USA v. Om Budha

Filing

UNPUBLISHED OPINION FILED. [11-41346 Affirmed in Part and Vacated in Part] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 11/14/2012 for Appellant Om Prakash Budha [11-41346]

Case: 11-41346

Document: 00512030995

Page: 1

Date Filed: 10/24/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
October 24, 2012

No. 11-41346

Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OM PRAKASH BUDHA,
Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:11-CR-396-1

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Om Prakash Budha, a native and citizen of Nepal, appeals from his
conviction on four counts of failure or refusal to apply for travel documents, in
violation of 8 U.S.C. § 1253(a)(1)(B). We AFFIRM but vacate the convictions on
the second, third, and fourth counts of the indictment under the concurrent
sentence doctrine.
Border Patrol agents apprehended Budha after he crossed the Rio Grande
River into the United States on October 6, 2010. Because Budha did not speak
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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English or Spanish but nodded affirmatively in response to the word “Nepal,” the
agents interviewed Budha with the assistance of a Nepali interpreter who was
present on a speaker phone. After waiving his right to remain silent and the
right to appointed counsel, Budha indicated that he was born in Nepal and had
crossed the river on an inner tube without inspection. He also indicated that he
had no claim to citizenship or documents that would allow him to enter the
United States. An asylum officer later conducted a credible fear interview. An
immigration judge determined that Budha was not admissible and issued a final
order of removal on November 4, 2010.
Immigration officials requested that Budha complete an application for
travel documents so that he could be removed to Nepal. They interviewed
Budha for this purpose on four occasions with the assistance of an interpreter
who was again present on speaker phone. Each time, Budha was informed of his
obligation to assist in obtaining the necessary travel documents and of the
possibility of criminal penalties for failure to do so. Nevertheless, Budha refused
to cooperate. The instant criminal prosecution then commenced, and a jury
convicted Budha on four counts of failing or refusing to apply for the travel
documents.
In his first issue on appeal, Budha argues that the Government violated
the Confrontation Clause by not calling the interpreters as witnesses. In
support, he relies on the Supreme Court’s decisions in Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354 (2004), Melendez-Diaz v. Massachusetts, 557 U.S.
305, 129 S. Ct. 2527 (2009), and Bullcoming v. New Mexico, 131 S. Ct. 2705
(2011). We have held that, except in unusual circumstances, interpreters may
be considered language conduits, whose translations of the defendant’s own
statements are not hearsay and do not implicate defendant’s confrontation
rights. See United States v. Cordero, 18 F.3d 1248, 1252–53 (5th Cir. 1994); see
also United States v. Nazemian, 948 F.2d 522, 526–27 (9th Cir. 1991). We agree
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with the Ninth Circuit that the Supreme Court’s recent confrontation
jurisprudence is not in conflict with that holding. See United States v. Hieng,
679 F.3d 1131, 1138–41 (9th Cir. 2012). We conclude from our review of the
record that the interpreters here were language conduits and that because
Budha may not confront himself, his Confrontation Clause argument is
unavailing.
Budha next argues that the district court denied him his constitutional
right to testify and to present a defense of duress or justification because the
court barred him from testifying about his fear of returning to Nepal, and it also
prohibited him from making a proffer. We agree with the Government that the
district court had sufficient knowledge of Budha’s alleged fear from the
pleadings and from the parties’ arguments. Budha wished to show that his
failure to apply for travel documents was not willful because he had a legitimate
fear of death or bodily harm if he returned to Nepal.
The Immigration and Nationality Act required Budha to cooperate and to
apply for travel documents in “good faith.” 8 U.S.C. § 1253(a)(1)(B). This means
that Budha was required to attempt to obtain the documents but could be
excused if he was unsuccessful despite his cooperation. Budha knew of this
obligation to cooperate and he knew that he faced a criminal penalty for failing
to do so. There is no question that Budha willfully refused to complete the
application for documents, and the fact that he may have believed he had a good
reason for refusing to complete the application was properly excluded as
irrelevant. See United States v. Ashraf, 628 F.3d 813, 824–25 (6th Cir. 2011); see
also United States v. Adeyinka, 205 F. App’x 238, 241 (5th Cir. 2006).
Budha also argues that the evidence was insufficient to support his
conviction. In order to convict Budha, the Government had to prove that he (1)
was an alien subject to “a final order of removal” and (2) “willfully fail[ed] or
refuse[d] to make timely application in good faith for travel or other documents
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necessary to [his] departure.”

§ 1253(a)(1)(B).

Budha argues that the

Government cannot show that he acted willfully because it told him that he had
the right to remain silent and to the appointment of counsel.

Therefore,

according to Budha, the Government cannot show that his failure to complete
the application was a willful violation of law rather than an exercise of the rights
of which the Government informed him. We are unconvinced.
The record shows that Budha was informed of his right to remain silent
and to appointed counsel upon his apprehension on October 6, 2010. Budha
waived his rights and answered questions. He was subsequently ordered
removed in separate immigration proceedings on November 4, 2010. Thereafter,
Budha was interviewed on November 18, 2010; December 16, 2010; January 18,
2011; and February 14, 2011. Budha was informed at each interview that he
was required to assist in obtaining travel documents and that he faced criminal
prosecution for failing to cooperate, but Budha refused to fill out the application.
Although Budha asked for an attorney at the December 16, 2010 meeting, he
was not entitled to appointed counsel at that point, and the record does not show
that Budha was told during any of the interviews after the removal order that
he had a right to remain silent or to appointed counsel. A rational jury could
find that Budha was subject to a final order of removal and that he was fully
informed of his obligations to cooperate but willfully failed or refused to apply
for the travel documents necessary for his removal. See § 1253(a)(1)(B); United
States v. Jara-Favela, 686 F.3d 289, 301 (5th Cir. 2012) (holding that on a review
of the sufficiency of the evidence the court determines whether any rational trier
of fact could have found all the elements of the offense beyond a reasonable
doubt).
Next, Budha argues that the Government induced him to run afoul of the
law by informing him of the right to remain silent and the right to counsel, and
that its prosecution of him in the face of this advisement was outrageous conduct
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warranting dismissal of the indictment. For reasons similar to our rejection of
Budha’s challenge to the sufficiency of the evidence, we conclude that Budha has
failed to meet the “extremely demanding” standard for assessing outrageous
Government conduct and that the Government’s alleged misconduct here was
not “so outrageous that it violates the principle of fundamental fairness under
the due process clause of the Fifth Amendment.” United States v. Sandlin, 589
F.3d 749, 758–59 (5th Cir. 2009) (internal quotation marks and citation omitted).
Finally, Budha argues that the indictment was multiplicitous.

“An

indictment is multiplicitous if it charges a single offense in multiple counts, thus
raising the potential for multiple punishment for the same offense, implicating
the [F]ifth [A]mendment double jeopardy clause.” United States v. Reagan, 596
F.3d 251, 253 (5th Cir. 2010) (internal quotation marks and citation omitted).
When deciding a multiplicity claim, we “look to whether separate and distinct
prohibited acts, made punishable by law, have been committed.” United States
v. Planck, 493 F.3d 501, 503 (5th Cir. 2007). We must determine the “allowable
unit of prosecution,” which is the “actus reus of the defendant.” Id.
Budha argues that the allowable unit of prosecution for an offense under
§ 1253(a)(1)(B) is the failure to make a timely application for travel documents
within 90 days of the removal order. Because Budha’s indictment charged him
with four refusals to apply for documents, three of which occurred within the 90day time frame, he contends that the indictment was multiplicitous. Budha asks
that we reverse the district court’s judgment and remand for dismissal of three
counts of the indictment and entry of an amended judgment on only one count.
We conclude that we need not decide whether counts two, three, and four of the
indictment were multiplicitous of count one because of the concurrent sentence
doctrine.1
1

Budha concedes in his brief that any of the dates alleged in the four counts of the
indictment would have been sufficient to support a single-count of conviction because the

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The concurrent sentence doctrine is “a tool of judicial economy.” United
States v. Soape, 169 F.3d 257, 266 n.4 (5th Cir. 1999). “Under this doctrine the
existence of one valid conviction makes unnecessary the review of other
convictions which run concurrently with the valid conviction.” United States v.
Stovall, 825 F.2d 817, 824 (5th Cir. 1987). “We apply the concurrent sentence
doctrine in a manner that removes the adverse collateral consequences of the
sentence from the defendant.

Accordingly, we have adopted the policy of

vacating the unreviewed sentence and suspending imposition of that sentence.”
Id.
Here, the district court sentenced Budha to 224 days in prison and one
year of supervised release on counts one, two, three, and four, with all sentences
to run concurrently. We therefore affirm Budha’s conviction on count one but
vacate the unreviewed convictions on counts two, three, and four of the
indictment and suspend the imposition of those sentences. See United States v.
Harrelson, 754 F.2d 1182, 1185 (5th Cir. 1985) (“We need not decide whether the
fifth count charges the same offense as either of the other counts, because the
sentence for the fifth count was imposed to run concurrently with the third
count. We therefore vacate the unreviewed conviction under the fifth count and
suspend imposition of that sentence.”); United States v. Montemayor, 703 F.2d
109, 116 (5th Cir. 1983).2

Government alleged that the offense occurred “on or about” the alleged dates. We therefore
construe his argument to be that counts two, three, and four were multiplicitous of count one.
2

The district court also imposed a special assessment of $400, or $100 for each count,
which ordinarily would preclude application of the concurrent sentence doctrine because the
monetary sanctions depend on the validity of each count. See Reagan, 596 F.3d at 253; see also
Ray v. United States, 481 U.S. 736, 737, 107 S. Ct. 2093, 2094 (1987). Because the district
court remitted the special assessment, however, Budha has suffered no collateral
consequences from the unreviewed sentences, and we conclude that the concurrent sentence
doctrine is thus applicable. Cf. Stovall, 825 F.2d at 824 (applying concurrent sentence doctrine
where the district court did not impose the special assessments against the defendant on any
of the counts for which the defendant was convicted).

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AFFIRMED IN PART; VACATED IN PART.

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