IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20235

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

REBMANN ONGAGA; ANDREW MOKORO; HERMAN OGOTI; ALFONSO 

ONGAGA, 

 Defendants - Appellants

Appeals from the United States District Court

for the Southern District of Texas

Before JONES, WIENER, and HIGGINSON, Circuit Judges.

WIENER, Circuit Judge:

Defendants Andrew Mokoro, Herman Ogoti, Alfonso Ongaga, and 

Rebmann Ongaga appeal their separate judgments of conviction. We affirm all 

of the convictions, with the exception of Herman Ogoti’s and Rebmann

Ongaga’s convictions for marriage fraud.

I.

FACTS AND PROCEEDINGS

A grand jury returned an indictment in November 2010, charging 

Andrew Mokoro (“Mokoro”), Herman Ogoti (“Ogoti”), Alfonso Ongaga 

(“Alfonso”), and Rebmann Ongaga (“Rebmann”) with conspiracy to commit 

marriage fraud, marriage fraud, and fraud and misuse of visa, permits, and 

United States Court of Appeals

Fifth Circuit

FILED

April 13, 2016

Lyle W. Cayce

Clerk

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other documents. In May 2012, a grand jury returned a ten count second 

superseding indictment against the defendants. Count One charged Mokoro, 

Ogoti, Alfonso, and Rebmann with conspiracy to commit marriage fraud, in 

violation of 18 U.S.C. § 371 and 8 U.S.C. § 1325(c). The indictment alleged that 

the object of their conspiracy was to knowingly enter into marriages and to 

help others enter into marriages for the purpose of evading immigration laws,

in violation of 8 U.S.C. § 1325(c). Counts Two, Three, and Four charged Ogoti, 

Rebmann, and Mokoro, respectively, with marriage fraud, in violation of 8 

U.S.C. § 1325(c). Counts Five, Six, and Seven charged Ogoti, Mokoro, and 

Rebmann, respectively, with fraud and misuse of visa, permits, and other 

documents, in violation of 18 U.S.C. § 1546(a). Count Eight charged Rebmann 

with tampering with a witness, in violation of 18 U.S.C. § 1512(b)(3). Counts 

Nine and Ten charged Alfonso and Ogoti, respectively, with unlawful 

procurement of naturalization, in violation of 18 U.S.C. § 1425(b).

After a six-day trial, a jury found the defendants guilty on all counts, 

with the exception of Rebmann’s witness-tampering count. The evidence 

showed that the defendants—all Kenyan nationals—married members of a 

closely connected group of American women to gain residency and citizenship.

The defendants then prepared fraudulent immigration forms and took 

additional steps to make their marriages appear legitimate. The evidence 

further showed that the defendants sought to procure American spouses for 

other Kenyan nationals—some residing in the United States, others residing 

in Kenya—for the same purpose.

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II.

ANALYSIS

A. Count One

Count One charged the defendants with conspiracy to commit marriage 

fraud, in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1325(c). All of the 

defendants contend that Count One should be dismissed because the 

government failed to prove an offense occurring within the statute of 

limitations. All of the defendants preserved their challenges to the sufficiency 

of the evidence by moving for acquittal under Federal Rule of Criminal 

Procedure 29 at the conclusion of the government’s case and again at the close 

of all evidence, so our review is de novo.1 We view all evidence in the light most 

favorable to the government, drawing all reasonable inferences and credibility 

choices in favor of the jury’s verdict.2 We will affirm the jury’s verdict if we 

conclude that a rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.3

The statute of limitations for conspiracy to commit marriage fraud in 

violation of 18 U.S.C. § 371 and 8 U.S.C. § 1325(c) is five years.4 To prove a 

conspiracy under 18 U.S.C. § 371, the government had to prove

(1) an agreement between two or more persons to pursue an 

unlawful objective; (2) the defendant’s knowledge of the unlawful 

objective and voluntary agreement to join the conspiracy; and (3) 

 

1 United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012).

2 Id.

3 Id.

4 See 18 U.S.C. § 3282(a) (“Except as otherwise expressly provided by law, no person 

shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is 

found or the information is instituted within five years next after such offense shall have 

been committed.”); United States v. Ngige, 780 F.3d 497, 502 (1st Cir. 2015) (applying 18 

U.S.C. § 3282(a)’s general five-year statute of limitations to conspiracy to commit marriage 

fraud).

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an overt act by one or more of the members of the conspiracy in 

furtherance of the objective of the conspiracy.5

For this charge to be timely, the government had to prove “the existence of the 

conspiracy within the five years prior to the return of the indictment, and . . . 

the commission of at least one overt act by one of the conspirators within that 

period in furtherance of the conspiratorial agreement.”6

The defendants first contend that the government did not prove a single 

conspiracy; rather, they assert, their individual participations in any 

conspiracy ended on the occurrence of their respective marriages. It next

follows, they each argue, that because each of their marriages occurred more 

than five years before the original indictment, the charge in Count One is 

untimely. In other words, the defendants contend that the government failed 

to prove an overt act of a single conspiracy occurring within the limitations 

period.

Initially, we examine whether the government proved a single 

conspiracy. “The principal considerations in counting the number of 

conspiracies are (1) the existence of a common goal; (2) the nature of the 

scheme; and (3) the overlapping of the participants in the various dealings.”7

Whether the evidence shows a single conspiracy or multiple conspiracies is a 

fact question for the jury to decide.8 “We will affirm the jury’s finding that the 

government proved a single conspiracy unless the evidence and all reasonable 

inferences, examined in the light most favorable to the government, would 

 

5 United States v. Richard, 775 F.3d 287, 294 (5th Cir. 2014) (quoting United States v. 

Coleman, 609 F.3d 699, 704 (5th Cir. 2010)).

6 United States v. Davis, 533 F.2d 921, 926 (5th Cir. 1976).

7 United States v. Simpson, 741 F.3d 539, 548 (5th Cir. 2014) (citing United States v. 

Mitchell, 484 F.3d 762, 770 (5th Cir. 2007)).

8 Id. (quoting Mitchell, 484 F.3d at 769).

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preclude reasonable jurors from finding a single conspiracy beyond a 

reasonable doubt.”9

The government alleged that the common goal of the conspiracy was for 

the defendants to enter into marriages for the purpose of evading immigration 

laws, in violation of 18 U.S.C. § 1325(c). The indictment elaborated that the

common goal was not only to accomplish the defendants’ marriages, but also to 

facilitate the marriages of other Kenyan nationals so that they could enter or 

remain in the United States. The evidence supported these allegations. For 

example, Alfonso met his wife through Lawrence Adams, whom Alfonso asked 

if he knew a woman he could marry to gain citizenship in exchange for money. 

Alfonso later paid Adams to marry Alfonso’s friend so that the friend could 

obtain American citizenship. Ogoti entered into his own fraudulent marriage. 

His wife, Sabrina Adams, introduced her daughter Deshae Adams and 

Adams’s friend, Dyshae Foster, to the defendants. Mokoro entered into his own 

fraudulent marriage and offered Deshae Adams and Dyshae Foster money to 

travel to Kenya to marry Kenyan men, and he tried to help them obtain 

passports. Rebmann also entered into his own fraudulent marriage and took 

Deshae Adams and Dyshae Foster shopping to buy them clothes and luggage 

for their trip to Kenya.

The nature of the scheme looks to whether “the activities of one aspect 

of the scheme are necessary or advantageous to the success of another aspect 

of the scheme or to the overall success of the venture.”10 Here, the defendants’ 

marriages allowed them to stay in the United States to recruit potential 

spouses. Further, the success of the defendants’ marriages encouraged others 

 

9 Id. (quoting Mitchell, 484 F.3d at 769) (internal quotation marks omitted).

10 United States v. DeVarona, 872 F.2d 114, 118 (5th Cir. 1989) (quoting United States 

v. Elam, 678 F.2d 1234, 1246 (5th Cir. 1982)).

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to participate in the scheme. For example, Mokoro’s wife, Tequila Rhymes, 

testified that she decided to marry Mokoro after observing and hearing about 

Alfonso’s fraudulent marriage.

The final prong “examines the interrelationships among the various 

participants in the conspiracy.”11 “The more interconnected the relationships, 

the more likely it is that there is a single conspiracy.”12 Here, the participants 

were either family members or friends and the conspiracy largely existed to 

help other family members and friends gain American citizenship. Through 

this close network of family members and friends, the defendants entered their 

own fraudulent marriages and helped other do the same.

Considering this evidence, we conclude that a reasonable jury could have 

found that the government proved a single ongoing conspiracy to commit 

marriage fraud.

Concluding that the government proved a single conspiracy, we turn to 

whether the government proved overt acts of the conspiracy occurring within 

the limitations period. The government alleged and presented evidence of 

several overt acts in the indictment which were within the limitations period, 

most notably the efforts of several defendants to have Deshae Adams and 

Dyshae Foster travel to Kenya to marry individuals so that they would be able 

to gain an immigration benefit. Because the government alleged and proved 

an overt act occurring with the limitations period, the charge in Count One 

was timely and we affirm the convictions.

 

11 Simpson, 741 F.3d at 549 (quoting United States v. Morris, 46 F.3d 410, 416 (5th 

Cir. 1995)).

12 Id.

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B. Counts Two and Three

Ogoti and Rebmann were both charged with and convicted of marriage 

fraud, in violation of 8 U.S.C. § 1325(c). Both defendants challenge their 

convictions as untimely, and both moved for acquittal on this ground before 

the district court.13 We review de novo the district court’s legal conclusion that 

that these charges were not barred by the statute of limitations.14

Count Two alleged that Ogoti entered into a fraudulent marriage on 

February 10, 2004, and Count Three alleged that Rebmann entered into a 

fraudulent marriage on February 21, 2005. Both marriages occurred more than

five years before the original indictment in November 2010 and the second 

superseding indictment in May 2012. Because the offense of marriage fraud 

under 8 U.S.C. § 1325(c) does not provide a statute of limitations, 18 U.S.C. § 

3282(a)’s five-year limitations period applies. Both Ogoti and Rebmann

contend that their charges for marriage fraud should have been dismissed as 

untimely. To reach this conclusion, they urge us to hold that marriage fraud is 

not a continuing offense. The government concedes that Ogoti’s and Rebmann’s 

charges for marriage fraud were time-barred because the charges occurred 

more than five years after their marriages.

Generally, the statute of limitations begins to run when the crime is 

complete, meaning that all the elements of the crime have been satisfied.15 For 

a continuing offense, however, “the statute of limitations does not being to run 

when all elements of the crime are first satisfied, but rather when the ongoing 

 

13 At the district court, Ogoti moved for acquittal on the basis that the statute of 

limitations had run as to Counts One and Four. Ogoti, however, was not charged in Count 

Four. We assume that Ogoti meant to challenge Count Two on this basis.

14 United States v. Irby, 703 F.3d 280, 282–83 (5th Cir. 2012).

15 United States v. Tavarez-Levario, 788 F.3d 433, 436 (5th Cir. 2015).

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commission of the crime comes to an end.”16 We are reticent to find an offense 

to be continuing because such a finding extends the statute of limitations.17

Only when “the explicit language of the substantive criminal statute compels 

such a conclusion” or “the nature of the crime involved is such that Congress 

must assuredly have intended that it be treated as a continuing one” will we 

construe an offense as continuing.18

We thus should begin with the language of the statute. The marriage 

fraud statute reads:

Any individual who knowingly enters into a marriage for the 

purpose of evading any provision of the immigration laws shall be 

imprisoned for not more than 5 years, or fined not more than 

$250,000, or both.19

The elements of marriage fraud require only that the defendant (1) knowingly 

entered into a marriage (2) for the purpose of evading any provision of the 

immigration laws.20 Nothing in the statute’s plain language, for instance, 

indicates that a person need actually apply for immigration benefits to violate 

the statute. Actions occurring after the marriage do not constitute elements of 

the offense under § 1325(c).21 Instead, all of the elements of marriage fraud are 

satisfied when the defendant enters into the marriage.22 In sum, the plain 

 

16 Id. at 437.

17 See Toussie v. United States, 397 U.S. 112, 115 (1970) (“[C]riminal limitations 

statutes are ‘to be liberally interpreted in favor of repose.’” (quoting United States v. Habig, 

390 U.S. 222, 227 (1968))). 18 Tavarez-Levario, 788 F.3d at 437 (quoting Toussie, 397 U.S. at 115).

19 8 U.S.C. § 1325(c).

20 United States v. Ortiz-Mendez, 634 F.3d 837, 839 (5th Cir. 2011).

21 See United States v. Rojas, 718 F.3d 1317, 1320 (11th Cir. 2013) (holding that 

marriage fraud is not a continuing offense); cf. United States v. Sonmez, 777 F.3d 684, 687–

88 & n.4 (4th Cir. 2015) (listing elements of marriage fraud and collecting cases); OrtizMendez, 634 F.3d at 839–40 (same).

22 Rojas, 718 F.3d at 1320.

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language of the statute does not compel the conclusion that marriage fraud is 

a continuing offense.23

Neither is the nature of the crime such that Congress would have 

intended it to be treated as a continuing offense. Typically, such crimes are 

those which involve an “ongoing threat of harm” or those “offenses that prohibit 

an individual from remaining in an unlawful condition or status.”24 There is 

no ongoing threat of harm from having entered into a marriage to evade the 

immigration laws unless those laws are actually violated. In that case, 

fraudulently obtaining immigration benefits or lying to federal agents are 

themselves crimes.25 Furthermore, being married—even for the purpose of 

evading immigration laws—is not itself an unlawful condition or status.

Concluding that marriage fraud is not a continuing offense, we hold that 

the charges of marriage fraud against Ogoti and Rebmann were untimely and 

should be dismissed. Accordingly, we reverse the district court’s denial of 

Ogoti’s and Rebmann’s motions for acquittal on Counts Two and Three, 

respectively, and vacate their convictions on those counts.

C. Count Four

Mokoro challenges the sufficiency of the evidence to convict him on 

Count Four’s charge of marriage fraud for his marriage to Angela Young in 

2010. We review de novo Mokoro’s preserved challenge to the sufficiency of the 

evidence.26 The gist of Mokoro’s challenge is that because Young did not testify 

at trial, there was not sufficient evidence to show that he entered into the 

marriage for the purpose of evading immigration laws. According to Mokoro, 

 

23 See id. (“[N]othing in the text of § 1325(c) compels the conclusion that Congress 

intended marriage fraud to be a continuing offense.”).

24 Tavarez-Levario, 788 F.3d at 439 (emphasis omitted).

25 See id. at 440.

26 Grant, 683 F.3d at 642. 

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who did not testify, Young was the only person—other than himself—who 

could have testified about the purpose of their marriage.

As stated, the government needed to prove that Mokoro (1) entered into 

a marriage (2) for the purpose of evading immigration laws.27 Whether a 

defendant intended “to establish a life with his spouse” is one factor that may 

be considered in determining the purpose of the marriage.28 The first factor, 

that Mokoro married Young, is undisputed. As for the second factor, the 

government adduced evidence from which the jury could have reasonably 

concluded that Mokoro entered the marriage for the purpose of evading 

immigration laws. The government initially showed that during its 

investigation, Young was never observed at Mokoro’s residence, despite being 

his wife. The government also proved that both before and during Mokoro’s 

marriage to Young, Mokoro maintained a relationship with another woman, 

Tabitha Wanjohi. Wanjohi testified that she and Mokoro lived together and 

had children together. The government further showed that before marrying 

Young, Mokoro had married another U.S. citizen, Tequila Rhymes, for 

immigration purposes. Rhymes testified that she married Mokoro for money 

so that he could become a citizen. They divorced and he withdrew his petition 

to adjust his immigration status shortly thereafter. Only ten months later, 

Mokoro married Young and filed new immigration forms. A reasonable jury 

could have found that Mokoro married Young for the purposes of evading 

immigration laws. We affirm Mokoro’s conviction on Count Four.

 

27 Ortiz-Mendez, 634 F.3d at 839.

28 Id. at 840.

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D. Counts Five and Ten

Ogoti challenges his convictions under Count Five for visa fraud, 18 

U.S.C. § 1546(a), and under Count Ten for unlawful procurement of 

naturalization, 18 U.S.C. § 1425(b), as untimely. Title 18 U.S.C. § 3282(a) 

imposes a five-year limitations period on both counts. In the district court, 

Ogoti did not move for acquittal on the ground that these counts were barred 

by the statute of limitations. The Supreme Court recently instructed that 

failure to raise a limitations defense under 18 U.S.C. § 3282(a) “at or before 

trial means that it is reviewable on appeal—if at all—only for plain error.”29 In 

the same breath, the Court instructed that “a district court’s failure to enforce 

an unraised limitations defense under § 3282(a) cannot be plain error.”30 We 

find no error since Ogoti failed to raise his limitations defense at or before 

trial.31

E. Counts Six and Seven

Mokoro and Rebmann challenge their convictions for visa fraud, Counts 

Six and Seven, respectively. They contend that the government’s proof was a 

constructive amendment to the indictment and also raise a challenge to the 

sufficiency of the evidence. We review de novo Mokoro’s and Rebmann’s claims 

of constructive amendment.32 We review their challenge to the sufficiency of 

the evidence “in the light most favorable to the jury’s verdict and affirm if a 

 

29 Musacchio v. United States, 136 S. Ct. 709, 718 (2016).

30 Id. In so holding, the Court declined to decide whether failure to raise a limitations 

defense under § 3282(a) amounts to waiver or forfeiture. Id. at 718 n.3.

31 Even if Ogoti had preserved this issue, his argument is unavailing. As to Count 

Five, the evidence showed that Ogoti made a false statement on Form I-751 on May 9, 2007, 

within the limitations period. Likewise, as to Count Ten, the evidence showed that Ogoti 

made a false representation on his N-400 Application for Naturalization on February 21, 

2010, again within the limitations period.

32 United States v. Thompson, 647 F.3d 180, 183 (5th Cir. 2011).

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rational trier of fact could have found that the government proved all essential 

elements of a crime beyond a reasonable doubt.”33

1. Constructive Amendment

Mokoro and Rebmann first contend that the government’s proof 

constituted a constructive amendment of the indictment. The indictment 

charged them with making a false statement on Form I-751 when they swore 

that they “had entered into a bona fide marriage when in truth and fact such 

was not true,” in violation of 18 U.S.C. § 1546(a). On Form I-751 a petitioner 

certifies under penalty of perjury that his or her “marriage was entered in 

accordance with the laws of the place where the marriage took place and was 

not for the purpose of procuring an immigration benefit.” Because the false 

statement alleged in the indictment is not identical to the false statement on

the Form I-751 that the government proved at trial, Mokoro and Rebmann 

contend that the government’s proof amounted to a constructive amendment 

of the indictment.

The right to be tried only on charges alleged in a grand jury indictment 

flows from the Fifth Amendment.34 Constructive amendment occurs, in 

violation of this principle, “when the jury is permitted to convict the defendant 

upon a factual basis that effectively modifies an essential element of the crime 

charged.”35 In other words, constructive indictment occurs when the district 

court “allows proof of an essential element of the crime on an alternative basis 

provided by the statute but not charged in the indictment.”36

 

33 Id.

34 United States v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991).

35 United States v. Robles-Vertiz, 155 F.3d 725, 728 (5th Cir. 1998) (citation omitted).

36 United States v. Jara-Favela, 686 F.3d 289, 299 (5th Cir. 2012) (quoting United 

States v. Phillips, 477 F.3d 215, 222 (5th Cir. 2007)).

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In evaluating a claim of constructive amendment, we “scrutinize any 

difference between an indictment and a jury instruction [and] reverse only if 

that difference allows the defendant to be convicted of a separate crime from 

the one for which he was indicted.”37 Short of this, “we review the purported 

amendment as a variance, and the defendant must ‘show how the variance in 

the language between the jury charge and the indictment so severely 

prejudiced his defense that it requires reversal under harmless error 

review.’”38

We hold that the indictment was not constructively amended. In relevant 

part, 18 U.S.C. § 1546(a) makes it a crime to “knowingly make[] under oath . . 

. or . . . under penalty of perjury . . . any false statement with respect to a 

material fact in any application, affidavit, or other document required by the 

immigration laws . . . .” Count Six of the indictment charged that Mokoro

knowingly made under oath and under penalty of perjury, 

subscribed as true, and presented an application containing a false 

statement with respect to a material fact on United States 

Citizenship and Immigration Services Form I-751, for the purpose 

of procuring an immigration benefit that in such petition the 

defendant stated that he, Andrew Mokoro and A.Y., had entered 

into a bona fide marriage when in truth and fact such was not true.

Count Seven of the indictment contained an identical allegation against 

Rebmann, except for the identity of Rebmann’s putative spouse. 

The district court instructed the jury that the government must prove 

beyond a reasonable doubt that (1) the defendant made a false statement, (2) 

the defendant acted with knowledge that the statement was untrue, (3) the 

statement was material to the activities or decisions of Immigration and 

 

37 United States v. Nunez, 180 F.3d 227, 231 (5th Cir. 1999).

38 Jara-Favela, 686 F.3d at 300 (quoting Nunez, 180 F.3d at 231).

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Customs Enforcement; that is, it had a natural tendency to influence or was 

capable of influencing the agency’s decisions or activities, (4) the statement 

was made under oath or penalty of perjury, and (5) the statement was made 

on United States Citizenship and Immigration Services Form I-751. Mokoro 

and Rebmann do not challenge the district court’s recitation of the elements of 

the offense. Instead, Mokoro and Rebmann contend that the government’s 

proof amounted to a constructive amendment of the indictment because the 

government proved a different false statement than the one alleged in the 

indictment. We disagree.

The indictment alleged generally that Mokoro and Rebmann falsely 

certified on Form I-751 that they had entered into bona fide marriages. The 

charges identify exactly the manner in which Mokoro and Rebmann made the 

false statements and identify why the statements were false. At trial, the 

government proved that Mokoro and Rebmann falsely certified the specific 

statement in Form I-751 that their marriages were “entered in accordance with 

the laws of the place where the marriage took place and . . . not for the purpose 

of procuring an immigration benefit.”

Confronted with similar facts, we have found no constructive 

amendment. For example, in United States v. Jara-Favela, the indictment 

charged the defendant with lying to federal officers when he told one officer

that he was traveling from Laredo, Texas, and told the other officer that he 

was traveling from Nuevo Laredo, Mexico.39 The evidence at trial, however, 

showed instead that he told one officer he was coming from the “north” and 

 

39 Id.

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another he was coming from the “south.”40 We found no constructive 

amendment because, in context, the terms were synonymous.41

In this context, as in Jara-Favela, the false statement alleged and the 

false statement proven were synonymous. We note initially that “bona fide” 

means something “made in good faith without fraud or deceit; legally valid.”42

Beyond its common meaning, the term “bona fide” has been used as shorthand 

to describe whether a marriage was entered into for the purpose of evading the 

immigration laws.43 Critically, the government relied on the same theory of 

conviction in the indictment and at trial. The indictment, evidence, and 

convictions were all based on the same false statement. The jury was not 

permitted to convict Mokoro and Rebmann of a different crime than the one 

charged, nor was it permitted to convict on a false statement outside the scope 

of the indictment. The government’s allegations and the evidence sustaining 

the convictions shared the same common nucleus: false statements by Mokoro 

and Rebmann on Form I-751 regarding the legitimacy of their marriages. The 

government did not, for example, introduce evidence of false statements on 

different immigration forms or of false statements pertaining to anything but 

the defendants’ marriages.

At most, the government’s proof at trial amounted to a variance from the 

indictment. We thus ask whether the defendants have shown that “the 

 

40 Id.

41 Id.

42 Bona fide, WEBSTER’S THIRD NEW INT’L DICTIONARY (1986).

43 See, e.g., I.N.S. v. St. Cyr, 533 U.S. 289, 335 (2001) (SCALIA, J., dissenting) (referring 

to aliens deportable for “procur[ing] a visa through a marriage that was not bona fide” and 

citing 8 U.S.C. § 1227(a)(1)(G), which discusses aliens deportable for having procured a visa 

through marriage fraud); Alaswad v. Johnson, 574 F. App’x 483, 485–86 (5th Cir. 2014) 

(quoting the Board of Immigration Appeals as using the term “not bona fide” as synonymous 

with a “a marriage for the purpose of evading the immigration laws”).

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variance in the language between the jury charge and the indictment so 

severely prejudiced [their] defense that it requires reversal under harmless 

error review.”44 A variance rises to this level only when “it prejudices the 

defendant’s ‘substantial rights,’ either by surprising the defendant at trial or 

by placing him at risk of double jeopardy.”45 The instant variance was 

harmless. Both Mokoro and Rebmann knew that the term “bona fide” as 

alleged in the indictment referred to the legitimacy of their marriages as they 

had represented on Form I-751. This is evidenced by Mokoro’s and Rebmann’s 

strategy at trial to show that their marriages were genuine. Moreover, Form I751 itself contains no separate reference to a “bona fide marriage” but instead 

requires only the certification that the government proved at trial. Thus, the 

reference to “bona fide marriage” could only refer to the marriage certification.

Neither is there a risk of double jeopardy because there was no evidence of any 

other false statements. 

2. Sufficiency of the Evidence

Mokoro and Rebmann next challenge their convictions for visa fraud on 

the basis of the sufficiency of the evidence. The elements of visa fraud under 

18 U.S.C. § 1546(a) are “(1) the defendant made a false statement, (2) the 

statement was made knowingly and (3) under oath, (4) the statement concerns 

a ‘material fact,’ (5) and the statement was made in an application required by 

the United States immigration laws and regulations.”46 Mokoro and Rebmann 

only contest the first element, asserting that the government failed to prove 

that they made false statements.

 

44 Jara-Favela, 686 F.3d at 300 (quoting Nunez, 180 F.3d at 231).

45 United States v. Baker, 17 F.3d 94, 98 (5th Cir. 1994).

46 United States v. Boskic, 545 F.3d 69, 85 (1st Cir. 2008) (citing 18 U.S.C § 1546(a); 

United States v. Chu, 5 F.3d 1244, 1247 (9th Cir. 1993)).

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The government presented sufficient evidence to allow a reasonable jury 

to conclude that Mokoro and Rebmann each made a false statement by 

certifying on their Form I-751 “that the marriage was not for the purpose of 

procuring an immigration benefit.” In our resolution of Mokoro’s challenge to 

the sufficiency of the evidence on Count Four, we deemed the evidence

sufficient for a reasonable jury to conclude that Mokoro entered his marriage 

to Young to evade the immigration laws. The same evidence is also sufficient 

for the jury to conclude that he made a false statement when he claimed the 

opposite on Form I-751.

As for Rebmann, his wife, Vasha Adams, testified that she received 

payment to travel to Kenya and marry Rebmann so that he could come to the 

United States. She was paid to do this by Rebmann’s brother, Alfonso. Adams 

testified that she first met Rebmann when he picked her up from the airport 

in Kenya. She only recognized him because he had a sign with his name on it. 

Rebmann and Adams married the next day and Adams departed Kenya that 

night. When she returned to the United States, she lied to U.S. Customs 

officials about the purpose of her trip. She did not see Rebmann again for two 

years. She would occasionally see him in the United States, but she 

characterized their relationship as “just business.” Rebmann asked her to take 

photographs that showed them as a happy, married couple to support his 

immigration paperwork. This evidence was sufficient for a reasonable jury to 

conclude that Rebmann made a false statement on Form I-751. We affirm 

Mokoro’s and Rebmann’s respective convictions on Counts Six and Seven.

F. Batson Challenge

In their final challenge, the defendants assert that the district court 

erred by failing to make factual findings under the third prong of Batson.

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At the close of voir dire, Ogoti’s counsel made a Batson challenge to the 

government’s peremptory strike of juror number four, Maria Ofeno. He 

articulated that she “is in a protected class under Batson” and stated that,

based on the questions asked and answers given during voir dire, the 

prosecution had used its strike in a discriminatory manner. Ofeno’s race is not 

revealed in the record, but Alfonso’s briefing makes clear that the defendants 

believed the government’s challenge was based on race.

The prosecution responded with race-neutral reasons. First, Ofeno 

received her permanent residence and eventually her citizenship through the 

visa lottery and emigrated from Nigeria. She sponsored her husband for 

permanent residence and citizenship and they used the same process that 

many of the defendants used. She stated that she had friends who had used 

the marriage-based immigration system to attain their citizenship. Second, 

Ofeno was hesitant in responding to the prosecutor’s questions during voir 

dire. Third, Ofeno expressed the belief that both the husband and wife should 

be charged in a marriage fraud case.

Ogoti’s counsel then argued that the government’s reasoning about 

Ofeno’s immigration and her husband’s immigration was pretextual. His 

primary evidence was that, of the five jurors who indicated that they had 

immigrated to the United States, the prosecution struck only Ofeno. The 

government distinguished Ofeno’s situation from the others because Ofeno’s 

act of sponsoring her husband fit almost squarely with the facts of this case.

Moreover, of these five jurors, three were struck for cause, one was struck by 

the defendants, and the last, Ofeno, was struck by the government. The district 

court then denied the challenge: “I don’t think the strike was for the—was for 

a suspect reason. I think it was race neutral, origin neutral and gender neutral, 

and I’m going to deny the Batson challenge.”

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Under Batson v. Kentucky47 and its progeny, parties may not exercise 

peremptory challenges to strike jurors based on race, ethnicity, or sex.48 A 

challenge to a peremptory strike proceeds in three steps. First, the challengers 

(the defendants in this case) make an initial showing that the challenged party

made a strike on an impermissible basis. Second, the challenged party must 

offer a neutral reason for the strike. Third, “the district court must determine 

whether the [challenger] has carried his burden of proving purposeful 

discrimination.”49

On appeal, the defendants challenge only the district court’s 

determination that the government’s peremptory strike did not constitute 

purposeful discrimination. Because “[a] district court makes a finding of fact 

when it determines whether a prosecutor has purposively discriminated on the 

basis of race in striking a juror,” we grant “great deference” to the district 

court’s findings, reviewing them for clear error and remaining cognizant that 

that court’s observations of the prosecutor and the venire persons in question 

during voir dire are often decisive.50 Courts should not weigh whether 

“counsel’s reason is suspect, or weak, or irrational,” but should instead 

determine “whether counsel is telling the truth in his or her assertion that the 

challenge is not race-based.”51

Alfonso’s counsel observes that the district court made no factual 

findings to which we could owe any deference. Counsel argues instead that the 

district court accepted the government’s race-neutral explanation at face value 

 

47 476 U.S. 79 (1986).

48 Rivera v. Illinois, 556 U.S. 148, 153 (2009).

49 United States v. Thompson, 735 F.3d 291, 296 (5th Cir. 2013).

50 Id.

51 Id. at 297 (quoting United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir. 

1993)).

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when it should have evaluated the credibility and plausibility of that 

explanation. This, counsel contends, amounts to a combination of Batson’s 

steps two and three, a practice that the Supreme Court has forbidden.52

The government correctly counters that there is no requirement in this 

circuit that a district court make explicit factual findings during Batson’s third 

step. Indeed, “a district court may make ‘implicit’ findings while performing 

the Batson analysis.”53 A recent panel of this court explicitly rejected such a 

requirement, even when the only race-neutral reason advanced was a 

demeanor-based reason not otherwise reviewable based on the record.54

Although some other courts disagree, failure to make explicit factual findings 

on the third step is not itself reversible error.55

The district court heard argument from both sides and expressly stated, 

“I don’t think the strike was . . . for a suspect reason.” By finding that the 

challenged strike was not suspect, the district court necessarily found the 

government’s explanation credible: It could not have made that statement if it 

disbelieved the government’s race-neutral explanation. The record reflects that 

the district court performed the third step of the Batson analysis adequately

and implicitly found that the government’s strike was not purposefully 

discriminatory.

The question thus becomes whether the district court committed clear 

error in ruling that no Batson violation occurred in the government’s strike of 

 

52 See Purkett v. Elem, 514 U.S. 765, 768 (1995).

53 United States v. McDaniel, 436 F. App’x 399, 405 (5th Cir. 2011) (unpublished)

(collecting cases). 54 See Thompson, 735 F.3d at 300–01.

55 See Higgins v. Cain, 720 F.3d 255, 268 (5th Cir. 2013) (noting a circuit split on 

“whether a trial judge must make explicit findings of fact at Batson’s third step”).

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Ofeno.56 On appeal, Alfonso contends that the prosecutor’s explanation in 

striking Ofeno was not persuasive because she never stated that she could not 

be fair; and she agreed that marriage fraud should be prosecuted. That a 

witness made some statements favorable to the government, however, does not 

nullify the government’s other, legitimate concerns. Here, those included that

Ofeno had used the identical immigration process with her husband that some 

of the defendants were accused of fraudulently using with their putative 

spouses. This supports the district court’s conclusion that the government’s 

strike of Ofeno was not pretextual.57 The defendants have failed to show that 

the district court clearly erred in finding that the strike was not purposefully 

discriminatory. 

III.

CONCLUSION

We vacate Ogoti’s and Rebmann’s convictions on Counts Two and Three, 

respectively, and we affirm the convictions of all defendants on all other counts.

 

56 See McDaniel, 436 F. App’x at 406 (“Because we conclude that the district court 

implicitly found that the strike of prospective juror Johnson was not purposefully 

discriminatory, McDaniel must show that this finding was clearly erroneous in order to 

prevail in his Batson challenge.”).

57 In the district court, Alfonso’s counsel also attempted to show that the strike was 

pretextual based on the presence of other prospective jurors with similar experiences in the 

immigration system. Evidence that the government struck Ofeno, but not other similarly 

situated jurors of a different race could show purposeful discrimination. See Miller-El v. 

Dretke, 545 U.S. 231, 241 (2005) (“If a prosecutor’s proffered reason for striking a black 

panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that 

is evidence tending to prove purposeful discrimination to be considered at Batson’s third 

step.”). Here, five jurors, including Ofeno, indicated that they gained their citizenship 

through the naturalization process. Three of them were struck for cause. The defense struck 

another, and the government struck Ofeno. Thus, this argument is unavailing because all of 

the similarly situated jurors were either excluded for cause or excluded by the defense.

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