United States v. Tara Magee , 315 F. App'x 882 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 27, 2009
No. 08-12677 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00132-CR-ORL-22-GJK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TARA MAGEE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 27, 2009)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Tara Magee appeals her conviction on one count of marriage fraud, in
violation of 8 U.S.C. § 1325(c). On appeal, Magee argues the evidence was
insufficient to sustain her conviction because it did not support a finding that she
acted with knowledge that her conduct was unlawful. Magee also argues, for the
first time on appeal, her conviction should be overturned because she received
ineffective assistance of counsel at trial.
I.
Magee first contends the district court erred in denying her motion for
judgment of acquittal. Specifically, she asserts the evidence was insufficient to
sustain her conviction under § 1325(c) because the Government did not prove she
entered the marriage with knowledge that her conduct was unlawful.
“We review de novo the denial of a motion for acquittal and the sufficiency
of the evidence to sustain a conviction, viewing the evidence in the light most
favorable to the government and drawing all reasonable inferences and credibility
choices in favor of the jury’s verdict.” United States v. Tampas, 493 F.3d 1291,
1297–98 (11th Cir. 2007) (internal quotation marks omitted). “The jury is free to
choose among alternative reasonable interpretations of the evidence, and the
government’s proof need not exclude every reasonable hypothesis of innocence.”
Id. at 1298 (citation and internal quotation marks omitted). “We affirm if a
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reasonable juror could have concluded that the evidence established [Magee’s]
guilt beyond a reasonable doubt.” Id.Section 1325 of Title 8 of the U.S. Code provides, “Any individual who
knowingly enters into a marriage for the purpose of evading any provision of the
immigration laws shall be imprisoned for not more than 5 years, or fined not more
than $250,000, or both.” 8 U.S.C. § 1325(c).
This Circuit has not addressed whether the Government must prove a
defendant entered a marriage with knowledge that her conduct was unlawful to
sustain a conviction under § 1325(c). Two other circuits, however, have held the
Government must establish a defendant knew her conduct was unlawful to obtain a
conviction. See United States v. Islam, 418 F.3d 1125, 1128 (10th Cir. 2005) (“To
convict an alien of marriage fraud, the Government must prove: (1) the alien
knowingly entered into a marriage; (2) the marriage was entered into for the
purpose of evading a provision of the immigration laws; and (3) the alien knew or
had reason to know of the immigration laws. Under the third element, the
Government must demonstrate the alien acted with knowledge that his conduct was
unlawful.” (citation omitted)); United States v. Chowdhury, 169 F.3d 402, 407 (6th
Cir. 1999) (stating § 1325(c) required “the government prove that the defendant
acted with an evil-meaning mind, that is to say that he acted with knowledge that
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his conduct was unlawful” (internal quotation marks omitted)).
In this case, we need not decide whether the Government must prove a
defendant entered a marriage with knowledge that her conduct was unlawful
because under any construction of the statute, sufficient evidence supports Magee’s
conviction. First, Magee does not dispute she knowingly entered into a marriage
with Ivan Khemenets, an illegal alien. Second, a reasonable jury could infer
Magee knowingly entered the marriage with the purpose of evading immigration
laws. As to this element, Magee herself testified the purpose of the marriage was
so Khemenets could stay in and would not be removed from the United States. She
also testified she met Khemenets the day of the marriage, received $1,000 at the
wedding and was to receive $300 per month until he got his green card, never had
an intimate relationship with him and never lived with him, and never intended to
live with him as husband and wife. In addition, Magee admitted she was told she
would have to get to know Khemenets because there would eventually be an
immigration interview, and Khemenets testified he and Magee made plans to
deceive immigration officials at the interview.
Finally, as to whether Magee knew her conduct was unlawful, the evidence
showing Magee planned to deceive immigration officials in connection with the
immigration interview and was marrying a stranger in exchange for money could
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support a juror’s finding that she knew her conduct was unlawful. Furthermore,
Agent David Brown, when asked if Magee admitted knowing what she did was
wrong, stated, “Yes, she did.” This evidence was sufficient to enable a reasonable
juror to conclude beyond a reasonable doubt that Magee knew her conduct was
unlawful. See Tampas, 493 F.3d at 1298; see also Islam, 418 F.3d at 1128 (“The
Government may prove knowledge by reference to facts and circumstances giving
rise to an inference that the defendant knew he was violating the law.”). Magee’s
testimony that she thought the marriage was legal does not alter this analysis,
because the jury was free to disbelieve her, and such testimony could support the
jury’s contrary conclusion. United States v. Williams, 390 F.3d 1319, 1326 (11th
Cir. 2004) (“Where some corroborative evidence of guilt exists for the charged
offense . . . and the defendant takes the stand in her own defense, the Defendant’s
testimony, denying guilt, may establish, by itself, elements of the offense. This
rule applies with special force where the elements to be proved for a conviction
include highly subjective elements: for example, the defendant’s intent or
knowledge.” (citation and internal quotation marks omitted)).
Because a reasonable juror could conclude the evidence established Magee
was guilty of marriage fraud beyond a reasonable doubt, the evidence is sufficient
to sustain her conviction under § 1325(c) and the district court did not err in
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denying her motion for a judgment of acquittal.
II.
Magee next argues her conviction should be overturned because she
received ineffective assistance of counsel.
“Except in the rare instance when the record is sufficiently developed, we
will not address claims for ineffective assistance of counsel on direct appeal.”
United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005). “Instead, an
ineffective assistance of counsel claim is properly raised in a collateral attack on
the conviction under 28 U.S.C. § 2255.” United States v. Merrill, 513 F.3d 1293,
1308 (11th Cir. 2008) (internal quotation marks and alteration omitted); see also
Massaro v. United States, 123 S. Ct. 1690, 1694 (2003) (“[I]n most cases a motion
brought under § 2255 is preferable to direct appeal for deciding claims of
ineffective assistance.”).
We do not address Magee’s claim that her trial counsel rendered
constitutionally ineffective assistance because the record is not sufficiently
developed to enable us to engage in the inquiry on direct appeal. Accordingly, we
affirm the district court’s denial of Magee’s motion for a judgment of acquittal.
AFFIRMED.
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