FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WEI LIN,

Defendant-Appellant.

No. 11-10576

D.C. No.

1:11-cr-00008-

RVM-1

OPINION

Appeal from the United States District Court

for the District of the Northern Mariana Islands

Ramona V. Manglona, Chief District Judge, Presiding

Argued and Submitted

October 10, 2013—Honolulu, Hawaii

Filed December 24, 2013

Before: Alex Kozinski, Chief Judge, and Raymond C.

Fisher and Paul J. Watford, Circuit Judges.

Opinion by Judge Watford
2 UNITED STATES V. LIN

SUMMARY*

Criminal Law

The panel reversed the defendant’s convictions under 18

U.S.C. § 1546(a) (fraud and misuse of visas, permits, and

other documents), affirmed his convictions under 18 U.S.C.

§ 1001(a)(2) (false statement to a federal agent), and

remanded for further proceedings.

The panel held that § 1546(a) cannot be read to

criminalize the mere possession of an unlawfully obtained

Commonwealth of Northern Mariana Islands driver’s license,

and that because the government presented no evidence that

the defendant possessed any other document covered by the

statute, his § 1546(a) convictions cannot stand.

The panel held that there was sufficient evidence to

support the § 1001(a)(2) conviction. 

COUNSEL

Mark B. Hanson, Saipan, Commonwealth of the Northern

Mariana Islands, for Defendant-Appellant.

Stephen F. Leon Guerrero (argued), Assistant United States

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

United States Attorney’s Office, Hagåtña, Guam, for

Plaintiff-Appellee.

* 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. LIN 3

OPINION

WATFORD, Circuit Judge:

Wei Lin, a Chinese national, unlawfully obtained two

driver’s licenses issued by the Commonwealth of the

Northern Mariana Islands (CNMI). The main issue on appeal

is whether Lin’s possession of those licenses may be

punished under 18 U.S.C. § 1546(a).

I

Section 1546, titled “Fraud and misuse of visas, permits,

and other documents,” criminalizes a diverse range of

conduct, most of it tied to immigration-related documents. 

As relevant to the charges brought against Lin, the statute

required the government to prove that he (1) possessed one of

the documents specified in the statute and (2) knew the

document had been obtained unlawfully or fraudulently.

1

1 The first paragraph of 18 U.S.C. § 1546(a), under which Lin was

charged, provides:

Whoever knowingly forges, counterfeits, alters, or

falsely makes any immigrant or non-immigrant visa,

permit, border crossing card, alien registration receipt

card, or other document prescribed by statute or

regulation for entry into or as evidence of authorized

stay or employment in the United States, or utters, uses,

attempts to use, possesses, obtains, accepts, or receives

any such visa, permit, border crossing card, alien

registration receipt card, 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
4 UNITED STATES V. LIN

At trial, Lin did not contest the second element. Lin

unlawfully obtained two authentic CNMI driver’s licenses

issued in his own name. He knew the first license had been

obtained unlawfully because he paid a bribe to get it. After

a police officer confiscated that license during a traffic stop,

Lin obtained a duplicate license. Lin knew the duplicate had

been obtained unlawfully because to get it, he submitted an

affidavit to the CNMI Bureau of Motor Vehicles falsely

stating that he had lost the original license at the beach.

Lin did contest the first element of the offense: He

argued that a CNMI driver’s license is not one of the

documents specified in § 1546(a). Those documents consist

of the following: “any immigrant or non-immigrant visa,

permit, border crossing card, alien registration receipt card,

or other document prescribed by statute or regulation for

entry into or 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 government contends a driver’s license is covered by

the italicized “other document” clause, but it plainly is not. 

The government has not identified any federal statute or

regulation that prescribes a driver’s license as one of the

documents authorizing 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 government identified any federal statute

or regulation designating a driver’s license as evidence of

authorization to stay or work in the United States. The

false claim or statement, or to have been otherwise

procured by fraud or unlawfully obtained [commits an

offense under this section].
UNITED STATES V. LIN 5

government merely notes that a driver’s license is one of the

documents employers may use to help verify the employment

authorization status of prospective employees, as mandated

by the Immigration Reform and Control Act of 1986 (IRCA). 

See 8 U.S.C. § 1324a(b)(1); 8 C.F.R. § 274a.2(b)(1)(v). But

both IRCA and its implementing regulation make clear that

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

employee’s identity. To establish “employment

authorization,” the relevant status for purposes of § 1546(a),

an employee must present a separate document, such as a

passport, resident alien card, or social security card. 8 U.S.C.

§ 1324a(b)(1); 8 C.F.R. § 274a.2(b)(1)(v).

The government’s reading of § 1546(a) would render

much of § 1546(b) superfluous, a result we should seek to

avoid. See, e.g., Corley v. United States, 556 U.S. 303, 314

(2009). According to the government, § 1546(a)’s “other

document” clause covers all identification documents because

they can be used to verify a prospective employee’s identity

as part of the IRCA-mandated verification process. But

Congress separately addressed that process in § 1546(b). 

Section 1546(b) prohibits the use during the verification

process of an “identification document” that the defendant

knows or has reason to know “was not issued lawfully for the

use of the possessor” or “is false.” 18 U.S.C. § 1546(b). 

Because § 1546(a) already prohibits both the possession and

use of the documents it covers, the government’s reading of

§ 1546(a) would leave no work to be done by § 1546(b).

For these reasons, § 1546(a) cannot be read to criminalize

the mere possession of an unlawfully obtained CNMI driver’s

license. Because the government presented no evidence that

Lin possessed any other document covered by the statute,

Lin’s § 1546(a) convictions cannot stand. We are not
6 UNITED STATES V. LIN

persuaded that Lin “waived” his right to bring this challenge,

as the government contends. Lin moved post-trial for a

judgment of acquittal under Federal Rule of Criminal

Procedure 29, asserting the same evidentiary deficiency

we’ve discussed. Even if we viewed Lin’s challenge as a

purely legal one—asserting that the indictment fails to state

an offense—such a challenge may be raised for the first time

on appeal, since “a judgment founded upon a complaint

which does not state a crime cannot be sustained.” Johnson

v. United States, 206 F.2d 806, 808 (9th Cir. 1953); see also

Fed. R. Crim. P. 12(b)(3)(B); United States v. Lo, 231 F.3d

471, 481 (9th Cir. 2000).

II

The remaining question is whether Lin’s other

conviction—for making a false statement to a federal agent

in violation of 18 U.S.C. § 1001(a)(2)—may stand. Lin

contends the government introduced insufficient evidence to

sustain this conviction as well.

Viewing the evidence in the light most favorable to the

government, a rational jury could find Lin guilty beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319

(1979). The government’s proof at trial established the

following. A federal immigration agent approached Lin in a

parking lot and asked him, through a translator, whether he

had any “identification documents.” Lin said he did not. 

When the agent asked Lin about the folded papers visible in

one of his pockets, Lin produced a photocopy of the duplicate

CNMI driver’s license. The agent again asked Lin whether

he had any “identification documents,” and Lin again said he

did not, this time adding that his driver’s license had been

confiscated. The agent thereafter took Lin to the local field
UNITED STATES V. LIN 7

office, where another agent inventoried Lin’s possessions,

including his wallet. Inside the wallet, the agent found the

duplicate CNMI driver’s license.

Lin attacks the sufficiency of the government’s evidence

on two fronts. First, he contends there was insufficient proof

that he actually had the license on his person when he

answered the agent’s questions. But a rational jury could

infer from the sequence of events that Lin had his

wallet—and thus the license—on his person. 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 were to consider the police

report Lin has submitted on appeal, which states that the

agents drove Lin from the parking lot to his residence before

taking him to the field office. Despite having the police

report at the time of trial, Lin never argued to the jury that he

picked up his wallet at home on the way to the field office. 

The report is therefore irrelevant to our analysis, and we deny

Lin’s request to take judicial notice of it.2

Second, Lin argues that the agent’s questions regarding

“identification documents” were vague and may have been

incorrectly translated, leading Lin to misunderstand what the

agent was asking. A rational jury could conclude that Lin

knew what the agent meant by “identification documents.” 

When asked a second time whether he had any such

2 We also reject Lin’s contention that the prosecutor committed

misconduct during closing arguments by arguing that Lin had the wallet

on his person when he answered the agent’s questions. Prosecutors are

permitted to “argue reasonable inferences based on the evidence,” United

States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993), which is all the

prosecutor did here.
8 UNITED STATES V. LIN

documents—after producing a photocopy of the duplicate

CNMI driver’s license—Lin stated that he didn’t have a

driver’s license because it had been confiscated by an

immigration officer. Based on that answer, a rational jury

could infer that Lin knew what type of “identification

documents” the agent’s questions referred to, and that Lin

knowingly and willfully lied when he told the agent he had

none.

* * *

We reverse Lin’s convictions under 18 U.S.C. § 1546(a),

affirm his conviction under 18 U.S.C. § 1001(a)(2), and

remand the case to the district court for further proceedings.

AFFIRMED in part, REVERSED in part, and

REMANDED.