United States v. Hasmukh C. Patel , 400 F. App'x 426 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-14985 OCTOBER 1, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 08-00182-CR-CC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HASMUKH C. PATEL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 1, 2010)
Before HULL, MARTIN and FAY, Circuit Judges.
HULL, Circuit Judge:
Defendant Hasmukh Patel appeals his convictions on various immigration
fraud-related charges and his 40-month imprisonment sentence. After review and
oral argument, we affirm.
I. BACKGROUND
The jury convicted Defendant Patel on 12 counts relating to his helping an
Indian couple, Jayesh and Darshana Patel (“Jayesh” and “Darshana,” respectively)
obtain fraudulent visas to come to the United States. Although Patel represented
that Darshana would work at his home, Patel in fact did not provide her
employment.1 Twenty witnesses testified for the government, including Jayesh
and Darshana. We recount the trial evidence.
A. Visa Fraud
Defendant Patel was employed as an adjudications officer for the United
States Citizenship and Immigration Services (“CIS”) in Atlanta, Georgia. Patel
processed applications for permanent residency and U.S. citizenship.
Kamlesh Patel (“Kamlesh”) was a friend of Defendant Patel’s wife. In mid-
2005 Kamlesh told Defendant Patel he wanted to bring his brother, Jayesh, from
India to the United States.2 Defendant Patel responded that he knew someone who
could do the paperwork for a visa application for $100,000. Kamlesh agreed and
paid Defendant Patel the $100,000 in cash in three installments.
1
Although they share the last name “Patel,” the defendant is not related to Jayesh or
Darshana Patel.
2
Kamlesh was a lawful resident of the United States.
2
For the first step in the H-2B work visa application process, Defendant Patel
and his wife applied to the U.S. Department of Labor (“DOL”) for a labor
certificate on behalf of Darshana.3 Patel’s application (1) listed Darshana as the
employee; (2) stated that Patel and his wife needed an unskilled worker to live and
work in their home in McDonough, Georgia to assist his medically handicapped
wife in caring for their children and running the household; and (3) stated Patel and
his wife had tried to find a qualified U.S. worker by advertising in a local
newspaper, the Atlanta Journal-Constitution, but were unable to recruit a suitable
candidate.4 DOL issued the labor certificate.
For the next step in the H-2B visa process, Defendant Patel and his wife, as
the employers, filed a petition for a notice of approval with CIS. They also paid a
3
The H-2B visa allows foreign workers to enter the United States for temporary
employment. 8 U.S.C. § 1101(a)(15)(H)(ii)(b); 8 C.F.R. § 214.2(h). The H-2B application
process has three steps. First, the employer applies to DOL for a labor certificate. 8 C.F.R. §§
214.2(h)(1)(ii)(D) and 214.2(h)(6)(iii)(A). In this application, the employer must advise whether
or not United States workers capable of performing the temporary services or labor are available
so that DOL can make the required determination that employment of the foreign worker will
not adversely affect the employment of any similarly situated U.S. worker in the area. Id. §
214.2(h)(6)(iii)(A). Second, the employer applies to CIS for a notice of approval. Id. §
214.2(h)(6)(iii)(E). Finally, the alien-employee applies to the Department of State for the work
visa. For non-resident alien-employee applicants, such as Jayesh and Darshana, this final step is
done at the U.S. consulate in the alien’s current country of residence.
The spouse of an H-2B visa-holder may obtain an H-4 visa to accompany the other
spouse to the United States.
4
The person who responded to Defendant Patel’s newspaper ad, Teresa Fruit Longo,
testified that she was available for the position because she was about to end a similar position as
a live-in nanny. During her interview at Patel’s home, Longo found Patel to be abrupt and cold,
and she thought Patel did not want her to fill the position.
3
$1,000 fee for accelerated processing. The petition stated that Darshana would live
and work in Defendant Patel’s household and that the employment time frame
would be from December 22, 2005 to August 30, 2006. CIS approved Darshana
for an H-2B visa as an unskilled, temporary worker.
For the final step in the visa process, Jayesh and Darshana applied for their
visas at the U.S. consulate in Mumbai, India. Before they applied, Defendant Patel
advised Jayesh by e-mail that Darshana was supposed to work at his home as a
housekeeper. Defendant Patel also told Jayesh that, in their visa interviews, he and
Darshana should discuss how they found the job, where they planned to live, and
to state that in India Darshana was employed as a housekeeper and therapist, which
was not true.5
At first, Jayesh and Darshana’s visa applications were denied because they
failed to show sufficient ties to India and their intent to return there when their
visas expired. When Defendant Patel learned the applications were denied, he
called the U.S. consulate in Mumbai and spoke with Angela Kerwin, a foreign
service officer in charge of nonimmigrant visas. Patel identified himself to Kerwin
as a Department of Homeland Securities (“DHS”) employee and explained that he
was the employer who filed the visa petition. Patel assured Kerwin the petition
5
In India, Darshana taught various subjects to third- to fifth-grade-aged children in her
home. She had a master’s degree in chemistry.
4
was based on his legitimate need for a caregiver because of his wife’s health and
that he would ensure Darshana would return to India after her visa expired.
Kerwin told Patel that, if Darshana and Jayesh reapplied for their visas, she would
personally review their applications. Kerwin directed one of her employees to
notify her when Jayesh and Darshana reapplied for their visas. Patel then sent
Jayesh an e-mail, advising Jayesh and Darshana that when they reapply for their
visas, they should take property records and other documents with them to show
their ties to India and intent to return there.
Jayesh and Darshana reapplied for their visas, and this time they were
approved. Kerwin, the same foreign service officer with whom Defendant Patel
personally spoke, issued the visas.
After getting their visas, Jayesh and Darshana traveled from India to Atlanta.
Kamlesh picked them up at the Atlanta airport. They drove directly to Camilla,
Georgia, which is approximately 220 miles south of Atlanta. On the way, Jayesh
called Defendant Patel to say he and Darshana had arrived in Atlanta and were on
their way to Camilla. Patel said nothing about Darshana’s coming to work in his
home in McDonough.
About a week later, Jayesh and Darshana moved from Camilla to
Brunswick, Georgia, where they worked at Kamlesh’s convenience store and lived
5
in a motel owned by Jayesh’s uncle. Shortly after arrival in Brunswick, Jayesh and
Darshana went to Defendant Patel’s home in McDonough “[j]ust to say hello.”
They stayed for a few hours, and no one discussed whether Darshana would work
for Defendant Patel.
Sometime later, Jayesh met with Defendant Patel at Patel’s home. During
that meeting, Patel told Jayesh that, in order to keep their visas, Darshana had to
show she was getting paid for her work and that they could do this by keeping
records of her paychecks. Patel wrote several sequentially numbered checks made
payable to Darshana, dated from April 15 to June 30, 2006, and sent them to
Jayesh. Although Patel wrote the checks in August, he backdated them from April
to June. The check numbered as coming immediately before the April 15 check
was dated after it – on May 22, 2006. Defendant Patel also gave Jayesh false
paycheck stubs to show that Darshana was working for Patel. Darshana never did
any work for Defendant Patel.6
At a later meeting, Defendant Patel gave Jayesh another series of backdated
checks that purported to be paychecks to Darshana. Those checks were dated from
July 15 to August 31, 2006. The checks were sequentially numbered. The three
6
Although a friend of Defendant Patel’s wife testified that she saw Darshana working at
Defendant Patel’s home “four or five times,” Kamlesh, Jayesh, and Darshana herself testified
that Darshana never worked there.
6
checks numbered as coming immediately before the July 15 check were all dated
after it – in September 2006. Because neither Jayesh nor Darshana ever worked
for Defendant Patel or his wife, Jayesh returned the amount of the purported
paychecks to Patel in cash.
Sometime before Jayesh and Darshana came to the United States, Defendant
Patel had asked Kamlesh to pay him an additional $4,000 as a fee for the visa
application paperwork. Kamlesh gave Patel a $4,000 check, on which he left the
date and payee lines blank. The $4,000 check eventually was dated March 6, 2006
and made payable to “Paranjay,” Defendant Patel’s friend and former business
partner Paranjay Joshi. The check was deposited into Joshi’s checking account
without his knowledge.
In March 2007, Jayesh agreed to cooperate with federal investigators and
participate in a recorded meeting with Defendant Patel.7 During the meeting,
Jayesh told Patel that he and Darshana were contacted by immigration authorities
about Darshana’s visa and her employment with Patel. Jayesh told Patel that he
was worried about what he and Darshana should say to the immigration authorities
about her employment with Patel.
Defendant Patel gave Jayesh a written copy of Darshana’s job description
7
Because they cooperated with the authorities, Jayesh and Darshana were allowed to stay
in the United States.
7
for Darshana to read. When Jayesh told Defendant Patel, “The main fear I have,
that Darshana’s never worked here and if they ask her the question it could be a
problem, nothing else,” Patel responded, “Yeah, that’s correct.” Jayesh suggested
he spent more than $100,000 to come to the United States, and Patel responded,
“that’s true.” When Jayesh told Patel he was worried about getting into trouble
after spending this money, Patel said to Jayesh, “If you have a problem, then I will
have a big problem.” Patel told Jayesh he should report back to him after the
immigration interview, so that he would know what the interviewers asked in the
event they chose to interview Patel himself.
B. Computer Access Violations
As an adjudications officer with CIS, Defendant Patel had access to the DHS
Customs and Border Protection computer network system, which was called “The
Enforcement Communications System” (“TECS”). TECS stores information about
individuals and businesses that are under investigation for immigration fraud or
that have engaged in illegal activity. The evidence at trial showed that, as an
adjudication officer, Patel would have received training on the authorized uses of
TECS and was certified to make inquiries in TECS.
On June 20, 2005 and September 21, 2005, Defendant Patel ran his own
name and date of birth in TECS. On October 21, 2005, Patel ran Jayesh’s name
8
and date of birth in TECS. Rand Gallagher, a CIS Associate Regional Director of
the Office of Fraud Detection and National Security, testified that an authorized
user of TECS would not be authorized to run his own name, or the name of a
potential employee, in TECS.
C. Jury’s Verdicts
After a nine-and-a-half-day trial, the jury convicted Defendant Patel on these
12 counts: conspiracy to encourage and induce Jayesh and Darshana to come to,
enter, and reside in the United States in violation of law, and that thereafter they
concealed, harbored, and shielded them from detection, in violation of 8 U.S.C. §
1324(a)(1)(A)(v)(I) (Count 1); encouraging and inducing Jayesh and Darshana to
come to, enter, and reside in the United States in violation of law, in violation of 8
U.S.C. § 1324(a)(1)(A)(iv) (Counts 2 and 3); concealing, harboring, and shielding
Jayesh and Darshana once they illegally entered the United States, in violation of 8
U.S.C. § 1324(a)(1)(A)(iii) (Counts 4 and 5); making false statements on an
application for alien employment certification and submitting that application to
DOL, in violation of 18 U.S.C. § 1546 (Count 6); making the false statement in an
immigration petition that Darshana would be employed in Defendant Patel’s
household and presenting that petition to CIS, in violation of 18 U.S.C. § 1546(Count 7); as an employee of DHS, demanding and receiving money in return for
9
being influenced to commit a fraud on the United States, by accepting money from
Kamlesh to obtain a work visa for Darshana and a visa for her husband, and by
submitting forms to DOL and CIS that falsely stated Darshana would be employed
in Defendant Patel’s household, in violation of 18 U.S.C. §§ 201(b)(2)(B) and 2
(Count 11); and accessing a law enforcement computer system without
authorization on June 20, September 21, and October 21, 2005, in violation of 18
U.S.C. § 1030(a)(2)(B) (Counts 12 to 15).8
D. Sentencing
The presentence investigation report (“PSI”) grouped all 12 counts of
conviction together, pursuant to U.S.S.G. § 3D1.2(b) (2008), “because they involve
substantially the same harm to society” as part of a “common scheme or plan.” For
Counts 1 to 5, the PSI calculated an offense level of 12, pursuant to U.S.S.G. §
2L1.1. For Counts 6 to 7, the PSI calculated an offense level of 11, pursuant to
U.S.S.G. § 2L2.1.
For Count 11, the PSI calculated an adjusted offense level of 24, consisting
8
The jury acquitted Defendant Patel on these 7 counts: conspiracy to encourage and
induce another couple, Chayaben and Darmesh Patel, to come to, enter, and reside in the United
States in violation of law, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (Count 8); encouraging
and inducing that couple to come to, enter, and reside in the United States in violation of law, in
violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (v)(II) (Counts 9 and 10); and accessing a law
enforcement computer system without authorization on January 31, 2006, in violation of 18
U.S.C. § 1030(a)(2)(B) (Counts 16 to 19).
Defendant Patel’s wife Nitigna was charged in each of Counts 1 to 10. She was not tried
with Patel, and the government ultimately dismissed the indictment against her.
10
of: (1) a base offense level of 14, pursuant to U.S.S.G. § 2C1.1; (2) an 8-level
increase because the bribe amount exceeded $70,000, pursuant to U.S.S.G. §
2B1.1(b)(1)(E); and (3) a 2-level increase because Patel was a public official who
facilitated obtaining a document related to the legal entry of an alien, pursuant to
U.S.S.G. § 2C1.1(b)(4)(B). For Counts 12 to 15, the PSI calculated an adjusted
offense level of 8, consisting of (1) a base offense level of 6, pursuant to U.S.S.G.
§ 2B1.1(a)(2) and (2) a 2-level increase because the offense involved a computer
system used by or for a government agency for ongoing investigations, pursuant to
U.S.S.G. § 2B1.1(b)(15)(A)(i).
Because U.S.S.G. § 3D1.3(a) directs that the offense level applicable to the
entire group should be the offense level for the most serious of the counts
comprising the group, the PSI used Count 11 as the applicable offense and 24 as
the total offense level. Patel’s criminal history category of I and offense level of
24 yielded an advisory guidelines range of 51 to 63 months’ imprisonment.
Patel objected to the PSI’s $100,000 bribe amount. Patel argued that (1) the
jury’s verdict supported a bribe amount of only $4,000 and (2) there was no
evidence of any other payments to him. Patel also requested a downward variance
from the 51- to 63-month advisory guidelines range, based on the 18 U.S.C. §
3553(a) factors.
11
At sentencing, the district court found that the bribe amount was $100,000.
Based on Patel’s total offense level of 24 and criminal history category of I, the
government asked for 60 months’ imprisonment. The district court determined
Patel’s advisory guidelines range was 51 to 63 months’ imprisonment.
After hearing from family, friends, and Patel’s counsel, the district court
sentenced Defendant Patel to (1) 40 months’ imprisonment on each of Counts 1 to
7 and 11 and (2) 12 months’ imprisonment on each of Counts 12 to 15, to run
concurrently.9 The district court stated that this sentence:
meets the sentencing goals of punishment and general deterrence and takes
into consideration the seven factors outlined in Section 3553, including the
need for the sentence imposed to reflect the seriousness of the offense,
promote respect for the law, provide[] just punishment, afford adequate
deterrence, protect the public, et cetera.
The sentence also takes into consideration the financial, emotional,
and psychological hardships on the Defendant’s family.
9
The statutory maximum on Count 1 is 10 years, 8 U.S.C. § 1324(a)(1)(B)(i); the
statutory maximum on Counts 2 to 4 is 5 years, 8 U.S.C. § 1324(a)(1)(B)(ii); the statutory
maximum on Count 5 is 10 years, 8 U.S.C. § 1324(a)(1)(B)(i); the statutory maximum on Counts
6 to 7 is 10 years, 18 U.S.C. § 1546(a); the statutory maximum on Count 11 is 15 years, 18
U.S.C. § 201(b); the statutory maximum on Counts 12 to 15 is 1 year, 18 U.S.C. §
1030(c)(2)(A).
Counts 1 to 5 each carried a maximum fine of not more than $250,000, 18 U.S.C. §
3571(b)(3), or, as to Count 11, the greater of $250,000 or three times the monetary equivalent of
the thing of value, 18 U.S.C. § 201(b) and 18 U.S.C. § 3571(b)(3). The district court imposed no
fine at all. The district court also imposed 3 years’ supervised release, 100 hours of community
service, and a special assessment of $900.
12
II. DISCUSSION
On appeal, Defendant Patel argues that:
1. the district court erred in admitting expert testimony from lay witnesses on
these topics: (a) the immigration application process, including CIS and
DOL practices, (b) the authorized and unauthorized uses of the TECS
computer system, and (c) the caste system in India, regarding specifically
whether a member of a certain caste would perform housework;
2. the government failed to provide adequate notice to Patel that it intended to
present 404(b) evidence that Patel made false statements to CIS (a) in an
affidavit sponsoring the immigration application of Rajendrakumar Patel,
another alien and (b) in Patel’s request for sick leave, and the district court
abused its discretion in admitting this evidence;
3. Patel’s 18 U.S.C. § 201 conviction in Count 11 should be vacated because
(a) the government failed to prove Kamlesh knew Patel was a public official
and that Kamlesh paid Patel in return for Patel’s performing a specific
official act, i.e., the quid pro pro, and (b) the district court erred in refusing
Patel’s proposed quid pro quo jury instruction;
4. the district court committed cumulative error; and
5. Patel’s 40-month sentence is unreasonable.
13
After carefully reviewing the record and briefs in this case and having the
benefit of oral argument, we conclude that all of the above issues lack merit and
only the following issues warrant further discussion.
A. Expert Testimony
Defendant Patel contends that the district court erred in admitting the
testimony of lay witnesses who testified on technical matters without being
qualified as experts and without the government providing requisite discovery
pursuant to Federal Rule of Criminal Procedure 16.
We review a district court’s rulings regarding the admissibility of lay
testimony under Federal Rule of Evidence 701 for abuse of discretion. See United
States v. Myers, 972 F.2d 1566, 1576-77 (11th Cir. 1992). Reversal is not
warranted where “an error had no substantial influence on the outcome, and
sufficient evidence uninfected by error supports the verdict.” United States v.
Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990).
Rule 701 provides that lay testimony must be confined to opinions that are
“(a) rationally based on the perception of the witness, (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other specialized knowledge within the
14
scope of Rule 702.”10 Fed. R. Evid. 701. If expert testimony under Rule 702 is
implicated, Federal Rule of Criminal Procedure 16 requires the government to
provide written summaries of any expert witness testimony it seeks to introduce at
trial in its case-in-chief. Fed. R. Crim. P. 16(a)(1)(G). This summary “must
describe the witness’s opinions, the bases and reasons for those opinions, and the
witness’s qualifications.” Id.Defendant Patel argues that the testimonies of DOL employee Isabel Jean-
Pierre and DHS employees Robert DeJulius, Mark Cox, Rand Gallagher, Lori
Hazenstab, and Dwight Faulker concerned specialized technical knowledge and
were improperly admitted as lay opinions. Since these testimonies were similar in
subject matter, we analyze them conjointly.
These government witnesses worked in the field of immigration and testified
about various procedures and training concerning the labor certification and H2-B
visa application processes, the policies employed in adjudicating visa petitions, and
the authorized uses of TECS. Notably, the testimonies of these government
employees were grounded in first-hand knowledge of departmental protocol and
10
Federal Rule of Evidence 702 states that “[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts
or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness
has applied the principles and methods reliably to the facts of the case.” Fed. R. Evid. 702.
15
experience accumulated in the realm of immigration work. See United States v.
Marshall, 173 F.3d 1312, 1315 (11th Cir. 1999) (stating the opinion of a lay
witness is “admissible only if it is based on first-hand knowledge or observation”);
see also Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d
1213, 1223 (11th Cir. 2003) (district court did not abuse its discretion in admitting
lay testimony of repair company employees based on their “particularized
knowledge garnered from years of experience within the field”). The testimonies
of these government employees were both rationally based on their own
perceptions about work procedures they had been trained to follow and were
helpful to the jury in determining a fact in issue. Therefore, the district court did
not abuse its discretion in admitting the testimonies of these government
employees as lay witnesses.
Even assuming, arguendo, that this testimony constituted expert testimony,
Defendant Patel suffered no prejudice to his substantial rights by the government’s
failure to provide Rule 16(a)(1)(G) notice and discovery. See United States v.
Dulcio, 441 F.3d 1269, 1275 (11th Cir. 2006) (stating that “‘[e]rror in the
admission or exclusion of evidence is harmless if it does not affect the substantial
rights of the parties’” in case alleging improper admission of lay testimony)
(quoting United States v. Cameron, 907 F.2d 1051, 1059 (11th Cir. 1990)). As an
16
adjudications officer with CIS, Patel was intimately familiar with the H2-B visa
application procedures, including the prerequisite labor certificate, and had access
to TECS, enabling the opportunity for robust cross-examination. See Agro Air
Assocs. v. Houston Cas. Co., 128 F.3d 1452, 1456 (11th Cir. 1997) (stating that
“[b]ecause [defendant] had the opportunity to cross-examine the witnesses, any
objection to the testimony went to the weight of the evidence, not to its
admissibility” in case alleging improper admission of lay testimony). Moreover,
Patel had full notice of the government’s intent to show that he had unauthorizedly
accessed TECS, as Counts 12 through 18 of the indictment specifically alleged this
conduct. These factors mitigate any surprise that could be attributed to the
government employees’ testimony.
Additionally, the district court did not abuse its discretion by admitting the
testimony of Angela Kerwin, a foreign service officer with the Department of
State. Patel challenges only Kerwin’s testimony that individuals who provide
caregiver work in India typically belong to a particular caste. Kerwin, however,
stated that a State Department adjudicator is trained to be familiar with the castes
and work experience of H2-B visa petitioners and that someone in a white collar or
professional job is unlikely to move to a caregiver job. Therefore, if someone who
previously held a white collar or professional position were to pursue a more
17
menial vocation overseas, this would raise suspicions of fraud.
Importantly, Kerwin essentially testified regarding the training State
Department adjudicators received and what information they would find relevant in
assessing a petitioner’s H2-B visa application. Kerwin’s testimony reflected broad
statements of fact and never asserted that the Patels were of a particular caste or
that the caste that the Patels belonged to did not provide caregiver work. On the
contrary, it was Jayesh Patel who, without objection from defense counsel, stated
that “we are in an upper grade of the society where we are Patels and we are well
off. We are not in that need where a lady of a house would go to do maid work.”
The generalized and limited scope of Kerwin’s statements regarding India’s
caste system attenuates Defendant Patel’s assertion that her testimony related to
“scientific, technical, or other specialized knowledge.” Kerwin provided fact-
based observations about what information State Department officials deem
relevant in adjudicating visa applications. While she acknowledged the existence
of castes in Indian culture, Kerwin provided neither detailed categorizations of who
belongs in what caste nor any other information requiring cultural expertise.
Moreover, given that India’s caste system is a matter of common knowledge, it is
doubtful that Kerwin’s brief comments were beyond the ken of the average citizen.
Even assuming, arguendo, that Kerwin’s testimony was improperly
18
admitted, any error was harmless. If a district court has improperly admitted
testimony in a criminal prosecution, the errors are deemed harmless unless they
“have a ‘substantial influence’ on the outcome of a case or leave ‘grave doubt’ as
to whether they affected the outcome of a case.” United States v. Frazier, 387
F.3d 1244, 1266 n.20 (11th Cir. 2004) (quoting Kotteakos v. United States, 328
U.S. 750, 764-65, 66 S. Ct. 1239, 1248 (1946)).
We harbor no such “grave doubts” here. Given the unchallenged testimony
of Jayesh Patel, who directly testified that the Patels were of a caste that would
never do maid work for another family, Kerwin’s testimony on the issue of castes
was essentially cumulative and added little, if anything, to the government’s case.
See United States v. Henderson, 409 F.3d 1293, 1300-01 (11th Cir. 2005) (holding
that admission of physician’s statements as lay opinion testimony was not
prejudicial because it was not integral to prosecution’s case and was duplicative of
other testimony). Even if Kerwin’s testimony helped corroborate the government’s
contention that Defendant Patel never intended Darshana Patel to work in his
house, this allegation received ample substantiation from other compelling
sources.11 Thus, even if the district court improperly admitted Kerwin’s testimony
11
Jayesh testified that his wife Darshana began working in Kamlesh’s convenience store
in Brunswick, Georgia upon arrival in the United States and never worked for Patel. The
government also produced exhibits demonstrating that Patel backdated paychecks to cover up
this fact.
19
as that of a lay witness, Patel was in no way prejudiced by the error.
B. Bribery under § 201(b)(2)(B)
Only Count 11 involved a bribery conviction under 18 U.S.C. §
201(b)(2)(B). Specifically, § 201(b)(2) proscribes a public official’s receiving a
bribe:
(b) Whoever --
...
(2) being a public official . . . directly or indirectly, corruptly
demands, seeks, receives, accepts . . . anything of value personally . . .
in return for:
(A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to
collude in, or allow, any fraud, or make opportunity for the
commission of any fraud, on the United States; or
(C) being induced to do or omit to do any act in violation of the
official duty of such official or person;
...
shall be fined . . . or imprisoned for not more than fifteen years, or both . . . .
18 U.S.C. § 201(b)(2) (emphasis added). Section 201 defines “public official” to
include “an officer or employee or person acting for or on behalf of the United
States.” Id. § 201(a)(1). Accordingly, Defendant Patel violated § 201(b)(2)(B) if:
(1) he was an employee of the United States and (2) he corruptly demanded or
accepted a thing of value (3) in return for being influenced to aid in committing
any fraud on the United States. Id. § 201(b)(2)(B).
Defendant Patel argues that the government failed to prove Kamlesh knew
20
Defendant Patel was a public official. The plain language of § 201(b)(2)(B),
however, requires that the government prove only the intent of the public official,
not the person making the bribe.12 We decline to read any such requirement into §
201(b)(2)(B).
We also reject Defendant Patel’s argument that the government must prove
the he accepted the bribe in return for a specific official act by him, what Patel calls
a specific “quid pro quo.” Section 201(b)(2)(B) contains no requirement that the
public official defendant must perform a specific official act in return for the bribe.
Rather, it requires only what the statute says: that the government show the public
official received something of value in return for “being influenced to . . . aid in
committing, . . . or allow [] any fraud, . . . on the United States.” Id. §
201(b)(2)(B). This is underscored by the fact that other subsections of § 201
expressly refer to an “official act,” but § 201(b)(2)(B) does not. See 18 U.S.C. §
201(b)(1)(A) (prohibiting paying an official “with intent . . . to influence any
official act”), (b)(2)(A) (prohibiting an official from accepting payment in return
for “the performance of any official act”), and (b)(1)(C) and (b)(2)(C) (prohibiting
12
“When construing a criminal statute, [this Court] begin[s] with the plain language;
where ‘the language Congress chose to express its intent is clear and unambiguous, that is as far
as we go to ascertain its intent because we must presume that Congress said what it meant and
meant what it said.’” United States v. Browne, 505 F.3d 1229, 1250 (11th Cir. 2007) (quoting
United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc)).
21
giving and receiving, respectively, a thing of value to induce acts in violation of
the “lawful” or “official” duty of a public official); see also United States v. Leyva,
282 F.3d 623, 625 (9th Cir. 2002) (concluding that § 201(b)(2)(B) contains no
“official act” element, and stating “‘[w]here Congress includes particular language
in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion’”) (quoting Gozlon-Peretz v. United States, 498 U.S. 395,
404, 111 S. Ct. 840, 846-47 (1991)).13
For the same reasons, we also reject Patel’s argument that the district court
erred by refusing to give his proposed quid pro quo jury instruction.14 The district
court charged the text of § 201(b)(2)(B)15 and Patel has shown no reversible error
13
Defendant Patel’s reliance on United States v. Sun-Diamond Growers of California,
526 U.S. 398, 119 S. Ct. 1402 (1999), for the proposition that § 201(b)(2)(B) contains an
“official act” requirement is misplaced. Sun-Diamond involved only § 201(c)(1)(A), which
proscribes the giving of a thing of value to a public official and requires that the bribe-payor
make that payment “for or because of any official act performed or to be performed by such
public official.” Unlike subsection (c)(1)(A), subsection (b)(2)(B) criminalizes only conduct by
the public official, not the bribe-payor, and contains no language requiring an “official act.”
Sun-Diamond does not help Defendant Patel.
14
We review the legal correctness of a jury instruction de novo . . . but defer on questions
of phrasing absent an abuse of discretion.” United States v. Prather, 205 F.3d 1265, 1270 (11th
Cir. 2000) (citations omitted). “Generally, district courts ‘have broad discretion in formulating
jury instructions provided that the charge as a whole accurately reflects the law and the facts,’
and we will not reverse a conviction on the basis of a jury charge unless ‘the issues of law were
presented inaccurately, or the charge improperly guided the jury in such a substantial way as to
violate due process.’” Id. (quoting United States v. Arias, 984 F.2d 1139, 1143 (11th Cir. 1993)).
15
The district court’s charge was as follows:
22
in the district court’s charge.
C. Sentencing Issues
Defendant Patel argues that his 40-month sentences on each of Counts 1 to 7
and 11, to run concurrently, are unreasonable. We review the reasonableness of a
sentence for abuse of discretion using a two-step process. United States v. Pugh,
515 F.3d 1179, 1190 (11th Cir. 2008). We look first at whether the district court
committed any significant procedural error and then at whether the sentence is
substantively reasonable under the totality of the circumstances. Id. The party
challenging the sentence bears the burden to show it is unreasonable in light of the
record and the § 3553(a) factors. United States v. Thomas, 446 F.3d 1348, 1351
Ladies and gentlemen of the jury, Count Eleven charges that the Defendant
violated Title 18, United States Code, Section 201(b)(2)(B). That statute makes it
a federal crime or offense for an employee of a department or agency of the United
States to corruptly demand, seek, receive, accept and agree to receive and accept
money in exchange for being influenced to commit or allow a fraud to be committed
on the United States Government.
The defendant may be found guilty of that offense only if all of the following
facts are proved beyond a reasonable doubt: First, that the Defendant was an
employee of the United States Government, as charged; second, that the Defendant
demanded, sought, received, accepted or agreed to receive or accept a sum of money;
third, that the money was in return for the Defendant being influenced to commit, aid
in the commission, or allow a fraud to be committed on the United States
Government; and fourth, that in so doing the Defendant acted corruptly.
Ladies and gentlemen of the jury, an act is done corruptly if it is performed
voluntarily, deliberately, and dishonestly for the purpose of either accomplishing an
unlawful end or result or of accomplishing some otherwise lawful end or lawful
result by an unlawful method or means.
Ladies and gentlemen of the jury, an employee of the United States
Department of Homeland Security, Citizenship and Immigration Services, would be
an employee of the United States.
23
(11th Cir. 2006).
Here, Defendant Patel has not shown his 40-month sentence is procedurally
unreasonable. Patel mainly argues the district court erred in determining the bribe
amount was $100,000 and in applying the 8-level enhancement under U.S.S.G. §
2C1.1(b)(2) and the table in § 2B1.1(b). We disagree because both Kamlesh and
Jayesh testified as to the $100,000 bribe amount. See United States v. Gregg, 179
F.3d 1312, 1316 (11th Cir. 1999) (“We accord great deference to the district
court’s credibility determinations.”). Further, in a recorded meeting, Defendant
Patel himself responded “that’s true” after Jayesh suggested he spent more than
$100,000 to come to the United States. And Kamlesh paid the $100,000 to Patel in
three cash installments, each of which occurred before Jayesh and Darshana
arrived in the United States, which is consistent with the $100,000 being a payment
to influence Patel to sponsor their visa applications.
Patel also argues the district court “failed to address the manner and
mechanism” for computing the sentences in Counts 1 and 7. The record, however,
shows the district court properly grouped all counts of conviction into one single
offense, pursuant to U.S.S.G. § 3D1.1, and used the count that carried the highest
total offense level – Count 11 (not any of Counts 1 to 7) – as the single offense to
calculate the advisory guidelines range. See U.S.S.G. § 3D1.2 (“All counts
24
involving substantially the same harm shall be grouped together into a single
Group. Counts involve substantially the same harm [when they involve] . . . the
same victim and the same act or transaction.”). Patel has not shown any procedural
error in the district court’s guidelines calculations.
Defendant Patel also has not shown his sentence is substantively
unreasonable. Indeed, after considering the § 3553(a) factors, the district court
sentenced Patel to 40 months’ imprisonment, which was below the advisory
guidelines range of 51 to 63 months.16
III. CONCLUSION
For all the foregoing reasons, we affirm Defendant Patel’s convictions and
sentence.
AFFIRMED.
16
The government did not cross-appeal as to Patel’s sentence.
25