
As to the second factor, the Government had to prove that
Moses was not entitled to citizenship. Id. Moses initially
asserts that the Government failed to prove that he made false
representations on his application as alleged in the indictment.
Moses concedes that a jury could find that he falsely stated on the
application that Janice Moses was living with him in Texas, when in
actuality she lived in Shreveport, Louisiana. He argues, however,
that there is no evidence that he made the representations on his
application that were alleged in the indictment:
[T]he defendant did falsely represent . . . that he had
resided continuously in the United States in marital
union with his spouse, Janice Moses, for at least three
years immediately preceding the date of the Application,
when in truth and in fact he did not reside with his
spouse on that date and had not continuously resided with
his spouse in marital union since December 1987.
5
We reject Moses's contention that the evidence is insufficient
to show that he falsely represented on his application that he
lived in marital union with his wife. Congress did not define the
term "living in marital union" in 8 U.S.C. § 1430. The INS has
defined the term as "[a]n applicant lives in marital union with a
citizen spouse if the applicant actually resides with his or her
current spouse." 8 C.F.R. § 319.1(b)(1). The INS thus envisions
that a couple actually reside together in order for an applicant to
take advantage of the "citizen spouse" provision for citizenship.
Id.; see 8 U.S.C. § 1430(a). Given that the INS's interpretation
of "living in marital union" is based on a permissible construction
of the statute, it is entitled to great deference by this Court.
See Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 844-45, 104 S. Ct. 2778, 2782-83, 81 L. Ed.2d
694 (1984) (noting that "considerable weight should be accorded to
an executive department's construction of a statutory scheme it is
entrusted to administer").
The only other Circuit3 that specifically has addressed the
issue of the correct interpretation of "living in marital union"
has similarly concluded that the term requires that the applicant
"actually reside[] with his current spouse for three years prior to
the filing of the petition." United States v. Maduno, 40 F.3d
3
The Second Circuit has suggested in dictum that "living in
marital union" requires only "that a legally valid marriage remain
in existence." In re Lee, 480 F.2d 673, 677 & n.6 (2d Cir. 1973).
6
1212, 1216-17 (11th Cir. 1994), cert. denied, U.S. , 116 S. Ct.
123, 133 L. Ed.2d 72 (1995); see In re Bashan, 530 F. Supp. 115,
120 (S.D.N.Y. 1982) (concluding that "living in marital union"
requires the applicant to actually reside with his or her citizen
spouse); In re Kostas, 169 F. Supp. 77, 78 (D. Del. 1958) (noting
that although short periods of separation do not prevent a finding
of "living in marital union," the statute does require that an
applicant "live[] in close association with a citizen spouse").
But see In re Olan, 257 F. Supp. 884, 890 (S.D. Cal. 1966) (holding
that the term "living in marital union" means living in the status
of a valid marriage).
We agree with the INS and the Eleventh Circuit that "living in
marital union" should be construed as a requirement that the
applicant actually reside with the citizen spouse in order to
obtain naturalization under section 1430. See 8 C.F.R. §
319.1(b)(1); Maduno, 40 F.3d at 1217. The statute requires a
marital union, not simply a marital state. It is clear that
"living in marital union" indicates that the couple live together
in a marital state. Although the application did not specifically
ask whether Moses was living in marital union or living together
with his citizen spouse, it did ask if Moses was married, the date
of the marriage, and the present address of his citizen spouse.
Clearly, the INS used these questions to ascertain whether Moses
was living in marital union with his citizen spouse. On the
application, Moses declared that he married Janice Moses in 1985
7
and was living with her and their children in Grand Prairie, Texas
at the time he filed the application. Thus, by listing Janice's
address to be the same as his and by informing the INS examiner
that Janice was an unemployed homemaker with a Dallas-area phone
number, Moses was implicitly contending that he met the
requirements of 8 U.S.C. § 1430(a). Because the evidence at trial
indicated that Moses and Janice Moses had not lived together since
1987 and Moses was living with another woman with whom he had a
child, the jury could infer that Moses falsely represented that he
had been living in marital union with Janice when he stated on his
application that she lived at the same address as he did in Grand
Prairie.4
The more difficult issue in this case involves whether the
Government presented sufficient evidence that Moses was not
entitled to citizenship based on the fact that he and Janice did
not reside together. Moses argues that even if he had truthfully
answered the questions regarding the whereabouts of Janice Moses
and, thus, revealed to the INS that he was separated, such an
admission would not necessarily mean that he was not entitled to
citizenship. Although the INS regulations interpret "living in
4
As Moses correctly points out, the application does not ask
whether the applicant is separated, but merely inquires whether he
or she is married, widowed, divorced, or single. Although we find
that the evidence sufficiently supports a jury determination that
Moses falsely represented that he was living in marital union, we
note that the INS could avoid this type of issue from arising again
simply by including in its marital status question a block for
"separated."
8
marital union" as residing with the citizen spouse, they do
recognize exceptions to this general rule:
Informal separation. Any informal separation that
suggests the possibility of marital disunity will be
evaluated on a case-by-case basis to determine whether it
is sufficient enough to signify the dissolution of the
marital union.
8 C.F.R. § 319.1(b)(2)(ii)(B). Moses contends that because an
informal separation does not automatically preclude citizenship,
and because the INS did not make an individualized determination
that his separation from Janice Moses signified the dissolution of
the marriage, the Government has failed to prove that Moses was not
entitled to citizenship.5 Moses relies on the testimony of Kim
Ogden, an INS assistant director for examinations, that an informal
separation would not necessarily preclude an applicant from
obtaining citizenship. Ogden testified as an expert witness that
a separation "would raise a question that we'd have to look into"
to establish "whether there was a legal separation, which would
raise the bar under that section; if it was an informal separation,
what was the reason for the separation, things along those lines,
in an effort to determine that the marriage was bona fide."
Ogden further indicated, however, that marital union means
more than a legal marital status and requires that
[a] person holds himself out to the communitySQthe couple
5
Of course, Moses ignores the fact that the INS was prevented
from making an individualized determination because of his
misrepresentation on the form that he lived with his citizen
spouse.
9
hold themselves out to the community as man and wife.
They can demonstrate that they, you know, commingle
assets, joint bank accounts, beneficiaries on life
insurance, they have children together, that they're
generally known in the community that they live in as man
and wife.
Finally, Ogden testified that it was important that the INS know
the exact circumstances of where the applicant and his citizen
spouse reside so that it can make further inquiries if the couple
is not living together.
Leonor Aguilar, the INS examiner who handled Moses's
application, testified that she routinely asked applicants applying
under section 319 if they were currently living with the citizen
spouse. Aguilar also stated that had Moses told her that he did
not live with his citizen spouse, she would have informed him that
he did not qualify for naturalization under section 319.
Although the regulations do make an exception for informal
separations, the exception does not cover situations where the
separation signifies the dissolution of the marital union. See 8
C.F.R. § 319.1(b)(2)(ii)(B). The evidence indicated the existence
of marital disunity that was sufficient to signify the dissolution
of the marital union. See id. When Moses applied for
naturalization in 1992, he had not lived with Janice Moses since
1987. The evidence established that Janice Moses had no intention
of reconciling with Moses, and considered the marriage over at the
time the couple separated. Janice Moses testified that she delayed
divorcing Moses only because she could not afford the cost of
10
instituting divorce proceedings. Janice had to file a petition to
enforce payment of child support by Moses. After the couple
separated, Moses established a residence in Texas with Dianne
Anderson, and had a daughter with her. Moses and Anderson signed
apartment leases together and maintained a joint banking account.
The evidence also showed that Moses executed a HUD mortgage
application in 1990, where he indicated that he was "unmarried."
The warranty deed for that property listed Moses as a "single
person."
Furthermore, the district court's instruction, which Moses
does not complain of on appeal, allowed the jury to assess whether
Moses and his wife were living in marital union at the time he
filed his application:
The factors which you may consider in deciding whether
the defendant and his citizen spouse lived in "marital
union," are the following:
1) whether there were prolonged and/or frequent absences
by either spouse;
2) whether the defendant continued to support his citizen
spouse and their children;
3) whether any separation of the defendant and his
citizen spouse occurred, its duration, and whether the
parties intended to separate permanently; and
4) whether the defendant lived in marital union with
others while separated from his citizen spouse, or
expressed an intention to marry someone else.
Based on the evidence outlined above and the jury instruction,
a jury could clearly and unmistakably infer that the INS would not
have approved Moses's application if he had been truthful about his
marital situation. Ogden's testimony about the types of
11
information that the INS looks for in determining whether a marital
union exists, his opinion that the INS must investigate all
separations to determine whether the marriage is bona fide, and
Aguilar's testimony that she would have concluded that Moses was
not qualified if she had been informed of his separation, in
conjunction with evidence presented concerning the reality of
Moses's marital relationship with Janice, is sufficient to support
the jury's determination that Moses applied for and obtained
citizenship to which he was not entitled.
The Government also must prove that at the time Moses filed
his "Application to File Petition for Naturalization," he knew he
was not entitled to naturalization and citizenship. See 18 U.S.C.
§ 1425(b). The jury was presented with evidence that applicants
generally know the requirements for citizenship and that such
information is widely available. Moses falsely stated on his
application that Janice lived with him in Texas and gave a Dallas-
area phone number where she could be reached. The jury could infer
from Moses's misrepresentation that he knew that the true status of
his marital relationship would render him not entitled to
citizenship under the "citizen spouse" provision, 8 U.S.C. §
1430(a). Thus, the third factor is satisfied. See 18 U.S.C. §
1425(b).
Because the Government presented sufficient evidence that
Moses falsely represented that he was living in marital union in
order to obtain citizenship to which he was not entitled, we affirm
12
the conviction under Count III.
II. Revocation of Naturalization and Citizenship
Moses contends that the district court erred in revoking
approval of his application for naturalization and canceling his
certificate of citizenship. Revocation is appropriate when a
person is convicted under 18 U.S.C. § 1425:
When a person shall be convicted under section 1425 of
Title 18 of knowingly procuring naturalization in
violation of law, the court in which such conviction is
had shall thereupon revoke, set aside, and declare void
the final order admitting such person to citizenship, and
shall declare the certificate of naturalization of such
person to be canceled. Jurisdiction is conferred on the
courts having jurisdiction of the trial of such offense
to make such adjudication.
8 U.S.C. 1451(e). The provision is mandatorySQthe district court
shall revoke the citizenship if the individual is convicted under
section 1425. Id. Inasmuch as Moses was convicted in Count III of
a violation of 18 U.S.C. § 1425(b), the district court did not err
in revoking the application for naturalization and the final order
admitting Moses to citizenship.
III. Conviction under Count IV
Moses asserts that his conviction under Count IV must be
reversed based on the insufficiency of the evidence and the
district court's failure to submit the issue of materiality to the
jury. Count IV alleged that Moses, in violation of 18 U.S.C. §
13
1001, intentionally made a material false statement to the INS on
Form N-445 "by representing that he had not separated from his
wife, when in truth and in fact, as the defendant well knew, he had
separated from his wife Janice Moses in or about June 1987."
Section 1001 provides:
Whoever . . . knowingly and willfully falsifies, conceals
or covers up by any trick, scheme, or device a material
fact, or makes any false, fictitious or fraudulent
statements or representations . . . shall be fined under
this title or imprisoned not more than five years, or
both.
18 U.S.C. 1001.
The Government concedes that the failure to submit the
question of "materiality" to the jury6 violated the Constitution
and necessitates a reversal on Count IV. United States v. Gaudin,
U.S. , 115 S. Ct. 2310, 2320, 132 L. Ed.2d 444 (1995). T h e
Government asserts, however, that a remand to the district court is
unnecessary because Moses was sentenced to serve seven months
concurrently for his conviction on Counts III and IV, and "the
government's confession of error on Count IV would neither prolong
nor shorten the sentence to be served by appellant." The
Government further asserts that Moses has already served the time,
and the only issue that remains involves the $50.00 mandatory
assessment.
The Government apparently has no intention of retrying Moses
6
Moses objected at trial to the district court's refusal to
permit the jury to determine the materiality of the false
statement.
14
on Count IV. Nevertheless, Moses has urged this Court to perform
a sufficiency review. In cases where the reversal permits the
Government to retry the defendant, we must reach a sufficiency of
the evidence argument because the Government may not retry the
defendant if the evidence at trial was insufficient. See United
States v. Meneses-Davila, 580 F.2d 888, 896 (5th Cir. 1978).
Moses was charged with making a false representation on August
17, 1992 in his INS Form N-445 application. See United States v.
Shah, 44 F.3d 285, 289 (5th Cir. 1995) (outlining the requisite
elements the Government must prove for a conviction under section
1001). Although the indictment alleged that Moses misrepresented
that he had not separated from his wife when in fact he had
separated from her in 1987, the question forming the basis of the
indictment asked only if Moses had separated from his wife after
the date that he filed his petition for naturalization: "After the
date you filed your petition: 1. Have you married, or been
widowed, separated, or divorced?" Moses responded "no." Moses
argues that this was not a false statement because at the time he
filed his original petition on May 20, 1992 he was married to
Janice Moses, but living apart from her. From the filing of this
petition to the date Moses filed the Form N-445, there was no
change in his marital statusSQhe was separated from his wife before
he filed the original petition, and he remained separated from her
between the filing of the petition and the filing of his N-445
15
form. Thus, Moses did not make a false statement when he responded
that he had not separated from his wife after the filing of the
original petition.
We do not condone, but rather condemn, Moses's lack of candor
with the INS on the various documents he filed in an effort to
obtain naturalization. We cannot uphold a conviction, however,
where the alleged statement forming the basis of a violation of
section 1001 is true on its face. Other circuits have reached a
similar conclusion:
[A] prosecution for a false statement under § 1001 or
under the perjury statutes cannot be based on an
ambiguous question where the response may be literally
and factually correct. . . . An indictment premised on
a statement which on its face is not false cannot
survive.
United States v. Vesaas, 586 F.2d 101, 104 (8th Cir. 1978); United
States v. Gahagan, 881 F.2d 1380, 1383 (6th Cir. 1989). Because
Moses's response was not false on its face, the evidence was
insufficient to support the conviction on Count IV.
CONCLUSION
Because the evidence sufficiently supports Moses's conviction
on Count III, we affirm the conviction and the district court's
order revoking Moses's naturalization and citizenship. The
conviction on Count IV must be reversed both because the district
court failed to present the issue of materiality to the jury and
because the evidence was insufficient to support Moses's
16
conviction. We therefore vacate the conviction and sentence on
Count IV and remand the case to the district court with
instructions that an order of acquittal be entered as to Count IV.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
17