[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-11077

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D.C. Docket No. 6:12-cr-00176-ACC-GJK-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

MARLON JIMENEZ, 

 Defendant - Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(May 20, 2014)

Before MARTIN and DUBINA, Circuit Judges and DUFFY,* District Judge.

PER CURIAM: 

 

* Honorable Patrick Michael Duffy, United States District Judge for the District of South 

Carolina, sitting by designation.

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Appellant/Defendant, Marlon Jimenez (“Jimenez”), appeals his conviction 

for marriage fraud in violation of 8 U.S.C. § 1325(c), claiming that the district 

court erred in failing to instruct the jury on a third element of the crime, 

specifically, that the jury was required to find that Jimenez entered into the 

marriage with the knowledge that his conduct was unlawful. This circuit has not 

specifically resolved the question regarding the knowledge element under this 

statute.

We review de novo jury instructions challenged in the district court “to

determine whether the instructions misstated the law or misled the jury to the 

prejudice of the objecting party.” United States v. House, 684 F.3d 1173, 1196 

(11th Cir. 2012), cert. denied, 133 S. Ct. 1633 (2013) (internal quotation marks 

omitted). “Jury instructions are subject to harmless error review.” Id. at 1196-97

(quoting United States v. Webb, 655 F.3d 1238, 1249 n.8 (11th Cir. 2011)). In a 

harmless error analysis, the Government has the burden to show “beyond a 

reasonable doubt that the error complained of did not contribute” to the verdict. 

United States v. Davis, 407 F.3d 1269, 1271 (11th Cir. 2005) (internal quotation 

marks omitted). We will reverse the district court because of an erroneous 

instruction only if we are “left with a substantial and ineradicable doubt as to 

whether the jury was properly guided in its deliberations.” United States v. Felts, 

579 F.3d 1341, 1343 (11th Cir. 2009) (internal quotations marks omitted). 

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As an initial matter, the Government argues that Jimenez did not preserve 

his challenge to the jury instruction in the district court. The Government’s 

contention is without merit.

Before jury selection, defense counsel mentioned to the district court that 

there was some question regarding whether the jury instructions should contain a

knowledge element under 8 U.S.C. § 1325(c) that the Government must prove in 

order for the jury to find Jimenez guilty. Additionally, at the conclusion of the 

trial, defense counsel stated that jury instruction A7 should contain another 

element: that the defendant knew that the conduct in question was unlawful. Thus, 

we conclude that the issue was properly preserved for appellate review.

We note that several circuits have determined that in order to secure a 

conviction under the marriage fraud statute, the Government is required to prove 

that the defendant knew that the conduct in question was unlawful. See United 

States v. Dyugaev, 443 F. App’x 810, 812 (4th Cir. 2011); United States v. Yang, 

603 F.3d 1024, 1026 (8th Cir. 2010); United States v. Islam, 418 F.3d 1125, 1128 

(10th Cir. 2005); United States v. Chowdhury, 169 F.3d 402, 407 (6th Cir. 1999). 

However, in a recent unpublished opinion, this circuit posited that there were two 

prongs the Government must prove to convict a defendant of marriage fraud under 

8 U.S.C. § 1325(c): (1) that the defendant “knowingly entered into a marriage[;] 

and (2) the marriage was for the purpose of evading any provision of the 

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immigration laws.” United States v. Khidirov, 538 F. App’x 877, 880 (11th Cir. 

2013). In another case, this circuit determined that it did not have to decide 

whether the Government must prove a defendant entered into a marriage with 

knowledge that his conduct was unlawful because, under any construction of the 

statute, sufficient evidence supported the conviction. See United States v. Magee, 

315 F. App’x 882, 884 (11th Cir. 2009). See also United States v. Rojas, 718 F.3d 

1317, 1320 n.2 (11th Cir. 2013) (addressing the statute of limitations under the 

statute and declining to consider whether the Government must also prove a

knowledge element because it was irrelevant to the disposition of the case).

Likewise, we need not decide whether a third element is necessary under the 

marriage fraud statute because, under any construction of the statute, sufficient 

evidence supports Jimenez’s conviction. The Government presented evidence that 

Jimenez knowingly entered into the fraudulent marriage for the purpose of 

securing immigration benefits, and Jimenez knew that the marriage was fraudulent 

because his friend paid someone to find a United States citizen for Jimenez to 

marry. Additionally, there was evidence that Jimenez entered into the marriage 

without the intent to live with this individual as husband and wife. Accordingly, 

we find no error in the district court’s instruction to the jury, and we affirm 

Jimenez’s conviction.

AFFIRMED.

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