UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4471

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CARINE KOJIA ALEAH EP MBENDEKE, a/k/a Carine Aleah Mbendeke,

Defendant - Appellant.

No. 17-4490

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

IRENE MARIE MBONO, a/k/a Irene Marie Settles,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:16-cr-00272-LMB-1; 1:16-cr- 00272-LMB-2)

Submitted: June 25, 2018 Decided: September 19, 2018 Before KEENAN and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Charles Burnham, BURNHAM & GOROKHOV PLLC, Washington, D.C.; Melinda L. VanLowe, LAW OFFICE OF MELINDA L. VANLOWE, Fairfax, Virginia, for Appellants. Dana J. Boente, United States Attorney, Michael D. Minerva, Special Assistant United States Attorney, Christopher Catizone, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Carine Kojia Aleah Ep Mbendeke and Irene Marie Mbono were indicted for their

participation in a conspiracy to obtain permanent resident status for Cameroonian

nationals by arranging fraudulent marriages with American citizens. Following a jury

trial, Mbendeke was convicted of conspiracy to commit marriage fraud and defraud the

United States, in violation of

(2012) (Count 1). Mbono, who elected to

be tried by the district court during the same trial, was also convicted of Count 1, as well

as making a materially false statement and representation, in violation of

(a)(2) (2012) (Count 2), and false swearing in an immigration matter, in violation

of

(a) (2012) (Count 3). Mbendeke was sentenced to a prison term of

one year and one day, and Mbono was sentenced to 30 days’ imprisonment. Both

Defendants timely appealed.

On appeal, Mbendeke challenges the district court’s marriage fraud jury

instruction and contends that the marriage fraud statute is unconstitutionally vague.

Mbono argues that Counts 2 and 3 were insufficiently charged, that the evidence adduced

at trial failed to support her conspiracy conviction, and that an immigration official

entrapped her to commit perjury. For the reasons that follow, we affirm.

We review de novo whether the district court’s jury instruction incorrectly stated

the law. United States v. Miltier,

(4th Cir. 2018). In assessing a district

court’s jury instructions, “we must determine whether, taken as a whole, the instruction

fairly states the controlling law.” United States v. Chikvashvili,

(4th

Cir. 2017) (internal quotation marks omitted). Here, the district court instructed the jury

3 that a marriage fraud conviction requires proof that the defendant “had reason to know

that . . . her conduct was unlawful.” Mbendeke contends that marriage fraud requires

actual knowledge, not constructive knowledge, that she violated the law. The statute,

however, simply covers “[a]ny individual who knowingly enters into a marriage for the

purpose of evading any provision of the immigration laws.”

(c). Unless

otherwise provided, “the term ‘knowingly’ merely requires proof of knowledge of the

facts that constitute the offense,” rather than proof of knowledge of the law. Bryan v.

United States,

(1998). Thus, the plain language of the statute offers

no support to Mbendeke’s argument for a heightened mens rea requirement. Nor do we

find Mbendeke’s reliance on United States v. Chowdhury,

(6th Cir. 1999),

persuasive. Although Chowdhury determined that, under § 1325(c), the Government

must show that the defendant knew her conduct was unlawful, it cited with approval a

jury instruction substantively identical to the one given here. Id. at 406-07. We thus

detect no error in the court’s instruction on the scienter element of marriage fraud.

Next, Mbendeke asserts that § 1325(c) is unconstitutionally vague. “We consider

whether a statute is vague as applied to the particular facts at issue, for a [defendant] who

engages in some conduct that is clearly proscribed cannot complain of the vagueness of

the law as applied to the conduct of others.” United States v. Jaensch,

(4th Cir. 2011) (brackets and internal quotation marks omitted). Here, because

Mbendeke “does not dispute that § 1325(c) clearly covers her own conduct, she may not

challenge the statute on vagueness grounds based on its application to others.” United

States v. Di Pietro,

(11th Cir. 2010).

4 Turning to Mbono’s claims, “[w]e review the district court’s factual findings on a

motion to dismiss an indictment for clear error, but we review its legal conclusions de

novo.” United States v. Hosford,

(4th Cir. 2016) (internal quotation

marks omitted). To be sufficient, an indictment must “set forth all the elements necessary

to constitute the offense intended to be punished,” as well as “the essential facts

constituting the offense charged.” United States v. Perry,

(4th Cir.

2014) (brackets, emphasis, and internal quotation marks omitted).

Mbono assigns error to the district court’s denial of her motion to dismiss Counts

2 and 3, which she claimed were subject to dismissal because her false statements were

immaterial to the marriage fraud conspiracy. However, the Government was required

only to set forth the elements and facts supporting the charges, not to link them to the

conspiracy. A conviction under § 1001(a)(2) or § 1546(a) requires only that the false

statement be material to “agency action,” a requirement clearly met here. United States

v. Garcia-Ochoa,

(4th Cir. 2010). Because our review of the

indictment confirms that the Government adequately charged Counts 2 and 3, we find

Mbono’s argument lacking in merit.

We further reject Mbono’s challenge to the sufficiency of the evidence to support

her conspiracy conviction. We review the district court’s denial of Mbono’s Fed. R.

Crim. P. 29 motion for judgment of acquittal de novo, and “will sustain the jury’s verdict

if it is supported by substantial evidence.” United States v. Cowden,

(4th Cir. 2018). “In determining whether the evidence in the record is substantial, we

view the evidence in the light most favorable to the government and inquire whether

5 there is evidence that a reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” Miltier,

(internal quotation marks omitted).

To prove the existence of a § 371 conspiracy, the Government must show “(1) an

unlawful agreement between two or more people to commit a crime; (2) that the

defendant knowingly and willingly participated in that conspiratorial endeavor; and (3)

an overt act committed in furtherance of the conspiracy.” United States v. Vinson,

(4th Cir. 2017) (internal quotation marks omitted). “Once the Government

proves a conspiracy, the evidence need only establish a slight connection between a

defendant and the conspiracy to support conviction.” United States v. Green,

(4th Cir. 2010).

The evidence at trial established that, after Mbendeke and her husband, Landry

Mbendeke (“Landry”), legally immigrated to the United States from Cameroon, the

Mbendekes devised a plan to recruit American citizens to marry members of Landry’s

family so that they too could lawfully reside in the United States. At the request of

Mbono’s brother, 1 Landry found an American, James Settles, who was willing to marry

Mbono in exchange for $5,000. Mbono traveled to the United States, where she and

Settles wed in April 2014. Several months later, in November 2014, Mbono submitted an

immigration form in which she falsely claimed, under penalty of perjury, that she lived at

1 Mbono’s brother, Jean Jules Ngbwa Elle, was also indicted and tried with Mbono and Mbendeke, but was acquitted by the jury of the sole count in which he was charged.

6 Settles’ address. She continued to misrepresent her address during two interviews with

an immigration official in June and July 2015. During a follow-up interview in August

2015, Mbono admitted that she was never involved in a romantic relationship with

Settles, and that she married him for the purpose of obtaining permanent resident status

and better healthcare. Based on this evidence, we conclude that the Government adduced

sufficient proof to support Mbono’s conspiracy conviction.

Finally, Mbono claims that the immigration official who interviewed her

entrapped her to commit perjury. “Entrapment is an affirmative defense that places on

the defendant the initial burden of presenting some evidence that the government induced

[her] to commit the offense charged.” United States v. Akinseye,

(4th

Cir. 1986). Here, Mbono presented no testimony or evidence in support of her

entrapment defense. Moreover, although Mbono correctly contends that the immigration

official knew before conducting the interviews that Mbono did not live with Settles,

Mbono had already misrepresented her address in the immigration form submitted in

November 2014. Thus, Mbono cannot establish a lack of predisposition to engage in

perjury. See United States v. McLaurin,

(4th Cir. 2014).

Accordingly, we affirm the district court’s judgments. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

AFFIRMED

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