U.S. v. Ramirez

• Decision Date: 23 August 2005
• Docket Number: Docket No. 04-0726-CR(CON).,Docket No. 03-1262-CF(L).
• Citation: 420 F.3d 134
• Parties: UNITED STATES of America Appellee, v. Silverio RAMIREZ and Angelica Vitug Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

420 F.3d 134

UNITED STATES of America Appellee, v. Silverio RAMIREZ and Angelica Vitug Defendants-Appellants.

Docket No. 03-1262-CF(L).

Docket No. 04-0726-CR(CON).

United States Court of Appeals, Second Circuit.

Argued: March 4, 2005.

Decided: August 23, 2005.

COPYRIGHT MATERIAL OMITTED

Theodore S. Green, Green & Willstatter, White Plains, NY, for Defendant-Appellant Angelica Vitug.

Norman Trabulus, Garden City, NY, for Defendant-Appellant Silverio Ramirez.

Eric B. Bruce, Assistant United States Attorney (Katherine Polk Failla, Assistant United States Attorney, of counsel), for David N. Kelley, United States Attorney for the Southern District of New York, for Appellee.

Before: WALKER, Chief Judge, CARDAMONE and B.D. PARKER, Circuit Judges.

B.D. PARKER, JR., Circuit Judge.

Defendant-Appellant Angelica Vitug appeals from her conviction of a total of fourteen counts of visa fraud, 18 U.S.C. § 1546, making false statements to an agency of the United States, 18 U.S.C. § 1001, mail fraud, 18 U.S.C. § 1341, and conspiracy to commit those offenses, 18 U.S.C. § 371, before the United States District Court for the Southern District of New York (Kimba M. Wood, Judge). Vitug contends that venue was not properly laid in the Southern District of New York with respect to ten of the substantive counts for which she was convicted.¹ We agree as to counts Six through Nine for visa fraud, and counts Eighteen and Twenty-One for mail fraud; accordingly, we vacate Vitug's conviction as to those counts. We affirm as to the remaining challenged counts. We remand for further proceedings.

BACKGROUND

Vitug, an endocrinologist, and her co-defendant, Silverio Ramirez, an immigration lawyer, were charged on October 17, 2002 with a variety of offenses stemming from their efforts to obtain fraudulent visas for Ramirez's clients. The indictment filed in the Southern District of New York, alleged that Ramirez and Vitug falsely represented to the Immigration and Naturalization Service ("INS") and the United States Department of Labor ("U.S.DOL") that Ramirez's clients would have jobs in the United States with sponsoring employers. Vitug allegedly participated in the scheme by submitting documents to the U.S. DOL and INS representing that her medical practice would employ Ramirez's clients in jobs that did not exist. Ramirez and Vitug were tried together, and on December 17, 2002, they were convicted on all counts of the indictment. On April 23, 2003, the District Court sentenced Vitug principally to five months' imprisonment, to be followed by three years' supervised release. Vitug has completed serving her term of imprisonment and is presently serving her term of supervised release.

Viewing the facts in the light most favorable to the government, see United States v. Delia, 944 F.2d 1010, 1012 (2d Cir.1991), the evidence at trial showed that Ramirez and Vitug engaged in a fraudulent scheme involving two kinds of work visas. First, they procured fraudulent "H-1B" visas for clients who had lawfully entered the United States and wished to remain temporarily once their tourist visas had expired.² See 8 U.S.C. § 1184(c)(1). To qualify for an H-1B visa, an alien must have both "highly specialized knowledge" of a particular occupation and a promise of employment from an American employer for a paid position. 8 U.S.C. §§ 1182(n)(1), 1184(i)(1)(A). The American employer must petition for the visa on the alien's behalf. Once issued, the visa generally permits the alien to remain in the United States for a limited number of years, and only as long as he or she is working for the sponsoring employer. In order to petition the INS for an H-1B visa, the sponsoring employer must first file a Labor Condition Application ("LCA") with the U.S. DOL. The employer then files with the INS a Form I-129 Petition, along with the approved LCA form and other supporting documents.

In February 1997, Ramirez filed with the INS four Form I-129 Petitions and attachments, certifying that Vitug's employer, Brooklyn Medical Group ("BMG"), would hire four of Ramirez's clients to work as "Public Health Educators" at BMG. Vitug signed the Form I-129 Petitions as well as supporting documents stating that she was a "Founding Partner" of BMG and that BMG currently employed a "Public Health Educator (Diabetes Educator)." The evidence at trial established that Vitug was not a founding partner of BMG, that BMG had never employed a "Public Health Educator," and that Vitug lacked hiring authority. The evidence also showed that Vitug signed the I-129 Petitions in New Jersey and that they were filed with an INS branch office in Vermont. Included among the attachments to the I-129 Petitions were LCA forms that Vitug had previously signed in New Jersey and sent to the Manhattan office of the U.S. DOL for approval.

The second type of fraud involved the submission of false Form ETA-750 applications to the U.S. DOL. Form ETA-750s enable aliens to obtain visas that permit them to remain in the United States indefinitely. See 8 U.S.C. § 1182(a)(5)(A). These visas, too, require sponsorship by an American employer, and the sponsoring employer must show that efforts were made, unsuccessfully, to recruit American citizens for the specific position to be filled by the alien. Red 15 The employer submits a Certified Job Notice and a Recruitment Report to prove that recruitment efforts were made.

In May 1997 and December 1999, Vitug signed and submitted to the U.S. DOL two Form ETA-750s, a Certified Job Notice, and a Recruitment Report, on behalf of two of Ramirez's clients who would purportedly work as a "Controller" and an "Office Manager" in Vitug's private New Jersey medical practice, which was curiously located in Ramirez's New Jersey law office. Testimony by Ramirez's secretary called these positions into doubt, and evidence indicated that one of these individuals never actually worked for Vitug, while the other worked for her as a chauffeur on Saturdays. Moreover, Ramirez's secretary testified that, although an advertisement was placed in a newspaper for one of the positions, she overheard Ramirez tell Vitug, in substance, that this step was pretextual and that she should look for flaws to disqualify applicants. The Form ETA-750s, the Certified Job Notice, and the Recruitment Report were initially filed with the New Jersey Department of Labor ("N.J.DOL"), which later forwarded the documents to the U.S. DOL's Manhattan office.³

At the close of the government's case, Vitug moved to dismiss under Rule 29, arguing, among other things, that venue did not properly lie in the Southern District of New York for certain counts. See Fed.R.Crim.P. 29. The District Court initially reserved, but then denied, the motion when it was renewed at the close of the evidence, holding that "[v]iewed in the light most favorable to the government, a preponderance of the evidence clearly demonstrates that essential elements of the conduct constituting the charged offenses occurred in the Southern District of New York, notwithstanding the fact that some essential elements may also have occurred elsewhere." This appeal ensued.

DISCUSSION

Both the Sixth Amendment and Federal Rule of Criminal Procedure 18 require that defendants be tried in the district where their crime was "committed." U.S. Const. amend. IV, Fed.R.Crim.P. 18; see also U.S. Const. art. iii, § 2, cl. 3. When a federal statute defining an offense does not specify how to determine the location where the crime was committed, "[t]he locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it." United States v. Cabrales, 524 U.S. 1, 6-7, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998) (quoting United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946)). To carry out that task, we must "initially identify the conduct constituting the offense," and then "discern the location of the commission of the criminal acts." United States v. Rodriguez-Moreno, 526 U.S. 275, 279, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999). As the Supreme Court explained in Rodriguez-Moreno, it is often helpful to look to the verbs of a statute in identifying the conduct that constitutes an offense, but the "verb test" should not be applied "to the exclusion of other relevant statutory language." Id. at 280, 119 S.Ct. 1239. Venue is proper only where the acts constituting the offense — the crime's "essential conduct elements" — took place. Id.; see also United States v. Smith, 198 F.3d 377, 384 (2d Cir.1999).

When a crime consists of a single, non-continuing act, the proper venue is clear: The crime "is `committed' in the district where the act is performed." United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1188 (2d Cir.1989). In some cases, however, "the [C]onstitution does not command a single exclusive venue." United States v. Reed, 773 F.2d 477, 480 (2d Cir.1985). Thus, where "the acts constituting the crime and the nature of the crime charged implicate more than one location," id., venue is properly laid in any of the districts where an essential conduct element of the crime took place. See Rodriguez-Moreno, 526 U.S. at 281, 119 S.Ct. 1239. ("[W]here a crime consists of distinct parts which have different localities[,] the whole may be tried where any part can be proved to have been done.") (quoting United States v. Lombardo, 241 U.S. 73, 77, 36 S.Ct. 508, 60 L.Ed. 897 (1916)). Congress has codified the rule that continuing offenses may be prosecuted wherever a proscribed act occurs in the first paragraph of 18 U.S.C. § 3237(a):

Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be ... prosecuted in any district in which such offense was begun, continued, or completed.⁴

Although the Supreme Court has recognized Congress's power to define offenses as...