                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                          OCT 17 2016

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No.   14-10277

              Plaintiff-Appellee,                D.C. No.
                                                 1:13-cr-00014-RVM-1
 v.

XIAOYING TANG DOWAI,                             MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                  for the District of the Northern Mariana Islands
                   Ramona V. Manglona, Chief Judge, Presiding

                        Argued and Submitted June 15, 2016
                                Honolulu, Hawaii

Before: THOMAS, Chief Judge, and CALLAHAN and MURGUIA, Circuit
Judges.

      Xiaoying Tang Dowai (“Tang”), a native of China, appeals her convictions

for visa fraud, making a false statement, and conspiracy to defraud the United

States. On appeal, in addition to challenging the authority of the Northern Mariana




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Islands District Court (“NMI District Court”) to try her,1 she asserts that: (1) there

was insufficient evidence to convict her due to a lack of evidence connecting her to

the false statement in the I-130 form; (2) the district court erred in refusing her

instructions on materiality and marriage; and (3) following United States v.

Windsor, 133 S. Ct. 2675 (2013), the underlying statute defining marriage is

unconstitutionally vague and violates due process. We affirm her conviction.

      1. Tang claims that there was insufficient evidence to support her conviction

for visa fraud. She argues that a necessary element of Count II was not only

knowledge that Dowai made a false statement on his I-130 form, but also “specific

knowledge that he did so under penalty of perjury.” Tang admits that there is no

doubt that Dowai made a false statement that they had lived together, but asserts

that “there is no evidence from which it can be inferred . . . that [she] knew that

the form contained either this question or this answer, much less that the answer

was given under penalty of perjury.” She further asserts that there is no evidence

that she signed the documents.

      We review de novo the denial of a motion for acquittal based on the

sufficiency of the evidence. United States v. Tucker, 133 F.3d 1208, 1214 (9th Cir.



      1
           We reject this challenge in a published opinion filed concurrently with
this memorandum disposition.
                                           2
1998). However, a motion for acquittal can not be granted if “after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

       Despite Tang’s arguments to the contrary, there is more than sufficient

evidence from which the jury could have found that she knew of the

misinformation in the application and that it was asserted under penalty of perjury.

Among the evidence supporting such a finding is her signature on the I-485 form

in roman (English) characters just below a penalty of perjury warning, and the fact

that Tang and her boyfriend gave Dowai a pre-completed I-130 form that had a

similar penalty of perjury warning. Given all the uncontested evidence of her

efforts to stay in the United States through her marriage to Dowai, the jury, having

viewed her on the stand at trial, reasonably could have inferred that she could, in

fact, read and understand English—as she indicated on the I-485 form—despite her

use of a translator at trial. In sum, a “rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at

319.

       2. Tang contended at trial that any misrepresentation she made about the

marriage was immaterial, “because, if the truth were told—i.e., that she and


                                            3
[Dowai], although they did not live together, nevertheless did intend to establish a

life together at the time of their marriage—she would still have been eligible for

the visa she sought, because intent to establish a life together—any kind of life,

however, unusual or unconventional—is all that is required for eligibility.”      Tang

proposed an instruction on materiality, which stated that “a fact suppressed or

misstated is not material to an alien’s entry, unless it is one which, if known, would

have justified a refusal to issue the visa, or one which, if known, would have raised

a fair inference that a statutory disqualifying fact actually existed.”

      We review de novo whether the district court’s jury instructions adequately

presented the defendant’s theory of the case and whether the district court

presented the jury with every element of the crime. United States v. Jinian, 725

F.3d 954, 960 (9th Cir. 2013). If the district court’s instructions fairly and

adequately covered the elements of the offense, we review the instructions’ precise

formulation for an abuse of discretion.2 Id.

      The district court properly declined Tang’s proposed instruction on

materiality because it defined “materiality” too narrowly. Tang had asserted that a



      2
             In addition, the government contends that Tang’s argument
concerning the materiality element of § 371 should be reviewed only for plain error
because Tang did not make that particular argument in the district court. We do
not reach this issue as Tang’s argument fails under de novo review.
                                            4
false statement is material only if it “raised a fair inference that a statutory

disqualifying fact actually existed,” but the instruction given by the district court

properly defined a false statement as material if it “has a natural tendency to

influence.” See Dennis v. United States, 384 U.S. 855, 861 (1966) (“It has long

been established that this statutory language is not confined to fraud as that term

has been defined in the common law. It reaches any conspiracy for the purpose of

impairing, obstructing, or defeating the lawful function of any department of

government.”) (internal quotation marks omitted); see also Kungys v. United

States, 485 U.S. 759, 770 (1988)) (defining “material” false statement as one that

“has a natural tendency to influence, or was capable of influencing, the decision of

the decisionmaking body to which it was addressed” (internal quotation marks

omitted)); United States v. Chen, 324 F.3d 1103, 1104 (9th Cir. 2003).

       The district court did not err in declining Tang’s proposed marriage

instruction as it would only have been appropriate if her materiality instruction was

proper.

       3. Tang argues that her alleged misrepresentations are immaterial because

the statutory definition of marriage is unconstitutionally vague and violates due

process following United States v. Windsor, 133 S. Ct. 2675 (2013). She notes that

the statutes (8 U.S.C. §§ 1154 and 1151) define “immediate relatives” to include


                                            5
“spouses.” Tang argues that Lutwak v. United States, 344 U.S. 604 (1953) and

Bark v. INS, 511 F.2d 1200 (9th Cir. 1975), which define spouses, cannot survive

Windsor. Tang further notes that the regulation of marriages is ordinarily within

the province of states and that following Windsor’s reasoning for striking down the

federal Defense of Marriage Act, any attempt to incorporate the states’ different

regulations of marriage into federal immigration law is unconstitutional.

      We review the constitutionality of a statute de novo. United States v.

Harris, 185 F.3d 999, 1003 (9th Cir. 1999).

      We agree with the government that the legality of a marriage and a “bona fide

desire to establish a life together” are distinct issues. In Agyeman v. INS, 296 F.3d

871, 879 n.2 (9th Cir. 2002), we noted that for a marriage to confer immigration

benefits, it must be legally valid and “the couple must have married out of a bona

fide desire to establish a life together, not to evade immigration laws.”

      Windsor does not alter our position because, for purposes of our immigration

laws, it redefined the “legal validity” prong of the definition of marriage, but did

not alter the “bona fide desire to establish a life together” requirement. Indeed,

Windsor affirmed that “[i]n addressing the interaction of state domestic relations

and federal immigration law Congress determined that marriages ‘entered into for

the purpose of procuring an alien’s admission [to the United States] as an


                                           6
immigrant’ will not qualify the noncitizen for that status, even if the noncitizen’s

marriage is valid and proper for state-law purposes.” Windsor, 133 S. Ct. at 2690.

      Tang has not made a persuasive case for vagueness. The evidence indicates

that Tang and her boyfriend Chico approached Dowai with the intent to evade the

immigration laws. The evidence is overwhelming that Tang’s marriage to Dowai

was not based on a desire to establish a life together but was solely designed to

evade immigration laws.

      We find that there was sufficient evidence to convict Tang, that the district

court did not err in refusing her instructions on materiality and marriage, and that

the underlying statutory definition of marriage is not unconstitutionally vague. For

these reasons and for the reasons set forth in our concurrently filed opinion, Tang’s

conviction is AFFIRMED.




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