U.S. v. Ryan-Webster

• Decision Date: 22 December 2003
• Docket Number: No. 02-4650.,02-4650.
• Citation: 353 F.3d 353
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sylvia Anita RYAN-WEBSTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

353 F.3d 353

UNITED STATES of America, Plaintiff-Appellee, v. Sylvia Anita RYAN-WEBSTER, Defendant-Appellant.

No. 02-4650.

United States Court of Appeals, Fourth Circuit.

Argued: September 26, 2003.

Decided: December 22, 2003.

ARGUED: Drewry Bacon Hutcheson, Jr., McGinley, Elsberg & Hutcheson P.L.C., Alexandria, Virginia, for Appellant.

Thomas Higgins McQuillan, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

ON BRIEF: Paul J. McNulty, United States Attorney, Robert C. Erickson, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Before WILLIAMS, TRAXLER, and KING, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge TRAXLER joined. Judge WILLIAMS wrote an opinion concurring in part and dissenting in part.

OPINION

KING, Circuit Judge:

Sylvia Anita Ryan-Webster was convicted in the Eastern District of Virginia in 2002 of conspiracy to defraud the United States and four counts of immigration fraud. On appeal, Ryan-Webster challenges four of her five convictions, contending: (1) that the conduct underlying three of her immigration fraud convictions does not fall within the ambit of the governing statute, 18 U.S.C. § 1546(a); and (2) that the district court committed plain error when it named an unindicted co-conspirator in the jury instructions. As explained below, we reject these contentions and affirm.

I.

A.

During the relevant time period, Ryan-Webster was the sole practitioner in a District of Columbia law practice called Ryan & Webster. Her work primarily involved the representation of aliens seeking permanent legal status in the United States through the process for issuance of Permanent Resident Cards (commonly called "green cards").¹ One method for securing a Permanent Resident Card is for an alien to first obtain immigrant status based on employment in the United States. Under the evidence, Ryan-Webster systematically sought immigrant status for her clients as part of an immigration fraud scheme. That scheme, and particularly her use of fraudulent immigration documents, underlies the criminal convictions challenged in this appeal.

In order to properly assess Ryan-Webster's contentions, we must possess an elementary understanding of the process through which aliens seek and secure immigrant status based on employment. Pursuant to federal law, an alien seeking permanent legal status based on employment must utilize a three-step process, involving the Department of Labor (the "DOL"), the Department of State, and the Immigration and Naturalization Service (the "INS").²

First, an alien must have a prospective employer in this country, and that employer must petition the DOL for a "Labor Certification" on behalf of the alien.³ The DOL administers its Labor Certification program through one of its agencies, the Employment and Training Administration (the "ETA").⁴ When issued, a Labor Certification evidences the DOL's acknowledgment of two predicate facts: (1) sufficient United States workers are not able, willing, qualified, and available for a particular job; and (2) employment of a particular alien will not adversely effect the wages and working conditions of United States workers similarly employed. See 8 U.S.C. § 1182(a)(5)(A)(i). In order to secure a Labor Certification, an alien's prospective employer, or an attorney acting on its behalf, is required to file with the DOL a Form ETA-750, Application for Alien Employment Certification ("Certification Application"). If an attorney acts for the employer, the attorney is required to file with the DOL an INS Form G-28, Notice of Entry of Appearance as Attorney or Representative ("Attorney Appearance Notice").⁵ 20 C.F.R. § 656.20(b)(2). The Certification Application is analyzed by the DOL and, if it satisfies the essential requirements, it is then "certified" and constitutes a valid Labor Certification.

In the second step of the process, the alien's prospective employer, or an attorney acting on the employer's behalf, is required to file with the INS the Labor Certification, along with a Form I-140, Visa Petition for Prospective Immigrant Employee ("Visa Petition"). An attorney representing the prospective employer in this second step must also file with the INS an Attorney Appearance Notice.⁶ See 8 C.F.R. § 299.1. A Visa Petition constitutes a request to the INS that the alien named in the Labor Certification be classified as eligible to apply for designation within a specified visa preference employment category. See 8 U.S.C. § 1153(b). If the INS approves the Visa Petition and classifies the certified alien as so eligible, the alien is assigned an immigrant visa number by the Department of State.

The requirements for the final step of the three-part green card process depend upon whether the certified alien, at the time of his application, resides inside or outside the United States. When a resident alien receives a visa number, he must file with the INS a Form I-485, Application to Adjust Status ("Green Card Application"). The INS then considers the resident alien's Visa Petition and Green Card Application and determines whether to "adjust" the resident alien's status. 8 C.F.R. § 204.5(n). If the Green Card Application is approved, the INS adjusts the status of the resident alien to that of a lawful permanent resident who is entitled to live and work in the United States. 8 U.S.C. § 1255(a). The INS then issues a green card to the immigrant evidencing his immigrant status. On the other hand, when a nonresident alien is assigned a visa number, he must then complete the application process for an immigrant visa. See id. § 1181(a). Upon completion of this process and receipt of INS approval, the nonresident alien receives an immigrant visa and is entitled to enter and work in the United States. Sometime after entering the United States, the immigrant receives his green card from the INS.

B.

In her law practice, Ryan-Webster specialized in securing permanent legal status for her alien clients through the process summarized above. Under the evidence, Ryan-Webster, in the typical situation, would file a Certification Application, together with an Attorney Appearance Notice, with the DOL, seeking a Labor Certification for an alien client and the alien's purported prospective employer. Upon issuance of a Labor Certification by the DOL, Ryan-Webster would submit it to the INS on behalf of the purported prospective employer, along with a Visa Petition and an Attorney Appearance Notice. Ryan-Webster would normally charge her alien clients approximately $7,000 each for her work in this process.

Ryan-Webster developed a lucrative law practice in the representation of her alien clients. In order to expedite the process, she systematically forged the signatures of purported prospective employers on the Certification Applications and Visa Petitions filed with the DOL and the INS.⁷ Because she filed Attorney Appearance Notices with the DOL and INS, purporting to represent prospective employers, the immigration authorities dealt exclusively with Ryan-Webster.

C.

In February 2002, Ryan-Webster was indicted in the Eastern District of Virginia for five felony offenses arising out of her immigration fraud scheme. In Count 1 of the Indictment, she was charged under 18 U.S.C. § 371 with conspiracy to defraud the United States "by attempting to obtain, and by obtaining, by false statements, forgery and fraud, immigration benefits for aliens." In Counts 2, 3, and 5, Ryan-Webster was charged under 18 U.S.C. § 1546(a). The charges alleged in those three counts tracked the language of the first of the four unnumbered paragraphs of § 1546(a). The first paragraph of § 1546(a) provides, in relevant part:

Whoever knowingly ... utters, uses, [or] possesses... any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made [is guilty of a felony].

18 U.S.C. § 1546(a).⁸ In charging Ryan-Webster with the fraudulent use of Certification Applications and Visa Petitions, Counts 2, 3, and 5 alleged that she uttered, used, and possessed documents "prescribed by statute or regulation for entry into, or as evidence of authorized stay or employment in the United States" which she "knew to be forged and falsely made."⁹

In April of 2002, Ryan-Webster was tried before a jury in federal court in Alexandria, Virginia. Nora Azenon-Gomez, Ryan-Webster's former office assistant, was a key government witness. In connection with Count 2, Azenon-Gomez testified that Ryan-Webster had signed the name "James Radcliffe," on behalf of C.A.R. Collision, on approximately fifteen Certification Applications filed with the DOL. Radcliffe was also called as a witness, and he testified that he had neither signed those forms nor given Ryan-Webster permission to sign for him. Each form reflected that the prospective alien employee lived outside the United States and intended to apply for an immigrant visa. In connection with Count 3, Azenon-Gomez testified that the name "Cecil Lockhart" on the relevant Visa Petition was signed by Ryan-Webster. Lockhart, in his testimony, denied any knowledge of either this form or of Mitra Rezvani, the prospective alien employee for whom it was filed. The Visa Petition reflected that Rezvani lived outside the United States and intended to apply for an immigrant visa. As to Count 5, Azenon-Gomez identified Ryan-Webster as having signed the name "Eliana Noguchi" on a Certification Application and on a Visa Petition filed on behalf of the Little Flower Montessori School. In her testimony, Ms. Noguchi denied any knowledge of these forms and of Manik Kadir, the prospective employee named thereon. The forms reflected that Kadir resided in Virginia and intended to petition for an...