U.S. v. Roshko

• Decision Date: 17 July 1992
• Docket Number: D,No. 1100,1100
• Citation: 969 F.2d 1
• Parties: UNITED STATES of America, Appellee, v. Irene ROSHKO, Defendant-Appellant. ocket 91-1590.
• Court: U.S. Court of Appeals — Second Circuit

Page 1

969 F.2d 1

UNITED STATES of America, Appellee, v. Irene ROSHKO, Defendant-Appellant.

No. 1100, Docket 91-1590.

United States Court of Appeals, Second Circuit.

Argued March 17, 1992.

Decided July 17, 1992.

Stuart Holtzman, New York City, for defendant-appellant.

Richard J. Appel, New York City, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., Daniel C. Richman, Asst. U.S. Atty., of counsel), for appellee.

Before: MESKILL, Chief Judge, TIMBERS and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

In theory the grand jury "belongs to no branch of the institutional government, serving as a kind of buffer or referee between the Government and the people", United States v. Williams, --- U.S. ----, ----, 112 S.Ct. 1735, 1742, 118 L.Ed.2d 352 (1992) (citing Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 274, 4 L.Ed.2d 252 (1960)), and the relationship between the grand jury and the courts "has traditionally been, so to speak, at arm's length." Id. Consequently, federal court review of grand jury proceedings is limited. Id. As a corollary, where a criminal defendant's substantial fifth amendment right "to be tried only on charges presented in an indictment returned by a grand jury" is threatened at trial, Stirone, 361 U.S. at 217, 80 S.Ct. at 273, we must be vigilant.

Today, we address the issues of whether at the trial of Irene Roshko the conspiracy Meir's appeal challenging, inter alia, his own conspiracy conviction, was argued before another panel of this court about eight weeks after the argument of this appeal. See United States v. Meir Roshko, 969 F.2d 9 (2d Cir.1992). The opinions in both cases, after having been circulated to all members of both panels, are being filed simultaneously.

                indictment was constructively amended, and whether, when properly limited to the grand jury's charge, her prosecution was barred by the statute of limitations.   After a jury trial in the United States District Court for the Southern District of New York, Dominick L. DiCarlo, Judge of the United States Court of International Trade, sitting by designation, Irene, along with her husband, Meir, was found guilty of conspiring to defraud the government by making false statements to a government agency, see 18 U.S.C. § 1001 (1988), and by obstructing an Immigration and Naturalization Service ("INS") proceeding, see 18 U.S.C. § 1505 (1988)
                

BACKGROUND

A. The Indictment.

This prosecution arose out of Meir's successful acquisition of a green card which permits Meir, an immigrant from Israel, to reside permanently in this country. The prosecution's theory, maintained at trial and on appeal, was that Meir entered into a sham marriage with a United States citizen, Miriam Gershkowich, in order to obtain his green card. After Meir obtained the card in October 1984, he divorced Miriam and married Irene, also an alien, who eventually obtained an immigrant visa granting her permanent resident status in 1988. According to the government, Meir obtained his green card by falsely stating to the INS that he was living in a marital relationship with his first wife, Miriam, when, in fact, the couple never lived together and were married solely for the purpose of securing permanent resident status for Meir.

Initially, the grand jury returned a two-count indictment against Meir on May 9, 1990. Count I alleged that Meir had conspired to defraud the United States by making false statements to the INS, see 18 U.S.C. § 1001, and by obstructing that agency's proceedings, see 18 U.S.C. § 1505. Count II charged Meir with the substantive crime of making false statements to a governmental agency. See 18 U.S.C. § 1001.

In relevant part, the second paragraph of that indictment charged, among other things, that Meir had conspired to defraud the government

by seeking changes in the immigration status of an alien based on a sham marriage to a United States citizen that was falsely represented to be genuine. (emphasis added)

The means of the conspiracy, as alleged in the indictment, were the submission of false statements in INS forms and the obstruction of INS proceedings. The indictment alleged five overt acts in furtherance of the conspiracy:

a. On or about July 9, 1984, Valery Gershkowitz [sic ] and Miriam Gershkowitz [sic ] were divorced in Bronx, New York.

b. On or about July 23, 1984, MEIR ROSHKO and Miriam Gershkowitz [sic ] were married in New York, New York.

c. On or about August 2, 1984, MEIR ROSHKO submitted Form I-485 to the INS in Manhattan.

d. On or about October 3, 1985, MEIR ROSHKO and Miriam Gershkowitz [sic ] were divorced in Bronx, New York.

e. On or about October 25, 1985, MEIR ROSHKO and Irene Roshko were married in New York, New York.

On June 5, 1990, Meir's attorney wrote a letter to assistant United States attorney James Comey intended to memorialize their conference of the previous day. In particular, defense counsel wrote that the government had represented that "[t]he 'alien' referred to in paragraph 2 is the defendant", Meir Roshko. The government does not dispute the authenticity of this letter, or that it made such a representation.

On October 17, 1990, the grand jury returned a superseding indictment which added Irene as a co-defendant on the conspiracy by seeking changes in the immigration status of an alien based on a sham marriage to a United States citizen that was falsely represented to be genuine. (emphasis added)

                count, but which in all other respects was virtually identical to the first count of the initial indictment that had named Meir only.   The charge was the same:  that the Roshkos had conspired to defraud the government
                

The means of the conspiracy were the same: the submission of false statements in INS forms and the obstruction of INS proceedings. Five of the six overt acts were the same: commencing with Miriam and Valery Gershkowich's divorce on July 9, 1984, and ending with the marriage of Irene and Meir on October 25, 1985. The sixth merely focused on Meir's wedding to Miriam.

The grand jury's only other revisions to the text of the original indictment were to add Irene as a defendant and then make technical, conforming amendments; for example, the word "defendant" was changed to "defendants". Significantly for this appeal, the grand jury did not alter the original indictment's reference to the "changes in the immigration status of an alien based on a sham marriage to a United States citizen" (emphasis added). Irene argues that the "alien" referred to in the indictment is Meir. The government, however, argues that the indictment also encompassed the change in Irene's immigration status, and therefore, that the indictment's reference to "an alien" in the singular refers to both Irene and Meir.

B. The Evidence at Trial.

The government at trial introduced evidence relating to the change in both Irene and Meir's immigration status. The prosecution's key witnesses were Miriam and Valery Gershkowich, the two unindicted coconspirators. Miriam Gershkowich testified that she met Irene and Meir through mutual friends in the summer of 1984. At that point, Meir informed the Gershkowiches that he sought to stay in the United States permanently, and that he could do so by marrying Miriam, who was a United States citizen. In exchange for $2,800, Miriam and Valery agreed that they would obtain a divorce in order to allow Miriam and Meir to wed. Miriam and Meir were married on July 23, 1984.

Within a few weeks the newlyweds quickly sought to obtain permanent resident status for Meir. Miriam filed with the INS an I-130 form, which permits a United States citizen to sponsor an alien relative's application for permanent resident status; at the same time, Meir filed the required I-485 form. On the forms, the couple indicated that they were residing together in an apartment at 3205 Emmons Avenue in Brooklyn. Miriam, however, testified that after the marriage she continued to live with her first husband, Valery. Other witnesses testified that Meir lived with Irene during the period that he was married to Miriam.

Nevertheless, Miriam and Meir apparently posed as a happily married couple when they attended an interview with an INS immigration examiner on October 29, 1984. They repeated the false statements regarding their living arrangements to the unsuspecting INS official who, immediately after the interview, granted Meir's application for a green card.

Through the testimony of Miriam, the government sought to introduce evidence relating to events occurring after Meir obtained the green card, including Meir's divorce on October 3, 1985. The Roshkos objected, contending that Meir's receipt of the green card on October 29, 1984, had terminated the conspiracy and that evidence of events after that date was irrelevant. Noting that the divorce was "part and parcel of the agreement and the government's theory of the case", the district court overruled the objection. Similarly, the court allowed, over objection, evidence relating to Meir's subsequent marriage to Irene, and Irene's successful application for a green card.

At trial Irene argued that the five-year statute of limitations for conspiracies, see 18 U.S.C. § 3282 (1988), barred her prosecution. She claimed that the indictment charged a conspiracy to change the immigration status of "an alien", identified by the government earlier as Meir, and that the conspiracy therefore ended on October 29, 1984, when Meir received his green card. She argued that her prosecution, begun nearly six years later on October 17, 1990, was therefore time-barred. The government contended in opposition that the purpose of the conspiracy was to change the status of both Meir and Irene, so that it did not end until she obtained her immigrant visa on September 29, 1988, which granted Irene permanent resident status in the United States.

Recognizing that there were problems with the indictment, the district court nevertheless denied Irene's ...