1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 10-3529

UNITED STATES OF AMERICA

v.

GEOFFRY KOUEVI 

a/k/a Kangni

GEOFFRY KOUEVI,

 Appellant

Appeal from the United States District Court

for the District of New Jersey

(Crim. No. 2-07-cr-00785-004)

District Judge: Hon. Jose L. Linares

Argued: October 5, 2011

Before: McKEE, Chief Judge, FUENTES, Circuit Judge, and

GREENBERG, Senior Circuit Judge

(Opinion filed: October 24, 2012)

MICHAEL A. BALDASSARE, ESQ. (Argued)

Baldassare & Mara, LLC

57 Broad Street, Suite 900

Newark, New Jersey 07102

Attorney for Appellant

PAUL J. FISHMAN, ESQ.

United States Attorney

CAROLINE SADLOWSKI, ESQ. (Argued)

Deputy Chief, Appeals Division

970 Broad Street
2

Newark, New Jersey 07102

Attorneys for Appellee

OPINION

McKEE, Chief Judge.

Geoffry Kouevi appeals his convictions for visa fraud 

and conspiracy to commit visa fraud. His primary argument 

on appeal is that his conduct is not criminalized by the part of 

the statute he was indicted under. His appeal raises a question 

of statutory construction that is an issue of first impression in 

this Circuit. For the reasons that follow, we will affirm the 

judgment of conviction. 

I. FACTS AND PROCEDUDRAL HISTORY

Geoffry Kouevi, also known as “Kangni,” was born 

and raised in Lome, Togo. The Government contends that 

from 2001 until 2005, Kouevi 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 scheme involved “diversity visas.”

The United States makes diversity visas available to 

citizens of countries who send relatively low numbers 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. See Coraggioso v. 

Ashcroft, 355 F.3d 730, 732 (3d Cir. 2004) (citing 8. U.S.C. 

§ 1153(c)). Individuals in Togo applied for diversity visas 

by entering the diversity visa lottery. If they won that lottery, 

they became eligible to apply for permanent resident status in 

the United States, and if that status was granted, they were 

then permitted to immigrate with their spouse and children. 

The lottery winners were classified as DV-1 applicants; 

spouses were classified as DV-2 applicants; and their children

were classified as DV-3 applicants. 

According to the evidence at Kouvei‟s trial, Kouevi 

worked for the leader and organizer of the conspiracy, 

Akouavi Kpade Afolabi, otherwise known as “Sister,” and 

with other co-conspirators, to obtain authentic visas through 
3

fraudulent means by working 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 the United States. According to 

the Government, Afolabi paid the required fees of persons 

who were eligible for the diversity lottery and assisted them 

in completing their paperwork. In exchange, Afolabi required

the applicants 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 played two roles in this conspiracy. He 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, Afolabi helped 

Kouevi fraudulently obtain his own visa and paid his costs for 

the visa and airfare to come to the United States. 

Kouevi came to the attention of The Department of 

Homeland Security (“DHS”) after Afolabi was arrested. DHS 

Investigators concluded that Afolabi had enticed girls as 

young as 13 from villages in West Africa with promises of 

education and employment in the United States. The 

Government contends that, using the visas she obtained with 

the assistance of Kouevi and others, Afolabi, brought the girls 

to the United States and forced them to work at hair braiding 

salons for up to 16 hours a day, 6 to 7 days a week, for 

several years, without any pay. These girls were forced into 

what can only be described as “slave labor;” they were also 

subjected to beatings, verbal and psychological abuse and 

rape. 
4

On January 15, 2009, a federal grand jury sitting in 

Newark, New Jersey, returned a 23-count Superceding 

Indictment against Afolabi, Kouevi and two others. Kouevi 

was charged with one count of conspiracy to commit visa 

fraud, in violation of 18 U.S.C. § 371; and two counts of visa 

fraud, in violation of 18 U.S.C. § 1546(a) and § 2 (aiding and 

abetting). 

On July 14, 2009, the district court severed Kouevi‟s 

case from his co-defendants, who were charged with more 

serious crimes, including forced labor.

1 A federal grand jury 

subsequently returned a two-count indictment charging 

Kouevi with conspiracy to commit visa fraud, in violation of 

18 U.S.C. § 37, and visa fraud, in violation of 18 U.S.C. § 

1546(a). 

The Government called nine witnesses at the ensuing 

trial. They included Ouyi Nabassi, Bella Hounakey (“B.H.”), 

Awa Fofana (“A.F.”), Ahoeft Amah (“A.A.”), and Vida 

Anagblah (“V.A.”). These witnesses testified about their own 

visa applications and embassy interviews, and their 

interactions with and observations of Afolabi and Kouevi in 

connection with those applications and interviews, and the 

applications and interviews of others. 

The jury convicted Kouevi on both counts and he was 

sentenced to 26 months imprisonment. This appeal followed. 

II. DISCUSSION2

 

1 Because the DHS concluded that Kouevi did not know that 

his co-conspirators were engaged in forced labor, he was not 

charged with that offense.

2

In his brief, Kouevi makes five arguments in support of his 

appeal. However, only one issue merits discussion, i.e., that 

his conviction for violating the first paragraph of 18 U.S.C. § 

1546(a) should be reversed because that provision of the 

statute does not criminalize the use of authentic immigration 

documents that are procured by fraud. The other four 

arguments are as follows: (1) the conviction for violating § 

1546(a) must be reversed because it was based on an 

unconstitutional constructive amendment of the indictment; 
5

A. THE CONVICTION FOR VIOLATING 18 U.S.C. § 

1546(a).

Kouevi contends that his conviction for violating 18 

U.S.C. § 1546(a) should be reversed because the 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. He argues that 

Congress only intended to criminalize the former conduct and 

since the evidence here only proved the latter conduct, his 

actions are not criminal under § 1546(a).3

Kouevi was charged with violating 18 U.S.C. § 

1546(a) by conspiring and aiding and abetting others:

to utter, use, possess, obtain, 

accept and receive immigrant 

visas, namely diversity visas, for 

entry into and as evidence of 

authorized stay and employment 

in the United States, knowing that 

the diversity visas have been 

 

(2) the district court erroneously permitted Officer Ayala to 

testify without any notice to the defense; (3) the conviction 

must be reversed based upon statements made during the 

Government‟s rebuttal; and (4) the sentence should be 

vacated and the matter remanded because the district court 

failed to make specific findings before imposing a six-level 

increase under U.S.S.G. § 2L2.1(b)(2)(B). 

 We have reviewed these four arguments and conclude that 

they do not merit further discussion. Indeed, Kouevi‟s 

constructive amendment claim is dependent on his claim that 

the first paragraph of 18 U.S.C. § 1546(a) does not apply to 

the use of authentic immigration documents procured by 

fraud. 

3

“We apply a plenary standard of review to issues of 

statutory interpretation.” United States v. Randolph, 364 F.3d 

118, 121 (3d Cir. 2004) (citation omitted). 
6

procured by means of false claims 

and statements and otherwise 

procured by fraud and unlawfully 

obtained.

Kouevi and the Government agree that he was charged under 

the first paragraph of § 1546(a),4 which provides:

Whoever knowingly forges, 

counterfeits, alters or falsely 

makes any immigrant or 

nonimmigrant visa, . . . or other 

document prescribed by statute or 

regulation for entry into the 

United States, or utters, uses, 

attempts to use, possesses, 

obtains, accepts, or receives any 

such visa, . . . or other document 

prescribed by statute or regulation 

for entry into or as evidence of 

authorized stay or employment in 

the United States, knowing it to 

be . . . procured by means of any 

false claim or statement, or to 

have been otherwise procured by 

fraud or unlawfully obtained 

[commits an offense under this 

section].

18 U.S.C. § 1546(a). 

Kouevi contends that the first paragraph of § 1546(a), 

should not apply to his conduct because it only reaches forged 

visas. He argues that the text of the statute shows that 

Congress did not intend to criminalize possessing an 

authentic visa that was obtained by fraud, such as a visa 

obtained by lying on an application or during a visa interview 

- as happened here. According to Kouevi, the fourth 

paragraph of § 1546(a) prohibits that conduct, and he was not 

charged that portion of the statute. The fourth paragraph of § 

 

4

Section 1546 is captioned “Fraud and misuse of visas, 

permits, and other documents.”
7

1546(a), states: 

Whoever knowingly makes under 

oath, or as permitted under 

penalty of perjury under section 

1746 of title 28, United States 

Code, knowingly subscribes as 

true, any false statement with 

respect to a material fact in any 

application, affidavit, or other 

document required by the 

immigration laws or regulations 

prescribed thereunder, or 

knowingly presents any such 

application, affidavit, or other 

document which contains any 

false statement or which fails to 

contain any reasonable basis in 

law or fact [commits an offense 

under this section].

18 U.S.C. § 1546(a). 

Kouevi argues that because he was charged with the 

first paragraph, and not the fourth paragraph, his conviction 

must be reversed.

5

 In short, he asks us to reverse his 

conviction because the visas he helped procure were 

authentic, and not forged. Thus, he claims that the district 

court should have granted his motion for judgment of 

acquittal at the close of the Government‟s case. See 

Fed.R.Crim.P. 29. 

First, Kouevi contends that in United States v. 

Campos-Serrano, 404 U.S. 293 (1971), the Supreme Court 

concluded that the first paragraph of § 1546(a) does not 

prohibit the possession or use of authentic immigration 

 

5 Kouevi‟s contention that the fourth paragraph of § 1546(a) 

criminalizes the possession of an authentic immigration 

document obtained by fraud is incorrect. The fourth 

paragraph criminalizes making a false statement when 

applying for an immigration document. 
8

documents that were obtained by fraud.6 He relies on the 

following excerpt from the Court‟s opinion:

The statutory provision in 

question prohibits, inter alia, the 

counterfeiting or alteration of, or 

the possession, use, or receipt of 

an already counterfeited or altered 

“immigrant or nonimmigrant visa, 

permit, or other document 

required for entry into the United 

States.” 

Campos-Serrano, 404 U.S. at 295. According to Kouevi, it is 

clear from this statement that the Court concluded that the 

first paragraph of the statute prohibits only the possession or 

use of a forged immigration document, not the possession or 

use of an authentic immigration document that was obtained 

 

6

The first paragraph of § 1546(a) in effect in 1971 provided: 

Whoever . . . knowingly forges, 

counterfeits, alters, or falsely 

makes any immigrant or 

nonimmigrant visa, permit, or 

other document required for entry 

into the Unites States, or utters, 

uses, attempts to use, possesses, 

obtains, accepts, or receives any 

such visa, permit, or document, 

knowing it to be forged, 

counterfeited, altered, or falsely 

made, or to have been procured 

by means of any false statement, 

or to have been otherwise 

procured by fraud or unlawful 

conduct. . . .

Campos-Serrano, 404 U.S. at 295 n.1.
9

Much of his argument rests upon his interpretation of 

Campos-Serrano. We are not persuaded. 

The issue in Campos-Serrano was whether the 

possession of a counterfeit alien registration card was 

punishable under the first paragraph of § 1546(a). The Court 

held that it was not because alien registration cards were not 

required for entry into the United States. Campos-Serrano, 

404 U.S. at 296. The alien registration cards were issued after 

the alien had entered and took up residence in the United 

States, and played no part in the entry. The cards were 

merely intended to identify the bearer as a lawfully registered 

alien residing in the United States. They played no role in the 

alien‟s entry. Id. 

In short, the issue before the Court was whether a 

particular forged document was proscribed by the statute, not 

whether the first paragraph of the statute criminalizes the 

possession of an authentic immigration document obtained by 

fraud. The language Kouevi relies upon is merely the 

Court‟s summation of a portion of the first paragraph of the 

statute; it is not an explanation of the statute‟s reach or scope. 

Indeed, it is apparent to us that by identifying the crimes, 

“inter alia,” that § 1546(a) covers, the Court was not 

attempting to describe the entire reach of the first paragraph 

of § 1546(a). 

The Court of Appeals for the Ninth Circuit agrees. The 

defendant in United States v. Krstic, 558 F.3d 1010 (9th Cir. 

2009), also contended that the first paragraph of § 1546(a) 

does not criminalize the possession of authentic immigration 

documents obtained by fraud, and he relied upon the same 

language in United States v. Campos-Serrano that Kouevi 

relies upon. In rejecting that argument, the court explained: 

The passage on which Krstic 

relies merely serves as general 

background information about the 

statute; it does not purport to be a 

comprehensive catalog of all 

conduct prohibited by the statute. 

The Court‟s usage of the phrase 

“inter alia” confirms this reading.
10

558 F.3d at 1014.

Nonetheless, Kouevi contends that appellate courts 

have followed Campos-Serrano‟s lead and have opined that 

the first paragraph of the statute was not intended to 

criminalize activities related to authentic immigration 

documents obtained by fraud, and that it cannot be read to 

reach that conduct. However, the cases Kouevi cites simply 

summarize a portion of the first paragraph of § 1546(a), while 

interpreting other language in the statue. The following 

examples illustrate this point. 

In United States v. Uvalle-Patricio, 478 F.3d 699, 702 

(5th Cir. 2007), the court of appeals wrote that “[t]he first 

paragraph of § 1546(a) criminalizes possession of forged 

immigration documents.” (citation omitted). The defendant 

in Uvalle-Patricio was charged with possession of blank 

immigration permits, which is prohibited by the second 

paragraph of § 1546(a),7not the first paragraph. Thus, the 

court of appeals‟ statement simply summarizes a portion of 

the first paragraph of § 1546(a), not a description of all of the 

conduct prohibited by it.

In United States v. Ryan-Webster, 353 F.3d 353 (4th 

Cir. 2003), the court of appeals wrote: 

While the fourth paragraph of § 

1546(a) deals with documents 

containing false statements, the 

first paragraph of § 1546(a) 

directly concerns documents 

containing, inter alia, forgeries. 

Id. at 363 n.16 (emphasis in original). The defendant there 

forged the signatures of purported employers on certain 

documents in order to obtain legal permanent resident cards 

for her clients. The issue was whether those documents were 

prescribed by statute or regulation for entry into the United 

States or prescribed as evidence of an authorized stay or 

 

7

The second paragraph of § 1546(a) generally criminalizes 

the possession, by persons not authorized by the Attorney 

General or another proper official, of materials that can be 

used to produce false immigration documents. 
11

employment in the United States. The issue was not whether 

the first paragraph criminalizes the possession of authentic 

immigration documents procured by fraud. Here, again, the 

court‟s statement was merely its summation of the first 

paragraph, and its use of “inter alia” once again makes that 

clear. 

Finally, in United States v. Osiemi, 980 F.2d 344, 348 

(5th Cir.1993), the court of appeals, commenting on the first 

paragraph of § 1546(a), wrote: “[S]trictly construed, taken 

literally, and given its plain and ordinary meaning, the 

language of § 1546(a), as amended, criminalizes the knowing 

possession of any counterfeited or altered document 

prescribed by statute or regulation for entry into the United 

States.” The issue in Osiemi was whether a counterfeit 

foreign passport is a document “prescribed by statute or 

regulation” for entry into the United States within the 

meaning of § 1546(a). Id. at 346. The defendant contended 

that because the counterfeit foreign passport was not issued 

by the United States and/or because it did not contain a 

United States entry visa, no offense had been committed 

under § 1546(a). Id. at 345. The court of appeals held that a 

foreign passport was typically a document required for entry 

into the United States and, therefore, the possession of a 

counterfeit foreign passport was an offense under § 1546(a). 

The issue was not whether the defendant possessed an 

authentic immigration document obtained by fraud. Thus, the 

court‟s statement about § 1546(a) was limited to the facts 

before it and cannot be taken to describe all of the conduct 

proscribed by the first paragraph of § 1546(a). 

The only court of appeals that has directly addressed 

Kouevi‟s contention has rejected it and has held that the 

possession of an authentic immigration document obtained by 

fraud is a crime under the first paragraph of § 1546(a). The 

defendant in United States v. Krstic, supra, was charged with 

knowingly possessing an alien registration card which he 

knew to have been procured by means of a materially false 

statement. Krstic, 558 F.3d at 1012. The indictment did not 

charge that the alien registration card was forged, 

counterfeited, altered or falsely made. Id. Rather, it simply 

charged Krstic with obtaining an alien registration card by 

means of a false statement. Id. 
12

Krstic made the same argument that Kouevi now urges 

upon us about the limited reach of the first paragraph of 18 

U.S.C. § 1546(a).

8

The district court agreed with him and 

dismissed the indictment, id. at 1012-13, and the Government

appealed. The court of appeals began its analysis by noting 

that:

At first glance, the statute appears 

to prohibit two independent acts. 

The first part criminalizes 

“knowingly forg[ing], 

counterfeit[ing], alter[ing], or 

falsely mak[ing]” an immigration 

document. The second part seems 

to punish “possess[ing]” an 

immigration document “knowing 

it to be forged, counterfeited, 

altered, or falsely made, or to 

have been procured by means of 

any false claim or statement.” 

558 F.3d at 1013. The Government wanted the court to 

interpret the statute in “this bifurcated way.” Id. 

However, the court reasoned that “[t]he words „any 

such‟. . . which appear between the paragraph‟s two halves, 

 

8 As recited above, the first paragraph of § 1546(a) provides:

Whoever knowingly forges, counterfeits, alters 

or falsely makes any immigrant or 

nonimmigrant visa, . . . or other document 

prescribed by statute or regulation for entry into 

the United States, or utters, uses, attempts to 

use, possesses, obtains, accepts, or receives any 

such visa, . . . or other document prescribed by 

statute or regulation for entry into or as 

evidence of authorized stay or employment in 

the United States, knowing it to be forged, 

counterfeited, altered, or falsely made, or to 

have been procured by means of any false claim 

or statement, or to have been otherwise 

procured by fraud or unlawfully obtained 

[commits an offense under this section].

18 U.S.C. § 1546(a). 
13

complicate our task.” Id. It said:

Krstic contends that “any such” 

refers back to the phrase 

“knowingly forges, counterfeits, 

alters, or falsely makes any 

immigrant or nonimmigrant visa.” 

In Krstic‟s view, the statute 

contemplates an immigration 

document that has been forged, 

counterfeited, altered, or falsely 

made, not an authentic document. 

The Government, on the other 

hand, maintains that “any such” is 

shorthand for the phrase 

“immigrant or nonimmigrant.” 

According to the Government, 

“[t]here is simply no reason why 

the verbs from the first clause 

should be converted into 

adjectives applicable to the 

second.”

Id. The court was not persuaded by either reading. Id.

(“neither side has the better of this argument.”). 

Rather, the court concluded that it could not resolve 

the question solely by parsing the statutory text. Id. at 1015.9 

Accordingly, it turned to the legislative history. The court 

held that the legislative history demonstrated to its 

satisfaction 

that § 1546(a)‟s first paragraph 

does not require proof of an 

already forged, counterfeited, or 

falsely made immigration 

document. The section prohibits 

possessing an otherwise authentic 

document that one knows has 

been procured by means of a false 

claim or statement.

 

9

The court of appeals in Krstic found that the plain language 

of the statute was ambiguous. 558 F.3d at 1015. 
14

Id. at 1017 (emphasis added). The court explained: 

Common sense confirms our 

interpretation. As the 

Government correctly points out, 

reading § 1546(a)‟s first 

paragraph as applying only to an 

already forged or counterfeited 

immigration document results in 

“leaving beyond the statute‟s 

scope the obvious harm of using 

or possessing an authentic 

document that one knows to have 

been procured by fraud or false 

statement to immigration 

authorities.” To be sure, Krstic 

could have been charged under 

the fourth paragraph of § 1546(a), 

as well as under 8 U.S.C. § 

1306(c), two provisions that 

prohibit making false statements 

to immigration authorities. The 

first paragraph of § 1546(a), 

however, criminalizes acts that 

neither the fourth paragraph of § 

1546(a) nor 8 U.S.C. § 1306(c) 

covers: possession of an 

immigration document that was 

fraudulently obtained. In view of 

the statutory history, we decline to 

adopt a reading that would 

effectively decriminalize such 

conduct.

Id. (emphasis in original). 

Legislative history is only an appropriate aid to 

statutory interpretation when the disputed statute is 

ambiguous. See Bruesewitz v. Wyeth Inc., 561 F.3d 233, 244 

(3d Cir. 2009), aff’d Bruesewitz v. Wyeth LLC, 131 S.Ct. 

1068 (2011). However, a fundamental canon of statutory 

construction removes any ambiguity here, and provides a 

more direct path to the result reached in Krstic.
15

Reading the statute as Kouevi suggests we must would 

have the practical effect of reading some of the language out 

of the statute. The only way to give meaning to the whole 

paragraph is to read the term “any such” as referring to the 

list of immigration documents, but not to the ways in which 

the immigration documents were falsified.10 Otherwise, the 

last clause (“or to have been procured by means of any false 

claim or statement, or to have been otherwise procured by 

fraud or unlawfully obtained,”) is transformed into 

surplusage; it would add absolutely nothing to what comes 

before it.11 Such a reading would violate a fundamental 

canon of statutory construction. See, e.g., Duncan v. Walker, 

533 U.S. 167, 174 (2001) (“It is our duty to give effect, if 

possible, to every clause and word of a statute.”) (citation and 

internal quotation marks omitted); United States v. Nordic 

Village, 503 U.S. 30, 36 (1992) (It is a settled rule “that a 

statute must, if possible, be construed in such fashion that 

every word has some operative effect.”) (citation omitted); 

Cushman v. Trans Union Corp., 115 F.3d 220, 225 (3d Cir. 

1997) (“We strive to avoid a result that would render 

statutory language superfluous, meaningless, or irrelevant.”) 

(citation omitted). 

Despite the fact that the plain language of the first 

paragraph of § 1546(a) prohibits the possession and use of 

authentic immigration documents obtained by fraud, Kouevi 

contends that Congress‟s actions since Campos-Serrano show 

that the first paragraph of § 1546(a) has always been limited 

to forged documents. He claims that since Campos-Serrano, 

Congress has amended § 1546(a) eight times, and notes that 

 

10 To arrive at the result that Kouevi wants, the term “any 

such” would have to be read to refer to the list of the ways in 

which the immigration documents were falsified, but not to 

the documents themselves. However, such a reading would 

make the final clause of the first paragraph surplusage and 

ineffective. 

11 As noted, see n.9, supra, the Krstic court found that the 

plain language of the statute was ambiguous, but, as the 

Government points out, it did not consider the surplusage 

created by the ambiguity it believed was present. 
16

Congress has never amended the statute to alter CamposSerrano‟s conclusion that the first paragraph of § 1546(a) 

applies only to the possession or use of an already 

counterfeited or forged immigration document.12 However, 

this is not persuasive because, as we have explained, the 

Court in Campos-Serrano did not attempt to describe the 

entire reach of § 1546(a), nor did it purport to do so. 

Moreover, Kouvei‟s reading would mean that, in 

enacting this statute, Congress criminalized use of a forged or 

fraudulent visa, but did not intend to also criminalize 

obtaining an otherwise valid visa by means of forgery or 

fraud. We think it extraordinarily unlikely that Congress 

intended that result. See, e.g., In re Kaiser Aluminum Corp., 

456 F.3d 328, 338 (3d Cir. 2006) (“A basic tenet of statutory 

construction is that courts should interpret a law to avoid 

absurd or bizarre results.”) (citation omitted). 

Kouevi‟s second argument relies on the amendment 

history of § 1546(a) and other immigration statutes. He 

claims that history demonstrates that Congress did not intend 

the terms “falsely makes” and “falsely made” in § 1546(a) to 

cover authentic diversity visas that were fraudulently 

obtained. Kouevi notes that in 1996, Congress amended 8 

U.S.C. § 1324c and added a definition of “falsely make.” 

Section 1324c of Title 8 is captioned: “Penalties for 

document fraud.” Section 1324c(f) was added in 1996. That 

 

12 According to Kouevi, Campos-Serrano controls because 

Congress‟s failure to amend a statute after the Supreme Court 

interprets it (especially where Congress has otherwise 

amended the statute) is evidence that Congress agrees with 

the Court‟s interpretation. 

In support of that statement Kouevi cites to Safeco, Inc. v. 

Burr, 551 U.S. 47, 58 (2007) (noting “the interpretative 

assumption that Congress knows how we construe statutes 

and expects us to run true to form”); Comm’r of Internal 

Revenue v. Engle, 464 U.S. 206, 225 (1984) (“We usually 

presume that Congress is . . . aware of [our longstanding] 

interpretation of a statute and [adopts] that interpretation 

when it re-enacts [the] statute without [explicit] change . . . 

.”). 
17

amendment defines “falsely make” as follows: 

For purposes of this section, the 

term “falsely make” means to 

prepare or provide an application 

or document, with knowledge or 

in reckless disregard of the fact 

that the application or document 

contains a false, fictitious, or 

fraudulent statement or material

representation, or has no basis in 

law or fact, or otherwise fails to 

state a fact which is material to 

the purpose for which it was 

submitted.

8 U.S.C. § 1324c(f). 

According to Kouevi, Congress added this definition at 

the request of the former Immigration and Naturalization 

Service (“INS”) in response to decisions by the Executive 

Office for Immigration Review, Office of the Chief 

Administrative Hearing Officer (“OCAHO”) which held that 

“falsely make” does not include providing false information 

on application forms. See, e.g., United States v. Remileh, 5 

OCAHO 724, 1995 WL 139207, at *1 (O.C.A.H.O. Feb. 7, 

1995) (“[T]he attestation of an employee to false information 

on a Form I-9

13 does not constitute the creation of a „falsely 

made‟ document in violation of 8 U.S.C. § 1324(c).”). As 

Kouevi sees it, Congress‟s decision to amend 8 U.S.C. § 

1324(c), by defining “falsely make” to include making false 

statements to obtain an immigration document, demonstrates 

that the question presented here, i.e., whether the first 

paragraph of 18 U.S.C. § 1546(a) applies to authentic 

immigration documents obtained by fraud, was “foremost in 

the mind of Congress in 1996, well after Campos-Serrano,” 

yet the first paragraph of § 1546(a) was not amended. Again, 

we are not persuaded. 

As we have explained, the statement from CamposSerrano which Kouevi relies upon was not intended to define 

the parameters of the first paragraph of § 1546(a). Moreover, 

 

13 Form I-9 is an Employment Eligibility Form.
18

Kouvei‟s reliance on the language of the amendment creates 

a problem for him. It shows that when Congress was asked to 

clarify the meaning of “falsely make” in another context, it 

defined the term to include documents procured by fraud. 

However, we need not discuss this claim in detail because it 

is rooted in Kouvei‟s interpretation of Campos-Serrano, and 

we have already explained why that case simply does not 

support Kouevi‟s contention that the first paragraph of § 

1546(a) does not criminalize the possession or use of an 

authentic immigration document obtained by fraud.

Moreover, our interpretation of the first paragraph of 

§ 1546(a) is consistent with the Court‟s analysis in United 

States v. Moskal, 498 U.S. 103 (1990). There, while 

construing a different statute, the Court held that “falsely 

made” “encompasses genuine documents containing false 

information.” Id. at 110. The statute at issue in Moskal was 

18 U.S.C. § 2314, which prohibits the interstate or foreign 

transportation of “any falsely made, forged, altered, or 

counterfeited securities or tax stamps, knowing the same to 

have been falsely made, forged, altered, or counterfeited.” 

Moskal was a participant in a title-washing scheme. Id. at 

105. Other participants in the scheme bought used cars in 

Pennsylvania, rolled-back the odometers, and altered the titles 

to reflect the lower mileage. Id. The altered titles were then 

sent to other participants who submitted them to authorities in 

Virginia. Id. The Virginia authorities, who were unaware of 

the title alterations, issued Virginia titles containing the false 

mileage figures. Id. at 105-06. The washed titles were then 

sent back to Pennsylvania, where they were used to facilitate 

sales to unsuspecting buyers. Id. at 106. Moskal sent altered 

titles to Virginia and he received the washed titles back when 

they were returned to Pennsylvania. Id. 

Moskal was convicted of violating 18 U.S.C. § 2314 

by receiving two washed titles. On appeal, he made the same 

linguistic argument in challenging his conviction under 18 

U.S.C. § 2314 that Kouvei makes here in challenging his 

conviction under 18 U.S.C. § 1546(a). Moskal claimed his 

conduct did not violate § 2314 because, although he was 

participating in a fraud (and thus had the requisite statutory 

intent), the washed titles were not themselves “falsely made.” 

Id. at 107. He contended that since an authentic title had been 
19

issued by appropriate state agencies that were unaware of any 

underlying fraud, the resulting title was genuine. Since the 

title that the state issued was valid, Moskal claimed they 

were not “falsely made” as required by the statute of 

conviction. Id. 

The Court‟s explanation of why it disagreed with 

Moskal is fatal to Kouevi‟s argument here. In rejecting the 

argument, the Supreme Court explained: 

We think that the words of § 2314 

are broad enough, on their face, to 

encompass washed titles 

containing fraudulently tendered 

odometer readings. Such titles are 

“falsely made” in the sense that 

they are made to contain false, or 

incorrect, information.

Id. at 108-09. The Court also rejected the claim that falsely 

made documents were synonymous with forged or 

counterfeited documents. It wrote:

Short of construing “falsely 

made” in this way, we are at a 

loss to give any meaning to this 

phrase independent of the other 

terms in § 2314, such as “forged” 

or “counterfeited,” By seeking to 

exclude from § 2314‟s scope any 

security that is “genuine” or valid, 

Moskal essentially equates 

“falsely made” with “forged” or 

“counterfeited.” His construction 

therefore violates the established 

principle that a court should give 

effect, if possible, to every clause 

or word of a statute.

Id. at 109 (citation omitted) (emphasis in original). 

Moskal had argued that at common-law “falsely made” 

had an established common-law meaning equivalent to 

forgery. 498 U.S. at 114. Therefore, “falsely made” 

excluded authentic or genuine documents that were merely 
20

false in content. Id. Accordingly, Moskal contended that 

Congress should be presumed to have adopted this commonlaw definition in construing § 2314. “[W]here a federal 

criminal statute uses a common-law term of established 

meaning without otherwise defining it, the general practice is 

to give that term its common-law meaning.” Id. (citation 

omitted). However, Moskal concluded that the meaning of 

“falsely made” was ambiguous at common law.

Despite the rather obvious fact that Moskal‟s reasoning 

clearly applies here Kouevi cites United States v. Merklinger, 

16 F.3d 670 (6th Cir. 1994), in arguing that courts should 

limit Moskal to statutes that require a departure from the 

common law meaning of “falsely made” in order to punish 

conduct that Congress intended to reach. Id. at 673-74 & n.4. 

This argument again focuses on the fact that the fourth 

paragraph of § 1546(a), prohibits the possession or use of an 

authentic immigration document obtained by fraud. 

According to Kouevi, it is therefore unnecessary to interpret 

the first paragraph of § 1546(a) to include authentic 

immigration documents obtained by fraud.

However, the argument ignores the fact that Kouevi‟s 

conduct is not punished by another provision of the statute. 

As noted, the fourth paragraph of § 1546(a) does not punish 

the possession or use of authentic immigration documents 

obtained by fraud. Rather, it prohibits making a false 

statement when applying for an immigration document.

Nevertheless, Kouevi claims “additional legal 

authority” demonstrates that the first paragraph of § 1546(a) 

does not apply to authentic immigration documents obtained 

by fraud. He relies on various rather tangential authorities 

such as the model jury instructions. He points out the

instructions pertaining to the first paragraph of § 1546(a) tell 

jurors that the Government must prove that “the defendant 

uttered, used, attempted to use, possessed, obtained, accepted 

or received a forged, counterfeited, altered or falsely made 

document.” Moore‟s Federal Model Jury Instructions, 

Chapter 47, Instruction 47-2 (underlining is Kouevi‟s). 

He then quotes the following statement from United 

States v. Polar, 369 F.3d 1248 (11th Cir. 2004):
21

The district court specifically 

instructed the jury as follows:

The indictment charges the 

defendant with violation of Title 

18 United States Code, Section 

1546(a). That provision makes it 

a federal crime to knowingly

possess a false or counterfeit Visa 

or other document required as 

evidence of an unauthorized stay 

or employment in the United 

States.

Id. at 1251 n.2 (emphasis in original). 

Lastly, Kouevi notes that the United States Attorneys‟ 

Manual states “The first paragraph of 18 U.S.C. § 1546(a) 

proscribes the forging, counterfeiting, altering, or falsely 

making of certain immigration documents or their use, 

possession, or receipt.”

www.usdoj.gov/usao/eouse/foia_reading_room/usam/title9/cr

m01524.htm. Kouevi submits that description from the 

Manual clearly means that the first paragraph of § 1546(a) 

prohibits the possession of “certain immigration documents” 

only if they were forged, counterfeited, altered, or falsely 

made. As he sees it, that description does not mean that the 

first paragraph of § 1546(a) prohibits the possession of 

authentic immigration documents that were obtained by 

fraud. 

Kouevi‟s “additional legal authority” argument is 

meritless. As the Government notes, Model Jury Instruction 

47-2 was drafted to cover one application of the first 

paragraph of § 1546(a), i.e., the use of forged documents. Id. 

(“The indictment charges the defendant with using (or 

attempting to use or uttering or possession or obtaining or 

accepting or receiving) a forged (or falsely made or 

counterfeit or altered) visa (or specify other document).” The 

Model Instruction cited by Kouevi does not address the 

portion of the first paragraph which he was charged with 

violating, viz., the possession of an authentic immigration that 
22

was procured by fraud. 

The jury instruction in Polar also provides no comfort 

to Kouevi. The defendant there had a passport which 

contained a counterfeit Alien Documentation Identification 

Telecommunication stamp mark (“ADIT”) and he used the 

passport to obtain Social Security cards.14 The issue before 

the court was whether the defendant‟s use of the passport 

containing a fraudulent ADIT stamp violated § 1546(a). The 

district court‟s instruction was thus fashioned to meet the 

evidence of offending conduct there. The instruction had

nothing to do with whether the first paragraph of § 1546(a) 

applies to the possession or use of authentic immigration 

documents obtained by fraud.

Finally, we hardly need respond to Kouevi‟s attempt to 

elevate a statement from the United States Attorneys‟ Manual

to the status of legal authority. The Manual is an internal 

agency practice guide and it is not a definitive statement of 

the law, as the Manual expressly indicates.15 Kouevi‟s 

 

14 An ADIT stamp mark “is placed in an alien‟s passport at a 

port of entry or at an [INS] district office; . . . this stamp 

mark serves as temporary proof of lawful permanent 

residence in the United States; . . . and . . . serves as INS 

authorization for employment, such that a passport with an 

ADIT stamp mark can be used as identification to obtain a 

valid Social Security card.” Polar, 368 F.3d at 1250 n.1.

15 See United States Attorneys‟ Manual, Section 1-1.00, 

“Purpose.” (“The United States Attorneys' Manual is 

designed as a quick and ready reference for United States 

Attorneys, Assistant United States Attorneys, and Department 

attorneys responsible for the prosecution of violations of 

federal law. It contains general policies and some procedures 

relevant to the work of the United States Attorneys' offices 

and to their relations with the legal divisions, investigative 

agencies, and other components within the Department of 

Justice. . . . The Manual provides only internal Department of 

Justice guidance. It is not intended to, does not, and may not 

be relied upon to create any rights, substantive or procedural, 

enforceable at law by any party in any matter civil or 

criminal. Nor are any limitations hereby placed on otherwise 
23

argument invites us to cherry-pick the language of the Manual 

that affords arguable support for his position while ignoring 

other language that expressly negates using the Manual as 

legal authority. Moreover, the statement he relies upon is not 

intended to limit the application of the first paragraph of § 

1546(a) to forged documents; it merely refers to one of the 

first paragraph‟s applications. 

Lastly, Kouevi attempts to rely on the rule of lenity. 

We have explained the operation of that rule as follows:

In interpreting an ambiguous 

criminal statute, the court should 

resolve the ambiguity in the 

defendant‟s favor. The rule of 

lenity applies in those situations 

in which a reasonable doubt 

persists about a statute‟s intended 

scope even after resort to the 

language and structure, legislative 

history, and motivating policies of 

the statute. The rule is not 

properly invoked simply because 

a statute requires consideration 

and interpretation to confirm its 

meaning. It applies only if there 

is such grievous ambiguity or 

uncertainty in a statute that, after 

seizing everything from which aid 

can be derived, the Court can 

make no more than a guess as to 

what Congress intended.

United States v. Doe, 564 F.3d 305, 315 (3d Cir. 2009) 

(citations, internal quotation marks and bracket omitted). 

However, we do not think that the statute in question is 

sufficiently ambiguous to justify resort to the rule of lenity. 

“The simple existence of some statutory ambiguity, however, 

is not sufficient to warrant application of the rule of lenity, for 

most statutes are ambiguous to some degree.” Dean v. United 

States, 556 U.S. 568, 577 (2009) (citation omitted). 

 

lawful litigative prerogatives of the Department of Justice.”).
24

Kouevi does not explain the purported “ambiguity” in 

the first paragraph of § 1546(a). He simply states that 

“history and structure allow for a reading that limits the scope 

of the first paragraph of § 1546(a) ¶ 1 to offenses involving 

only forged documents, and which excludes authentic 

documents procured by fraud.” Therefore, he submits that 

“[i]n accordance with the rule of lenity, these alternate 

readings of § 1546(a) ¶ 1 mean that the conviction should be 

reversed.” Kouevi‟s Br. at 23. 

However, these are simply conclusory statements that 

do not demonstrate any ambiguity. More importantly, as we 

have explained, we cannot breathe sufficient ambiguity into 

the first paragraph to justify applying the rule of lenity 

without ignoring the canons of statutory construction we have 

discussed. The plain language of the statute reveals that the 

first paragraph of § 1546(a) must be read to prohibit the 

possession or use of authentic immigration documents which 

are obtained by fraud.

III. CONCLUSION

For all of the above reasons, we will affirm the district 

court.