United States v. Alberto Pena , 418 F. App'x 335 ( 2011 )

Case: 09-20870 Document: 00511413901 Page: 1 Date Filed: 03/16/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 16, 2011
No. 09-20870 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee
v.
ALBERTO PENA; BERNARDO PENA, also known as Bernie Pena,
Defendants–Appellants
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CR-177-3
Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
This case concerns a scheme to profit from inducing workers from India to
illegally enter the United States through the use of non-immigrant H-2B work
visas. After a jury trial, Defendants Bernardo and Alberto Pena were convicted
of fourteen counts of encouraging and inducing illegal immigration for private
financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), (a)(1)(A)(v)(II), and
(a)(1)(B)(i), and one count of conspiracy to commit the aforementioned crimes in
violation of 18 U.S.C. § 371. Additionally, Bernardo was convicted of one count
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i), and Alberto was
convicted of one count of engaging in monetary transactions in property derived
from specified unlawful activity in violation of 18 U.S.C. § 1957. On appeal,
Bernardo challenges the sufficiency of the evidence supporting his convictions,
both Bernardo and Alberto challenge the admission of visa applications not
concerning Indian nationals, and Alberto challenges the seizure of those
applications as beyond the scope of the search warrant. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Bernardo and Alberto Pena are twin brothers who both worked for AMEB
Business Group (“AMEB”), a visa facilitation company they helped found in
Brownsville, Texas. AMEB specialized in assisting U.S.-based employers recruit
foreign temporary workers and handle H-2B visa-application paperwork. Both
brothers were owners and directors of AMEB, and Alberto served as the
company’s President, while Bernardo was the company’s registered agent and
assisted with paperwork and visa facilitation. The Penas ran AMEB along with
Marte Villar, who was AMEB’s Vice President and in charge of business
development.
An H-2B visa permits an alien to enter the United States for up to one
year to work in nonagricultural, labor-related jobs, with the possibility of an
extension up to three years. An employer or its agent must follow a series of
steps in order to obtain an H-2B visa, including filing an I-129 “Petition for a
Non-immigrant Worker”—setting forth the number of workers, the type of work
to be done, and the country from which the workers are sought—with the
Citizenship and Immigration Services branch of the Department of Homeland
Security (“CIS”). If CIS approves the I-129 petition, it sends it to the U.S.
Consulate in the country from which the worker is sought. The foreign worker
also files an application for a visa with the Consulate, which conducts an
interview with the applicant. If the Consulate approves the application, the
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foreign worker is granted an H-2B visa and is permitted travel to the United
States to work. An approved worker is permitted to enter the United States only
for the reason stated in the I-129 petition and to work for only that specific
employer.
The events relevant to this appeal began when AMEB contracted with
Viscardi Industrial Services (“Viscardi Services”) to hire foreign workers for
construction projects in Louisiana and Texas. Viscardi Services was owned and
operated by Keith Viscardi, and served as a labor resource provider for
industrial and oil companies. AMEB and Viscardi entered into a service
agreement on April 14, 2005, whereby AMEB agreed to act as an agent for
Viscardi Services in preparing and submitting H-2B visa applications for 400
workers from India and Mexico at a charge of $1,000 per worker. This business
agreement developed after Villar approached Keith Viscardi, with whom he was
previously acquainted. At the time, Viscardi did not know the Penas.
In May 2005, AMEB began processing H-2B visa applications on behalf of
Viscardi Services. Villar retained the services of Mahendrakumar (“Mack”)
Patel to recruit workers from India. Mack asked his relative, Rakesh Patel, to
contact Rakesh’s brother, Naimesh Patel, who was living in India, to identify
workers seeking to come to the United States. In June 2005, Naimesh and
Rakesh began providing names of the prospective workers from India, and
Alberto filed the first round of visa applications. CIS subsequently approved
I-129 petitions for 300 Indian workers and 200 Mexican workers to work on
construction projects for Viscardi Services from October 1, 2005, through July
31, 2006.
Following the visa approvals, the Indian workers filed applications with
the Consulate in Mumbai, India. Bernardo traveled to India from September 9,
2005, through October 1, 2005, to assist the workers with the application and
interviews. To expedite the approval process, Bernardo attempted to meet with
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Rachna Korhonen, the processing agent in the Consulate. When Bernardo was
unsuccessful, Alberto contacted the Consulate several times in an attempt to get
Bernardo a meeting. Viscardi also requested assistance from members of
Congress in expediting visa requests to assist with post-Hurricane Katrina work.
Allegedly because of letters sent by members of Louisiana’s congressional
delegation, Korhonen met with Bernardo on September 23, 2005, but declined
to expedite the visa applications. The Consulate did not conduct worker
interviews until December 2, 2005.
On October 5, 2005, while the applicants were awaiting interviews, Mack,
Rakesh, Viscardi, and Villar agreed in writing to charge the Indian visa
applicants $20,000 per visa. The plan called for the Patels to recruit the Indian
visa applicants and to receive $2,500 per visa; Viscardi Services would be listed
as the employer on visa forms and Viscardi would receive $10,000 per visa, but
would not actually provide employment or housing; Mack would receive $1,000
per visa; and the remaining money would go to Villar and AMEB. At trial,
Viscardi and Mack testified that the Penas were not parties to the agreement.
Viscardi further testified that Villar instructed him not to discuss the agreement
with the Penas.
Despite this, an email from Bernardo to Viscardi indicates that the Penas
eventually found out about the new financial arrangement. On February 28,
2006, Bernardo e-mailed the following message to Mack Patel:
[M]ack let me know how it went with marte . . . and if you are
interested of paying only 15000 instead of 20000 in at least 15 V, let
me know or call me to my cell its working here in India . . . this is
between you and me and albert. . . . so let me know ASAP . . . i will
call you at 12:00 noon mumbai.
Mack testified that the e-mail meant that Bernardo was offering to enter into a
three-way side deal between Mack and the Penas where they would charge only
$15,000 for fifteen visas and cut the others out of the deal. An associate at
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AMEB, Alfonso Hernandez, also testified that he overheard a conversation
between the Penas and Villar in which Villar was agitated with the Penas
because they did not want to travel to India and Villar said that they should
because there was $20,000 per visa at stake. Hernandez testified that this
conversation occurred in between Bernardo’s first and second trips to India.
Bernardo returned to Mumbai on November 29, 2005. On December 2,
2005, Korhonen interviewed and rejected all the applicants on the grounds that
they had no experience in construction work and most did not appear to know
what kind of work they would be doing. Bernardo returned to the United States
on December 6, 2005. Alberto traveled to India on February 13, 2006, to meet
with Angela Kerwin, Korhonen’s replacement in the Consulate. Alberto
provided Kerwin with information about Viscardi Services and the type of
workers needed. Following interviews with the workers, Kerwin approved
eighty-eight visa applications, and eighty-seven of the Indian workers arrived
in the United States in late February and March, 2006.
Kerwin later realized that the applicants had been coached on what to say
in their interviews. She testified at trial that had she known the workers were
paying $20,000 per visa to work menial construction jobs for such a short period
of time, she would have immediately reported the applicants to the fraud
division. Both Kerwin and Korhonen testified that workers typically paid
between $500 and $1000 for H-2B visas. An anonymous tip faxed to the
Consulate in Mumbai, stating that the Indian workers had paid large sums of
money to enter the United States without the intention of returning, prompted
the State Department to investigate the Indian visa applications. The Consulate
subsequently denied the remaining applications.
On March 31, 2008, a grand jury returned a nineteen-count Indictment
against Alberto, Bernardo, Mack, Rakesh, and Villar. Count one alleged a
conspiracy to encourage illegal immigration for private financial gain and to
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commit visa fraud in violation of 18 U.S.C. § 371; counts two through fifteen
alleged substantive counts of encouraging and inducing illegal immigration for
the purpose of private financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(iv),
(a)(1)(A)(v)(II), and (a)(1)(B)(i); count sixteen alleged money laundering in
violation of 18 U.S.C. § 1956(a)(1)(B)(i); and counts seventeen through nineteen
alleged that the defendants engaged in monetary transactions in property
derived from specified unlawful activity in violation of 18 U.S.C. § 1957. Alberto
and Bernardo were charged in counts one through fifteen; Bernardo was charged
with aiding and abetting money laundering in count sixteen; and Alberto was
charged with engaging in monetary transactions in property derived from
specified unlawful activity in count seventeen. Viscardi accepted a plea
agreement and pleaded guilty and was not named in the indictment. Mack and
Rakesh were named in the indictment but pleaded guilty before trial. Villar
absconded to Mexico and remains a fugitive.
Prior to trial, the Penas moved to suppress evidence of visa applications
for Mexican workers relating to another enterprise of theirs, North American
Quality Industrial Systems Corp. (“North American”). North American’s
certificate of incorporation lists the Penas as the directors and lists Bernardo as
the registered agent. The Penas argued that because the visa applications
concerned a different company and involved only workers from Mexico, their
seizure exceeded the scope of the search warrant, which referred to North
American only briefly as an “aka” of AMEB and which mentioned only Indian
workers. The district court denied the motion. The Penas later moved to
exclude the North American visa applications as evidence, arguing that they
should be excluded as improper extrinsic evidence of other acts under Federal
Rule of Evidence 404(b). The district court denied the motion, holding that the
visas were admissible as intrinsic evidence of the crimes, or alternatively, as
extrinsic evidence because they were relevant to the Penas’ intent, motive, or
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absence of mistake. The Government used the evidence at trial to show that
North American submitted requests for Mexican workers for non-existent
construction projects in Biloxi, Mississippi, and South Padre Island, Texas,
which it argued was probative of their intent regarding the Indian visas.
On March 23, 2009, Alberto and Bernardo proceeded to trial. On April 3,
2009, the jury returned a guilty verdict on all counts. Alberto was sentenced to
41 months of imprisonment. Bernardo was sentenced to 30 months of
imprisonment. Both were also sentenced to three-year terms of supervised
release. The Penas timely appealed.
II. DISCUSSION
Bernardo Pena challenges the sufficiency of the evidence supporting his
convictions, arguing that the Government failed to prove the knowledge element
of the conspiracy and immigration charges beyond a reasonable doubt. He also
appeals the sufficiency of the evidence with respect to his money laundering
conviction. Both Bernardo and Alberto challenge the admission of visa
applications from their other company, North American, concerning Mexican
nationals. They contend that this was extrinsic evidence under Rule 404(b) that
the district court should have excluded as either not sufficiently similar to the
immigration charges or as unduly prejudicial under the two-prong Beechum test.
See United States v. Beechum, 582 F.2d 828 (5th Cir. 1978) (en banc). Finally,
Alberto challenges the seizure of the North American visa applications as beyond
the scope of the search warrant.
A. Sufficiency of the Evidence
We review a challenge to the sufficiency of the evidence de novo when, as
here, the defendant has preserved his challenge by making a motion for acquittal
at the close of evidence. United States v. Garza-Robles, 627 F.3d 161, 166 (5th
Cir. 2010). This Court must determine “whether, when viewing the evidence in
the light most favorable to the verdict, ‘a rational trier of fact could have found
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that the evidence established the essential elements of the offense beyond a
reasonable doubt.’” Id. (quoting United States v. Ferguson, 211 F.3d 878, 882
(5th Cir. 2000)).
1. Immigration and Conspiracy Charges
Bernardo argues that although he participated in activities that were part
of the alleged conspiracy, he did not act with knowledge or in reckless disregard
of the fact that the Indian workers intended to come to the United States
illegally rather than as valid H-2B workers. He claims that because it was
equally plausible from the evidence that he thought the workers would be
working for Viscardi Services pursuant to H-2B visas, the evidence was
insufficient to establish his knowledge that the workers intended to remain
illegally. See United States v. Bieganowski, 313 F.3d 264, 275 (5th Cir. 2002).
Villar, he claims, was the instigator and “pulled the strings” in the immigration
scheme and conspiracy.
Bernardo was convicted of encouraging or inducing an alien to enter the
United States with knowledge or reckless disregard that such entry was in
violation of the law. See 8 U.S.C. § 1324(a)(1)(A)(iv). The elements of that
offense are “(1) encouraging or inducing; (2) an alien; (3) to come to, enter, or
reside in the United States; and (4) knowing or in reckless disregard that the
alien’s coming to, entering, or residing in the United States is illegal.” Edwards
v. Prime, Inc., 602 F.3d 1276, 1294 (11th Cir. 2010) (citations and internal
quotation marks omitted). Additionally, to establish that Bernardo conspired to
encourage and induce the entry of aliens in violation of the law, the Government
must prove the following elements beyond a reasonable doubt: (1) an agreement
existed between two or more persons; (2) to commit the substantive crime of
inducing or encouraging illegal entry into the United States; and (3) that
Bernardo voluntarily participated. United States v. Stephens, 571 F.3d 401, 404
(5th Cir. 2009). Further, the Government must show that he acted with
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requisite intent for the underlying crime—here, knowledge or reckless disregard.
See id. “[A]n agreement may be inferred from concert of action, [v]oluntary
participation may be inferred from a collocation of circumstances, and
[k]nowledge may be inferred from surrounding circumstances.” United States
v. Paul, 142 F.3d 836, 840 (5th Cir. 1998) (second and third alterations in
original) (quoting United States v. Lechuga, 888 F.2d 1472, 1476–77 (5th Cir.
1989)).
Viewing the evidence in a light most favorable to the verdict, the
Government presented ample evidence from which a reasonable jury could find
beyond a reasonable doubt that Bernardo had knowledge or recklessly
disregarded the fact that his conduct served to induce illegal immigration. At
trial, the Government presented evidence that Bernardo had extensive
involvement in the conspiracy, including that he (1) traveled to India on multiple
occasions, spending thirty days in the country to assist the visa approval process;
and (2) signed several dozen of the H-2B Indian visa applications. Importantly,
there is also evidence from two witnesses that Bernardo knew that they were
billing each Indian worker $20,000 for each visa. This included testimony and
e-mail documentation that Bernardo attempted to cut a side deal with Alberto
and Viscardi. Additionally, AMEB, for which Bernardo was an owner and
operator, billed Viscardi Services for the Mexican workers’ visas, but not for the
Indian workers’ visas. Finally, Alfonso Hernandez, a friend whom Bernardo
hired to do some work for AMEB, testified that Bernardo asked him to deposit
a $6,000 money order for Bernardo into Hernandez’s personal account and then
pay Bernardo the money in cash, which Hernandez did.
Beyond this evidence, Bernardo was also not a novice to the process of
acquiring H-2B visas; AMEB had previously obtained H-2B visas for Mexican
workers under his direction. The applications he signed indicate that he knew
the Indians were paying $20,000 per visa for jobs that paid only seven dollars
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per hour and that could end in less than one year. Thus, a sum of $20,000 per
visa would result in a loss of money for the workers over the course of one year.
Given his experience, if not from common sense alone, Bernardo should have
known that $20,000 per visa was an unreasonable sum for the Indian workers
to pay given the type of work and its duration. Additionally, the Government
provided evidence that Pena’s other company, North American, filed H-2B visa
applications for Mexican workers for jobs that did not exist. Given this evidence,
a reasonable jury could infer a similar intent for the Indian visas: that Bernardo
knew of the illegal scheme to profit from the Indian visas and that the Indian
workers had no intention to work for Viscardi Services. Thus, the evidence was
sufficient to prove his knowledge with respect to his participation in the
conspiracy and to the substantive offenses.
2. Money Laundering
Bernardo claims that if the evidence is insufficient to establish the
conspiracy or substantive offenses, then the evidence is necessarily insufficient
to establish that Bernardo committed the crime of money laundering.
Alternatively, Bernardo argues that there is insufficient evidence to establish
that he intended to conceal or disguise the nature of the proceeds.
At trial, the jury found Bernardo guilty of violating 18 U.S.C.
§ 1956(a)(1)(B)(i). To establish that he aided and abetted others in the offense
of money laundering, the Government must establish beyond a reasonable doubt
that Bernardo “(1) conducted or attempted to conduct a financial transaction,
(2) which [he] knew involved the proceeds of unlawful activity, and (3) which [he]
knew was designed to conceal or disguise the nature, location, source, ownership,
or control of the proceeds of the unlawful activity.” United States v. Burns, 162
F.3d 840, 847 (5th Cir. 1998) (citations omitted).
The evidence presented at trial established that proceeds in the amount
of $55,000 were deposited into Bernardo’s accounts of the same type and
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denomination as money obtained by Viscardi and Mack, both of whom testified
the money was from the conspiracy. Bernardo filled in the names on the money
orders and also gave Alfonso Hernandez a $6,000 money order for Hernandez to
deposit in his own account. Bernardo then instructed Hernandez to withdraw
the same amount in cash to return to Bernardo. Bernardo contends that
Hernandez’s financial dependence on the Penas is an equally plausible
explanation for the $6,000 transaction.
We have already held that the evidence was sufficient to maintain
Bernardo’s conviction on the conspiracy and immigration offenses. Further,
testimony at trial established that the proceeds Bernardo deposited were of the
same type and amounts as deposited by his co-conspirators. This evidence was
sufficient to infer Bernardo’s knowledge that the transactions involved proceeds
of illegal activity. Under our case law, “concealment can be established by
showing that the transaction is part of the larger scheme designed to conceal
illegal proceeds.” United States v. Pipkin, 114 F.3d 528, 534 (5th Cir. 1997)
(citation and internal quotation marks omitted). Additionally, “the defendant’s
use of a third party, for example, a business entity or a relative, to purchase
goods on [his] behalf . . . usually constitutes sufficient proof of a design to
conceal.” Id. (alterations in original) (quoting United States v. Willey, 57 F.3d
1374, 1385 (5th Cir. 1995)). Here, the evidence established both that Bernardo
participated in a scheme to induce immigrants to enter the United States
illegally, and that through his direction of Hernandez, Bernardo took steps to
conceal the financial proceeds of such action. Therefore, the Government
provided sufficient evidence to sustain Bernardo’s money laundering conviction.
B. Admissibility of “North American” H-2B Visa Applications
We review the district court’s decision to admit “other acts” evidence for
an abuse of discretion. See United States v. Rice, 607 F.3d 133, 138 (5th Cir.
2010). If we find that the evidence is extrinsic under Rule 404(b), we conduct
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our review under a “heightened” abuse of discretion standard. See United States
v. Templeton, 624 F.3d 215, 221 (5th Cir. 2010). We will not, however, reverse
erroneous admissions of evidence under Rule 404(b) if such error was harmless.
Id.Alberto and Bernardo both challenge the admission of H-2B visa
applications filed by North American for Mexican laborers. They argue that the
district court erred in finding that the North American visa applications for
Mexican workers were admissible as intrinsic evidence, because the applications
did not relate to the Indian visa applicants at issue in this case and fell outside
the time frame of the crimes charged. Further, they maintain that they are not
admissible as extrinsic evidence under Rule 404(b). They assert that the
Government improperly used the documents as character evidence, and even if
they were admissible to show intent and motive, the risk of unfair prejudice to
the Penas substantially outweighed any limited probative value.
To determine whether the district court erroneously admitted “other acts”
evidence, we “must first decide whether the evidence was intrinsic or extrinsic.”
Rice, 607 F.3d at 141. Evidence is “intrinsic to the charged crime ‘when the
evidence of the other act and the evidence of the crime charged are ‘inextricably
intertwined’ or both acts are part of a ‘single criminal episode’ or the other acts
were ‘necessary preliminaries’ to the crime charged.’” Stephens, 571 F.3d at 410(quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990)).
We hold that the North American visa applications concerning Mexican
nationals are extrinsic evidence that we must evaluate pursuant to Rule 404(b).
The indictment in this case alleged a scheme to encourage and induce aliens to
enter the United States in violation of the law for the purpose of financial gain
from April 2005 through June 2006. The first visa filing of the North American
scheme occurred on June 10, 2006, and continued through July 2007. Therefore,
the North American documents were certainly not a “necessary preliminary” to
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the Indian visa scheme. Further, the indictment described solely events relating
to the Indian nationals. While the indictment does identify North American as
an affiliate of AMEB, the factual allegations do not mention Mexican nationals
or events after June 2006. The only evidence showing that the schemes may
have been intertwined was the Penas’ use of the same bank account for both
enterprises. Given the allegations in the indictment, this evidence is insufficient
to show that the North American visa applications were “inextricably
intertwined” with the charged offenses or part of a “single criminal episode.”
Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith,” but may “be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.” In order for extrinsic “other acts” evidence to be
admissible, (1) the evidence must be “relevant to an issue other than the
defendant’s character,” and (2) the probative value of the evidence must not be
substantially outweighed by undue prejudice to the defendant. Beechum, 582
F.2d at 911.
As required by Rule 404(b), the Government filed notice of its intent to
introduce the North American H-2B visa applications. The notice stated that the
Government intended to offer the North American H-2B visa applications and
prove that the filings for these visas were false. By establishing the falsity of the
North American filings, the Government intended to establish that the Penas
were using North American to enable foreign workers to fraudulently obtain
immigration benefits. While the district court held that the North American
visa evidence was intrinsic, it alternatively held that the evidence was
admissible extrinsic evidence under Rule 404(b). It explained that the Penas’
defense was lack of knowledge that the Indian visa scheme intended to induce
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illegal immigration, and therefore that this evidence was admissible to show
intent and absence of mistake.
We have held that “Beechum’s relevancy threshold is satisfied if [the]
evidence is relevant to an issue other than propensity to commit the act, such as
intent, motive, or plan.” United States v. LeBaron, 156 F.3d 621, 624 (5th Cir.
1998) (citing F ED. R. E VID. 404(b)). We have also found that as a matter of law,
“[t]he mere entry of a not guilty plea in a conspiracy case raises the issue of
intent sufficiently to justify the admissibility of extrinsic offense evidence.”
United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996) (citations
omitted). Because the Penas both pleaded not guilty to the conspiracy charge,
and because they used lack of knowledge as a defense, the evidence of the
allegedly fraudulent visa filings pertains directly to the Penas’ intent or motive.
Having determined that the North American visa evidence is relevant to
show intent or motive, we must next determine whether the probative value of
the evidence is substantially outweighed by the danger of unfair prejudice. See
Beechum, 582 F.2d at 911. This prong involves a “commonsense assessment of
all the circumstances surrounding the extrinsic offense.” Id. at 914.
Bernardo argues that the extrinsic evidence was prejudicial because of the
Government’s heavy focus on this evidence: three witnesses and references
during opening and closing arguments. He also argues that the Government
shifted its focus from using the North American evidence to establish intent,
motive, or knowledge to using the evidence to establish the Penas’ propensity for
fraud. Alberto argues that the documents lacked probative value because H-2B
visa applications are form documents and that the other acts evidence did not
occur during the life of the conspiracy.
We have noted that the extent of the similarity between the extrinsic
offenses and the charged crime heightens the probative value of the evidence but
also increases the “ever-present risk of unfair prejudice by inferring propensity.”
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United States v. Williams, 620 F.3d 483, 491 (5th Cir. 2010) (citations omitted).
“This danger is ‘particularly great where, as here, the extrinsic activity was not
the subject of a conviction.’” Id. (quoting Beechum, 582 F.2d at 914). When the
district court issues limiting instructions, however, this tempers the risk of
unfair prejudice. Id. at 492. Therefore, “[a]s long as it is clear to the jury that
the extrinsic evidence . . . is presented only to show modus operandi to prove
knowledge and intent, there is little danger that presentation of the extrinsic
evidence will cause unfair prejudice.” Williams, 900 F.2d at 827.
We find that the probative value of the North American visa evidence was
not substantially outweighed by a risk of unfair prejudice. The district court
here issued a limiting instruction to the jury, informing it that it
must not consider any of the [extrinsic] evidence in deciding if the
defendant[s] committed the acts charged in the indictment.
However, you may consider this evidence for certain other, very
limited, purposes. If you find beyond a reasonable doubt from other
evidence in this case that the defendant did commit the acts charged
in the indictment, then you may consider the evidence of the similar
acts allegedly committed on other occasions to determine . . . state
of mind or intent . . . motive or opportunity . . . plan or preparation
. . . or accident or mistake. These are the limited [purposes] for
which any evidence of other similar acts may be considered.
The district court’s limiting instruction minimized the risk of unfair prejudice
to the Penas. Additionally, the evidence was particularly probative of intent and
motive, because North American filed the visa applications at issue immediately
after the events of this conspiracy, and the Penas were directors of North
American. Therefore, we find that the this evidence was properly admissible
extrinsic evidence under Rule 404(b).
C. Denial of Motion to Suppress
Alberto Pena filed a pre-trial motion to suppress the North American visa
applications because they exceeded the scope of the search warrant. The district
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court denied the motion because the affidavits attached to the warrant
“specifically mentioned” North American as “having its place of business at the
AMEB premises” and the two were “being treated together for purposes of the
affidavits” by the investigating agents. The district court also held that the
language of the affidavits permitted the search for evidence of “criminal
violations involving fraudulent visa applications for aliens from any [ ] country.”
Finally, the district court held that evidence of similar acts can be seized if it is
relevant to an issue such as intent or knowledge. See Andresen v. Maryland, 427
U.S. 463, 483 (1976).
When considering the denial of a motion to suppress evidence, we review
the district court’s findings of fact for clear error, viewing the evidence in the
light most favorable to the government, and its legal conclusions de novo. See
United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005) (citations omitted).
If the district court erred in failing to suppress the evidence, we may nonetheless
affirm if the error was harmless. “‘In the context of suppression of evidence, the
test for harmless error is whether the trier of fact would have found the
defendant guilty beyond a reasonable doubt if the evidence had been
suppressed.’” United States v. Willingham, 310 F.3d 367, 372 (5th Cir. 2002)
(quoting United States v. Aucoin, 964 F.2d 1492, 1499 (5th Cir. 1992)) (internal
quotation marks and alterations omitted).
Alberto Pena challenges the district court’s denial of his motion to
suppress evidence of the North American visa applications pertaining to
Mexican workers. He claims that the seizure of these documents exceeded the
scope of the search warrants and are not admissible under any exception.
Specifically, he argues that the crimes described in the affidavits attached to the
search warrants pertained only to Indian visas, while the visa applications at
issue concerned Mexican nationals and were outside of the conspiracy’s time
frame. Additionally, he argues that there is an “insufficient nexus” between the
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No. 09-20870
North American documents and the scheme alleged here, and that their seizure
was not justified by the “plain view” doctrine because they were not of an
“incriminatory character.” The Government responds by noting that the
warrants provided for the seizure of North American documents by listing North
American as an alias or alter ago of AMEB. Because the agents knew that
North American was also run by the Penas and had bank accounts into which
visa fraud funds had been deposited, the Government argues, the seizure was
proper.
The Fourth Amendment provides the right to be secure against
unreasonable searches and seizures. U.S. C ONST. amend. IV; Creamer v. Porter,
754 F.2d 1311, 1318 (5th Cir. 1985). We have noted that “as a general rule only
items described in a search warrant may be seized,” but that this rule is subject
to several exceptions. Creamer, 754 F.2d at 1318. One of these exceptions
provides that evidentiary items may be seized if they have a “sufficient nexus to
the crime being investigated.” Id. (citation omitted). This nexus is satisfied
when the agents had probable cause “to believe that the evidence sought will aid
in a particular apprehension or conviction.” Warden v. Hayden, 387 U.S. 294,
307 (1967). The Supreme Court has further held that the seizure of other
evidence was proper where it would have been apparent to the agents based on
their knowledge of the case that the evidence “could be used to show intent to
defraud with respect to [the crimes described in the warrant].” Andresen, 427
U.S. at 484.
We find that even if the seizure of the North American visa applications
exceeded the scope of the warrant itself, the documents nonetheless had a
sufficient nexus to the crimes alleged because of their apparent relevance to the
Penas’ intent or knowledge with respect to the crimes alleged. The affidavits
attached to the warrants specifically refer to North American as an alias of
AMEB, showing that the investigators were aware of its existence and saw it as
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No. 09-20870
part and parcel to AMEB. Additionally, both affidavits spoke of suspicious
deposits into the bank accounts belonging to “AMEB Business Group (a/k/a
North American Quality Industrial).” Further, the affidavits refer to the agents’
knowledge that it is “common for alien smuggling organizations to attempt to
legitimize the proceeds of its illegal activities” though “front businesses,” among
other things. Based on the agents’ reasonable belief at the time of the search
that AMEB and North American were the same business and shared the same
bank accounts, and that the crimes focused on use of H-2B visas to induce illegal
immigration, the agents had probable cause to believe that the North American
visa forms were relevant to the Penas’ intent or knowledge. That the country
listed on the forms was Mexico and not India does not alter this rationale.
Therefore, because the information available to the agents at the time of
the search provided probable cause to believe that the North American visas
would aid in the Penas’ conviction, we affirm the district court’s denial of the
suppression motion.
III. CONCLUSION
We find that the jury had sufficient evidence to find beyond a reasonable
doubt that Bernardo Pena committed the crimes charged. Additionally, we find
that the district court did not err in admitting evidence of the North American
visa applications, as they were properly admissible extrinsic evidence under
Rule 404(b), or in denying the motion to suppress. Therefore, we affirm
Appellants’ convictions.
AFFIRMED.
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