UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 02-50041

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

SON HUI SODOSKY, also known as Son Hui Yi, also known as Son Hui Goebbel, also known as Son Hui Peak, also known as Son Hui Elmore

Defendant-Appellant.

Appeal from the United States District Court For the Western District of Texas (99-CR-1197) December 5, 2002

Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:*

Appellant, Son Hui Sodosky (Sodosky), was indicted and charged

with procurement of citizenship or naturalization unlawfully in

violation of

(b) for misstating on her

naturalization application that she had never before been

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. “arrested, cited, charged, indicted, convicted, fined or imprisoned

for breaking or violating any law or ordinance, excluding traffic

regulations.” She was convicted following a jury trial and

sentenced to four years' probation and a $100 special assessment.

As a result of her conviction, the district court revoked her

citizenship. Appellant now appeals her conviction. We REVERSE.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was born in Korea in 1960. She married an American

soldier named Elwood C. Elmore in Korea and moved to El Paso,

Texas, with him in 1980. Appellant and Mr. Elmore divorced in

1982. After her divorce, Appellant continued to use her military

dependent card to receive medical services at the William Beaumont

Army Medical Center. In 1984, as a result of her use of the card,

she was convicted of fraud, sentenced to probation, and ordered to

pay restitution to the Army Medical Center for the benefits she

received. Sodosky complied with all of the conditions of her

probation and paid all restitution as ordered. As a result of

Sodosky's conviction, the Immigration and Naturalization Service

(INS) received a copy of her indictment and an FBI memo setting out

the details of the offense. To avoid deportation, Sodosky filed a

motion for a recommendation against deportation with the INS in

August 1984, which was successful.

In 1986, Sodosky married Detlev Goebbel and moved to Germany,

where they had a son. Sodosky divorced Mr. Goebbel in 1989 and

2 returned to the United States on a visitor's visa, which expired on

October 26, 1989. However, Sodosky was able to remain in the

United States because she married Jerry Sodosky in November 1989.

In 1996, Sodosky made an application for naturalization on an

INS form –400. Question 15b asked if the applicant had ever been

arrested, cited, charged, indicted, fined, convicted, or imprisoned

for violating any law or ordinance excluding traffic violations.

The box marked "no" was checked on Sodosky's application. Mr.

Sodosky signed the form indicating that he had prepared it for his

wife.

After filing the application, Sodosky was informed by a letter

from the INS that she would have an interview on July 25, 1996.

The letter noted that she should bring the disposition of any

criminal violations with her to the interview. When Sodosky went

to her interview, she did not bring a copy of the judgment entered

in the 1984 criminal case. She testified that the clerk's office

told her it would take up to six weeks to receive a copy of the

judgment. She also testified that she did not request additional

time to receive the judgment before the interview because she

believed the INS examiner already had knowledge of the prior

proposed deportation and the basis for it.

Yolanda Miranda (Miranda) was the INS adjudications officer

that interviewed Sodosky. Sodosky testified that Miranda's first

question concerned Sodosky's prior deportation order. According to

Sodosky, she told Miranda about her fraud conviction for using the

3 military card and that she had finished her probation and paid back

all of the money she owed the Army Medical Center.

Miranda, however, testified that she did not remember

interviewing Sodosky, but that she always conducts her interviews

in the same manner. Miranda testified that she always reviews an

applicant's "A file," which is created when a person is being

processed by the INS and includes an assigned tracking number for

that person. An A file is kept in the course and scope of the

duties of the INS, and contains historical documents including a

person's criminal history and all applications submitted to the

INS. Miranda stated that there was no record of Sodosky's criminal

history in her A file when she reviewed it at the interview.

Miranda further stated that she always asks applicants about

question 15b on the application. Miranda testified that if Sodosky

had answered "yes" to question 15b during the interview, Miranda

would have noted that fact and asked Sodosky for additional

information. Miranda also said that she would have had Sodosky

swear to the change on her application concerning that question.

According to Miranda, question 15b was an important question to

review with an applicant because one of the requirements for

citizenship was that an applicant have good moral character. To

meet this requirement, an applicant could not have committed a

crime during the five years before the submission of the

application. Miranda explained that, for the good moral character

requirement, she would usually look only to the five years

4 preceding the time of application, but noted that she was allowed

to look prior to those five years.

Based on Sodosky's A file and interview, Miranda recommended

that Sodosky's application be approved. Miranda, however,

testified that she would not have made a recommendation to grant

Sodosky citizenship based on her prior indictment and conviction,

even though it occurred 12 years prior to her making an

application. Regardless, Miranda pointed out that, although she

would not have recommended Sodosky's application be approved, the

ultimate decision would have been made by an assistant deputy

district director.

Sodosky moved for judgment of acquittal at the close of the

government's evidence, which was denied. Sodosky renewed her

motion for judgment of acquittal at the end of all the evidence,

which also was denied. At trial neither party filed proposed jury

instructions. The district court presented the following

instructions to the jury without objection from either party:

The indictment alleges an offense under Title

, which makes it a crime for anyone, whether for herself or another person, to knowingly procure or obtain evidence of nationalization or citizenship, documentary or otherwise, to which she is not entitled.

For you to find Son Hui Sodosky guilty of this crime, you must be convinced that the Government has proven each of the following beyond a reasonable doubt: First: That the Defendant knowingly applied for, procured, and obtained evidence of nationalization and citizenship for herself;

Second: That the Defendant did so by representing or

5 causing to be represented on a Form –400 Application for Citizenship that she had never committed a crime for which she had been arrested, and representing that she had never been arrested, cited, charged, indicted, convicted, fined, or imprisoned;

Third: That the information on the Form –400 was false in that the Defendant was arrested on April 16, 1984, for fraud, a violation of Title

, and was convicted of that offense on or about July 18, 1984, and;

Fourth: That the Defendant knew the information on the Form –400 was false.

The jury reached a verdict of guilty.

On January 7, 2002, Sodosky was sentenced to a four-year term

of supervised probation and a $100 special assessment. The

district court also entered an Order Revoking Citizenship. Sodosky

timely filed a notice of appeal on January 7, 2002, arguing that:

(1) there was insufficient evidence to convict her under

(b) because there was no evidence that she was ineligible for

naturalization or believed she was ineligible for naturalization

and (2) the district court's failure to include in its jury

instructions the elements of ineligibility for naturalization and

knowledge of ineligibility was plain error.

DISCUSSION

There is no need to reach the issue of whether the district

court committed plain error in instructing the jury because we find

that there was insufficient evidence to convict Sodosky under

(b). In assessing the sufficiency of the evidence to

support a conviction when the appellant properly moved for a

6 judgment of acquittal as Sodosky did, the standard of review is

"whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Jackson v. Virginia,

(1979). This Court only

determines whether the jury made a rational decision, not whether

the decision was correct. United States v. Dean,

(5th Cir. 1995). Furthermore, this Court views all evidence

adduced at trial, and all inferences reasonably drawn from it, in

the light most favorable to the verdict.

Section 1425(b), Title 18 of the United States Code,

criminalizes conduct whereby a person knowingly applies for or

obtains naturalization or citizenship to which he or she is "not

entitled." Significantly, the only case in which this Court has

addressed the elements of a section 1425(b) offense is United

States v. Moses,

(5th Cir. 1996), which we are bound to

follow as precedent. In Moses, the defendant alien filed forms

with the INS seeking naturalization under

, which

allows an alien to apply for citizenship if he or she is married to

a citizen and living in America with that citizen spouse for three

years. The forms asked if Moses was married, the date of his

marriage, and the present address of his citizen spouse. Moses

indicated that he was living with his American wife and children,

when in fact he had been separated for five years and had begun

7 another family with another woman with whom he was living.

. In a later filing, in response to a question about whether

his marital status had changed since the first form was filed, he

answered in the negative.

Moses was charged under

for making a false

statement by indicating that his marital status had not changed on

the second form.

Moses was also charged under

(b) because he stated that he had been living in "marital

union" for the three years prior to his application.

Moses

was convicted on both counts.

This Court reversed the section 1001 conviction because Moses'

response had been literally true, although it was certainly

misleading.

. His status had not changed since he filed

his first application, which contained the false representation

that he was living with his wife.

We upheld the section 1425(b) conviction, however, because

Moses knew his marital status was not a "marital union," which made

him ineligible for naturalization

. Moses argued that

a mere separation was not an automatic bar to eligibility for

citizenship.

. The government, however, argued that

there was no marital union in the circumstances of this situation,

due to the length of separation, the new family he had established,

and the actual termination of any marital relationship in all but

the legal sense.

8 In Moses, we held that, to prove a section 1425(b) offense,

the government must show beyond a reasonable doubt:

(1) the defendant issued, procured, obtained, applied for, or otherwise attempted to procure naturalization or citizenship; (2) the defendant is not entitled [to] naturalization or citizenship; and (3) the defendant knows that he or she is not entitled to naturalization or citizenship.

. This Court determined that Moses' answer that he was

living with his wife and that her address was the same as his was

sufficient evidence for the jury to find that he falsely

represented that he was living in marital union with a citizen

wife, and to infer that Moses knew that being separated from his

spouse would bar naturalization under the citizen-spouse provision.

. We further concluded that "a jury could clearly and

unmistakably infer that the INS would not have approved Moses's

application if he had been truthful about his marital situation."

.

Moses clearly is instructive here. Sodosky's application

contained a false statement indicating that she previously had not

been indicted or convicted. However, Sodosky was not charged under

, which makes it unlawful for anyone to "make[] any

materially false, fictitious, or fraudulent statement or

representation" or "make[] or use[] any false writing or document

knowing the same to contain any materially false, fictitious, or

fraudulent statement or entry." Thus, whether Sodosky's answer to

question 15b on her INS form –400 was false is irrelevant in this

9 case.

Rather, Sodosky was only charged under

(b).

Unlike in Moses, the government here has failed to prove two of the

three elements of a section 1425(b) offense. First, the government

has not proven that Sodosky was ineligible for naturalization.

Second, the government has failed to prove that Sodosky knew she

was ineligible for naturalization.

As already noted, Sodosky's prior conviction occurred 12 years

prior to her applying for naturalization. The testimony presented

at trial was that only an offense within the five years prior to

application for citizenship would render an applicant ineligible.

A criminal conviction prior to that time simply would be one factor

the INS could consider, along with many other factors, pertaining

to the applicant's good moral character. We cannot assume that

Sodosky's prior conviction reflected so poorly on her character as

to bar naturalization. While Sodosky fraudulently used her

military dependent card, she did so only to receive medical

treatment shortly after being divorced from her husband who brought

her to the United States four years earlier from Korea. She

complied with all of the conditions of her probation and paid all

restitution as ordered. Significantly, the INS chose not to deport

her after she was convicted.

Thus, we conclude that there is no evidence that Sodosky's

prior conviction necessarily rendered her ineligible for

10 naturalization. Of course, if Sodosky's prior conviction did not

definitely make her ineligible for naturalization, it follows that

she could not have known she was ineligible for naturalization

based on that conviction. Therefore, the requirements of

(b) have not been satisfied.

CONCLUSION

For the foregoing reasons, we hold that a rational trier of

fact could not have found beyond a reasonable doubt that Sodosky's

prior conviction rendered her ineligible for naturalization, and

that she knew that she was ineligible for naturalization as

required under

(b). Therefore, we REVERSE

Sodosky's conviction.

REVERSED.

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