US v. Kwame Djanson, No. 13-4854 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4854 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KWAME ESSEL DJANSON, Samuel Kofi Essel, a/k/a Quarmey Gyanson Essel, a/k/a Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O Grady, District Judge. (1:13-cr-00177-LO-1) Submitted: June 27, 2014 Decided: July 11, 2014 Before KING, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Caroline S. Platt, Appellate Attorney, Brooke Sealy Rupert, Assistant Federal Public Defender, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, Dina S. Finkel, Special Assistant United States Attorney, Gene Rossi, Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kwame Essel Djanson appeals his conviction for unlawful procurement of naturalization, in violation of 8 U.S.C. § 1425(a) (2012), * and the district court s order revoking his naturalization. Finding no error, we affirm. Djanson state an denying first offense, his timely and claims the that the district motion to indictment court dismiss. failed to erred in therefore He argues that an indictment for an offense which includes a contrary to law element violated elements without is of stating inadequate the which law the because it does offense with defendant s not set sufficient conduct forth the specificity. (Appellant s Br. at 26-27). In reviewing the denial of a motion to dismiss an indictment, we review the district court s factual findings for clear error and its legal conclusions de novo. United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005). When a criminal defendant challenges the sufficiency of an indictment prior to the verdict, we apply a heightened scrutiny. Kingrea, 573 F.3d 186, 191 (4th * Cir. United States v. 2009). A federal Djanson does not appeal his remaining convictions for making a false statement in connection with the purchase of a firearm and making a false statement in an application for a passport. 2 indictment must contain the elements of the offense charged, fairly inform defendant to the defendant plead double of the jeopardy charge, prosecutions for the same offense. as a and enable defense to the future United States v. Resendiz Ponce, 549 U.S. 102, 108 (2007); see Fed. R. Crim. P. 7(c)(1). After language reviewing contained indictment in properly the the set statutory language and the we conclude that the elements of indictment, forth the the offense charged, fairly informed Djanson of the charge, and informed him of the making. material false statements that he was charged with Although the phrase contrary to law is not defined in § 1425(a), it has been interpreted to mean a violation of the laws governing naturalization. See United States v. Puerta, 982 F.2d 1297, 1300-01 (9th Cir. 1992) ( The statute does not define the phrase contrary to law. Presumably the law referred to is the law governing naturalization. ); see also Fedorenko v. United States, 449 U.S. 490, 506 (1981) (recognizing that there must be imposed strict compliance prerequisites to with the all of acquisition the of congressionally citizenship and that [f]ailure to comply with any of these conditions renders the certificate of citizenship illegally procured, and naturalization that is unlawfully procured can be set aside ). Because knowingly making material false statements to procure naturalization is always contrary to the law, we find Djanson s 3 argument without merit and we uphold the district court s denial of the motion to dismiss. Djanson next alleges that the district court erred in failing to give his proposed jury instruction on the § 1425(a) charge and contends that the court failed to properly instruct the jury on the contrary to law element of the offense. We review to de correctly novo state a claim the that a jury applicable instruction law. See failed United Jefferson, 674 F.3d 332, 351 (4th Cir. 2012). States v. A trial court has considerable discretion in choosing the specific wording of [its] instructions, instructional error and is we will determined not to reverse have based on a review of the record as a whole. been unless an prejudicial, United States v. Whitfield, 695 F.3d 288, 305 (4th Cir. 2012) (quoting Figg v. Schroeder, 312 F.3d 625, 640 (4th Cir. 2002)), cert. denied, 133 S. Ct. 1461 (2013). single instruction In conducting our review, we do not view a in isolation; rather we consider whether taken as a whole and in the context of the entire charge, the instructions accurately and fairly state the controlling law. United States v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996). We have thoroughly reviewed Djanson s proposed instruction and the instructions given by the district court in the context of its entire charge to the jury. above, we conclude that the Government 4 was not As discussed required to specify an underlying predicate offense Djanson with a § 1425(a) violation. in order to charge Moreover, to the extent that Djanson contends that the instructions never set forth the element that his statements must be contrary to law, we conclude that the entire charge, taken as a whole, accurately and fairly stated the controlling law. See id. Because Djanson has failed to show that the contrary to law element was not substantially covered by the district court s jury charge or that the failure to further define contrary to law seriously impaired his ability to conduct his defense, see United States v. Hassan, 742 F.3d 104, 129 (4th Cir.), cert. denied, __ S. Ct. __, 2014 WL 1747984 (U.S. June 9, 2014) (No. 13-9948), we conclude that no error occurred. See United States v. Latchin, 554 F.3d 709, 715 (7th Cir. 2009) (considering jury instructions on § 1425(a) charge). Djanson evidence to next support argues his that there conviction. was We review insufficient a district court s decision to deny a Fed. R. Crim. P. 29 motion for a judgment of acquittal de novo. 209, 216 sufficiency (4th of Cir. the United States v. Smith, 451 F.3d 2006). evidence A defendant faces a heavy challenging burden. the United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). The verdict of a jury must be sustained if, viewing the evidence in the light most favorable to the 5 prosecution, the verdict is supported by substantial evidence. (citations omitted). reasonable finder Smith, 451 F.3d at 216 Substantial evidence is evidence that a of fact could accept as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. omitted). weighs Id. (internal quotation marks and citation Furthermore, the [t]he credibility of jury, the not the evidence conflicts in the evidence presented. reviewing and court, resolves any Beidler, 110 F.3d at 1067 (internal quotation marks and citation omitted). Reversal for insufficient evidence is reserved for the rare case where the prosecution s failure is clear. Id. (internal quotation marks and citation omitted). In attacking the sufficiency of the evidence, Djanson argues that no witness specified which law [his] procurement of naturalization § 1425(a). was contrary to (Appellant s Br. at 34). such that of the record convinces us violated As explained above, we conclude that this argument is without merit. review it that Moreover, our substantial evidence clearly supported the jury s verdict in this case. Finally, Djanson contends that the erred in entering an order of denaturalization. district court Pursuant to 8 U.S.C. § 1451(e) (2012), When a person shall be convicted under section 1425 of Title 18 of knowingly procuring naturalization in violation of law, the court in which such conviction 6 is had shall thereupon revoke, set aside, and declare void the final order admitting such person to citizenship, and shall declare the certificate of naturalization of such person to be canceled. Jurisdiction is conferred on the courts having jurisdiction of the trial of such offense to make such adjudication. He argues that his judgment of conviction does not become final until after he has exhausted his rights to appeal, and alleges the district [sic] erred when it concluded that it could not wait to issue the denaturalization order until this appeal, and any potential resolved. resulting petition for certiorari, have been (Appellant s Br. at 36). We conclude that Djanson s argument is contrary to the plain language of the statute. Upon a § 1425(a) conviction, the statute provides that the trial court shall thereupon revoke, set aside and declare void the order admitting a defendant to citizenship and naturalization. shall cancel the 8 U.S.C. § 1451(e). certificate of Moreover, the cases to consider this statutory provision have found that revocation of naturalization is automatic, exercise of discretion. ministerial, and involves no See, e.g., Latchin, 554 F.3d at 716 ( Under 8 U.S.C. § 1451(e), a conviction for knowingly procuring naturalization in violation of the law results in automatic denaturalization. ); Bridges v. United States, 199 F.2d 845, 846 (9th Cir. 1952) (rejecting defendant s claim that he is not convicted until all appellate remedies have been exhausted and 7 finding that the revocation is meant to be a part criminal proceedings and not a separate proceeding. of the This is indicated by the language of the subsection itself which states that when a person is convicted of obtaining citizenship by fraud, his citizenship shall thereupon be revoked in the same court where he was convicted. ), reversed on other grounds by 346 U.S. 209 (1953). We therefore uphold the district court s denaturalization order. Accordingly, we affirm the criminal judgment and the district court s order revoking naturalization. We dispense with oral argument because the facts and legal contentions are adequately expressed in the materials before this court and argument would not aid the decisional process. AFFIRMED 8

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