United States v. Anouar Darif, No. 05-3377 (May 3, 2006): Mr. Darif was convicted of marriage fraud in violation of 8 U.S.C. sec. 1325(c). He arranged for a propsective wife to come to Morocco and marry him. He paid her $3,000. When he later arrived in the United States, they lived together for several months. They filed joint tax returns and opened a joint bank account. After a while, he took a job as a long distance truck driver and did not live in the same house with her. She testified that the marriage was never consummated. There was also evidence of his having an extramarital affair.
The district court instructed on the elements of the offense as follows:
First, that the defendant knowingly entered into a marriage with Dianna Kirklin;
Second, that the defendant knowingly entered into a marriage for the purpose of evading any provision of the immigration laws;
Third, the defendant knew or had reason to know that his conduct was unlawful.
Mr. Darif requested the following additional instructions, all of which were refused:
1. [To be guilty of the offense] . . . at the time of the marriage, Anouar Darif did not have the intent to establish a life with Dianna Kirklin.
2. Marriage fraud may be committed by one party to the marriage, or a person who arranged the marriage, yet the other spouse may genuinely intend to marry. If one spouse intended the marriage to be fraudulent, when the ceremony took place, but the other spouse intended it to be genuine, then the one committed marriage fraud but not the other.
3. The marriage is legitimate so long as Anouar Darif intended to establish a life with his spouse at the time he married her, even if securing an immigration benefit was one of the factors that led him to marry her.
4. A marriage between a foreign person and a United States citizen is not required to be more conventional, or successful, than a marriage between U.S. citizens.
His basic position was that there was an actual marriage, despite his poor motive for entering the marriage. Although the government seemed to have some evidence that the marriage was a sham, he wanted to argue that his intent to marry was genuine.
The Seventh Circuit found requests 1 and 3 to be mistatements of the law, 2 to be covered by the district judge's instructions, and 4 "simply irrelevant."
Although the Court stated that 1 and 3 were mistatements under its precedents, it cited no Circuit case law in support of that proposition. Although it cited cases from the Eighth and Ninth Circuits, it did not acknowledge that they supported Mr. Darif's position, especially United States v. Tagalicud, 84 F.3d 1180, 1185 (9th Cir. 1996). As Tagalicud pointed out, referencing the Book of Genesis, a marriage is no less a marriage even though one or both the parties may have motives that are less than pure.
It is not stated that Mr. Darif made any challenge to the court's instructions. One wonders how an instruction that allows liability for what Mr. Darif "had reason to know" satisfies a criminal intent requirement.