Woman’s conviction for lying in passport application affirmed

The U.S. Court of Appeals for the Ninth Circuit has affirmed the conviction of a Chinese woman who conspired with her brother-in-law to lie in an application for a U.S. passport for her daughter.

The Ninth Circuit judges ruled that there was enough evidence to support the jury’s verdict against Aifang Ye on both charges of conspiracy to make a false statement on a passport application and making a false statement in a passport application.

The judges said the evidence showed that Ye and her brother-in-law, Zhenyan Cheng, conspired for Cheng to make a statement that he knew to be untrue when applying with Ye for a passport for Ye’s daughter.

The judges said Ye and Cheng knew the information Cheng would provide was false, and that she aided him in providing it.

A federal jury found Ye guilty but acquitted Cheng of the same charges on June 15, 2012.

The jurors unanimously found that Ye and Cheng went to the Saipan Passport Office and applied for a U.S. passport on behalf of a minor child, with Cheng posing as the father of the child.

Ye, through counsel David G. Banes, appealed, asking the Ninth Circuit to reverse her convictions.

Defense attorney Bruce Berline successfully defended Cheng.

Assistant attorney generals Garth R. Backe and Ross Naughton prosecuted the case.

Banes, as counsel for Ye, had argued that there was not enough evidence that Ye and Cheng entered into an unlawful agreement because there was no evidence that Ye or Cheng knew that what they agreed to do was unlawful.

The Ninth Circuit judges ruled, however, that since violating Section 1542 does not require specific intent, the jury did not need to find that either Cheng or Ye knew that what they were doing was unlawful.

The statute prohibits providing false information in a passport application.

“Ye’s sufficiency-of-the-evidence arguments challenging the conspiracy conviction therefore fail,” the judges pointed out.

Ye’s counsel also argued that her aiding and abetting conviction should be overturned because Cheng was acquitted of providing false information in a passport application and because there was not enough evidence to support her conviction for aiding and abetting the falsification of a passport application.

The judges disagreed, saying Ye’s conviction is not precluded by Cheng’s acquittal. They said a jury’s acquittal of the principal on the underlying offense charge does not preclude the jury from convicting another defendant for aiding and abetting the acquitted principal.

Moreover, the judges said, there was enough evidence to sustain Ye’s guilty verdict for aiding and abetting Cheng’s violation of the law.

The judges said it also does not matter that the jury acquitted Cheng of conspiracy and providing false information on a passport application.

The judges said Ye’s argument that the U.S. government’s failure to call certain translators as witnesses violated her rights under the Confrontation Clause is foreclosed by precedent.

According to the U.S. government, Ye came to Saipan on Sept. 12, 2011, to give birth. Her husband came with her but soon left on Sept. 16, 2011.

Under the terms of her parole, Ye was allowed to remain in the CNMI until Oct. 12, 2011.

After giving birth to her daughter on Feb. 28, 2012, Ye sought a U.S. passport for the child.

Under federal law, both of the minor’s parents or legal guardians must execute the application on behalf of the child. Both parents or legal guardians must appear personally in the passport office to execute the application.

The U.S. government, however, pointed out that there are some exceptions to this “two-party appearance rule”; among them is the option of obtaining a “notarized statement or affidavit from the non-applying parent or legal guardian, consenting to the issuance of the passport.”

The child is Ye’s second child and she understood that having two children is against Chinese law.

The prosecution alleged that, fearing trouble under Chinese law if she obtained from her husband a notarized statement or affidavit pertaining to Ye’s daughter, she decided to have Cheng pose as the father of his brother’s child.

Cheng’s brother, Xigao, has not since returned to the Commonwealth after departing the CNMI, according to Immigration and Customs Enforcement special agent Ryan K. Faulkner in an affidavit filed in court.

Special agent Faulkner stated that they discovered the filing of false statement after they conducted a surveillance of a car that dropped Cheng, Ye, and her infant child at the Saipan Passport Office on March 29, 2012.