United States v. Garcia

• Decision Date: 02 May 2017
• Docket Number: No. 16-4224,16-4224
• Citation: 855 F.3d 615
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory GARCIA, a/k/a Gregory Garcia Perez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

855 F.3d 615

UNITED STATES of America, Plaintiff-Appellee,

v.Gregory GARCIA, a/k/a Gregory Garcia Perez, Defendant-Appellant.

No. 16-4224

United States Court of Appeals, Fourth Circuit.

Argued: March 30, 2017

Decided: May 2, 2017

ARGUED: William Robinson Heroy, GOODMAN, CARR, LAUGHRUN, LEVINE & GREENE, PLLC, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Chris Greene, GREENE & ASSOCIATES, INC., Charlotte, North Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge Shedd and Judge Agee joined.

DUNCAN, Circuit Judge:

Defendant-Appellant Gregory Garcia appeals his conviction on two counts of unlawful procurement of naturalization, in violation of 18 U.S.C. § 1425(a). On appeal, Garcia argues that the district court erred by (1) denying his post-trial motions for judgment of acquittal and a new trial, and (2) taking judicial notice of a portion of the U.S. Citizenship and Immigration Services' ("USCIS") website. For the reasons that follow, we affirm.

I.

The jury convicted Garcia for giving false and misleading statements about his criminal history during the naturalization process, on or about November 9, 2006 (Count 1) and August 14, 2007 (Count 2). Garcia's appeal turns on the sequence of the following relevant events, which we recount in detail below: (1) on May 31, 2006, Garcia first met with a USCIS officer; (2) on August 23, 2006 and September 15, 2006, Garcia was indicted on and arrested for federal fraud charges; (3) on November 9, 2006, Garcia appeared for a follow-up meeting with a second USCIS officer; and (4) on August 14, 2007, Garcia took his naturalization oath.

A.

Garcia immigrated to the United States in 1993 and became a lawful permanent resident. In early 2005, he filed an application to become a naturalized citizen. The naturalization process required Garcia to submit a standardized application form ("Form N-400"), appear in person for questioning, and pass tests designed to elicit his knowledge of U.S. history and government, as well as written and spoken English.

On May 31, 2006, Garcia appeared for an in-person meeting with USCIS Officer Jason Rucienski. During the meeting, Officer Rucienski tested Garcia on his civics and English knowledge, and reviewed Garcia's criminal history. Garcia passed the civics examination, but failed the language test. Officer Rucienski provided Garcia with an "interview results" form, explaining that Garcia had failed the language test and would have a second chance to take it. J.A. 685. He also informed Garcia that he needed to bring a certified record concerning an incident in his criminal history to the next meeting.

On August 23, 2006, a federal grand jury indicted Garcia on charges related to a conspiracy involving credit-card and identity fraud. Authorities arrested Garcia on September 15, 2006, and he made his initial appearance in federal court that day. He later pleaded guilty to two of the charges. Slightly more than a month after Garcia's arrest, USCIS sent Garcia a notice scheduling him to appear on November 9, 2006, for a "Re-Examination for Reading, Writing, or Speaking English," and "Naturalization Re-Interview." J.A. 689.

On November 9, 2006, Garcia appeared for a meeting with USCIS Officer Kevin Winn. Officer Winn retested Garcia on his English skills, and Garcia passed. Officer Winn also reviewed with Garcia his Form N-400. Questions 16 and 17 asked whether Garcia had ever been "arrested, cited, or detained by any law enforcement officer" or "charged with committing any crime." J.A. 678. Garcia listed two criminal incidents in New Jersey from the late 1990s, but he did not disclose the federal charges for which he had been indicted and arrested several months earlier. Question 23 asked whether Garcia had ever given false or misleading information to any U.S. official while applying for any immigration benefit, and Garcia checked the box designated as no. Garcia then signed Form N-400, certifying under penalty of perjury that the contents of the form were true and correct. Officer Winn recommended Garcia's application for approval.

USCIS approved Garcia's application in July 2007 and scheduled him to appear for a naturalization oath ceremony on August 14, 2007. The ceremony notice included Form N-445, asking whether Garcia had been, inter alia , cited, arrested, indicted, or convicted of any crime "AFTER the date you were first interviewed." J.A. 696. Although Garcia checked yes, he told USCIS Officer Edna Falls at the oath ceremony that his only intervening offense was a speeding violation, which Officer Falls noted on the form. Garcia never disclosed his August 2006 indictment or September 2006 arrest on federal charges. Garcia signed Form N-445 on August 14, 2007, certifying that it was true and correct. He became a naturalized citizen that day.

B.

On February 19, 2015, federal prosecutors charged Garcia with two counts of violating § 1425(a), based on his knowing failure to disclose his federal charges. Garcia pleaded not guilty and proceeded to trial.

1.

At the close of evidence, Garcia moved for judgment of acquittal. As to count one, he argued that there was insufficient evidence he was asked about his criminal history during his interview with Officer Winn on November 9, 2006. As to count two, he argued that his May 2006 meeting with Officer Rucienski did not qualify as a naturalization "interview," but only an examination on the civics and language portions of the process. Because, on this theory, he was not "interviewed" until November 9, 2006 with Officer Winn, his Form N-445 accurately stated that he had not been arrested or charged with any crimes after the date he was "first interviewed."

The district court denied the motion based on the evidence presented at trial. Supporting count one, Officer Winn testified that Garcia never disclosed his pending federal charges during the November interview, though he could not tell from the completed form whether he or the prior officer had asked particular questions. The government also introduced the Form N-400 that Garcia signed on November 9, 2006, which showed that he both falsely failed to acknowledge his recent federal charges, and certified that his answers were true and correct.

As relevant to count two, the government elicited testimony supporting the view that Garcia was first interviewed on May 31, 2006. For example, the government's case agent testified that in May 2006, Officer Rucienski was the first USCIS officer to interview Garcia, and Officer Winn testified that he was the second USCIS officer to interview Garcia. USCIS Officer Beth Barbee testified that if an applicant fails the civics or language test during his "initial interview," he is scheduled to return for "a second interview." J.A. 173–74. She confirmed that the language and civics testing is part of the "naturalization interview." J.A. 194–95. Finally, Officer Falls testified that she reviewed Garcia's answer to the question on Form N-445 asking whether there had been any new criminal incidents after his first interview and that Garcia reported only a speeding citation.

2.

Before closing statements, the district court inquired about what constitutes an "N-400 interview," and reported that his law clerk found information on the USCIS website generally describing the naturalization process. J.A. 476–78. The relevant portion of the website stated: "During your naturalization interview, a USCIS Officer will ask you questions about your application and background. You will also take an English and civics test unless you qualify for an exemption or waiver." J.A. 738.2. Garcia objected to the district court's consideration of the website excerpt, but the district court concluded it could take judicial notice of the information. Garcia subsequently asked the district court to take judicial notice of the USCIS Policy Manual, which the district court agreed to do. The district court took judicial notice of a portion of the manual that provided that the naturalization process includes all factors relating to eligibility, including in-person interviews and language and civics testing. The court read all of the judicially noticed facts to the jury.

The jury convicted Garcia on both counts of the indictment, and the district court denied his post-trial motions. Garcia timely appealed.

II.

Under 18 U.S.C. § 1425(a), it is unlawful to knowingly procure or attempt to procure naturalization or citizenship in a manner contrary to law. The government can prove a violation by showing that the defendant "knowingly misstated his criminal record on his application or in his interview." United States v. Pasillas-Gaytan , 192 F.3d 864, 868 (9th Cir. 1999).

On appeal, Garcia argues that the district court erred by (1) denying his motions for judgment of acquittal and a new trial, and (2) taking judicial notice of the website excerpt. We discuss each argument in turn.

A.

Garcia's arguments are the same for both his motion for judgment of acquittal and for a new trial: his convictions cannot stand because he did not knowingly make a false statement in November 2006 or August 2007. We review the district court's denial of a motion for judgment of acquittal de novo. United States v. White , 810 F.3d 212, 228 (4th Cir. 2016). Viewing the evidence in the light most favorable to the government, we ask whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). We review the district court's denial of a motion for a new trial for abuse of discretion, but assess any legal determinations de novo.

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