USA v. Wei Lin

Filing

FILED OPINION (ALEX KOZINSKI, RAYMOND C. FISHER and PAUL J. WATFORD) AFFIRMED IN PART, REVERSED IN PART AND REMANDEDThe report is therefore irrelevant to our analysis, and we deny Lin s request to take judicial notice of it. (See Opinion for full text) Judge: PJW Authoring. FILED AND ENTERED JUDGMENT. [8914646]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 11-10576
D.C. No.
1:11-cr-00008RVM-1

WEI LIN,
Defendant-Appellant.
OPINION

Appeal from the United States District Court
for the District of the Northern Mariana Islands
Ramona V. Manglona, Chief District Judge, Presiding
Argued and Submitted
October 10, 2013—Honolulu, Hawaii
Filed December 24, 2013
Before: Alex Kozinski, Chief Judge, and Raymond C.
Fisher and Paul J. Watford, Circuit Judges.
Opinion by Judge Watford

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UNITED STATES V. LIN
SUMMARY*

Criminal Law
The panel reversed the defendant’s convictions under 18
U.S.C. § 1546(a) (fraud and misuse of visas, permits, and
other documents), affirmed his convictions under 18 U.S.C.
§ 1001(a)(2) (false statement to a federal agent), and
remanded for further proceedings.
The panel held that § 1546(a) cannot be read to
criminalize the mere possession of an unlawfully obtained
Commonwealth of Northern Mariana Islands driver’s license,
and that because the government presented no evidence that
the defendant possessed any other document covered by the
statute, his § 1546(a) convictions cannot stand.
The panel held that there was sufficient evidence to
support the § 1001(a)(2) conviction.

COUNSEL
Mark B. Hanson, Saipan, Commonwealth of the Northern
Mariana Islands, for Defendant-Appellant.
Stephen F. Leon Guerrero (argued), Assistant United States
Attorney, and Alicia A.G. Limtiaco, United States Attorney,
United States Attorney’s Office, Hagåtña, Guam, for
Plaintiff-Appellee.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
WATFORD, Circuit Judge:
Wei Lin, a Chinese national, unlawfully obtained two
driver’s licenses issued by the Commonwealth of the
Northern Mariana Islands (CNMI). The main issue on appeal
is whether Lin’s possession of those licenses may be
punished under 18 U.S.C. § 1546(a).
I
Section 1546, titled “Fraud and misuse of visas, permits,
and other documents,” criminalizes a diverse range of
conduct, most of it tied to immigration-related documents.
As relevant to the charges brought against Lin, the statute
required the government to prove that he (1) possessed one of
the documents specified in the statute and (2) knew the
document had been obtained unlawfully or fraudulently.1

1

The first paragraph of 18 U.S.C. § 1546(a), under which Lin was
charged, provides:
Whoever knowingly forges, counterfeits, alters, or
falsely makes any immigrant or non-immigrant visa,
permit, border crossing card, alien registration receipt
card, or other document prescribed by statute or
regulation for entry into or as evidence of authorized
stay or employment in the United States, or utters, uses,
attempts to use, possesses, obtains, accepts, or receives
any such visa, permit, border crossing card, alien
registration receipt card, or other document prescribed
by statute or regulation for entry into or as evidence of
authorized stay or employment in the United States,
knowing it to be forged, counterfeited, altered, or
falsely made, or to have been procured by means of any

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At trial, Lin did not contest the second element. Lin
unlawfully obtained two authentic CNMI driver’s licenses
issued in his own name. He knew the first license had been
obtained unlawfully because he paid a bribe to get it. After
a police officer confiscated that license during a traffic stop,
Lin obtained a duplicate license. Lin knew the duplicate had
been obtained unlawfully because to get it, he submitted an
affidavit to the CNMI Bureau of Motor Vehicles falsely
stating that he had lost the original license at the beach.
Lin did contest the first element of the offense: He
argued that a CNMI driver’s license is not one of the
documents specified in § 1546(a). Those documents consist
of the following: “any immigrant or non-immigrant visa,
permit, border crossing card, alien registration receipt card,
or other document prescribed by statute or regulation for
entry into or as evidence of authorized stay or employment in
the United States.” 18 U.S.C. § 1546(a) (emphasis added);
see United States v. Krstic, 558 F.3d 1010, 1015–16 (9th Cir.
2009).
The government contends a driver’s license is covered by
the italicized “other document” clause, but it plainly is not.
The government has not identified any federal statute or
regulation that prescribes a driver’s license as one of the
documents authorizing entry into the United States. See
8 U.S.C. §§ 1181(a), 1182(a)(7); 8 C.F.R. §§ 211.1(a), 212.1,
212.6. Nor has the government identified any federal statute
or regulation designating a driver’s license as evidence of
authorization to stay or work in the United States. The

false claim or statement, or to have been otherwise
procured by fraud or unlawfully obtained [commits an
offense under this section].

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government merely notes that a driver’s license is one of the
documents employers may use to help verify the employment
authorization status of prospective employees, as mandated
by the Immigration Reform and Control Act of 1986 (IRCA).
See 8 U.S.C. § 1324a(b)(1); 8 C.F.R. § 274a.2(b)(1)(v). But
both IRCA and its implementing regulation make clear that
a driver’s license may be used to establish only a prospective
employee’s identity.
To establish “employment
authorization,” the relevant status for purposes of § 1546(a),
an employee must present a separate document, such as a
passport, resident alien card, or social security card. 8 U.S.C.
§ 1324a(b)(1); 8 C.F.R. § 274a.2(b)(1)(v).
The government’s reading of § 1546(a) would render
much of § 1546(b) superfluous, a result we should seek to
avoid. See, e.g., Corley v. United States, 556 U.S. 303, 314
(2009). According to the government, § 1546(a)’s “other
document” clause covers all identification documents because
they can be used to verify a prospective employee’s identity
as part of the IRCA-mandated verification process. But
Congress separately addressed that process in § 1546(b).
Section 1546(b) prohibits the use during the verification
process of an “identification document” that the defendant
knows or has reason to know “was not issued lawfully for the
use of the possessor” or “is false.” 18 U.S.C. § 1546(b).
Because § 1546(a) already prohibits both the possession and
use of the documents it covers, the government’s reading of
§ 1546(a) would leave no work to be done by § 1546(b).
For these reasons, § 1546(a) cannot be read to criminalize
the mere possession of an unlawfully obtained CNMI driver’s
license. Because the government presented no evidence that
Lin possessed any other document covered by the statute,
Lin’s § 1546(a) convictions cannot stand. We are not

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persuaded that Lin “waived” his right to bring this challenge,
as the government contends. Lin moved post-trial for a
judgment of acquittal under Federal Rule of Criminal
Procedure 29, asserting the same evidentiary deficiency
we’ve discussed. Even if we viewed Lin’s challenge as a
purely legal one—asserting that the indictment fails to state
an offense—such a challenge may be raised for the first time
on appeal, since “a judgment founded upon a complaint
which does not state a crime cannot be sustained.” Johnson
v. United States, 206 F.2d 806, 808 (9th Cir. 1953); see also
Fed. R. Crim. P. 12(b)(3)(B); United States v. Lo, 231 F.3d
471, 481 (9th Cir. 2000).
II
The remaining question is whether Lin’s other
conviction—for making a false statement to a federal agent
in violation of 18 U.S.C. § 1001(a)(2)—may stand. Lin
contends the government introduced insufficient evidence to
sustain this conviction as well.
Viewing the evidence in the light most favorable to the
government, a rational jury could find Lin guilty beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319
(1979). The government’s proof at trial established the
following. A federal immigration agent approached Lin in a
parking lot and asked him, through a translator, whether he
had any “identification documents.” Lin said he did not.
When the agent asked Lin about the folded papers visible in
one of his pockets, Lin produced a photocopy of the duplicate
CNMI driver’s license. The agent again asked Lin whether
he had any “identification documents,” and Lin again said he
did not, this time adding that his driver’s license had been
confiscated. The agent thereafter took Lin to the local field

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office, where another agent inventoried Lin’s possessions,
including his wallet. Inside the wallet, the agent found the
duplicate CNMI driver’s license.
Lin attacks the sufficiency of the government’s evidence
on two fronts. First, he contends there was insufficient proof
that he actually had the license on his person when he
answered the agent’s questions. But a rational jury could
infer from the sequence of events that Lin had his
wallet—and thus the license—on his person. The jury may
not have been compelled to draw that inference, but it could
reasonably have done so based on the evidence presented at
trial. That remains true even if we were to consider the police
report Lin has submitted on appeal, which states that the
agents drove Lin from the parking lot to his residence before
taking him to the field office. Despite having the police
report at the time of trial, Lin never argued to the jury that he
picked up his wallet at home on the way to the field office.
The report is therefore irrelevant to our analysis, and we deny
Lin’s request to take judicial notice of it.2
Second, Lin argues that the agent’s questions regarding
“identification documents” were vague and may have been
incorrectly translated, leading Lin to misunderstand what the
agent was asking. A rational jury could conclude that Lin
knew what the agent meant by “identification documents.”
When asked a second time whether he had any such

2

We also reject Lin’s contention that the prosecutor committed
misconduct during closing arguments by arguing that Lin had the wallet
on his person when he answered the agent’s questions. Prosecutors are
permitted to “argue reasonable inferences based on the evidence,” United
States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993), which is all the
prosecutor did here.

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documents—after producing a photocopy of the duplicate
CNMI driver’s license—Lin stated that he didn’t have a
driver’s license because it had been confiscated by an
immigration officer. Based on that answer, a rational jury
could infer that Lin knew what type of “identification
documents” the agent’s questions referred to, and that Lin
knowingly and willfully lied when he told the agent he had
none.
*

*

*

We reverse Lin’s convictions under 18 U.S.C. § 1546(a),
affirm his conviction under 18 U.S.C. § 1001(a)(2), and
remand the case to the district court for further proceedings.
AFFIRMED in part, REVERSED in part, and
REMANDED.

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