United States v. Fatih Sonmez , 777 F.3d 684 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4577
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FATIH SONMEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:12-cr-00669-RDB-1)
Argued: December 11, 2014 Decided: February 2, 2015
Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Niemeyer and Judge Shedd joined.
ARGUED: Hassan Minhaj Ahmad, HMA LAW FIRM, PLLC, Herndon,
Virginia, for Appellant. Paul Michael Cunningham, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal of a conviction for marriage fraud, we
consider whether the district court abused its discretion in
instructing the jury on the elements of the crime under 8 U.S.C.
§ 1325(c), which prohibits entry into a marriage “for the
purpose of evading any provision of the immigration laws.”
Fatih Sonmez was convicted by a jury for violating the marriage
fraud statute and, on appeal, contends that the district court
should have instructed the jury that the government was required
to prove as elements of the offense that: (1) the sole reason he
entered into the marriage was to obtain an immigration benefit;
and (2) he had no intent to establish a life with his spouse.
Upon our review, we conclude that the district court did
not abuse its discretion when it rejected Sonmez’s proposed jury
instructions and charged the jury by tracking the actual
language of Section 1325(c). Therefore, we affirm the district
court’s judgment.
I.
Sonmez is a Turkish national who entered the United States
legally in November 2000 on a tourist visa, which allowed him to
stay in this country until May 2001. However, Sonmez remained
in the United States beyond this authorized period.
In November 2008, Sonmez married Tina Eckloff, a United
2
States citizen. With Eckloff’s assistance, Sonmez filed an
application for immigration benefits with the Baltimore,
Maryland office of the United States Citizenship and Immigration
Services (USCIS), seeking to obtain a “green card” granting him
permanent residency as a result of his marriage to a United
States citizen. 1 In June 2010, USCIS issued Sonmez a Notice of
Intent to Deny his application, on the basis that the agency
suspected that the marriage was entered into for the purpose of
evading the immigration laws.
Around the time that the USCIS issued the above notice,
Homeland Security Investigations (HSI), a division of the United
States Department of Homeland Security, was conducting an
investigation into an alleged scheme concerning United States
citizens marrying persons from the Middle East for the purpose
1
Under the Immigration and Nationality Act, an alien who
marries a United States citizen may petition for permanent
residency. See 8 U.S.C. §§ 1151(a), 1151(b)(2)(A)(i), 1154(a),
1186a; United States v. Islam, 418 F.3d 1125, 1128 (10th Cir.
2005) (discussing statutory scheme allowing an alien to obtain
permanent residency status). If the alien is granted lawful
permanent resident status, the government issues the alien a
Permanent Resident Card, commonly called a “green card.” See
Lendo v. Gonzales, 493 F.3d 439, 442 (4th Cir. 2007); United
States v. Ryan-Webster, 353 F.3d 353, 355 (4th Cir. 2003). To
curtail fraudulent marriages entered into by aliens to obtain
permanent residency status, Congress enacted the Immigration
Marriage Fraud Amendments of 1986, which, among other things,
contains the criminal prohibition concerning fraudulent
marriages that is at issue in this appeal. See Pub. L. 99-639,
§ 2(d), 100 Stat. 3537 (1986); H.R. Rep. No. 99-906, at 1, 5-6
(1986).
3
of favorably changing their immigration status. The HSI
investigation led to Tina Albrecht who admitted that, in
exchange for financial compensation, she had married a Turkish
national to aid him in obtaining a green card. Albrecht
cooperated with the HSI investigation and identified other
persons engaged in similar conduct, including her friend Eckloff
whom Albrecht had introduced to Sonmez.
The HSI investigation culminated in an indictment alleging
that Sonmez and Eckloff committed marriage fraud in violation of
8 U.S.C. § 1325(c). 2 Although Eckloff initially denied having
married Sonmez for fraudulent purposes, she eventually admitted
that she had married him in exchange for monetary compensation
to enable him to obtain a green card. Eckloff later entered a
guilty plea to the charge.
Under her plea agreement with the government, Eckloff
testified at Sonmez’s trial. According to Eckloff, Albrecht
proposed an arrangement whereby Eckloff would marry Sonmez, who
needed a green card, in exchange for Eckloff receiving an agreed
amount of money. Albrecht introduced Eckloff to Sonmez at a
restaurant, and the pair were married around two weeks later.
Eckloff testified that she married Sonmez because she
“needed financial help with a lawyer.” Eckloff stated that she
2
By the time of the indictment, Sonmez and Eckloff had
obtained a divorce.
4
received about $2,000 for entering into the marriage and for
helping Sonmez in his efforts to obtain a green card. She
explained that she signed documents for submission to USCIS for
that purpose, and that the couple moved into the same residence
after their USCIS interview “in case [government agents] came
looking.” Eckloff also testified that she did not have a sexual
relationship with Sonmez, and that at the time of the marriage
she had no romantic feelings for Sonmez because she “didn’t know
him.”
Sonmez testified in his defense and presented a vastly
different story concerning the nature of his relationship with
Eckloff. In contrast to Eckloff’s testimony that they were
married less than two weeks after meeting, Sonmez stated that he
and Eckloff began dating in April 2008, more than six months
before their marriage in November 2008. Sonmez indicated that
he saw Eckloff at least twice per week during the spring and
summer of 2008. According to Sonmez, he and Eckloff began a
sexual relationship, ultimately lived together during this
period, and frequently discussed getting married. Sonmez
further stated that after getting married, he and Eckloff
attempted to have a child together, and that the marriage was
“real” for him. He denied paying Eckloff any money to enter
into the marriage.
At the close of trial, the parties disputed the content of
5
certain proposed jury instructions. As relevant to this appeal,
Sonmez proposed three instructions addressing the elements
required for a conviction under Section 1325(c). Sonmez’s first
proposed instruction stated that the government was required to
prove four elements:
First, that [the] defendant knowingly entered into a
marriage with a US citizen,
Second, that the only reason the marriage was entered
into was to obtain an immigration benefit,
Third, that the defendant and his US citizen spouse
had no intent to establish a life together[,] [and]
Fourth, that [the] defendant knew the said purpose for
the marriage and knew or had reason to know that his
conduct was unlawful.
(Emphasis added.) Sonmez also sought an instruction expounding
on the second element of his proposed test, to have the court
instruct the jury that “[i]f you find there was any reason the
defendant entered into the marriage besides obtaining an
immigration benefit, you must find the defendant not guilty.”
Similarly, Sonmez proposed an additional instruction explaining
the third element of his proposed test, to have the court
instruct the jury that “[i]f you find that defendant and his US
citizen spouse did intend to establish a life together, you must
find the defendant not guilty.”
The district court rejected Sonmez’s proposed instructions
and charged the jury on the elements of the offense as follows:
First, that the defendant acted knowingly[,] [t]hat
6
the defendant . . . knowingly entered into a marriage
with a United States citizen.
Second, that the marriage was entered into for the
purpose of evading a provision of the United States
immigration laws.
And third, that the defendant knew of said purpose of
the marriage[,] [a]nd had reason to know that his
conduct was unlawful.
(Emphasis added.) The district court allowed Sonmez to argue to
the jury that he intended to establish a life with Eckloff and,
thus, that his purpose in entering the marriage lacked any
intent to evade the immigration laws.
The jury returned a verdict finding Sonmez guilty of
violating Section 1325(c). The district court imposed a prison
sentence limited to the amount of time Sonmez already had
served, as well as a one-year term of supervised release and a
fine of $4,000. Sonmez timely filed this appeal.
II.
Sonmez’s arguments on appeal pertain solely to the district
court’s failure to give his proposed jury instructions
addressing the elements of the offense under Section 1325(c). 3
3
Before trial, Sonmez filed a motion to dismiss the
indictment, arguing among other things that Section 1325(c) is
unconstitutionally vague. In that motion, Sonmez raised several
issues similar to those presented in this appeal concerning the
statutory language and the degree to which the defendant’s
intent to establish a life with his spouse affects his criminal
liability under Section 1325(c). The district court denied the
(Continued)
7
The statute, titled “Marriage fraud,” provides that:
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).
Sonmez contends that the jury should have been instructed
that he could not be convicted unless the jury found that his
“sole” purpose in entering into the marriage was to evade the
immigration laws. He maintains that the common meaning of the
statutory phrase “the purpose” connotes a single purpose and
does not encompass multiple purposes. Sonmez also contends that
the jury should have been instructed that the government was
required to prove that he had no intent to establish a life with
Eckloff, and asserts that the majority of courts addressing this
issue have stated that such intent is an important factor in
determining whether an individual has violated Section 1325(c).
We disagree with Sonmez’s arguments.
We review for abuse of discretion the district court’s
denial of Sonmez’s proposed jury instructions. United States v.
Bartko, 728 F.3d 327, 343 (4th Cir. 2013). To establish an
abuse of discretion in this regard, a defendant must demonstrate
that his proposed instructions (1) were “correct,” (2) were “not
motion, and Sonmez does not challenge that ruling on appeal.
8
substantially covered by the charge that the district court
actually gave to the jury,” and (3) “involved some point so
important that the failure to give the instruction[s] seriously
impaired the defendant’s defense.” Id.; see also United States
v. McFadden, 753 F.3d 432, 443-44 (4th Cir. 2014) (same).
We first address the district court’s decision declining to
instruct the jury that the government had to prove that the
“only reason the marriage was entered into was to obtain an
immigration benefit.” (Emphasis added.) We conclude that the
district court properly refused to give this instruction because
it is not a correct statement of law.
As stated above, the marriage fraud statute applies to any
individual who knowingly enters into a marriage “for the purpose
of evading any provision of the immigration laws.” 8
U.S.C. § 1325(c). The instructions sought by Sonmez effectively
would have added the word “sole” to the statute, creating a
different element of the crime, which would have prohibited
entry into a marriage “for the [sole] purpose of evading any
provision of the immigration laws.” We will not construe the
statute in such a manner, because we are required to interpret
statutory language as written and are not permitted to add words
of our own choosing. See Ignacio v. United States, 674 F.3d
252, 255 (4th Cir. 2012).
We observe that the great majority of our sister circuits
9
that have considered the language of Section 1325(c) have set
forth the elements of that offense in accord with the district
court’s instructions to the jury in this case. 4 In fact, the
Sixth Circuit, in United States v. Chowdhury, 169 F.3d 402 (6th
Cir. 1999), expressly rejected the argument advanced by Sonmez
here. The Sixth Circuit held that the trial court properly
refused to impose on the government the burden of proving that
the defendant’s “sole” purpose was to evade the immigration
laws, because “nothing in the statute require[d] the additional
language proposed by the defendant.” Id. at 407. The Sixth
4
See United States v. Yang, 603 F.3d 1024, 1026 (8th Cir.
2010) (affirming conviction in which the district court gave
substantively identical jury instructions as those given at
Sonmez’s trial concerning the elements of marriage fraud under
Section 1325(c)); United States v. Darif, 446 F.3d 701, 709-10
(7th Cir. 2006) (affirming conviction and expressly approving
jury instruction concerning the elements of Section 1325(c) that
was substantively identical to the instruction given at Sonmez’s
trial); United States v. Islam, 418 F.3d 1125, 1129-30 (10th
Cir. 2005) (same); United States v. Chowdhury, 169 F.3d 402,
406-07 (6th Cir. 1999) (same); see also United States v. Rojas,
718 F.3d 1317, 1320 (11th Cir. 2013) (stating that the elements
of the offense under Section 1325(c) require the government to
prove that (1) the defendant knowingly entered into a marriage
(2) for the purpose of evading the immigration laws); United
States v. Ortiz-Mendez, 634 F.3d 837, 839 (5th Cir. 2011)
(stating that the elements of Section 1325(c) require the
government to prove “that the defendant knowingly entered into a
marriage for the purpose of evading any provision of the
immigration laws”). But see United States v. Orellana-Blanco,
294 F.3d 1143, 1151 (9th Cir. 2002) (requiring as an element of
the offense that the government prove that the defendant had no
intent to establish a life with his spouse at the time of the
marriage) (citing United States v. Tagalicud, 84 F.3d 1180, 1185
(9th Cir. 1996)).
10
Circuit explained that the instruction given by the trial court,
requiring the government to prove that the defendant “entered
into the marriage for the purpose of evading the United States
immigration laws,” was proper because the instruction “track[ed]
the language of the statute.” Id. at 406-07.
We also observe that Sonmez’s “sole purpose” argument is
not supported by any decisions of our sister circuits. We
decline his request that we issue the first such decision
interpreting the statute contrary to its plain language.
Accordingly, we hold that the district court did not abuse its
discretion in rejecting Sonmez’s request for an instruction that
would have required the government to show that the sole reason
he entered into the marriage was to obtain an immigration
benefit.
For similar reasons, we conclude that the district court
did not abuse its discretion in refusing to instruct the jury
that the government had the burden of proving that Sonmez did
not “intend to establish a life” with Eckloff. Like Sonmez’s
“sole purpose” instruction, this instruction was properly
refused because it is an incorrect statement of law. See
McFadden, 753 F.3d at 443-44. As noted by some of our sister
circuits, the text of Section 1325(c) does not provide any
support for such a requirement. See United States v. Ortiz-
Mendez, 634 F.3d 837, 840 (5th Cir. 2011) (rejecting similar
11
argument and noting that the defendant “asks us to read into the
statute an element [of the statute] that is absent”); see also
United States v. Darif, 446 F.3d 701, 709-10 (7th Cir. 2006)
(rejecting proposed “intent to establish a life” jury
instruction as “not supported by the language of [Section
1325(c)] defining the marriage fraud offense”); United States v.
Islam, 418 F.3d 1125, 1128-30 (10th Cir. 2005) (holding that the
district court correctly declined to instruct the jury that the
government was required to prove as an element of the offense
that the defendant did not intend to establish a life with his
wife). In the absence of such a statutory requirement, Sonmez’s
proposed instruction would have changed the elements of the
offense for which he was being tried.
We are not persuaded by the Ninth Circuit’s contrary
decisions requiring the government to prove under Section
1325(c) that the defendant lacked any intent to establish a life
with his spouse. In United States v. Tagalicud, 84 F.3d 1180(9th Cir. 1996), and United States v. Orellana-Blanco, 294 F.3d
1143 (9th Cir. 2002), the Ninth Circuit held that a marriage is
a “sham” in violation of Section 1325(c) “‘if the bride and
groom did not intend to establish a life together at the time
they were married.’” Tagalicud, 84 F.3d at 1185 (quoting Bark
v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975)); see also Orellana-
Blanco, 294 F.3d at 1151 (citing Tagalicud and Bark for the same
12
proposition, and stating that “the sham arises from the intent
not ‘to establish a life together’”) (quoting Bark, 511 F.2d at
1201).
These decisions do not rely on the text of Section 1325(c),
but impose a requirement completely apart from the statutory
language. See Ortiz-Mendez, 634 F.3d at 840 (observing that the
Ninth Circuit’s decision in Orellana-Blanco fails to “ma[k]e a
careful analysis of the statutory text”). Notably, those Ninth
Circuit decisions borrow the concept of “no intent to establish
a life” from Bark, a civil immigration case defining a “sham”
marriage, see 511 F.2d at 1201-02, even though Section 1325(c)
does not use that term in its text. Thus, we find more
persuasive the decisions reached by our other sister circuits
tracking the statutory language. 5 See Ortiz-Mendez, 634 F.3d at
840; Darif, 446 F.3d at 709-10; Islam, 418 F.3d at 1128-30.
In reaching this conclusion, we nevertheless recognize that
5
Similarly, we are not persuaded by Sonmez’s reliance on
certain civil cases discussing marriage fraud, which arise
outside the context of a criminal prosecution under Section
1325(c). See Malik v. Att’y Gen. of U.S., 659 F.3d 253, 258 (3d
Cir. 2011) (discussing standard for establishing whether an
alien committed marriage fraud for purposes of the deportation
provision of 8 U.S.C. § 1227(a)(1)(G)(i)); Monter v. Gonzalez,
430 F.3d 546, 558 (2d Cir. 2005) (discussing materiality of
misrepresentation made by alien concerning the separation from
his wife under removability provisions of the Immigration and
Nationality Act); Cho v. Gonzalez, 404 F.3d 96, 102 (1st Cir.
2005) (discussing standard concerning whether alien “married in
good faith” for purposes of obtaining permanent resident status
under 8 U.S.C. § 1186a).
13
the intent to establish a life with one’s spouse is a relevant
consideration in determining whether a defendant’s purpose in
entering into a marriage was to evade the immigration laws.
Therefore, defendants charged with violating Section 1325(c) are
free to present evidence at trial that they entered into the
marriage at issue for the purpose of establishing a life with
their spouse. However, the relevance of this concept does not
transform that consideration into an element of the offense, as
Sonmez’s proposed jury instructions would have done. See Ortiz-
Mendez, 634 F.3d at 840 (noting that the defendant’s intent to
establish a life with his spouse “is one factor, among many,
that can be considered in determining whether a marriage was
entered into for the purpose of evading the immigration laws,”
but that such intent to “establish a life” is not an element of
the offense under Section 1325(c)); Islam, 418 F.3d at 1128 n.3,
1130 n.5 (stating that whether the couple intended to establish
a life together “may be relevant to the alien’s ‘intent’ in
entering into a marriage,” but rejecting the argument that the
inquiry is itself an element of the offense).
In the present case, the district court did not preclude
Sonmez from developing evidence concerning his intent to
establish a life with Eckloff, and Sonmez’s counsel in fact
relied on such testimony given by Sonmez in making closing
argument to the jury. Thus, the district court provided Sonmez
14
ample opportunity to present the defense that, in marrying
Eckloff, he simply intended to establish a life with her and did
not have the purpose of evading the immigration laws.
Accordingly, we hold that the district court did not abuse its
discretion in declining to instruct the jury that the government
had the burden of proving that Sonmez lacked any intent to
establish a life with Eckloff. 6
III.
In conclusion, we hold that because Sonmez’s proposed jury
instructions are not correct statements of law, the district
court did not abuse its discretion in declining to give those
instructions to the jury. We affirm the district court’s
judgment.
AFFIRMED
6
We also reject Sonmez’s argument that application of the
“rule of lenity” required that the district court instruct the
jury in accordance with his proposed instructions. The rule of
lenity is implicated only in the rare instance, not present
here, in which there is a “grievous ambiguity or uncertainty” in
the statute under consideration. Muscarello v. United States,
524 U.S. 125, 138-39 (1998) (citation and internal quotation
marks omitted); see also United States v. Bridges, 741 F.3d 464,
470 (4th Cir. 2014) (same).
15