USA v. Jianxiang Shi

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13593
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIANXIANG SHI,
a.k.a. Long Niu,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20421-DPG-1
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2 Opinion of the Court 22-13593
____________________
Before WILLIAM PRYOR , Chief Judge, and WILSON and L UCK , Cir-
cuit Judges.
PER CURIAM:
Jianxiang Shi appeals his convictions for fraud and misuse of
visas. 18 U.S.C. § 1546(a). Shi challenges the denial of his motion
for a judgment of acquittal and the jury instructions at his trial on
the ground, raised for the first time on appeal, that his crime of
conviction required the government to prove not only that he
made a “false claim or statement” to procure the visas, but that the
false statement was made under penalty of perjury “under the laws
of the United States of America.” We affirm.
A grand jury charged Shi with two counts of fraud and mis-
use of visas. Id. The superseding indictment alleged that, on multi-
ple dates in November 2016, Shi knowingly possessed a nonimmi-
grant visa that he knew had been procured “by means of a false
claim and false statement, and to have been otherwise procured by
fraud, and unlawfully obtained.” Shi proceeded to trial.
Natasha Ghent-Rodriguez, a visa policy analyst with the
United States State Department Bureau of Consular Affairs, testi-
fied that citizens from certain countries must obtain a nonimmi-
grant visa to enter the United States for tourism or business. Part
of the nonimmigrant visa application process includes submitting
a DS-160 form and interviewing with a consular officer. The last
page of the DS-160 form states, “All declarations made in this
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22-13593 Opinion of the Court 3
application are unsworn declarations made under penalty of per-
jury.” Ghent-Rodriguez explained that this statement is a “re-
minder that anything submitted that is false is under penalty of per-
jury.” Applicants also must disclose whether anyone assisted them.
Ghent-Rodriguez testified about Shi’s visa applications in
2014 and 2016. Shi’s 2014 application stated that he had only a Chi-
nese nationality and passport and that no one assisted him in filling
out the form. But Shi’s 2016 application stated that he held a
St. Kitts and Nevis nationality and passport and, although he listed
his secondary nationality as Chinese, he denied holding a Chinese
passport. Shi told the consular officers in 2014 that he intended to
travel to the United States for business, and in 2016 he stated that
he intended to honeymoon in Hawaii. Consular officers approved
a nonimmigrant visa attached to Shi’s Chinese passport in 2014 and
his St. Kitts and Nevis passport in 2016.
Juan Botero with United States Customs and Border Protec-
tion testified about travel entry records that revealed that Shi used
his 2014 and 2016 visas to fly to Houston, Texas, and Miami, Flor-
ida, in November 2016. In February 2017, a travel record revealed
that an individual named “Long Niu” entered the United States in
Las Vegas using a Marshall Islands passport. “Long Niu’s” finger-
prints, taken on arrival, matched Shi’s fingerprints. “Niu” and Shi
also shared the same date of birth. The State Department revoked
Shi’s visas.
The government rested its case, and Shi moved for a judg-
ment of acquittal, Fed. R. Crim. P. 29. Shi argued that the
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4 Opinion of the Court 22-13593
government failed to prove he provided false information because
it produced no evidence that he “ever saw” or participated in pre-
paring the applications. Shi also challenged the denial of his pretrial
motions to take foreign depositions and to present expert testi-
mony at trial. The district court denied Shi’s motion. Shi rested his
case without presenting any evidence and renewed his motion for
a judgment of acquittal, id., which the district court denied.
Before closing arguments, the district court discussed the
proposed jury instructions with Shi and the government. Regard-
ing the government’s proposed instruction on the definition of
“false” statements, Shi stated that he wanted to be clear that he was
“only objecting to the sentence, ‘The Government doesn’t have to
show that the governmental agency or department was, in fact, de-
ceived or misled.’” The district court sustained the objection.
In its closing argument, the government argued that the ev-
idence, including Shi’s frequent travel under multiple passports, vi-
sas, and identities, was sufficient proof that he knowingly possessed
and used fraudulent visas. Shi argued that he was a busy business-
man who delegated tasks including visa applications, so he was not
involved with preparing his 2014 and 2016 visa applications.
The district court confirmed that Shi had no other objec-
tions to the jury instructions and read the following instruction:
The Defendant can be found guilty of this crime only
if all the following facts are proved beyond a reasona-
ble doubt: (1) the defendant knowingly possessed or
used a nonimmigrant visa required for entry into the
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22-13593 Opinion of the Court 5
United States; and (2) the defendant knew that the
nonimmigrant visa had been procured by means of a
false claim or statement; and (3) the false statement or
claim was material. A statement is “false” when made
if it is untrue when made and the person making it
knows it is untrue.
The jury convicted Shi of both counts of visa fraud. 18 U.S.C.
§ 1546(a). The district court sentenced Shi to concurrent terms of
12 months of imprisonment on each count followed by 2 years of
supervised release.
Although we ordinarily review the denial of a motion for a
judgment of acquittal de novo, United States v. Laines, 69 F.4th 1221,
1229 (11th Cir. 2023), Shi argues that the evidence was legally in-
sufficient because of an issue of statutory interpretation that he
failed to raise in the district court. We review this argument for
plain error only. United States v. Wilson, 788 F.3d 1298, 1308, 1310
(11th Cir. 2015). Likewise, because Shi argues that the district court
erred by failing to give a jury instruction that he never requested,
we review this argument for plain error too. United States v. Iriele,
977 F.3d 1155, 1176–77 (11th Cir. 2020). The plain error “standard
requires that there be error, that the error be plain, and that the
error affect a substantial right.” United States v. Bennett, 472 F.3d
825, 831 (11th Cir. 2006). An error is “plain” if it is “obvious” and
“clear under current law.” United States v. Lange, 862 F.3d 1290,
1296 (11th Cir. 2017).
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6 Opinion of the Court 22-13593
Shi argues that the government failed to meet its burden of
proving the third element of the crime—that he made a “false state-
ment” in his visa application. He argues that his statute of convic-
tion, 18 U.S.C. § 1546(a), incorporates by reference a statute requir-
ing that declarations made outside of the United States state that
they were made under penalty of perjury “under the laws of the
United States of America,” 28 U.S.C. § 1746. Shi argues that, be-
cause the DS-160 forms he signed stated only that “declarations
made in this application are unsworn declarations made under pen-
alty of perjury,” without reference to the laws of the United States,
no reasonable juror could find him guilty of making a “false state-
ment” on the application. Shi also argues that the district court
erred by not instructing the jury that the false statement had to be
made under “penalty of perjury under the laws of the United
States,” based on the language in section 1746. We disagree.
Shi’s superseding indictment tracked the language of the
first paragraph of section 1546(a) of Title 18 of the United States
Code, which provides:
Whoever knowingly forges, counterfeits, alters, or
falsely makes any immigrant or nonimmigrant
visa . . . or . . . uses . . . any such visa . . . for entry into
or as evidence of authorized stay . . . in the United
States, knowing it . . . to have been procured by
means of any false claim or statement, or to have
been otherwise procured by fraud or unlawfully ob-
tained . . . shall be fined under this title or impris-
oned . . . or both.
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22-13593 Opinion of the Court 7
18 U.S.C. § 1546(a). But the fourth paragraph of section 1546(a)
criminalizes different conduct. It provides that:
Whoever knowingly makes under oath, or as permit-
ted under penalty of perjury under [28 U.S.C. § 1746],
knowingly subscribes as true, any false statement
with respect to a material fact in any applica-
tion . . . or other document required by the immigra-
tion laws . . . shall be fined under this title or impris-
oned . . . or both.
Id. (emphasis added). This fourth paragraph references a federal
statute, 28 U.S.C. § 1746, which provides that a sworn oath or affi-
davit that is executed without the United States “may . . . be sup-
ported . . . in writing . . . as true under penalty of perjury, and
dated, in substantially the following form: . . . ‘I declare (or certify,
verify, or state) under penalty of perjury under the laws of the United
States of America that the foregoing is true . . . .’” Id. (emphasis
added).
The district court did not plainly err. The plain language of
the first paragraph of section 1546(a) makes no reference to sec-
tion 1746 or the making of an “oath” under penalty of perjury, nor
does it utilize the same language as the fourth paragraph of section
1546(a). And because plain error requires “an error that is obvious
and is clear under current law[,]” “there can be no plain error
where there is no precedent from the Supreme Court or this Court
directly resolving it.” Lange, 862 F.3d at 1296 (internal quotation
marks omitted). Shi identifies no binding precedent, nor does our
research reveal any, holding that a “false claim or statement” under
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8 Opinion of the Court 22-13593
the first paragraph of section 1546(a) requires the government to
prove that the defendant made the statement under penalty of per-
jury “under the laws of the United States,” 28 U.S.C. § 1746. Shi
fails to establish that the district court plainly erred in denying his
motion for a judgment of acquittal on this ground and in not in-
structing the jury on the “penalty of perjury” language in section
1746. Shi abandons any other challenge he could make to the suffi-
ciency of the evidence against him by failing to raise it in his open-
ing brief. United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022)
(en banc).
We AFFIRM Shi’s convictions and sentence.
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