Criminal – Marriage fraud convictions affirmed

The district court found appellants guilty of marriage fraud in connection with a scheme whereby they obtained permanent resident status for Cameroonian nationals by arranging fraudulent marriages with American citizens. The court affirmed.

Background

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 (count 1). Mbono, who elected to be tried by the district court during the same trial, was also convicted on count 1, as well as making a materially false statement and representation (count 2), and false swearing in an immigration matter (count 3).

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.

Mbendeke’s claims

The district court instructed the jury 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.” 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. Thus, the plain language of the statute offers no support to Mbendeke’s argument for a heightened mens rea requirement. 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. 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.”

Mbono’s claims

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. 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. Finally, Mbono presented no testimony or evidence in support of her entrapment defense.

Affirmed.

United States v. Mbendeke (Lawyers Weekly No. 001-149-18, 7 pp.) (Per Curiam) Case No. 17-4471; United States v. Mbono, Case No. 17-4490; Sept. 19, 2018, from EDVA at Alexandria (Brinkema). Charles Burnham for Appellant; Melinda L. VanLowe for Appellant; Dana J. Boente for Appellee.