Thursday, November 29, 2012

The First Paragraph of 18 U.S.C. § 1546(a) Prohibits the Possession or Use of Authentic Immigration Documents Obtained Fraudulently

In United States v. Kouevi, No. 10-3529 (October 24, 2012), the Third Circuit addressed the issue of whether the defendant’s conduct was criminalized by the first paragraph of the visa fraud statute, 18 U.S.C. § 1546(a). This appeal raises a question of statutory construction that is an issue of first impression in our Circuit.

Kouevi was born in Lome, Togo. The Government contends that he conspired with others to use fraudulent means to obtain authentic visas for at least 34 people through the American Embassy in Togo, and that those persons then used those visas to enter the United States.

The schedule involved “diversity visas”, which are made available to citizens of countries who send relatively low number of immigrants to the United States each year. The visas are a means of promoting diversity within the annual pool of immigrants entering the United States.

According to the evidence at trial, Kouevi and his co-conspirator worked with individuals in Togo who were actually eligible for diversity visas, but were unable to either complete the necessary paperwork, pay the required fees, or afford the airfare to travel to the United States.

A co-conspirator paid the required fees of persons who were eligible for the diversity lottery and assisted them in completing their paperwork. In exchange, the applicants were required to falsely represent that other unrelated individuals were their spouses and/or children, so that those individuals could also obtain visas to enter the United States under the program.

Kouevi was responsible for coordinating the preparation of false documents used to support the fraudulent visa applications, and he tutored participants in the details of their false identities to prepare them for their interviews at the American Embassy in Togo. He also accompanied visa applicants to government offices in Togo and helped them acquire false passports, marriage certificates and similar documents required to support their visa applications. This included obtaining additional false evidence of purported relationships including fake wedding rings and fake wedding pictures. He quizzed the applicants about the details of their identities and otherwise coached them in how to successfully interview at the American Embassy. He then took them to the American Embassy for their interviews. In return, his co-conspirator helped him fraudulently obtain his own visa and paid his costs for the visa and airfare to the United States.

Kouevi was subsequently charged in a two-court indictment with conspiracy to commit visa fraud, in violation of 18 U.S.C. § 37, and visa fraud, in violations of 18 U.S.C. § 1546(a). He was convicted on both counts and sentenced to 26 months imprisonment.
Kouevi contends that his conviction for violating 18 U.S.C. § 1546(a) should be reversed because the first paragraph of the statute he was convicted of violating does not criminalize activities involving authentic immigration documents. His argument attempts to distinguish between producing a counterfeit or fraudulent passport or visa and obtaining an authentic passport or visa by fraudulent means.

The Court held that the plain language of the statute reveals that the first paragraph of 18 U.S.C. § 1546(a) prohibits the possession or use of authentic immigration documents which are obtained by fraud.

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