USA v. Vongphakdy

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CRIMINAL ACTION NO. 3:21-CR-00184-KDB-DSC
THIS MATTER is before the Court on the United States’ Motion in Limine that requests
various rulings on the admissibility of certain evidence in the upcoming trial on May 2, 2022.
(Doc. No. 37). For the reasons discussed below, the Court will GRANT the Motion.
I. RELEVANT BACKGROUND
On July 13, 2011, Mr. Vongphakdy appeared for an interview and applied for
naturalization on form N-400 in which he certified that he had not committed a crime or offense
for which he had not been arrested. (Doc. No. 26). At the end of the interview, he signed the
application for naturalization in the presence of a U.S. Citizenship and Immigration Services
(“USCIS”) officer and swore under penalty of perjury that the contents of his application were true
and correct. (Doc. No. 1). On the same day, the USCIS approved the application for naturalization.
(Doc. No. 26). On August 3, 2011, Mr. Vongphakdy participated in the naturalization ceremony
and was granted a Certificate of Naturalization. (Doc. No. 1).
On November 6, 2013, Mr. Vongphakdy was arrested for child sex offenses alleged to have
occurred in 2008 and 2009. On that same date, Mr. Vongphakdy reportedly told officers that he
had touched a child’s vaginal area outside the child’s clothing. The State of North Carolina
)
UNITED STATES OF AMERICA, )
)
)
v. ) ORDER
)
KHEUNGKHAM VONGPHAKDY, )
)
Defendant. )
)
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subsequently charged him with two counts of a second-degree sex offense with a child. (Doc. No.
26). On April 2, 2014, Mr. Vongphakdy pleaded guilty in state court to the charged conduct in
violation of North Carolina General Statute § 14-27.5. He was then sentenced to a term of
imprisonment of between 116 and 158 months for these convictions.
On July 20, 2021, the United States charged that on or about August 3, 2011, Mr.
Vongphakdy “knowingly procured, contrary to law, his naturalization and United States
citizenship, that is, in his Application for Naturalization (N-400) to become a United States citizen,
he provided false and fraudulent information as to material facts about his criminal history by
falsely representing that he had not committed a crime or offense for which he was not arrested”
in violation of 18 U.S.C. § 1425(a). (Doc. No. 1).
II. DISCUSSION
The United States moves for an order allowing the introduction of certain evidence and
precluding the Defendant from making certain arguments during the trial. The United States
specifically requests: (1) that Defendant be precluded from admitting evidence of and making
argument about the potential consequences or penalties upon conviction;1 (2) that the United States
be allowed to introduce Defendant’s notated N-400 Application; and (3) that the United States be
allowed to introduce evidence related to Defendant’s prior state court conviction for sexual
offenses against a minor, and, if necessary, related conduct for which Defendant was charged, but
ultimately not convicted. The Court will address each issue in turn.
1 The Defendant has not addressed this issue in its response. (See Doc. No. 41). Therefore, the
Court will preclude any evidence or argument related to the consequences or penalties of a
conviction. See Fed. R. Evid. 401; Rogers v. United States, 422 U.S. 35, 40 (1975) (jury should
reach its verdict regardless of the sentence that might be imposed); United States v. Meredith, 824
F.2d 1418, 1429 (4th Cir. 1987) (“The jury must reach its verdict without considering possible
sentences.”).
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i. Defendant’s Notated N-400 Application
The Government intends to introduce Defendant’s N-400 (Application for Naturalization)
and N-400 Adjudication Processing Worksheet, which are documents related to the naturalization
process. These documents contain the Defendant’s responses to the questions asked by the United
States Citizenship and Immigration Services (“USCIS”) adjudicator and other written notations
that the adjudicator made during the naturalization interview process. (See Doc. No. 37).
The Government argues that the N-400 application is admissible under the public records
exception to the hearsay rule. See Fed. R. Evid. 803(8). A public record or statement of a public
office is admissible if it, among other things, sets out: (1) “a matter observed while under a legal
duty to report, but not including, in a criminal case, a matter observed by law-enforcement
personnel,” and (2) the party opposing admission “does not show that the source of information or
other circumstances indicate a lack of trustworthiness.” Fed. R. Evid. 803(8)(A)-(B). In United
States v. Santos, 947 F.3d 711, 725-727 (11th Cir. 2020), the Eleventh Circuit found a notated N-
400 application was admissible under Rule 803(8).2 A N-400 application is observed under a legal
duty because applicants for naturalization “must participate in an interview under oath with an
USCIS adjudicator to be naturalized” and the adjudicator “reviews the information in the Form N-
400 with the applicant, placing a checkmark next to each confirmed answer and noting any
corrections using red ink.” Id. at 726-727. Further, at the end of the interview, every applicant must
certify “under penalty of perjury the accuracy of its contents, including the adjudicator's notations
2 The Santos court also found the notated N-400 was admissible under Rule 801(d)(2)(b), an
Opposing Party’s Statement. Beyond its citation of this authority, the Government does not
separately make this argument. However, the Court notes that, as in Santos, the Defendant
expressly adopted Agent Lewis-Cray’s corrections in red ink on the N-400 form by, at the end of
the interview, signing Part 13 of the application, swearing or affirming under penalty of perjury
that the annotated Form N-400 with those corrections was “true and correct to the best of [his]
knowledge and belief.” (See Doc. No. 34-2 p. 10); see Santos, 947 F.3d at 724.
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in red ink.” Id. Moreover, as the Santos court reasoned, this process is not a “matter observed by
law-enforcement personnel” because “USCIS adjudicators routinely complete N-400 forms during
the course of their non-adversarial duties of processing applications for naturalization.” Id. The
primary purpose of the N-400 application is thus not to be introduced in criminal proceedings but
rather to facilitate the naturalization process. See Id. at 727.
Defendant maintains that because he was put under oath and then essentially charged with
lying under oath, “the interview itself, at the [USCIS] office, was the scene of the crime, and
[Agent Lewis-Cray’s] notes were in fact his subjective recordation of his aural observations at the
scene of the crime as it took place.” However, this argument is unavailing. One of the requirements
under Rule 803(8) is that the document was observed under a legal duty to report. To hold that
because the Defendant was under oath during the interview and when he submitted the N-400
application it does not fall under the public records exception would therefore contradict a specific
requirement of the rule. Furthermore, while the Defendant is accused of lying under oath at the
interview, he submitted the N-400 application four months earlier, under the penalty of perjury,
which contained the allegedly false statement. Consequently, even if Defendant’s standard and
non-adversarial naturalization interview has subsequently become a “crime scene” because of
Defendant’s alleged perjury that does not make the N-400 application inadmissible.
The Defendant also argues that Santos is distinguishable because the Eleventh Circuit
noted “Santos does not contend that he has shown that ‘the source of information or other
circumstances indicate a lack of trustworthiness’ under Rule 803(8)(B).” Id. at 725. Defendant
says that in contrast he intends to show at trial that “the source of information and circumstances
of the application process place into issue his understanding of the immigration questions and the
underlying process, and [thus] the hearsay exceptions are not applicable.” This argument is
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unpersuasive. The Defendant bears the burden of establishing unreliability under Rule 803(8). See
Zeus Enterprises, Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 241 (4th Cir. 1999) (“The party
opposing admission has the burden to establish unreliability”). The Defendant has offered no
evidence that the N-400 form is unreliable other than his conclusory statement about what he
intends to show at trial. Even accepting the Defendant’s claim, his subjective lack of understanding
does not call into doubt the reliability of the N-400 application itself but merely goes to whether
he knowingly provided false information. Thus, the Court finds that the Defendant’s notated N-
400 application, assuming that the Government lays a proper foundation, is admissible under Fed.
R. Evid. 803(8).
Defendant also opposes the introduction of his N-400 application because the introduction
of it would violate Defendant’s Sixth Amendment right to confront his accusers. However, this
argument is also flawed. The Sixth Amendment of the United States Constitution protects a
criminal defendant's right to confront the witnesses against him. U.S. Const. amend VI. In
Crawford v. Washington, the Supreme Court held that the Sixth Amendment prohibits the
introduction of out-of-court testimonial statements unless the declarant is unavailable to testify,
and the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. 36,
68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004) (emphasis added).
The Supreme Court has distinguished between nontestimonial and testimonial statements
by focusing on “the primary purpose” of the questioning that provoked the out-of-court statement.
See Davis v. Washington, 547 U.S. 813, 822, 828, 126 S. Ct. 2266, 2273-74, 2277, 165 L. Ed. 2d
224 (2006) (“Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency. They are testimonial when the circumstances
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objectively indicate that there is no such ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later criminal
prosecution.”). A nontestimonial statement “while subject to traditional limitations upon hearsay
evidence, is not subject to the Confrontation Clause.” Davis, 547 U.S. at 821, 126 S. Ct. at 2273.
In Santos, the Eleventh Circuit concluded that a notated N-400 application is a
“nontestimonial public record produced as a matter of administrative routine.” Santos, 947 F.3d at
729 (citing United States v. Phoeun Lang, 672 F.3d 17, 22 (1st Cir. 2012)). The court held that
“the circumstances of the naturalization interview objectively indicate that the primary purpose of
the interview is to review the Form N-400 with the applicant and verify the applicant's answers so
that a determination can be made as to the applicant's eligibility for naturalization.” Id. (citing
Davis, 547 U.S. at 822, 126 S. Ct. at 2273-74). This reasoning is persuasive. The USCIS
adjudicators are not conducting these interviews because they suspect the applicants of crimes and
are not making the notations on the N-400s applications for later criminal prosecution. Id. They
are simply engaged in a routine administrative process to assess whether an applicant is eligible
for naturalization. Consequently, the Defendant’s notated N-400 application is nontestimonial in
nature and therefore its admission does not violate the Sixth Amendment.
ii. Defendant’s Criminal History
The Government also intends to introduce evidence of the Defendant’s 2014 state
convictions for second-degree sex offenses with a child through certified copies of certain court
records and, potentially, Defendant’s prior admissions. The Government states it may also seek to
introduce evidence related to the other criminal charges that were brought against the Defendant
arising out of the same investigation, but which were later dismissed as part of his plea agreement.
(Doc. No. 37).
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18 U.S.C. § 1425(a) prohibits any person from "knowingly procur[ing]... contrary to law,
the naturalization of any person, or documentary or other evidence of naturalization or of
citizenship." 18 U.S.C. § 1425(a). Contrary to law has been interpreted to mean contrary to the
law governing naturalization. See United States v. Sadig, 352 F. Supp. 2d 634, 637-638 (W.D.N.C.
Jan. 14, 2005) (citing United States v. Agunbiade, 172 F.3d 864, 1999 WL 26937, at *2 (4th Cir.
Jan. 25, 1999) (unpublished)).
To prove a §1425(a) violation the Government must show: (1) defendant procured United
States citizenship through naturalization, (2) defendant committed an illegal act in connection with
obtaining naturalization, (3) defendant did so knowingly, and (4) defendant's illegal act "caused"
defendant to be naturalized. See United States v. Habteyes, 356 F. Supp. 3d 555, 558 (E.D. Va.
2018) (citing Maslenjak v. United States, 137 S. Ct. 1918, 1924-26, 198 L. Ed. 2d 460 (2017)).
Further, when “the illegal act is a false statement, that means demonstrating that the defendant lied
about facts that would have mattered to an immigration official, because they would have justified
denying naturalization or would predictably have led to other facts warranting that result.”
Maslenjak, 137 U.S. at 1923.
The Government argues that the Defendant’s criminal history is “intrinsic to and probative
of two of the essential elements of the Government’s claim.” (Doc. No. 37). The Government can
“establish [the knowingly element] by proof that the Defendant knowingly misstated his criminal
record in his written application, or, regardless of any representations to USCIS, knew he was
ineligible for naturalization.” (Doc. No. 37); see Sadig, 352 F. Supp. 2d at 638. The Government
maintains that evidence of the Defendant’s criminal activity prior to his application for
naturalization is needed to establish he knowingly misstated his criminal record.
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Further, the “requirements of naturalization” provide that no person will be naturalized
unless they have met the requirement for continuous residency and physical presence in the United
States, and “has been and still is a person of good moral character, attached to the principles of the
Constitution of the United States, and well-disposed to the good order and happiness of the United
States.” 8 U.S.C. § 1427. Offenses “related to criminal sexual conduct or the sexual abuse of a
minor are typically considered to be crimes of moral turpitude and render aliens ineligible for
naturalization.” See, e.g., United States v. Valenzuela, 2018 WL 3619503, at *7 (N.D. Ill. July 29,
2018) (unpublished), aff’d, 931 F.3d 605 (7th Cir. 2019) (holding, in the context of a civil
denaturalization proceeding under § 1451(a), that “[t]he sexual abuse of a minor child—one who
is a family member, no less—is undoubtedly depraved and contrary to the accepted rules of
morality.”); see also United States v. Escobar, 735 Fed.Appx. 628, 629-630 (11th Cir. 2018)
(unpublished) (finding that the district court did not abuse its discretion by allowing the
government to introduce evidence of the defendant’s conviction for lewd and lascivious acts
against a minor and that this evidence tended to show defendant’s knowledge of his unlawful
conduct and was probative of defendant’s intent and motive to provide knowingly false responses
on his naturalization application.). Consequently, evidence of the Defendant’s convictions is
relevant as to whether he would have met the requirements of naturalization.
The Government also argues that the Defendant’s criminal history is admissible under Rule
404(b)(2), which permits the admission of evidence of crimes, wrongs, or other acts for various
proper purposes, including, but not limited to, “proving motive, opportunity, intent preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.” The Government maintains it
may need to introduce evidence of the circumstances of Defendant’s criminal history “to rebut any
evidence or refute any argument that the false statement contained in Defendant’s N-400
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Application, or his failure to otherwise disclose his criminal history during the naturalization
process was the result of mistake or inadvertence, his failure to recall committing these sexual
offenses, or any other innocent reason.” (Doc. No. 37).
The Defendant retorts that any evidence of his criminal history is “inadmissible under the
Due Process Clause, Sixth Amendment, and the Federal Rules of Evidence.” (Doc. No. 41). The
Defendant specifically argues that the Government has failed to satisfy Rule 404(b)(2) and more
generally the evidence is unreliable and prejudicial due to various constitutional violations and is
thus inadmissible.3 The Defendant’s argument fails in two respects.
First, as noted by the Government, evidence of the Defendant’s criminal history is plainly
relevant to the elements of the charged offense. Rule 404(b)(1) provides that “[e]vidence of a
crime, wrong, or other act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1).
However, the Defendant’s criminal history is not being introduced to prove the Defendant’s
character and show conformity with that character on a particular occasion. It is being introduced
because it is relevant to the elements of the charged offense, 8 U.S.C. 1425(a). Rule 401 states
evidence is relevant if “it has any tendency to make a fact more or less probable than it would be
without the evidence; and the fact is of consequence in determining the action.” Fed. R. Evid. 401.
Whether the Defendant had committed a crime when he swore that he had not committed a crime
or offense for which he had not been arrested for on his N-400 application will be one of the central
issues at trial. And, the Defendant’s criminal history goes directly to that issue. While relevant
evidence can be excluded if its probative value is substantially outweighed by unfair prejudice, it
3 The Court will only address Defendant’s arguments under the Rules of Evidence as the other
arguments have been addressed in separate and concurrent orders.
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is not unfairly prejudicial to the Defendant for the Government to introduce evidence of the
Defendant’s criminal history when it is directly linked to a central issue at trial. See Fed. R. Evid.
403.
Second, the Government has satisfied the test for admissibility under Rule 404(b)(2).
Although “bad acts” evidence is not admissible to prove criminal propensity, such evidence “may
be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). The Fourth
Circuit applies a four-step test for determining when evidence of prior acts is admissible under
Rule 404(b): (1) “[t]he evidence must be relevant to an issue, such as an element of an offense,
and must not be offered to establish the general character of the defendant”; (2)“[t]he act must be
necessary in the sense that it is probative of an essential claim or an element of the offense”;
(3)“[t]he evidence must be reliable”; and (4) “the evidence’s probative value must not be
substantially outweighed by confusion or unfair prejudice in the sense that it tends to subordinate
reason to emotion in the fact-finding process.” United States v. Hall, 858 F.3d 254, 266 (4th Cir.
2017). As noted above, Defendant’s criminal history is highly relevant and is probative of an
essential element of the charged offense. Additionally, the certified copies of court records from
the state proceedings are reliable 4 and the evidence’s probative value is not substantially
outweighed by the risk of confusion or unfair prejudice. Again, this evidence is of course
4 The Government has represented to the Court that it may introduce evidence and testimony on
“other criminal charges” that were dropped under Rule 404(b)(2). See Doc. No. 37. Without more
information about the specifics of this evidence and testimony the Court cannot determine whether
it is reliable or if it is unfairly prejudicial (or if it is hearsay for that matter). Therefore, the Court
will allow the Defendant to renew its objection to the admissibility of such evidence if the
Government seeks to admit it under Rule 404(b)(2).
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“prejudicial” to the Defendant, but it is not unfairly so, and it is of probative value because it goes
to the heart of the issues that the jury must decide.
In sum, the Defendant’s criminal history is probative and highly relevant to the charged
offense, and the Government is not seeking to introduce it for an improper purpose in violation of
Rule 404(b)(1) or Rule 404(b)(2).
III. ORDER
IT IS THEREFORE ORDERED that United States’ Motion in Limine, (Doc. No. 37), is
GRANTED as set forth above.
SO ORDERED.
Signed: April 28, 2022
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