                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 8, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-5214
          v.                                           (N.D. Oklahoma)
 SA RA H ME RC Y O LU SO LA ,                   (D.C. No. 06-CR-72-01-CV E)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, A ND ER SO N and BROR BY, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant/appellant Sarah M ercy Olusola was found guilty, following a

jury trial, of one count of making a false statement on a passport application, in

violation of 18 U.S.C. § 1542, and one count of making a false claim to be a


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
U nited States citizen, in violation of 18 U.S.C. § 911. She was sentenced to two

years probation, to run concurrently, and was assessed a $100 fine per count, as

well as a $100 special monetary assessment per count. Olusola appeals her

conviction, which we affirm.



                                   BACKGROUND

      On August 26, 2001, Olusola, a citizen of Nigeria, entered the United

States as a non-immigrant M -1 student, planning to study at the Rhema Bible

Training Center in Broken Arrow, Oklahoma. 1 Olusola’s visa was valid through

June 30, 2005. At some point between her arrival and the expiration of her visa

on June 30, 2005, Olusola’s status shifted from M -1 to M -2, indicating that she

was married to an M -1 student.

      On December 22, 2004, Olusola made an I-360 special immigrant petition

to become a religious worker with Air Travel and Tours, an entity which arranged

tours to Nigeria. Olusola, an attorney in Nigeria, represented that she was the

director and president of Air Travel and Tours. On July 8, 2005, the I-360 special

immigrant petition was denied because Air Travel and Tours was not a religious

organization. Olusola applied for and received tax exempt status for Air Travel

and Tours as a not-for-profit charitable organization.




      1
          An M -1 student is a vocational or other non-academic student.

                                          -2-
      In June 2005, both Olusola and her husband filed I-539 forms to become

religious workers. Those were approved and Olusola became an R-2 non-

immigrant, while her husband was an R-1 non-immigrant. This extended

Olusola’s visa until June 30, 2008.

      On September 30, 2005, Olusola applied for a United States passport at the

United States Post Office in Broken Arrow, Oklahoma. On the application, she

indicated that her parents, Daw n Louise Gore and Charles Chester Brooks III,

were born in the United States. As proof of her identity, Olusola provided her

Oklahoma drivers license. As proof of her citizenship, Olusola provided a State

of Oklahoma “Certificate of Foreign Birth,” dated July 20, 2005, which indicated

that Olusola was born in Lagos, Nigeria, on M arch 24, 1964. 2 The Certificate

clearly states the following: “This Certificate is Not Proof of U.S. Citizenship.”

Olusola swore the information on the application was correct and recited the oath

before United States postal employee Jack Hope. By signing the application,

Olusola represented the following: “I declare under penalty of perjury that I am a

United States citizen.”

      On October 24, 2005, the passport application was forwarded first to the

Houston Passport Agency Anti-Fraud Office and then to the Diplomatic Security

Service for investigation because of Olusola’s use of the Certificate of Foreign

      2
       Oklahoma typically issues Certificates of Foreign Birth to adults who
adopt foreign-born children. There is no prohibition, however, against one being
issued to an adopted adult.

                                        -3-
Birth as proof of her United States citizenship. The Houston Passport Agency

discovered that, on July 12, 2005, Olusola had been adopted in Oklahoma by

Dawn Louise Gore and Charles Chester Brooks III, both U nited States citizens.

      On January 18, 2006, Olusola was interviewed by a special agent with the

United States Department of State Diplomatic Security Service. The agent

testified at her trial that Olusola was “uncooperative and not forthcoming.” Tr. of

Jury Trial at 44, R. Vol. III.

      Olusola testified at her trial that she thought her adoption by Gore and

Brooks w ould bestow upon her United States citizenship: “It meant I was a

citizen because I was adopted.” Id. at 57. How ever, she conceded on cross-

examination that the Certificate of Foreign Birth “doesn’t go to [her] citizenship

at all.” Id. at 61. She also conceded that there was never any assurance or

reference to Olusola becoming a citizen during the adoption proceeding. Olusola

admitted she “did not go through a naturalization process,” id. at 64, and that no

representative of the U nited States government had ever told her she w as a

citizen. The jury returned guilty verdicts on both counts.

      Olusola appeals, arguing that it was plain error for the district court to fail

to give the jury an instruction on good faith. W e affirm.




                                          -4-
                                    D ISC USSIO N

      “W hen no objection to a jury instruction was made at trial, the adequacy of

the instruction is reviewed de novo for plain error.” United States v. Visinaiz,

428 F.3d 1300, 1308 (10th Cir. 2005), cert. denied, 126 S. Ct. 1101 (2006).

“Plain error occurs when there is (i) error, (ii) that is plain, which (iii) affects the

defendant’s substantial rights, and which (iv) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Ruiz-

Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007). Thus, we must determine if it

was plain error for the district court to fail to give a good faith instruction.

      “A defendant is entitled to a good faith instruction when he has interposed

the defense of good faith, has requested the instruction, and when there is

sufficient evidence to support it.” United States v. Overholt, 307 F.3d 1231, 1247

(10th Cir. 2002). Furthermore, unlike most other circuits, “[w]e have held that

when those conditions are met, a good faith instruction is required, even if an

instruction on willfulness has been given.” Id.

      Olusola argues that she “squarely raised good faith as her sole theory of

defense.” Appellant’s Br. at 8. Olusola did testify at several points that she

thought her adoption by two United States citizens made her a citizen. The

special agent who interviewed her also testified that she told him she thought the

adoption conferred citizenship. However, she also conceded that the adoption

decree “doesn’t go to [her] citizenship at all.” Tr. of Jury Trial at 61, R. Vol. III.

                                           -5-
Furthermore, she conceded that she did not attach the adoption decree to her

passport application, nor did she even bring it with her when she filled out and

signed the application, thereby undermining her claim that her belief in her

citizenship was based upon the adoption decree.

      Additionally, in closing arguments, Olusola’s counsel did not argue good

faith. Rather, he argued that Olusola sent her passport application off and

expected the government to tell her if she was or was not a citizen:

      She fills out a passport application, she says on there she’s a citizen,
      she sends it off to the U nited States government. W ho better knows
      if she’s a citizen or not but the United States Government. She
      expected to hear back from them. No, you’re not a citizen. Yes, you
      are a citizen. She knew she hadn’t gone through any naturalization
      process.

Tr. of Closing Arguments at 10, R. Supp. Vol. II. That is hardly consistent with

the defense that she sent off her passport application in good faith, believing that

her adoption had automatically conferred citizenship on her. Additionally,

Olusola was hardly a naive or unsophisticated person. Rather, she had been

trained as a law yer in Nigeria; she had filled out paperwork to successfully

petition for changes in her legal status in the United States; and she had

negotiated the process of having her company, of which she was the director and

president, be declared a not-for-profit charitable institution. This all undermines

her claim that she thought her adoption decree automatically changed her

citizenship status in the United States.



                                           -6-
      Accordingly, even were we to agree that she argued good faith as a defense

at trial, the evidence does not support such a defense. Because the evidence did

not support such a defense, it was not error, let alone plain error, for the district

court to fail to give such an instruction.



                                   C ON CLU SIO N

      For the foregoing reasons, we AFFIRM the judgment in this case.

                                                   ENTERED FOR THE COURT


                                                   Stephen H. Anderson
                                                   Circuit Judge




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