United States v. Rebmann Ongaga
2016 U.S. App. LEXIS 6697
5th Cir.2016Background
- Four Kenyan nationals (Andrew Mokoro, Herman Ogoti, Alfonso Ongaga, and Rebmann Ongaga) were indicted on charges including conspiracy to commit marriage fraud, marriage fraud, visa/document fraud, witness tampering, and unlawful procurement of naturalization. A second superseding indictment followed a prior indictment.
- Evidence showed the defendants entered sham marriages with a network of U.S. women and assisted others (including arranging travel to Kenya and preparing immigration paperwork) to obtain immigration benefits.
- A jury convicted all defendants on most counts after a six-day trial; one witness-tampering count was acquitted. Defendants appealed various convictions and timeliness rulings.
- The government relied on overt acts (including efforts to have two women travel to Kenya to marry) occurring within the five-year statute of limitations to support conspiracy charges.
- The district court denied Batson challenges to a peremptory strike; defendants also raised challenges of constructive amendment and sufficiency of evidence for visa-fraud counts.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of conspiracy (Count One): single ongoing conspiracy and overt act within 5 years | Single, ongoing conspiracy existed; overt acts (e.g., arranging travel/marriages) occurred within limitations period | Each defendant’s participation ended when they married years earlier, so no overt act within 5 years; Count One untimely | Court: Affirmed — evidence supported a single ongoing conspiracy and overt acts within the limitations period, so Count One timely |
| Timeliness of marriage fraud (Counts Two & Three): whether marriage fraud is continuing | Charges timely (implicitly) or at least preserved issues varied; government conceded time-bar on these specific counts | Marriage fraud is not continuing; marriages dated >5 years before indictment, so counts barred by statute of limitations | Court: Reversed/vacated Ogoti’s and Rebmann’s marriage-fraud convictions — §1325(c) is not a continuing offense; limitations ran when marriages occurred |
| Constructive amendment & sufficiency for visa fraud (Counts Six & Seven under §1546) | Indictment alleged false certification of a "bona fide" marriage; government proved false certification on Form I-751; same theory of falsity | Proof at trial showed a different specific statement than the indictment alleged; constructive amendment and insufficient proof of falsity | Court: Affirmed — no constructive amendment (terms synonymous; same theory); evidence sufficient to convict on false I-751 certifications |
| Batson challenge to peremptory strike | Strike was race-neutral (demeanor, immigration history, statements) and legitimately explained | Strike was pretextual; court failed to make explicit factual findings at Batson step three; challenge should have succeeded | Court: Affirmed — district court implicitly made credibility findings, gave deference, and did not clearly err in rejecting Batson challenge |
Key Cases Cited
- Toussie v. United States, 397 U.S. 112 (Sup. Ct.) (statutes of limitations construed in favor of repose; caution before treating offenses as continuing)
- United States v. Tavarez‑Levario, 788 F.3d 433 (5th Cir. 2015) (analysis of continuing-offense doctrine and when limitations begin)
- United States v. Rojas, 718 F.3d 1317 (11th Cir. 2013) (holding marriage fraud under §1325(c) is not a continuing offense)
- United States v. Jara‑Favela, 686 F.3d 289 (5th Cir. 2012) (no constructive amendment where alleged and proved misstatements were synonymous)
- Musacchio v. United States, 136 S. Ct. 709 (Sup. Ct.) (failure to raise limitations defense at or before trial limits appellate review; plain‑error framework)