UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4590

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NASSER YUSEF MAHMOUD KHALAF,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Lacy H. Thornburg, 

District Judge. (1:08-cr-00020-LHT-DLH-1)

Argued: May 11, 2010 Decided: August 4, 2010

Before WILKINSON and DAVIS, Circuit Judges, and C. Arlen BEAM, 

Senior Circuit Judge of the United States Court of Appeals for 

the Eighth Circuit, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: David Grant Belser, BELSER & PARKE, Asheville, North 

Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE 

UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. 

ON BRIEF: Edward R. Ryan, Acting United States Attorney, 

Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

In May 2008, a jury found Nasser Yusef Mahmoud Khalaf 

guilty of immigration fraud and marriage fraud. The district 

court sentenced him to time served. On appeal, Khalaf claims 

the district court erred in denying his motions for acquittal,

challenges the sufficiency of the evidence and also challenges 

the accuracy and sufficiency of the dates contained in the jury 

charge on each count. We affirm. 

I.

On June 27, 2005, Khalaf, a Palestinian national residing 

in the West Bank, applied for a nonimmigrant visa to visit the 

United States. This visa enables the holder to visit the United 

States temporarily for pleasure or business. The purpose stated

on Khalaf's application was to visit the United States to 

purchase clothing from APS Exports in Columbus, Ohio, for 

shipment to Palestine. The application indicated that APS would 

pay for his flight to, and accommodations in, the United States. 

Additionally, Khalaf answered the standard questions regarding 

whether his application was prepared by someone other than 

himself (the answer was "no"), and he certified that all of the 

information in the application was true and correct to the best 

of his knowledge. The application further indicated that he had 

previously been denied a visa on one prior occasion, when, in 
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fact, he had previously been denied twice. After questioning by 

a consular officer and after submitting a supplement to his 

application, Khalaf was granted a visa on August 5, 2005. 

Khalaf arrived in the United States on October 15, 2005.

At entry, Khalaf told the questioning immigration officer 

that he intended to travel to Asheville, North Carolina, and 

that he would stay at 68 Tunnel Road in Asheville, which was the 

address of a Subway restaurant. The officer gave Khalaf 

permission to remain in the United States on a B-2 visa for six 

months with no travel restrictions. The government later 

extended Khalaf’s departure date to September 30, 2006. 

Khalaf never went to Ohio during his time in the United 

States. He went immediately to Asheville and later began 

working at a Subway. Khalaf met Petra Babb toward the end of 

January 2006 when he hired Ms. Babb to work at the Subway. The 

two dated for several months and spent nearly every night 

together. Babb testified at trial that she recalled several 

occasions when Khalaf mentioned his visa expiration date and 

that "he needed to find somebody . . . to marry to stay in the 

country." Khalaf and Babb married on December 1, 2006. 

Khalaf was previously married in Palestine and obtained a 

"revocable" divorce from Huda Khalaf on or about August 23, 

2005, shortly before his departure from the West Bank. A 

revocable divorce in Palestine means that it can be rescinded at 
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a later time. According to the testimony of a United States

Immigration and Customs Enforcement (ICE) officer, the United 

States government does not accept a revocable divorce as a final 

divorce. Ms. Khalaf, along with Khalaf's biological daughter, 

actually visited Asheville during the time Babb and Khalaf 

courted. Ms. Khalaf applied for a nonimmigrant visa on December 

12, 2005, which was granted, and she first entered the United 

States in February 2006, remaining for approximately three 

months. Ms. Khalaf returned to Asheville on a nonimmigrant 

visa, along with her daughter, in October 2006. During her 

visits in the United States, Ms. Khalaf stayed at the same 

apartment complex where Khalaf resided. On April 4, 2007, Ms. 

Khalaf married Abdelaziz Ammar, a United States citizen. 

Khalaf and Babb moved in together after their December 1, 

2006, marriage. Subsequently Khalaf inexplicably and routinely 

would not return home about two to three nights each week. 

One month after the marriage Khalaf arranged to transfer

employment to another Subway, "because it meant more money." 

So, once married, Babb and Khalaf no longer worked together. 

Early in 2007, Khalaf asked Babb if he could use her Medicaid 

card in order to get medical care for Ms. Khalaf who had been in 

an automobile accident. Khalaf also told Babb at this time that

Ms. Khalaf was pregnant with Khalaf’s second child. Babb then 

rented and moved into a subsidized apartment and decided not to 
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sponsor Khalaf on his green card application. Suddenly, Khalaf 

became "very kind," doing "anything for [her] that he could

possibly do." On June 20, 2007, Babb signed and filed a 

petition for alien relative, seeking residency for Khalaf based 

upon the parties' marriage. The operative date in the indictment 

is July 11, 2007, which is the date Khalaf's petition for 

adjustment of immigration status was filed. 

On December 6, 2007, an ICE agent arrested Khalaf on 

charges of overstaying his nonimmigrant visa and being employed 

without authorization. At the time of his arrest, Khalaf told 

the agent that prior to coming to the United States he talked 

with a friend who told Khalaf he could come to Asheville and 

work at Subway. Khalaf mentioned the APS business venture but 

explained that he had abandoned that plan when he learned that 

people in the West Bank would not wear that clothing. Also, 

when shown a copy of his application and his stated reason for 

obtaining the visa, Khalaf told the agent that he had never seen 

the application before but had gone to "a place that assists 

people in applying for Visas." As to his marriage to Babb,

Khalaf claimed it was legitimate and that his relationship with 

Ms. Khalaf was "over." However, Khalaf spent the night before 

his arrest at Ms. Khalaf's residence. In Khalaf’s pocket at the 

time of his arrest was a copy of a passport in the name of 

Abdelaziz Ammar (the name of the man Ms. Khalaf had married) and 
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Babb's North Carolina ID and driver's license, along with a copy 

of the front page of a residential lease for 25 North Ivey 

Street in the name of Ms. Khalaf and Abdelaziz Ammar.

Babb withdrew her petition for alien relative on December 

13, 2007, following Khalaf's detention by immigration 

authorities and after her visit with an immigration agent. 

At trial, Khalaf's version of events was that he intended 

to visit Ohio upon his arrival in the United States but went to 

Asheville first because a friend offered to assist Khalaf with 

translating. He explained that he divorced Ms. Khalaf before 

leaving the West Bank because she was angry he was not bringing 

her to the United States on the alleged business trip. He again 

claimed that he loved Babb and that their marriage was 

legitimate but testified that Babb drank heavily and did not 

always come home. Khalaf acknowledged visiting Ms. Khalaf 

frequently during her second visit in the United States but only 

because his daughter was with her. He admitted having sex only 

once with Ms. Khalaf, which resulted in pregnancy. Khalaf denied 

filling out his own nonimmigrant visa application and admitted 

that he had a tourist office, in the business of completing 

these applications for others, assist him. Khalaf did not sign 

his application, but claimed that he had read the application 

and that it was all true. As to the portion of his application 

stating that APS would pay for his travel and accommodations 
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during his United States visit, Khalaf testified he did not 

remember that part of the application, but that APS was not

going to pay him for these expenses. Any mistakes on his visa 

application, he claimed, were the fault of the person who helped 

him prepare the application. 

II.

Following the government’s evidence, and again at the close 

of all of the evidence, Khalaf moved under Federal Rule of 

Criminal Procedure 29 for dismissal due to insufficient 

evidence. We review the district court’s denial of a Rule 29 

motion for judgment of acquittal de novo. United States v. 

Kingrea, 573 F.3d 186, 194 (4th Cir. 2009); Fed. R. Crim. P. 29. 

We are obliged to sustain a guilty jury verdict “if, viewing the 

evidence in the light most favorable to the government, it is 

supported by substantial evidence.” Kingrea, 573 F.3d at 194 

(quotation omitted). This court “ha[s] defined substantial 

evidence as evidence that a reasonable finder of fact could 

accept as adequate and sufficient to support a conclusion of a 

defendant’s guilt beyond a reasonable doubt.” United States v. 

Alerre, 430 F.3d 681, 693 (4th Cir. 2005) (internal quotation 

omitted). In conducting our review, we consider both 

circumstantial and direct evidence, drawing all reasonable 

inferences from such evidence in the government’s favor. United 
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States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). Khalaf, as 

the defendant challenging the sufficiency of the evidence, 

“bears a heavy burden.” United States v. Beidler, 110 F.3d 

1064, 1067 (4th Cir. 1997) (internal quotation omitted). 

Here, the government presented circumstantial evidence that 

Khalaf obtained and used his nonimmigrant visa knowing that it 

was procured by means of a false claim or statement, as 

proscribed by 18 U.S.C. § 1546(a), and as charged in Count I. 

Section 1546(a) states: 

Whoever knowingly . . . utters, uses, attempts to use, 

possesses, obtains, accepts, or receives [any 

immigrant or nonimmigrant 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 . . . have been 

procured by means of any false claim or statement, or 

to have been otherwise procured by fraud or unlawfully 

obtained [shall be fined or imprisoned]. 

 

18 U.S.C. § 1546(a).

Khalaf essentially argues that the jury failed to give 

proper weight to his testimony, but this court does not weigh 

evidence or review witness credibility. United States v. 

Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Rather, it is the 

role of the jury to judge the credibility of witnesses, resolve 

conflicts in testimony, and weigh the evidence. United States 

v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984). Here, stated in 

simplest terms, the jury did not believe Khalaf’s version of 

events. 
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It is axiomatic that evidence of conduct after a statement 

is made can certainly bear upon the intent of the declarant at 

the time he made the statement. That is, Khalaf’s conduct 

subsequent to his procurement of his nonimmigrant visa tended to 

prove the falsity of his statement that the intended purpose of 

his trip was to travel to Ohio to conduct business. 

Notwithstanding Khalaf’s testimony that he had every intention 

of going to Ohio to further his business ventures at the time he 

applied for, and ultimately used, this nonimmigrant visa, we 

find that the evidence, when viewed in the light most favorable 

to the government, clearly supports the jury’s finding. 

Likewise there was sufficient evidence that Khalaf entered 

into the marriage with Babb for the purpose of evading a 

provision of the immigration laws, as charged in Count II. See

8 U.S.C. § 1325(c). A conviction under section 1325(c) requires 

the government to prove: (1) that the alien knowingly entered 

into a marriage; (2) the marriage was entered into for the 

purpose of evading a provision of the immigration laws; and (3) 

the alien knew or had reason to know of the immigration laws. 

United States v. Islam, 418 F.3d 1125, 1128 (10th Cir. 2005). 

Despite Khalaf’s persistent attempts to focus our attention on 

Babb’s belief in the legitimacy of her relationship with Khalaf 

at the time the two wed, Babb’s state of mind is not at issue 

today. And, while Babb’s subjective belief could be probative 
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of the issue regarding the marriage’s legitimacy, it does not 

carry the day as Khalaf seems to argue, and certainly does not 

establish Khalaf’s intent. After reviewing the record in the 

light most favorable to the government, we find the evidence 

presented clearly supports the jury’s finding that Khalaf 

engaged in marriage fraud in violation of 8 U.S.C. § 1325(c). 

Accordingly, we conclude that there is substantial evidence 

supporting the jury verdict on each count. The jury’s 

conclusion that Khalaf never intended to further his clothing 

business, but rather carried out a carefully crafted course of 

action to use his marital status to attempt to alter his 

immigration status is supported by substantial evidence. 

Accordingly, the district court properly denied Khalaf’s Rule 29 

motions for acquittal. 

III.

Khalaf also challenges the dates charged to the jury on 

each count. He does not, however, challenge the legal 

sufficiency or validity of the indictment. We review for abuse 

of discretion a district court’s rulings on jury instructions. 

United States v. Bolden, 325 F.3d 471, 486 (4th Cir. 2003). The 

reviewing court will not reverse “provided that the 
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instructions, taken as a whole, adequately state the controlling 

law.” Teague v. Bakker, 35 F.3d 978, 985 (4th Cir. 1994).*

Particularly, the instructions charged that Khalaf engaged 

in visa fraud on or about October 15, 2005, the date Khalaf 

entered the United States, until December 6, 2007, the date of 

his arrest. The district court also instructed: 

 

The indictment charges that the offenses were 

committed on or about a certain date or dates. The 

proof need not establish with certainty, the exact 

date of the alleged offense. It is sufficient if the 

evidence establishes beyond a reasonable doubt, that 

the offense in question was committed on a date 

reasonably near the date alleged. 

Khalaf claims this unnecessarily expanded the statutory 

offense, impermissibly suggested to the jury that the offense 

was a continuing one, and confused and misled the jury in 

violation of the Due Process Clause. If a crime was committed 

at all, claims Khalaf, it was when the application was made in 

Palestine, not four months later when he arrived in the United 

States. 

Section 1546(a) states that whoever "uses, attempts to use, 

possesses, obtains, accepts, or receives" any "immigrant or 

nonimmigrant visa," knowing the visa "to have been procured by 

means of any false claim or statement" shall be fined or 

imprisoned not more than ten years in the case of a first 

 * Khalaf preserved his objections at trial regarding these 

instructions, contrary to the government's claim on appeal. 
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offense. 18 U.S.C. § 1546(a). Using the dates “on or about 

October 15, 2005, until on or about December 6, 2007,” while not 

a model of clarity, adequately instructs the jury under the 

statute. Indeed, Khalaf used and possessed the nonimmigrant 

visa during the times charged. Therefore, the district court 

did not abuse its discretion when it allowed the “on or about” 

dates as charged on the visa fraud count. 

As to the marriage fraud count, Khalaf claims the court 

abused its discretion when it included “on or about July 11, 

2007” in the jury charge because that is the date he filed for 

adjustment of status and not the actual date of marriage, which 

was December 1, 2006, the only date Khalaf claims marriage fraud 

could occur. Here, too, Khalaf claims this inclusion was 

misleading and confusing in violation of the statute and denied 

him due process because it invited the jury to convict Khalaf 

for taking advantage of his legitimate but failing marriage to 

obtain a more favorable immigration status. The statute 

criminalizes "enter[ing] into a marriage for the purpose of 

evading any provision of the immigration laws." 8 U.S.C. § 

1325(c). While the date of December 1, 2006, could have been 

included in the charging document and jury charge, allowing the 

date on which Khalaf relied upon that marriage to adjust his 

immigration status was not an abuse of discretion. It was on 

the later date that the purpose behind the sham marriage-evading 
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a provision of the immigration laws-revealed itself. 

Accordingly, the district court did not abuse its discretion. 

For the foregoing reasons, we affirm. 

AFFIRMED