United States v. Tzeuton

370 F. App'x 415
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 16, 2010
DocketNo. 09-4429
StatusPublished
Cited by1 cases

This text of 370 F. App'x 415 (United States v. Tzeuton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tzeuton, 370 F. App'x 415 (4th Cir. 2010).

Opinion

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Patrick G. Tzeuton (“Tzeuton”) appeals his convictions upon one count of conspiracy to commit immigration fraud pursuant to 18 U.S.C. § 371, seven counts of immigration fraud pursuant to 18 U.S.C. § 1546(a), and one count of obstruction of an official proceeding pursuant to 18 U.S.C. § 1512(c)(2), as well as his sentences. For the following reasons, we affirm the convictions and sentences imposed by the district court.

I.

Tzeuton, an attorney, practiced law through a law firm known as the Law Offices of Patrick Tzeuton & Associates (hereinafter “the Tzeuton law firm”). Henri Marcel Nzone (“Nzone”), originally Tzeuton’s co-defendant, worked closely with Tzeuton as his legal assistant, but Nzone was not an attorney. The Tzeuton law firm primarily represented clients in immigration matters before the Immigration and Naturalization Service (“INS”).

Tzeuton and Nzone were indicted upon allegations that they conspired to “prepare!] false and fraudulent Applications for Asylum and for Withholding of Removal,” make “false and fraudulent supporting affidavits and documents, and present!] these false and fraudulent applications, affidavits, and supporting documents to the INS” and other agencies. (J.A. 23). The indictment also alleged that Tzeuton and Nzone sold false documents to aliens applying for asylum, notarized and translated false documents, and “met with aliens before their asylum interviews and coached the aliens on the details of the false and fraudulent statements in their asylum applications.” (J.A. 24). Nzone pled guilty to one count of conspiracy and one count of obstruction of an official proceeding and received a sentence of 9 months’ imprisonment. Tzeuton pled not guilty and proceeded to trial.

During trial, seven former clients of the Tzeuton law firm, Nzone, and ICE Special Agent Chris Melia (“Melia”) testified for the prosecution. Nzone and the former clients testified that Tzeuton conspired with them to “make false statements under oath,” “present false and fraudulent applications for asylum,” “to corruptly obstruct, [418]*418influence, and impede immigration proceedings before the U.S. Department of Homeland Security and the U.S. Department of Justice,” and to sell “false and fictitious documents.” (J.A. 876). Testimony at trial also established that Tzeuton “directed these former clients to Nzone and others in his office to prepare the clients for interviews with asylum officers and immigration court proceedings by coaching the clients on the details of the false and fraudulent stories that the defendant created for them.” (J.A. 876).

The jury convicted Tzeuton on all counts. Alleging prosecutorial misconduct, Tzeuton filed a post-trial motion to dismiss the indictment or, alternatively, for a new trial, for a post-trial evidentiary hearing, and for appropriate discovery. The district court held a hearing and subsequently denied the motion. Tzeuton was sentenced to sixty months’ imprisonment on the conspiracy count and sixty-four months’ imprisonment on all remaining counts, to run concurrently. Tzeuton timely filed an appeal and this Court has jurisdiction pursuant to 28 U.S.C. § 1291.

II.

A.

1.

Tzeuton first argues that the prosecution engaged in misconduct by improperly threatening Kamba Kabangu (“Kabangu”), a proposed defense witness, and that the district court consequently erred by denying his post-trial motion to dismiss on that basis. Kabangu had referred numerous Congolese asylum cases to Tzeuton.

Tzeuton contended in his motion that “when the government’s case was almost complete,” the prosecution “alleged that Immigrations and Customs Enforcement (“ICE”) had evidence that Mr. Kabangu was in the United States illegally, and that he had been banned from certain immigration courtrooms for false testimony,” (J.A. 557), and “that ICE agents planned to arrest Mr. Kabangu if he arrived in the Court.” (J.A. 558). Tzeuton objected to the timing of the disclosure, alleging that “government counsel knew [this information] two weeks before [Kabangu] was scheduled to testify.” (J.A. 552). Defense counsel proffered to the district court that Kabangu would testify in accord with a pre-trial meeting with defense counsel, where Kabangu stated that “Nzone was widely regarded as a fraud and a liar,” (J.A. 555), that “he did not believe that Mr. Tzeuton had committed any fraudulent activities, and felt Mr. Tzeuton was being ‘framed’ by other employees.” (J.A. 554).

Based on the information disclosed by the prosecution, the district court appointed Kabangu a lawyer, and he ultimately decided not to testify. Tzeuton argues that the prosecution’s conduct “violated the Defendant’s fundamental due process rights to present a defense by interfering with the free and unhampered choice of the witness to testify.” (J.A. 551). However, no affidavits were filed in support of the motion to dismiss by Tzeuton, Ka-bangu, their counsel, or anyone else.

In denying the motion, the district court first found that “any purported evidence that Kabangu would give about Mr. Nzone would be quite marginal to [the prosecution’s evidence] so ... it’s hard to even conclude ... that there was deprivation of the right of a fair trial.” (J.A. 772). Moreover, with no evidentiary foundation for any of Tzeuton’s claims about Ka-bangu, the district court stated that “I have what really is clearly third-hand testimony” from Tzeuton’s counsel. (J.A. 773). Finally, the district court found that Ka-bangu likely “wouldn’t have testified anyway, given his vulnerability to cross-exami[419]*419nation for other criminal activity,” (J.A. 776), and that there was no prosecutorial misconduct, because “I think it’s an awkward situation for everybody because they could have been damned if they did and damned if they didn’t. But [the prosecution], I think largely are being held to answer for good intentions.” (J.A. 777).

We review the denial of a motion to dismiss based on prosecutorial misconduct for clear error. United States v. McDonald, 61 F.3d 248, 253 (4th Cir.1995), overruled on other grounds by United States v. Wilson, 205 F.3d 720 (4th Cir. 2000).

In order to prove reversible prosecutorial misconduct, a defendant must first show that the prosecution acted improperly. “Improper intimidation of a witness may violate a defendant’s due process right to present his defense witnesses freely if the intimidation amounts to ‘substantial government interference with a defense witness’ free and unhampered choice to testify.” United States v. Saunders, 943 F.2d 388, 392 (4th Cir.1991) (quoting United States v. Hammond, 598 F.2d 1008, 1012 (5th Cir.1979)).

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Related

Tzeuton v. United States
178 L. Ed. 2d 115 (Supreme Court, 2010)

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Bluebook (online)
370 F. App'x 415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tzeuton-ca4-2010.