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