Filed: Apr. 30, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4606 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL MITRY HADEED, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:08-cr-00461-LMB-1) Argued: March 24, 2010 Decided: April 30, 2010 Before MICHAEL and DAVIS, Circuit Judges, and Eugene E. SILER, Jr., Senior Circuit Judge of the United States Court of
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4606 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL MITRY HADEED, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:08-cr-00461-LMB-1) Argued: March 24, 2010 Decided: April 30, 2010 Before MICHAEL and DAVIS, Circuit Judges, and Eugene E. SILER, Jr., Senior Circuit Judge of the United States Court of ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4606
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL MITRY HADEED, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:08-cr-00461-LMB-1)
Argued: March 24, 2010 Decided: April 30, 2010
Before MICHAEL and DAVIS, Circuit Judges, and Eugene E.
SILER, Jr., Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
Affirmed by unpublished opinion. Senior Judge Siler wrote the
opinion, in which Judge Michael and Judge Davis joined.
ARGUED: Laurin Howard Mills, LECLAIR RYAN, PC, Alexandria,
Virginia, for Appellant. Joshua L. Rogers, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
William B. Cummings, WILLIAM B. CUMMINGS, PC, Alexandria,
Virginia, for Appellant. Anthony Asuncion, Special Attorney to
the Attorney General of the United States, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
SILER, Senior Circuit Judge:
Michael Hadeed, Jr., was convicted by a jury of conspiracy
to commit immigration fraud and to defraud the United States in
violation of 18 U.S.C. § 371 and aiding and abetting a material
false statement to a United States government agency in
violation of 18 U.S.C. §§ 1001 and 2. He now appeals his
conviction on three alleged errors: (1) admission of certain
testimonial evidence; (2) insufficient evidence; and (3) jury
instructions. For the following reasons we AFFIRM.
I. FACTUAL & PROCEDURAL BACKGROUND
A. Factual Background
Hadeed is a Virginia attorney engaged in the practice of
immigration law. Antoine “Tony” Tahan, a former client of
Hadeed, owns and operates the King of Pita Bakery. Hadeed
provided general legal services to Tahan for several years.
Hadeed’s conviction was based on an agreement between himself
and Tahan, in which Tahan’s business sponsored immigrants to
work as bakers so that they could obtain legal permanent
resident status based on fraudulent information. Tahan pleaded
guilty to immigration fraud and testified on behalf of the
government.
3
1. Legal permanent resident status for a skilled worker
Obtaining a labor certification to enter the United States
and attaining lawful permanent resident status as a skilled
worker involves a four-part process. First, the employer must
allow skilled American workers the opportunity to apply for the
position. Second, if the employer cannot find an American
worker to fill the position, the employer and prospective alien
employee apply for a labor certificate by submitting Form ETA-
750 to a state employment agency and, if approved by the state,
to the United States Department of Labor. That form describes
the qualifications required for the position and the alien’s
relevant job experience or education. The alien must attach an
“experience letter,” written by a prior employer in the alien’s
home country that sets forth his place of prior employment,
position, duration of his employment, and salary. If this
letter contains false information, the request for certification
will be denied and could result in the alien’s being barred for
life from the United States.
Third, if the Department of Labor issues a labor
certification, the employer then files an Immigrant Petition for
Alien Worker, known as a Form I-140, with the former Immigration
and Naturalization Service (“INS”), now the Department of
Homeland Security (“DHS”). Form I-140 asserts that the alien
has sufficient job experience or education and meets the
4
requirements for the particular position. If the I-140 is
approved, the alien then submits either a Form I-485 application
for permanent residence adjustment of status (if he is living
inside the country), or a Form DS-230 application for an
immigrant visa (if he is living outside the country). The Form
DS-230 includes a “skilled worker” section so consulate offices
can confirm that aliens coming to the United States to perform a
particular job have the requisite work experience. If the
consulate office discovers that the DS-230 is fraudulent, the
visa application is denied and the office typically recommends
revocation of the petition.
2. Evidence Presented at Trial
a. Fraudulent application of Marouf Abrid
Tahan met Marouf Abrid at an airport in Beirut, Lebanon
where Abrid worked as a bartender. Abrid came to the United
States in 1999 and Tahan introduced him to Hadeed. 1 Abrid told
Hadeed that he had been working as a bartender. Nonetheless,
Hadeed told Abrid that Tahan could file a petition for him to
become an employee at King of Pita as a skilled worker. Hadeed
told Abrid that he would need an employment letter stating that
he was a baker and that he had at least four years of
1
Tahan served as a translator during the meetings between
Abrid and Hadeed.
5
experience. When Tahan showed Abrid’s letter to Hadeed, Hadeed
said it was no good because it did not state that he had four
years of experience as a baker. Tahan then drafted a second
letter for Abrid, based on what Hadeed told him should be
included. Hadeed submitted this letter with Abrid’s immigration
paperwork.
To allow skilled American workers the opportunity to fill
the position, Hadeed advertised for the position in a newspaper.
Tahan found this advertisement to be confusing, however. When
he confronted Hadeed, Hadeed told him it was not important and
that “[t]he harder it is for people to respond to [the] ad, the
better it is.”
b. Fraudulent application of Ibrahim Alakwa
In early 2000, Hadeed asked Tahan if he would be interested
in sponsoring other immigrants and told him that these
immigrants did not actually have to work at King of Pita, so
long as King of Pita was listed as their sponsor. Hadeed
indicated that if Tahan agreed to do this, Hadeed would forgive
the debt Tahan owed him for legal services. Tahan agreed.
Hadeed introduced Tahan to Ibrahim Alakwa in early 2003.
Despite Alakwa’s lack of experience in baking, Hadeed prepared
Alakwa’s immigration papers, which indicated he was an
experienced baker. Alakwa received a labor certification from
the Department of Labor. Although Tahan, Hadeed, and Alakwa did
6
not intend for Alakwa to work at King of Pita, Hadeed suggested
Alakwa should go through training at King of Pita, “in case he
would be asked by the immigration officials any questions about
the company or the process of his experience.” Hadeed also told
Tahan to issue payroll checks to Alakwa, but no money was to
change hands. Alakwa would cash his payroll checks and return
the money to Tahan.
c. Fraudulent application of Juana Pagoaga
Juana Pagoaga, a Honduran employee of King of Pita,
testified that she was introduced to Hadeed’s law firm by Ana
Araos, a paralegal at the firm. Araos led a presentation on
immigration issues at King of Pita, during which she told the
attendees that they needed an experience letter. Pagoaga
obtained a letter from her mother in Honduras and gave it to
Araos. Araos showed the letter to Hadeed. Neither Hadeed nor
Araos thought the letter was sufficient, and Araos told Pagoaga
that the letter needed to say that she had experience as a
pastry cook, even though Pagoaga did not have such experience.
Pagoaga obtained a second letter, which Hadeed used to prepare
and submit her ETA-750 and I-485.
d. Fraudulent application of Jean Claude Sakr
Jean Claude Sakr, who also pleaded guilty to immigration
fraud and cooperated with the government, testified that he met
Hadeed when he was seeking assistance with an application for
7
political asylum. Instead, Hadeed suggested he apply for
employment sponsorship, because it was easier and faster.
Shortly after Sakr began working at King of Pita, he showed
Hadeed two experience letters he had brought with him from
Lebanon, indicating his experience as a bartender. Hadeed told
him there were too many bartenders in America, and that he
needed a letter stating he was a baker. Sakr obtained a letter,
and Hadeed prepared Sakr’s application with it. His application
was denied, however, due to fraudulent documentation.
e. Fraudulent application of Charbel Freifer
Sakr introduced Charbel Freifer to Tahan, who then
introduced Freifer to Hadeed. 2 Although Freifer had a student
visa, Hadeed was going to help him get a work visa. Freifer
told Hadeed he had never been a baker, but Hadeed told him that
he needed a letter attesting to the fact that he had worked as a
baker. Freifer obtained such a letter, which Hadeed used in
preparing and submitting his Form ETA 750 labor certification
application and his Form DS-230 visa application. Before any
agency action was taken on the Form DS-230, Hadeed had stopped
working on Freifer’s case, and Freifer had obtained new counsel.
2
Tahan also served as a translator for Hadeed during these
meetings.
8
f. Hadeed’s statements
Vikki Ravinskas, the office manager at Hadeed’s law firm,
testified regarding two conversations she had with Hadeed. In
one instance, Ravinskas received a phone call from Araos, who
told Ravinskas that she had been arrested for immigration fraud
and asked Ravinskas to tell Hadeed. When Ravinskas told Hadeed
that information, he became very agitated and said, “It should
have been me that they were coming for. It should have been me,
not Ana.” He also said he needed to get an attorney. In
another instance, Ravinskas told Hadeed that she had learned
that Tahan was cooperating with the government. Hadeed became
frantic and said, “They’re coming for me next. I should have
known. I shouldn’t have been in this. They’re coming for me
next.”
g. Mark Mancini’s testimony
Hadeed’s theory of the case was that he was unaware of the
fraud. Instead, he relied on Tahan, who interpreted for many of
the aliens, to truthfully convey their experience. Hadeed
called one expert witness, Mark Mancini, who was qualified as an
expert in the practice of immigration law. Mancini testified as
to the standards that immigration attorneys are expected to
uphold. In particular, he explained that immigration attorneys
assisting aliens who are seeking a labor certification should
first explain the job experience requirement for that particular
9
position. He also explained that it was standard practice to
provide a handwritten sample of an experience letter for the
client. He further stated that if a client brought back a
letter without all of the required information, he would tell
him it needed to be corrected. However, Mancini said that if he
knew a client was not qualified for a particular position, but
intended on pursuing the application, he would refuse to
represent him. Moreover, he would never counsel a client to
obtain an experience letter for work experience he knew the
client did not have.
Mancini also testified that because Virginia’s unemployment
level between May 2001 and April 2004 was low, there was not a
significant difference between the demand for skilled and
unskilled workers. Accordingly, the wait for approval as a
skilled worker was roughly equivalent to that of an unskilled
worker. Additionally, unskilled applicants did not need to
submit a letter establishing their work experience. He stated
that all immigration lawyers would have known that fact.
B. Procedural Background
At the close of the government’s case, the district court
granted Hadeed’s motion under Federal Rule of Criminal Procedure
29(a) to dismiss two additional counts for lack of evidence.
The district court denied Hadeed’s motion for a jury instruction
10
on multiple conspiracies, and the jury convicted Hadeed of the
remaining counts. The district court denied Hadeed’s motion for
judgment of acquittal or, in the alternative, a new trial.
Hadeed was sentenced to two years’ probation and a $2000 fine.
II. ANALYSIS
A. Statement to Ravinskas
Hadeed contends that the district court abused its
discretion in failing to exclude part of Ravinskas’s testimony.
We review the district court’s evidentiary rulings for abuse of
discretion, and “we will not vacate a conviction unless we find
that the district court judge acted arbitrarily or irrationally
in admitting evidence.” United States v. Basham, 561 F.3d 302,
325-26 (4th Cir. 2009) (internal quotation marks and citations
omitted).
Hadeed objected to the testimony by Ravinskas concerning
Hadeed’s statement when he found out that Araos was arrested.
Araos’s arrest was, in fact, connected to a separate immigration
fraud scheme, the Pillar investigation. In a pre-trial ruling,
the district court excluded as irrelevant the introduction of
any evidence related to this investigation.
Although Hadeed’s brief focused exclusively on Rule 404(b),
at oral argument he claimed that the testimony was inadmissible
under Rule 401, not 404(b). Under Rule 401, relevance “means
11
evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401. Rule 404(b), which excludes
“[e]vidence of other crimes, wrongs, or acts” when admitted “to
prove the character of a person in order to show action in
conformity therewith,” Fed. R. Evid. 404(b), limits only the
admission of evidence of acts extrinsic to the one charged, but
does not limit the admission of evidence of intrinsic acts.
United States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996). Other
acts are intrinsic when they are “inextricably intertwined or
both acts are part of a single criminal episode or the other
acts were necessary preliminaries to the crime charged.”
Id.
(internal quotation marks omitted).
The evidence indicates that Hadeed had no knowledge of the
Pillar conspiracy. 3 Ravinskas’s testimony also does not indicate
whether she specified the basis for Araos’s arrest. Because
Hadeed did not know about the Pillar investigation when
Ravinskas told him that Araos had been arrested for immigration
fraud, he appears to have assumed her arrest was based on either
3
At oral argument, counsel for Hadeed stated that when
Hadeed made this statement, he knew that Araos had been arrested
pursuant to the Pillar investigation. However, he never
indicated that fact in his briefs.
12
the King of Pita scheme or some other general immigration fraud
scheme. Either way, his response, “It should have been me, not
Ana,” demonstrated a consciousness of guilt for acts that were
inextricably intertwined to the King of Pita scandal. In
addition, the statement corroborated a similar subsequent
statement he made to Ravinskas upon learning that Tahan was
cooperating with the government. Accordingly, the statement was
relevant and intrinsic to the charge at issue. 4
B. Materiality of False Statement
Under 18 U.S.C. § 1001 it is unlawful to knowingly and
willfully make a material false statement to any government
agency. Hadeed was charged with aiding and abetting Freifer in
submitting Form DS-230 to the Department of State, which
contained the false statement that Freifer had been employed as
4
Moreover, any error was harmless. “Where error is founded
on a violation of Rule 404(b), the test for harmlessness is
‘whether we can say with fair assurance, after pondering all
that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the
error.’” United States v. Madden, 38 F.3d 747, 753 (4th Cir.
1994) (quoting United States v. Nyman,
649 F.2d 208, 211-12 (4th
Cir. 1980)). In light of Hadeed’s second statement to
Ravinskas, the verdict was not substantially swayed by any error
in admitting his first statement. The jury heard evidence that
Hadeed’s second statement was made in direct response to his
discovery of the underlying investigation at issue in this case,
and this statement was more heavily relied upon by the
government. There was also ample additional testimonial
evidence against Hadeed.
13
a baker by the Al Najah Bakery in Lebanon from 1997 to 2001.
Hadeed argues that his motion for judgment of acquittal should
have been granted as to this count, because the false statement
at issue was not material as a matter of law. We review a
district court’s denial of a motion for judgment of acquittal de
novo, viewing the evidence in the light most favorable to the
government. United States v. Midgett, 488 F.3d 288, 297 (4th
Cir. 2007).
A statement “is material if it has a natural tendency to
influence, or was capable of influencing, the decision of the
body to which it was addressed.” Kungys v. United States, 485
U.S. 759, 770 (1988) (internal quotation marks omitted); see
also United States v. Benkahla,
530 F.3d 300, 310 (4th Cir.
2008). In an immigration context, evidence of materiality must
be “sufficient to raise a fair inference that a statutory
disqualifying fact actually existed.”
Kungys, 485 U.S. at 783
(Brennan, J., concurring); see also United States v. Puerta,
982
F.2d 1297, 1304 (9th Cir. 2002); United States v. Agunbiade,
1999 WL 26937 at *3 (4th Cir. Jan. 25, 1999) (unpublished table)
(concluding that appellant’s failure to disclose his prior
deportation and arrest “could have influenced the INS’[s]
decision with regard to his naturalization application,” and was
therefore material).
14
Viewing the evidence in the light most favorable to the
government, there was sufficient evidence to demonstrate the
materiality of the statement at issue. For example, Cathleen
Carothers, an employee of the Department of State, in the Bureau
of Consular Affairs, which offers legal advisory opinions on
visa issues, testified that “[i]f fraud was found [in the Form
DS-230], . . . and it . . . qualified for an ineligibility, then
the consular officer would find the applicant ineligible for the
visa and would typically return the petition to DHS with a
recommendation of revocation.”
Hadeed argues that because the circumstances in Virginia
would have allowed Friefer to qualify for a visa as an unskilled
worker, a fact that was supported by expert testimony, the
statement was not material. However, even if Freifer could have
qualified for an employment-based visa without work experience,
the particular type of visa he sought required relevant work
experience. As Carothers testified, consulate offices “rely
very heavily” on the portion of the Form DS-230 that addresses
previous employment in deciding how to process a skilled worker
immigrant visa.
This case is distinguishable from Forbes v. INS, 48 F.3d
439, 443 (9th Cir. 1995) (holding that Forbes’s failure to
disclose his prior arrest on his visa application was not
material, because the charges were eventually dropped and would
15
not have impacted the visa determination); and La Madrid-Peraza
v. INS, 492 F.2d 1297 (9th Cir. 1974) (concluding that the
petitioner’s overstatement of the wages she was to receive from
her prospective job was not a material misrepresentation,
because the overstatement would not have justified a refusal to
issue a visa given that there was no evidence that her wage was
below the prevailing wage for similar jobs in her area (citing
Chaunt v. United States,
364 U.S. 350 (1960)). In the case at
hand, Freifer’s misrepresentations regarding his prior
employment history would have impacted his visa determination,
because he was applying for a skilled worker visa. As Carothers
testified, an applicant’s prior employment as listed on the Form
DS-230 is directly relevant to the issuance of such a visa.
Thus, the misstatement is the kind that would “[have] a natural
tendency to influence, or [be] capable of influencing, the
decision of the body to which it was addressed.”
Kungys, 485
U.S. at 770.
C. Conspiracy Instruction
We review a district court’s jury instructions for an abuse
of discretion. United States v. Jeffers, 570 F.3d 557, 566 (4th
Cir. 2009). In reviewing jury instructions, “we will not
reverse a conviction so long as the instructions, taken as a
whole, adequately state the controlling legal principles.”
Id.
16
at 566-67 (citing United States v. Bolden,
325 F.3d 471, 486
(4th Cir. 2003)). Hadeed argues that although the indictment
charged a single conspiracy, the government’s proof demonstrated
multiple conspiracies and the district court’s refusal to
instruct the jury on multiple conspiracies created a prejudicial
variance.
“[A] defendant may establish the existence of a material
variance by showing that the indictment alleged a single
conspiracy but that the government’s proof at trial established
the existence of multiple, separate conspiracies.” United
States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994). We will
only find error in a conspiracy instruction “if the proof of
multiple conspiracies was likely to have confused the jury into
imputing guilt to the defendant as a member of one conspiracy
because of the illegal activity of members of the other
conspiracy.” Jeffers, 570 at 567 (citation, alteration, and
internal quotation marks omitted). “A single conspiracy exists
when ‘[t]he conspiracy had the same objective, it had the same
goal, the same nature, the same geographic spread, and the same
product.’” United States v. Johnson,
54 F.3d 1150, 1154 (4th
Cir. 1995) (quoting United States v. Crockett,
813 F.2d 1310,
1317 (4th Cir. 1987)).
The government’s theory of conspiracy was that Hadeed and
Tahan formed the hub of a single conspiracy and the five aliens
17
were the co-conspirators. Relying on Kotteakos v. United
States, 328 U.S. 750 (1946) (holding there was no proof of a
single conspiracy where there was one key figure and no
connection between the co-conspirators, because “the pattern was
‘that of separate spokes meeting at a common center,’ though we
may add without the rim of the wheel to enclose the spokes”);
and United States v. Chandler,
388 F.3d 796 (11th Cir. 2004)
(applying Kotteakos and concluding the evidence did not prove a
single conspiracy, because “[u]nlike the classic hub-and-spoke
conspiracy, . . . [the defendant] was the only conspirator in
the hub, and when he moved from spoke to spoke, he moved
alone”), Hadeed contends that the government needed proof that
each of the individual aliens had to be involved in some
concerted action in furtherance of the conspiracy. What Hadeed
overlooks, however, is that this is not a conspiracy with a
single-man hub forming agreements with five individual co-
conspirators. Instead, the evidence produced at trial
demonstrated a single agreement between Tahan and Hadeed, which
formed the hub, and separate agreements with the five co-
conspirators. Accordingly, this case is distinguishable from
Kotteakos and Chandler, in which the only agreements at issue
were the individual agreements with the “spokes.” Accordingly,
18
the agreement between Tahan and Hadeed constituted a single
conspiracy and was not a variance from the indictment.
AFFIRMED
19
