UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                              No. 99-4562

ROBERT C. HENDRICKS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                              No. 99-4563

JOYCE E. PERDUE, a/k/a Pastor Joyce,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                              No. 99-4564

ELIZABETH BROWN,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-98-515-MJG)

Argued: January 28, 2000

Decided: April 3, 2000

Before WILKINSON, Chief Judge, and MICHAEL
and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Leonard Crowe, Baltimore, Maryland; Richard
Douglas Bennett, MILES & STOCKBRIDGE, Baltimore, Maryland,
for Appellants. Bonnie S. Greenberg, Assistant United States Attor-
ney, Baltimore, Maryland, for Appellee. ON BRIEF: Byron L.
Warnken, LAW OFFICES OF BONNIE L. WARNKEN, Baltimore,
Maryland, for Appellant Perdue. Lynne A. Battaglia, United States
Attorney, Gregory Welsh, Assistant United States Attorney, Balti-
more, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Defendants Joyce Perdue, Robert Hendricks, and Elizabeth Brown
were indicted for conspiracy to commit visa and immigration fraud by
operating a scheme whereby Estonian immigrants came to work in the
United States. The government filed a motion in limine to prevent
defendants from presenting evidence that they did not believe that the
immigrants' activities in the United States constituted "work" by vir-
tue of their religious beliefs. The district court granted the motion.
Defendants subsequently entered into plea agreements reserving the
right to appeal this ruling. We now vacate the district court's ruling
and remand this case for consideration in light of the relevant prece-
dents, particularly our decision in United States v. Oloyede, 982 F.2d
133 (4th Cir. 1992).

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I.

A.

Defendants' plea agreements set forth a detailed statement of facts,
which we briefly summarize here. In the fall of 1996, defendants
advised a number of Estonian nationals that they could come to the
United States to study at a bible school or work for defendants' Word
of Faith World Outreach Church as religious workers. Defendants
accordingly instructed seven aliens to state on their F-1 (student) visa
applications that they did not intend to work while in the United
States. Defendants also led five aliens to apply for R-1 (religious
worker) visas to do religious work for the church. The student visas
required the aliens to go to school full-time. The religious worker
visas permitted the aliens to perform religious work such as translat-
ing bible studies and preparing religious print and audiovisual materi-
als. Defendants, however, knew that the Estonians applying for
student visas would not be going to school full-time. Defendants also
knew that all of these Estonians would be working in such capacities
as cleaning bookstores, cleaning apartments, and installing office fur-
niture. The Estonians obtained visas and traveled to Perdue's resi-
dence in Maryland.

In addition to their involvement in the church, defendants were
officers of Vision Ventures, Inc. Vision Ventures was the parent com-
pany of Alpha Cleaning Systems, a cleaning business, and Systems
Installation Group, a furniture installation business. Each evening,
defendants met with the Estonians and assigned them to a work crew
for the following day. The Estonians typically departed for work at
6 A.M. and typically returned between 5 P.M. and 9 P.M. Defendants
typically paid the Estonians between $10 and $100 per week for their
services and advised them that they would have to return to Estonia
if they did not work as directed. The student visa holders attended
school only sporadically, and the religious workers only occasionally
translated bible studies.

Defendants directed the students to change out of their work uni-
forms before going to school. Defendants also advised the Estonians
not to tell their parents that they were working. Perdue took measures
to conceal some of the aliens' ages and attempted to hide the fact that

                    3
the aliens were residing at her house. Defendants also filed false doc-
uments with the Immigration and Naturalization Service (INS) to
allow the Estonians to remain in the United States on non-immigrant
visas.

Defendants knew that the Estonians were not supposed to be work-
ing under the immigration regulations governing their visas. Defen-
dants, however, assert that they viewed the immigrants' "work" in the
United States as being different from the "work" prohibited by the
regulations. Defendants claim that their view of the immigrants'
activities was based on their particular religious beliefs.

B.

The government indicted Perdue, Hendricks, and Brown in Decem-
ber 1998 on numerous counts of visa and immigration fraud. Count
One of the indictment charged that defendants conspired to commit
immigration fraud in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) (1994)
and visa fraud in violation of 18 U.S.C. § 1546(a) (1994). Section
1324(a)(1)(A)(iv) provides:

          Any person who encourages or induces an alien to come to,
          enter, or reside in the United States, knowing or in reckless
          disregard of the fact that such coming to, entry, or residence
          is or will be in violation of law [shall be punished by fine
          and/or imprisonment].

Section 1546(a) provides:

          Whoever knowingly forges, counterfeits, alters, or falsely
          makes any immigrant or nonimmigrant visa . . ., or utters,
          uses, attempts to use, possesses, obtains, accepts, or receives
          any such visa . . ., 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 [shall be punished
          by fine and/or imprisonment].

Defendants wished to present evidence of their good faith belief
that the immigrants were not performing "work" within the meaning

                    4
of the INS regulations in order to negate the mens rea required by the
statutes. The government filed a motion in limine to prevent defen-
dants from making such a defense. The government asked the district
court to exclude all evidence and arguments relating to, inter alia,
defendants' alleged belief that the immigrants' work on behalf of the
church was appropriate and defendants' alleged misunderstanding of
the INS regulations.

The district court granted the motion in limine. The court stated
that defendants "may not present a `mistake of law' defense" and
"may not present evidence or argument to the effect that they did not
believe that the activities undertaken on behalf of Alpha Cleaning
Services etc. did not constitute `work' by virtue of their religious
beliefs." The district court also noted that"[d]efendants are not,
hereby, prevented from offering any evidence at all regarding their
church related activities" and that "[d]etailed evidentiary rulings will,
necessarily, have to be made as issues arise in the course of trial."

Defendants subsequently entered into separate plea agreements
with the government. Pursuant to these agreements, each defendant
entered a conditional guilty plea under Fed. R. Crim. P. 11(a)(2), pre-
serving their right to appeal the district court's ruling on the motion
in limine. Defendants pled guilty to Count One and the government
dismissed the remaining counts. Perdue was sentenced to a prison
term of twenty-seven months and ordered to pay a fine and restitution.
Hendricks and Brown were sentenced to twenty-four months and
twelve months in prison, respectively. The district court ordered
defendants to begin serving their sentences after disposition of their
direct appeal.

II.

Defendants claim that they are entitled to present evidence of their
good faith belief that the aliens' activities in the United States did not
constitute prohibited "work" within the meaning of the INS regula-
tions. They assert they must be allowed to present evidence of their
understanding of the regulations and the nature of the Estonians'
activities in order to negate the criminal intent that the penal statutes
require the government to prove. The government counters that defen-
dants' alleged misunderstanding of the INS regulations does not con-

                     5
stitute a valid defense and should therefore be precluded. The
government claims that even if the charged offenses require specific
intent, the proffered defense amounts to an impermissible "mistake of
law" defense.

The record reflects, however, that neither party brought the most
directly relevant case authority to the attention of the district court.
Most significantly, the parties neglected to discuss United States v.
Oloyede, 982 F.2d 133 (4th Cir. 1992), the only case in this circuit
to have addressed directly the nature of the mens rea requirement in
8 U.S.C. § 1324(a)(1)(A)(iv).

In Oloyede, two individuals were convicted of falsifying docu-
ments for aliens' citizenship applications in violation of what is now
§ 1324(a)(1)(A)(iv).1 One defendant, Clifford Cooper, was an immi-
gration lawyer who represented Nigerians and Ethiopians in immigra-
tion proceedings before the INS. The other defendant, Oluwole
Oloyede, ran an organization that assisted Nigerian aliens. Oloyede
sold false employment, social security, and other documents to illegal
aliens and referred the aliens to Cooper for preparation of their INS
applications.

Eight of Cooper's clients -- all illegal aliens-- were arrested for
submitting false documents in support of their citizenship applica-
tions. These aliens testified against Cooper and Oloyede at trial. Five
of the aliens came to the United States to attend school, while the
other three came to find work. Each had failed to return home after
graduation or upon expiration of his or her visa, and thus could not
legally remain in the United States. The aliens paid Cooper and
Oloyede up to $3,500 each for completed fraudulent immigration
applications. Cooper accompanied the aliens to the immigration hear-
ings and guided them through the citizenship application process.
_________________________________________________________________
1 At that time the relevant statutory provision was labeled § 1324(a)
(1)(D). Congress relabeled subsection (D) as subsection (A)(iv) in 1994
without making any changes to its language. The statutory provision at
issue in this case is thus the same one construed by this court in Oloyede.
For the sake of clarity, we refer to this provision as § 1324(a)(1)(A)(iv)
both in discussing Oloyede and in addressing the instant case.

                     6
Cooper and Oloyede argued, among other things, that"their con-
duct merely assisted aliens in avoiding detection of an illegal status
and did not rise to the level of `encourag[ing] an alien to reside in the
United States.'" Oloyede, 982 F.2d at 136. The court rejected this
argument. See id. at 136-37. It looked to the language of the statute
and the history of the 1986 amendments to determine that "[t]he sell-
ing of fraudulent documents and immigration papers under these cir-
cumstances constitutes `encourages' as that word is used in the
statute." Id. at 137.

In its discussion, the court stated that "the language `knowing or in
reckless disregard of the fact that such residence is or will be in viola-
tion . . .' means that guilty knowledge is a material element of this
offense." Id. (emphasis added). The court then noted that the evidence
of the defendants' guilty knowledge was more than sufficient to sup-
port their convictions:

          In this case, the evidence was overwhelming that appellants
          knew that each of these aliens was illegally residing in this
          country. When aliens testified that they pointed out to Coo-
          per incorrect information in their papers such as a false age,
          letters from employers for whom the aliens had never
          worked, and other "errors," Cooper told them that fabrica-
          tion was necessary in order to win approval of their INS
          applications. Cooper knowingly instructed his clients to
          memorize the fictitious information because they would
          have to testify to it during the INS examination hearing.

Id.

We instruct the district court to reconsider the government's
motion in limine in light of Oloyede's statement concerning § 1324(a)
(1)(A)(iv)'s knowledge requirement. If defendants in the instant case
are indeed permitted to present evidence of their understanding of the
INS regulations in order to negate mens rea, it is then for the trier of
fact to decide the credibility of defendants' stories for itself. Of
course, "the Government need not . . . introduce any extraordinary
evidence that would conclusively demonstrate [defendants'] state[s]
of mind. Rather, as in any other criminal prosecution requiring mens
rea, the Government may prove [knowledge] by reference to facts

                     7
and circumstances surrounding the case . . . ." Liparota v. United
States, 471 U.S. 419, 434 (1985). The trier of fact may very well, like
the trier of fact in Oloyede, conclude that the evidence demonstrates
that defendants knew that the Estonian immigrants' activities consti-
tuted prohibited "work" within the meaning of the INS regulations.2
The district court, however, must first determine the meaning of Con-
gress' language in light of the relevant precedents.

The Supreme Court's decision in Liparota is also instructive con-
cerning the nature of the knowledge requirement in the instant case.
471 U.S. 419. In Liparota, the Supreme Court held that the govern-
ment must prove knowledge of illegality in order to show a violation
of 7 U.S.C. § 2024(b)(1), the federal statute governing food stamp
fraud. 471 U.S. at 433. In the course of analyzing that provision, the
Court considered the meaning of a companion provision, 7 U.S.C.
§ 2024(c). Section 2024(c) stated that "[w]hoever presents, or causes
to be presented, coupons for payment or redemption .. . knowing the
same to have been received, transferred, or used in any manner in vio-
lation of [the statute] or the regulations[is subject to fine and impris-
onment]." Liparota, 471 U.S. at 428 (alteration in original) (internal
quotation marks omitted). The Court noted that this provision "unde-
niably requires a knowledge of illegality." Id. Because of the struc-
tural similarity between the language of 7 U.S.C.§ 2024(c) and the
language of 8 U.S.C. § 1324(a)(1)(A)(iv), Liparota illuminates the
interpretative issue in the instant case as well. See also Bryan v.
United States, 524 U.S. 184, 193 n.15 (1998) (noting that the term
"knowing" in Liparota "referred to knowledge of the law as well as
knowledge of the relevant facts"); Liparota , 471 U.S. at 425 n.9 (dis-
cussing circumstances where "there is a legal element in the definition
of the offense").

It is the responsibility of the parties to bring the relevant precedents
to the attention of the district court and to focus argument on the
applicable statutory language. This is especially true when the cases
cited turn on precise statutory language that may vary from case to
case. Cf. Liparota, 471 U.S. at 424 ("The definition of the elements
_________________________________________________________________
2 We note also that proof of "reckless disregard" of the fact that the
immigrants entered the United States in violation of law will satisfy the
statute's mens rea requirement. See 8 U.S.C. § 1324(a)(1)(A)(iv).

                     8
of a criminal offense is entrusted to the legislature, particularly in the
case of federal crimes, which are solely creatures of statute."). The
record, however, provides no evidence that either party discussed
Oloyede or Liparota before the district court. The parties instead
devoted much of their energy to Cheek v. United States, 498 U.S. 192
(1991), and United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989).
Neither of these latter cases is controlling here. Cheek expressly turns
on the meaning of the word "willfully" in the context of the tax laws,
498 U.S. at 194, and Aguilar is a case from another circuit that inter-
prets a pre-amendment version of § 1324 imposing liability on any
person who "willfully or knowingly encourages or induces . . . the
entry into the United States of any alien . . . not duly admitted by an
immigration officer or not lawfully entitled to enter or reside within
the United States . . .," 883 F.2d at 671-72 n.2 (internal quotation
marks omitted). While the parties discussed Liparota to some extent
in their appellate briefs, the only mention of Oloyede is in a string cite
in the government's brief to support a point for which the case is
inapposite. The parties and the district court must now confront the
language of § 1324(a)(1)(A)(iv) in light ofOloyede and Liparota.3

III.

We vacate the district court's ruling on the government's motion
in limine and remand this case for consideration in light of the prece-
dents discussed herein.

VACATED AND REMANDED
_________________________________________________________________
3 Because we remand this case to the district court based on consider-
ations pertaining to § 1324(a)(1)(A)(iv), we need not address whether 18
U.S.C. § 1546(a) permits the proffered defense. The parties, however,
should address this question before the district court on remand. In doing
so, the parties should pay careful attention to the particular mens rea lan-
guage of the statute -- i.e., "knowing it to . . . have been procured by
means of any false claim or statement" -- and any cases interpreting this
or similar mens rea language.




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