F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

W E I L I N , Defendant-Appellant

. N o. 11-10576

D.C. No. 1:11-cr-00008- RVM-1

OPI NI ON

A ppeal from the United States District Court for the District of the Northern Mariana I slands Ramona V. Mang lona, Chief District J udg e, Presiding

Arg ued and Submitted October 10, 2013—Honolulu, Hawaii

F iled December 24, 2013

B e fore: Alex Koz inski, Chief J udg e, and Ray mond C. F isher and Paul J

. W atford, Circuit J udg e s.
Opinion by

J u dg e W atfordU N I T E D S T A T E S V

. L I

N 2

SUMMARY *

Crim inal Law

The panel reversed the defendant’s convictions under 18 U.S.C. § 1546(a) (fraud and misus e o f visas, permits, a nd

o t h er documents), a ffirmed his convictions under 1 8 U .S.C

. § 1001(a)(2) (false statement to a fed eral ag e nt), a nd remanded for further proceeding s.

T he panel h eld that § 1546(a) cannot be read t o criminaliz e the mere possession o f an u n l a w fully obtained Commonwealth of Northern Mariana I slands driver’s license, and that b e cause the g overnment presented no evidence that the defendant possessed a n y other d o cument covered by the statute, his § 1546(a) convictions cannot stand.

The panel held tha t there was sufficient evidence to support the § 1001(a)(2) conviction.

COUNSEL

Mark B

. Hanson, Saipan, Commonwealth of t h e Northern Mariana I slands, for Defendant-Appellant.

Stephen F

. L e on Guerrero (arg ued), A ssistant United States Attorney
, a

nd Alicia A.G. L imtiaco, United States Attorney
, United States A ttorney ’s Off ice, Hag åtña, Guam, for Plaintiff-Appellee.

* T h is s u m

m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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OP INION

W A TF ORD, Circuit J udg e:

W e i L in, a Ch i n e se national, unlawfully obtained two driver’ s l i c enses issued by the Commonwealth o f the Northern Mariana I slands ( CNMI ). The main issue on appeal is whether L in’s possession of those licenses m a y b e punished under 18 U.S.C. § 1546(a).

I

Section 1546, titled “F raud and misuse of visas, permits, and other d o c uments,” criminaliz es a diverse rang e o f conduct, most of it tied to immig ration-rel a t ed documents. As relevant to the charg es broug ht ag ainst L in, the s t atute required the g overnment to prove that he (1) possessed one o f the documents specified in the statut e and (2) knew the document had been obtained unlawfully or fraudulently

. 1

1 T h e f irst p arag rap h o f 1 8 U.S.C. § 1 5 4 6 (a )
, u n d e r w h i ch L i n w as ch arg ed , p ro v id es:

W h oev er k

n o w in g ly f

org es, co u n terf

eits, alters, or f alsely m ak es an y im

m ig ran t o r no n

- im

m ig ran t v isa,
p erm i t , bo rd er cro ssin g card
, alien reg istratio n receip t card
, o r o t h er d o cu m en t p rescrib ed b y statu te or reg u l atio n f

o r en try in t o o r a s e v i d en ce o f au th o rized stay or em p lo y m en t i n t h e Un i ted States, o r u tters, u ses, attem p ts to u se, p o s s esses, o b t ain s, accep ts, o r receiv es

an y s u c h v isa, p erm i t, b o rd er cro s sin g card
, alien
reg istratio n receip t card
, or o t h er do cu m en t p rescrib ed b y statu te o r reg u latio n f

o r en try in to o r as ev id en ce of

au th orized stay o r em

p lo y m en t in th e Un it e d States, k n o w i n g it t o b e f

o rg ed
, co u n terf

eited
, altered
, or f alsely m ad e, or to h av e b een p ro cu red b y m ean s o f an yU N I T E D S T A T E S V

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At trial, L in did n o t c ontest the second element. L in unlawfully obtained two authentic CNMI drive r ’ s licenses issued in his o wn n ame. He kne w t h e f irst license had been obtained unlawfully b ecause he paid a b r i b e t o g e t it. After a police officer confiscated that license during a traffic stop, L in obtained a duplicate license. L in knew the duplicate h ad been o btained unlaw fu l l y b ecause to g e t it, he submitted an affidavit to the CNMI B u r e a u of Motor V ehicles falsely stating that he had lost the orig inal license at the beach.

L in did contest the first element o f the offense: He arg ued that a CNMI driver’s license is not o n e o f the documents specified in § 1546(a). Those documents consist of the following : “any immig rant or n on-immig rant v isa, permit, border crossing card, a lien r eg istration receipt c ard,

or other document prescribed by sta t u t e or regulation for entry into o r as evidence of authorized stay or employment in the United States .” 18 U.S.C. § 1546(a) ( emphasis added);

see United States v. Krstic
, 558 F .3d 1010, 1015–16 (9th Cir. 2009).

The g o vernment c ontends a driver’s license is covered b y the italiciz ed “other d ocum ent” clause, but it plainly is not. T h e g o vernment has n ot identified any federal statute o r reg ulation that prescrib es a driver’s license as one o f the docu m e n t s authoriz ing entry into the United States. See 8 U.S.C. §§ 1181(a), 1182(a)(7); 8 C.F .R. §§ 211.1(a), 212.1, 212.6. Nor has the g overnment identified any federal statute

or reg ulatio n d e s i g nating a driver’s license as evidence o f authoriz ation to s t a y or w ork in the United States. The

f alse claim or s tatem en t , o r to h av e b een o t herw ise
p ro cu red b y f

rau d o r u n law f

u lly o b tain ed [co m m its an

o f f en se u n der th is sectio n ].U N I T E D S T A T E S V

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g overnment merely notes that a driver’s license is o ne of the documents employ ers may use to help verify the employ ment authoriz ation status of prospective e mploy ees, as manda ted by the I mmig r ation Reform and Control Act of 1986 (I RCA). See 8 U.S.C. § 1324a(b)(1); 8 C.F

. R. § 274a.2(b)(1)(v). B ut both I RCA and its impleme n t i ng r eg ulation make clear that

a driver’s license may be used to establish only a prospective

e m p l o ye e ’ s i d e n t i t

y

. T o e s t a b l i s h “ e m p l o y m e n t authoriz ation,” the relevant status for purposes of § 1546(a),

a n employ ee must present a separate d ocument, such a s a passport, resident alien card, o r social security card. 8 U .S.C. § 1324a(b)(1); 8 C.F

. R. § 274a.2(b)(1)(v).

The g overnme nt’s r eading of § 1546(a) would render much of § 1 546(b) superfluous, a r e s u lt we should seek to avoid. See, e. g

. , Corley v. United States
, 556 U.S. 303, 314 (2009). A ccording to the g overnm e n t, § 1546(a)’s “other d o c u m e n t ” c l ause covers all identification documents b e c a u s e they c an be used to verify a prospective employ e e’ s identity

as part of the I RCA-mandated verification proce s s

. B ut Cong r ess separately addressed that process in § 1546(b). Section 1546(b) prohibits the use during t he verification
process of an “identification d ocum e n t ” that the defendant knows or has reason to know “was not issued lawfully for the

use of the possessor” or “is fals e. ” 18 U.S.C. § 1546(b). B ecause § 1546(a) already prohibits both the possession and

use of the documen t s it covers, the g overnment’s r eading o f § 1546(a) would leave no work to be done by § 1546(b).

F or these r easons, § 1546(a) cannot be read to criminaliz e the mere possession of an unlawfully obtained CNMI driver’s license. B e cause the g o vernment p resented no evidence that L in possessed any other d o c u m ent covered by the statute, L in’s § 1546(a) c onvictions ca n n o t stand. We are notU N I T E D S T A T E S V

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persuaded that L in “waived” his rig ht to bring this challeng e , as the g over n m ent contends. L in moved post-trial for a judg ment of acquittal under F ederal Rule of Criminal Procedure 29, assertin g the same evidentiary deficiency we’ve discussed. Even if we viewed L in’s challeng e a s a purely leg a l one—asserting that the indictment fails to state

an offense—such a challeng e may be r aised f or the first time

on appea l
, s i nce “ a judg ment founded upon a complaint which d o es not state a crime cannot be sustained.” Johnson v. United States , 206 F .2d 806, 808 (9th Cir. 1953); see also F ed. R. C r i m

. P

. 12(b)(3)(B ); United States v. Lo
, 231 F .3d 471, 481 (9th Cir. 2000).

I I

The remaining que s t i on is whether L in’s other conviction—for making a false statement t o a f ederal ag ent in violation of 1 8 U.S.C. § 1001(a)(2)—m a y s t a n d

. L in contends the g o vernment introduced insufficient evidence to sustain this conviction as well.

Vi ew i n g the evidence in the lig ht most favorable to the
g overnment, a rational jury could f ind L in g uilty b ey ond a reasonable doubt. S

ee Jackson v. Virginia
, 4 43 U.S. 307, 319 ( 1 9 7 9 )

. The g o vernment’s proof at trial established the following

. A f

ederal immig ration ag ent approached L in in a parking lot and as k e d h im, throug h a translator, w hether he had any “identification documents.” L in said h e did not. W h en the a g ent asked L in about the folded papers visible in

one of h is pockets, L in produced a p hotocopy of the duplicate CNMI driver’s license. T h e ag e nt a g ain asked L in w h e t h e r he had any “identification documents,” and L in ag ain said he did not, this time adding that his dr i v e r ’ s l icense had been confiscated. The a g ent thereafter took L in to the l o ca l f i eldU N I T E D S T A T E S V

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o ffice, where another ag ent inventoried L in’s possessions
, including his wallet. I nside the wallet, the ag ent found the duplicate CNMI

driver’s license.

L in attacks the sufficiency of the g overnment’s evidence

on two f ronts. F irst, h e contends there was insufficient proof that he actually h a d t h e license o n h is person when he answered the ag ent’s q

uestions. B ut a rational ju r y c o uld infer from the sequence of events tha t L i n h ad his wallet—and t h u s the license—on his p erson. The jury may not have been compelled to draw that inference, but it could reasonably have done so based on the evidence presented at trial. That remains true even if we w ere to consider the police report L in has submitted on a p pea l
, w hich states that the
ag ents drove L in from the parking lot to his residence before taking him to the field office. D espite h a v ing the police report at the time of trial, L in never a rg u e d to the jury that he picked up his w allet at home on the way to the field o f f i ce. The report is therefore irrelevant to our analy sis, and we deny L in’s request to take judicial notice of it. 2

Se c ond, L in arg ues that the ag ent’s questions reg arding “identi f i cation documents” w ere v ag u e and may have been incorrectly translated, leading L in to misunderstand what the
ag ent was asking

. A rational jur y could conclude that L in knew w hat the ag ent meant by “identification documents.” W h en asked a second time whethe r he had any such

2 W e also rej ect L in ’ s co n ten tio n t h at t h e p ro se c u t o r co m

m i tted

m isco n d u ct d ur i n g clo sin g arg u m en ts b y arg u in g th at L in h ad th e w allet

o n h is p erso n w

h en h e an sw ered th e a g e n t’ s qu estio n s. P ro secu to rs are p erm i tted to “ arg u e reaso n ab le in f eren ces b ased o n th e ev id en ce,” Un ited S ta tes v. Neco ech ea , 9 86 F.2 d 1 2 7 3
, 1 2 76 (9 th Cir. 1 9 9 3 ), w h ich i s all th e p ro secu to r d id h ere.U N I T E D S T A T E S V

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documents—after producing a p hotocopy of the duplicate CNMI driver’s license—L in stated tha t he didn’t have a driver’s license because it had been confis cated by an immig ration officer. B a sed o n that a nswer, a rational jury could infer that L in knew w hat ty pe of “identification documents” the ag ent’s questions referred to, and that L in k n owing ly and willfully lied when he told the ag ent h e h a d

none.

* * *

W e reverse L in’s convictions under 18 U.S.C. § 1546(a), affirm his c o nviction under 1 8 U.S.C. § 1001(a)(2), a nd remand the case to the district court for further proceeding s.

AF F IRMED in part, R EVERSED in part, a nd REMANDED.