United States v. Bart, 17-1236

• Decision Date: 24 April 2018
• Docket Number: No. 17-1236,17-1236
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Sandra Lee BART, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

888 F.3d 374

UNITED STATES of America, Plaintiff–Appellee

v.Sandra Lee BART, Defendant–Appellant

No. 17-1236

United States Court of Appeals, Eighth Circuit.

Submitted: December 14, 2017

Filed: April 24, 2018

James Sanderson Alexander, David M. Maria, Manda M. Sertich, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Minnesota, Minneapolis, MN, for Plaintiff–Appellee.

Sandra Lee Bart, Alderson, WV, Pro Se.

Andrew S. Buchanan, James V. O'Brien, BUCHANAN & WILLIAMS, St. Louis, MO, for Defendant–Appellant.

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

After a five day trial, a jury found Sandra Bart guilty of conspiracy to commit visa fraud, 18 U.S.C. § 371 ; conspiracy to commit fraud in foreign labor contracting, 18 U.S.C. § 1349 ; and conspiracy to commit mail and wire fraud, 18 U.S.C. § 1349. Bart's convictions arise from her role in a scheme to bring seasonal workers to the United States through federal work visa programs and then require them to pay a recruitment fee, travel costs, and kickbacks on their wages. Bart appeals, claiming that the jury verdict was not supported by sufficient evidence and that the district court abused its discretion by denying her motions for an evidentiary hearing and new trial based on juror misconduct. We affirm.

I.

Sandra Bart operated Horizon Lawn Management ("Horizon"), a lawn care company located in Ohio. She began hiring through the federal H-2A and H-2B work visa programs in 2002 or 2003. These programs allow certain American employers to hire foreign workers to meet their seasonal labor needs if the employer demonstrates both that domestic workers are unavailable and that employing foreign workers will not depress domestic labor wages. The Department of Labor ("DOL"), the Department of Homeland Security ("DHS"), and the Department of State ("DOS") all oversee the H-visa programs and require employers to certify their compliance with program standards before approving employer participation. To participate in the H-2A program, an employer must certify the following to DOL and DHS under penalty of perjury: that it did not require compensation from prospective workers as a condition of employment, that it will pay transportation costs to bring the workers to the United States, that it will pay to house the workers in the United States, and that it will pay the wage rate set annually by DOL.¹

Bart and Wilian Cabrera, a former H-2B worker from the Dominican Republic, formed Labor Listo in 2008. This organization sought to connect American employers with Dominican workers by means of the H-visa system. Bart and Cabrera agreed that Cabrera would recruit workers while Bart would recruit farmers. They also agreed to charge prospective Dominican employees an initial fee of $500. From that they planned to deduct their legitimate costs, such as consulate fees and those for internet usage, and divide the remainder between them. Bart recorded an early version of this arrangement in a handwritten journal entry on October 13, 2008 titled "Meeting w/ Wilian." The entry includes the notes "Costs–pass on to applicant" and "Charge to applicant for Labor Listo services."² The entry shows a projected commission of $216 to Bart for each applicant.

In the summer of 2009 Bart contacted John Svihel, owner of Svihel Farm in Minnesota, and offered to supply Dominican H-2A workers for the 2010 season. Svihel agreed to the proposal and later testified that Bart told him a "do-gooder" group would pay for their airfare. DOL investigators determined that although Bart paid for the flights during the first year, workers had to return the cost to Cabrera, who then reimbursed Bart. After working with Labor Listo in 2010, Svihel told Bart he was no longer interested in employing H-2A workers because DOL had increased the required wage rate for the 2011 season. Bart then proposed that the 2011 workers give Svihel a kickback sufficient to make their effective wage equal to that in 2010. From then on, Cabrera consistently communicated to the Dominican workers that their actual wage rate would be lower than the DOL required wage rate. Worker testimony confirms that they did pay kickbacks to offset the increased amount. In 2012, Svihel began paying airfare costs for the workers, who reimbursed him later. He testified that this was Bart's idea.

In 2014, DOL received an anonymous complaint about Svihel Farm's labor practices. During the subsequent investigation, DOL learned about the illegal kickbacks, recruiting fees, and travel costs. On May 28, 2015, law enforcement executed search warrants at the Horizon offices, the homes of Bart and Cabrera, and Svihel Farm. Investigators discovered handwritten notes by Bart and Cabrera, some of which referenced $216 payments owed to Bart by H-2A workers. According to Angela Olson, a DOS investigator who worked on Bart's case, the Horizon payroll records consistently reflected $216 deductions. Olson confirmed that in many cases, the collective deductions from worker paychecks were equal to the total cost of airfare reflected on Bart's credit card bills. The day after the searches, Bart deleted the entire Labor Listo email account.

From 2010 to 2015, Svihel had hired a private agency to submit required annual certifications to DOL and DHS, which included a certification that he or his agents paid the DOL wage rate and worker transportation fees, without collecting a recruiting fee. According to Lesli Downs, who submitted Svihel's certifications, Bart was aware of the program requirements and involved in the certification process. Downs submitted Svihel's paperwork to DOL by mail from 2010 to 2012 and by wire communication thereafter.

Cabrera testified that he and Bart knew their arrangement was illegal and that she had told him it was illegal. For that reason, he warned prospective Dominican workers that they could not discuss the initial fee with anyone. Patricia Sowards, an agent who filed Bart's own certifications with Horizon, testified that, on a scale of one to ten, Bart's knowledge about the requirements of the H-2A program was a ten.

Bart was charged in three conspiracy counts: conspiracy to commit visa fraud, 18 U.S.C. § 371 ; conspiracy to commit fraud in foreign labor contracting, § 1349 ; and conspiracy to commit mail and wire fraud, § 1349.³ After the defense rested at trial, an Assistant United States Attorney notified the district court that on a courthouse elevator she had overheard a juror say the word "guilty." Although the defense sought to question the jury about the incident, the district court instead provided a curative instruction:

Another issue came up and that is that it's come to the court's attention that some or one of the jurors may have been discussing the case last Thursday after the close of evidence here in the courthouse. As I have instructed you throughout the case, you are not to discuss the case with anyone, including your fellow jurors, until the case has been concluded and you have been instructed on the law. Now, I trust that you have followed that instruction, because the only indication we had was a mention of a word and there was no context to that word. And so, therefore, I trust that you have followed that instruction and will continue to do so until you begin your deliberations as a jury.

Bart then moved unsuccessfully for a new trial.

On August 8, 2016, the jury convicted Bart on all three conspiracy charges. The district court sentenced her to 60 months in prison. She appeals.

II.

Bart claims that the evidence at trial was insufficient to prove each of the three conspiracy charges.

"We review challenges to the sufficiency of the evidence de novo."

UnitedStates v. Johnson, 745 F.3d 866, 868–69 (8th Cir. 2014). In doing so, we view the evidence in the light most favorable to the guilty verdict, construing all reasonable inferences to support that verdict. United States v. Sullivan, 714 F.3d 1104, 1107 (8th Cir. 2013). "We will reverse a conviction only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt." United States v. Yang, 603 F.3d 1024, 1026 (8th Cir. 2010).

To prove a conspiracy to commit visa fraud under 18 U.S.C. § 371, the government must show that: (1) two or more people agreed to commit visa fraud; (2) the defendant voluntarily and intentionally joined the agreement at some point; (3) the defendant knew the purpose of the agreement; and (4)...