                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              OCTOBER 19, 2009
                               No. 09-10312                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                 D. C. Docket No. 08-00110-CR-ORL-31-DAB

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

JOEY ROJAS,

                                                             Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (October 19, 2009)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     After a jury trial, Defendant Joey Rojas appeals his conviction for marriage
fraud in violation of 8 U.S.C. § 1325(c) and 18 U.S.C. § 2. After review, we

affirm.

                                I. BACKGROUND

      Because Defendant Rojas challenges the sufficiency of the government’s

evidence, we review the government’s evidence presented at trial through

witnesses Mercedes Aspitia, Ender Rodriguez, and Agent Tracy McCormick.

      In December 2000, Mercedes Aspitia, a citizen of Argentina, traveled to the

United States on a tourist visa with Edgar Jayo, her husband, their son, and other

family members. Aspitia’s tourist visa allowed her to stay in the country for ninety

days. Aspitia, Jayo, and their son remained in the United States after their tourist

visas expired.

      At her brother’s wedding several years later, Aspitia met Ender Rodriguez.

Aspitia later learned that Rodriguez arranged sham marriages between aliens and

American citizens to circumvent the immigration laws. In fact, Rodriguez had

arranged approximately 200 sham marriages over the previous five years. Aspitia

contacted Rodriguez by phone to arrange a marriage that would allow her to stay in

the United States. Rodriguez agreed, telling her that the marriage would cost

$8,000; she would pay the citizen spouse $4,500, and Rodriguez would charge

$3,500 as his fee.



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       In January 2004, Aspitia and Jayo divorced so that each could enter into a

sham marriage that would allow them to remain in the United States.

Notwithstanding their divorce, Aspitia and Jayo continued to live together, even

after Jayo married Myrna Ramos. Aspitia could not afford her own marriage until

a year later.

       During this time, one of Rodriguez’s clients introduced Rodriguez to

Defendant Rojas. Rodriguez offered to pay Defendant Rojas a total of $8,000 to

marry a nonresident alien, $4,000 at the time of the marriage, and $4,000 after “the

second interview with Immigration.” Defendant Rojas agreed, and Rodriguez

introduced Rojas to Aspitia.

       Rodriguez brought Defendant Rojas to Aspitia’s home, where Jayo and their

son were staying. Rodriguez walked Defendant Rojas and Aspitia through the

immigration process, described questions they could expect the immigration

officer to ask at the interview, and requested documents so that he could prepare

the necessary immigration forms. Aspitia next saw Defendant Rojas on the day

they obtained the marriage license, at which time she paid Rojas $4,500. She also

met Rojas’ family in preparation for the immigration interview. Finally, in January

2005, Aspitia and Defendant Rojas were married in a small civil ceremony. They

took pictures to document the wedding. Aspitia continued to live with Jayo and



                                          3
their son, even though several documents falsely indicated that she lived with

Defendant Rojas. The only night Defendant Rojas spent at Aspitia’s home was the

night before their immigration interview.

       As promised, Rodriguez prepared the immigration forms and met with

Defendant Rojas and Aspitia one week before the immigration interview to prepare

them. Under Rodriguez’s guidance, Aspitia applied with the United States

Citizenship and Immigration Services (“USCIS”) for a green card based on her

marriage to Defendant Rojas. As part of her application, signed March 14, 2005,

Aspitia submitted a Form I-485, an Application to Register Permanent Residence

or Adjust Status, which is a sworn document signed by the alien spouse seeking to

obtain permanent residence in the United States. Defendant Rojas submitted the

corresponding Form I-130, signed February 26, 2005, which the citizen spouse

submits to help the alien spouse obtain permanent residence. Rojas also signed a

Form I-864, an Affidavit of Support, on March 14, 2005, in which he represented

that Aspitia would not “become a public charge on the government.” Additionally,

Aspitia provided a second Affidavit of Support from Rudys Gomez.1

       In support of her application for permanent residence, Aspitia and Defendant

Rojas underwent a sworn interview with Agent Tracy McCormick of the USCIS.


       1
      While it is not rare for an applicant to provide two sources of support, Agent
McCormick testified that the USCIS considers it one of many indicators of a sham marriage.

                                              4
Rojas told McCormick that he met Aspitia on the bus they rode to their respective

places of work. Agent McCormick observed that the same bus route did not

service both Defendant Rojas’s and Aspitia’s places of employment, at which point

Rojas became confused. At the interview, McCormick noted that Rojas and

Aspitia “appeared very cold to each other, [made] little eye contact, [and there was]

very little interaction between the two of them.” Also, Rojas had difficulty

answering basic questions concerning Aspitia’s birthday, the spelling of her last

name, or from where she came. McCormick also asked about Jayo, to which

Aspitia responded that she did not know his whereabouts, even though USCIS

records indicated that Jayo was using the same address that Rojas and Aspitia

provided in the interview. McCormick concluded that the marriage was a sham.

      Defendant Rojas testified on his own behalf. Rojas stated that he had met

Aspitia about four times while riding the bus, and she had invited him to her home

for a cookout. Rojas claimed that he planned to stay on her couch, but she invited

him to her bed in the middle of the night. Rojas asserted that, after initially

declining her invitation, he went to her bed where they had sexual intercourse.

According to Rojas, the sexual relationship continued for about two weeks, at

which point Aspitia demanded that Rojas marry her if he wanted to keep seeing

her. Rojas claimed that he married her for love, not money. Rojas testified that he



                                           5
did not know about Aspitia’s immigration status until 2006, sixteen to eighteen

months after the marriage. He denied ever meeting Rodriguez.

       Rojas did not move for judgment of acquittal either after presentation of the

government’s evidence or at the close of his case. The jury found Rojas guilty.

                                    II. DISCUSSION

       Defendant Rojas argues on appeal that the government presented insufficient

evidence at trial to sustain his conviction. To convict a defendant of marriage

fraud under 8 U.S.C. § 1325(c), the government must prove beyond a reasonable

doubt that (1) the defendant knowingly entered into a marriage and (2) the

defendant entered into the marriage for the purpose of evading any immigration

laws.2 As noted, Rojas failed to move for judgment of acquittal at the close of

evidence. While this Court ordinarily reviews de novo the sufficiency of evidence

to support a conviction, in the absence of a motion for judgment of acquittal, this

Court will reverse a conviction only to prevent a “manifest miscarriage of justice.”

United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). This standard


       2
         This Court has not addressed whether the government also must prove that the defendant
entered the marriage with knowledge that the conduct was unlawful. There is a split in the
circuits over whether the government must prove this third element. See, e.g., United States v.
Chowdhury, 169 F.3d 402, 407 (6th Cir. 1999); United States v. Islam, 418 F.3d 1125, 1128
(10th Cir. 2005). But see United States v. Rashwan, 328 F.3d 160, 164 (4th Cir. 2003). Because
the government’s evidence would have satisfied this element as well, we need not, and do not,
decide whether the government must prove that the defendant entered into the marriage with the
knowledge that the conduct was unlawful in order to prove a marriage fraud conviction under 8
U.S.C. § 1325(c).

                                               6
requires us “to find that the evidence on a key element of the offense is so tenuous

that a conviction would be shocking.” Id.

      Defendant Rojas cannot meet his burden of showing that the evidence on a

key element of the crime is so tenuous that his conviction is shocking. Rojas does

not dispute that the first element of 8 U.S.C. § 1325(c), knowingly entering into a

marriage, is satisfied here. Although Rojas claims that the government has failed

to prove the second element, entering into the marriage for the purpose of evading

any immigration law, we disagree because the government presented ample

evidence that would allow a jury to conclude that this element is satisfied.

Rodriguez and Aspitia both testified that, in exchange for money, Defendant Rojas

agreed to marry Aspitia to help her obtain permanent residence status. Further,

Rojas signed the immigration forms in February and March of 2005 — less than

two months after the marriage, and more than a year before he claimed to have

become aware of Aspitia’s immigration status. Additionally, Rojas’s performance

at the immigration interview strongly indicates that he barely knew Aspitia and that

the story of their meeting was a fabrication.

      Although Defendant Rojas’s testimony contradicted Rodriguez and Aspitia,

the jury, as the finder of fact, was free to disbelieve him. United States v. Deverso,

518 F.3d 1250, 1258 (11th Cir. 2008). In fact, the jury was entitled not only to



                                           7
disbelieve Rojas, but to find that his demeanor and credibility suggested the

opposite of what he testified. Id. The jury may treat a defendant’s false

explanations “as substantive evidence of the defendant’s guilt.” United States v.

Brown, 53 F.3d 312, 314 (11th Cir. 1995) (emphasis in original).

      We cannot say that Defendant Rojas’s testimony, which the jury was entitled

to interpret to his detriment, along with the evidence the government provided, are

so tenuous as to be shocking. Accordingly, because Rojas has not met his burden

on appeal, we will not disturb his conviction.

      AFFIRMED.




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