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United States v. Edwards

United States Court of Appeals, Seventh Circuit

August 24, 2017

United States of America, Plaintiff-Appellee,
Enkhchimeg Ulziibayar "Eni" Edwards, Defendant-Appellant.

          Argued May 17, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 CR 421-1 - Richard A. Posner, Circuit Judge, sitting by designation.

          Before Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.


         Defendant-Appellant Enkhchimeg Ulziibayar Edwards goes by the nickname Eni Edwards. She was charged with two counts of witness tampering in violation of 18 U.S.C. § 1512(b)(3) (Counts I and II) and two counts of making false statements on an official questionnaire for federal employment in violation of 18 U.S.C. § 1001(a)(2) (Counts III and IV). Ajury convicted Edwards on all four counts. The trial judge, who was skeptical about both the strength of the government's evidence and whether the case merited criminal prosecution, imposed a below-guide-line sentence of two years of probation and a $2, 000 fine.

         Edwards has appealed her convictions, raising three issues. She argues that the witness tampering statute, § 1512(b)(3), is void for vagueness. She also argues that the evidence was insufficient to support any of the four counts of conviction. We reject both of these arguments and affirm Edwards's false statement convictions, Counts III and IV.

         We address first, though, Edwards's strongest argument, which is that the jury instructions for the witness tampering charges were faulty and that the error denied her a fair trial on Counts I and II. On that issue, we agree with Edwards. The trial judge refused both sides' request to instruct the jury on one essential element of the charges. As this case was framed under § 1512(b)(3), Edwards could be convicted only if she "corruptly" attempted to persuade another person to hinder, delay, or prevent communication of information to federal criminal investigators. The instructions given at trial failed to include the corruption element. They could have allowed the jury to convict Edwards of engaging in conduct that, under Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), did not constitute corrupt persuasion and therefore did not amount to criminal witness tampering. We cannot say this error was harmless, so we vacate Edwards's convictions on Counts I and II and remand for a possible new trial on those witness tampering counts, if the government opts to pursue them. We also vacate Edwards's sentence on all counts and remand for resentencing.

         I. Factual Background and Procedural History

         To explain how this unusual prosecution came about, we first sketch Edwards's personal history and her history of government employment. Edwards is a naturalized United States citizen who emigrated from Mongolia in 1996. She applied in 2008 to become an officer with United States Customs and Border Protection (CBP). She was hired in 2009. Edwards went through a federal background investigation in 2009 and a reinvestigation in 2014.

         To facilitate these investigations, Edwards was required to submit Standard Form 86, Questionnaire for National Security Positions (SF-86), and supplemental forms. The 2014 SF-86 required her to answer truthfully, among many other things, whether she "EVER provided financial support for any foreign national." Edwards answered no. A supplemental questionnaire asked Edwards in 2014 whether she "ever helped anyone enter or stay in the U.S. illegally." Again Edwards answered no. The government charged, and the jury found, that both answers were false. The path to those findings began more than fifteen years ago.

         A. Tsasa Erdenekhuu and her Marriage to Michael Rosel

         Back in 2001, years before Eni Edwards applied to work for CBP, her Mongolian cousin Tsansanchimeg Erdenekhuu, known as "Tsasa" and sometimes as "Tasha, " entered the United States on a student visa. Tsasa violated the terms of her visa and was eventually arrested by immigration authorities and placed in removal proceedings. Edwards posted a cash bond to secure Tsasa's release, using funds from Edwards's parents. Tsasa was released to Edwards's custody.

         In early 2003, Edwards introduced Tsasa to her friend and co-worker, Michael Rosel. According to Rosel's later testimony at Edwards's 2016 trial, he saw Tsasa casually a couple of times. Edwards then surprised him by asking him to marry Tsasa so she could remain in the United States. Rosel testified that when Edwards floated the idea of a marriage, he had no romantic interest in the much younger Tsasa, and she had expressed no romantic interest in him. He also testified that he told Edwards he was concerned about the potential illegality of the arrangement, but that Edwards assured him he had nothing to worry about.

         According to Rosel's testimony, Edwards badgered him over several months about marrying Tsasa. Eventually Rosel gave in. He and Tsasa were married in July 2003 in Las Vegas, Nevada. Shortly after the wedding, the couple applied for a "green card" for Tsasa to make her a lawful permanent resident of the United States as the spouse of a U.S. citizen. The marriage did not last long, though. Rosel abandoned the green card petition and the couple filed for divorce. In May 2004 the marriage was dissolved and Tsasa and Rosel went their separate ways.

         B. The Visa Fraud Investigation and the Focus on Edwards

         We now turn to a completely different episode, but the one that first led to the investigation of Edwards and ultimately to her criminal trial. In 2008, a Chicago-based organization called the American Mongolian Association (AMA) invited a group of Mongolian throat singers to perform at a cultural festival. Defendant Edwards had been volunteering with the organization, and many of the throat singers listed her contact information on their visa applications. Edwards communicated with the consular section at the United States embassy in Ulaanbaatar, Mongolia. She identified herself as a vice president of the AMA and advocated for the applicants. Ultimately, the embassy official responsible for reviewing the petitions denied most of them. Based in part on his past experience with the AMA, the official believed the organization was attempting to facilitate visa fraud.

         The embassy referred the matter to the Diplomatic Security Service, an investigative branch of the U.S. Department of State. In July 2012, Special Agent Douglas Miller got in touch with a contact at the Chicago office of CBP. That person introduced Miller to Edwards, who by that time was employed as a CBP officer at O'Hare International Airport. Unaware of Edwards's past involvement with the AMA, Miller asked her whether she was willing to help with the visa fraud investigation. Edwards agreed to help with English-Mongolian translation.

         Some weeks later, just before a briefing with Edwards about the investigation, Special Agent Miller came across a file identifying Edwards as an AMA vice president. He was stunned. He later testified that "at no point in the investigation" had Edwards informed the agency about her involvement with the AMA. Edwards did not attend the briefing. The investigation moved forward, but the focus then shifted to Edwards herself.

         Investigators acquired Edwards's bank records and discovered that she maintained a joint account with her cousin Tsasa. By reviewing Tsasa's immigration file, investigators learned of the 2003 marriage between Tsasa and Rosel, which Special Agent Miller described as having "significant indicators ... for marriage fraud." Miller located Rosel and interviewed him. In what later became the focus of the witness tampering charges in Counts I and II, Miller asked Rosel to call Edwards on a recorded line and to ask her questions that the investigators had prepared. Rosel reluctantly agreed. He made two such calls on January 8 and 9, 2013.

         C. The January 2013 Calls

         During the first call on January 8, Rosel told Edwards that State Department agents had contacted him and asked about Tsasa. Edwards did not immediately advise Rosel to cooperate fully. She advised Rosel to tell the agents that he and Tsasa "met at a common friend's party we dated, we got married, it didn't work out... we got divorced, and I haven't... talked to her or met with her at all since then." Edwards repeated this advice many times in the 23-minute call. She added: "It's not like we're lying, you know, we didn't do anything ... out of [the] ordinary. ... Tell them ... if I'm willing to answer I'll answer, if I'm not willing to answer I'm not gonna answer, I wanna talk to my lawyer." Edwards complained that she had become the target of the State Department investigation, a fact she attributed to her law-enforcement position at CBP and her Mongolian origins.

         During the follow-up call on January 9, Rosel told Edwards that he had spoken with Special Agent Miller and that the investigators "seem to know an awful lot of information." Edwards repeated her advice from the previous call: "Tell them, hey, we legally got married, we are both adults, we had ... mutual consent... we got divorced .... She didn't get nothing out of me, I didn't get nothing out of her. ... We had a normal ... relationship. Ups and downs. That's it." Rosel pressed Edwards, saying that "the truth was we got married so she wouldn't get deported and I got the sex out of it, I just don't wanna try to come up with a lie." Edwards did not take the bait to confirm that the marriage was fraudulent or that any story to the contrary would be a lie. She replied: "In any relationship, when somebody's married or girlfriend/boyfriend, they have sex, okay that's a normal, legal thing. ... If you want them to go away, you need to keep it simple."

         Rosel asked Edwards whether he should avoid mentioning her name to the investigators. Edwards said no: "No, it's fine, tell them, hey, Eni's my friend from my old job. ... You don't have to lie about that because we worked together. ... And [tell them] I think she brought [Tsasa] to one of our parties ... and that's how we met." As the call ended, Edwards cautioned: "Don't let them intimidate you or try to put some stuff into your mouth. ... Simple facts are simple facts, that's it, and the less you talk to them and the less time you spend with them [the] better for you, Mike."

         At trial, Rosel testified that Edwards did not accurately describe the nature of his relationship with Tsasa during these recorded telephone conversations. He testified that if he had followed her advice and told investigators the relationship was normal, that would have been a lie. Rosel testified that Edwards was aware the marriage was a sham-that in fact she had arranged the marriage. However, he also admitted that he saw Tsasa on a few social occasions before their wedding, that the two had one romantic encounter, and that at the time of the marriage he hoped their relationship would evolve into something meaningful.

         Edwards testified in her own defense. She cast Rosel's marriage to Tsasa in a very different light. Edwards said that she introduced Tsasa to Rosel, believing the connection would help Tsasa "lead a normal life here in this country." She hoped the relationship would evolve. She said that Rosel and Tsasa "went out a couple of times" before their wedding and that the two had been intimate. She believed the couple had a sexual relationship, though Rosel had testified that they did not and that this was one of the reasons he and Tsasa agreed to end the marriage.

         As explained below, one essential element of the witness tampering charges was that Edwards must have acted "corruptly" in trying to persuade Rosel how to answer questions from investigators. Edwards testified that she did not intend through the telephone conversations to pressure Rosel to change his story or to lie. Edwards said she felt she was "having [a] conversation with a friend, and ... was trying to help him out." Under cross-examination, however, Edwards admitted that she asked Rosel to marry Tsasa so she could stay in the country legally[1]

         D. Procedural History

         The government charged Edwards in July 2014 with two counts of witness tampering in violation of 18 U.S.C. § 1512(b)(3) stemming from her statements to Rosel during their January 2013 phone conversations. The government later added two counts of false statements in violation of 18 U.S.C. § 1001(a)(2). Those latter counts were based on Edwards's 2014 SF-86 and supplemental questionnaire answers that she had never provided financial support for a foreign national and never helped anyone enter or stay illegally in the United States. The government viewed these statements as lies based on evidence that Edwards had supported Tsasa (a non-resident alien) financially and arranged Tsasa's marriage with Rosel.

         Edwards moved to dismiss the witness tampering counts on the theory that the statute, § 1512(b)(3), is void for vagueness, both facially and as applied to Edwards. The district court denied that motion, and the case proceeded to trial. In February 2016, a jury convicted Edwards on all four counts. The court sentenced ...

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