FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

AIFANG YE, 

Defendant-Appellant.

No. 12-10576

D.C. No.

1:12-cr-00009-

RVM-2

OPINION

Appeal from the District Court

for the Northern Mariana Islands

Ramona V. Manglona, Chief District Judge, Presiding

Argued and Submitted

February 19, 2015—Honolulu, Hawaii

Filed July 10, 2015

Before: Richard R. Clifton, N. Randy Smith,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Friedland
2 UNITED STATES V. YE

SUMMARY*

Criminal Law

Affirming convictions relating to the provision of false 

information on a passport application in violation of 18 

U.S.C. § 1542, the panel held that a violation of § 1542 

does not require specific intent.

The panel held that a conviction under the first 

paragraph of § 1542 requires only that, in applying for a 

passport, the defendant made a statement that the defendant 

knew to be untrue. The panel therefore rejected the 

defendant’s arguments about purported flaws in the jury 

instructions that depend on the notion that specific intent is 

required by § 1542.

The panel held that the defendant’s argument that the 

government’s failure to call certain translators as witnesses 

at trial violated her rights under the Confrontation Clause is 

foreclosed by precedent.

COUNSEL

David G. Banes (argued), O’Connor Berman Dotts & 

Banes, Saipan, Commonwealth of the Northern Mariana 

Islands, for Defendant-Appellant.

 

 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
UNITED STATES V. YE 3

Ross K. Naughton (argued), Assistant United States 

Attorney, and Alicia A. G. Limtiaco, United States 

Attorney, United States Attorneys’ Office, Saipan, 

Commonwealth of the Northern Mariana Islands, for 

Plaintiff-Appellee.

OPINION

FRIEDLAND, Circuit Judge:

Following a jury trial, Aifang Ye appeals her 

convictions relating to the provision of false information on 

a passport application. She argues that the district court’s 

jury instructions erroneously failed to condition her 

convictions on a finding that she intended to violate the 

passport laws. We hold that the crimes for which Ye was 

convicted are not specific intent crimes, so her challenges 

to the jury instructions fail. Ye’s additional argument that 

the government’s failure to call certain translators as 

witnesses at trial violated her rights under the 

Confrontation Clause is foreclosed by precedent. We

therefore affirm.

I. Background

Aifang Ye and her husband, Xigao Cheng, both 

Chinese citizens, traveled from China to Saipan in 

September 2011. Ye’s tourist visa permitted her to stay 

until October 2011. Xigao returned to China in September, 

but Ye, who was pregnant with their second child, 

overstayed her visa. In February 2012, Ye gave birth to her 

daughter, Jessie, in Saipan. Jessie’s place of birth makes 

her a U.S. citizen entitled to a U.S. passport.
4 UNITED STATES V. YE

Parents of a U.S. citizen child under age 16 may obtain 

a U.S. passport for the child if both parents apply in person 

at the passport office. Alternatively, the application may be 

executed by only one of the parents if that parent shows a 

notarized statement or affidavit from the absent parent 

consenting to the issuance of the passport. 22 C.F.R. 

§ 51.28(a)(3)(i).

Ye and her husband wished to obtain a U.S. passport 

for Jessie but, because drawing attention to the birth of a 

second child might have created difficulties for them at 

home, Ye did not want to have her husband seek a 

notarized statement. On the advice of Kaiqi Lin, whom Ye 

had hired to provide translation and document preparation 

services, her husband instead gave his passport to his 

brother Zhenyan Cheng, who would be traveling to Saipan. 

Zhenyan then traveled to Saipan, bringing his brother’s 

passport with him to Saipan.

Lin drove Ye and Zhenyan to the passport office in 

Saipan. Zhenyan presented the passport office employee 

with his brother’s passport, without showing his own 

passport or a power of attorney from his brother. Ye signed 

the application as Jessie’s mother and Zhenyan signed as 

Jessie’s father, using his brother’s name.

Unfortunately for Ye, the Department of Homeland 

Security (“DHS”) had Lin under surveillance that day. 

After Ye, Zhenyan, and Lin left the passport office, a DHS 

agent approached Lin in his car and saw two Chinese 

passports on the passenger seat—Ye’s and her husband’s. 

Lin provided the passports to the DHS agent at his request. 

The agent confirmed that Zhenyan had not had his own 

passport with him at the passport office.
UNITED STATES V. YE 5

Zhenyan later was arrested and gave a statement to a 

DHS agent using the U.S. Citizenship and Immigration 

Services (“USCIS”) “Language Line” for translation 

assistance. The next day, Ye voluntarily came to the DHS 

office and provided her own statement using the USCIS 

Language Line.

Ye then cooperated with the government in its 

investigation of Lin by placing a recorded phone call to 

him. Despite Ye’s cooperation, both Ye and Zhenyan were 

indicted. Zhenyan was charged with violating 18 U.S.C. 

§ 1542, which prohibits providing false information in a 

passport application, and Ye was charged with aiding and 

abetting that violation. Both were charged with conspiracy 

to violate § 1542.

Following a joint trial, the jury acquitted Zhenyan but 

convicted Ye of both counts. Ye timely appealed her 

convictions.

II. Discussion

A. Specific Intent

The statute under which Ye was convicted, 18 U.S.C. 

§ 1542, provides:

Whoever willfully and knowingly makes 

any false statement in an application for 

passport with intent to induce or secure the 

issuance of a passport under the authority of 

the United States, either for his own use or 

the use of another, contrary to the laws 

regulating the issuance of passports or the 

rules prescribed pursuant to such laws; or
6 UNITED STATES V. YE

Whoever willfully and knowingly uses or 

attempts to use, or furnishes to another for 

use any passport the issue of which was 

secured in any way by reason of any false 

statementShall be [subject to criminal liability].

Ye was convicted under the first paragraph of this statute.

Ye argues that the statute’s use of “willfully and 

knowingly” makes providing a false statement in a passport 

application a specific intent crime–meaning that it requires 

the intentional violation of a known legal duty. Ye 

contends that the district court’s instructions defining 

“willfully” and “knowingly” failed to reflect this 

requirement.

We review de novo whether jury instructions accurately 

described the elements of the charged crime. United States 

v. Liu, 731 F.3d 982, 987 (9th Cir. 2013). We hold that a 

violation of § 1542 does not require specific intent. A 

conviction under the first paragraph of § 1542 requires only 

that, in applying for a passport, the defendant made a 

statement that the defendant knew to be untrue.

The Supreme Court long ago established that the 

second paragraph of § 1542 does not require specific intent. 

In Browder v. United States, the Court defined “willfully 

and knowingly” in the second paragraph to mean 

“deliberately and with knowledge and not something which 

is merely careless or negligent or inadvertent.” 312 U.S. 
UNITED STATES V. YE 7

335, 341 (1941).1 This definition does not require that the 

defendant knew that her action was unlawful.

Although Browder analyzed the second paragraph of 

§ 1542 rather than the first, “[a] term appearing in several 

places in a statutory text is generally read the same way 

each time it appears.” Ratzlaf v. United States, 510 U.S. 

135, 143 (1994). This principle counsels us to apply the 

Supreme Court’s definition of “willfully and knowingly” in 

the second paragraph of § 1542 to the identical language in 

the first paragraph. Other circuits that have considered the 

issue agree that Browder’s definition applies to the first 

paragraph and that, therefore, no part of the statute has a 

specific intent requirement. See United States v. George, 

386 F.3d 383, 389 (2d Cir. 2004) (Sotomayor, J.); Liss v. 

United States, 915 F.2d 287, 293 (7th Cir. 1990); United 

States v. O’Bryant, 775 F.2d 1528, 1535 (11th Cir. 1985).

Notwithstanding Browder, Ye argues that our decision 

in United States v. Winn, 577 F.2d 86 (9th Cir. 1978), 

established that the first paragraph of § 1542 creates a 

specific intent crime. The defendant in Winn had 

challenged his conviction under that paragraph on the 

ground that there was insufficient evidence to prove 

specific intent. Id. at 90. We affirmed because sufficient 

evidence supported the defendant’s conviction. Id. at 91. 

In describing the jury instructions given at trial, we stated 

that the district court had “correctly instructed the jury that 

‘an act is done willfully if done voluntarily and 

intentionally and with the specific intent to do something 

 

 

1 Browder interpreted a predecessor statute to 18 U.S.C. § 1542. See 

312 U.S. at 335 n.1 (quoting 22 U.S.C. § 220 (repealed 1948)). The 

wording of the predecessor statute was identical in all relevant respects 

to that of § 1542.
8 UNITED STATES V. YE

the law forbids; that is to say, with a purpose either to 

disobey or disregard the law.’” Id. Contrary to Ye’s 

reading, Winn was solely a sufficiency-of-the-evidence 

case, so its approval of the “willfully” jury instruction is 

best understood as stating that the instruction had not 

improperly reduced the government’s burden of proof. 

Given that there was sufficient evidence in Winn to support 

the jury’s finding that the defendant had specific intent, 

there was no need for us to consider whether the statute 

actually required specific intent.2

More recently, and in a case in which the elements of 

§ 1542 were in dispute, we followed Browder in 

interpreting the first paragraph of the statute. In United 

States v. Suarez-Rosario, we stated:

“The gravamen of the offense . . . is the 

making of a false statement.” United States 

v. Cox, 593 F.2d 46, 48 (6th Cir. 1979). 

Thus, the “crime is complete when one 

makes a statement one knows is untrue to 

procure a passport.” United States v. 

O’Bryant, 775 F.2d 1528, 1535 (11th Cir. 

1985). Knowing use of any false statement 

to secure a passport, including the use of a 

false name or birth date, constitutes a 

violation of § 1542. Liss v. United States, 

915 F.2d 287, 293 (7th Cir. 1990). 

 

 

2 Discussing our decision in Winn, then-Judge Sotomayor similarly 

explained: “[The appellant in] Winn challenged only the sufficiency of 

the evidence supporting his conviction . . . and not the jury instruction’s 

accuracy. Therefore, the Ninth Circuit’s statement that the trial court 

‘correctly instructed the jury,’ for which no support was offered, was 

not necessary for the court to reach the issue presented on appeal.” 

George, 386 F.3d at 396 n.14 (citation omitted).
UNITED STATES V. YE 9

Therefore, under the terms of 18 U.S.C. 

§ 1542, the government must prove that the 

defendant made a willful and knowing false 

statement in an application for a passport or 

made a willful and knowing use of a 

passport secured by a false statement.

237 F.3d 1164, 1167 (9th Cir. 2001) (alteration in original). 

This description did not include specific intent among the 

elements of the offense. Although the parties in SuarezRosario had not raised the issue of specific intent, it is 

notable that we relied on Browder and cases from three 

other circuits that had interpreted § 1542 as not including a 

specific intent requirement. Id. (citing Browder, 312 U.S. 

at 340; Liss, 915 F.2d at 293; O’Bryant, 775 F.2d at 1535; 

Cox, 593 F.2d at 48).

We now join our sister circuits and hold that, consistent 

with Browder, a conviction under the first paragraph of 

18 U.S.C. § 1542 does not require specific intent. Because 

all of Ye’s arguments about purported flaws in the jury 

instructions depend on the notion that specific intent is 

required by § 1542, her arguments fail.

B. Confrontation Clause

Prior to trial, Ye and Zhenyan objected that it would 

violate the Confrontation Clause of the Sixth Amendment 

to admit statements they had made to DHS unless the 

USCIS Language Line translators who assisted them were 

called to testify. After considering testimony and other 

evidence regarding the nature of USCIS’s translation 

services, the district court overruled the objection. Ye 

argues on appeal that the district court erred by 

subsequently admitting the translated statements at trial.
10 UNITED STATES V. YE

We review alleged violations of the Confrontation 

Clause de novo. United States v. Brooks, 772 F.3d 1161, 

1167 (9th Cir. 2014).

In United States v. Nazemian, 948 F.2d 522, 525–28 

(9th Cir. 1991), we held that, as long as a translator acts 

only as a language conduit, the use of the translator does 

not implicate the Confrontation Clause. Ye argues that 

Nazemian is inconsistent with the Supreme Court’s 

decisions in Crawford v. Washington, 541 U.S. 36 (2004), 

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and 

Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). As Ye 

correctly concedes, however, we already have held that 

Nazemian remains binding circuit precedent because it is 

not clearly irreconcilable with Crawford and its progeny. 

United States v. Orm Hieng, 679 F.3d 1131, 1141 (9th Cir. 

2012). As a three-judge panel, we are bound by Orm 

Hieng and Nazemian. See Miller v. Gammie, 335 F.3d 889 

(9th Cir. 2003) (en banc).

Ye alternatively argues that the district court misapplied 

Nazemian in admitting the translated statements here. 

Determining whether the translator was merely a language 

conduit under Nazemian requires analyzing four factors: 

“(1) which party supplied the interpreter, (2) whether the 

interpreter had any motive to mislead or distort, (3) the 

interpreter’s qualifications and language skill, and 

(4) whether actions taken subsequent to the conversation 

were consistent with the statements as translated.” United 

States v. Romo-Chavez, 681 F.3d 955, 959 (9th Cir. 2012).

Ye contends that the first Nazemian factor weighs 

against treating the translators as language conduits 

because the translators were provided by the government 

through its on-demand telephonic translation service. This 

factor does weigh in Ye’s favor, but we have held that this 
UNITED STATES V. YE 11

factor is “never dispositive.” Romo-Chavez, 681 F.3d at 

959. This factor would have more weight if the translators 

were active in directing the interview, id. at 959–60, but 

they were not.

Ye next argues that the second factor weighs in her 

favor because the translators were independent contractors 

who would have a motive to distort evidence in the 

government’s favor in order to keep their jobs. Ye further 

contends that the use of the word “forged” in Zhenyan’s 

original translated statement is in fact evidence of progovernment distortion because Zhenyan would not have 

used such a loaded word. But the record is unclear about 

whether some or all of the translators were independent 

contractors, and there is no way to know whether Zhenyan 

actually used the word “forged.” The inconclusive nature 

of the evidence on this factor causes us to give it little 

weight.

The government’s evidence on the third and fourth 

factors is compelling, and Ye does not argue otherwise. 

For the third factor, the government provided evidence that 

all of the translators had native fluency in Mandarin—the 

language spoken by both Ye and Zhenyan—and that all had 

extensive professional translation training and experience. 

Additionally, during the interviews of Ye and Zhenyan, 

DHS agents checked the accuracy of the translation by 

asking the translators to have Ye and Zhenyan confirm 

line-by-line read-backs of what they had said. To test the 

accuracy of the translation, the DHS agents inserted 

intentional inaccuracies in the read-backs, which Ye and 

Zhenyan identified and corrected each time. This indicates 

that the translators’ work was accurate. For the fourth 

factor, Ye’s behavior subsequent to the interview was 

consistent with her translated statement. During the 

interview, Ye agreed to cooperate in the government’s 
12 UNITED STATES V. YE

investigation of Lin, and she later followed through on that 

agreement by placing a recorded phone call to him. 

Therefore, both the third and fourth factors strongly favor 

the government.

On balance, these four factors favor treating the 

translators as language conduits. Thus, under Nazemian, 

Ye’s Confrontation Clause rights were not violated when 

the government introduced translated statements from Ye 

and Zhenyan without calling the translators to testify.

III. Conclusion

For the foregoing reasons, we AFFIRM Ye’s 

convictions.3

 

 

3 We address Ye’s remaining arguments in a concurrently filed 

memorandum disposition.