United States v. Aifang Ye , 808 F.3d 395 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10576
Plaintiff-Appellee,
D.C. No.
v. 1:12-cr-00009-
AIFANG YE, RVM-2
Defendant-Appellant.
OPINION
Appeal from the District Court
for the Northern Mariana Islands
Ramona V. Manglona, Chief District Judge, Presiding
Argued and Submitted
February 19, 2015—Honolulu, Hawaii
Filed July 10, 2015
Before: Richard R. Clifton, N. Randy Smith,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Friedland
2 UNITED STATES V. YE
SUMMARY*
Criminal Law
Affirming convictions relating to the provision of false
information on a passport application in violation of 18
U.S.C. § 1542, the panel held that a violation of § 1542
does not require specific intent.
The panel held that a conviction under the first
paragraph of § 1542 requires only that, in applying for a
passport, the defendant made a statement that the defendant
knew to be untrue. The panel therefore rejected the
defendant’s arguments about purported flaws in the jury
instructions that depend on the notion that specific intent is
required by § 1542.
The panel held that the defendant’s argument that the
government’s failure to call certain translators as witnesses
at trial violated her rights under the Confrontation Clause is
foreclosed by precedent.
COUNSEL
David G. Banes (argued), O’Connor Berman Dotts &
Banes, Saipan, Commonwealth of the Northern Mariana
Islands, for Defendant-Appellant.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. YE 3
Ross K. Naughton (argued), Assistant United States
Attorney, and Alicia A. G. Limtiaco, United States
Attorney, United States Attorneys’ Office, Saipan,
Commonwealth of the Northern Mariana Islands, for
Plaintiff-Appellee.
OPINION
FRIEDLAND, Circuit Judge:
Following a jury trial, Aifang Ye appeals her
convictions relating to the provision of false information on
a passport application. She argues that the district court’s
jury instructions erroneously failed to condition her
convictions on a finding that she intended to violate the
passport laws. We hold that the crimes for which Ye was
convicted are not specific intent crimes, so her challenges
to the jury instructions fail. Ye’s additional argument that
the government’s failure to call certain translators as
witnesses at trial violated her rights under the
Confrontation Clause is foreclosed by precedent. We
therefore affirm.
I. Background
Aifang Ye and her husband, Xigao Cheng, both
Chinese citizens, traveled from China to Saipan in
September 2011. Ye’s tourist visa permitted her to stay
until October 2011. Xigao returned to China in September,
but Ye, who was pregnant with their second child,
overstayed her visa. In February 2012, Ye gave birth to her
daughter, Jessie, in Saipan. Jessie’s place of birth makes
her a U.S. citizen entitled to a U.S. passport.
4 UNITED STATES V. YE
Parents of a U.S. citizen child under age 16 may obtain
a U.S. passport for the child if both parents apply in person
at the passport office. Alternatively, the application may be
executed by only one of the parents if that parent shows a
notarized statement or affidavit from the absent parent
consenting to the issuance of the passport. 22 C.F.R.
§ 51.28(a)(3)(i).
Ye and her husband wished to obtain a U.S. passport
for Jessie but, because drawing attention to the birth of a
second child might have created difficulties for them at
home, Ye did not want to have her husband seek a
notarized statement. On the advice of Kaiqi Lin, whom Ye
had hired to provide translation and document preparation
services, her husband instead gave his passport to his
brother Zhenyan Cheng, who would be traveling to Saipan.
Zhenyan then traveled to Saipan, bringing his brother’s
passport with him to Saipan.
Lin drove Ye and Zhenyan to the passport office in
Saipan. Zhenyan presented the passport office employee
with his brother’s passport, without showing his own
passport or a power of attorney from his brother. Ye signed
the application as Jessie’s mother and Zhenyan signed as
Jessie’s father, using his brother’s name.
Unfortunately for Ye, the Department of Homeland
Security (“DHS”) had Lin under surveillance that day.
After Ye, Zhenyan, and Lin left the passport office, a DHS
agent approached Lin in his car and saw two Chinese
passports on the passenger seat—Ye’s and her husband’s.
Lin provided the passports to the DHS agent at his request.
The agent confirmed that Zhenyan had not had his own
passport with him at the passport office.
UNITED STATES V. YE 5
Zhenyan later was arrested and gave a statement to a
DHS agent using the U.S. Citizenship and Immigration
Services (“USCIS”) “Language Line” for translation
assistance. The next day, Ye voluntarily came to the DHS
office and provided her own statement using the USCIS
Language Line.
Ye then cooperated with the government in its
investigation of Lin by placing a recorded phone call to
him. Despite Ye’s cooperation, both Ye and Zhenyan were
indicted. Zhenyan was charged with violating 18 U.S.C.
§ 1542, which prohibits providing false information in a
passport application, and Ye was charged with aiding and
abetting that violation. Both were charged with conspiracy
to violate § 1542.
Following a joint trial, the jury acquitted Zhenyan but
convicted Ye of both counts. Ye timely appealed her
convictions.
II. Discussion
A. Specific Intent
The statute under which Ye was convicted, 18 U.S.C.
§ 1542, provides:
Whoever willfully and knowingly makes
any false statement in an application for
passport with intent to induce or secure the
issuance of a passport under the authority of
the United States, either for his own use or
the use of another, contrary to the laws
regulating the issuance of passports or the
rules prescribed pursuant to such laws; or
6 UNITED STATES V. YE
Whoever willfully and knowingly uses or
attempts to use, or furnishes to another for
use any passport the issue of which was
secured in any way by reason of any false
statement-
Shall be [subject to criminal liability].
Ye was convicted under the first paragraph of this statute.
Ye argues that the statute’s use of “willfully and
knowingly” makes providing a false statement in a passport
application a specific intent crime–meaning that it requires
the intentional violation of a known legal duty. Ye
contends that the district court’s instructions defining
“willfully” and “knowingly” failed to reflect this
requirement.
We review de novo whether jury instructions accurately
described the elements of the charged crime. United States
v. Liu, 731 F.3d 982, 987 (9th Cir. 2013). We hold that a
violation of § 1542 does not require specific intent. A
conviction under the first paragraph of § 1542 requires only
that, in applying for a passport, the defendant made a
statement that the defendant knew to be untrue.
The Supreme Court long ago established that the
second paragraph of § 1542 does not require specific intent.
In Browder v. United States, the Court defined “willfully
and knowingly” in the second paragraph to mean
“deliberately and with knowledge and not something which
is merely careless or negligent or inadvertent.” 312 U.S.
UNITED STATES V. YE 7
335, 341 (1941).1 This definition does not require that the
defendant knew that her action was unlawful.
Although Browder analyzed the second paragraph of
§ 1542 rather than the first, “[a] term appearing in several
places in a statutory text is generally read the same way
each time it appears.” Ratzlaf v. United States, 510 U.S.
135, 143 (1994). This principle counsels us to apply the
Supreme Court’s definition of “willfully and knowingly” in
the second paragraph of § 1542 to the identical language in
the first paragraph. Other circuits that have considered the
issue agree that Browder’s definition applies to the first
paragraph and that, therefore, no part of the statute has a
specific intent requirement. See United States v. George,
386 F.3d 383, 389 (2d Cir. 2004) (Sotomayor, J.); Liss v.
United States, 915 F.2d 287, 293 (7th Cir. 1990); United
States v. O’Bryant, 775 F.2d 1528, 1535 (11th Cir. 1985).
Notwithstanding Browder, Ye argues that our decision
in United States v. Winn, 577 F.2d 86 (9th Cir. 1978),
established that the first paragraph of § 1542 creates a
specific intent crime. The defendant in Winn had
challenged his conviction under that paragraph on the
ground that there was insufficient evidence to prove
specific intent. Id. at 90. We affirmed because sufficient
evidence supported the defendant’s conviction. Id. at 91.
In describing the jury instructions given at trial, we stated
that the district court had “correctly instructed the jury that
‘an act is done willfully if done voluntarily and
intentionally and with the specific intent to do something
1
Browder interpreted a predecessor statute to 18 U.S.C. § 1542. See
312 U.S. at 335 n.1 (quoting 22 U.S.C. § 220 (repealed 1948)). The
wording of the predecessor statute was identical in all relevant respects
to that of § 1542.
8 UNITED STATES V. YE
the law forbids; that is to say, with a purpose either to
disobey or disregard the law.’” Id. Contrary to Ye’s
reading, Winn was solely a sufficiency-of-the-evidence
case, so its approval of the “willfully” jury instruction is
best understood as stating that the instruction had not
improperly reduced the government’s burden of proof.
Given that there was sufficient evidence in Winn to support
the jury’s finding that the defendant had specific intent,
there was no need for us to consider whether the statute
actually required specific intent.2
More recently, and in a case in which the elements of
§ 1542 were in dispute, we followed Browder in
interpreting the first paragraph of the statute. In United
States v. Suarez-Rosario, we stated:
“The gravamen of the offense . . . is the
making of a false statement.” United States
v. Cox, 593 F.2d 46, 48 (6th Cir. 1979).
Thus, the “crime is complete when one
makes a statement one knows is untrue to
procure a passport.” United States v.
O’Bryant, 775 F.2d 1528, 1535 (11th Cir.
1985). Knowing use of any false statement
to secure a passport, including the use of a
false name or birth date, constitutes a
violation of § 1542. Liss v. United States,
915 F.2d 287, 293 (7th Cir. 1990).
2
Discussing our decision in Winn, then-Judge Sotomayor similarly
explained: “[The appellant in] Winn challenged only the sufficiency of
the evidence supporting his conviction . . . and not the jury instruction’s
accuracy. Therefore, the Ninth Circuit’s statement that the trial court
‘correctly instructed the jury,’ for which no support was offered, was
not necessary for the court to reach the issue presented on appeal.”
George, 386 F.3d at 396 n.14 (citation omitted).
UNITED STATES V. YE 9
Therefore, under the terms of 18 U.S.C.
§ 1542, the government must prove that the
defendant made a willful and knowing false
statement in an application for a passport or
made a willful and knowing use of a
passport secured by a false statement.
237 F.3d 1164, 1167 (9th Cir. 2001) (alteration in original).
This description did not include specific intent among the
elements of the offense. Although the parties in Suarez-
Rosario had not raised the issue of specific intent, it is
notable that we relied on Browder and cases from three
other circuits that had interpreted § 1542 as not including a
specific intent requirement. Id. (citing Browder, 312 U.S.
at 340; Liss, 915 F.2d at 293; O’Bryant, 775 F.2d at 1535;
Cox, 593 F.2d at 48).
We now join our sister circuits and hold that, consistent
with Browder, a conviction under the first paragraph of
18 U.S.C. § 1542 does not require specific intent. Because
all of Ye’s arguments about purported flaws in the jury
instructions depend on the notion that specific intent is
required by § 1542, her arguments fail.
B. Confrontation Clause
Prior to trial, Ye and Zhenyan objected that it would
violate the Confrontation Clause of the Sixth Amendment
to admit statements they had made to DHS unless the
USCIS Language Line translators who assisted them were
called to testify. After considering testimony and other
evidence regarding the nature of USCIS’s translation
services, the district court overruled the objection. Ye
argues on appeal that the district court erred by
subsequently admitting the translated statements at trial.
10 UNITED STATES V. YE
We review alleged violations of the Confrontation
Clause de novo. United States v. Brooks, 772 F.3d 1161,
1167 (9th Cir. 2014).
In United States v. Nazemian, 948 F.2d 522, 525–28
(9th Cir. 1991), we held that, as long as a translator acts
only as a language conduit, the use of the translator does
not implicate the Confrontation Clause. Ye argues that
Nazemian is inconsistent with the Supreme Court’s
decisions in Crawford v. Washington, 541 U.S. 36 (2004),
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and
Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). As Ye
correctly concedes, however, we already have held that
Nazemian remains binding circuit precedent because it is
not clearly irreconcilable with Crawford and its progeny.
United States v. Orm Hieng, 679 F.3d 1131, 1141 (9th Cir.
2012). As a three-judge panel, we are bound by Orm
Hieng and Nazemian. See Miller v. Gammie, 335 F.3d 889(9th Cir. 2003) (en banc).
Ye alternatively argues that the district court misapplied
Nazemian in admitting the translated statements here.
Determining whether the translator was merely a language
conduit under Nazemian requires analyzing four factors:
“(1) which party supplied the interpreter, (2) whether the
interpreter had any motive to mislead or distort, (3) the
interpreter’s qualifications and language skill, and
(4) whether actions taken subsequent to the conversation
were consistent with the statements as translated.” United
States v. Romo-Chavez, 681 F.3d 955, 959 (9th Cir. 2012).
Ye contends that the first Nazemian factor weighs
against treating the translators as language conduits
because the translators were provided by the government
through its on-demand telephonic translation service. This
factor does weigh in Ye’s favor, but we have held that this
UNITED STATES V. YE 11
factor is “never dispositive.” Romo-Chavez, 681 F.3d at
959. This factor would have more weight if the translators
were active in directing the interview, id. at 959–60, but
they were not.
Ye next argues that the second factor weighs in her
favor because the translators were independent contractors
who would have a motive to distort evidence in the
government’s favor in order to keep their jobs. Ye further
contends that the use of the word “forged” in Zhenyan’s
original translated statement is in fact evidence of pro-
government distortion because Zhenyan would not have
used such a loaded word. But the record is unclear about
whether some or all of the translators were independent
contractors, and there is no way to know whether Zhenyan
actually used the word “forged.” The inconclusive nature
of the evidence on this factor causes us to give it little
weight.
The government’s evidence on the third and fourth
factors is compelling, and Ye does not argue otherwise.
For the third factor, the government provided evidence that
all of the translators had native fluency in Mandarin—the
language spoken by both Ye and Zhenyan—and that all had
extensive professional translation training and experience.
Additionally, during the interviews of Ye and Zhenyan,
DHS agents checked the accuracy of the translation by
asking the translators to have Ye and Zhenyan confirm
line-by-line read-backs of what they had said. To test the
accuracy of the translation, the DHS agents inserted
intentional inaccuracies in the read-backs, which Ye and
Zhenyan identified and corrected each time. This indicates
that the translators’ work was accurate. For the fourth
factor, Ye’s behavior subsequent to the interview was
consistent with her translated statement. During the
interview, Ye agreed to cooperate in the government’s
12 UNITED STATES V. YE
investigation of Lin, and she later followed through on that
agreement by placing a recorded phone call to him.
Therefore, both the third and fourth factors strongly favor
the government.
On balance, these four factors favor treating the
translators as language conduits. Thus, under Nazemian,
Ye’s Confrontation Clause rights were not violated when
the government introduced translated statements from Ye
and Zhenyan without calling the translators to testify.
III. Conclusion
For the foregoing reasons, we AFFIRM Ye’s
convictions.3
3
We address Ye’s remaining arguments in a concurrently filed
memorandum disposition.