                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4590


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

NASSER YUSEF MAHMOUD KHALAF,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:08-cr-00020-LHT-DLH-1)


Argued:   May 11, 2010                    Decided:   August 4, 2010


Before WILKINSON and DAVIS, Circuit Judges, and C. Arlen BEAM,
Senior Circuit Judge of the United States Court of Appeals for
the Eighth Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: David Grant Belser, BELSER & PARKE, Asheville, North
Carolina, for Appellant.     Amy Elizabeth Ray, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
ON BRIEF: Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      In   May   2008,   a   jury   found    Nasser       Yusef   Mahmoud   Khalaf

guilty of immigration fraud and marriage fraud.                      The district

court sentenced him to time served.                On appeal, Khalaf claims

the district court erred in denying his motions for acquittal,

challenges the sufficiency of the evidence and also challenges

the accuracy and sufficiency of the dates contained in the jury

charge on each count.        We affirm.



                                        I.

      On June 27, 2005, Khalaf, a Palestinian national residing

in the West Bank, applied for a nonimmigrant visa to visit the

United States.     This visa enables the holder to visit the United

States temporarily for pleasure or business.                  The purpose stated

on   Khalaf's    application      was   to   visit      the   United    States   to

purchase    clothing     from    APS    Exports    in     Columbus,    Ohio,     for

shipment to Palestine.          The application indicated that APS would

pay for his flight to, and accommodations in, the United States.

Additionally, Khalaf answered the standard questions regarding

whether    his   application      was   prepared     by    someone     other   than

himself (the answer was "no"), and he certified that all of the

information in the application was true and correct to the best

of his knowledge.        The application further indicated that he had

previously been denied a visa on one prior occasion, when, in

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fact, he had previously been denied twice.                             After questioning by

a   consular     officer       and     after    submitting            a    supplement       to   his

application,        Khalaf       was     granted         a    visa    on     August    5,    2005.

Khalaf arrived in the United States on October 15, 2005.

      At entry, Khalaf told the questioning immigration officer

that he intended to travel to Asheville, North Carolina, and

that he would stay at 68 Tunnel Road in Asheville, which was the

address     of      a     Subway       restaurant.           The      officer       gave    Khalaf

permission to remain in the United States on a B-2 visa for six

months    with      no     travel       restrictions.                The     government      later

extended Khalaf’s departure date to September 30, 2006.

      Khalaf never went to Ohio during his time in the United

States.        He       went   immediately          to       Asheville       and    later    began

working at a Subway.               Khalaf met Petra Babb toward the end of

January 2006 when he hired Ms. Babb to work at the Subway.                                       The

two   dated      for      several      months       and       spent       nearly    every    night

together.        Babb testified at trial that she recalled several

occasions when Khalaf mentioned his visa expiration date and

that "he needed to find somebody . . . to marry to stay in the

country."      Khalaf and Babb married on December 1, 2006.

      Khalaf was previously married in Palestine and obtained a

"revocable"      divorce       from      Huda   Khalaf          on    or    about     August     23,

2005,    shortly        before     his    departure           from     the    West     Bank.      A

revocable divorce in Palestine means that it can be rescinded at

                                                3
a later time.           According to the testimony of a United States

Immigration and Customs Enforcement (ICE) officer, the United

States government does not accept a revocable divorce as a final

divorce.        Ms. Khalaf, along with Khalaf's biological daughter,

actually       visited    Asheville     during      the    time    Babb     and    Khalaf

courted.        Ms. Khalaf applied for a nonimmigrant visa on December

12, 2005, which was granted, and she first entered the United

States    in     February       2006,   remaining       for     approximately         three

months.         Ms.    Khalaf    returned   to     Asheville      on   a   nonimmigrant

visa, along with her daughter, in October 2006.                             During her

visits    in     the    United    States,    Ms.    Khalaf    stayed       at   the    same

apartment complex where Khalaf resided.                    On April 4, 2007, Ms.

Khalaf married Abdelaziz Ammar, a United States citizen.

      Khalaf and Babb moved in together after their December 1,

2006, marriage.           Subsequently Khalaf inexplicably and routinely

would    not     return    home    about    two    to   three     nights    each      week.

One     month     after    the    marriage        Khalaf   arranged        to    transfer

employment to another Subway, "because it meant more money."

So, once married, Babb and Khalaf no longer worked together.

Early in 2007, Khalaf asked Babb if he could use her Medicaid

card in order to get medical care for Ms. Khalaf who had been in

an automobile accident.            Khalaf also told Babb at this time that

Ms. Khalaf was pregnant with Khalaf’s second child.                             Babb then

rented and moved into a subsidized apartment and decided not to

                                            4
sponsor Khalaf on his green card application.                       Suddenly, Khalaf

became     "very    kind,"   doing     "anything        for    [her]     that    he   could

possibly     do."      On    June    20,    2007,       Babb    signed    and     filed   a

petition for alien relative, seeking residency for Khalaf based

upon the parties' marriage. The operative date in the indictment

is   July   11,     2007,    which    is    the       date    Khalaf's    petition       for

adjustment of immigration status was filed.

      On    December    6,    2007,    an       ICE    agent    arrested        Khalaf    on

charges of overstaying his nonimmigrant visa and being employed

without authorization.          At the time of his arrest, Khalaf told

the agent that prior to coming to the United States he talked

with a friend who told Khalaf he could come to Asheville and

work at Subway.        Khalaf mentioned the APS business venture but

explained that he had abandoned that plan when he learned that

people in the West Bank would not wear that clothing.                                 Also,

when shown a copy of his application and his stated reason for

obtaining the visa, Khalaf told the agent that he had never seen

the application before but had gone to "a place that assists

people in applying for Visas."                    As to his marriage to Babb,

Khalaf claimed it was legitimate and that his relationship with

Ms. Khalaf was "over."              However, Khalaf spent the night before

his arrest at Ms. Khalaf's residence.                    In Khalaf’s pocket at the

time of his arrest was a copy of a passport in the name of

Abdelaziz Ammar (the name of the man Ms. Khalaf had married) and

                                            5
Babb's North Carolina ID and driver's license, along with a copy

of the front page of a residential lease for 25 North Ivey

Street in the name of Ms. Khalaf and Abdelaziz Ammar.

      Babb withdrew her petition for alien relative on December

13,   2007,       following       Khalaf's         detention   by     immigration

authorities and after her visit with an immigration agent.

      At trial, Khalaf's version of events was that he intended

to visit Ohio upon his arrival in the United States but went to

Asheville first because a friend offered to assist Khalaf with

translating.       He explained that he divorced Ms. Khalaf before

leaving the West Bank because she was angry he was not bringing

her to the United States on the alleged business trip.                   He again

claimed    that    he     loved   Babb       and    that   their    marriage   was

legitimate but testified that Babb drank heavily and did not

always    come    home.     Khalaf    acknowledged         visiting   Ms.   Khalaf

frequently during her second visit in the United States but only

because his daughter was with her.                 He admitted having sex only

once with Ms. Khalaf, which resulted in pregnancy. Khalaf denied

filling out his own nonimmigrant visa application and admitted

that he had a tourist office, in the business of completing

these applications for others, assist him.                  Khalaf did not sign

his application, but claimed that he had read the application

and that it was all true.           As to the portion of his application

stating that APS would pay for his travel and accommodations

                                         6
during     his    United       States    visit,      Khalaf    testified         he   did    not

remember that part of the application, but that APS was not

going to pay him for these expenses.                      Any mistakes on his visa

application, he claimed, were the fault of the person who helped

him prepare the application.



                                               II.

      Following the government’s evidence, and again at the close

of   all   of     the    evidence,       Khalaf      moved    under    Federal        Rule   of

Criminal        Procedure       29      for     dismissal      due     to        insufficient

evidence.         We review the district court’s denial of a Rule 29

motion for judgment of acquittal de novo.                              United States v.

Kingrea, 573 F.3d 186, 194 (4th Cir. 2009); Fed. R. Crim. P. 29.

We are obliged to sustain a guilty jury verdict “if, viewing the

evidence in the light most favorable to the government, it is

supported by substantial evidence.”                       Kingrea, 573 F.3d at 194

(quotation omitted).                 This court “ha[s] defined substantial

evidence     as    evidence       that    a    reasonable      finder       of    fact   could

accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.”                          United States v.

Alerre, 430 F.3d 681, 693 (4th Cir. 2005) (internal quotation

omitted).           In     conducting          our    review,     we     consider           both

circumstantial           and    direct        evidence,      drawing    all        reasonable

inferences from such evidence in the government’s favor.                                 United

                                                7
States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008).                      Khalaf, as

the   defendant    challenging      the       sufficiency     of    the     evidence,

“bears a heavy burden.”          United States v. Beidler, 110 F.3d

1064, 1067 (4th Cir. 1997) (internal quotation omitted).

      Here, the government presented circumstantial evidence that

Khalaf obtained and used his nonimmigrant visa knowing that it

was   procured    by   means   of    a    false      claim    or    statement,      as

proscribed by 18 U.S.C. § 1546(a), and as charged in Count I.

Section 1546(a) states:

      Whoever knowingly . . . utters, uses, attempts to use,
      possesses,   obtains,   accepts,   or    receives [any
      immigrant or nonimmigrant visa] . . . 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 . . . have been
      procured by means of any false claim or statement, or
      to have been otherwise procured by fraud or unlawfully
      obtained [shall be fined or imprisoned].

18 U.S.C. § 1546(a).

      Khalaf    essentially    argues         that   the   jury    failed    to    give

proper weight to his testimony, but this court does not weigh

evidence   or     review   witness       credibility.         United      States    v.

Wilson, 118 F.3d 228, 234 (4th Cir. 1997).                    Rather, it is the

role of the jury to judge the credibility of witnesses, resolve

conflicts in testimony, and weigh the evidence.                      United States

v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984).                     Here, stated in

simplest terms, the jury did not believe Khalaf’s version of

events.

                                          8
       It is axiomatic that evidence of conduct after a statement

is made can certainly bear upon the intent of the declarant at

the    time   he   made     the   statement.        That    is,   Khalaf’s   conduct

subsequent to his procurement of his nonimmigrant visa tended to

prove the falsity of his statement that the intended purpose of

his    trip    was     to       travel     to   Ohio      to   conduct      business.

Notwithstanding Khalaf’s testimony that he had every intention

of going to Ohio to further his business ventures at the time he

applied for, and ultimately used, this nonimmigrant visa, we

find that the evidence, when viewed in the light most favorable

to the government, clearly supports the jury’s finding.

       Likewise there was sufficient evidence that Khalaf entered

into    the   marriage      with    Babb     for    the    purpose   of   evading    a

provision of the immigration laws, as charged in Count II.                         See

8 U.S.C. § 1325(c).          A conviction under section 1325(c) requires

the government to prove:                (1) that the alien knowingly entered

into   a   marriage;      (2)     the    marriage   was    entered   into    for   the

purpose of evading a provision of the immigration laws; and (3)

the alien knew or had reason to know of the immigration laws.

United States v. Islam, 418 F.3d 1125, 1128 (10th Cir. 2005).

Despite Khalaf’s persistent attempts to focus our attention on

Babb’s belief in the legitimacy of her relationship with Khalaf

at the time the two wed, Babb’s state of mind is not at issue

today.     And, while Babb’s subjective belief could be probative

                                            9
of the issue regarding the marriage’s legitimacy, it does not

carry the day as Khalaf seems to argue, and certainly does not

establish Khalaf’s intent.               After reviewing the record in the

light most favorable to the government, we find the evidence

presented      clearly        supports     the    jury’s    finding     that       Khalaf

engaged in marriage fraud in violation of 8 U.S.C. § 1325(c).

       Accordingly, we conclude that there is substantial evidence

supporting        the   jury     verdict     on     each    count.         The    jury’s

conclusion that Khalaf never intended to further his clothing

business, but rather carried out a carefully crafted course of

action    to   use      his    marital     status    to    attempt    to    alter    his

immigration        status       is   supported      by     substantial       evidence.

Accordingly, the district court properly denied Khalaf’s Rule 29

motions for acquittal.



                                           III.

       Khalaf also challenges the dates charged to the jury on

each     count.         He    does   not,    however,       challenge       the    legal

sufficiency or validity of the indictment.                    We review for abuse

of discretion a district court’s rulings on jury instructions.

United States v. Bolden, 325 F.3d 471, 486 (4th Cir. 2003).                          The

reviewing      court          will   not     reverse       “provided        that     the




                                            10
instructions, taken as a whole, adequately state the controlling

law.”     Teague v. Bakker, 35 F.3d 978, 985 (4th Cir. 1994). *

      Particularly, the instructions charged that Khalaf engaged

in visa fraud on or about October 15, 2005, the date Khalaf

entered the United States, until December 6, 2007, the date of

his arrest.       The district court also instructed:

        The   indictment  charges   that  the offenses  were
        committed on or about a certain date or dates.   The
        proof need not establish with certainty, the exact
        date of the alleged offense. It is sufficient if the
        evidence establishes beyond a reasonable doubt, that
        the offense in question was committed on a date
        reasonably near the date alleged.

        Khalaf    claims      this    unnecessarily       expanded         the     statutory

offense, impermissibly suggested to the jury that the offense

was   a   continuing       one,      and   confused      and     misled      the    jury   in

violation of the Due Process Clause.                     If a crime was committed

at all, claims Khalaf, it was when the application was made in

Palestine, not four months later when he arrived in the United

States.

        Section 1546(a) states that whoever "uses, attempts to use,

possesses,       obtains,      accepts,         or   receives"       any   "immigrant      or

nonimmigrant visa," knowing the visa "to have been procured by

means     of   any     false   claim       or    statement"      shall       be    fined   or

imprisoned       not   more    than    ten       years   in    the    case    of    a   first

      *
      Khalaf preserved his objections at trial regarding these
instructions, contrary to the government's claim on appeal.


                                                11
offense.         18 U.S.C. § 1546(a).            Using the dates “on or about

October 15, 2005, until on or about December 6, 2007,” while not

a   model       of   clarity,   adequately       instructs   the    jury    under    the

statute.         Indeed, Khalaf used and possessed the nonimmigrant

visa during the times charged.                   Therefore, the district court

did not abuse its discretion when it allowed the “on or about”

dates as charged on the visa fraud count.

      As to the marriage fraud count, Khalaf claims the court

abused its discretion when it included “on or about July 11,

2007” in the jury charge because that is the date he filed for

adjustment of status and not the actual date of marriage, which

was December 1, 2006, the only date Khalaf claims marriage fraud

could    occur.         Here,   too,   Khalaf       claims   this    inclusion       was

misleading and confusing in violation of the statute and denied

him due process because it invited the jury to convict Khalaf

for taking advantage of his legitimate but failing marriage to

obtain      a    more    favorable     immigration      status.           The   statute

criminalizes         "enter[ing]     into   a    marriage    for    the    purpose    of

evading any provision of the immigration laws."                            8 U.S.C. §

1325(c).         While the date of December 1, 2006, could have been

included in the charging document and jury charge, allowing the

date on which Khalaf relied upon that marriage to adjust his

immigration status was not an abuse of discretion.                          It was on

the later date that the purpose behind the sham marriage-evading

                                            12
a   provision   of   the   immigration   laws-revealed   itself.

Accordingly, the district court did not abuse its discretion.

For the foregoing reasons, we affirm.

                                                         AFFIRMED




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