United States v. Moses

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