PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 18-1981 ______________ UNITED STATES OF AMERICA v. MOHAMMED JABATEH a/k/a Jungle Jabbah Mohammed Jabateh, Appellant ______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-16-cr-00088-001) District Judge: Hon. Paul S. Diamond ______________ Argued January 21, 2020 Before: AMBRO, MATEY, FUENTES, Circuit Judges. (Filed: September 8, 2020) Peter Goldberger (Argued) 50 Rittenhouse Place Ardmore, PA 19003 Counsel for Appellant William M. McSwain Nelson S.T. Thayer, Jr. Linwood C. Wright, Jr. Robert A. Zauzmer (Argued) Office of United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 Counsel for Appellee ______________ OPINION ______________ MATEY, Circuit Judge. Mohammed Jabateh served as a rebel commander during the Liberian civil war. When his faction lost power, he fled to the United States seeking asylum and permanent residency. His conduct in Liberia, characterized by brazen violence and wanton atrocities, made an honest immigration application impossible. So he repeatedly lied to United States immigration officials, concealing his crimes and portraying himself as a persecuted victim. Jabateh’s ruse succeeded for almost twenty years until a jury convicted him of immigration fraud and perjury. Now, Jabateh challenges his conviction and his sentence. His arguments about the quantity and quality of evidence presented at trial are wrong, with plentiful facts 2 supporting the jury’s findings. And his claims of sentencing error ignore the careful and detailed reasoning of the District Court. Jabateh also argues, for the first time, that the Government improperly charged him with making false oral statements during an interview with an immigration officer in violation of 18 U.S.C. § 1621 and 18 U.S.C. § 1546(a). While we find no error in Jabateh’s convictions for perjury under § 1621, his convictions under § 1546(a) are a different matter. In every case, of course, “[t]he Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged.” United States v. Gaudin, 515 U.S. 506, 522–23 (1995). The statutory text alone defines those elements. Here, the text of § 1546(a) criminalizes fraud in immigration documents. By contrast, the Government did not charge Jabateh with fraud in his immigration documents, only with orally lying about those documents. That is a distinction unsupported by the ordinary and best reading of § 1546(a), and we agree with Jabateh that the Government’s interpretation is incorrect. But while Jabateh is right, his failure to raise this argument at trial significantly alters the scope of our review. Given the novelty of the interpretative question, and the lack of persuasive, let alone authoritative, guidance, we cannot conclude that our reading of § 1546(a) meets the stringent standards for reversal for “plain error” the Federal Rules of Criminal Procedure require. For that reason, we will affirm his conviction in full. 3 I. BACKGROUND We recount only the relevant history, reviewing the record evidence in the light most favorable to the ...
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