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 (Cri m. 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)

Balda ssare & 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 Street2 Newark, New Jersey 07102 Attorney s for Appellee

OPINION

McKEE, Chief Judge

.

Geoffry Kouevi appeals his conviction s for visa fraud

and conspiracy to commit visa fraud. H is primary argument on appeal is that his conduct is not criminalized by the part of

the statute he was indicted under . H is appeal raises a question

of statutor y 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 r aised in Lome, Togo. The G overnment 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 Unit ed States.

The scheme involved “diversity visas.”

The United Stat e s 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 with in the annual pool of immigrants ente ring 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 t heir spouse and children.

The lottery winners were classified as DV

- 1 applicant s ;

s pouse s w ere classified as DV

- 2 applicant s ; and their child ren

w ere classified as DV

- 3 applicant s

.

According to the evidence at Kouvei‟s trial, Kouevi worked for the leader and organizer of the conspiracy, Akouavi Kpade Afol abi, otherwise known as “Sis ter, ” and

with other co

- conspirators, to obtain authentic visas through3 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 Governmen t, Afolabi pa id the required fees of persons who were eligible for the diversity lottery and assist ed them

in completing their paperwork. In exchange , Afolabi require d

the applicants t o falsely represent that other unrelated individuals were their spouses and /or children, so that those

individuals could also obtain v isas to enter the United States under the program.

Kouevi played two roles in th is conspiracy. He was responsible for c oordinating 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 . H e also accompanied visa applicants to

g overnment offices in Togo and help ed them acquire false passports, marriage certifi cates, and similar documents required to support their visa appli cations. This included obtaining additional false evidence of pur ported relationships including fake wedding rings and fa ke 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 thei r interviews. In return, Afolabi helped Kouevi fraudulently obtain his own visa and pai d his costs for

the visa and airfare to come to the United States.

K ouevi came to the attention of T he Department of Homeland Security (“DHS”) after Afolabi was arr ested. 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 o f Kouevi and others, Afolabi, b rought 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 on ly be described as “slave labor; ” the y were also subject ed 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, i n violation of 18 U.S.C. § 37, and v isa fraud, in violation of 18 U.S.C. § 1546(a).

T he Government cal led 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 testif ied 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, a nd the applications and interviews of others.

T he jury convicted Kou evi on both counts and he was

sentenced to 26 months imprisonment . T his appeal followed.

II. DISCUSSION 2

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 discu ssion, 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 bec ause the paragraph of

the statute he was c onvicted 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 vi olating 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, kno wing that the diversity visas have been

(2) the district court erroneously permitted Officer Ayala to testify without any n otice 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 imposin g 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) (citati on 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

hav e been otherwise procured by fraud or unlawfully obtained [commits an offense under this section].

18 U.S.C. § 1546(a).

Kouevi contends that the f irst paragraph of § 1546(a), should not apply to h i s conduct because it only reaches forged

visas. He ar gues 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 appl ication or during a visa interview

- as happened here . According to Kou evi, 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 charg ed 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 shoul d 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. 29 3 (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 inc orrect. 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

counterfeiti ng 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 , i t is

c lear 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 a n 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 i mmigrant 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, alter ed, 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 o f 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. T he alien registration cards were issued after

the alien had entered and t ook up residence in the United

States , and play ed 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, t he 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 o f the first paragraph of the

statut e ; it is not a n 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 o f 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 gener al 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 tha t 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 immigratio n documents obtained by fraud , and that it cannot be read to

reach t hat conduct

. However, t he 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. 2 007), the court of appeals wrote that “[t]he first paragraph of § 1546(a) criminalizes possession of forged immigration documents.” (citation omitted). T he defendant

in Uvalle

- Patricio was charged with possession of blank immigration permits, which is prohibited by the second paragraph of § 1546(a), 7 not the first paragraph. Thus, the court of appeal s ‟ state ment simply summarizes a portion of

the first paragraph of § 15 46(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 documen ts 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 immigra tion documents procured by fraud. Here, again, the

court‟s statement was merely it s 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 a ltered 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 o f § 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).

T he issue was not whether the defendant possessed an authentic immigration docume nt 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. K rstic

, 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 forg ed, 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 f irst paragraph of 18 U.S.C. § 1546(a)

. 8 The district court agreed with him and

dismissed the indictment

, i d . at 1012

- 1 3 , and t he Government appealed

. T he court of appeals began it s 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, counterfe ited, altered, or falsely made, or to have been procured by means of any false claim or statement.”

558 F.3d at 1013. T he Government wanted the court to interpret the statute in “this bifurcated way.” Id

. However, the court reasoned that “[t]he w ords „any such‟. . . which appear between the paragraph‟s two halves,

8 As recited above, the first paragraph of § 1546(a) provides: Whoever knowingly forges, coun terfeits, 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 [commit s 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 vi sa.” 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
“imm igrant 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 h as 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 histor y 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 a t 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 f

orged 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 su re, 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 § 154 6(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

c onduct.

Id . (emphasis in original).

L egislative history is only an appropriate aid to statutory interpretation when the disputed statute is ambiguous. Se e 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 Krsti c

.15 Reading the statute as Kouevi suggests we must would have the practical effect of readi ng some of the language out

of the statute. T he only way to give meaning to the whole paragraph is t o 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 Other wise, 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 omit ted); United States v. Nordic Village , 503 U.S. 30, 36 (1992) (It is a settled r ule “that a statute must, if pos sible, 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

, Congres s 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 th e 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 t he ambiguity it believed was present.16 Congress has n ever amended the statute to alter Campos

Serrano ‟s conclusion that the first paragraph of § 1546(a) applies only to the possession or use of an already counterfeited or forged immigration do cument. 12 However,

th is 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 s tatute , Congress criminalized use of a forged or fraudulent visa, but did not intend to also criminalize obtaining a n otherwise valid visa by means of forgery or

fraud. We think it extraordinarily unlikely that Congress

intended that result. See, e.g., I n 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

hist ory of § 1546(a) and other immigration s tatutes

. He

claim s that his t ory 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 t hat in 1996, Congress amended 8 U.S.C. § 1324c and added a definition of “falsely make .” Section 1324c of Title 8 is captioned : “Penalties f or 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 Congr ess 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 interpretatio n when it re

- enacts [the] statute without [explicit] change .

. . .”).17 amendment defines “f

alsely 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 Imm igration 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. §

1 324(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

paragrap h 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 a re not persuaded.

As we have explained, the statement from Campos

Serrano which Kouevi relies upon was not intended to de fine 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

cla rify the meaning of “ falsely make ” in another context, it defined the term to include documents procured by fraud. However, w e need not discuss this claim in detail because it

is rooted in Kouv ei‟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 immigrati on document obtained by fraud.

Moreover, o ur interpretation of the first paragraph of § 154 6(a) is consistent with the Cou rt‟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 participa nts in the scheme bought used cars in Pennsylvania, roll ed

- back the odometers, and alter ed th e 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 ti tles. On appeal, he made the same linguistic argument in challenging his conviction under 18 U.S.C. § 23 14 that Kouvei makes her e in challenging his

conviction under 18 U.S.C. § 1546(a) . Mo skal 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 m ade.”

Id . at 107. He contended that since an authentic title had been19 issued by appropriate state a gencies that were unaware of any underlying fraud, the resulting title was genuine . Since the

title that the state issue d 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 § 231 4 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 r ejected 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, s uch 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 princip le 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 forger y. 498 U.S. at 114. Therefore, “falsely made” excluded authentic or genuine documents that were merely20 false in content. Id . Accordingly, Moskal contended that Congress should be presumed to have adopted this common

law 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
“fa lsely 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 requi re 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 Kou e v i, it is therefore unnecessary to interpret the first paragraph of § 1546(a) to include authentic immigration documents obtained by fraud.

However, th e argument ignores the fact t hat Kouevi‟s conduct is not punished by another provision of the statute. As noted, the fourth paragraph of § 1546(a) does not pu nish the possession or use of authentic immigration doc uments obtained by fraud. Rather, it prohibits making a false

statemen t 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 ta ngential 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).

H e then quotes the following statement from United

States v. Polar , 369 F.3 d 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 f

alse 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 paragra ph 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. ”

w ww.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” a rgument is

meritless. As the Government note s, 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) vi sa (or specify other document ). ” The

Model Instructio n cited by Kouevi does not address the
port ion of the first paragraph whi ch he was charged with violating , viz., the possession of an authentic immigration that22 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 Doc umentation 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). T he
district court‟s instruction was thus fashioned to meet the evidence of offending conduct there. The instruc tion had nothing to do with w hether the first paragraph of § 1546(a) applies to the possession or use of authentic immigration

documents obtaine d 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. T he Manual is an internal agency practice guide and it is not a definitive statement of

the law, as the Manual expressly indicates. 15 Kou evi‟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 Unit ed States; . . . and . . . serves as INS authorization for employment, such that a passport with an ADIT stamp ma r k 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 l aw. 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 Ma nual 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 limitatio ns hereby placed on otherwise23 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. More over, t he 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.

W e 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 abo ut 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 3 05, 315 (3d Cir. 2009) (citations, internal quotation marks and bracket omitted).

However, w e do not think that the statute in question is sufficiently ambiguous to justify resort to the rule of lenity.

“T he simple existence of some statutory ambiguit y , 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 fr aud.” 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 demonst rate any ambiguity. More importantly, as we have explained, we can not breath e sufficient ambiguity into the first paragraph to justify applying the rule of lenity without ignoring the canons of statutory construction we have

discussed. T he 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.