Third Circuit Affirms Togo Visa Fraud Conviction

An appellant from Togo lost his visa fraud challenge in the Third Circuit Court of Appeals this week, despite a rather creative defense theory. Geoffry Kouevi didn't argue that he was innocent or that he was denied due process; he claimed that he that he was convicted under the wrong paragraph of the visa fraud statute.

Kouevi, also known as "Kangni," was born and raised in Lome, Togo. The government contends that from 2001 until 2005, Kouevi conspired with others to use fraudulent means to obtain "authentic" visas for at least 34 people through the American Embassy in Togo, and that those persons then used those visas to enter the United States.

The scheme involved "diversity visas," which the U.S. government makes available to citizens of countries who send relatively low numbers of immigrants to the United States each year. The visas are a means of promoting diversity within the annual pool of immigrants entering the country.

Individuals in Togo applied for diversity visas by entering the diversity visa lottery. If they won that lottery, they became eligible to apply for permanent resident status in the United States, and if that status was granted, they were then permitted to immigrate with their spouse and children. The lottery winners were classified as DV-1 applicants; spouses were classified as DV-2 applicants; and their children were classified as DV-3 applicants.

According to the evidence at Kouvei's trial, Kouevi worked with individuals in Togo who were actually eligible for diversity visas, but were unable to either complete the necessary paperwork, pay the required fees, or afford the airfare to the United States.

The government claimed that co-conspirator Akouavi Kpade Afolabi paid the required fees of persons who were eligible for the diversity lottery and assisted them with their paperwork. In exchange, Afolabi required the applicants to falsely represent that other unrelated individuals were their spouses and/or children, so that those individuals could also obtain visas under the program.

In 2009, a federal grand jury returned a two-count indictment charging Kouevi with conspiracy to commit visa fraud and visa fraud. The jury convicted Kouevi on both counts, and he was sentenced to 26 months imprisonment.

Kouevi claimed his conviction should be reversed because the visas he helped procure were authentic, and not forged. Thus, he argued that the district court should have granted his motion for judgment of acquittal at the close of the government's case because he was charged under the wrong paragraph of the statute.

The Third Circuit Court of Appeals disagreed, noting that the plain language of the statute revealed that the relevant paragraph of the visa fraud statute "must be read to prohibit the possession or use of authentic immigration documents which are obtained by fraud." Since Kouevi was part of the scheme involving authentic immigration documents obtained by fraud, the appellate court upheld his conviction.

Related Resources:

• U.S. v. Kouevi (Third Circuit Court of Appeals)
• Court Grants Deportation Appeal After Bankruptcy Fraud (FindLaw's Third Circuit Blog)
• Day School Owners Lose Tax Fraud Appeal (FindLaw's Third Circuit Blog)