United States Court of Appeals,First Circuit.
UNITED STATES, Appellee, v. Jecinta Wambui NGIGE, Defendant, Appellant.
No. 14-1136.
Decided: March 17, 2015
Before
BARRON, SELYA, and STAHL, Circuit Judges. Lawrence Gatei, with whom Immigration
& Business Law Group, LLP was on brief, for appellant. Gail Fisk Malone,
Assistant United States Attorney, with whom Thomas E. Delahanty II, United
States Attorney, was on brief, for appellee.
Following a bench trial on a record of stipulated facts, the district court
convicted Defendant-Appellant Jecinta Wambui Ngige of conspiring to defraud the
United States by participating in a sham marriage to secure a change in her
immigration status. On appeal, she argues that the prosecution was time-barred
because she committed no overt act in furtherance of the conspiracy within the
five-year period before the return of the indictment. We affirm.
I. Facts and Background
On June 13, 2012, a federal grand jury returned an indictment charging Ngige
with conspiracy to defraud the United States, in violation of 18 U.S.C. § 371.
The indictment alleged that a third party (later identified as James Mbugua); MF
(later identified as Michael Frank), a citizen of the United States; and Ngige,
a citizen of Kenya who had entered the United States lawfully but whose
authorization to remain in the United States had expired, “knowingly and
willfully conspired and agreed to participate in a sham marriage, and to make
sworn false statements about that marriage to agencies of the United States
Government, for the purpose of defrauding the United States.” The indictment
maintained that the conspiracy had two objectives: (1) for Ngige's
co-conspirators to profit financially by accepting payments from her in exchange
for participating in the sham marriage; and (2) for Ngige to “acquire a change
of her United States immigration status to which she would not otherwise have
been entitled by making false representations to agencies of the United States
government about her marriage to and relationship with [Frank].”
The indictment charged Ngige with committing eight overt acts in furtherance of
the conspiracy. According to the indictment, Ngige (1) arranged with another
individual (Mbugua) to meet a United States citizen willing to marry her; (2)
traveled to Maine on January 30, 2004, to meet Frank and, with him and other
co-conspirators, apply for a marriage license, falsely stating on the
application that she and Frank lived together; and (3) entered into a sham
marriage with Frank, knowing that the “sole purpose of the wedding was to permit
her to apply for a change in her immigration status to which she would not
otherwise have been entitled.” The indictment alleged that Ngige then (4) signed
a Form I-485, dated March 19, 2004, seeking to adjust her immigration status on
the basis of her marriage, which was subsequently filed with the U.S.
Citizenship and Immigration Service (“USCIS”); (5) along with the Form I-485,
filed or caused to be filed a Form I-130, also dated March 19, 2004, bearing
Frank's forged signature and falsely representing that the two lived together in
Attleboro, Massachusetts; and (6) filed or caused to be filed various documents
in support of the I-485 and I-130 petitions, some purporting to show that she
and Frank lived together although they did not. The indictment further stated
that sometime after the I-485 and I-130 petitions were filed with USCIS, Frank
refused to assist Ngige with her change of immigration status request, and
thereafter, Ngige (7) signed and filed a Form I-360, seeking a change of
immigration status under the Violence Against Women Act (“VAWA”) on the grounds
that her citizen-spouse, Frank, was abusive to her. The Form I-360, dated August
14, 2006, falsely stated that she and Frank currently lived together. Finally,
the indictment alleged that (8) on August 6, 2007, Ngige filed a psychological
evaluation in support of her Form I-360 VAWA petition. That evaluation, dated
September 28, 2006, contained various material falsehoods about the trajectory
of Ngige's relationship with Frank.
In the district court, Ngige filed a motion to dismiss the indictment as
time-barred, arguing that the filing of the psychological evaluation on August
6, 2007—the only overt act alleged within the five-year statute of limitations
period, see 18 U.S.C. § 3282(a)—was not done in furtherance of the charged
conspiracy. She also asserted that both she and Frank withdrew from the
conspiracy in 2006, and that she had disavowed the conspiracy by filing for
divorce. The district court denied the motion, holding that Ngige's arguments
rested on disputes of fact which would need to be resolved by the presentation
of evidence at trial. United States v. Ngige, No. 2:12-cr-00098-JAW, 2013 WL
950689, at *2 (D.Me. Mar.12, 2013).
Ngige waived her right to a jury trial, and the case proceeded to a bench trial
on a record of stipulated facts and attendant exhibits. The following paragraphs
summarize the stipulations before the court.
Ngige, a native of Kenya, traveled to the United States on a visitor's visa in
December 2001. After her visa expired six months later, she remained in the
United States without a legal basis for doing so. Sometime prior to January 30,
2004, Ngige agreed to pay Mbugua to introduce her to a United States citizen
willing to marry her for financial consideration. The stipulations averred that
this arrangement had “two goals. One was for Mbugua and the U.S. citizen/husband
to make money. The other was for Ms. Ngige to be able to apply for lawful
residency as the spouse of a U.S. citizen by marrying Frank and pretending
to establish a life with him.”
On January 30, 2004, Ngige traveled from Massachusetts to Maine to meet with
Mbugua and Frank. Ngige and Frank obtained a marriage license, untruthfully
indicating that they lived together in Lewiston, Maine. The two were then
married in a brief civil ceremony. Ngige paid Mbugua, who gave some of the money
to Frank. Ngige then returned to Massachusetts. At Ngige's request, Frank
traveled to Massachusetts three times after the wedding, and on at least one
occasion, she paid Frank the cost of his travel. While he was in Massachusetts,
Ngige and Frank organized immigration paperwork and took steps to make it appear
as though they lived together, such as opening a joint bank account.
On March 19, 2004, Ngige signed a Form I-485, Application to Register Permanent
Resident or Adjust Status, to adjust her immigration status based on her
marriage to Frank. The Form I-485 was filed with USCIS, along with a Form I-130,
Petition for Alien Relative, which purported to bear Frank's signature, and
various documents in support of the petitions. The I-130 form and some of the
supporting documents represented that Ngige and Frank lived together in
Attleboro, Massachusetts, in order to “create the impression that she and Mr.
Frank lived together and shared a life when they did not.”
USCIS scheduled Ngige's change-of-status request for an interview and mailed her
notice of a date and time. Frank refused to accompany her to the interview, even
after she traveled to Maine twice to convince him to continue helping her with
her petition. The parties stipulated that sometime in 2005, during Ngige's
second trip to Maine, Frank withdrew from the conspiracy and had no further
involvement in it.
The stipulations stated that on January 31, 2006, Ngige filed for divorce and
that her complaint for divorce falsely stated that she and Frank lived together
until January 6, 2005. The divorce was finalized in April 2007. On August 14,
2006, while the divorce was still pending, Ngige signed and submitted the Form
I-360 VAWA petition seeking a change in immigration status as a self-petitioning
spouse of an abusive U.S. citizen. On the form, she named Frank as the abusive
citizen-spouse and wrote that the two lived together in Attleboro from February
2006 until “present.” In support of her petition, Ngige submitted multiple
documents previously submitted to USCIS in March 2004 with the I-485 and I-130
forms.
On July 15, 2007, USCIS informed Ngige that the agency could not act on her VAWA
I-360 petition absent evidence that Frank subjected her to battery or extreme
cruelty. In response, on August 6, 2007, Ngige filed a psychological evaluation
dated September 28, 2006. The evaluation contained Ngige's knowingly false
statements purporting to describe how she and Frank met, began dating, and
married before Frank became emotionally abusive to Ngige. The evaluation
reported that Ngige suffered from depression and panic attacks due to the abuse.
Upon receipt of the evaluation, USCIS requested further documentation of spousal
abuse. Ngige submitted no further documentation, and USCIS denied her VAWA
petition on November 2, 2007.
Aside from the foregoing stipulations and six attendant exhibits, neither party
sought to introduce any further evidence. On September 9, 2013, the district
court found Ngige guilty of conspiracy as charged in the indictment. Ngige
requested written findings of fact, see Fed.R.Crim.P. 23(c), which the district
court issued on September 18, 2013. United States v. Ngige, No.
2:12-cr-00098-JAW, 2013 WL 5303725 (D.Me. Sept.18, 2013). The district court
adopted the parties' stipulations as its findings of fact, id. at *1, and
explained its guilty verdict, id. at *4-5. On January 29, 2014, the district
court sentenced her to four months in prison, followed by one year of supervised
release. This appeal followed.
II. Analysis
Ngige's appeal rests on her contention that the district court incorrectly
found that the filing of the psychological evaluation in support of her VAWA
petition constituted an overt act in furtherance of the charged conspiracy. We
address this and related arguments at both the motion to dismiss and motion for
acquittal stages of the proceedings.
A. Sufficiency of the Indictment
We begin with our de novo review of the district court's refusal to dismiss the
indictment on statute of limitations grounds. United States v. Stewart, 744 F.3d
17, 21 (1st Cir.2014).
The government charged Ngige under 18 U.S.C. § 371, which is subject to the
general five-year statute of limitations for criminal actions, see 18 U.S.C. §
3282(a). The indictment was filed on June 13, 2012. To be timely, the indictment
must allege that the conspiracy still existed and that at least one overt act in
furtherance of the conspiracy was committed after June 13, 2007. See Stewart,
744 F.3d at 21. Both parties agreed below and on appeal that only the filing of
the psychological evaluation on August 6, 2007 fits within § 3282(a)'s five-year
time frame. Ngige argues that submitting the psychological evaluation cannot be
considered an overt act in furtherance of the conspiracy charged, because her
co-conspirators did not contemplate utilizing VAWA to achieve a change in
Ngige's immigration status. See Grunewald v. United States, 353 U.S. 391, 397,
77 S.Ct. 963, 1 L.Ed.2d 931 (1957) (“[T]he crucial question in determining
whether the statute of limitations has run is the scope of the conspiratorial
agreement, for it is that which determines both the duration of the conspiracy,
and whether the act relied on as an overt act may properly be regarded as in
furtherance of the conspiracy.”).
The problem with Ngige's argument is that it fails to attack the facial validity
of the indictment and instead challenges the government's substantive case. An
indictment must allege each of the required elements of conspiracy, but the
government need not put forth specific evidence to survive a motion to dismiss.
Stewart, 744 F.3d at 21 (citing Fed.R.Crim.P. 7(c)(1)). When a defendant seeks
dismissal of an indictment, courts take the facts alleged in the indictment as
true, mindful that “the question is not whether the government has presented
enough evidence to support the charge, but solely whether the allegations in the
indictment are sufficient to apprise the defendant of the charged offense.”
United States v. Savarese, 686 F.3d 1, 7 (1st Cir.2012). Indeed, “courts
routinely rebuff efforts to use a motion to dismiss as a way to test the
sufficiency of the evidence behind an indictment's allegations.” United States
v. Guerrier, 669 F.3d 1, 4 (1st Cir.2011).
Here, the indictment alleged that the conspiracy's objective was to pay Frank
and Mbugua to help Ngige “acquire a change of her United States immigration
status” by “making false representations about her marriage to and
relationship with [Frank].” The psychological evaluation filed in support of the
VAWA petition, which the indictment alleged contained “material falsehoods”
about the relationship, sought to achieve just that. The district court properly
concluded that Ngige's more limited characterization of the conspiracy's scope,
along with her contention that the conspiracy had ended before the filing of the
psychological evaluation, rested on factual disputes left to the factfinder. See
Stewart, 744 F.3d at 22; see also United States v. Upton, 559 F.3d 3, 11 (1st
Cir.2009) (“Determining the contours of the conspiracy ordinarily is a factual
matter entrusted largely to the jury.”).
B. Sufficiency of the Evidence
Ngige raises various challenges to the sufficiency of the evidence supporting
her conviction. She again asserts that the filing of the psychological
evaluation in support of her VAWA petition cannot be considered an overt act
because it exceeded the scope of the charged conspiracy. Ngige also argues that
the conspiracy was no longer ongoing at the time she filed the psychological
evaluation. We review a bench trial conviction de novo, examining the facts and
inferences in the light most favorable to the verdict. United States v. Tum, 707
F.3d 68, 69 (1st Cir.2013).
To make out a case of conspiracy under 18 U.S.C. § 371, the government must show
the existence of an agreement with an unlawful object (here, marriage fraud, see
8 U.S.C. § 1325(c)), the defendant's knowing participation in the conspiracy,
and an overt act in furtherance of that agreement. United States v. Serunjogi,
767 F.3d 132, 139 (1st Cir.2014). Ngige concedes that the record establishes the
existence of the conspiracy and her knowing participation in it, but argues that
the scope of the conspiracy was limited to pursuing a change in her immigration
status through the “ordinary” marriage-based application process—that is,
through a Form I-130 and a Form I-485—and thus that filing the psychological
evaluation in support of her VAWA application constituted her own unilateral
deed beyond the bounds of the parties' agreement. Without the filing of the
psychological evaluation, her argument goes, the prosecution is time-barred.
We find this argument unavailing. Nowhere in the parties' stipulations adopted
by the district court does it say that the three co-conspirators solely agreed
to a change-in-immigration application through a Form I-130 and a Form I-485.
Instead, the record amply supports the contention that Ngige, Mbugua, and Frank
agreed more generally to facilitate a sham marriage in order to make Ngige
eligible for lawful residency. Ngige's status as a spouse of a citizen triggered
her eligibility to file a Form I-360 VAWA-based petition for a change in status.
See 8 U.S.C. § 1229b(b)(2)(A)(i). Thus, her VAWA petition, along with the
psychological evaluation submitted in support, was merely a shift in tactics to
achieve the same basic goal: to capitalize on a sham marriage in order to
achieve a change in immigration status. Cf. Stewart, 744 F.3d at 23 n. 5 (“[J]ust
because a conspiratorial objective could have been achieved via different means
does not suggest that the means selected were not in furtherance of the
conspiracy.”); United States v. Sarantos, 455 F.2d 877, 883 (2d Cir.1972) (in a
marriage fraud case, rejecting argument that the scope of the conspiracy was
limited to the filing of the initial visa petition and upholding conviction
where defendant knew the objective of the conspiracy was to achieve permanent
residency for co-conspirator, even though “he may not have been familiar with
every step that would be taken by his co-conspirators to achieve [the
conspiracy's] objective[ ]”).
As an alternative ground for reversal, Ngige argues that the conspiracy
terminated when Frank withdrew in 2005, and thus the conspiracy had ended by the
time she filed the psychological report in August 2007. But nothing in the
record supports the contention that the third co-conspirator, Mbugua, had ever
withdrawn his involvement. An inactive co-conspirator is “ ‘presumed to be a
continuing member’ “ of an ongoing conspiracy unless the defendant has
established that co-conspirator's withdrawal. United States v. Pizarro-Berríos,
448 F.3d 1, 10 (1st Cir.2006) (quoting United States v. Robinson, 390 F.3d 853,
882 (6th Cir.2004)). Although the stipulations are silent as to Mbugua's role in
the conspiracy after Ngige paid him for his services, the “[m]ere cessation of
activity in furtherance of the conspiracy does not constitute withdrawal.”
United States v. Ciresi, 697 F.3d 19, 27 (1st Cir.2012) (alteration in original)
(citation omitted); see also Smith v. United States, -- U.S. --, --, 133 S.Ct.
714, 720, 184 L.Ed.2d 570 (2013) (“Passive nonparticipation in the continuing
scheme is not enough to sever the meeting of minds that constitutes the
conspiracy.”).
Finally, Ngige contends that the conspiracy was no longer ongoing in August 2007
because she herself withdrew from the conspiracy in January 2006, when she filed
for divorce. “Withdrawal is a demanding defense requiring affirmative evidence
of an effort to defeat or disavow [the conspiracy] “ United States v. Potter,
463 F.3d 9, 20 (1st Cir.2006); see also Ciresi, 697 F.3d at 27 (describing the
standard for withdrawal as “ ‘strict’ and not easily met” (quoting United States
v. Piper, 298 F.3d 47, 53 (1st Cir.2002))). It is arguably true that when she
filed for divorce in January 2006, Ngige had given up on convincing Frank to
continue supporting her Form I-130/Form I-485 petition. But later that same year
she utilized her status as the spouse of a U.S. citizen to file a VAWA-based
Form I-360 to achieve a change in her immigration status, and the following
year, she submitted the psychological evaluation to buttress that petition. Cf.
Stewart, 744 F.3d at 24 (holding that rescinding one type of
change-of-immigration-status petition does not constitute abandonment of the
conspiracy). While Ngige took steps to dissolve the marriage, she continued to
submit false statements to USCIS about her relationship with Frank in order to
achieve the ultimate goal of a change in her immigration status. Nothing in the
record supports Ngige's contention that she withdrew from the conspiracy; to the
contrary, the record supports the conclusion that she continued to take
affirmative steps to achieve the conspiracy's objective. Cf. Upton, 559 F.3d at
10 (“A conspiracy endures as long as the co-conspirators endeavor to attain the
‘central criminal purposes' of the conspiracy.” (quoting Grunewald, 353 U.S. at
401)).
In sum, we conclude that the record amply supports the district court's guilty
verdict.
III. Conclusion
For the foregoing reasons, we affirm Ngige's conviction.
STAHL, Circuit Judge.