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United States v. Lefsih

United States Court of Appeals, Fourth Circuit

August 14, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
HEMZA MENADE LEFSIH, Defendant-Appellant.

          Argued: May 10, 2017

         Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:16-cr-00004-BO-1)

         Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Traxler and Judge Floyd joined.


          Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina, for Appellant.

          Barbara Dickerson Kocher, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

         ON BRIEF:

          John Stuart Bruce, Acting United States Attorney, Jennifer P. May-Parker, First Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

          Before TRAXLER, FLOYD, and HARRIS, Circuit Judges.

          PAMELA HARRIS, Circuit Judge

         A jury convicted Hemza Menade Lefsih, an Algerian native who entered the United States through the Diversity Immigrant Visa Program, of immigration fraud. During Lefsih's trial, the district court interjected numerous times, expressing skepticism of the Diversity Immigrant Visa Program and a negative impression of individuals who participate in the program. We find that this judicial intervention was improper and denied Lefsih the opportunity for a fair and impartial trial, and therefore vacate the judgment of conviction.

         I. A.

         Hemza Menade Lefsih immigrated to the United States through the Diversity Immigrant Visa Program ("Diversity Program"). The Diversity Program awards permanent residence immigration visas - "diversity visas" - to individuals from countries with historically low immigration numbers, on the basis of a random lottery system. Lefsih, from Algeria, won a Diversity Program lottery and received a diversity visa. As allowed under the Diversity Program, he then sought United States citizenship, submitting an N-400 form - the application form for naturalization - five years after entering the country.

         Questions 22 through 28 of the N-400 relate to an applicant's criminal history. Specifically, Question 22 inquires whether an applicant has "ever committed . . . a crime or offense for which [he or she was] not arrested"; Question 24, whether an applicant has "ever been charged with committing . . . a crime or offense"; and Question 25, whether an applicant has "ever been convicted of a crime or offense[.]" S.A. 375 (emphases in original).[1] And between those questions is Question 23 - the question at issue here - asking whether an applicant has "ever been arrested, cited, or detained by any law enforcement officer . . . for any reason." Id. (emphasis in original).

         Lefsih answered "no" to Question 23. Id. In fact, however, Lefsih had been "cited" by several law enforcement officers, receiving a total of 11 traffic citations while working as a cab driver in North Carolina. Lefsih later would testify that he understood Question 23 as referring only to serious criminal offenses that resulted in arrests or detentions, and not to traffic tickets, and so believed that he was answering the question truthfully. But Lefsih concedes that in actuality, his assertion that he never had been "cited" was false.

         Because Lefsih failed to acknowledge his traffic tickets in answer to Question 23, the government charged Lefsih with two counts of making a false statement on a naturalization form, see 18 U.S.C. § 1015(a), and two counts of immigration fraud, see 18 U.S.C. § 1546(a). In order to obtain a conviction under either provision, the government was required to prove Lefsih's state of mind: that contrary to his account, Lefsih knowingly provided a false answer to Question 23. See 18 U.S.C. §§ 1015(a), 1546(a).


         Lefsih's two-day trial began on April 27, 2016. The government could present no direct evidence that Lefsih knew, at the time he filled out his N-400 form, that his answer to Question 23 was false. Instead, as is common in establishing a defendant's state of mind, the government relied on circumstantial evidence. See United States v. Santos, 553 U.S. 507, 521 (2008) (government customarily proves knowledge with circumstantial evidence).

         Through its first witness, Special Agent Tony Bell of the Immigration and Customs Enforcement division of Homeland Security Investigations, the government sought to establish that Lefsih was fully capable of correctly understanding Question 23. Bell, who had investigated and interviewed Lefsih prior to Lefsih's indictment, testified that Lefsih was a proficient English speaker. He also reviewed Lefsih's educational background, including work toward a master's degree in physics at a Paris school; excellent performance in classes at Wake Tech Community College; and high grades on English proficiency and placement tests.

         In addition, Bell's testimony called into question Lefsih's motives in entering the country through the Diversity Program. Bell testified that in his experience, it was unusual that someone like Lefsih would apply only for a diversity visa through the Diversity Program lottery - with low odds of success - and not for a student visa. According to Bell, Lefsih explained this decision as turning on the "better class of entry" offered by a diversity visa. J.A. 114. Bell understood Lefsih to be referring to the fact that students are admitted only for the purpose of attending school and "tracked" while they are in the country, J.A. 115, whereas diversity-visa holders enter as legal permanent residents and without similar restrictions.

         The government's next witness was Gary Freitas, a senior officer with the United States Citizenship and Immigration Services, who testified about the Diversity Program and the naturalization application process. Freitas began by explaining that the Diversity Program was established by Congress so that people from countries with historically low immigration rates would have an opportunity to live permanently in the United States. Upon hearing that, the district court asked Freitas a series of pointed questions about the Program:

District court: You're saying that Congress has set up a law that your agency enforces that invites people to come to America from places where they don't normally come to America?
Freitas: Yes.
District court: That's a shorthand way of saying it?
Freitas: Yes, it is.
District court: That's incredible. And the reason that they don't come to America is because they haven't tried to come to America? Is that it?
Freitas: Usually because of - they may not have family members here from those countries or ...

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