May 17, 2017
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.
Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.
HAMILTON, CIRCUIT JUDGE.
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.
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.
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.
Factual Background and Procedural History
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.
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.
Tsasa Erdenekhuu and her Marriage to Michael Rosel
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
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.
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
The Visa Fraud Investigation and the Focus on
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.
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
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.
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
The January 2013 Calls
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.
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."
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."
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.
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
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
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
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 ...