STAHL, Circuit Judge.
Following a bench trial on a record of stipulated facts, Defendant-Appellant Beth A. Stewart was convicted of conspiracy to defraud the United States for participating in a sham marriage to secure a change in immigration status for her spouse. She appeals, arguing that the prosecution was time-barred because she committed no overt act in furtherance of the conspiracy within the five-year period before the return of the indictment. We disagree, and affirm.
On September 22, 2011, a grand jury returned a one-count indictment charging Stewart with conspiracy to defraud the United States, in violation of 18 U.S.C. § 371. The indictment was filed the following day. The indictment charged that Stewart was a United States citizen, and that her spouse (identified only by his
Finally, the indictment alleged that Stewart committed the following overt acts in furtherance of the conspiracy: (1) she entered into a sham marriage with FN on March 29, 2005, knowing that "the sole purpose of the wedding was to permit FN to apply for a change in immigration status to which he would not otherwise have been entitled"; (2) between the wedding date and October 27, 2005, she traveled to Massachusetts and obtained various documents to make it appear that she and FN were living together when in fact they were not, understanding that these documents would be filed in support of FN's petition to have his immigration status changed; (3) on October 7, 2005, she and FN attended an interview at the Boston offices of the U.S. Citizenship and Immigration Service ("USCIS") in support of that petition, with FN being granted conditional residency on that date based upon the information they had provided; and (4) on June 22, 2007, she traveled to Massachusetts and signed a Form I-751, Petition to Remove Conditions on Residence, on FN's behalf, which form was subsequently filed with USCIS.
Stewart filed a motion to dismiss the indictment as time-barred, arguing that the signing and filing of the Form I-751 — the only overt act alleged within the five-year statute of limitations period, see 18 U.S.C. § 3282 — was not done in furtherance of the conspiracy. She contended that the object of the conspiracy had been achieved on October 7, 2005, when USCIS granted FN lawful permanent resident ("LPR") status on a conditional basis.
The matter then proceeded to a bench trial on a record of stipulated facts and associated exhibits. We summarize those stipulations here. FN was a Kenyan national who entered the United States in 2001 on a visa that was set to expire in September of 2006. Through various third parties, Stewart learned that a marriage
Neither party sought to introduce additional evidence aside from the stipulated facts and exhibits. In post-trial briefing, Stewart argued that the government had failed to prove beyond a reasonable doubt that the object of the conspiracy consisted of anything beyond procuring the 2005 change in residency status and the payment of $4,000 to Stewart. She contended that, because the conspiratorial objective was achieved with FN's attainment of conditional LPR status, the filing of Form I-751 was not in furtherance of the conspiracy. Because, the argument continued, FN was granted conditional LPR status nearly six years before the grand jury returned
The central question raised in this appeal is whether the district court correctly found that the filing of Form I-751 was an overt act committed in furtherance of the objects of the conspiracy as alleged in the indictment. Stewart argues that the district court erred in denying her motion to dismiss on limitations grounds, a ruling we review de novo, see United States v. Bucci, 582 F.3d 108, 115 (1st Cir.2009).
The conspiracy statute under which Stewart was charged provides that:
18 U.S.C. § 371. Because § 371 does not include a statute of limitations, the general five-year statute of limitations applies. See id. § 3282(a) ("Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found ... within five years next after such offense shall have been committed."). Where, as here, a conspiracy charge requires proof of an overt act, the government must show that the conspiracy still existed, and that at least one overt act in furtherance of the conspiracy was committed, during the limitations period. Grunewald v. United States, 353 U.S. 391, 396-97, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); see also Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224, 91 L.Ed. 196 (1946) (limitations period begins running as of the date of the last overt act in furtherance of the conspiracy's objects); United States v. Ferris, 807 F.2d 269, 272 (1st Cir.1986) (government bears the burden of establishing that the indictment was issued within the limitations period). Thus, "the crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy." Grunewald, 353 U.S. at 397, 77 S.Ct. 963.
At the indictment stage, the government need not "show," but merely must allege, the required elements. An indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c)(1). "[A]n indictment is sufficient if it specifies the elements of the offense charged, fairly apprises the defendant of the charge against which he must defend, and allows him to contest it without fear of double jeopardy." United States v. Eirby, 262 F.3d 31, 37-38 (1st Cir.2001). The indictment's allegations are assumed to be true, and "courts routinely rebuff efforts to use a motion to dismiss as a way to test the sufficiency of the evidence behind an indictment's allegations." United States v. Guerrier, 669 F.3d 1, 3-4 (1st Cir.2011).
The indictment here was returned on September 22, 2011, and filed the next day. Thus, we will assume that September 23, 2006, is the critical date after which the indictment must have alleged the commission of at least one overt act in furtherance
On appeal, Stewart revives her argument that the indictment should have been dismissed because the conspiratorial object was achieved on October 7, 2005, when FN attained conditional LPR status, and any subsequent acts could not have been in furtherance of an already-completed conspiracy. However, at the motion-to-dismiss stage, the allegations are taken as true, leaving for the jury the questions of the actual scope of the conspiratorial agreement, whether the acts alleged actually occurred, and, if so, whether they furthered the conspiracy's objectives. See United States v. Upton, 559 F.3d 3, 11 (1st Cir.2009) ("Determining the contours of the conspiracy ordinarily is a factual matter entrusted largely to the jury."). Here, whether Stewart's agreement encompassed the removal of the conditions on FN's LPR status was not appropriate for resolution at the motion-to-dismiss stage.
To the extent that Stewart raises a separate sufficiency-of-the-evidence argument (and it is not clear from her briefing that she does), we reject that argument as well. "We review the evidence and all the reasonable inferences that arise therefrom in the light most favorable to the verdict." United States v. Dellosantos, 649 F.3d 109, 111 (1st Cir.2011).
After reviewing the parties' stipulations and post-trial memoranda, the district court found Stewart "guilty as charged as set forth in the indictment." The district court, by necessary implication, accepted the government's contention that the conspiracy's objectives were not achieved when FN first received conditional LPR status. Stewart argues that conditional LPR status is the "change of United States immigration status to which [FN] would not otherwise have been entitled" contemplated by the indictment. Thus, she claims, removal of conditions would not effect a "change in status," and seeking such removal could not be in furtherance of the conspiracy. In support of this argument, Stewart cites inapplicable statutes and distinguishable caselaw.
First, she points to 8 U.S.C. § 1255(b), which, she contends, is the law that governs the time when a person's status is adjusted. However, § 1255(d) states that aliens, like FN, who were granted conditional LPR status on the basis of marriage under 8 U.S.C. § 1186a may not be granted unconditional LPR status under § 1255's general LPR program. See Gallimore v. Attorney Gen., 619 F.3d 216, 229 n. 11 (3d Cir.2010). Section 1186a provides that "an alien spouse ... shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section." 8 U.S.C.
Stewart urges this court to follow the Second Circuit's decisions in United States v. Roshko (Roshko I), 969 F.2d 1 (2d Cir.1992), and United States v. Roshko (Roshko II), 969 F.2d 9 (2d Cir.1992). There, Meir Roshko entered into a sham marriage with a U.S. citizen, received his green card, terminated his sham marriage, and married Irene Roshko with the intent of using his new status as the basis for adjusting Irene's status. Roshko II, 969 F.2d at 10. The court held that the conspiracy prosecution was time-barred because only the divorce and remarriage occurred within the limitations period; the conspiracy's objective, as alleged in the indictment, was limited to changing Meir's immigration status. Id. at 11; Roshko I, 969 F.2d at 5-6. Therefore, while the termination of Meir's sham marriage and marriage to Irene may have been in furtherance of changing Irene's status, these
Finally, Stewart argues that, even if signing the I-751 was an overt act in furtherance of the conspiracy, she affirmatively withdrew the form in September of 2011, and thus abandoned the conspiracy. There are several problems with this argument. First, it was not raised before the district court and thus is not properly before us. See United States v. Nee, 261 F.3d 79, 86 (1st Cir.2001) ("It is a cardinal principle that [i]ssues not squarely raised in the district court will not be entertained on appeal." (citation and internal quotation marks omitted)) (alteration in original). Second, it lacks evidentiary support. The stipulation states simply that the form was withdrawn; it does not state when or by whom. Third, mere withdrawal of the I-751 is insufficient to constitute abandonment of the conspiracy, which requires that the conspirator "act affirmatively either to defeat or disavow the purposes of the conspiracy, such as by confessing to the authorities or informing his coconspirators that he has forsaken the conspiracy and its goals." United States v. Mehanna, 735 F.3d 32, 57 (1st Cir.2013) (citation and internal quotation marks omitted). Finally, even if Stewart did abandon the conspiracy in 2011, that would mean only that she would not be liable for post-abandonment conduct of her co-conspirators. See United States v. Guevara, 706 F.3d 38, 45-46 (1st Cir.2013). Withdrawal within the statute of limitations period does not shield a conspirator from liability for pre-withdrawal acts. Id. at 46 & n. 8. Thus, Stewart's purported withdrawal offers her no protection.
For the foregoing reasons, we affirm Stewart's conviction.
Also at oral argument, Stewart cited United States v. Rojas, 718 F.3d 1317 (11th Cir.2013) (per curiam), for the proposition that the offense was complete at the time the marriage occurred. Rojas is inapt; the offense charged there was marriage fraud, not conspiracy. See id. at 1319. The relevant statutory language, making it an offense to "knowingly enter[] into a marriage for the purpose of evading any provision of the immigration laws," 8 U.S.C. § 1325(c), necessarily means that the crime is complete upon "enter[ing]" the marriage and "cannot plausibly be read to require that a defendant take the additional step of filing for immigration benefits in order for the crime to be complete," Rojas, 718 F.3d at 1320.