Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-22-2005

USA v. Hadima
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2667




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2667


                           UNITED STATES OF AMERICA

                                           v.

                                  SAMEH HADIMA,
                                             Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                              D.C. Crim. 04-cr-00178-1
                District Judge: The Honorable William W. Caldwell


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 18, 2005


       Before: BARRY and AMBRO, Circuit Judges, and POLLAK,* District Judge


                          (Opinion Filed: December 22, 2005)


                                       OPINION




   *
   The Honorable Louis H. Pollak, District Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
BARRY, Circuit Judge

       Sameh Hadima appeals his conviction for making a false statement about a material

fact in an immigration document, in violation of 18 U.S.C. § 1546(a). For the reasons

stated below, we will vacate the conviction.

        In August 2000, Hadima, a native of Egypt, married Kathy Masden, a United

States citizen. In January 2001, Hadima filed an application to register as a permanent

resident. His application was approved in June 2001, and he was granted conditional

permanent resident status based on his marriage to a United States citizen. In April 2003,

two months before his conditional resident status was set to expire, Hadima filed an

Application for Naturalization (N-400) and a Petition to Remove Conditions of Residence

(Form I-751) (“Petition”). The basis for Hadima’s Petition was that “[his] conditional

residence [was] based on [his] marriage to a U.S. citizen . . . and [they were] filing th[e]

petition together.” (App. at 7.) Therefore, both Hadima and his wife were required to

sign the Petition. Hadima admits that he signed Masden’s name. He claims, and the

government has never disputed, that Masden expressly authorized him to do so.1

        In July 2004, Hadima was charged, in an eight-count Second Superseding

Indictment, with marriage fraud, in violation of 18 U.S.C. § 1325(c); making false

statements in the course of an official investigation, in violation of 18 U.S.C. § 1007;


   1
     Hadima has consistently claimed that Masden signed a copy of the Petition at their
home, but that he was away on active duty with the United States Army Reserves when
the filing deadline arrived. He called Masden, “and she explicitly and specifically
authorized him to sign her name on another I-751 Petition.” Appellant’s Br. at 13.
                                               2
making false statements in immigration documents, in violation of 18 U.S.C. § 1546; and

aiding and abetting the foregoing offenses, in violation of 18 U.S.C. § 2. In November

2004, Hadima entered into a written plea agreement in which he agreed to plead guilty to

an Information charging him with making a false statement in an immigration document,

in violation of 18 U.S.C. § 1546, in exchange for which the government agreed to dismiss

the Indictment. Hadima pleaded guilty to the agreed-upon charge and was sentenced to

three months in prison and assessed $100. He has served his sentence.

      Before accepting Hadima’s guilty plea, the District Judge conducted the colloquy

required by Federal Rule of Criminal Procedure 11(b)(2), and asked the prosecutor to

outline what the government would have been prepared to prove at trial. The prosecutor

provided some background information, and then stated:

                On or about April 8, 2003, [Citizenship and Immigration Services]
        accepted a petition to remove conditions on residence -- conditions on his
        residence, a Form I-175, that was filed by the defendant and Masden based
        on their marriage. Now that form was required to be signed by both the
        alien, in this case the defendant, and the United States citizen, in this case
        Ms. Masden Hadima. The form also contained a certification that it
        actually was being signed by the persons whose names appeared on the
        form.
                That form was completed, signed, and mailed to Citizenship and
        Immigration Services, however, by the Defendant while he was on active
        duty in the United States Army. The Defendant contends that he requested
        permission to retrieve another form, this one reportedly signed by Ms.
        Masden Hadima herself, to send to immigration officials, but he was denied
        that opportunity by people in his command. The Defendant also contends
        that he had oral permission from Ms. Masden Hadima to sign her name to
        that form before sending it to immigration officials.
        Nonetheless, as the Defendant well knew, he, in fact, signed [Masden’s] name to
that form. Knowing it was not being signed by her, and then submitted that form to
immigration officials as if it had been signed by her personally.

                                            3
(App. at 49-50) (emphasis added). The District Judge asked Hadima if he agreed with

that statement of the facts, and Hadima replied, “Yes, Your Honor.” (App. at 51.)

Satisfied that all of the Rule 11 requirements were met, the Judge accepted the guilty

plea. However, the facts as stated by the prosecutor were not correct. The government

now admits that the prosecutor “mis-spoke” when he said that the form contained a

separate certification that it was actually being signed by the persons whose names

appeared on the form. Appellee’s Br. at 13 n.3. No such certification exists.

       Hadima seeks to have his conviction vacated on the ground that he did not commit

a crime when he signed his wife’s name. We admit to some surprise that the government

has persisted in opposing this request even though it has been forced to admit that there

was no separate certification signed by Hadima, much less one stating that Hadima’s wife

had, in fact, signed her own name. That would have been a false statement. So, too,

would it have been a false statement had her signature been “falsified” which is “where,”

the government alleged, “the offense lies.” (App. at 50-51).

       Generally, knowing and voluntary guilty pleas waive all non-jurisdictional defects.

See Woodward v. United States, 

, 964 (3d Cir. 1970) (“A[n unconditional]

plea of guilty waives all non-jurisdictional defenses . . . .”); Abram v. United States, 

, 350 (3d Cir. 1968) (same). However, “application of th[is] rule is misplaced”

when “a defendant’s actions do not constitute a crime and . . . the defendant is actually

innocent of the charged offense.” United States v. Andrade, 

, 731 (5th Cir.

1996). Courts have permitted attacks on guilty pleas in the interest of justice when the

                                              4
defendant has pled guilty to something that was not a crime. See, e.g., Andrade, 

(permitting an attack on a guilty plea where “intervening law has established that a

defendant’s actions do not constitute a crime . . . .”); United States v. Barnhardt, 

(10th Cir. 1996) (allowing the defendant to attack the validity of his conviction “if

the facts he pled guilty to are subsequently determined not to be criminal”); United States

v. Barboa, 

(10th Cir. 1985) (vacating defendant’s sentence on the ground

that his guilty plea was invalid because his actions did not constitute a crime); Woodward

v. United States, 

, 964 (3d Cir. 1970) (“[T]he truth of [a] defendant’s claim

of innocence may provide a basis for a finding that the guilty plea was not entered

intelligently or that withdrawal of the plea is necessary to correct manifest injustice.”)

       We agree that, as the Tenth Circuit put it, a defendant who pled guilty to

something which was not a crime “is not now precluded from raising this jurisdictional

defect, which goes ‘to the very power of the State to bring the defendant into court to

answer the charge brought against him.’” 

guilty plea to stand when the

defendant’s actions do not constitute a crime would be a miscarriage of justice.

       We must, therefore, determine whether Hadima committed a crime. It is

undisputed that Hadima signed his wife’s name to the Petition. Hadima claims, and the

government has not disputed, that he had her permission to sign her name, and that he

believed it was legal for him to do so. These facts do not establish a violation of 18

U.S.C. § 1546(a), which provides, in relevant part that:

       “Whoever knowingly makes under oath, or . . . knowingly subscribes as

                                              5
       true, any false statement with respect to a material fact in any application,
       affidavit, or other document required by the immigration laws or regulations
       prescribed thereunder, or knowingly presents any such application,
       affidavit, or other document containing such statement -- Shall be fined
       under this title or imprisoned not more than five years, or both.”

       We do not agree with the government that Hadima “made a false statement when

he signed both his and his ‘wife’s’ names on the Form I-571.” Appellee’s Br. at 26. We

refuse to find that signing a spouse’s name, with permission, constitutes a “false

statement” within the meaning of § 1546(a). No federal court has ever found an

authorized signature to be a violation of any federal false statement statute, and the

Second Circuit, for one, expressly found that a defendant’s assertion that he was

authorized to sign his spouse’s name was an affirmative defense to a charge of violating

18 U.S.C. § 1014, a similarly worded false statement statute.2 United States v. West, 

(2d Cir. 1981); see also United States v. Hamer, 10 Fed. Appx. 205, 216 (4th Cir.

2001) (“[H]ad the evidence supported a finding that Douglas authorized [the defendant]

to apply for credit in Douglas’s name for Douglas’s benefit and with the intent to bind

Douglas, the authority would have negated the intent required to support a conviction

under § 1014.”); United States v. Nelson, 

, 944 (D. Mich. 1980).

       We, therefore, conclude, given Hadima’s uncontested assertion that he had

permission to sign his wife’s name on the Petition, that he did not commit a crime. We


   2
     Section 014 states, in relevant part that: “Whoever knowingly makes any false statement
or report . . . for the purpose of influencing in any way the action of the Farm Credit
Administration, Federal Crop Insurance Corporation or a company the Corporation reinsures . . .
shall be fined not more than $1,000,000 or imprisoned not more than 30 years or both.”

                                               6
will vacate his judgment of conviction.3




   3
     As part of the plea agreement, Hadima agreed “that the United States may . . .
reinstate any dismissed counts in the event that the charges to which [he] has pleaded
guilty . . . are subsequently vacated . . . [and he] further agrees to waive any defenses to
the reinstatement of those charges . . . .” (App. at 25-26.) We are confident that the
government will let this case end – now.
                                              7