                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3871
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                Tamie Marie Samuels

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                  for the Northern District of Iowa - Cedar Rapids
                                   ____________

                           Submitted: September 22, 2017
                              Filed: November 6, 2017
                                   ____________

Before LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       In March 2015, Tamie Marie Samuels (“Samuels”) filed an alien relative visa
petition (Form I-130) for the benefit of her new husband, Randell Samuels
(“Randell”). The petition asked, “Have you ever before filed a petition for this or any
other alien?” Samuels falsely checked “no.” A jury convicted Samuels of knowingly
making a false statement with respect to a material fact in an immigration matter in
violation of 18 U.S.C. § 1546(a). The district court1 sentenced her to three months
in prison and three years of supervised release. Samuels appeals, arguing the district
court erred in denying her motion for judgment of acquittal because there was
insufficient evidence the false statement (i) was made knowingly, and (ii) was made
with respect to a material fact. We review the sufficiency of the evidence de novo,
viewing the evidence in the light most favorable to the verdict and accepting all
reasonable inferences that support the jury’s verdict. United States v. Causevic, 636
F.3d 998, 1005 (8th Cir. 2011). We affirm.

                              I. The Trial Evidence.

       At trial, documentary evidence established that Randell is Samuels’s fourth
husband. Samuels married Randell, a citizen of Jamaica, on February 3, 2015, two
days after he entered the United States on a nonimmigrant visa. On March 12, 2015,
Samuels filed the Form I-130 visa petition, and Randell filed a Form I-485
application for adjustment of status. In 1997, Samuels had filed a Form I-130 visa
petition for her second husband, Temistocles Lobaton, which was approved in
December 1997. Samuels falsely stated on the 2015 Form I-130 for Randell that she
had never before filed a petition for any other alien. Samuels and Lobaton divorced
in March 1999; Lobaton did not receive a visa. Samuels’s third husband, Demone
Square, was a United States citizen; they divorced in April 2010.

       United States Citizenship and Immigration Services (USCIS) Officer Justin
Kaleas testified that he interviewed Samuels and Randell in June 2015 as part of the
Form I-130 decision process. At the interview, Samuels confirmed that she had never
filed a Form I-130 petition for any other relative. Two days after the interview,
Kaleas approved Samuels’s Form I-130 petition, unaware of the Form I-130 Samuels


      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

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filed in 1997 on behalf of Lobaton. Kaleas testified that checking “yes” in response
to the question, “Have you ever before filed a petition . . .?” is considered a “fraud
indicator” that triggers inquiry into prior Form I-130 filings. USCIS examines the
details of any prior petition, the status of that petition, and if the petition was found
to be based on fraud. USCIS considers whether there is a pattern of fraudulently
filing for and obtaining immigration benefits.

       Homeland Security Investigations Special Agent Chris Cantrell testified that,
in February or March 2015, he began investigating the fraudulent use of a passport
belonging to Demone Square, Samuels’s third husband. A non-U.S. citizen, Danny
Darroux, had attempted to use this passport to enter the United States from St. Kitts.
Cantrell testified that on March 4 -- one week before Samuels filed the Form I-130
here at issue -- he interviewed Samuels’s parents and Randell regarding the passport.
During the interview, Randell acknowledged that he would need to obtain an
immigrant visa to remain in the United States.

       Cantrell testified that he reviewed the Form I-130s filed by Samuels in 1997
and 2015 and interviewed Samuels on September 11, 2015, as a part of his passport
investigation. During the interview, Samuels stated that she had filed a Form I-130
in 1997 on behalf of second husband Lobaton, but believed she had cancelled the
petition. Supervisory Officer Richard Moore testified that he accompanied Cantrell
to this interview and confirmed that Samuels admitted filing the 1997 Form I-130.
The government also submitted evidence that no one had cancelled or attempted to
cancel the 1997 Form I-130.

       Neither Samuels nor any other witness testified for the defense. After the jury
returned a verdict finding Samuels guilty of the offense, she filed a written Motion
for Judgment of Acquittal and Conditional Motion for New Trial. The district court
denied that Motion in a thorough nine-page Order.



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                   II. The Knowingly False Statement Issue.

       Samuels first argues that there was insufficient evidence to support a finding
that she made the false statement knowingly. The district court instructed the jury,
without objection, that “[a]n act is done ‘knowingly’ if the defendant is aware of the
act and did not act through ignorance, mistake or accident.” See generally United
States v. Dockter, 58 F.3d 1284, 1288 (8th Cir. 1995). Samuels argues the evidence
was insufficient because she filed the prior Form I-130 eighteen years before the
Form I-130 at issue without the assistance of counsel, Lobaton was not issued a visa,
and the couple subsequently divorced, so “it is fair to assume that defendant had a
good faith belief that the visa petition had been canceled.”

       Viewing the evidence in the light most favorable to the verdict, we agree with
the district court there was sufficient evidence for a reasonable jury to find beyond
a reasonable doubt that Samuels knowingly made the false statement that she had
never before filed a Form I-130 for any alien. Two witnesses testified that Samuels
admitted during the September 2015 interview that she had previously filed an I-130
on behalf of Lobaton. As the district court observed, based on this admission, “which
occurred shortly after her submission of the 2015 Form I-130, the jury could
reasonably conclude that she remembered her previous filing of the 1997 Form I-130
at the time she stated that she had never filed a prior petition.” Though the agents
recalled Samuels saying that she believed the 1997 Form I-130 petition had been
“cancelled,” there was no evidence the petition was cancelled, leaving a reasonable
jury free to conclude that what she told the agents did not refute the government’s
evidence that Samuels knew the statement that she had never filed a prior I-130 was
false and did not act through ignorance, mistake, or accident.




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                             III. The Materiality Issue.

       Samuels argues there was insufficient evidence to support the jury’s finding
that her false statement was made with respect to a material fact. The district court
instructed the jury, without objection, that the government must prove beyond a
reasonable doubt that the statement “was material to the activities or decisions of the
[USCIS]; that is, it had a natural tendency to influence, or was capable of influencing,
the agency’s decisions or activities.” This instruction incorporated a well-established
standard when materiality is an element of a federal statute criminalizing false
statements to public officials. See, e.g., Kungys v. United States, 485 U.S. 759, 770-
71 (1988) (“has a natural tendency to influence, or was capable of influencing”);
Causevic, 636 F.3d at 1005.

        On appeal, Samuels argues the evidence was insufficient because the
government’s only evidence of materiality was Officer Kaleas’s inaccurate testimony
regarding the impact of a prior marriage on the Form I-130 approval process. Kaleas
testified that, had Samuels truthfully disclosed the previous Form I-130 petition filed
on behalf of Lobaton, USCIS would have investigated and, if the prior marriage was
entered into solely to obtain an immigration benefit, then Samuels “would be barred
from filing further petitions for immediate relatives in the future,” resulting in denial
of her 2015 petition. In fact, Samuels argues, the applicable statute, 8 U.S.C.
§ 1154(c), does not bar future Form I-130 petitions by a U.S. citizen petitioner, even
if a prior petition was based upon a fraudulent marriage that benefitted the alien
beneficiary. Moreover, if Samuels’s 1997 Form I-130 petition had been disclosed
and investigated, § 1154(c) would not have applied because that petition was
approved. Therefore, Samuels concludes, her failure to disclose the 1997 petition,
even if knowing, “was not material to the current visa application.”

       We reject this contention. First, Samuels’s argument ignores a fundamental
issue, whether materiality is an issue of fact or law. We have not addressed this issue

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recently, and our prior decisions leave it in considerable doubt. Compare United
States v. Adler, 623 F.2d 1287, 1292 (8th Cir. 1980) (district court did not err in
deciding materiality as an issue of law), with United States v. Voorhees, 593 F.2d
346, 349 (8th Cir. 1979) (affirming district court’s jury instruction on materiality); see
generally United States v. Abadi, 706 F.2d 178, 180 (6th Cir. 1983) (holding
materiality is a question of law, collecting cases). Importantly the Supreme Court
discussed the issue at length in an immigration fraud decision:

             [T]he test of whether Kungys’ concealments or misrepresentations
      were material is whether they had a natural tendency to influence the
      decisions of [USCIS’s predecessor agency]. To determine the effect of
      this holding upon our disposition of the present case, we must first
      consider whether materiality under [8 U.S.C.] § 1451(a) is an issue of
      law, which we may decide for ourselves, or one of fact, which must be
      decided by the trial court. Here again we see no reason not to follow
      what has been done with the materiality requirement under other statutes
      dealing with misrepresentations to public officials. “[T]he materiality
      of what is falsely sworn, when an element in the crime of perjury, is one
      for the court.”

Kungys, 485 U.S. at 772, quoting Sinclair v. United States, 279 U.S. 263, 298 (1929)
(emphasis added).

       Second, Samuels’s materiality argument seems to treat the issue as a question
of law. Her attack on the government’s evidence is based on Officer Kaleas’s alleged
misunderstanding of the relevant immigration statutes. Kaleas was thoroughly cross-
examined at trial, but not about his testimony that denial of a prior Form I-130
petition because the marriage was fraudulent would automatically result in denial of
the pending petition. Thus, if materiality is a question of fact for the jury, the jury
was entitled to accept at face value Kaleas’s testimony as to why concealing the filing
of a prior Form I-130 petition was “capable of influencing” this USCIS decision. On
the other hand, if materiality is an issue of law, Samuels did not challenge the

                                           -6-
sufficiency of the evidence of materiality in her post-verdict motion for judgment of
acquittal. Therefore, the district court had no opportunity to explain why the issue
was properly submitted to the jury and, if materiality is an issue of law, why the court
agreed with the jury’s advisory resolution of that issue. “When a defendant raises
specific grounds in a Rule 29 motion, grounds that are not specifically raised are
waived on appeal.” United States v. Chong Lam, 677 F.3d 190, 200 (4th Cir. 2012)
(collecting cases). At most, we review such forfeited issues for plain error. See
United States v. Calhoun, 721 F.3d 596, 600 (8th Cir. 2013).

       Third, Samuels’s materiality argument assumes that, to be material, the facts
addressed in the false statement had to be capable of influencing the agency’s
decision on her Form I-130 petition. That was an important issue in Kungys, because
a prosecution under 8 U.S.C. 1451(a) requires proof that a naturalization order was
“procured” by concealment of a material fact. 485 U.S. at 776-77. But 8 U.S.C.
§ 1546(a), like more general federal fraud statutes, is not so limited, and here the
district court instructed the jury that materiality means that a false statement had “a
natural tendency to influence, or was capable of influencing, the agency’s decisions
or activities.” A false statement is material if it tends “to impede the inquiry” of an
agency. United States v. Hirani, 824 F.3d 741, 749-50 (8th Cir. 2016). Here, the
instruction permitted the jury to infer that Samuels concealed her prior Form I-130
petition in an attempt to impede Officer Cantrell’s inquiry into passport fraud, or the
Form I-130 approval process conducted by Officer Kaleas.

       Fourth, even if Officer Kaleas misdescribed the possible results of an inquiry
into a Form I-130 petitioner’s prior filings, his testimony that USCIS will investigate
prior petitions that a Form I-130 petitioner discloses is confirmed by agency decisions
discussing the fact that a petitioner has filed other Form I-130 petitions on behalf of
other spouses. See In re [redacted], 2014 WL 5430813 (DHS) (USCIS Admin. App.
Office Oct. 1, 2014); In re [redacted], 2012 WL 8527152 (INS) (USCIS Admin. App.
Office Dec. 17, 2012); In re Domingo, 2006 WL 3203422 (BIA) (BIA Sept. 1, 2006).

                                          -7-
The investigation of prior marriages and Form I-130 petitions is capable of
influencing USCIS decisions because it may raise an inference of immigration abuse
that leads to the denial of the current petition, even if a prior Form I-130 petition was
approved and the marriage never challenged as fraudulent. “What is relevant is what
would have ensued from official knowledge of the misrepresented fact.” Hirani, 824
F.3d at 749, quoting Kungys, 485 U.S. at 775.

       For these reasons, we conclude that the evidence at trial was sufficient to
establish that Samuels falsely failed to disclose a material fact, whether materiality
is an issue of fact or law in a 8 U.S.C. § 1546(a) prosecution.

      The judgment of the district court is affirmed.
                     ______________________________




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