671 F.3d 149 (2nd Cir. 2011), 10-4683-cr, United States v. Archer

Docket Nº:10-4683-cr.
Citation:671 F.3d 149
Opinion Judge:CALABRESI, Circuit Judge:
Party Name:UNITED STATES, Appellee, v. Thomas ARCHER, Defendant-Appellant.
Attorney:Jonathan I. Edelstein, Edelstein & Grossman, New York, N.Y., for Defendant-Appellant. Soumya Dayananda, Assistant U.S. Attorney, of counsel, (Peter A. Norling, Andrew E. Goldsmith, Assistant U.S. Attorneys, of counsel, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern Di...
Judge Panel:Before: NEWMAN, CALABRESI, and HALL, Circuit Judges.
Case Date:September 20, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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671 F.3d 149 (2nd Cir. 2011)

UNITED STATES, Appellee,

v.

Thomas ARCHER, Defendant-Appellant.

No. 10-4683-cr.

United States Court of Appeals, Second Circuit.

September 20, 2011

Argued: May 2, 2011.

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Jonathan I. Edelstein, Edelstein & Grossman, New York, N.Y., for Defendant-Appellant.

Soumya Dayananda, Assistant U.S. Attorney, of counsel, (Peter A. Norling, Andrew E. Goldsmith, Assistant U.S. Attorneys, of counsel, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee.

Before: NEWMAN, CALABRESI, and HALL, Circuit Judges.

CALABRESI, Circuit Judge:

The Defendant-Appellant, Thomas Archer, requested specific jury instructions with respect to the government's burden of proof regarding his knowledge of the fraud for which he was indicted. The district court (Johnson, J. ) denied these requests and instead gave a general instruction on acting " knowingly." Archer challenges those denials as well as the sufficiency of the evidence presented at trial. We find these challenges meritless.

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Accordingly, we affirm the defendant's conviction.

In calculating Archer's Guidelines sentencing range, the district court relied on four enhancements, three of which Archer challenges on appeal. Though the basis of the district court's application of the leader/organizer enhancement could have been more fully elaborated, we find the record supports its application here. Regarding the obstruction-of-justice and number-of-document enhancements, however, we agree with Archer that the evidence is insufficient to sustain their use in this case. We, therefore, vacate Archer's sentence.

Finally, Archer challenges the order of restitution imposed by the district court under the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A. Because we find the record evidence insufficiently specific to demonstrate that each client to whom the court ordered restitution was a " victim" of the fraud, we vacate the restitution order.

We remand the case for resentencing, including reconsideration of the restitution award.

I. BACKGROUND

Defendant-Appellant Thomas Archer was formerly an immigration lawyer in Jackson Heights and Jamaica, New York. The charges in this case arise out of Archer's filing of I-687 legalization applications on behalf of his clients. The Department of Homeland Security (DHS) created the I-687 program, which operated for a limited time in 2004 and 2005, as part of a court-approved settlement of a lawsuit that had alleged misconduct in the operation of a previous legalization program. Newman v. U.S. Citizenship & Immigration Srvs., No. 87-4757-cv, at 7-10 (C.D.Cal. Feb. 18, 2004) (order approving class settlement). Nationwide, a total of 79,000 applications were filed and about 3 percent were granted. Between 2004 and 2005, Archer filed between 230 and 240 applications, none of which were granted.

The government suspected that Archer was filing false I-687 applications. After investigation, Archer and his office manager, Rukhsana Rafique, were indicted on five counts: one count of conspiracy to commit visa fraud, 18 U.S.C. § 371, and four counts of visa fraud (one for each of three specific clients and one for a married couple), 18 U.S.C. § 1546(a). One of the substantive charges was dropped when that client declined to testify. Archer and Rafique were convicted on the indictment's remaining four counts.

Visa fraud, as charged here, has five elements: the defendant (1) knowingly (2) presented (3) an application or " document required by the immigration laws" (4) that contained a false statement (5) as to a material fact. 18 U.S.C. § 1546(a).1 All agree that I-687 applications qualify as " document[s] required by the immigration laws," that Archer presented them by filing them with DHS, and that some of the applications that Archer filed did contain false material information. Therefore, Archer's key contention was, and continues to be, that he was unaware of these falsities and, by implication and extension as to the conspiracy count, that he never agreed to present false information.

A. Trial Evidence

At trial, the government presented the testimony of the three sets of clients—

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Gulistan,2 Nizar Ahmad, and Iris and Mohammed Ally— whose applications constituted the bases for the substantive fraud counts; a recording of two conversations, one between Gulistan, Archer, and Rafique and one between Gulistan and Rafique; and statistical evidence from an immigration officer.

To understand the import of all of this testimony, the I-687 program's details are important. In order to qualify for the program, the alien-applicant must both be a member of the class of the Newman settlement and have had limited travel outside the United States. In turn, to be a member of the class, the alien must have: (1) been in the country illegally on January 1, 1982; (2) applied for legalization under a prior program between May 1987 and May 1988; and (3) been turned down for that program because of travel outside the United States between 1981 and 1988. Applicants could meet the first of these sub-requirements in two ways, either (a) by having entered the country illegally or (b) by having entered legally and overstaying their visas. In addition to being a member of the Newman class, an eligible alien could not have traveled out of the country either (a) on any single trip longer than 30 days between 1986 and May 1988 or (b) on any single trip longer than 45 days between 1982 and the date of his or her application to the prior program and no more than 180 total days in all trips during that time. While an alien's I-687 application was pending, he could receive a temporary work permit to work in the United States.

Gulistan, a native of Pakistan, testified through a translator that he spoke only limited English and did not know, either at the time of his I-687 application or at the time of trial, the requirements of the program. He had gone to Archer's office on multiple occasions and had spoken with both Rafique and Archer. Rafique instructed him to sign an I-687 application, which was not translated for him and which he could not read. He paid Archer $1,500, and Archer submitted this application to DHS.

Gulistan testified that he arrived in the United States in 2000 on a work visa, but had previously visited for a short time in 1981 with his uncle. His I-687 application, however, stated that he had entered the United States illegally in 1981 and stayed until 1988, when he took a one-month trip to Pakistan. The application claimed that, thereafter, he had taken six trips to Pakistan between 1989 and 1999 (this was needed to account for the birth of Gulistan's seven children between the late 1980s and 2000). Gulistan also stated that Archer and Rafique gave him pre-filled affidavits for two U.S.-citizen friends to sign, falsely asserting that they had known him since 1981 and 1986, respectively. No one told him what the affidavits said, only that he needed to have his friends sign them. In a January 23, 2006, letter, DHS instructed Gulistan to attend an interview in connection with his I-687 application. Archer got the interview postponed until October 2006, at which time Gulistan attended alone.

In May and June 2007, after federal agents visited his home, Gulistan went to Archer's office on two occasions wearing a hidden recording device. On the first occasion, he spoke only with Rafique. On the second, he also spoke with Archer and protested that he did not have any proof of the travels his application claimed; Archer responded " so what?" They also discussed his interview with DHS, which Archer had told him to forgo. The government played both recordings at trial.

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Next, Ahmad, also a native of Pakistan, testified, also through a translator, that he, too, spoke little English and could not read. Rafique prepared his I-687 application, which he signed, but she did not read it to him, and he was unaware of what it said. He did not know the requirements of the program and paid Archer $2,000. Ahmad said he arrived in the United States in 1998 as a crewman on a ship. His application, however, stated that he had come to the country in 1981 and stayed until 1987, when he took a one-month trip to Pakistan. The application included employment and residency information that he agreed was false and that he said he had never provided to anyone. Rafique gave him two affidavits for his acquaintances to sign, both of which had " (1981)" pre-printed next to the blank where the witness should put the date on which he had met Ahmad. DHS sent Ahmad a letter, instructing him to appear for an interview, which Archer asked be postponed. When a new interview was scheduled, Archer withdrew Ahmad's application without Ahmad's permission.

The third set of witnesses was Iris and Mohammed Ally, a previously married couple from Guyana. Iris Ally said she had limited reading skills. She did not know the requirements of the program and had signed an application Rafique gave her without knowing what it said. Mrs. Ally had come to the United States in 2002 by sneaking across the Canadian border. Her application, on the other hand, claimed she had arrived in 1981 and stayed until 1987, when she took a one-month trip to Guyana. Her application also contained residency and employment information that was false and that she had never provided. Rafique gave her two affidavits similar to those described in Ahmad's testimony; she had her boss's children sign them and returned them to the office. DHS...

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