Académique Documents
Professionnel Documents
Culture Documents
No. 09-4429
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Peter J. Messitte, Senior District
Judge. (8:08-cr-00094-PJM-1)
Argued:
Decided:
PER CURIAM:
Patrick G. Tzeuton (Tzeuton) appeals his convictions upon
one count of conspiracy to commit immigration fraud pursuant to
18 U.S.C. 371, seven counts of immigration fraud pursuant to
18 U.S.C. 1546(a), and one count of obstruction of an official
proceeding pursuant to 18 U.S.C. 1512(c)(2), as well as his
sentences.
I.
Tzeuton,
known
as
the
(hereinafter
(Nzone),
with
an
attorney,
Law
the
Offices
of
Tzeuton
law
originally
Tzeuton
as
practiced
his
Patrick
through
Tzeuton
firm).
Tzeutons
legal
law
assistant,
&
Henri
co-defendant,
but
law
Associates
Marcel
worked
Nzone
firm
was
Nzone
closely
not
an
matters
before
the
Immigration
and
Naturalization
Service (INS).
Tzeuton and Nzone were indicted upon allegations that they
conspired to prepare[] false and fraudulent Applications for
Asylum
and
fraudulent
these
for
Withholding
supporting
false
and
of
affidavits
fraudulent
Removal,
and
make
documents,
applications,
false
and
and
present[]
affidavits,
and
The indictment also alleged that Tzeuton and Nzone sold false
documents
to
aliens
applying
for
asylum,
notarized
and
proceeded to trial.
During trial, seven former clients of the Tzeuton law firm,
Nzone, and ICE Special Agent Chris Melia (Melia) testified for
the prosecution.
Tzeuton
with
conspired
them
to
make
false
statements
under
corruptly
obstruct,
influence,
and
impede
immigration
U.S.
fictitious
Department
documents.
of
Justice,
(J.A.
876).
and
to
sell
Testimony
at
false
and
trial
also
asylum
officers
and
immigration
court
proceedings
by
The
jury
convicted
Tzeuton
on
all
counts.
Alleging
II.
A.
1.
Tzeuton
first
argues
that
the
prosecution
engaged
in
proposed
defense
witness,
and
that
the
district
court
cases to Tzeuton.
Tzeuton contended in his motion that when the governments
case
was
almost
complete,
the
prosecution
alleged
that
been
banned
from
certain
immigration
courtrooms
for
false
to
government
[Kabangu]
counsel
the
counsel
was
timing
knew
scheduled
proffered
to
the
of
the
[this
to
disclosure,
information]
testify.
district
court
alleging
two
(J.A.
Tzeuton
weeks
552).
that
that
before
Defense
Kabangu
would
However, no
foundation
for
any
of
Moreover, with no
Tzeutons
claims
about
third-hand
testimony
from
Tzeutons
counsel.
(J.A.
wouldnt
have
testified
anyway,
given
his
vulnerability
to
But [the
review
prosecutorial
the
denial
misconduct
of
for
motion
clear
to
error.
dismiss
United
based
on
States
v.
by
United
States
v.
Wilson,
205
F.3d
720
(4th
Cir.
2000).
In order to prove reversible prosecutorial misconduct, a
defendant must first show that the prosecution acted improperly.
Improper intimidation of a witness may violate a defendants
due process right to present his defense witnesses freely if the
intimidation
amounts
to
substantial
government
interference
(quoting United States v. Hammond, 598 F.2d 1008, 1012 (5th Cir.
1979)).
Next,
if
defendant
is
able
to
establish
of
whether
it
was
prejudicial
or
harmless
error.
district
court
did
not
err
in
finding
that
the
Kabangu
in
open
court,
in
front
of
defense
counsel.
In United
that,
Tzeuton
was
testify.
even
not
if
the
unduly
Defense
prosecution
prejudiced
counsel
proffered
by
had
acted
Kabangus
that
Kabangu
improperly,
failure
would
to
have
to
applications.
create,
sell,
and
submit
fraudulent
asylum
2.
Tzeuton
prosecution
argues
also
closing argument.
for
the
committed
first
time
prosecutorial
on
appeal
that
misconduct
the
during
you;
want
to
try
to
change
the
subject;
are
has
the
burden
of
that
(1)
an
error
occurred; (2) the error was clear or obvious; and (3) the
error affected the defendants substantial rights. Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009).
9
As
set
reversible
forth
in
the
prosecutorial
previous
section,
misconduct
[t]he
generally
test
for
has
two
conviction
Wainwright,
477
U.S.
denial
168,
of
181
due
process.
Darden
v.
(1986)
(internal
quotations
omitted).
Although
impugning,
it
is
directly
important
or
that
through
10
prosecutors
implication,
the
refrain
from
integrity
or
may strike hard blows and may prosecute with earnestness and
vigorindeed, he should do so. Berger v. United States, 295
U.S. 78, 88 (1935).
Furthermore,
if
we
assume
that
the
remarks
were
allegation
vouched
for
or
merit.
Although
that
bolstered
[i]t
the
Nzones
is
prosecution
testimony
impermissible
is
for
prejudicially
also
without
prosecutor
to
(4th
Cir.
credibility
of
1997),
a
the
portion
prosecutions
of
11
Nzones
remark
testimony
about
the
was
not
reversible error.
credibility
was
confined
only
to
that
statement.
B.
Tzeuton next argues that the district court erred when it
denied his motion for an evidentiary hearing as to whether an
ICE agent called and threatened Kabangu. On appeal, this Court
reviews a district courts denial of an evidentiary hearing in
support of a motion for a new trial for an abuse of discretion.
United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995).
Just
as
the
district
court
has
broad
discretion
in
to
(internal
Connolly,
hold
an
citations
504
F.3d
evidentiary
omitted);
206,
220
hearing
see
(1st
12
on
also
Cir.
the
United
2007)
motion.
Id.
States
v.
(holding
that
gained
proceedings
by
makes
trial
the
judge
court
well
over
the
course
qualified
to
of
rule
the
on
Tzeutons
district
court
affidavit
from
motion
found
for
that,
Kabangu
or
in
his
an
evidentiary
part
lawyer
because
and
hearing.
there
only
was
The
no
third-hand
78
Fed.
Appx.
223,
225
(4th
Cir.
2003)
(unpublished)
to
deny
motion
for
an
evidentiary
13
hearing
when
the
C.
Tzeuton next contends that the district court abused its
discretion by giving the jury a willful blindness or Jewell
instruction, 2 and that the district court abused its discretion
by
refusing
to
propound
modified
willful
blindness
[c]ourts
often
are
wary
of
giving
willful
(4th
Cir.
1999)
(internal
quotations
omitted).
Courts
the
jury
to
impute
the
element
of
The instruction
knowledge
to
the
14
If the
evidence
of
supports
defendant
and
both
actual
deliberate
knowledge
ignorance,
on
a
the
part
willful
the
blindness
that Tzeuton was not aware of the criminal activity that was
occurring
around
him.
For
example,
during
closing
argument
Tzeuton
who
documents.
may
have
committed
fraud
and
prepared
fraudulent
onto
his
employees,
criminal activity.
claiming
he
was
unaware
. . .
of
any
but
refrained
from
obtaining
the
final
D.
Finally,
during
Tzeuton
sentencing
by
contends
(1)
that
failing
the
to
district
consider
court
all
of
erred
the
leader
of
the
criminal
activity
pursuant
to
U.S.S.G.
3B1.1(a).
Pursuant to Gall v. United States, 128 S. Ct. 586, 590
(2007), we review the sentences imposed by the district court
under a deferential abuse of discretion standard. United States
v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008).
In assessing
16
the
courts
factual
findings
for
clear
error
and
its
522,
527
(4th
Cir.
2006)).
Clear
error
occurs
when,
entire
evidence
is
left
with
the
definite
and
firm
1.
When determining an appropriate sentence, a district court
need
not
robotically
tick
through
3553(a)s
every
sentencing
court
considered
the
3553(a)
factors
with
478
(internal
F.3d
652,
657
citation omitted).
(4th
Cir.
2007)
quotations
and
The
advisory
reasonable.).
Guidelines
range
is
presumptively
factors
as
they
applied
to
Tzeuton,
including
the
The
district
the
court
noted
the
nature
and
circumstances
of
with
limited
knowledge
of
either
the
language
or
the
he
did
considered
here
the
was
need
wrong.
to
(J.A.
provide
853).
just
The
court
punishment
also
for
the
the
need
to
afford
adequate
deterrence,
see
lawyers
activity.
who
(J.A.
would
854).
be
The
involved
record
in
thus
the
same
kind
of
shows
that
district
2.
Tzeuton
next
challenges
the
district
courts
factual
its
enhancement.
defendants
imposition
Under
offense
level
of
the
3B1.1(a),
by
four
a
if
3B1.1(a)
court
the
may
sentencing
increase
defendant
was
a
an
337.
participant
is
person
who
is
criminally
responsible for the commission of the offense, but need not have
19
determination
that
he
was
an
or
leader,
but
sentencing,
the
district
court
questioned
the
criminal
The
participants
district
court
in
found
this
that
conspiracy.
Nzone
and
(J.A.
the
other
in
enhancement
criminal
because
activity
[t]hey
within
knew
the
they
meaning
were
of
the
fabricating
district
court
did
not
clearly
err
in
finding
himself,
as
principal,
20
should
be
included
that
First,
as
1990).
Furthermore,
courts
conclusion
clients
to
lie.
the
record
supported
that
several
employees
Koumba
Tchiam
(Tchiam),
the
knowingly
a
former
district
coached
client,
testified that Nyoh asked her to get a letter from her sister
pretending to be her mother to support her false application
that
he
typed
up.
(J.A.
804).
Tchiam
also
testified
that
participation
in
the
conspiracy.
Even
though
not
III.
For the foregoing reasons, we hold that the district court
did
not
err
in
denying
Tzeutons
motion
to
dismiss
and
no
The
for
an
evidentiary
hearing
21
or
in
giving
the
jury
willful
blindness
instruction,
unreasonable sentence.
and
did
not
impose
an
sentences are
AFFIRMED.
22