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United States v. Olatunji

argued: March 1, 1989.

UNITED STATES OF AMERICA, APPELLANT
v.
KOYA OLATUNJI A/K/A "FEMI OLATUNJI" A/K/A "OLATUNJI ADEMOLUYI"



On appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 88-00338-01.

Author: Cowen

Opinion OF THE COURT

COWEN, Circuit Judge

This appeal seeks review of an order of the district court dismissing Count Two of a four count indictment returned against defendant-appellee Koya Olatunji ("Olatunji"). The government contends that the district court erred in dismissing Count Two which charges Olatunji with mail fraud in violation of 18 U.S.C. § 1341. We agree and will reverse.

I.

This case has been described as a "marriage fraud" case in which the government asserts that Olatunji "devised and intended to devise a scheme and artifice to defraud and to obtain student aid from the United States Department of Education by means of false and fraudulent pretenses and representations . . . ." App. at 11.

The government's theory in this case is that Olatunji, a citizen of Nigeria, married a United States citizen, Sonja Wood, for the sole purpose of gaining permanent resident alien status; that Olatunji and Wood falsely represented to the Immigration and Naturalization Service ("INS") that they were living together; that they concealed from the INS that they married for the sole purpose of obtaining permanent resident alien status; and that he then obtained an Alien Registration Receipt Card (commonly known as a "green card") by submitting the false information to the INS and that he thereby received student aid to which he would not have otherwise been entitled. Id.

Accordingly, the government returned a four count indictment against Olatunji. Counts One, Three and Four all pertain to events which occurred in September and October of 1983, when Olatunji obtained permanent resident alien status from the INS. Count One charges Olatunji with conspiracy to make false statements and to conceal material facts from the INS in violation of 18 U.S.C. § 371 (1982). The underlying false statements are charged as a separate substantive offense in Count Three in violation of 18 U.S.C. §§ 1001 and 2 (1982). App. at 15.

Count Four charges Olatunji with aiding and abetting Wood in presenting to the INS a falsified "Petition to Classify Status of an Alien Relative for Issuance of Immigrant Visa" in violation of 18 U.S.C. §§ 1546 and 2 (1982). App. at 17.

Count Two of the indictment, which the district court dismissed and which is the subject of the appeal, charges Olatunji with mail fraud in violation of 18 U.S.C. § 1341 (1982).

Prior to the trial, Olatunji moved, pursuant to Fed. R. Crim. P. 12(b), to dismiss Count Two. App. at 19. Olatunji argues that the indictment fails to allege an offense under section 1341 since a mail fraud offense is alleged against the Department of Education ("D.O.E.") "by means of false and fraudulent pretenses and representations," however, "the only false statements pleaded were ones made to the Immigration & Naturalization Service . . . in the course of Olatunji's earlier efforts to obtain permanent resident alien status." Brief for Appellee at 2. Olatunji claims, therefore, that Count Two is fatally defective since it does not allege that "false and fraudulent pretenses and representations" were made directly to the D.O.E. App. at 24. As a holder of a green card issued by the INS, he argues that he was eligible for student aid as a matter of law. Consequently, the government could not allege that false statements were made to the D.O.E., the ultimate victim.

The district court granted the motion and dismissed Count Two without prejudice to the right of the United States to seek a superseding indictment. App. at 42. The court found the indictment defective "because the government fails to allege that any false statements were made to the Department of Education in order to obtain the aid." App. at 40. The government now appeals to this Court.

II.

The district court's dismissal of an indictment raises a question of law over which we have plenary review. We have jurisdiction under 18 U.S.C. § 3731 (1982).

The exact language of Count Two is crucial to the resolution of this case. The text of Count Two is as follows:

"COUNT TWO

"THE GRAND JURY FURTHER CHARGES THAT:

"1. Paragraphs one through seven of Count One are incorporated herein by reference.

"2. At all times material to this Indictment, a Pell Grant was a financial aid grant which was made from the United States Department of Education to eligible students at institutions of higher education to defray the cost of tuition and related expenses.

"3. At all times material to this Indictment, a Guaranteed Student Loan was a financial aid program for eligible students at institutions of higher education in which the United States Department of Education guaranteed to lenders that it would pay the full amount of a student's loan plus interest, in case of default, and would pay all interest and a special allowance while the student was in school and during a subsequent grace period.

"4. At all times material to this Indictment, in order to receive guaranteed student loans or Pell grants (hereinafter student aid), a student was required to be a citizen or national of the United States; a permanent resident of the United States; in the United States for other than a temporary purpose and able to provide evidence from the INS of his intent to become a permanent resident; or a permanent resident of the Trust Territory of the Pacific Islands, Guam or the Northern Mariana Islands.

"5. From in or about September, 1983 through in or about August, 1986, in the Eastern District of ...


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