United States v. Dumitru

• Decision Date: 22 March 2021
• Docket Number: No. 19-1486-cr,August Term 2019,19-1486-cr
• Citation: 991 F.3d 427
• Parties: UNITED STATES of America, Appellee, v. Andreea DUMITRU, aka Andreea Dumitru Parcalaboiu, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

991 F.3d 427

UNITED STATES of America, Appellee,

v.Andreea DUMITRU, aka Andreea Dumitru Parcalaboiu, Defendant-Appellant.

No. 19-1486-cr

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: May 12, 2020

Decided: March 22, 2021

Susan C. Wolfe, Law Office of Susan C. Wolfe, New York, NY (Diane M. Fischer, Brooklyn, NY, on the brief), for Appellant.

Robert B. Sobelman (Nicholas W. Chiuchiolo, Alison G. Moe, David Abramowicz, Assistant United States Attorneys on the brief), for Audrey Strauss, United States Attorney, Southern District of New York, New York, NY, for Appellee.

Before: Newman and Cabranes, Circuit Judges.¹

Per Curiam:

Appellant Andreea Dumitru ("Dumitru") was convicted, following a jury trial, of one count each of: asylum fraud in violation of 18 U.S.C. § 1546(a), making false statements in violation of 18 U.S.C. §§ 1001(a)(2) and (3), and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). Dumitru was then sentenced to a below-guidelines aggregate term of imprisonment of 60 months, to be followed by one year of supervised release. On appeal, she challenges her conviction for aggravated identity theft and the application of a sentencing enhancement. For the reasons stated herein, we AFFIRM the judgment of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge ).

I. BACKGROUND

Dumitru owned and operated a law practice, Andreea Dumitru & Associates, in Sunnyside, Queens. Over time, Dumitru's practice grew to include an increasing number of immigration cases, including applications for asylum.

Between 2012 and 2017, Dumitru submitted applications to the United States Citizenship and Immigration Services ("USCIS"), an agency of the United States Department of Homeland Security, seeking asylum on behalf of her clients. To be eligible for asylum, an individual must demonstrate that he was persecuted in, or has a well-founded fear of persecution if he is returned to, his former country "on account of race, religion, nationality, membership in a particular social group, or political opinion."² In order to apply for asylum, an individual must submit Form I-589 to USCIS, which requires a detailed and specific account of the basis for the individual's asylum request.³ The basis for seeking asylum is stated primarily in a narrative section in which the applicant "is asked to explain in detail ... information about [his] experiences of past harm and fears for the future."⁴ Form I-589 may be prepared by someone other than the applicant if the preparer and the applicant both sign the application under penalty of perjury.

On September 13, 2018, the Government filed a superseding indictment charging Dumitru with: (1) committing asylum fraud by submitting asylum applications on behalf of clients in which she knowingly made false statements and representations, in violation of 18 U.S.C. § 1546(a) and 18 U.S.C. § 2 ; (2) knowingly and willfully making false statements and representations to federal agencies in the course of representing her asylum clients, in violation of 18 U.S.C. §§ 1001(a)(2)-(3) and 18 U.S.C. § 2 ; and (3) committing aggravated identity theft by using identifying information of asylum applicants during and in relation to the first two charged crimes, in violation of 18 U.S.C. § 1028A(a)(1).

At a jury trial, one of Dumitru's former employees, Alexandra Miron ("Miron"), estimated that in 2015, 2016, and 2017, Dumitru filed "anywhere from [fifty] to a hundred" asylum applications per year.⁵ In general, these asylum claims were based on the persecution of members of the Roma ethnic group in Romania. Miron testified that in some applications made on behalf of Dumitru's asylum clients, Dumitru directed her staff to recycle narrative sections used in prior clients’ applications and to prepare and submit accompanying affidavits using information pulled from prior clients’ applications. The applications using recycled narratives therefore did not include a basis for asylum that was individual or specific to the particular applicant. Miron testified that she filled out "probably over a hundred" such applications at Dumitru's direction.⁶ Additionally, a government investigator testified that he had reviewed 105 applications and found that 100 of the applications contained one or more of five "nearly identical" narratives of past persecution, categorized as: (1) broken school supplies; (2) bitten in police custody; (3) personally stopped by police; (4) beaten in factory; and (5) beaten outside bar in Bucharest.⁷ At trial, the Government introduced two summary charts, admitted into evidence, detailing the prevalence of these five categories of narratives found in the applications.

Although the applications did not accurately convey the experiences of her clients, Dumitru, as preparer, attested that the applications were accurate based on her knowledge of the applicant's specific circumstances by signing her name under penalty of perjury or allowing her staff to sign her name. At Dumitru's direction, staff members also signed and notarized affidavits and applications on behalf of clients in the space designated for the client's signature, often without sending the application to the client for review before signing. Multiple former clients of Dumitru also testified at trial that they had not reviewed the applications submitted on their behalf prior to filing, that they did not sign the application or give anyone else permission to sign it for them, and that the applications contained inaccurate information. Two of Dumitru's clients testified that they were not Roma. A third, who identified as a member of the Roma ethnic group, testified that he had never discussed persecution he experienced in Romania with Dumitru or authorized her to apply for asylum on his behalf.

Miron testified that, once the asylum applications were completed, Dumitru would personally deliver them to an immigration judge in Manhattan, often before a client had an opportunity to review the application. The filing of false asylum applications has serious collateral consequences—if an immigration judge finds that an application was deliberately fabricated, the applicant may be permanently barred from receiving any relief under the Immigration and Nationality Act.

At the close of the Government's case, Dumitru moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 on the grounds that there was insufficient evidence that she used her clients’ identification without lawful authority and thus committed aggravated identity theft. The District Court denied the motion.

Dumitru subsequently sought a jury instruction for aggravated identity theft specifying that the Government had to prove, inter alia , that the defendant knew that the individual whose means of identification were improperly used did not consent to the use. The District Court rejected this instruction and instead told the jury that, to find Dumitru guilty on the aggravated identity theft charge, the Government must prove that: (1) Dumitru knowingly used, transferred, or possessed another individual's means of identification (which could include a signature); (2) Dumitru did so during and in relation to one of the other crimes charged; and (3) Dumitru did so without lawful authority (which could include using a means of identification obtained with consent but for an unlawful purpose). The jury convicted Dumitru of all three charged counts.

Prior to sentencing, Dumitru challenged the guidelines calculations made by the United States Probation Office ("Probation"), arguing that the calculation accounted for sentencing enhancements for which there was insufficient evidence. Specifically, Dumitru argued that there was insufficient evidence presented at trial to demonstrate, by a preponderance of the evidence, that the crimes involved 100 or more fraudulent documents. Therefore, Dumitru argued, a nine-level enhancement was not warranted, nor was Dumitru responsible for "otherwise extensive" criminal activity.⁸ The District Court rejected Dumitru's challenges and sentenced her to below-guidelines concurrent terms of 36 months on the first two counts and a mandatory consecutive term of 24 months for the aggravated identity theft conviction, for a total term of imprisonment of 60 months.

This appeal followed.

II. DISCUSSION

On appeal, Dumitru contends, as before the District Court, that her conduct was legally insufficient to support a conviction for aggravated identity theft and that there was insufficient evidence to show that a nine-level enhancement for 100 or more fraudulent documents was warranted. She argues for the first time on appeal that the District Court should not have applied a nine-level enhancement to her Guidelines base offense level because a relevant application note precludes such an enhancement where, as here, a defendant is convicted of aggravated identity theft.

a. Aggravated Identity Theft Conviction

We review a challenge to the sufficiency of the evidence supporting a criminal conviction de novo .⁹ If the evidence, "viewed in its totality and in the light most favorable to the Government, would permit any rational jury to find the essential elements of the crime beyond a reasonable doubt," we must affirm the conviction.¹⁰

The aggravated identity theft statute states, "Whoever, during and in relation to any [enumerated] felony violation ... knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall ... be sentenced to a term of imprisonment of 2 years" in addition to the punishment for the underlying felony.¹¹ A "means of identification" is defined broadly to include names.¹² Dumitru principally argues that her conduct, while fraudulent, does not fall under the "theft" proscribed by the statute because her use of clients’ identifying information was merely incidental to the fraud. Because she "did not steal [another person's...