United States v. Carine Ep Mbendeke ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4471
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARINE KOJIA ALEAH EP MBENDEKE, a/k/a Carine Aleah Mbendeke,
Defendant - Appellant.
No. 17-4490
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IRENE MARIE MBONO, a/k/a Irene Marie Settles,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:16-cr-00272-LMB-1; 1:16-cr-
00272-LMB-2)
Submitted: June 25, 2018 Decided: September 19, 2018
Before KEENAN and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles Burnham, BURNHAM & GOROKHOV PLLC, Washington, D.C.; Melinda L.
VanLowe, LAW OFFICE OF MELINDA L. VANLOWE, Fairfax, Virginia, for
Appellants. Dana J. Boente, United States Attorney, Michael D. Minerva, Special
Assistant United States Attorney, Christopher Catizone, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Carine Kojia Aleah Ep Mbendeke and Irene Marie Mbono were indicted for their
participation in a conspiracy to obtain permanent resident status for Cameroonian
nationals by arranging fraudulent marriages with American citizens. Following a jury
trial, Mbendeke was convicted of conspiracy to commit marriage fraud and defraud the
United States, in violation of 18 U.S.C. § 371 (2012) (Count 1). Mbono, who elected to
be tried by the district court during the same trial, was also convicted of Count 1, as well
as making a materially false statement and representation, in violation of 18 U.S.C.
§ 1001(a)(2) (2012) (Count 2), and false swearing in an immigration matter, in violation
of 18 U.S.C. § 1546(a) (2012) (Count 3). Mbendeke was sentenced to a prison term of
one year and one day, and Mbono was sentenced to 30 days’ imprisonment. Both
Defendants timely appealed.
On appeal, Mbendeke challenges the district court’s marriage fraud jury
instruction and contends that the marriage fraud statute is unconstitutionally vague.
Mbono argues that Counts 2 and 3 were insufficiently charged, that the evidence adduced
at trial failed to support her conspiracy conviction, and that an immigration official
entrapped her to commit perjury. For the reasons that follow, we affirm.
We review de novo whether the district court’s jury instruction incorrectly stated
the law. United States v. Miltier, 882 F.3d 81, 89 (4th Cir. 2018). In assessing a district
court’s jury instructions, “we must determine whether, taken as a whole, the instruction
fairly states the controlling law.” United States v. Chikvashvili, 859 F.3d 285, 291 (4th
Cir. 2017) (internal quotation marks omitted). Here, the district court instructed the jury
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that a marriage fraud conviction requires proof that the defendant “had reason to know
that . . . her conduct was unlawful.” Mbendeke contends that marriage fraud requires
actual knowledge, not constructive knowledge, that she violated the law. The statute,
however, simply covers “[a]ny individual who knowingly enters into a marriage for the
purpose of evading any provision of the immigration laws.” 8 U.S.C. § 1325(c). Unless
otherwise provided, “the term ‘knowingly’ merely requires proof of knowledge of the
facts that constitute the offense,” rather than proof of knowledge of the law. Bryan v.
United States, 524 U.S. 184, 192-93 (1998). Thus, the plain language of the statute offers
no support to Mbendeke’s argument for a heightened mens rea requirement. Nor do we
find Mbendeke’s reliance on United States v. Chowdhury, 169 F.3d 402 (6th Cir. 1999),
persuasive. Although Chowdhury determined that, under § 1325(c), the Government
must show that the defendant knew her conduct was unlawful, it cited with approval a
jury instruction substantively identical to the one given here. Id. at 406-07. We thus
detect no error in the court’s instruction on the scienter element of marriage fraud.
Next, Mbendeke asserts that § 1325(c) is unconstitutionally vague. “We consider
whether a statute is vague as applied to the particular facts at issue, for a [defendant] who
engages in some conduct that is clearly proscribed cannot complain of the vagueness of
the law as applied to the conduct of others.” United States v. Jaensch, 665 F.3d 83, 89
(4th Cir. 2011) (brackets and internal quotation marks omitted). Here, because
Mbendeke “does not dispute that § 1325(c) clearly covers her own conduct, she may not
challenge the statute on vagueness grounds based on its application to others.” United
States v. Di Pietro, 615 F.3d 1369, 1373 (11th Cir. 2010).
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Turning to Mbono’s claims, “[w]e review the district court’s factual findings on a
motion to dismiss an indictment for clear error, but we review its legal conclusions de
novo.” United States v. Hosford, 843 F.3d 161, 163 (4th Cir. 2016) (internal quotation
marks omitted). To be sufficient, an indictment must “set forth all the elements necessary
to constitute the offense intended to be punished,” as well as “the essential facts
constituting the offense charged.” United States v. Perry, 757 F.3d 166, 171 (4th Cir.
2014) (brackets, emphasis, and internal quotation marks omitted).
Mbono assigns error to the district court’s denial of her motion to dismiss Counts
2 and 3, which she claimed were subject to dismissal because her false statements were
immaterial to the marriage fraud conspiracy. However, the Government was required
only to set forth the elements and facts supporting the charges, not to link them to the
conspiracy. A conviction under § 1001(a)(2) or § 1546(a) requires only that the false
statement be material to “agency action,” a requirement clearly met here. United States
v. Garcia-Ochoa, 607 F.3d 371, 375 (4th Cir. 2010). Because our review of the
indictment confirms that the Government adequately charged Counts 2 and 3, we find
Mbono’s argument lacking in merit.
We further reject Mbono’s challenge to the sufficiency of the evidence to support
her conspiracy conviction. We review the district court’s denial of Mbono’s Fed. R.
Crim. P. 29 motion for judgment of acquittal de novo, and “will sustain the jury’s verdict
if it is supported by substantial evidence.” United States v. Cowden, 882 F.3d 464, 474
(4th Cir. 2018). “In determining whether the evidence in the record is substantial, we
view the evidence in the light most favorable to the government and inquire whether
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there is evidence that a reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” Miltier, 882
F.3d at 86 (internal quotation marks omitted).
To prove the existence of a § 371 conspiracy, the Government must show “(1) an
unlawful agreement between two or more people to commit a crime; (2) that the
defendant knowingly and willingly participated in that conspiratorial endeavor; and (3)
an overt act committed in furtherance of the conspiracy.” United States v. Vinson, 852
F.3d 333, 352 (4th Cir. 2017) (internal quotation marks omitted). “Once the Government
proves a conspiracy, the evidence need only establish a slight connection between a
defendant and the conspiracy to support conviction.” United States v. Green, 599 F.3d
360, 367 (4th Cir. 2010).
The evidence at trial established that, after Mbendeke and her husband, Landry
Mbendeke (“Landry”), legally immigrated to the United States from Cameroon, the
Mbendekes devised a plan to recruit American citizens to marry members of Landry’s
family so that they too could lawfully reside in the United States. At the request of
Mbono’s brother, 1 Landry found an American, James Settles, who was willing to marry
Mbono in exchange for $5,000. Mbono traveled to the United States, where she and
Settles wed in April 2014. Several months later, in November 2014, Mbono submitted an
immigration form in which she falsely claimed, under penalty of perjury, that she lived at
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Mbono’s brother, Jean Jules Ngbwa Elle, was also indicted and tried with Mbono
and Mbendeke, but was acquitted by the jury of the sole count in which he was charged.
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Settles’ address. She continued to misrepresent her address during two interviews with
an immigration official in June and July 2015. During a follow-up interview in August
2015, Mbono admitted that she was never involved in a romantic relationship with
Settles, and that she married him for the purpose of obtaining permanent resident status
and better healthcare. Based on this evidence, we conclude that the Government adduced
sufficient proof to support Mbono’s conspiracy conviction.
Finally, Mbono claims that the immigration official who interviewed her
entrapped her to commit perjury. “Entrapment is an affirmative defense that places on
the defendant the initial burden of presenting some evidence that the government induced
[her] to commit the offense charged.” United States v. Akinseye, 802 F.2d 740, 743 (4th
Cir. 1986). Here, Mbono presented no testimony or evidence in support of her
entrapment defense. Moreover, although Mbono correctly contends that the immigration
official knew before conducting the interviews that Mbono did not live with Settles,
Mbono had already misrepresented her address in the immigration form submitted in
November 2014. Thus, Mbono cannot establish a lack of predisposition to engage in
perjury. See United States v. McLaurin, 764 F.3d 372, 379 (4th Cir. 2014).
Accordingly, we affirm the district court’s judgments. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
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