United States v. Grayson Enterprises, Inc., 021220 FED7, 19-1367

Docket Nº:19-1367
Opinion Judge:ST. EVE, CIRCUIT JUDGE.
Party Name:United States of America, Plaintiff-Appellee, v. Grayson Enterprises, Inc., Defendant-Appellant.
Judge Panel:Before Bauer, Manion, and St. Eve, Circuit Judges.
Case Date:February 12, 2020
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Grayson Enterprises, Inc., Defendant-Appellant.

No. 19-1367

United States Court of Appeals, Seventh Circuit

February 12, 2020

Argued September 26, 2019

Appeal from the United States District Court for the Central District of Illinois. No. 2:16-cr-20044-SEM-TSH-2 - Sue E. Myerscough, Judge.

Before Bauer, Manion, and St. Eve, Circuit Judges.

ST. EVE, CIRCUIT JUDGE.

Grayson Enterprises, Inc., is a roofing company that does business under the trade name Gire Roofing. A grand jury indicted Grayson alongside its business's namesake, Edwin Gire, on charges of visa fraud, harboring unauthorized aliens, and employing the same aliens.

On paper, though, Gire had no official relation to Grayson as a corporate entity-he was not a stockholder, officer, or even an employee of the corporation. He managed the roofing (Grayson's sole business), as he had under the Gire Roofing name for more than twenty years. The corporate papers instead identified Gray son's president and sole stockholder as Kimberly Young. Young-Gire's girlfriend-incorporated and acted as president of the "new" company Grayson, after Gire's previous roofing company went bankrupt. Gire, his retained counsel, and the government all nevertheless represented to the district court that Gire was Grayson's president. The district court, thus, permitted Gire to plead guilty on his and Grayson's behalf to three counts of employing unauthorized aliens and to waive his and Grayson's rights to a jury trial on the remaining charges. Joint counsel also represented both defendants during a bench trial that resulted in their convictions on all charges and a finding that Grayson's headquarters was forfeitable to the government because Gire had used the building to harbor aliens.

Despite obtaining separate counsel before sentencing, neither Grayson nor Young (who testified at trial) ever complained to the district court about Gire's or prior counsel's representations. Neither did Grayson object to the indictment, the plea colloquy, or the fact that the court found, without a separate hearing, that Grayson had used its headquarters to facilitate the harboring of unauthorized aliens. Nevertheless, Grayson now challenges all these matters, and more, on appeal. Grayson identifies some areas where this case could have gone more smoothly but no errors that warrant reversal. We therefore affirm the district court's judgment.

I. Background

A. Factual Background

Gire began his roofing business in the 1990s and has conducted it under multiple corporate entities, all of which have used the business name "Gire Roofing." In 2011, this name belonged to Gire Construction, Inc., of which Gire was president and owner. On behalf of his corporation, Gire submitted a petition for temporary foreign workers under the H-2B visa program, which allows a limited number of foreign workers to enter the United States "to perform ... temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country." 8 U.S.C. § 1101(a)(15)(H)(ii)(b).

To show a need for these temporary workers, Gire told the government, under penalty of perjury, that his company had received two massive roofing contracts. No such contracts existed; Gire had made them up and created false documents to support his fabrication. The government did not know this at the time, of course, so it accepted Gire's petition and approved him to receive 93 H-2B workers. These workers obtained their visas, arrived in the United States, but never worked for Gire. He nonetheless applied later that year for an extension and reassignment of 19 workers' visas from another company to Gire Construction. These workers, too, did not work for Gire.

Around the same time, Gire Construction was going through financial difficulties, and Young became involved. She and Gire created two corporations, the first was Grayson, which immediately adopted the name Gire Roofing and stepped into its operations. A month later, Gire filed for Chapter 7 bankruptcy personally and on behalf of Gire Construction, which he dissolved. Young and Gire represented to creditors that Gire was the general manager of Grayson, responsible for its daily operations. On paper, though, Young owned 100 percent of Grayson, and Gire was neither its officer nor its employee. Grayson also represented to Illinois agencies that it had no employees. Young herself worked a full-time job elsewhere.

Young's second corporation was Quick Leasing, Inc. (Quick being her former surname). By the end of 2011, Quick Leasing acquired five apartments in Villa Grove, Illinois, that had belonged to Gire until shortly before his bankruptcy. At times, Quick Leasing leased these apartments to some of Grayson's workers, and Gire deducted rent-but never taxes or employment insurance-from their paychecks.

Gire applied again to receive H-2B workers using a set of false contracts in 2013. He and Young worked closely with an attorney to prepare this application, and Gire submitted it on behalf of "Grayson Enterprises Incorporated, d/b/a Gire Roofing, care of Edwin Gire" and signed parts of the petition as the "owner" or "president" of Grayson. The government approved Grayson to receive 43 workers. When these workers arrived in Illinois, Young took them to purchase supplies and to obtain Employee Identification Numbers. After doing so, all but one, Cresencio Garcia-Cruz, left to parts unknown. Garcia-Cruz moved into one of the Villa Grove apartments and stayed to work for Grayson and Gire.

According to Young, Gire was frustrated that only one worker stayed and complained to his recruiter, Kevin Daley. Whenever Gire had his petitions approved, it was Daley who was in Mexico finding people for the government to give the visas (although Gire had said in his 2013 and 2014 petitions that he was not using a recruiter). As a supposed refund for the walkouts, Daley wired $4, 000 to Young's personal bank account; he had sent Gire Construction a similar $2, 000 payment in 2011. Daley, however, had not been recruiting workers but illegally selling the visas. Garcia-Cruz had purchased his for $3, 500.

Around the beginning of 2014, Quick Leasing sold the Villa Grove apartments and used the funds to purchase a warehouse in Champaign, Illinois. It leased the warehouse to Grayson to use as a headquarters. Prior to that, Grayson had a much smaller headquarters, and Gire did most of his office work out of Young's home, where he lived as well.

Gire renovated part of the warehouse into a dormitory, with bedrooms, communal bathrooms, and shared living space. He then asked Garcia-Cruz and another Grayson worker, Rene Lopez-Constantino, to move out of the Villa Grove apartments and into the warehouse. Several more workers (the government estimated twelve) moved in too, including Dario Torres-Hernandez. By this point Garcia-Cruz's visa had expired and he was no longer permitted to stay in the United States. Both Torres-Hernandez and Lopez-Constantino were never authorized to enter the United States. While these three men lived in the warehouse, Gire withheld rent from their pay.

Young soon quit her job to take care of her and Gire's daughter. A few months later, she started working for Grayson, helping with marketing. She received her own office in the warehouse, next to Gire's.

Gire submitted a fourth application for H-2B workers around this time, yet again relying on a series of fake contracts to justify his need for workers. Again, he and Young worked closely with their attorney, and Gire signed the petition as owner and president of Grayson Enterprises d/b/a Gire Roofing. The government approved the application but never issued the visas. Employees at the Mexican consulate had interviewed some of the workers who had received visas in 2011, and they admitted to never working for Gire. This triggered an investigation that uncovered Gire's fraud.

In May 2014, the government executed a search warrant on the warehouse. They discovered the dormitory and identification documents for at least fourteen Grayson workers, many apparently unauthorized to be in the United States. In Young's office, agents found original copies of portions of the 2013 and 2014 applications, the falsified contracts, and letters notifying Grayson that its request for workers had been approved. After the search, Garcia-Cruz, Torres-Hernandez, and Lopez-Constantino moved out of the warehouse. Young helped them find new housing, as they continued to work for Gire. After Garcia-Cruz and Torres-Hernandez stopped working for Gire, they stayed in their apartments and paid the rent themselves (at a lower cost to them).

B. Procedural Background

Two years later, a grand jury returned a ten-count indictment...

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