United States v. Emma Gerald , 365 F. App'x 188 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14154 FEBRUARY 4, 2010
________________________ JOHN LEY
ACTING CLERK
D. C. Docket No. 06-00072-CR-01-JTC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMMA GERALD,
DOUGLAS ROSS,
HUDSON ARAUJO,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(February 4, 2010)
Before TJOFLAT and BARKETT, Circuit Judges, and BARZILAY,* Judge.
*
The Honorable Judith M. Barzilay, Judge, United States Court of International
Trade, sitting by designation.
PER CURIAM:
Hudson Araujo, Douglas Ross, and Emma Gerald were convicted, after a
jury trial, for their roles in a scheme in which they instructed immigrants, most of
whom were illegally in the United States, how to prepare and file fraudulent
applications with the United States Citizenship and Immigration Services of the
Department of Homeland Security (“USCIS”) for temporary residence, for
temporary employment authorization, and also for travel authorization in the
United States.1
The appellants all appeal their convictions, raising several different grounds.
Ross and Araujo challenge the sufficiency of the evidence underlying their
convictions. Ross and Gerald argue that the district court erred in giving the jury
an instruction on deliberate indifference. Gerald additionally argues that (1) her
due process rights were violated because the district court failed to adequately voir
dire the jury about immigration matters, and (2) the district court improperly
chastised defense counsel and criticized the defense case, thereby violating her
right to counsel and due process. Finally, Gerald appeals her sentence on the
1
Gerald was convicted of: (1) conspiracy to defraud the United States, under 18 U.S.C. §
371; (2) making false statements, under 18 U.S.C. § 1001; and (3) two counts of money
laundering, under 18 U.S.C. § 1957.
Ross and Araujo were convicted of conspiracy to defraud the United States, under 18
U.S.C. § 371.
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grounds that it was procedurally and substantively unreasonable.
I. BACKGROUND
Emma Gerald operated a business known as “EJ Consulting Services” and
held herself out as a consultant with immigration experience. At meetings around
the country, Gerald instructed immigrants, many of whom were illegally in the
United States, how to prepare and file fraudulent applications with USCIS for
temporary residence, employment authorization, and travel authorization. Ross,
who is Gerald’s son, attended the meetings and acted as her assistant. Araujo, with
Gerald’s assistance, filed one fraudulent application with USCIS and thereafter
assisted her with setting up and conducting meetings in Massachusetts, seeking
more applicants.
The fraudulent applications were filed under a USCIS-administered program
known as the CSS/Newman/LULAC amnesty program (“amnesty program”),
which provided that immigrants who met certain basic admissibility requirements
and had been illegally present in the United States prior to January 1, 1982 were
entitled to apply for temporary resident status. The program also permitted those
immigrants who met the stated criteria, but whose earlier applications were denied
because they had traveled outside the United States during their illegal residence,
to re-apply for temporary residence. In order to re-apply, the immigrant would fill
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out a worksheet that established that he or she met the specific eligibility
requirements. Once the immigrant applied for temporary residence, he or she also
became eligible for employment authorization and travel authorization. Gerald
charged the immigrants a non-refundable fee of $300 per person or $500 per
married couple for assisting in the completion of the forms and filing the
completed applications. Over time, this fee increased to $600 per person and
$1100 per married couple.
Several of the meetings Gerald held were at the Bethel Christian Church in
Marietta, Georgia. Kayttie Nogueira, who was then seventeen-years-old and a
church member, served as Gerald’s Portuguese translator for those meetings,2
prepared a flyer at Gerald’s request that advertised Gerald’s services and contact
information, and wrote residency letters after Gerald emailed to her a list of names.
At the first few meetings at Bethel Christian Church, the applicants signed
blank applications for temporary residence. Those applications were later
completed by Gerald and Ross outside of the presence of the applicant and mailed
to USCIS without the applicant ever reviewing the eligibility and admissibility
information. At subsequent meetings in Georgia, Florida, and Massachusetts,
Gerald changed the method for completing applications. Applicants were given
2
Gerald spoke English only and the majority of the attendees were Brazilians who spoke
only Portuguese.
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applications, and Gerald supplied them with the “correct” answers to the questions.
Gerald did not read or explain any of the questions nor did she permit the
applicants to leave with the applications after her presentation; instead, she mailed
them to USCIS.
When applicants expressed their concern that they did not meet the
requirements under the amnesty program to Gerald, she reassured them that their
ineligibility was not a concern because the Government did not have any records
establishing whether they had been illegally in the United States prior to 1982 nor
whether they had previously applied for the amnesty program and been denied.
The applicants signed form letters, which were then included with their
applications, stating that they or their parents had been in the United States prior to
1982. On some occasions, Gerald and others prepared applications for people who
had never been to the United States. Those applications were completed pursuant
to Gerald’s instructions and mailed to the applicants outside the United States for
their signatures.
After a jury trial, Gerald, Ross, and Araujo were convicted of all the charges
and timely filed their respective appeals.
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II. DISCUSSION
A. Araujo’s, Gerald’s, and Ross’s Convictions
1. Sufficiency of the Evidence Supporting Araujo’s and Ross’s
Convictions
Viewing the evidence in the light most favorable to the Government, see
United States v. Cooper, 203 F.3d 1279, 1285 (11th Cir. 2000), we find no merit to
the contention that there was insufficient evidence to support Araujo’s and Ross’s
conspiracy convictions. The testimony established that Ross attended meetings
with Gerald in Georgia, Florida, Massachusetts, and California, passed out
applications and residency letters, collected money, completed applications signed
by applicants, signed residency letters, and gave applicants receipts for their
payments. Witnesses also testified that Araujo collected entrance fees, introduced
Gerald at the beginning of the meetings, passed out applications and residency
letters, and reviewed each applicant’s completed application at the end of the
meetings. In addition, Ross and Araujo were present at meetings in which Gerald
informed the applicants that the Government lacked any records or ability to
ascertain their ineligibility for the amnesty program and directed the applicants,
using transparencies of the application pages on an overhead projector, how to
complete the temporary residence applications with the “correct” (i.e. fraudulent)
answers. In short, there was sufficient evidence to sustain Araujo and Ross’s
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conspiracy convictions.
2. The District Court’s Voir Dire About Immigration Matters
Gerald claims that the district court failed to adequately voir dire the jury
about immigration matters. Gerald’s counsel proposed the following instruction:
“Do you think there are any conditions under which illegal immigrants should be
given amnesty and allowed to become legal residents?” He then orally modified
the proposed instruction: “Does anyone think it is appropriate for illegal
immigrants to be given amnesty?” and “[Does anyone t]hink it is inappropriate?”
The district court instead asked: “Do any of you feel so strongly about [the] issue
[of amnesty] that if I give you your instructions on the law as to when amnesty is
and when amnesty is not appropriate, you would not be able to follow my
instructions?” The record reflects that no defendant objected to the amnesty
question posed by the district court, nor did any of the defendants request any
further voir dire by the court. Thus, our review is for plain error, and, under the
circumstances in this case, we find none. See United States v. Corey, 625 F.2d
704, 708 (5th Cir. 1980)3 (holding that the district court did not err when it
declined to use defendant’s proposed questions and “adequately covered the
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to
the close of business on September 30, 1981.
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essence of the proposed questions” through its own examination).
3. Limitation on Gerald’s Direct Examination
Likewise, the record fails to support the claim that the district court
improperly chastised defense counsel and criticized the defense case. Rather, the
record reflects that the district court interrupted Gerald’s testimony—after giving
her considerable leeway—to limit it to matters relevant to the case. Similarly, the
district court interrupted defense counsel’s questioning about the amnesty forms to
ensure that the questioning would focus on the “portions on the application which
[were] in question in the suit.” In addition, at the end of the trial, the district court
instructed the jury that it was to ignore any comments that the court had made
during the trial and reiterated that the jurors were the final arbiters of the facts.
Given the district court’s wide discretion in limiting repetitive or irrelevant
testimony and its curative instructions, we cannot say that the district court abused
its discretion in this case. See United States v. Day, 405 F.3d 1293, 1297 (11th
Cir. 2005) (holding that district court enjoys broad latitude in managing a trial,
including commenting on evidence, questioning witnesses, clarifying facts, and
limiting counsel’s examinations).
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4. The Deliberate Ignorance Jury Instruction
Finally, Gerald and Ross argue that the district court erred in giving an
instruction on deliberate ignorance (as proof of knowledge) when all of the
evidence presented pointed to actual knowledge of the fraud. This Court has held
that when evidence of actual knowledge is “so overwhelming as to compel a guilty
verdict,” the district court’s error in giving a deliberate ignorance instruction is
harmless. United States v. Rivera, 944 F.2d 1563, 1572-73 (11th Cir. 1991).
Because the evidence of Gerald’s and Ross’s actual knowledge was overwhelming,
as we have described herein, we find any error harmless.
B. Procedural and Substantive Reasonableness of Gerald’s Sentence
We review the sentence imposed by the district court for reasonableness.
United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005) (citing United States v.
Booker, 543 U.S. 220, 260-61 (2005)). After Booker, sentencing requires two
steps. First, the district court must consult the United States Sentencing Guidelines
and correctly calculate the range provided by the Guidelines. See United States v.
Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (citation omitted). Second, the
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district court must consider the factors delineated in 18 U.S.C. § 3553(a).4 Id.
1. Sentencing Guidelines Calculation
On appeal, Gerald argues that the district court’s sentence was procedurally
unreasonable because she should not have received an enhancement for involving a
minor in her offense under Guideline § 3B1.4. Gerald contends that she did not
recruit the then-seventeen-year-old Nogueira, that Nogueira was the one who
invited her to the church, and that the fact that they were co-conspirators or
confederates was insufficient to support the enhancement. Gerald adds that she
never directed or asked Nogueira to interpret for her, as Nogueira did this as a part
of her membership with the church, and that she did not ask Nogueira to write
letters for immigrants, as the immigrants, not Gerald, requested this service.
We review the district court’s interpretation of the Guidelines de novo, and
we accept its factual findings unless clearly erroneous. United States v. Jordi, 418
F.3d 1212, 1214 (11th Cir. 2005). The district court must interpret the Guidelines
and calculate the sentence correctly; an error in the district court’s calculation of
4
Several factors are considered when determining a reasonable sentence: (1) the nature
and circumstances of the offense and the history and characteristics of the defendant; (2) the
need to reflect the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the
need to provide the defendant with needed educational or vocational training or medical care; (6)
the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy
statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities;
and (10) the need to provide restitution to victims.
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the advisory Guidelines range warrants vacating the sentence, unless the error is
harmless. See United States v. Scott, 441 F.3d 1322, 1329-30 (11th Cir. 2006)
(applying harmless error review to Guidelines miscalculation). The Government
must establish the facts necessary to support a sentencing enhancement by a
preponderance of the evidence. See United States v. Perez-Oliveros, 479 F.3d 779,
783 (11th Cir. 2007).
The relevant Sentencing Guideline provides for a two-level enhancement
“[i]f the defendant used or attempted to use a person less than eighteen years of age
to commit the offense or assist in avoiding detection of, or apprehension for, the
offense[.]” U.S.S.G. § 3B1.4. The application notes provide that “‘[u]sed or
attempted to use’ includes directing, commanding, encouraging, intimidating,
counseling, training, procuring, recruiting, or soliciting.” Id. Cmt. 1. This Court
has held that “a § 3B1.4 adjustment is warranted only where the defendant takes
some affirmative step to involve a minor in the commission of the criminal
activity.” United States v. Taber, 497 F.3d 1177, 1181 (11th Cir. 2007), cert.
denied, 128 S. Ct. 949 (2008). This Court has also noted that “[t]he unambiguous
legislative design of section 3B1.4 is to protect minors as a class from being
solicited, procured, recruited, counseled, encouraged, trained, directed,
commanded, intimidated, or otherwise used to commit crime.” United States v.
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McClain, 252 F.3d 1279, 1286 (11th Cir. 2001) (internal quotation marks and
citations omitted).
Here, there is no dispute that Nogueira was a minor during Gerald’s
commission of the offenses. The record clearly shows, based on Nogueira’s own
testimony, that, as required under § 3B1.4, Gerald took multiple affirmative acts to
involve Noguiera in the crime, such that Noguiera’s involvement was directly
foreseeable to Gerald. See id. at 1288 (emphasizing foreseeability). Specifically,
Gerald used and directed Nogueira to schedule the meetings at the church, pass out
information to the applicants, translate for her during multiple meetings at Bethel
Christian Church, complete falsified residency letters (including translated letters),
and arrange meetings. Gerald also paid Noguiera $100 to create a flyer that
promoted Gerald’s “immigration consulting” services and provided Gerald’s
contact information. Nogueira helped Gerald in her scheme and was not merely
present during the offense. Taber, 497 F.3d at 1181 (holding that defendant’s
affirmative acts of driving minor to robbery, helping minor enter the building, and
serving as a look-out for the minor warranted sentencing enhancement). Certainly,
Nogueira’s actions furthered Gerald’s scheme, but Gerald also actively encouraged
Nogueira to commit a crime herself by preparing fraudulent letters for the purposes
of obtaining an immigration benefit. U.S.S.G. § 3B1.4; 18 U.S.C. §§ 1001,
12
1546(a). The district court did not err by finding that Noguiera’s role was an
important one and applying the two-level enhancement.
2. Reasonableness of the Sentence Imposed
Next, Gerald argues that her 108-month sentence was substantively
unreasonable under the § 3553(a) factors. She argues that her criminal conduct
over a six-month period paled in comparison to the rest of her life, that her conduct
did not harm the Government because the immigrants had already illegally entered
by the time she counseled them and her actions did not change their illegal status,
and that she actually brought a benefit to the Government by notifying it of each
immigrant’s presence in the country. Furthermore, Gerald argues that, based on
her age and the non-violent nature of her crime, there was no reason to impose a
108-month sentence because she had a very low risk of recidivism, had learned the
lessons of her actions, did not present a harm to the public, and had already
suffered enough punishment. Gerald argues that a sentence of sixty months is
appropriate based upon other cases involving similar conduct.
If the Guidelines calculation is correct or the miscalculation is harmless, we
consider whether the sentence is reasonable. Talley, 431 F.3d at 786. When
reviewing a sentence for reasonableness, we must evaluate the reasons given by the
district court and whether the sentence achieves the purposes of sentencing
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provided for in § 3553(a). Id. The party challenging the sentence bears the burden
of establishing the sentence is unreasonable in light of the § 3553(a) factors. Id. at
788.
Here, the record demonstrates that the district court conducted a thorough
and well-considered sentencing hearing. After hearing arguments from both
parties on all the § 3553 factors, the district court granted some of the
enhancements sought by the Government but it denied others. Moreover, the
district court denied both the Government’s (upward) and Gerald’s (downward)
motions for a variance sentence. Also, after weighing all the relevant factors, the
district court concluded that a sentence within the Guidelines range was reasonable
under § 3553(a).
We do not find Gerald’s 108-month sentence substantively unreasonable.
Specifically, the sentence reflects the seriousness of the offense given that her
scheme involved a substantial number of fraudulent applications (over 1,000),
covered many states, used a religious organization to launder money, and used a
minor in the offense. Among other § 3553(a) factors, the district court’s
conclusion that Gerald showed a clear disregard for the law and the courts was
supported by the extensive scale of the fraud on the Government. In light of the
record, Gerald has not demonstrated that her within-Guidelines sentence is
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substantively unreasonable. Talley, 431 F.3d at 788. The cases cited by Gerald in
which a lower sentence was imposed are inapposite because those cases involved
schemes much less extensive than Gerald’s and, unlike Gerald, those defendants
pled guilty and accepted responsibility. Accordingly, the district court did not err
in imposing the 108-month incarceration.
III. CONCLUSION
In sum, we conclude that there were no errors underlying the convictions of
Araujo, Gerald, and Ross. Additionally, we conclude that Gerald’s sentence was
procedurally and substantively reasonable.
AFFIRMED.
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