United States v. Pirela

• Citation: 809 F.3d 1195
• Decision Date: 22 December 2015
• Docket Number: No. 14–13767.,14–13767.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Edgar Alexander PIRELA PIRELA, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

809 F.3d 1195

UNITED STATES of America, Plaintiff–Appellee,

v.Edgar Alexander PIRELA PIRELA, Defendant–Appellant.

No. 14–13767.

United States Court of Appeals, Eleventh Circuit.

Dec. 22, 2015.

John C. Shipley, Assistant U.S. Attorney, Wifredo A. Ferrer, Jamie Galvin, Assistant U.S. Attorney, Diane Patrick, Kathleen Mary Salyer, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Manuel Arteaga–Gomez, Michael Caruso, Federal Public Defender, Celeste S. Higgins, Federal Public Defender's Office, Miami, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No.: 1:14–cr–20099–CMA–1.

Before ED CARNES, Chief Judge, MARTIN, Circuit Judge, and WALTER,^* District Judge.

WALTER, District Judge:

Defendant–Appellant Edgar Alexander Pirela Pirela ("Pirela Pirela") appeals the denial of his motion for a judgment of acquittal on his conviction for fraud and misuse of a visa, in violation of 18 U.S.C. § 1546(a). Pirela Pirela's appeal turns on the meaning of the phrase "procured by means of," as it is used in the first paragraph of section 1546(a). Following a review of the record and with the benefit of oral argument, we AFFIRM.

I. FACTUAL AND PROCEDURAL HISTORY

A. Facts.

On February 18, 2014, a federal grand jury in the Southern District of Florida indicted Pirela Pirela for violating 18 U.S.C. § 1546(a), specifically alleging that, on February 7, 2014, Pirela Pirela "did knowingly possess, use, and attempt to use a document prescribed by statute and regulation for entry into the United States, that is, a United States visa, which the defendant knew was procured by means of a false claim and false statement, and to have been otherwise procured by fraud, and unlawfully obtained[.]" (emphasis added).

The parties stipulated to the following relevant facts, as well as the exhibits offered in support of the United States of America's ("the Government's") case. Pirela Pirela is a citizen and national of Venezuela with no legal status in the United States. In 2006, Pirela Pirela was arrested in Venezuela for "serious intentional injuries, misuse of [a] weapon, unlawful arm bearing, and unlawful deprivation of freedom." On January 6, 2011, Pirela Pirela signed and submitted a DS–160 online application for a United States visa, in which he answered "No" to the following question: "Have you ever been arrested or convicted for any offense or crime, even though the subject of a pardon, amnesty, or other similar action?" On January 12, 2011, the United States Embassy in Caracas, Venezuela, issued Pirela Pirela a B1/B2, or non-immigrant, visa, with an expiration date of January 10, 2021.

On February 7, 2014, Pirela Pirela arrived at Miami International Airport ("MIA"), from Maracaibo, Venezuela, and presented his Venezuelan passports and B1/B2 visa to United States Customs and Border Protection ("CBP") officers for examination and entry into the United States.¹ Pirela Pirela was referred to a passport control secondary examination. During the examination, a CBP officer conducted an internet search of Pirela Pirela's full name, which revealed a document reflective of a prior court proceeding and prompted the officer to question Pirela Pirela's criminal history. The CBP officer then retrieved a copy of Pirela Pirela's visa application from the records of the United States Department of State, reviewed the application, and proceeded to question Pirela Pirela regarding the contents thereof. In a sworn statement, taken by the CBP officer, Pirela Pirela acknowledged his prior arrest in Venezuela; his guilty plea to, and conviction of, a lesser charge; and his failure to disclose this information on the visa application because he was afraid his visa would be refused.

B. Relevant Procedural History.

Pirela Pirela entered a plea of not guilty and waived his right to a trial by jury. A bench trial commenced on April 8, 2014, at which time the Government moved to admit the joint stipulations of fact and exhibits. The Government then declined to present three law enforcement witnesses, who were present and prepared to testify, believing that the joint submissions obviated the need for the witnesses' testimony. Prior to resting, the Government argued that it had established a violation of 18 U.S.C. § 1546(a), as charged, based on the joint submissions and Pirela Pirela's admission to having made a false statement on his visa application because he was afraid that a truthful response would result in his application being denied. At the close of the Government's case, Pirela Pirela moved for a judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29, arguing that the Government had failed to prove that Pirela Pirela's visa was procured by means of a false statement. While admitting that his negative response to the visa application question regarding his criminal history was indeed a false statement, Pirela Pirela argued that the phrase "procured by means of" involved a heightened materiality requirement. In other words, Pirela Pirela argued that the Government had failed to prove that answering the question truthfully would have rendered Pirela Pirela statutorily ineligible for a visa. Pirela Pirela contended that this failure of proof was fatal to the Government's case, relying on judicial interpretations of 18 U.S.C. § 1425(a), which prohibits unlawful procurement of citizenship or naturalization. The district court reserved ruling and, prior to adjourning, ordered Pirela Pirela to file a written motion for a judgment of acquittal, to which the Government would then have an opportunity to respond.

On July 15, 2014, the district court issued an order, with written reasons, denying Pirela Pirela's motion for judgment of acquittal. The court disagreed with Pirela Pirela's proposed meaning of "procured by means of" in section 1546(a) and adopted the Government's position that it need only prove that the false statement had a natural tendency to influence agency action or was capable of influencing agency action. In doing so, the court found section 1546 more analogous to a customs enforcement statute, 18 U.S.C. § 542, which prohibits the entry of goods by means of false statements, than to the naturalization statute, 18 U.S.C. § 1425(a). Additionally, the court acknowledged that the natural tendency standard had been applied to section 1546(a)'s fourth paragraph but the heightened materiality standard urged by Pirela Pirela had never been applied to any portion thereof. Accordingly, the district court found that the evidence of record at that point, viewed in the light most favorable to the Government, was sufficient to convict Pirela Pirela under the natural tendency standard. The court nevertheless granted the Government's request to re-open the case to allow for a more complete record.

On August 21, 2014, the bench trial resumed, and the Government presented two witnesses: CBP Officer Ericson Santiago and Special Agent Bryan Baer from the U.S. Department of State's Diplomatic Security Service ("DSS"). Officer Santiago, who was the officer responsible for Pirela Pirela's secondary examination at MIA, testified regarding Pirela Pirela's nervous behavior during the examination. That behavior prompted Officer Santiago's internet search and resultant discovery of Pirela Pirela's undisclosed criminal history, which led to further questioning by the officer. Officer Santiago testified that these questions were important, because criminal history is relevant to admissibility into the United States and, by making the false statement at issue, Pirela Pirela forestalled further inquiry that would have occurred prior to the issuance of the visa. The second witness, Special Agent Baer, testified regarding his training and experience in the criminal investigation of visa and passport fraud. Through his experience working with consular officers who adjudicated B1/B2 visa applications, Special Agent Baer explained the adjudication process, as follows. A consular officer adjudicates each visa application by considering numerous factors, including: whether a non-immigrant visa applicant is actually attempting to immigrate to the United States; the applicant's actual intentions relative to the representations made on the application; and whether the applicant is ineligible for a visa. The agent described three categories of ineligibilities: hard ineligibilities, which preclude an applicant from reapplying absent approval from the Secretary of State or the Secretary of Homeland Security; ineligibilities that do not preclude an applicant from reapplying in the future; and administrative suspension, which suspends an application to allow for additional information and processing. An administrative suspension occurs when the visa applicant checks "any potentially derogatory boxes" on the application. The agent further testified that criminal history may affect an applicant's eligibility and that, at the very least, if a Bl/B2 visa applicant admitted a prior arrest or conviction on his application, additional information would be requested by the reviewing officer. The result would ultimately depend on the severity of the crime and might include mere suspension of the application, hard ineligibility, or visa denial.

At the close of the Government's case, Pirela Pirela renewed his motion for a judgment of acquittal, which was again denied. Pirela Pirela elected not to testify or present any evidence. During a brief closing argument, Pirela Pirela stressed Special Agent Baer's testimony that the mere fact that an applicant has a criminal history does not automatically result in the denial of the visa application. In conclusion, the district court found that the testimony of the two agents further supported the court's prior ruling that Pirela Pirela's false statement regarding his criminal history did have a natural tendency to influence agency actions, such that Pirela Pirela was in violation of ...