Prosecution replies to defendant’s objection to proposed jury instruction in immigration case

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IN his reply to the defendant’s objection to proposed jury instruction No. 1, Assistant U.S. Attorney Garth Backe said the federal court “should rule, prior to opening statements and outside the presence of the jury, that the [U.S.] government can proceed on both a false statement and false representation theory in this case.”

The defendant, Xinzhou Ren, has been charged with making a false statement to a federal agency and with improper entry into the United States by false statement.

In his objection, Ren’s lawyer, Robert T. Torres, said the prosecution proposes the following language in the jury instruction: “First, defendant made a false, fictitious, or fraudulent statement or representation.”

Torres said “this goes beyond the language provided by the Ninth Circuit’s Manual of Model Criminal Jury Instructions Rule 8.73.”

He added that his client is accused of making a false statement only, without any reference to any fraudulent representation.

“By proposing its current language, the [prosecution] is attempting to enlarge the scope of alleged crime beyond the scope of the indictment,” Torres said.

Backe said though “Count One [of the indictment] is entitled ‘False Statement to a Federal Agency,’ its first sentence accurately tracks the language of 18 U.S.C. § 1001(a)(2), and, critically, includes an explicit allegation that defendant additionally made a materially false, fictitious, and fraudulent representation…. The first sentence also sets out the specific government agency or department to whom the false statement or representation was made…. In other words, the first sentence — by itself — contains all of the essential elements of the offense.”

Admittedly, Backe added, “the indictment — in an effort to give the defendant greater notice — then specifically avers in the next sentence, ‘when asked by [Customs and Border Protection] why he had come to the United States, Xinzhou Ren stated he had come for tourism purposes.’ … But this particular phraseology does not nullify the just-previously alleged theory of liability as defendant suggests. For one, the sentence in question continues: ‘...a representation he knew was false and fraudulent[.]’ … Thus, though it was perhaps inartful, a common sense interpretation of the sentence as a whole shows it adequately apprises defendant of the nature of the accusation against him — that is, he made a materially false statement and/or representation to CBP about the purpose of his entry on May 4, 2018 — as well as allows him to plead double jeopardy if he is ever charged again.”

Backe added that “because the additional, specific allegation is above what is legally required, it is ‘surplusage.’ And because it is surplusage, it has no actual legal effect.”

Ren’s jury trial will start on Feb. 6, 2020 at 1 p.m.

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