              Case: 14-11196    Date Filed: 01/02/2015    Page: 1 of 11




                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 14-11196
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 1:12-cr-00190-TWT-ECS-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

REX ANYANWU,

                                                               Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________
                               (January 2, 2015)

Before HULL, WILSON and BLACK, Circuit Judges.

PER CURIAM:

      After a jury trial, Rex Anyanwu appeals his convictions for 18 counts of

inducing or encouraging an alien to enter or reside in the United States, in violation
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of 8 U.S.C. § 1324(a)(1)(A)(iv), and one count of conspiracy to harbor aliens, in

violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). Anyanwu contends that the district

court erred in its jury instructions on these counts by including references to—and

a definition of—the word “harbor,” even though harboring was not an element of

the offenses. After review, we affirm.

                                I. BACKGROUND

      On June 19, 2012, the United States filed an 18-count criminal indictment

against Defendant Anyanwu. On September 18, 2012, a federal grand jury

returned a superseding indictment, in 104 counts, charging Anyanwu with (1) one

count of conspiracy to commit visa fraud, in violation of 18 U.S.C. § 371; (2) one

count of conspiracy to harbor aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I);

(3) 50 counts of visa fraud, in violation of 18 U.S.C. § 1546(a); (4) 49 counts of

alien harboring, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv); and (5) three counts

of procuring citizenship unlawfully, in violation of 18 U.S.C. § 1425(a).

      During a two-week jury trial, the government called more than 30 witnesses.

Through these witnesses, the government introduced evidence that, for more than

ten years, Anyanwu ran a business arranging fraudulent marriages between aliens

who wanted to become United States citizens and United States citizens who

wanted money. Anyanwu knew that many of the aliens were in the United States




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illegally. By arranging the marriages, Anyanwu enabled the aliens to receive

lawful permanent resident status and remain in the United States indefinitely.

      The marriages were shams. On the day of the weddings, Anyanwu would

provide transportation to the ceremonies for the citizens, most of whom came from

Huntsville, Alabama. The alien and the citizen often would meet for the first time

on the day of their wedding, and the weddings were never consummated. At the

ceremony, Anyanwu would take pictures of the alien and the citizen, and he

occasionally had each person bring several outfits to wear for the photographs.

Most of the participants in the marriages interacted with their spouse only to the

extent it was needed for the wedding and for convincing Immigration officials that

the marriage was real.

      Anyanwu charged each alien approximately $7,500 to $10,000 for his

assistance in arranging the marriage and enabling the alien to remain in the

country, and he paid the United States citizens each between $500 and $900 for

marrying an alien.

      As part of the scheme, Anyanwu created fraudulent documents that were

used by the “couples” to demonstrate to the government that their marriages were

bona fide. Among the types of documents that Anyanwu falsified for this purpose

were W-2s, joint bank account statements, lease agreements, employment

verification letters, and utility bills showing the couple listed together on an

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account. Additionally, Anyanwu prepared the aliens and the citizens for interviews

conducted by Immigration officials who investigated potential fraud. And

Anyanwu suggested answers that would help convince the officials that the

marriage was legitimate.

       At the conclusion of its case in chief, the government moved to dismiss 26

of the 104 counts, including 13 of the counts alleging violations of 8 U.S.C.

§ 1324(a)(1)(A)(iv). Those counts were dismissed, and Anyanwu rested his

defense without calling any witnesses.

       The district court issued the following instruction to the jury regarding the

counts of alien harboring, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv):

                      Counts 53 through 1011 charge the Defendant with
               committing the substantive offense of illegally harboring
               aliens. It’s a federal crime to harbor an alien knowing or
               in reckless disregard of the fact that the alien is in the
               United States illegally. The Defendant can be found
               guilty of this crime only if all the following facts are
               proved beyond a reasonable doubt: One, the alien resided
               or remained in the United States illegally; two, the
               Defendant knowingly encouraged or induced the alien to
               reside or remain within the United States; three, the
               Defendant either knew or acted in reckless disregard of
               the fact that the alien resided or remained in the United
               States in violation of the law; and, four, the Defendant’s
               motive was commercial advantage or private financial
               gain.

       1
        The superseding indictment included 104 counts, of which counts 53-101 (49 counts)
were the alleged violations of § 1324(a)(1)(A)(iv). As noted, supra, the district court dismissed
13 of those counts. The jury convicted Anyanwu on 18 of the remaining § 1324(a)(1)(A)(iv)
counts and acquitted him on the other 18 counts brought under that section.
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                      An alien is any person who isn’t a natural-born or
               naturalized citizen or a national of the United States. A
               citizen of the United States is a person who was born
               within the United States or naturalized through judicial
               proceedings. A person who was born outside the United
               States is a citizen of the United States if both parents
               were United States citizens and at least one of them had a
               residence in the United States before the birth. A national
               of the United States includes any United States citizen
               and any non-citizen who owes permanent allegiance to
               the United States.

                     To act with reckless disregard of the fact means to
               be aware of but consciously and carelessly ignore facts
               and circumstances clearly indicating that the person
               transported was an alien who had entered or remained in
               the United States illegally. To harbor includes knowingly
               doing something to help the alien escape detection.

(Emphasis added). Anyanwu objected to the definition of “harbor” in the last

sentence of the instruction. The district court, overruling the objection, stated that

“this is right out of the pattern charge.”

       During deliberations, the jury sent a question and asked the district court to

clarify the meaning of “induced or encouraged.” 2 After conferring with the

prosecution and defense counsel, both of whom agreed to the district court’s

response to the question, the district court instructed the jury that “encouraged

means what it means in ordinary, everyday English usage. It means to encourage



       2
         The jury also requested clarification of other terms, which related to other counts and are
not relevant to this appeal.
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someone. Induce means to influence or persuade. So induced would mean

influenced or persuaded.”

      After further deliberations, the jury asked the district court to “clarify and

give an example of ‘the Defendant knowingly encouraged or induced the alien to

reside or remain within the United States.’” After conferring with the prosecution

and defense counsel, the district court responded to the jury’s question by telling

the jury that “any further response . . . would require me to comment on the facts

of the case, and that I can’t do.”

      The jury resumed deliberations and eventually returned a verdict, finding

Anyanwu guilty of one count of conspiracy to commit visa fraud, in violation of 18

U.S.C. § 371; one count of conspiracy to harbor aliens, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(v)(I); all 37 remaining counts of visa fraud, in violation of 18

U.S.C. § 1546(a); 18 of the remaining 36 counts of alien harboring, in violation of

8 U.S.C. § 1324(a)(1)(A)(iv); and three counts of procuring citizenship unlawfully,

in violation of 18 U.S.C. § 1425(a).

      The district court sentenced Anyanwu to 70 months’ imprisonment.

Anyanwu timely appealed. On appeal, Anyanwu raises only a single jury charge

issue and does not challenge his sentence. Anyanwu argues that the district court

erred in its jury instruction regarding the counts of alien harboring, in violation of 8




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U.S.C. § 1324(a)(1)(A)(iv), and the count of conspiracy to harbor aliens, in

violation of § 1324(a)(1)(A)(v)(I).3

                                       II. DISCUSSION

A.     Standard of Review

       This Court reviews de novo “jury instructions challenged in the district court

. . . to determine whether the instructions misstated the law or misled the jury to the

prejudice of the objecting party.” United States v. Gibson, 708 F.3d 1256, 1275

(11th Cir.), cert. denied, 571 U.S. ___, 134 S. Ct. 342 (2013). “We will not reverse

a conviction on the basis of a jury charge unless the issues of law were presented

inaccurately, or the charge improperly guided the jury in such a substantial way as

to violate due process.” United States v. Williams, 526 F.3d 1312, 1320 (11th Cir.

2008) (brackets omitted) (quoting United States v. Prather, 205 F.3d 1265, 1270

(11th Cir. 2000)). The district court’s jury instructions are subject to harmless

error review. United States v. House, 684 F.3d 1173, 1196 (11th Cir. 2012), cert.

denied, 568 U.S. ___, 133 S. Ct. 1633 (2013).

B.     Alien Harboring Under § 1324

       Section 1324, under which Anyanwu was convicted of 18 counts, is entitled

“Bringing in and harboring certain aliens.” See 8 U.S.C. § 1324. The subsection
       3
         The government alleged that Anyanwu violated § 1324(a)(1)(A)(v)(I) by engaging in a
conspiracy to violate § 1324(a)(1)(A)(iv). The district court specified the elements of
§ 1324(a)(1)(A)(iv) only once, when instructing the jury on counts 53-101. Anyanwu contends
that the district court’s jury instruction regarding the substantive counts, therefore, constituted
error with regard to the conspiracy count, as well.
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of § 1324 under which Anyanwu was charged makes it a crime for any person to

“encourage[ ] or induce[ ] 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.” Id. § 1324(a)(1)(A)(iv).

      The elements of a violation of § 1324(a)(1)(A)(iv) are “(1) encouraging or

inducing; (2) an alien; (3) to come to, enter, or reside in the United States; and (4)

knowing or in reckless disregard that the alien’s coming to, entering, or residing in

the United States is illegal.” United States v. Lopez, 590 F.3d 1238, 1250 (11th

Cir. 2009).

      On appeal, Anyanwu argues that the district court “misstated the law that

was applicable to these charges” and “[misled] the jury into believing that the

Government could prove a violation of 8 U.S.C. § 1324(a)(1)(A)(iv) if the

evidence showed Mr. Anyanwu harbored the illegal aliens involved under a

definition designed for a different code section.” Anyanwu contends that the

challenged jury instruction “allowed the Government to convict [him] on an

alternative theory [of ‘harboring’] that was not set forth in the indictment” and asks

this Court to set aside his convictions on those 18 counts.

      This argument ignores that the district court did charge the elements of a

§ 1324(a)(1)(A)(iv) offense. In its jury instruction, the district court stated that

Anyanwu could “be found guilty of this crime only if all the following facts are

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proved beyond a reasonable doubt: . . . the alien resided or remained in the United

States illegally[,] . . . the Defendant knowingly encouraged or induced the alien to

reside or remain within the United States,” and “the Defendant either knew or

acted in reckless disregard of the fact that the alien resided or remained in the

United States in violation of the law.” Although the district court consolidated the

Lopez formulation into three elements, it did not remove any of the facts that the

government was required to prove beyond a reasonable doubt. Put simply, the

district court’s charge to the jury prohibited a conviction unless the government

met the burden it was required to bear under § 1324 and this Circuit’s case law.

Accordingly, there was no legal error in this portion of the jury instruction as far as

it went.4

       We do recognize, however, that § 1324(a)(1)(A)(iv) does not require any

proof of harboring in order to sustain a conviction. Thus, the district court’s

inclusion of the harboring definition was unnecessary to the extent the jury had no

need to consider that definition when applying the law to the facts of Anyanwu’s

case. Furthermore, although the district court claimed that the definition came

“right out of the pattern charge,” this Circuit’s pattern jury instructions include a

       4
         The district court’s jury instructions did add an element to the crime with which
Anyanwu was charged. Although the district court stated that the defendant could be found
guilty only if “the Defendant’s motive was commercial advantage or private financial gain,”
§ 1324 does not make such a motive an element of the crime. Rather, the defendant faces an
enhanced statutory maximum sentence if such a motive is established. See 8 U.S.C.
§ 1324(a)(1)(B)(i)-(ii). However, in the district court, Anyanwu did not object to the inclusion of
that element in the jury charge, and on appeal he does not challenge its inclusion.
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definition of “harbor” in the pattern instruction for an alleged violation of a

different subsection of § 1324—8 U.S.C. § 1324(a)(1)(A)(iii)—and there is no

pattern charge for an alleged violation of § 1324(a)(1)(A)(iv). See Eleventh

Circuit Pattern Jury Instructions (Criminal Cases) at 556-57 (2010).

      Nonetheless, as noted above, § 1324 is entitled “Bringing in and harboring

certain aliens.” Thus, the district court’s provision of the definition of “harbor”

provided some context to the 36 counts that were entitled “Alien harboring” on the

verdict form. And the definition was given at the end of a series of definitions,

clearly separated from the part of the jury instruction that specified the elements of

a violation of § 1324(a)(1)(A)(iv). Accordingly, we cannot say that the district

court “misled the jury to the prejudice of the objecting party,” see Gibson, 708

F.3d at 1275, or “improperly guided the jury in such a substantial way as to violate

due process,” see Williams, 526 F.3d at 1320.

      Furthermore, although Anyanwu contends that the inclusion of a definition

of “harbor” could have allowed the jury to convict him on the basis of a theory not

presented in the indictment, the jury’s questions reveal that the jury properly

focused on the acts alleged in the § 1324(a)(1)(A)(iv) counts in the indictment:

inducement or encouragement of aliens to remain in the country unlawfully. The

jury asked no questions about harboring aliens, but twice asked the district court

about the meaning of inducement. Even if we thought that the district court’s

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instructions had the potential to mislead the jury, the jury’s clear focus on the

relevant language from § 1324(a)(1)(A)(iv) and the relevant counts in the

indictment and jury charge, which included all the elements of the crime, leads us

to conclude that, at most, this was harmless error.

                                III. CONCLUSION

      For all the foregoing reasons, we affirm Anyanwu’s convictions for 18

counts of inducing or encouraging an alien to enter or reside in the United States,

in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), and one count of conspiracy to harbor

aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I).

      AFFIRMED.




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