Opinion
Case No. 14 CR 421-1
2016-05-03
United States of America, Plaintiff, v. Enkhchimeg Ulziibayar Edwards, Defendant.
Peter S. Salib, U.S. Attorney's Office, Chicago, IL, AUSA, United States Attorney's Office, Chicago, IL, for Plaintiff.
Peter S. Salib, U.S. Attorney's Office, Chicago, IL, AUSA, United States Attorney's Office, Chicago, IL, for Plaintiff.
ORDER
Judge Richard A. Posner
After a four-day jury trial, the defendant, Enkhchimeg Ulziibayar Edwards (who goes by "Eni Edwards"), was found guilty of two counts of attempted obstruction of justice (also described as "witness tampering") in violation of 18 U.S.C. § 1512(b)(3), and two counts of making false statements to her employer, U.S. Customs and Border Protection (CBP), an agency of the Department of Homeland Security, in violation of 18 U.S.C. § 1001(a)(2). (The State Department's Diplomatic Security Service has also been involved in this case, as will be noted.) Before the jury rendered its verdict, the defendant moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, which provides relief "if the evidence, viewed in the light most favorable to the government, would not justify any rational trier of fact in finding the elements of the crime charged beyond a reasonable doubt." United States v. Rahman , 805 F.3d 822, 836 (7th Cir.2015). I deferred ruling on the motion until the jury rendered its verdict, after which the defendant moved for a judgment of acquittal or in the alternative for a new trial, pursuant to Rules 29(c) and 33(a) respectively. I conducted a hearing on the defendant's motion on April 27. I now must decide whether to grant or deny, in whole or in part, the motion.
Mrs. Edwards, born in Mongolia in 1977, came to the United States in the late 1990s, became a lawful resident of this country in 2003 or 2004 and an American citizen in 2005. She attended several American colleges, graduating from Roosevelt University in Chicago. In 1998 she had married an American named Kenneth Edwards (whose name she took) who happens to be an agent of CBP. Fluent in Russian and Polish as well as in English and Mongolian, Mrs. Edwards long aimed at becoming a CBP agent herself, though she did not attain this goal until 2009, having formally applied the previous year. In the meantime she worked mainly at the "Gate Gourmet" at O'Hare Airport (in an executive capacity, rather than as a waitress or kitchen worker) and became friends there with an employee named Michael Rosel.
Enter Tsasanchimeg Erdenekhuu, a young cousin of Mrs. Edwards. Tasha, as the parties refer to Ms. Erdenekhuu, had come to the United States on a temporary visa in 2001 as a teenager and decided to stay, though without obtaining the permission of the U.S. government to do so. In 2002, at age 17, she was arrested by immigration officers, and the following year was ordered deported from the United States (i.e., airmailed back to Mongolia at her expense). She was placed in a detention center pending deportation. After turning 18 that summer, she was eligible for bail while awaiting deportation, and Mrs. Edwards' parents (who, by the way, now live in Chicago too) sent Mrs. Edwards the $4,000 in bail money required to get her cousin released from the detention center. Although ordered deported in 2003, thirteen years later Tasha remains in Chicago, living with her third American husband. Although she lives openly in Chicago and a document placed in the record by the government gives a Chicago street address for her and the deportation order issued in 2003 has never expired or been withdrawn, the government has yet to make any move to deport her. The reason for this forbearance is unexplained, but probably it's that she has, so far as anyone has suggested, never been involved in any criminal activity. Noncriminal illegal immigrants in the United States are rarely deported; given the estimate that there are 10 or 11 million such persons in the nation at this time, that they constitute at least 5 percent of the American work force, that they have a lower crime rate than American citizens, and that law enforcement agencies have their hands full with more pressing problems than that of law-abiding though unauthorized immigrants, it is not surprising that persons such as Tasha generally are left alone.
When arrested by the immigration authorities and later ordered deported Tasha could not feel entirely secure. It occurred to Mrs. Edwards (doubtless to Tasha as well) that Tasha would be completely secure only if she became a lawful U.S. resident, a status she would be likely to attain if she entered into a marriage with an American citizen that was either bona fide, or, if not, nevertheless a marriage that would not be exposed as fraudulent. Opportunity struck in 2003, when Mrs. Edwards suggested to her friend Michael Rosel—a divorced man in his late forties who testified in this case that he finds Asian women attractive—that he consider marrying Tasha. Doubtless Mrs. Edwards mentioned the possibility to Tasha as well. Tasha and Rosel were soon married—and after ten months divorced. The marriage had been a flop, largely it seems because of the large age difference between the spouses (about 30 years), Tasha's English, which apparently was very poor at the time, and her apparent unwillingness to have sex with Rosel. Indeed, there is reason to think that she found Rosel a totally unsuitable husband. The marriage ended before Tasha had obtained any change in her immigration status; she was, as she remains to this day, under an order, though never enforced or, it seems, intended to be enforced, of deportation.
The government believes or professes to believe that the marriage of Tasha and Rosel was fraudulent, and points us to the federal statute that provides that "any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both." 8 U.S.C. § 1325(c). However, the statute of limitations for marriage fraud is five years, see 18 U.S.C. § 3282(a) ; United States v. Rojas , 718 F.3d 1317, 1319 (11th Cir.2013), and starts to run on the date of the marriage. Id . at 1319–20 ; United States v. Ongaga , No. 14–20235, 820 F.3d 152, 159–61, 2016 WL 1458942, at *3–4 (5th Cir. Apr. 13, 2016). Therefore no one—not the cousin, not Mrs. Edwards, not Mr. Rosel—could be prosecuted for the alleged marriage fraud after July 21, 2008, and no one has ever been prosecuted for it.
U.S. Immigration and Customs Enforcement ("ICE," as it is called), which like CBP is an agency of the Department of Homeland Security, has tried to warn the public that "Terrorists and other criminals can use marriage fraud as a vehicle to enter the United States, often due to the willingness of U.S. citizens. They can then hide their identity, gain unlawful employment, access government buildings, and open bank accounts and businesses to conduct further criminal activity." ICE, "Marriage Fraud Is Not a Victimless, Innocent Crime," www.ice.gov/sites/default/files/documents/Document/2014/marriageFraudBrochure.pdf (visited May 1, 2016, as were the other websites cited in this opinion). There is no indication, however, that Mongolians who enter the United States engage in that type of activity.
Fast forward to 2008, when the U.S. Embassy in Ulan Bator, the capital of Mongolia, began worrying about a number of Mongolian "throat singers" (see "Mongolian Throat Singing—Batzorig Vaanchig," YouTube , www.youtube.com/watch? v=1rmo3fKeveo) who requested performance visas to allow them to visit Chicago—when two years previously several other throat singers, having obtained such visas and come to Chicago, did not return to Mongolia but instead vanished (presumably they are living somewhere in the United States, all or most of them perhaps in Chicago, home to some 3000 or 4000 persons of Mongolian origin—in addition Chicago is a "sanctuary city," meaning that it doesn't assist federal authorities to hunt down illegal immigrants). In retrospect the concern of the embassy officials seems strange—I call their anxiety about a Mongolian influx to the United States the "Mongolian Panic." There are very few Mongolians in the United States (probably no more than 20,000, though there are no hard statistics)—for that matter there aren't many Mongolians in Mongolia, which has a population of only about 2.8 million. And while doubtless many of the few Mongolians in the United States are, like Tasha, illegal aliens, they do not appear to be involved in criminal activities, and therefore, one would think, would be of no interest to the authorities, just as Tasha quickly ceased to concern the authorities, who could but have never bothered to deport her.
Officials from the U.S. Embassy in Mongolia referred their concerns to the State Department's Diplomatic Security Service office based in Chicago, whose agents began to investigate visa applications filed by Mongolian nationals. Their concern focused on the American Mongolian Association, a tiny Chicago civic organization (apparently it has only 1 to 4 employees) that the State Department believed had been trying to smuggle Mongolians into the United States via Chicago, never to return to Mongolia, though there is no proof of such smuggling. No one knows whether the AMA assisted the throat singers to remain in the United States in 2006 after their performance visas expired.
Mrs. Edwards, it turns out, was involved with the American Mongolian Association, though in what capacity is unclear—there is evidence that she was a vice president of the organization for a time; she testified that she stopped participating in AMA events in 2008, but continued a social relationship with the organization's president. The fact that many Mongolians seeking visas to visit Chicago listed her phone number as their contact in Chicago aroused federal agents' suspicions, though it must be emphasized that she has not been charged with smuggling Mongolians into the United States or with visa fraud. As I noted at the beginning of this order, she is charged, rather, and was convicted by the jury, of two counts of attempted obstruction of justice and two of making false statements on employment forms, and in interviews, required of her by CBP. An oddity of her involvement with the AMA is that one would expect CBP to have wanted to plant one of its agents in that suspect organization to report on its nefarious activities (if they were nefarious, which has not however been proved).
The two counts of attempted obstruction of justice are based on recordings of two phone calls made to Mrs. Edwards by Tasha's first husband, Michael Rosel, on successive days early in January 2013. Agents from the Diplomatic Security Service had gotten wind of Rosel's marriage to Tasha and suspected that it had been a fake marriage arranged by her cousin, that is, by Mrs. Edwards, of whom they were already suspicious because of her involvement with the AMA. To nail down their suspicions concerning the marriage, agents persuaded Rosel to call Mrs. Edwards and, by asking questions that the agents instructed him to ask, seek to elicit an admission that she had arranged the allegedly fake marriage. Rosel did not elicit any such admission, but did extract what the government has contended proved that the marriage was indeed fake and Mrs. Edwards complicit in it along with Tasha and Rosel. Her conversations with Rosel were secretly recorded by the agents and played at the trial.
Now as I noted earlier Mrs. Edwards cannot be prosecuted (no one can be) for marriage fraud concerning Rosel's marriage to Tasha. The charge is that by encouraging Rosel to lie in her two phone conversations (totaling more than fifty minutes) with him she interfered with governmental investigative activity. Such interference can be, and in this case was charged as, the crime of attempted obstruction of justice (alternatively called, in a case such as this, in which the alleged obstruction is of a potential witness, "witness tampering"). One element of that crime—the one critical to the obstruction charges in this case—is, as I instructed the jury, that "the defendant [Mrs. Edwards] attempted to persuade another person [Mr. Rosel] to interfere with the government's investigation or prosecution of illegal activity." See 18 U.S.C. § 1512(b)(3).
I can set to one side attempted interference with a prosecution. There was no possibility of prosecuting Tasha five years after the statute of limitations applicable to the allegedly fraudulent marriage had expired. Nor is it apparent that lying to Rosel about the marriage was likely to or did interfere with an investigation of the marriage, as there would have been no point to such an investigation, especially since Tasha could be deported any time the government decided to do so, whether or not the marriage had been fraudulent.
In fact the investigative activity that Mrs. Edwards may have interfered with in her conversations with the agents was not an investigation of the allegedly fake marriage as such; it was an investigation of Mrs. Edwards' likelihood of involvement in the suspected (though never proved) scheme, possibly (if there really was such a scheme) devised by the American Mongolian Association with which Mrs. Edwards was as I said connected, to smuggle Mongolians into Chicago. She had not, it is true, smuggled Tasha into Chicago, but knowing that Tasha was an illegal immigrant who had been ordered deported Mrs. Edwards had tried to protect her from being deported by urging Mr. Rosel to marry her, which he did.
The prosecutors in this case seem, however, to have an imperfect understanding of marriage fraud. They think that endeavoring to secure a person from deportation by helping him (or in this case her) find a spouse is ipso facto marriage fraud. That is false; marriage fraud, as I quoted from the marriage-fraud statute earlier, requires that the marriage have been made "for the purpose of evading any provision of the immigration laws" (emphasis added). Only "a marriage entered into solely to obtain immigration benefits not otherwise available without the marriage has as its purpose the evasion of immigration laws." Eid v. Thompson , 740 F.3d 118, 124 (3d Cir.2014) (emphasis added). Marriage fraud is evading immigration laws, rather than seeking to obtain lawful permanent U.S. residence for a person by finding a mate for her, provided that the marriage is bona fide. The typical fraudulent marriage is one in which an illegal immigrant pays an American citizen money to induce him to marry her, with the mutual understanding that they will not live together or otherwise behave like a married couple and will get a divorce as soon as the immigrant has, on the basis of the marriage, obtained lawful U.S. residence. See U.S. Dept. of Justice, Offices of the United States Attorneys , "1948. Marriage Fraud—8 U.S.C. § 1325(c) And 18 U.S.C. § 1546," www.justice.gov/usam/criminal-resource-manual-1948-marriage-fraud-8-usc-1325c-and-18-usc-1546.
True, as the government emphasizes, money need not change hands for a marriage to be fraudulent, though such cases (illustrated by King v. Holder , 570 F.3d 785, 788 (6th Cir.2009) ) appear to be rare. The most famous was not an American case at all, but a British one. When the Nazis seized power in Germany in 1933, Thomas Mann, the great German writer and an outspoken anti-Nazi was, fortunately for him, in Switzerland. His daughter Erika however was in Germany, and wanted out. She wanted to relocate to Britain, but couldn't without being married. This was a problem for her, because she was a lesbian. She solved it by marrying the English poet W.H. Auden—a homosexual. Unsurprisingly, they never lived together. The marriage, though certainly for a good cause and never questioned by the British authorities, was thoroughly fraudulent.
It is unclear whether the marriage of Rosel and Tasha was fraudulent. No money changed hands, and Rosel, who remember was divorced, did testify at the trial that sex was one of the considerations that induced him to agree to marry Tasha. (In one of the phone conversations he told Mrs. Edwards that "the only thing he got out of [the marriage] was the sex part.") But he also testified that the main inducement for his agreeing to the marriage was his wanting to do a favor for Mrs. Edwards, a friend and coworker—the favor consisting not of the marriage as such but of obtaining lawful U.S. residence for Mrs. Edwards' cousin. It may be that no "real" marriage was ever in the contemplation of Rosel, Tasha, or Mrs. Edwards.
Knowing that Rosel had been questioned by federal agents, but not knowing that his calls were at their behest and were being recorded, Mrs. Edwards endeavored to persuade him to tell anyone who asked that it was a perfectly normal marriage—that Rosel and Tasha had dated (he testified that they hadn't, though it must be borne in mind that these calls were made ten years after the marriage, and memories might have faded), had gotten married, had lived together (true, though only for a few months), the marriage hadn't worked out, Tasha obtained no change in her immigration status, they got divorced, and such sequences are not uncommon and need not involve fraud. She may have been telling the truth, but Rosel testified to the contrary (though he fudged some on cross-examination—and was one of the most uncomfortable witnesses whom I have ever seen), and the jury was entitled to believe him. And to believe him was to believe that Mrs. Edwards had arranged a fake marriage, and more important that she was now covering it up, and by covering it up trying to make it difficult for federal agents to determine whether it had been a fake marriage. And while she couldn't be prosecuted for such illegality because the statute of limitations had run, it could be thought to cast doubt on her character and her loyalty to the government agencies, including her own agency (CBP), that were responsible for enforcing the nation's immigration laws.
Remember that at the time of the calls (2013), the Diplomatic Security Service suspected that Mrs. Edwards was involved in smuggling Mongolians into the United States. Although as I said she had not smuggled Tasha into the United States—Tasha had shown up on her doorstep, as it were, unexpectedly back in 2001—and for all we know may never have smuggled anyone into the United States—a willingness to assist an illegal immigrant to avoid deportation by contracting a fake marriage could be thought to imply willingness to assist other illegal immigrants from Mrs. Edwards' country of birth. The investigation of the marriage, though it could not lead to a fraudulent-marriage prosecution, might therefore have assisted in an investigation of Mrs. Edwards' possible involvement in smuggling Mongolians into Chicago. If so, the investigation of the 10-year-old marriage was legitimate, and Mrs. Edwards could be found by the jury to have interfered with the investigation by trying to persuade Rosel to tell the agents that the marriage had been on the up and up, though it is important to bear in mind that there is no actual evidence that she ever smuggled anyone into the United States; nor has she been charged with doing so.
Although the phone calls didn't lead anywhere, she is not entitled to be acquitted of the first two counts—the obstruction of justice counts, which are based on the calls. I say this with regret, as I think the fake-marriage issue is actually quite inconsequential, and should not have been a charge in the indictment. The jury could easily have found that either the marriage was genuine, or at this late date that its genuineness or lack thereof could no longer be determined. It could well have found that since the genuineness or lack thereof of the marriage could no longer be determined, finding it to be a fake marriage would be no more evidence-based than flipping a coin. It could have found that since Mrs. Edwards had not been charged with smuggling or concealing immigrants or engaging in visa fraud, the investigation of the alleged marriage fraud would have yielded no evidence that was relevant to the case.
A possible-seeming exception to my disparagement of bringing the marriage into the case, discussed in the second part of this order, is Mrs. Edwards' failing to list Tasha as a "foreign national" contact, as required by her employment forms. But this is another nothing, because her association with Tasha in all these years since Tasha first appeared on the scene led to no alteration in Tasha's status as an illegal immigrant. The deportation warrant issued in 2003 is still in force. There is no evidence that apart from the marriage Mrs. Edwards has ever done anything to alter Tasha's status—and certainly the marriage failed to alter her status in the slightest, as she and Rosel abandoned the application for a green card (proof that the holder is a lawful permanent resident of the United States) for her that they had filed.
Her lies (if they were lies) through Rosel to the agents in the two phone calls did no harm to the United States, but harm is not required for a conviction of attempting to obstruct justice. Harm is relevant—but to the sentence, not to the conviction, and I will reserve judgment on the proper sentence to impose on Mrs. Edwards to the sentencing hearing. I will listen carefully to what the prosecutors and the probation service advise on sentencing, but as of now I incline to the view that the alleged attempt to obstruct justice (or equivalently to tamper with a witness—namely Rosel) was inconsequential, and not worth the time and effort that the government, Mrs. Edwards' lawyer, and court staff have devoted to it.
I need to discuss, however, an alternative contention by her lawyer—that Edwards is entitled if not to an acquittal of the charges of attempted obstruction of justice or witness tampering (which mean the same thing) then to a new trial of those charges, as well as of the false statement charges. The arguments in support of this claim are weak, such as that the indictment (which as is commonplace was shown to the jury) included surplusage—namely unnecessary and potentially misleading material consisting of the allegations concerning the Mongolian performers who had been sponsored by the American Mongolian Association to come to the United States on temporary visas and had promptly vanished. Although Mrs. Edwards was not accused of being responsible for their failure to return to Mongolia when their visas expired (or at any later time, for that matter), the attempted obstruction of justice and the concealment on her employment forms of any involvement with Mongolian immigrants (counts 3 and 4, discussed below) presupposed some involvement on her part with illegal Mongolian immigrants—even if only Tasha.
"[S]urplusage may be stricken from the indictment if the court finds the language to be immaterial, irrelevant, or prejudicial." United States v. Marshall , 985 F.2d 901, 905 (7th Cir.1993) ; see also United States v. O'Connor , 656 F.3d 630, 645 (7th Cir.2011). But the evidence that the defense had asked me to strike was relevant to both the false statement and obstruction of justice counts. The government was investigating a broad suspected scheme of immigration fraud, and was entitled to present evidence about the AMA and the performers who overstayed their visas as background to how Edwards' name had cropped up in their investigation. Remember that most of those performers had listed Edwards' phone number on their visa applications as their American contact, which supported the government's claim that the false statements on her employment forms were intentional.
Also unpersuasive is the argument that the obstruction and false statement counts should have been charged and tried separately. But in fact they were properly joined, because they were "of the same or similar character," Fed. R. Crim. P. 8(a), all four counts having pertained to Mrs. Edwards' alleged concealment of relationships with foreign nationals from her employer, a federal agency concerned with illegal immigration. Cf. United States v. Alexander , 135 F.3d 470, 476 (7th Cir.1998). (To repeat, the concealment was actual in the case of her relationship to Tasha, though the government was already aware of that.)
The defense motion further insists that the word "corruptly" in the phrase "corruptly persuades another person" in the witness-tampering statute, 18 U.S.C. § 1512(b), is unconstitutionally vague. It's not vague, although it is surplusage; it signals the absence of any lawful excuse for trying, as relates to this case, to "prevent the communication to a law enforcement officer ... of information relating to the commission or possible commission of a Federal offense." Id . subsection (b)(3). As explained in United States v. Farrell , 126 F.3d 484, 488 (3d Cir.1997), "attempting to persuade someone to provide false information to federal investigators constitute[s] ‘corrupt persuasion’ punishable under § 1512(b)."
Remarkably, while arguing that "corruptly" is unconstitutionally vague, the defense motion argues that it should have been included in the instructions! I don't get it. Moreover, I had proposed the following instruction: "The defendant attempted to persuade another person to interfere with the government's investigation or prosecution of illegal activity, without justification for interfering" (emphasis added). "Without justification" was meant to convey the meaning of "corruptly" in section 1512(b). See United States v. Matthews , 505 F.3d 698, 706 (7th Cir.2007) ; Arthur Andersen LLP v. United States , 544 U.S. 696, 705, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005). The government asked that "without justification" be removed, because no justification for such an interference had been suggested. Defense counsel agreed to the removal of the phrase.
The defense also complains about my refusal to give six jury instructions that it submitted, but they either duplicated material in the instructions that I did give or were irrelevant to the charges.
I move now to counts 3 and 4, the false-statement counts, which required the prosecution to prove that the defendant had "knowingly and willfully ... ma[de] any materially false, fictitious, or fraudulent statement or representation" to the federal government. 18 U.S.C. § 1001(a)(2). These counts are better supported by the evidence adduced at trial than the obstruction of justice counts—so much better that Mrs. Edwards' lawyer devotes less than two-thirds of a page in his 12-page motion to discussion of the issue, and the discussion is perfunctory.
The defendant argues that the exclusion of "knowingly," "willfully," and "materially" from the false-statement instruction was erroneous. I instructed the jury that it must find "the defendant deliberately made a statement that she knew was false or misleading" (emphasis added), in order to convict, and "deliberately" is the equivalent of "knowingly." I substituted "deliberately" for "willfully" because "deliberately" has the same meaning and is more understandable to the jury. Edwards' argument that the substitution of "material" with "capable of influencing the agency's actions" was an erroneous departure from the pattern jury instructions is also unpersuasive because that is exactly how the pattern instructions define "material." Nor must jury instructions be based on the pattern instructions.
Regarding the sufficiency of the evidence in support of the false-statement counts, I note that employment forms that Mrs. Edwards was asked to fill out in 2014 asked among other questions whether she had ever provided financial support for any foreign national, and she had answered "no" though in fact she'd provided such support for Tasha. She also falsely denied having "had close and/or continuing contact with any additional foreign nationals within the last 7 years with whom you, your spouse, or your cohabitant are bound by affection, influence, and/or obligation"—another question to which the correct answer obviously was Tasha, who had actually lived with the defendant for a time in the early 2000s and with whom Mrs. Edwards had kept in close contact, as evidenced by the detailed information about Tasha that Mrs. Edwards shared with Rosel during their recorded conversations—information such as that Tasha was pregnant and engaged to be married and was planning to expedite the marriage because of the pregnancy. The two cousins were also depicted together in photos posted on social media and for a time shared a bank account. Mrs. Edwards stated in a supplemental interview that she had never helped anyone enter or stay in the United States illegally, but clearly she had helped Tasha remain illegally.
So the challenge to her conviction on counts 3 and 4, as to her conviction on counts 1 and 2, fails. But I need to say a bit more about all four counts in anticipation of the sentencing hearing. There is, to begin with counts 3 and 4, no evidence that the false statements that she made to CBP about her contacts with foreign nationals such as Tasha did any harm to the agency or to the United States. Remember that the principal foreign national with which she had contacts, and so far as appears the only one with whom she had extensive contacts, was Tasha, a relative; and remember that it was Mrs. Edwards' parents who by sending the bail money to their daughter involved her with Tasha. Families in Mongolia are famously tight knit, see, e.g., "Family First," The Washington Diplomat , January 2008, www.washdiplomat.com/index.php?option=com_ content&view=article&id=6588:-family-first-&catid=985:january-2008&Itemid=272, so it wouldn't be surprising if Mrs. Edwards felt a moral obligation to assist a cousin. That is not an excuse but it is a mitigating factor. But more important is the irrelevance of Tasha to CBP. Neither that agency nor any other government agency appears to have the slightest interest in this illegal immigrant who has been living openly in Chicago for many years, totally ignored by the government. Had the government thought Tasha had some sinister influence on Mrs. Edwards it would have deported her to Mongolia years ago. So I find it impossible to see how the contacts between the two women has or could have harmed the United States, and hence how Mrs. Edwards' attempt to conceal those contacts could have harmed the United States.
The same can be said about counts 1 and 2. I anticipate the government's arguing to me that of course an attempt crime need not inflict any harm to be punishable, and no doubt many attempts do not inflict any harm, especially if the intended victim is unaware of the attempt, and yet the perpetrators are rightly punished. But if one asks why attempts are punished, one may be inclined to doubt that Mrs. Edwards should be punished, or at least punished severely, for the attempts, of which I have concluded her conviction must be upheld, charged in the first two counts.
There are two reasons for punishing attempts that do no harm, either physical or psychological or financial. One is that an attempt constitutes a revelation of character. Someone who shoots at another person out of enmity rather than fear, though he misses, shows himself to be a dangerous person, and punishing him is intended to (and in some cases is likely to) deter him and similar persons from engaging in such behavior in the future. The punishment thus contributes to both specific and general deterrence. I have difficulty envisioning Mrs. Edwards becoming involved in the future either in fake (or possibly fake) marriages, or in making false claims on federal employment forms as it is most unlikely that she will ever again be employed by the federal government, let alone by a government agency concerned with protecting the nation's borders from illegal immigrants. The investigation leading up to the trial, the trial itself, and now the certainty of sentencing are bound to have a durable dampening effect on any illegal impulses that remain with Mrs. Edwards. But these are issues to be considered further at sentencing.
Speaking of sentencing, I originally fixed May 26 as the date of the sentencing hearing. At the April 27 hearing I asked the lawyers to agree on an earlier date; I didn't and don't want to leave Mrs. Edwards, who has three young children and is pregnant with a fourth, twisting in the wind indefinitely. The lawyers promised they would, they have kept their promise, and one of the dates and times they have proposed, being the one most compatible with my schedule—namely May 17 at 2:45 p.m.—I hereby adopt. The defendant's sentencing memorandum is due by May 10, 2016. The government's response is due by May 13, 2016. I thank the lawyers for their cooperation in this matter of scheduling, as indeed through the trial and pretrial proceedings in this difficult case.
In summary, the defense motions [docket nos. 109 and 112] are denied.