     Case: 14-20235   Document: 00513463185        Page: 1   Date Filed: 04/13/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-20235                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                            April 13, 2016
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

REBMANN ONGAGA; ANDREW MOKORO; HERMAN OGOTI; ALFONSO
ONGAGA,

             Defendants - Appellants



                Appeals from the United States District Court
                     for the Southern District of Texas


Before JONES, WIENER, and HIGGINSON, Circuit Judges.
WIENER, Circuit Judge:
      Defendants Andrew Mokoro, Herman Ogoti, Alfonso Ongaga, and
Rebmann Ongaga appeal their separate judgments of conviction. We affirm all
of the convictions, with the exception of Herman Ogoti’s and Rebmann
Ongaga’s convictions for marriage fraud.
                                         I.
                       FACTS AND PROCEEDINGS
      A grand jury returned an indictment in November 2010, charging
Andrew Mokoro (“Mokoro”), Herman Ogoti (“Ogoti”), Alfonso Ongaga
(“Alfonso”), and Rebmann Ongaga (“Rebmann”) with conspiracy to commit
marriage fraud, marriage fraud, and fraud and misuse of visa, permits, and
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                                 No. 14-20235
other documents. In May 2012, a grand jury returned a ten count second
superseding indictment against the defendants. Count One charged Mokoro,
Ogoti, Alfonso, and Rebmann with conspiracy to commit marriage fraud, in
violation of 18 U.S.C. § 371 and 8 U.S.C. § 1325(c). The indictment alleged that
the object of their conspiracy was to knowingly enter into marriages and to
help others enter into marriages for the purpose of evading immigration laws,
in violation of 8 U.S.C. § 1325(c). Counts Two, Three, and Four charged Ogoti,
Rebmann, and Mokoro, respectively, with marriage fraud, in violation of 8
U.S.C. § 1325(c). Counts Five, Six, and Seven charged Ogoti, Mokoro, and
Rebmann, respectively, with fraud and misuse of visa, permits, and other
documents, in violation of 18 U.S.C. § 1546(a). Count Eight charged Rebmann
with tampering with a witness, in violation of 18 U.S.C. § 1512(b)(3). Counts
Nine and Ten charged Alfonso and Ogoti, respectively, with unlawful
procurement of naturalization, in violation of 18 U.S.C. § 1425(b).
      After a six-day trial, a jury found the defendants guilty on all counts,
with the exception of Rebmann’s witness-tampering count. The evidence
showed that the defendants—all Kenyan nationals—married members of a
closely connected group of American women to gain residency and citizenship.
The defendants then prepared fraudulent immigration forms and took
additional steps to make their marriages appear legitimate. The evidence
further showed that the defendants sought to procure American spouses for
other Kenyan nationals—some residing in the United States, others residing
in Kenya—for the same purpose.




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                                       No. 14-20235
                                             II.
                                       ANALYSIS
A. Count One
       Count One charged the defendants with conspiracy to commit marriage
fraud, in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1325(c). All of the
defendants contend that Count One should be dismissed because the
government failed to prove an offense occurring within the statute of
limitations. All of the defendants preserved their challenges to the sufficiency
of the evidence by moving for acquittal under Federal Rule of Criminal
Procedure 29 at the conclusion of the government’s case and again at the close
of all evidence, so our review is de novo. 1 We view all evidence in the light most
favorable to the government, drawing all reasonable inferences and credibility
choices in favor of the jury’s verdict. 2 We will affirm the jury’s verdict if we
conclude that a rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. 3
       The statute of limitations for conspiracy to commit marriage fraud in
violation of 18 U.S.C. § 371 and 8 U.S.C. § 1325(c) is five years. 4 To prove a
conspiracy under 18 U.S.C. § 371, the government had to prove
       (1) an agreement between two or more persons to pursue an
       unlawful objective; (2) the defendant’s knowledge of the unlawful
       objective and voluntary agreement to join the conspiracy; and (3)



       1  United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012).
       2  Id.
        3 Id.
        4 See 18 U.S.C. § 3282(a) (“Except as otherwise expressly provided by law, no person

shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is
found or the information is instituted within five years next after such offense shall have
been committed.”); United States v. Ngige, 780 F.3d 497, 502 (1st Cir. 2015) (applying 18
U.S.C. § 3282(a)’s general five-year statute of limitations to conspiracy to commit marriage
fraud).
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                                      No. 14-20235
       an overt act by one or more of the members of the conspiracy in
       furtherance of the objective of the conspiracy. 5

For this charge to be timely, the government had to prove “the existence of the
conspiracy within the five years prior to the return of the indictment, and . . .
the commission of at least one overt act by one of the conspirators within that
period in furtherance of the conspiratorial agreement.” 6
       The defendants first contend that the government did not prove a single
conspiracy; rather, they assert, their individual participations in any
conspiracy ended on the occurrence of their respective marriages. It next
follows, they each argue, that because each of their marriages occurred more
than five years before the original indictment, the charge in Count One is
untimely. In other words, the defendants contend that the government failed
to prove an overt act of a single conspiracy occurring within the limitations
period.
       Initially, we examine whether the government proved a single
conspiracy. “The principal considerations in counting the number of
conspiracies are (1) the existence of a common goal; (2) the nature of the
scheme; and (3) the overlapping of the participants in the various dealings.” 7
Whether the evidence shows a single conspiracy or multiple conspiracies is a
fact question for the jury to decide. 8 “We will affirm the jury’s finding that the
government proved a single conspiracy unless the evidence and all reasonable
inferences, examined in the light most favorable to the government, would



       5United States v. Richard, 775 F.3d 287, 294 (5th Cir. 2014) (quoting United States v.
Coleman, 609 F.3d 699, 704 (5th Cir. 2010)).
      6 United States v. Davis, 533 F.2d 921, 926 (5th Cir. 1976).
      7 United States v. Simpson, 741 F.3d 539, 548 (5th Cir. 2014) (citing United States v.

Mitchell, 484 F.3d 762, 770 (5th Cir. 2007)).
      8 Id. (quoting Mitchell, 484 F.3d at 769).

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                                      No. 14-20235
preclude reasonable jurors from finding a single conspiracy beyond a
reasonable doubt.” 9
       The government alleged that the common goal of the conspiracy was for
the defendants to enter into marriages for the purpose of evading immigration
laws, in violation of 18 U.S.C. § 1325(c). The indictment elaborated that the
common goal was not only to accomplish the defendants’ marriages, but also to
facilitate the marriages of other Kenyan nationals so that they could enter or
remain in the United States. The evidence supported these allegations. For
example, Alfonso met his wife through Lawrence Adams, whom Alfonso asked
if he knew a woman he could marry to gain citizenship in exchange for money.
Alfonso later paid Adams to marry Alfonso’s friend so that the friend could
obtain American citizenship. Ogoti entered into his own fraudulent marriage.
His wife, Sabrina Adams, introduced her daughter Deshae Adams and
Adams’s friend, Dyshae Foster, to the defendants. Mokoro entered into his own
fraudulent marriage and offered Deshae Adams and Dyshae Foster money to
travel to Kenya to marry Kenyan men, and he tried to help them obtain
passports. Rebmann also entered into his own fraudulent marriage and took
Deshae Adams and Dyshae Foster shopping to buy them clothes and luggage
for their trip to Kenya.
       The nature of the scheme looks to whether “the activities of one aspect
of the scheme are necessary or advantageous to the success of another aspect
of the scheme or to the overall success of the venture.” 10 Here, the defendants’
marriages allowed them to stay in the United States to recruit potential
spouses. Further, the success of the defendants’ marriages encouraged others


       9Id. (quoting Mitchell, 484 F.3d at 769) (internal quotation marks omitted).
       10United States v. DeVarona, 872 F.2d 114, 118 (5th Cir. 1989) (quoting United States
v. Elam, 678 F.2d 1234, 1246 (5th Cir. 1982)).
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                                     No. 14-20235
to participate in the scheme. For example, Mokoro’s wife, Tequila Rhymes,
testified that she decided to marry Mokoro after observing and hearing about
Alfonso’s fraudulent marriage.
      The final prong “examines the interrelationships among the various
participants in the conspiracy.” 11 “The more interconnected the relationships,
the more likely it is that there is a single conspiracy.” 12 Here, the participants
were either family members or friends and the conspiracy largely existed to
help other family members and friends gain American citizenship. Through
this close network of family members and friends, the defendants entered their
own fraudulent marriages and helped other do the same.
      Considering this evidence, we conclude that a reasonable jury could have
found that the government proved a single ongoing conspiracy to commit
marriage fraud.
      Concluding that the government proved a single conspiracy, we turn to
whether the government proved overt acts of the conspiracy occurring within
the limitations period. The government alleged and presented evidence of
several overt acts in the indictment which were within the limitations period,
most notably the efforts of several defendants to have Deshae Adams and
Dyshae Foster travel to Kenya to marry individuals so that they would be able
to gain an immigration benefit. Because the government alleged and proved
an overt act occurring with the limitations period, the charge in Count One
was timely and we affirm the convictions.




      11  Simpson, 741 F.3d at 549 (quoting United States v. Morris, 46 F.3d 410, 416 (5th
Cir. 1995)).
       12 Id.

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                                     No. 14-20235
B. Counts Two and Three
      Ogoti and Rebmann were both charged with and convicted of marriage
fraud, in violation of 8 U.S.C. § 1325(c). Both defendants challenge their
convictions as untimely, and both moved for acquittal on this ground before
the district court. 13 We review de novo the district court’s legal conclusion that
that these charges were not barred by the statute of limitations. 14
      Count Two alleged that Ogoti entered into a fraudulent marriage on
February 10, 2004, and Count Three alleged that Rebmann entered into a
fraudulent marriage on February 21, 2005. Both marriages occurred more than
five years before the original indictment in November 2010 and the second
superseding indictment in May 2012. Because the offense of marriage fraud
under 8 U.S.C. § 1325(c) does not provide a statute of limitations, 18 U.S.C. §
3282(a)’s five-year limitations period applies. Both Ogoti and Rebmann
contend that their charges for marriage fraud should have been dismissed as
untimely. To reach this conclusion, they urge us to hold that marriage fraud is
not a continuing offense. The government concedes that Ogoti’s and Rebmann’s
charges for marriage fraud were time-barred because the charges occurred
more than five years after their marriages.
      Generally, the statute of limitations begins to run when the crime is
complete, meaning that all the elements of the crime have been satisfied. 15 For
a continuing offense, however, “the statute of limitations does not being to run
when all elements of the crime are first satisfied, but rather when the ongoing




      13  At the district court, Ogoti moved for acquittal on the basis that the statute of
limitations had run as to Counts One and Four. Ogoti, however, was not charged in Count
Four. We assume that Ogoti meant to challenge Count Two on this basis.
       14 United States v. Irby, 703 F.3d 280, 282–83 (5th Cir. 2012).
       15 United States v. Tavarez-Levario, 788 F.3d 433, 436 (5th Cir. 2015).

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                                       No. 14-20235
commission of the crime comes to an end.” 16 We are reticent to find an offense
to be continuing because such a finding extends the statute of limitations. 17
Only when “the explicit language of the substantive criminal statute compels
such a conclusion” or “the nature of the crime involved is such that Congress
must assuredly have intended that it be treated as a continuing one” will we
construe an offense as continuing. 18
       We thus should begin with the language of the statute. The marriage
fraud statute reads:
       Any individual who knowingly enters into a marriage for the
       purpose of evading any provision of the immigration laws shall be
       imprisoned for not more than 5 years, or fined not more than
       $250,000, or both. 19

The elements of marriage fraud require only that the defendant (1) knowingly
entered into a marriage (2) for the purpose of evading any provision of the
immigration laws. 20 Nothing in the statute’s plain language, for instance,
indicates that a person need actually apply for immigration benefits to violate
the statute. Actions occurring after the marriage do not constitute elements of
the offense under § 1325(c). 21 Instead, all of the elements of marriage fraud are
satisfied when the defendant enters into the marriage. 22 In sum, the plain




       16 Id. at 437.
       17 See Toussie v. United States, 397 U.S. 112, 115 (1970) (“[C]riminal limitations
statutes are ‘to be liberally interpreted in favor of repose.’” (quoting United States v. Habig,
390 U.S. 222, 227 (1968))).
       18 Tavarez-Levario, 788 F.3d at 437 (quoting Toussie, 397 U.S. at 115).
       19 8 U.S.C. § 1325(c).
       20 United States v. Ortiz-Mendez, 634 F.3d 837, 839 (5th Cir. 2011).
       21 See United States v. Rojas, 718 F.3d 1317, 1320 (11th Cir. 2013) (holding that

marriage fraud is not a continuing offense); cf. United States v. Sonmez, 777 F.3d 684, 687–
88 & n.4 (4th Cir. 2015) (listing elements of marriage fraud and collecting cases); Ortiz-
Mendez, 634 F.3d at 839–40 (same).
       22 Rojas, 718 F.3d at 1320.

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language of the statute does not compel the conclusion that marriage fraud is
a continuing offense. 23
       Neither is the nature of the crime such that Congress would have
intended it to be treated as a continuing offense. Typically, such crimes are
those which involve an “ongoing threat of harm” or those “offenses that prohibit
an individual from remaining in an unlawful condition or status.” 24 There is
no ongoing threat of harm from having entered into a marriage to evade the
immigration laws unless those laws are actually violated. In that case,
fraudulently obtaining immigration benefits or lying to federal agents are
themselves crimes. 25 Furthermore, being married—even for the purpose of
evading immigration laws—is not itself an unlawful condition or status.
       Concluding that marriage fraud is not a continuing offense, we hold that
the charges of marriage fraud against Ogoti and Rebmann were untimely and
should be dismissed. Accordingly, we reverse the district court’s denial of
Ogoti’s and Rebmann’s motions for acquittal on Counts Two and Three,
respectively, and vacate their convictions on those counts.
C. Count Four
       Mokoro challenges the sufficiency of the evidence to convict him on
Count Four’s charge of marriage fraud for his marriage to Angela Young in
2010. We review de novo Mokoro’s preserved challenge to the sufficiency of the
evidence. 26 The gist of Mokoro’s challenge is that because Young did not testify
at trial, there was not sufficient evidence to show that he entered into the
marriage for the purpose of evading immigration laws. According to Mokoro,


       23 See id. (“[N]othing in the text of § 1325(c) compels the conclusion that Congress
intended marriage fraud to be a continuing offense.”).
       24 Tavarez-Levario, 788 F.3d at 439 (emphasis omitted).
       25 See id. at 440.
       26 Grant, 683 F.3d at 642.

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                                       No. 14-20235
who did not testify, Young was the only person—other than himself—who
could have testified about the purpose of their marriage.
      As stated, the government needed to prove that Mokoro (1) entered into
a marriage (2) for the purpose of evading immigration laws. 27 Whether a
defendant intended “to establish a life with his spouse” is one factor that may
be considered in determining the purpose of the marriage. 28 The first factor,
that Mokoro married Young, is undisputed. As for the second factor, the
government adduced evidence from which the jury could have reasonably
concluded that Mokoro entered the marriage for the purpose of evading
immigration laws. The government initially showed that during its
investigation, Young was never observed at Mokoro’s residence, despite being
his wife. The government also proved that both before and during Mokoro’s
marriage to Young, Mokoro maintained a relationship with another woman,
Tabitha Wanjohi. Wanjohi testified that she and Mokoro lived together and
had children together. The government further showed that before marrying
Young, Mokoro had married another U.S. citizen, Tequila Rhymes, for
immigration purposes. Rhymes testified that she married Mokoro for money
so that he could become a citizen. They divorced and he withdrew his petition
to adjust his immigration status shortly thereafter. Only ten months later,
Mokoro married Young and filed new immigration forms. A reasonable jury
could have found that Mokoro married Young for the purposes of evading
immigration laws. We affirm Mokoro’s conviction on Count Four.




      27   Ortiz-Mendez, 634 F.3d at 839.
      28   Id. at 840.
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                                       No. 14-20235
D. Counts Five and Ten
        Ogoti challenges his convictions under Count Five for visa fraud, 18
U.S.C. § 1546(a), and under Count Ten for unlawful procurement of
naturalization, 18 U.S.C. § 1425(b), as untimely. Title 18 U.S.C. § 3282(a)
imposes a five-year limitations period on both counts. In the district court,
Ogoti did not move for acquittal on the ground that these counts were barred
by the statute of limitations. The Supreme Court recently instructed that
failure to raise a limitations defense under 18 U.S.C. § 3282(a) “at or before
trial means that it is reviewable on appeal—if at all—only for plain error.” 29 In
the same breath, the Court instructed that “a district court’s failure to enforce
an unraised limitations defense under § 3282(a) cannot be plain error.” 30 We
find no error since Ogoti failed to raise his limitations defense at or before
trial. 31
E. Counts Six and Seven
        Mokoro and Rebmann challenge their convictions for visa fraud, Counts
Six and Seven, respectively. They contend that the government’s proof was a
constructive amendment to the indictment and also raise a challenge to the
sufficiency of the evidence. We review de novo Mokoro’s and Rebmann’s claims
of constructive amendment. 32 We review their challenge to the sufficiency of
the evidence “in the light most favorable to the jury’s verdict and affirm if a



        29Musacchio v. United States, 136 S. Ct. 709, 718 (2016).
        30Id. In so holding, the Court declined to decide whether failure to raise a limitations
defense under § 3282(a) amounts to waiver or forfeiture. Id. at 718 n.3.
       31 Even if Ogoti had preserved this issue, his argument is unavailing. As to Count

Five, the evidence showed that Ogoti made a false statement on Form I-751 on May 9, 2007,
within the limitations period. Likewise, as to Count Ten, the evidence showed that Ogoti
made a false representation on his N-400 Application for Naturalization on February 21,
2010, again within the limitations period.
       32 United States v. Thompson, 647 F.3d 180, 183 (5th Cir. 2011).

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rational trier of fact could have found that the government proved all essential
elements of a crime beyond a reasonable doubt.” 33
1. Constructive Amendment
       Mokoro and Rebmann first contend that the government’s proof
constituted a constructive amendment of the indictment. The indictment
charged them with making a false statement on Form I-751 when they swore
that they “had entered into a bona fide marriage when in truth and fact such
was not true,” in violation of 18 U.S.C. § 1546(a). On Form I-751 a petitioner
certifies under penalty of perjury that his or her “marriage was entered in
accordance with the laws of the place where the marriage took place and was
not for the purpose of procuring an immigration benefit.” Because the false
statement alleged in the indictment is not identical to the false statement on
the Form I-751 that the government proved at trial, Mokoro and Rebmann
contend that the government’s proof amounted to a constructive amendment
of the indictment.
       The right to be tried only on charges alleged in a grand jury indictment
flows from the Fifth Amendment. 34 Constructive amendment occurs, in
violation of this principle, “when the jury is permitted to convict the defendant
upon a factual basis that effectively modifies an essential element of the crime
charged.” 35 In other words, constructive indictment occurs when the district
court “allows proof of an essential element of the crime on an alternative basis
provided by the statute but not charged in the indictment.” 36




       33 Id.
       34 United States v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991).
       35 United States v. Robles-Vertiz, 155 F.3d 725, 728 (5th Cir. 1998) (citation omitted).
       36 United States v. Jara-Favela, 686 F.3d 289, 299 (5th Cir. 2012) (quoting United

States v. Phillips, 477 F.3d 215, 222 (5th Cir. 2007)).
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       In evaluating a claim of constructive amendment, we “scrutinize any
difference between an indictment and a jury instruction [and] reverse only if
that difference allows the defendant to be convicted of a separate crime from
the one for which he was indicted.” 37 Short of this, “we review the purported
amendment as a variance, and the defendant must ‘show how the variance in
the language between the jury charge and the indictment so severely
prejudiced his defense that it requires reversal under harmless error
review.’” 38
       We hold that the indictment was not constructively amended. In relevant
part, 18 U.S.C. § 1546(a) makes it a crime to “knowingly make[] under oath . .
. or . . . under penalty of perjury . . . any false statement with respect to a
material fact in any application, affidavit, or other document required by the
immigration laws . . . .” Count Six of the indictment charged that Mokoro
       knowingly made under oath and under penalty of perjury,
       subscribed as true, and presented an application containing a false
       statement with respect to a material fact on United States
       Citizenship and Immigration Services Form I-751, for the purpose
       of procuring an immigration benefit that in such petition the
       defendant stated that he, Andrew Mokoro and A.Y., had entered
       into a bona fide marriage when in truth and fact such was not true.

Count Seven of the indictment contained an identical allegation against
Rebmann, except for the identity of Rebmann’s putative spouse.
       The district court instructed the jury that the government must prove
beyond a reasonable doubt that (1) the defendant made a false statement, (2)
the defendant acted with knowledge that the statement was untrue, (3) the
statement was material to the activities or decisions of Immigration and



       37   United States v. Nunez, 180 F.3d 227, 231 (5th Cir. 1999).
       38   Jara-Favela, 686 F.3d at 300 (quoting Nunez, 180 F.3d at 231).
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                                 No. 14-20235
Customs Enforcement; that is, it had a natural tendency to influence or was
capable of influencing the agency’s decisions or activities, (4) the statement
was made under oath or penalty of perjury, and (5) the statement was made
on United States Citizenship and Immigration Services Form I-751. Mokoro
and Rebmann do not challenge the district court’s recitation of the elements of
the offense. Instead, Mokoro and Rebmann contend that the government’s
proof amounted to a constructive amendment of the indictment because the
government proved a different false statement than the one alleged in the
indictment. We disagree.
      The indictment alleged generally that Mokoro and Rebmann falsely
certified on Form I-751 that they had entered into bona fide marriages. The
charges identify exactly the manner in which Mokoro and Rebmann made the
false statements and identify why the statements were false. At trial, the
government proved that Mokoro and Rebmann falsely certified the specific
statement in Form I-751 that their marriages were “entered in accordance with
the laws of the place where the marriage took place and . . . not for the purpose
of procuring an immigration benefit.”
      Confronted with similar facts, we have found no constructive
amendment. For example, in United States v. Jara-Favela, the indictment
charged the defendant with lying to federal officers when he told one officer
that he was traveling from Laredo, Texas, and told the other officer that he
was traveling from Nuevo Laredo, Mexico. 39 The evidence at trial, however,
showed instead that he told one officer he was coming from the “north” and




      39   Id.
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                                         No. 14-20235
another he was coming from the “south.” 40 We found no constructive
amendment because, in context, the terms were synonymous. 41
       In this context, as in Jara-Favela, the false statement alleged and the
false statement proven were synonymous. We note initially that “bona fide”
means something “made in good faith without fraud or deceit; legally valid.” 42
Beyond its common meaning, the term “bona fide” has been used as shorthand
to describe whether a marriage was entered into for the purpose of evading the
immigration laws. 43 Critically, the government relied on the same theory of
conviction in the indictment and at trial. The indictment, evidence, and
convictions were all based on the same false statement. The jury was not
permitted to convict Mokoro and Rebmann of a different crime than the one
charged, nor was it permitted to convict on a false statement outside the scope
of the indictment. The government’s allegations and the evidence sustaining
the convictions shared the same common nucleus: false statements by Mokoro
and Rebmann on Form I-751 regarding the legitimacy of their marriages. The
government did not, for example, introduce evidence of false statements on
different immigration forms or of false statements pertaining to anything but
the defendants’ marriages.
       At most, the government’s proof at trial amounted to a variance from the
indictment. We thus ask whether the defendants have shown that “the



       40  Id.
       41  Id.
        42 Bona fide, WEBSTER’S THIRD NEW INT’L DICTIONARY (1986).
        43 See, e.g., I.N.S. v. St. Cyr, 533 U.S. 289, 335 (2001) (SCALIA, J., dissenting) (referring

to aliens deportable for “procur[ing] a visa through a marriage that was not bona fide” and
citing 8 U.S.C. § 1227(a)(1)(G), which discusses aliens deportable for having procured a visa
through marriage fraud); Alaswad v. Johnson, 574 F. App’x 483, 485–86 (5th Cir. 2014)
(quoting the Board of Immigration Appeals as using the term “not bona fide” as synonymous
with a “a marriage for the purpose of evading the immigration laws”).
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                                      No. 14-20235
variance in the language between the jury charge and the indictment so
severely prejudiced [their] defense that it requires reversal under harmless
error review.” 44 A variance rises to this level only when “it prejudices the
defendant’s ‘substantial rights,’ either by surprising the defendant at trial or
by placing him at risk of double jeopardy.” 45 The instant variance was
harmless. Both Mokoro and Rebmann knew that the term “bona fide” as
alleged in the indictment referred to the legitimacy of their marriages as they
had represented on Form I-751. This is evidenced by Mokoro’s and Rebmann’s
strategy at trial to show that their marriages were genuine. Moreover, Form I-
751 itself contains no separate reference to a “bona fide marriage” but instead
requires only the certification that the government proved at trial. Thus, the
reference to “bona fide marriage” could only refer to the marriage certification.
Neither is there a risk of double jeopardy because there was no evidence of any
other false statements.
2. Sufficiency of the Evidence
       Mokoro and Rebmann next challenge their convictions for visa fraud on
the basis of the sufficiency of the evidence. The elements of visa fraud under
18 U.S.C. § 1546(a) are “(1) the defendant made a false statement, (2) the
statement was made knowingly and (3) under oath, (4) the statement concerns
a ‘material fact,’ (5) and the statement was made in an application required by
the United States immigration laws and regulations.” 46 Mokoro and Rebmann
only contest the first element, asserting that the government failed to prove
that they made false statements.



       44Jara-Favela, 686 F.3d at 300 (quoting Nunez, 180 F.3d at 231).
       45United States v. Baker, 17 F.3d 94, 98 (5th Cir. 1994).
      46 United States v. Boskic, 545 F.3d 69, 85 (1st Cir. 2008) (citing 18 U.S.C § 1546(a);

United States v. Chu, 5 F.3d 1244, 1247 (9th Cir. 1993)).
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                                No. 14-20235
      The government presented sufficient evidence to allow a reasonable jury
to conclude that Mokoro and Rebmann each made a false statement by
certifying on their Form I-751 “that the marriage was not for the purpose of
procuring an immigration benefit.” In our resolution of Mokoro’s challenge to
the sufficiency of the evidence on Count Four, we deemed the evidence
sufficient for a reasonable jury to conclude that Mokoro entered his marriage
to Young to evade the immigration laws. The same evidence is also sufficient
for the jury to conclude that he made a false statement when he claimed the
opposite on Form I-751.
      As for Rebmann, his wife, Vasha Adams, testified that she received
payment to travel to Kenya and marry Rebmann so that he could come to the
United States. She was paid to do this by Rebmann’s brother, Alfonso. Adams
testified that she first met Rebmann when he picked her up from the airport
in Kenya. She only recognized him because he had a sign with his name on it.
Rebmann and Adams married the next day and Adams departed Kenya that
night. When she returned to the United States, she lied to U.S. Customs
officials about the purpose of her trip. She did not see Rebmann again for two
years. She would occasionally see him in the United States, but she
characterized their relationship as “just business.” Rebmann asked her to take
photographs that showed them as a happy, married couple to support his
immigration paperwork. This evidence was sufficient for a reasonable jury to
conclude that Rebmann made a false statement on Form I-751. We affirm
Mokoro’s and Rebmann’s respective convictions on Counts Six and Seven.
F. Batson Challenge
      In their final challenge, the defendants assert that the district court
erred by failing to make factual findings under the third prong of Batson.


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                                 No. 14-20235
      At the close of voir dire, Ogoti’s counsel made a Batson challenge to the
government’s peremptory strike of juror number four, Maria Ofeno. He
articulated that she “is in a protected class under Batson” and stated that,
based on the questions asked and answers given during voir dire, the
prosecution had used its strike in a discriminatory manner. Ofeno’s race is not
revealed in the record, but Alfonso’s briefing makes clear that the defendants
believed the government’s challenge was based on race.
      The prosecution responded with race-neutral reasons. First, Ofeno
received her permanent residence and eventually her citizenship through the
visa lottery and emigrated from Nigeria. She sponsored her husband for
permanent residence and citizenship and they used the same process that
many of the defendants used. She stated that she had friends who had used
the marriage-based immigration system to attain their citizenship. Second,
Ofeno was hesitant in responding to the prosecutor’s questions during voir
dire. Third, Ofeno expressed the belief that both the husband and wife should
be charged in a marriage fraud case.
      Ogoti’s counsel then argued that the government’s reasoning about
Ofeno’s immigration and her husband’s immigration was pretextual. His
primary evidence was that, of the five jurors who indicated that they had
immigrated to the United States, the prosecution struck only Ofeno. The
government distinguished Ofeno’s situation from the others because Ofeno’s
act of sponsoring her husband fit almost squarely with the facts of this case.
Moreover, of these five jurors, three were struck for cause, one was struck by
the defendants, and the last, Ofeno, was struck by the government. The district
court then denied the challenge: “I don’t think the strike was for the—was for
a suspect reason. I think it was race neutral, origin neutral and gender neutral,
and I’m going to deny the Batson challenge.”
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                                        No. 14-20235
          Under Batson v. Kentucky 47 and its progeny, parties may not exercise
peremptory challenges to strike jurors based on race, ethnicity, or sex. 48 A
challenge to a peremptory strike proceeds in three steps. First, the challengers
(the defendants in this case) make an initial showing that the challenged party
made a strike on an impermissible basis. Second, the challenged party must
offer a neutral reason for the strike. Third, “the district court must determine
whether the [challenger] has carried his burden of proving purposeful
discrimination.” 49
          On appeal, the defendants challenge only the district court’s
determination that the government’s peremptory strike did not constitute
purposeful discrimination. Because “[a] district court makes a finding of fact
when it determines whether a prosecutor has purposively discriminated on the
basis of race in striking a juror,” we grant “great deference” to the district
court’s findings, reviewing them for clear error and remaining cognizant that
that court’s observations of the prosecutor and the venire persons in question
during voir dire are often decisive. 50 Courts should not weigh whether
“counsel’s reason is suspect, or weak, or irrational,” but should instead
determine “whether counsel is telling the truth in his or her assertion that the
challenge is not race-based.” 51
          Alfonso’s counsel observes that the district court made no factual
findings to which we could owe any deference. Counsel argues instead that the
district court accepted the government’s race-neutral explanation at face value



          47 476 U.S. 79 (1986).
          48 Rivera v. Illinois, 556 U.S. 148, 153 (2009).
          49 United States v. Thompson, 735 F.3d 291, 296 (5th Cir. 2013).
          50 Id.
          51 Id. at 297 (quoting United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir.

1993)).
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                                      No. 14-20235
when it should have evaluated the credibility and plausibility of that
explanation. This, counsel contends, amounts to a combination of Batson’s
steps two and three, a practice that the Supreme Court has forbidden. 52
       The government correctly counters that there is no requirement in this
circuit that a district court make explicit factual findings during Batson’s third
step. Indeed, “a district court may make ‘implicit’ findings while performing
the Batson analysis.” 53 A recent panel of this court explicitly rejected such a
requirement, even when the only race-neutral reason advanced was a
demeanor-based reason not otherwise reviewable based on the record. 54
Although some other courts disagree, failure to make explicit factual findings
on the third step is not itself reversible error. 55
       The district court heard argument from both sides and expressly stated,
“I don’t think the strike was . . . for a suspect reason.” By finding that the
challenged strike was not suspect, the district court necessarily found the
government’s explanation credible: It could not have made that statement if it
disbelieved the government’s race-neutral explanation. The record reflects that
the district court performed the third step of the Batson analysis adequately
and implicitly found that the government’s strike was not purposefully
discriminatory.
       The question thus becomes whether the district court committed clear
error in ruling that no Batson violation occurred in the government’s strike of




       52  See Purkett v. Elem, 514 U.S. 765, 768 (1995).
       53  United States v. McDaniel, 436 F. App’x 399, 405 (5th Cir. 2011) (unpublished)
(collecting cases).
        54 See Thompson, 735 F.3d at 300–01.
        55 See Higgins v. Cain, 720 F.3d 255, 268 (5th Cir. 2013) (noting a circuit split on

“whether a trial judge must make explicit findings of fact at Batson’s third step”).
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                                       No. 14-20235
Ofeno. 56 On appeal, Alfonso contends that the prosecutor’s explanation in
striking Ofeno was not persuasive because she never stated that she could not
be fair; and she agreed that marriage fraud should be prosecuted. That a
witness made some statements favorable to the government, however, does not
nullify the government’s other, legitimate concerns. Here, those included that
Ofeno had used the identical immigration process with her husband that some
of the defendants were accused of fraudulently using with their putative
spouses. This supports the district court’s conclusion that the government’s
strike of Ofeno was not pretextual. 57 The defendants have failed to show that
the district court clearly erred in finding that the strike was not purposefully
discriminatory.
                                            III.
                                     CONCLUSION
       We vacate Ogoti’s and Rebmann’s convictions on Counts Two and Three,
respectively, and we affirm the convictions of all defendants on all other counts.




       56  See McDaniel, 436 F. App’x at 406 (“Because we conclude that the district court
implicitly found that the strike of prospective juror Johnson was not purposefully
discriminatory, McDaniel must show that this finding was clearly erroneous in order to
prevail in his Batson challenge.”).
        57 In the district court, Alfonso’s counsel also attempted to show that the strike was

pretextual based on the presence of other prospective jurors with similar experiences in the
immigration system. Evidence that the government struck Ofeno, but not other similarly
situated jurors of a different race could show purposeful discrimination. See Miller-El v.
Dretke, 545 U.S. 231, 241 (2005) (“If a prosecutor’s proffered reason for striking a black
panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that
is evidence tending to prove purposeful discrimination to be considered at Batson’s third
step.”). Here, five jurors, including Ofeno, indicated that they gained their citizenship
through the naturalization process. Three of them were struck for cause. The defense struck
another, and the government struck Ofeno. Thus, this argument is unavailing because all of
the similarly situated jurors were either excluded for cause or excluded by the defense.

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