United States v. Tirouda , 394 F.3d 683 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
No. 03-50433
v.
 D.C. No.
ZOUBIDA AMIRAT TIROUDA, aka; CR-00-00100-IEG
Zoubida Amirit Tirouda,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50434
v.  D.C. No.
SALAH TIROUDA, CR-00-00100-IEG
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 03-50446
Plaintiff-Appellee,
v.  D.C. No.
CR-00-00100-IEG
ZINEDDINE TIROUDA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, District Judge, Presiding
Argued and Submitted
October 7, 2004—Pasadena, California
Filed January 10, 2005
281
282 UNITED STATES v. TIROUDA
Before: J. Clifford Wallace, Thomas G. Nelson, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
284 UNITED STATES v. TIROUDA
COUNSEL
Mark F. Fleming and Lori B. Schoenberg, Federal Defenders
of San Diego, Inc., San Diego, California, for appellant
Zineddine Tirouda.
Robert A. Garcia, San Diego, California, for appellant Zou-
bida Tirouda.
Michael J. McCabe, San Diego, California, for appellant
Salah Tirouda.
Carol C. Lam, United States Attorney; Roger W. Haines, Jr.,
Assistant U.S. Attorney; and Michael G. Wheat, Assistant
U.S. Attorney, San Diego, California, for the appellee.
OPINION
WARDLAW, Circuit Judge:
Zineddine, Salah, and Zoubida Tirouda appeal from judg-
ments convicting them of passport and immigrant fraud
offenses in violation of 18 U.S.C. §§ 371, 1542, and 1546.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We con-
sider whether the district court violated the Tiroudas’ due pro-
cess rights by instructing the jury to consider an alleged
accomplice’s testimony, which favored the Tiroudas, with
greater caution than that of other witnesses. We also consider
whether the district court erred in failing to define “accom-
plice” in that instruction. We join the Fifth and Seventh Cir-
cuits in holding that there is no error in giving an accomplice
UNITED STATES v. TIROUDA 285
witness instruction when the accomplice’s testimony favors
the defendant. Nor did the failure to define “accomplice” in
the accomplice witness instruction amount to plain error
because, taken as a whole, the instructions were clear and any
lack of clarity did not prejudice the Tiroudas.
BACKGROUND
In 1993, Zineddine Tirouda came to the United States as a
visitor for pleasure, using a B-2 visa he obtained at the United
States Embassy in Paris. Later that year, he filed an applica-
tion for political asylum in which he claimed that he was an
Algerian citizen, born in Algeria.
In 1995, Zineddine moved from New York to California to
take a job with J. Mueller, Inc. In an effort to regularize
Zineddine’s immigration status so that he could work at the
company legally, J. Mueller retained the services of several
immigration attorneys. At this time, Zineddine completed
United States Immigration Form I-9, in which he stated that
he was an alien with temporary work authorization. J. Muel-
ler’s attorneys also applied for an H1B visa on Zineddine’s
behalf and sought to obtain a labor certification to adjust
Zineddine’s status to that of a lawful permanent resident. In
the interim, Zineddine received temporary work authorization
while his applications were being processed.
Eventually, Zineddine’s H1B visa was approved. To
retrieve the visa, however, Zineddine was required to return
to Algeria. Since he refused to do so, J. Mueller contacted
attorney Peter Larrabee to determine if Zineddine’s asylum
application was viable. Larrabee told J. Mueller that he was
one-hundred percent certain that Zineddine’s asylum claim
was not viable.
In early 1999, shortly before his asylum hearing was to be
held and his H1B visa was to expire, Zineddine retained an
attorney and claimed for the first time in an official United
286 UNITED STATES v. TIROUDA
States document that he was a United States citizen born in
Meridian, Mississippi. Zineddine filed a lawsuit against the
State of Mississippi to compel it to issue a delayed birth cer-
tificate. In his pleadings, he claimed that he was born in
Meridian, Mississippi, on May 1, 1964, with a midwife in
attendance. To augment his claim of birth in Mississippi,
Zineddine flew his parents, Amar and Tata Tirouda, from
Algeria to Mississippi to testify on his behalf. Before they left
Algeria, Amar and Tata visited the United States Embassy in
Algiers to apply for visas. On their visa applications, both
Amar and Tata stated that it was to be their first visit to the
United States. United States records indicate that this was
indeed their first visit to the United States.
On August 17, 1999, in Meridian, Mississippi, Zineddine,
Amar, and Tata Tirouda testified under oath in a chancery
court that Zineddine was born in Mississippi in 1964 when
Amar and Tata were in the United States looking for work.
After the hearing, the Mississippi court ordered the issuance
of a delayed Mississippi birth certificate for Zineddine.
After receiving the delayed Mississippi birth certificate,
Zineddine completed a United States passport application. In
his application, Zineddine used the birth certificate to support
his claim that he was born in Mississippi. On September 3,
1999, Zineddine’s parents filed separate affidavits in support
of Zineddine’s passport application.
After the government conducted an investigation into
Zineddine’s past, Zineddine was charged with conspiracy to
possess immigration documents obtained by fraud, in viola-
tion of 18 U.S.C. §§ 371 and 1546, and making false state-
ments in application for a United States passport, in violation
of 18 U.S.C. § 1542. Zineddine’s parents, Amar and Tata
Tirouda, were also charged with making false statements in
documents filed in support of an application for a United
States passport, in violation of 18 U.S.C. § 1542. In a related
matter, Zineddine’s wife, Zoubida Tirouda, and his brother,
UNITED STATES v. TIROUDA 287
Salah Tirouda, were charged with conspiracy to possess
immigration documents obtained by fraud, in violation of 18
U.S.C. §§ 371 and 1546, and possession of immigration docu-
ments obtained by fraud, in violation of 18 U.S.C. § 1546.
Zineddine, Salah, and Zoubida Tirouda were tried together.
At their joint trial, Tata Tirouda testified on Zineddine’s
behalf against her counsel’s advice because she also was
indicted for passport fraud. Tata testified that in 1964 she
gave birth to Zineddine in Meridian, Mississippi. She pro-
vided great detail about the circumstances surrounding her
trip to the United States and her time in Meridian both before
and after Zineddine’s birth.
At the jury instruction conference before closing argu-
ments, the government requested that the district court give an
accomplice witness instruction for Tata Tirouda. At that time,
Ninth Circuit Pattern Jury Instruction No. 4.11 read:
You have heard testimony from [witness] who
[admitted being] [was alleged to be] an accomplice
to the crime charged. An accomplice is one who vol-
untarily and intentionally joins with another person
in committing a crime. You should consider such
testimony with greater caution than that of other wit-
nesses.
Ninth Circuit Pattern Jury Instruction 4.11. Over defense
objections, the district court agreed to the instruction. At the
request of the defense, however, the district court modified
Ninth Circuit Pattern Instruction No. 4.11 to reflect that Tata
was indicted in the case, had pleaded not guilty, and was not
on trial with the other defendants. No additional modifications
or additions were requested by the defense. The instruction
given was as follows:
You have heard testimony from Tata Tirouda, who
was also indicted in this case. As I told you before,
288 UNITED STATES v. TIROUDA
she has pled not guilty and she is not on trial here
now. However, because the government alleges that
she is an accomplice in the crimes charged, you
should consider such testimony with greater caution
than that of other witnesses.
After the jury returned a verdict convicting the Tiroudas on
all counts, Zineddine filed a motion for a new trial, which
alleged, inter alia, that the jury instruction regarding Tata’s
testimony was given in error. The district court denied the
motion for a new trial, and this appeal ensued.
DISCUSSION
I. Due Process
The district court did not violate the Tiroudas’ due process
rights by instructing the jury to consider Tata Tirouda’s testi-
mony with greater caution than that of other witnesses. We
reject the Tiroudas’ claim that an accomplice witness instruc-
tion is permitted only when an accomplice testifies for the
government, and that by giving such an instruction, the dis-
trict court violated their right to due process by precluding
them from presenting their theory of defense.1
[1] Although this question is one of first impression in our
circuit, it is well-settled law that district courts have the dis-
cretion to give an accomplice witness instruction in cases
where an accomplice testifies for the prosecution. The policy
behind this rule—to allow district courts to alert juries of the
possibility of perjured testimony—applies equally to cases
where an accomplice testifies on behalf of the defendant. An
accomplice’s testimony may be suspect, regardless of whether
he testifies for the prosecution or the defense. As recognized
by the Fifth Circuit, “[w]hen an accomplice testifies for the
1
We review de novo a claim that a jury instruction violates due process.
United States v. Warren, 25 F.3d 890, 897 (9th Cir. 1994).
UNITED STATES v. TIROUDA 289
prosecution[,] he may have an interest in prevaricating in
favor of the prosecution to obtain favors or even immunity.
On the other hand, when one accomplice testifies for another,
there is always the chance that each will try to swear the other
out of the charge.” United States v. Nolte, 440 F.2d 1124,
1126-27 (5th Cir. 1971) (citation and quotations omitted).
Therefore, the policy behind accomplice witness instructions
supports allowing the district courts to exercise their discre-
tion in giving such an instruction, whether an accomplice tes-
tifies for the prosecution or, as here, for the defense.
[2] Moreover, both the Fifth and Seventh Circuits have
ruled that there is no error in giving an accomplice witness
instruction when the accomplice’s testimony favors the defen-
dant. See United States v. Urdiales, 523 F.2d 1245, 1248 (5th
Cir. 1975); United States v. Simmons, 503 F.2d 831, 837 (5th
Cir. 1974); Nolte, 440 F.2d at 1126-27; United States v. Bolin,
35 F.3d 306, 308 (7th Cir. 1994). Indeed, the Supreme Court
has indicated that a district court does not err in giving an
accomplice witness instruction favoring the prosecution. See
Cool v. United States, 409 U.S. 100, 103 (1972) (per curiam)
(citing the rationale for such an instruction given in Nolte, 440
F.2d 1124, as posing “[n]o constitutional problem”).
[3] We hold that, although an accomplice witness instruc-
tion must be properly formulated along the lines of former
Ninth Circuit Pattern Instruction No. 4.11, there is no error in
giving such an instruction when the accomplice’s testimony
favors the defendant. We agree with the Fifth Circuit that
such an instruction does not raise constitutional concerns and
is within the district court’s broad discretion in the conduct of
the trial. See Nolte, 440 F.2d at 1126-27.
[4] Unlike the accomplice witness instruction disapproved
in Cool, the instruction here did not predicate the jury’s
acceptance of Tata Tirouda’s testimony on finding it true
beyond a reasonable doubt. See Cool, 409 U.S. at 101-02.
Rather, it addressed only the weight to be accorded the evi-
290 UNITED STATES v. TIROUDA
dence. Therefore, the district court did not err in instructing
the jury to consider Tata Tirouda’s testimony with greater
caution than that of other witnesses, and no due process rights
were violated.
II. Accomplice Definition
We also reject the Tiroudas’ contention that the instruction
was misleading because it did not define “accomplice.” When
a defendant objects to an instruction at trial, we review the
district court’s formulation of the instructions for an abuse of
discretion. Warren, 25 F.3d at 898. If a party does not prop-
erly object at trial, however, the plain error doctrine applies.
United States v. Williams, 990 F.2d 507, 511 (9th Cir. 1993).
After objecting to the district court’s decision to give the
accomplice witness instruction, defense counsel did not object
to the court’s failure to define “accomplice.” While defense
counsel asked the district court judge to add language to the
instruction to reflect that Tata Tirouda was indicted in the
case, had pleaded not guilty, and was not on trial with the
other defendants, defense counsel did not request that the
instruction define “accomplice” and did not object to the
omission of the definition. To have preserved their right to
appellate review under the abuse of discretion standard,
appellants must have “objected before the jury retired, stating
distinctly the matter to which [they] objected and the grounds
of the objection.” Williams, 990 F.2d at 511 (emphasis in
original). Offering additional language alone is not enough;
“the district court must be fully aware of the objecting party’s
position.” Id. Because appellants’ counsel did not distinctly
object to the district court’s failure to define “accomplice,” we
review for plain error. See United States v. Anderson, 201
F.3d 1145, 1149 (9th Cir. 2000) (holding that plain error
review was appropriate because the defense did not properly
object at trial to the omission of an instruction).
Under the plain error doctrine, we correct an error where an
objection was not interposed at trial only where the error (1)
UNITED STATES v. TIROUDA 291
is plain, (2) affects substantial rights, and (3) “seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Jordan, 256 F.3d 922, 926 (9th
Cir. 2001). To allow us to conclude that omission of the defi-
nition of “accomplice” affected the Tiroudas’ substantial
rights, the error “must have prejudiced in some substantial
manner [their] right to a fair trial.” Freeman v. United States,
158 F.2d 891, 895 (9th Cir. 1947); see also United States v.
Olano, 507 U.S. 725, 734 (1993).
[5] Whether a term in a jury instruction requires definition
normally turns on whether it expresses a concept within the
jury’s ordinary experience. No prejudice results from a dis-
trict court’s failure to define a concept “within the compre-
hension of the average juror.” United States v. Dixon, 201
F.3d 1223, 1231 (9th Cir. 2000) (holding that the district court
did not err in failing to define “commercial advantage” and
“private financial gain” because they are terms within the
comprehension of the average juror); see also United States
v. Aguilar, 80 F.3d 329, 331 (9th Cir. 1996) (en banc) (“[A]
district court is not necessarily required to define knowledge
for the reason that it is a common word which an average
juror can understand and apply without further instruction.”);
United States v. Moore, 921 F.2d 207, 210 (9th Cir. 1990)
(holding that the district court did not err in failing to define
“violence” because it is a concept within the ordinary experi-
ence of the jury); Walker v. Endell, 850 F.2d 470, 475 (9th
Cir. 1987) (“[C]riminal recklessness under Alaska law relates
essentially to the common-sense definition of recklessness,
which the average juror could understand and apply without
an instruction.”).
[6] The concept of an “accomplice” arguably is within the
jury’s ordinary experience. But even if the concept of an
accomplice were outside the comprehension of the average
juror, the instruction here was not misleading. Although the
instruction did not include a separate sentence explicitly
defining “accomplice,” it stated that Tata Tirouda “was also
292 UNITED STATES v. TIROUDA
indicted in this case,” thereby providing an abridged version
of the definition of “accomplice.” See Guam v. Dela Rosa,
644 F.2d 1257, 1260-61 (9th Cir. 1981) (per curiam) (defining
an accomplice as “one who could have been indicted for the
same offense either as an accessory or principal”). In the con-
text of the instructions as a whole, the accomplice witness
instruction was not confusing. And, even if we were to con-
clude that the instruction was confusing, any error would still
not be plain because it did not prejudice the Tiroudas. See
Freeman, 158 F.2d at 895 (holding that there was no preju-
dice to appellant due to the failure to define the term “wil-
ful”); Moore, 921 F.2d at 210 (stating that appellant “suffered
no actual prejudice”); Walker, 850 F.2d at 475 (“The omis-
sion of an instruction is ‘less likely to be prejudicial than a
misstatement of the law.’ ”) (quoting Henderson v. Kibbe, 431
U.S. 145, 155 (1977)). Therefore, we hold that the district
court’s failure to define “accomplice” in the accomplice wit-
ness instruction did not amount to plain error.
CONCLUSION
Accordingly, with respect to the arguments considered in
this opinion, we affirm the judgments of conviction.2
AFFIRMED.
2
Please see the accompanying Memorandum Disposition for a discus-
sion of our holdings regarding the Tiroudas’ remaining claims of error.