                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 00-4328
JORGE MORA,
               Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
               Frank W. Bullock, Jr., District Judge.
                            (CR-99-223)

                      Argued: February 26, 2001

                       Decided: July 31, 2001

      Before WIDENER, MOTZ, and KING, Circuit Judges.



Vacated and remanded by unpublished opinion. Judge Widener wrote
the opinion, in which Judge Motz and Judge King joined.


                             COUNSEL

ARGUED: Jeffrey S. Lisson, Winston-Salem, North Carolina, for
Appellant. Harry L. Hobgood, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee. ON BRIEF: Walter C.
Holton, Jr., United States Attorney, Greensboro, North Carolina, for
Appellee.
2                       UNITED STATES v. MORA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

WIDENER, Circuit Judge:

   Jorge Mora (Mora) appeals a jury conviction under 18 U.S.C.
§ 1028(a)(3) (2000) for the possession of five or more false United
States identification documents. Because the jury was not adequately
instructed on the elements of wire fraud, we vacate Mora’s conviction
and remand for a new trial.

                                   I.

   Mora was president of AmBienTemps, Inc. (AmBien), which is a
temporary employment agency in High Point, North Carolina that
supplies asbestos-removal workers in five or six states. Most of
AmBien’s applicants are foreign and thus must have a valid resident
alien work authorization card (green card) or a social security number
so that they may work in the United States.

   Mora interviewed and hired applicants, and he signed Immigration
and Naturalization Service (INS) Eligibility Verification Forms1
(form I-9) for the employees. As part of AmBien’s business routine,
    1
    Congress enacted the Immigration and Control Act of 1986 (IRCA)
to reduce employment of unauthorized workers. See H.R. No. 101-723(i)
at 46 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5649, 5650. It estab-
lished an employer verification system. The I-9 form is a mechanism to
ensure that workers are authorized to work. See 8 U.S.C.
§ 1324a(b)(1)(A); 8 C.F.R. § 274a.2(b)(ii). The employee tenders to the
employer certain identification documents, which are then listed on the
form. See 8 U.S.C. §§ 1324a(b), 1324b(b)(1)(C). An employer must
accept all documents that appear genuine on their face. See 8 U.S.C.
§ 1324a(b). If an employer complies with the § 1324a(b) employee veri-
fication requirements, the employer has a good faith defense to civil or
criminal liability for employing unauthorized workers. See 8 U.S.C.
§ 1324a(a)(3).
                        UNITED STATES v. MORA                           3
photocopies were made of green cards, social security cards, and state
asbestos licences, and these copies were placed in the employees’
files. Copies of these files were then forwarded, usually by fax or
packets hand-delivered by the workers, to the asbestos contractors
who used AmBien’s workers. The original cards were returned to the
workers.

   On October 8 and October 16, 1997, INS Agent Charles Goodman
conducted an inspection of AmBien, and Mora gave him 100 I-9
forms from hires within the last three months. The majority were
signed by Mora, and approximately 77 had invalid green card num-
bers. Goodman told Mora to fire the workers who did not provide ver-
ification documents and gave him a booklet2 regarding how to detect
counterfeit cards. Mora fired, or did not employ, 23 employees who
had provided invalid work authorization numbers. INS then closed its
investigation finding AmBien in "adjusted compliance."

   The government relates that asbestos-removal workers are gener-
ally required to be licenced by States. The Division of Public Health
of the North Carolina Department of Health and Human Services
requires asbestos-removal workers in North Carolina to be licenced.
Workers must complete a basic course in asbestos removal by an
accredited school, which is valid for one year. They then must take
a refresher course from an accredited school. Each year the Depart-
ment accredits 1900 workers, 90% of whom are foreign. AmBien
operated Wellington House, an asbestos-removal training school
licenced by North Carolina in both the basic and refresher courses.
North Carolina revoked the training licence for the basic course in
1993 and 1995; it was allowed to teach the refresher course.

   In December 1998, EPA agent Ivan Viken interviewed various
state asbestos-removal licensing officials, INS agents, AmBien
employees, and contractors who do business with AmBien. EPA
agents then executed a search warrant at AmBien offices on March
10, 1999.
  2
   The pamphlet was entitled, "What Color is Your Green Card?". On
October 16, 1997, Agent Goodmen instructed Mora regarding how to
spot false cards by looking at the type face, whether the photo is raised,
and where the letters line up.
4                      UNITED STATES v. MORA
   In Mora’s office, Viken located five counterfeit green cards and
four invalid social security cards relied upon in the indictment in an
envelope in a credenza located about 4 or 5 feet behind Mora’s desk.
The agents also found 285 asbestos worker licenses in Mora’s desk
and credenza in various names issued by various States. Mora testi-
fied that he was unaware that many were in his office. Of a sample
of 229 social security numbers listed, 179 were invalid.

   The agents then examined approximately 1251 personnel files from
employees in 1998 and 1999, located in Bill Williams’ office, the
AmBien accountant. The district court allowed evidence at trial (over
an in limine objection) establishing that there were 1251 different
social security numbers in these files—982 of which were found
invalid by Frank Maroney, Jr. of the Social Security Administration.
The district court similarly allowed evidence over objection that there
were 969 different green card numbers compiled into a list by Agent
Viken—879 of which were found invalid by Agent Goodmen. Good-
men testified that an employer could call the INS to verify a suspi-
cious green card number only if they are in a pilot program. AmBien
was not.

   The agents also discovered canceled payroll checks for the five
individuals with the invalid green cards mentioned in the indictment.
A former AmBien employee testified that Mora instructed her to add
to the Wellington School roster names of persons who did not attend
that training. Mora denied the allegation. The government did not
present any testimony from AmBien customers at trial.

   Mora was indicted on August 30, 1999 and charged in one count
with violating 18 U.S.C. § 1028(a)(3) for possessing five or more
false United States identification documents (the five green cards and
four social security cards) with the intent to use them unlawfully. The
indictment alleged that Mora possessed six false green cards and six
false social security cards. On November 17, 1999, the indictment
was redacted upon motion of the government to charge possession of
only five false green cards and four false social security cards.

   Mora was convicted by a jury in November 19, 2000 and was sen-
tenced on March 28, 2000 to 15-months imprisonment and fined
                        UNITED STATES v. MORA                          5
$25,000 under United States Sentencing Guideline § 2L2.1. He timely
appealed on April 20, 2000.

                                   II.

   We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We review
a district court’s jury instructions de novo. See United States v. Ellis,
121 F.3d 908, 913 (4th Cir. 1997).

   This appeal involves the interrelation between the statutory ele-
ments for two separate offenses. The indictment in this case alleges
that Mora violated 18 U.S.C. § 1028(a)(3). Congress adopted the
False Identification Crime Control Act of 1982, Pub. L. No. 97-398,
96 Stat. 2009, of which § 1028(a)(3) is a part, to create federal
offenses relating to possession of false identification documents,
counterfeiting of identification documents, and trafficking in such
documents. See H.R. Rep. No. 802, 97th Cong., 2d Sess. 1, reprinted
in 1982 U.S.C.C.A.N. 3519, 3519. In creating the § 1028(a)(3)
offense, Congress made an element of the offense an "intent to use
unlawfully" the false identifications possessed. 18 U.S.C.
§ 1028(a)(3). Accordingly, possession of five or more false identifica-
tions violates § 1028(a)(3) when the intended use of the documents
would also "violate[ ] a federal, state or local law, or [be] part of the
making of a misrepresentation that violates a law." H.R. Rep. No.
802, 97th Cong., 2d Sess. 10, reprinted in 1982 U.S.C.C.A.N. 3519,
3529.

   Thus, for a jury to conclude that a defendant intended to use false
identifications unlawfully, the government must establish two things:
1) the uses to which defendant intended to put the false identifications
and 2) that those intended uses would violate one or more federal,
state, or local laws. See United States v. Rohn, 964 F.2d 310, 313 (4th
Cir. 1992). The elements of a § 1028(a)(3) offense thus are: 1) posses-
sion of five or more false identification documents; 2) the defendant
knew the identification documents were false; 3) the documents were
or appeared to be issued by the United States; 4) and the possession
was with the intent to use them unlawfully. See § 1028(a)(3)(c)
(emphasis added). This case presents a question with respect to jury
instructions for the final element.
6                        UNITED STATES v. MORA
   Rohn requires the government to present to the jury a specific
offense that satisfies the "unlawfully" element—rather than relying on
mere notions of right and wrong. See Rohn, 964 F.2d at 312-13. Rohn
was charged with violating § 1028(a)(3). At trial, over 70 pieces of
false identification were admitted into evidence, including social
security cards, driver’s licences, bank cards, birth certificates, and stu-
dent identification cards. See Rohn, 964 F.2d at 312. During delibera-
tions, the jury asked the court whether fleeing to avoid arrest was
unlawful. See Rohn, 964 F.2d at 312. In response, the district court
relying on 18 U.S.C. § 1073 stated, "Yes—it is a violation of federal
law to travel or move in interstate commerce with intent to avoid
prosecution for a felony under the laws of the place from which one
flees." Rohn, 964 F.2d at 312.

   On appeal, we noted that although there was a law (unlawful flight)
cited to the jury in that case, we emphasized that the government
"presented no evidence at trial" regarding the felony nature of her out-
standing warrants. See Rohn, 964 F.2d at 313. In reference to this
fact, we noted that because of this lack of proof the government did
not contend that the instruction relating to this law was sufficient to
support the verdict. In an attempt to get around this lack of evidence,
the government argued that the district court was not required to cite
for the jury any particular law that the intended uses would have vio-
lated. See Rohn, 964 F.2d at 313-14. But we rejected this argument.
We held that the text of § 1028(a)(3) and its legislative history
showed Congress’ intent that the government prove that the intended
use was unlawful. See Rohn, 964 F.2d at 313-14. Absent an instruc-
tion being given on an unlawful use, we held that the conviction could
not stand. See Rohn, 964 F.2d at 313. We cautioned that this showing
does not mandate proving that the defendant actually put the docu-
ment to the unlawful use—but rather, only that the defendant’s
intended use would have violated some law. See Rohn, 964 F.2d at
313 n.3. We apply these principles to the conviction at hand.

  In order to convict properly under § 1028(a)(3), the first three ele-
ments of § 1028 must be met as well as an intent to use the documents
named in the indictment unlawfully. At trial,3 the government alleged
    3
   The indictment did not refer to the wire fraud statute, and Mora appar-
ently did not learn of the specific alleged intended use until trial.
                        UNITED STATES v. MORA                         7
that the final element of § 1028(a)(3) was met with an intent to violate
the federal wire fraud statute. The government articulated its theory
of the case during its opening remarks and closing argument: Mora
intended to use the false green and social security cards to carry out
a wire fraud scheme to defraud its customers, asbestos-removal con-
tractors, by providing them with workers using false identification,
many of whom had not been properly trained. In this regard, the court
instructed the jury on the elements of § 1028 as well as the elements
of wire fraud as follows:

       Now, the Government contends that the defendant’s
    intended use would have violated Title 18, United States
    Code, Section 1343, which makes it a Federal crime for any-
    one to use interstate wire communication facilities in carry-
    ing out a scheme to defraud. The offense of wire fraud is
    committed when a person having devised or intending to
    devise a scheme to defraud or obtain money by false or
    fraudulent pretenses, transmits or causes to be transmitted
    by wire in interstate commerce any writings for the purpose
    of executing such scheme.

      It is not necessary that the Government prove that the use
    of interstate wire communications was intended to be the
    sole or exclusive means of accomplishing that fraud. It is
    not necessary that the Government prove that the defendant
    actually used the false identification documents to complete
    wire fraud. It is only necessary that the Government prove
    beyond a reasonable doubt, that the defendant’s intended
    use would have violated a particular Federal law. In this
    case, that the defendant intended to use a false identification
    document listed in the indictment to further a wire fraud
    scheme.

The district court judge instructed the jury in line with then-existing
wire fraud elements. See, e.g., United States v. ReBrook, 58 F.3d 961,
966 (4th Cir. 1995). Although this circuit long held that materiality
in the wire fraud statute was a matter of law for the court, the
Supreme Court recently held that materiality of a false statement was
a matter of fact for the jury. See United States v. Neder, 527 U.S. 1,
25 (1999) ("Accordingly, we hold that materiality of falsehood is an
8                        UNITED STATES v. MORA
element of the federal mail fraud, wire fraud, and bank fraud stat-
utes."). Therefore, the factual elements of wire fraud under 18 U.S.C.
§ 1343 are: 1) a scheme to defraud; 2) use of an interstate wire in fur-
therance of the scheme; and 3) statements or omissions in the wire
communication that were material to the scheme. See Neder, 527 U.S.
at 10. As applied in the context of a § 1028(a)(3) prosecution, the
government must prove that Mora intended to engage or engaged in
a scheme to defraud, intended to use or used interstate wire in further-
ance of the intended scheme, and that Mora intended to make or made
material misstatements in the wire communication.

   Mora did not object in the district court to the failure to include the
materiality element or on any other ground regarding the jury instruc-
tions, and thus our review is for plain error. See R. Fed. Crim. P.
52(b); United States v. Williams, 152 F.3d 294, 300 (4th Cir. 1998).
To reverse for plain error occurring at trial, a reviewing court must:
1) identify an error; 2) that was plain; 3) that affects substantial rights;
and 4) that seriously affects the fairness, integrity or public reputation
of judicial proceedings. See United States v. Olano, 507 U.S. 725,
732 (1993); United States v. Brewer, 1 F.3d 1430, 1434-35 (4th Cir.
1993).

   In this case, there was error because the district court omitted an
essential element of the offense of wire fraud from its jury instruc-
tions. To be plain, an error must be clear or obvious, at least by the
time of appeal. See Olano, 507 U.S. at 734. An error is clear or obvi-
ous "when the settled law of the Supreme Court . . . establishes that
an error has occurred. . . ." United States v. Neal, 101 F.3d 993, 998
(4th Cir. 1996). In light of Neder, we conclude that this error was
plain.

   We next address whether the error affected substantial rights, i.e.,
that it was prejudicial. See Olano, 507 U.S. at 734; United States v.
Hastings, 134 F.3d 235, 240 (4th Cir. 1998) (explaining that prejudice
is shown when it "actually affected the outcome of the proceedings").
Mora contends that this error taints his conviction and thus requires
reversal because he is entitled to have a jury determine that all ele-
ments of the offense have been proven. The failure to instruct on an
element of the offense, however, does not require reversal when "the
omitted element was uncontested and supported by overwhelming
                        UNITED STATES v. MORA                           9
evidence, such that the jury verdict would have been the same absent
the error." Neder, 527 U.S. at 17. When no objection is preserved
below, the burden of proof is on the defendant—not the government
—because we undertake plain error, rather than harmless error,
review. See United States v. Strickland, 245 F.3d 368, 379-80 (4th
Cir. 2001). Under this inquiry, it is proper to consider the evidence
actually presented at trial. See United States v. Brown, 202 F.3d 691,
699-703 (4th Cir. 2000).

   It is important to remember there was no instruction to the jury
defining the scheme or artifice to defraud under the wire fraud statute,
18 U.S.C. § 1343. And there was no instruction on materiality. The
government, however, argued to the jury that the people who used the
workers hired by AmBien as asbestos removers had been defrauded
because "they were assured that they were getting workers who had
been fully trained in every aspect to remove asbestos" and "because
they anticipated that they would be getting workers who were, first
of all, qualified to work in the United States."

   But not one contractor who used the AmBien workers to remove
asbestos testified in the case, so that aspect of proof of materiality, at
least, was not supported by such testimony. It is true that one of the
secretaries testified that such contractors required the green cards,
Social Security cards, drivers licenses, I-9 forms and asbestos
removal training class papers, and Mora testified that one of such con-
tractors, at least, did. Bearing in mind that the acts for which Mora
was indicted refer wholly to Social Security cards and green cards,
these acts could not possibly have been material in ascertaining
whether or not the workers were "fully trained in every respect to
removing asbestos" any more than whether or not the possession of
a drivers license is material in ascertaining whether an automobile is
negligently operated. Pursuant to the statute involved here, the term
"employer shall mean the independent contractor or contractors and
not the person or entity using the contractor labor." 8 C.F.R.
§ 274a.1(g). That definition may well bear on the materiality to the
various contractors for it may determine criminal or civil liability. So
the materiality of the conduct with which Mora was charged is quite
in dispute and the jury should have been instructed. Mora specifically
denied the wrongdoing with which he was charged so the element of
10                       UNITED STATES v. MORA
materiality was contested.4 Our decision in United States v. Brown,
202 F.3d 691, 701 (4th Cir. 2000), requires that we find the error to
be not harmless. ("But if the element was generally contested, and
there is evidence upon which a jury could have reached a contrary
finding, the error was not harmless.")

   The standard for prejudice under harmless or plain error standards
is the same. See United States v. Strickland, 245 F.3d 368, 379-80
(4th Cir. 2001). The error being not harmless and prejudicial, we are
of opinion that substantial rights of the defendant were affected, and
the fairness of the judicial proceeding was seriously affected. See
Olano, 507 U.S. at 732. Under the circumstances present in this case,
we must vacate the order of conviction and remand for a new trial.

   We express no opinion on any question which was not addressed
in this opinion. We are aware that the case of Burks v. United States,
437 U.S. 1, 18 (1978), requires a decision on the sufficiency of the
evidence as it overruled Bryan v. United States, 338 U.S. 552 (1950).
Because an element of the offense was missing in this case, however,
we believe that it would not be fair either to the government or to
Mora to pass on that question at this stage of the proceeding, and we
address only the failure to instruct on materiality and the scheme to
defraud at this time.

                   VACATED AND REMANDED FOR A NEW TRIAL
  4
     We note also that the jury reported at one time that it was hung.
