United States v. Singh

United States Court of Appeals
For the First Circuit

No. 99-2096

UNITED STATES OF AMERICA,

Appellee,

v.

PARAMJIT SINGH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Selya, Circuit Judge

Coffin and Cyr, Senior Circuit Judges.

Brian T. Tucker and Rath, Young and Pignatelli Professional
Association on brief for appellant.
Paul M. Gagnon, United States Attorney, and Jean B. Weld,
Assistant United States Attorney, on brief for the United
States.

July 28, 2000
 SELYA, Circuit Judge. A jury found defendant-appellant

Paramjit Singh guilty of (a) making a false statement to a

government agency (in an application for a Social Security

card), and (b) possessing a counterfeit immigration document.

See 18 U.S.C. §§ 1001(a)(2), 1546(a). Singh appeals. We

affirm.

I.

Background

We elucidate the relevant facts in the light most

favorable to the government, consistent with record support.

See United States v. Houlihan, 92 F.3d 1271, 1277 (1st Cir.

1996); United States v. Spinney, 65 F.3d 231, 233 (1st Cir.

1995).

On March 24, 1998, the appellant, a nineteen-year-old

citizen of India, entered the United States on a tourist visa.

This visa bore an Immigration and Naturalization Service (INS)

B2 classification and authorized the appellant to remain in the

United States for six months as a visitor for pleasure, but

forbade him to work. Shortly before landing in the United

States, the appellant received an INS arrival/departure form

(known as an I-94 form) that likewise reflected a B2

classification.

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 The appellant stayed for a time with relatives in

Delaware. On September 17, he went to the Wilmington branch

office of the Social Security Administration (accompanied by an

aunt), signed an application indicating that he was a "Legal

Alien Not Allowed to Work," and procured a Social Security card

that, consistent with his visa and his B2 classification,

prohibited him from gainful employment. He apparently used this

Social Security card to obtain driver's licenses.

The appellant overstayed his allotted six months and

remained illegally in the United States after his visa expired.

On March 11, 1999, he repaired to the Globe Agency in Brooklyn,

New York, paid that firm $300, and left his passport. Eight

days later, he returned. A representative of the agency handed

over his passport, a counterfeit I-94 form, and a completed

application for a Social Security card that linked the appellant

to an unfamiliar mailing address in Nashua, New Hampshire. The

I-94 form showed a bogus Q1 classification1 and a fictitious visa

expiration date of September 1999. To make matters worse, it

falsely described the appellant as a legal alien permitted to

work.

1
This classification is intended to describe an alien who
entered the United States as a participant in a cultural
exchange program.

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 The appellant then entered a van supplied by the Globe

Agency and was transported, along with several other aliens, to

a Social Security branch office in New Hampshire. Upon arrival,

he signed the pre-prepared application (which, among other

things, indicated that he was a "Legal Alien Allowed to Work"),

presented the phony documents to Amy Gauvreau (a clerk at the

local Social Security office), and sought the issuance of a

work-permitting Social Security card. The scheme backfired,

however, because Gauvreau became suspicious and called INS

agents to the scene. INS agent Kevin Clouthier arrested the

appellant after a brief interrogation in which the appellant

conversed in comprehensible English.

Although the appellant did not testify at trial, the

defense presented evidence designed to show that the appellant

lacked guilty knowledge. This evidence included testimony by

the appellant's aunt that she spoke in the Punjabi tongue when

communicating with him because of his poor command of English,

and that she had assisted him in obtaining his first Social

Security card because he lacked proficiency in English. In a

similar vein, the defense adduced testimony from a psychologist

to the effect that the appellant had a "borderline to low

average" ability to understand documents written in English.

Finally, the defense noted that the fake I-94 form had been

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tucked into the appellant's passport, and intimated that the

Globe Agency had inserted it there without his knowledge.

Asserting that the evidence as a whole failed to

establish guilty knowledge, the appellant moved for a judgment

of acquittal. See Fed. R. Crim. P. 29(a). The district court

denied the motion, and the jury returned guilty verdicts on both

counts. The district court subsequently imposed a six-month

home-confinement sentence, levied a $250 special assessment, and

placed the appellant on probation for two years. This appeal

followed.

II.

Discussion

The appellant advances two assignments of error.

First, he challenges the sufficiency of the evidence. Second,

he protests the district court's decision to instruct the jury

on willful blindness. We consider these points sequentially.

A.

Sufficiency of the Evidence

The appellant maintains that his motion for judgment

of acquittal should have been granted because the evidence

failed to establish his guilty knowledge. We review the denial

of a motion for judgment of acquittal de novo. See United

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States v. Staula, 80 F.3d 596, 604 (1st Cir. 1996). Where, as

here, such a motion is premised on a claim of evidentiary

insufficiency, it will necessarily fail if the proof, viewed in

the manner most congenial to the government's theory of the

case, allows a rational jury to find the defendant guilty beyond

a reasonable doubt. See id. Such a finding may, of course, be

predicated in whole or in part on circumstantial evidence. See

Spinney, 65 F.3d at 234.

We start with the appellant's argument as it pertains

to the counterfeit I-94 form and the consequent violation of

section 1546(a).2 While there is no direct evidence that the

appellant knew that the Globe Agency had supplied him with an

apocryphal document, the circumstances strongly suggest that he

went there for that very purpose. This inference is bolstered

by the appellant's colloquy with Agent Clouthier which, although

oriented more toward discovering the genesis of the ersatz form

2The statute of conviction provides in pertinent part:

Whoever knowingly . . . uses, attempts to use,
possesses, obtains, accepts or receives any [immigrant
or non-immigrant] visa, permit, border crossing card,
alien registration receipt card, or other document
prescribed by statute or regulation for entry into or
as evidence of authorized stay or employment in the
United States, knowing it to be forged, counterfeit,
altered, or falsely made [shall be punished as
provided].

18 U.S.C. § 1546(a).

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than the state of the appellant's knowledge, nonetheless

supports an inference that the fraudulent nature of the

documentation came as no surprise to the appellant.

We need not tarry. The jury had before it the

appellant's admission (to Clouthier) that he purchased the

counterfeit I-94 form and presented it in New Hampshire. The

receipt for it was found on the appellant's person. Moreover,

the jury had before it evidence of a furtive course of conduct

(e.g., the appellant's payment of a substantial fee and his

travel to a place with which he had no apparent connection to

apply for a card that was readily available elsewhere) and

evidence that the document flatly contradicted the limitations

contained in the appellant's visa. On this record, inferring

the appellant's guilty knowledge from the available

circumstantial evidence fell well within the scope of the jury's

authority to evaluate the proof and determine its impact. See,

e.g., Staula, 80 F.3d at 604; Spinney, 65 F.3d at 234; United

States v. Olbres, 61 F.3d 967, 971 (1st Cir. 1995).

The appellant's argument in respect to the "false

statement" conviction runs along much the same lines — and it

meets the same fate.3 He again emphasizes his lack of facility

3The statute of conviction provides in pertinent part:

[W]hoever, in any matter within the jurisdiction of

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with the English language and insists that the evidence failed

to establish his guilty knowledge. In his view, the evidence

suggests that he stumbled upon the Globe Agency and unwittingly

purchased bogus documents, unaware that they falsely portrayed

him as a legal alien allowed to work.

To the extent — if at all — that this is a plausible

argument, it certainly is not a compelling one. A rational jury

logically could conclude that the evidence, including testimony

that the appellant had communicated intelligently with Agent

Clouthier, demonstrated that he had a better grasp of English

than his attorney professed. On this record, we cannot say that

the jury was barred from concluding (as it apparently did) that

the appellant purposefully approached the Globe Agency and that

he knew enough to discern the obvious differences in respect to

his work status between his first Social Security application

and the one he submitted in New Hampshire. See United States v.

the executive, legislative, or judicial branch of the
Government of the United States, knowingly and
willfully—
. . . .

(2) makes any materially false, fictitious, or
fraudulent statement or representation . . .
. . . .

shall be [punished as provided].

18 U.S.C. § 1001(a)(2).

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O'Brien, 14 F.3d 703, 707 (1st Cir. 1994) (holding that a jury

may "credit particular testimony, while discounting other

testimony that arguably points in a different direction").

B.

Willful Blindness

We turn now to the appellant's second assignment of

error. The district court, over the appellant's timely

objection, gave a willful blindness instruction. The appellant

insists that no such instruction was warranted. We disagree.

A willful blindness instruction is justified when the

defendant claims to lack guilty knowledge, yet the evidence,

taken in the light most favorable to the government, suffices to

support an inference that he deliberately shut his eyes to the

true facts. See United States v. Gabriele, 63 F.3d 61, 66 (1st

Cir. 1995). Even then, however, the instruction, taken in

context, must avoid any suggestion that an inference of guilty

knowledge is obligatory rather than permissive. See id. In

this case, the appellant does not fault the language of the

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instruction.4 Hence, we concentrate our attention on the

substantive aspects of the test.

We begin with whether the record sufficiently reflects

a claim by the appellant that he lacked guilty knowledge. We

think that it does. Singh did not take the stand and, thus, did

not directly place in issue the absence of guilty knowledge.

However, that circumstance is not dispositive.

The transcript makes manifest (by counsel's opening

statement, his choice of witnesses, his cross-examination, his

motion for judgment of acquittal, and his summation) that the

appellant premised his defense largely on the government's

failure to prove guilty knowledge. The first prong of the test

4The district court stated:

In deciding whether the defendant acted knowingly,
you may infer that the defendant had knowledge of a
fact if you find that he deliberately closed his eyes
to a fact that otherwise would have been obvious to
him. In order to find knowledge, you must find that
two things have been established. First, that the
defendant was aware of a high probability that the
fact existed.
Second, that the defendant consciously and
deliberately avoided learning of that fact. That is
to say, the defendant willfully made himself blind to
that fact. It is entirely up to you to determine
whether he deliberately closed his eyes to the fact
and, if so, what inference, if any should be drawn.
However, it is important to bear in mind that mere
negligence or mistake in failing to learn the fact is
not sufficient. There must be a deliberate effort to
remain ignorant of the fact.

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for a willful blindness instruction does not depend on a showing

of an explicit denial of guilty knowledge out of the defendant's

own mouth; that requirement is satisfied so long as a practical

evaluation of the record reveals that the defense was pitched in

that direction. See United States v. Brandon, 17 F.3d 409, 452

n.73 (1st Cir. 1994); United States v. Lizotte, 856 F.2d 341,

343 (1st Cir. 1988). Here, the appellant's arguments sounded a

consistent refrain: that he lacked guilty knowledge. No more

was exigible.

The government also passes the second half of the test.

To be sure, the record contains some evidence which, viewed

favorably to the appellant, might suggest a lack of guilty

knowledge (e.g., the fact that the phony I-94 form was not

carried separately by him, but, instead, had been inserted in

his passport). But at this stage of the proceedings, the

evidence must be viewed from a prosecution-friendly vantage

point. See Spinney, 65 F.3d at 233.

By like token, the appellant's claim that the

government failed to show any discrete acts of purposeful

avoidance is true as far as it goes — but it does not go very

far. The government has no burden to prove willful blindness by

direct evidence; it is sufficient if the government adduces

evidence that warning signs existed sufficient to put a

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reasonably prudent person on inquiry notice (and, thus,

sufficient to permit a factfinder to infer conscious avoidance

of guilty knowledge). See United States v. Cunan, 152 F.3d 29,

39 (1st Cir. 1998).

In this instance, the jury reasonably could consider

the stark contrast between the mechanics of the appellant's

original procurement of a Social Security card and his later

venture as a red flag, including, for example, the Globe

Agency's request that he leave his passport and the van ride to

a remote locale (along with other aliens) to process an

ostensibly routine application. See United States v. Bilis, 170

F.3d 88, 93 (1st Cir. 1999); United States v. Camuti, 78 F.3d

738, 744 (1st Cir. 1996). The jury also could consider that the

appellant spent $300 for a new set of documents of a kind that

he originally had received without charge. Finally, the jury

could consider the timing of these events, for the appellant

knew (or so the jury could have found) that his visa had long

since expired.

To say more would be supererogatory. Even if the

appellant did not read (and thus did not know with certitude the

contents of) the papers given to him at the Globe Agency, he had

ample reason to suspect their false nature. Consequently, the

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trial court did not err in giving a willful blindness

instruction.

III.

Conclusion

We need go no further. After reviewing the briefs and

the record with care, we are fully persuaded that the lower

court did not go astray either in denying the appellant's motion

for judgment of acquittal or in charging the jury. We conclude,

therefore, that the appellant was fairly tried and lawfully

convicted.

Affirmed.

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