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United States v. Assi


October 17, 1984


Appeal from judgments of conviction after a jury trial by the United States District Court for the Southern District of New York (Irving Ben Cooper, Judge) of conspiracy to commit, and commission of, the crimes of making false statements to the Immigration and Naturalization Service, obstruction of justice, and visa fraud. Reversed.

Author: Winter

Before: VAN GRAAFEILAND and WINTER, Circuit Judges, and BARTELS, District Judge.*fn*

WINTER, Circuit Judge:

Appellants Fathi Assi and Judith Charres appeal from convictions before Judge Cooper by a jury in the Southern District of New York of conspiracy to commit, 18 U.S.C. § 371, aiding and abetting in, 18 U.S.C. § 2, and the commission of, the substantive crimes of making false statements to the Immigration and Naturalization Service ("INS"), 18 U.S.C. § 1001, obstruction of justice, 18 U.S.C. § 1505 and visa fraud, 18 U.S.C. § 1546.

We reverse.


The appellants' convictions stem from their association with Magdi El-Gendi, a student alien at Fairleigh-Dickenson University and Norma Iris Martinez, a United States citizen. On December 17, 1981, El-Gendi and Martinez entered into a sham marriage to secure him permanent resident alien status. Assi and Charres witnessed the marriage ceremony and signed the marriage certificate. In January, 1982 El-Gendi and Martinez submitted several false documents to the INS in seeking permanent alien resident status for El-Gendi. The marriage and submission of documents are the basis for the criminal charges in this case.

Martinez later admitted to an INS investigator that the marriage was a sham. She thereafter entered a plea of guilty to one count of making false statement to the INS and signed a cooperation agreement with the government. Her testimony for the government at Assi's and Charres' trial was the only evidence linking them to her sham marriage. According to Martinez, Charres asked her twice in November, 1981 whether she knew anyone willing to enter a sham marriage to secure citizenship for an alien. On the second occasion, Martinez expressed interest in the proposition and asked how much she would be paid. Thereafter Charres introduced Martinez to Assi, a Palestinian refugee and student with permanent resident alien status. He then introduced Martinez to his friend and fellow student, El-Gendi. Martinez stated that Assi offered her $500 to marry El-Gendi.

On December 17, 1981, Martinez and El-Gendi were married with Assi and Charres as witnesses. Martinez testified that Assi in the presence of Charres handed her $200 and promised her $300 when El-Gendi received his green card. On January 20, 1982 Martinez and El-Gendi submitted documents to the INS falsely representing that they were living together as man and wife. Martinez further testified that Assi and Charres had coached her as to how to respond to any INS inquiries about the legitimacy of the marriage. Since Charres had left New York on January 5, 1982 to live in Puerto Rico, this alleged conversation must have occurred before that date.

Martinez also testified, over defense objection, that on August 10, 1983, after she had confessed to the INS investigator, she and a companion, Antonio Ramirez, were abducted by a group of "Arabs" in a car she identified as Assi's. She was held overnight and told to deny her statement to the INS. Subsequently, "several Chinese" took her to a court proceeding instituted to block El-Gendi's deportation, where Martinez denied before Judge Lowe that she had entered into a sham marriage. The following day, August 12, Martinez swore that her testimony the day before was false. Despite the fact that the government had stipulated that neither Assi, who was in Jordan at the time, nor Charres, who had left the country over one and one-half years before, were in any way connected with the abductors, Martinez was allowed to explain her perjury in the deportation proceeding by describing the abduction.

Ramirez was also allowed to corroborate Martinez's story of the abduction but stated further that Assi had been at the scene. Since Assi was in Jordan at the time of the incident, the government then had to impeach Ramirez's testimony. In view of the fact that appellants were in no way connected with the abduction, the district court gave a limiting instruction directing the jury to consider the evidence relating to the abduction "solely to establish (Martinez's) state of mind" at the deportation proceeding.

During her testimony, Martinez was impeached by a showing of prior convictions for shoplifting and criminal trespass. She also admitted to falsifying welfare applications.

Charres and Assi testified in their own defense and essentially denied all of Martinez's allegations of complicity in the fraudulent marriage.

On the third day of trial, the jury returned a verdict of guilty on all counts against Assi and Charres.*fn1 We reverse because of errors in the charge to the jury.


First, the very length of the charge, two hours and forty minutes, warrants concern in this three-day case, which involved only an issue of credibility. The purpose of jury instructions is to inform the jury clearly and succinctly of the role it is to play and the decisions it must make. We have previously recognized that "repetitious and unnecessarily long charges are confusing to a jury," United States v. Persico, 349 F.2d 6, 8 (2d Cir. 1965), and prevent it from grasping and applying the law to its clear and independent determination of the facts. Bollenbach v. United States, 326 U.S. 607, 612-13, 90 L. Ed. 350, 66 S. Ct. 402 (1946). The charge here was repetitious and wandering. It was unduly lengthened by jingoistic descriptions of the American criminal justice and immigration system, digressions into personal history, and other extraneous matters, including an offer to examine the jurors as to how much law they had learned from the judge with a view to admitting them as members of the bar.*fn2 Appellants had a right to a succinct charge on the applicable law free of irrelevant and confusing digressions. Given the simplicity of the issue here, the charge given could only have confused and misled the jury.

Second, the charge contained specific error. For example, it included a "community impact" charge, which stated that a conviction would be a clear warning that such crimes will not be tolerated, a fact of which the public was entitled to be assured.*fn3 This instruction, which was not requested by the government, was taken almost verbatim from United States v. Terry, 702 F.2d 299 (2d Cir.), cert. denied, 461 U.S. 931, 103 S. Ct. 2095, 77 L. Ed. 2d 304, 464 U.S. 992, 104 S. Ct. 482, 78 L. Ed. 2d 680 (1983), a decision stating that such language serves no "useful purpose," id. at 313, but held it harmless in the circumstances of that case. The district judge also characterized the government as taking the position that the defendants had "spat" upon the privileges conferred by the immigration laws.*fn4 Such language would have been improper if used by government counsel, which it was not, and the trial judge should not have imputed it to the government.

The court also used inflammatory language in discussing enforcement of the immigration laws.*fn5 The statement that the immigration laws are "designed to avert a mere handful who might under certain circumstances hold the country at bay" and his description of some illegal aliens as "elements, human but otherwise detrimental to the commonwealth" also serves no useful purpose and might be easily misunderstood by a jury. This risk was compounded by other comments upon the "undermanning" of the INS and consequent flow of illegal immigrants which he explicitly equated to the flow of drugs.

The charge also included prejudicial commentaries on the law of conspiracy, such as, for example, a reference to "the gruesome, irremediable, drastic horrifying effects of conspiratorial plans." Moreover, some of these comments may have left the impression that the defendants were members of a vast criminal syndicate which the government was beginning to unravel.*fn6 Resort to such commentary was specifically disapproved in United States v. Lozaw, 427 F.2d 911, 916 (2d Cir. 1970) where there was powerful evidence of a hierarchical conspiracy. Here, however, there was no evidence whatsoever of a hierarchical conspiracy, and this rhetoric, amounting as it did to an implication unwarranted by the evidence, was error. Moreover, the instruction revived the very inference that the limiting instruction at trial relating to the abduction evidence was intended to suppress. Charges such as this, which significantly confuse the jury's consideration of evidence introduced for limited purposes have been repeatedly held erroneous. United States v. Morales, 577 F.2d 769, 773 (2d Cir. 1978); United States V. Araujo, 539 F.2d 287, 289 (2d Cir.), cert. denied, 429 U.S. 983, 97 S. Ct. 498, 50 L. Ed. 2d 593 (1976).

Additionally, the instructions on the credibility of accomplices and criminal defendants, an issue on which the entire case turned, were not balanced.*fn7 The judge's comments on the necessity of using accomplices in order to obtain "by far the greater number" of convictions invited the jury to infuse their consideration of Martinez's testimony with public concerns for law enforcement. With regard to Martinez, he suggested that truth, like courage, comes from "unlikely sources," and the colorful word play with "purge" and "perjury" was unduly suggestive. Similar instructions barely survived review in Araujo, 539 F.2d at 290, where we noted there that it would have been "much better to have avoided this instruction."

In contrast, the instructions with regard to the testimony of the appellants, given immediately after the charge on the credibility of the accomplice Martinez, were quite negative.*fn8 Observing that interest in the outcome of litigation creates a motive to perjure oneself, he then noted that the interest of a criminal defendant is "of a character possessed by no other witness." In Araujo, a similar charge had not been objected to in the district court and thus was not preserved for review. Nevertheless, we believed it so incorrect that we expressly disapproved of it. Id. at 289-90. See also, Persico, 349 F.2d at 10-12. Such a charge, given in conjunction with the accomplice charge above, was prejudicial to the appellants, particularly since Martinez, who was more deeply involved and faced potentially more serious charges than appellants, may well have viewed her version of the facts as a way to obtain a lenient sentence on reduced charges.

The basic errors in the charge were aggravated by other conduct of the district judge. At one point in the trial, he vouched for the credibility of the prosecutor by referring the jury to "the words of the distinguished Assistant United States Attorney who's been handling this case before us." It is not proper for a court to refer to the high character of counsel, especially of only one side, Thomas, Improvements in Charges to Juries, 1 F.R.D. 141-42 (1940). Furthermore, when the two hour and forty minute charge ended at 6:25 p.m., the court informed the jury that it would be taken to dinner, after which it would begin deliberations. If it did not reach a verdict by "10:30 or close to 11:00," the jurors were told, they would be driven home, only to return the next morning. He then stated, "It is as simple as that. There has to be a verdict." This was further error. United States v. Stewart, 513 F.2d 957, 959 (2d Cir. 1975); see also Hodges v. United States, 408 F.2d 543, 552-54 (8th Cir. 1969).

In viewing the charge as a whole, Cupp v. Naughten, 414 U.S. 141, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973), strengthens our conviction that the error here was not harmless. The trial judge repeatedly stated to the jury that he would never tell them what his views of the case were,*fn9 remarks which compounded the effect of the various matters described above. Nor were cautionary instructions sufficient to cure error of this kind. The erroneous instructions here could not be cured by ritualistic statements telling the jury that the issues were solely for the jury to decide. Appellants strenuously urged their innocence, and the case turned solely on their credibility as weighed against that of Martinez. Moreover, many of the instructions have been specifically disapproved in prior decisions. In such circumstances, error of this kind is not harmless.


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