United States v. Greenberg
| Decision Date | 09 March 2022 |
| Docket Number | 21-CR-92 (AJN) |
| Parties | United States of America, v. Julia Greenberg, Defendant. |
| Court | U.S. District Court — Southern District of New York |
The Government filed a one-count superseding indictment against six Defendants, including Julia Greenberg. Greenberg now moves to dismiss the indictment due to outrageous government conduct, to dismiss the indictment as duplicitous, to sever Greenberg's trial from the other five Defendants, to dismiss the indictment for failure to allege a crime, to suppress her statements allegedly obtained in violation of the Fifth Amendment, and to produce minutes of the grand jury proceedings to her or for in camera inspection. For the reasons that follow, the Court DENIES Greenberg's motion.
Generally in evaluating a motion to dismiss, the Court “accept[s] as true all of the allegations of the indictment.” United States v. Goldberg, 756 F.2d 949, 950 (2d Cir. 1985). The Court first recites the facts as drawn from the superseding indictment filed February 18, 2021. S1 Indictment, Dkt. No. 12. Greenberg's motions to dismiss for outrageous government conduct and to suppress her post-arrest statements, however, necessarily implicate facts beyond the confines of the superseding indictment and, in resolving those issues, the Court is permitted to consider facts extrinsic to the indictment. See United States v Cuervelo, 949 F.2d 559, 567 (2d Cir. 1991); United States v. Regan, 103 F.3d 1072, 1082 (2d Cir. 1997).
The superseding indictment alleges a conspiracy to commit immigration fraud by preparing and submitting false asylum claims. Generally, to obtain asylum, applicants must show that they have suffered persecution in their country of origin on account of race, religion, nationality, political opinion, or membership in a particular social group, or have a well-founded fear of persecution if they were to return to their country. S1 Indictment ¶ 10.[1] An asylum applicant must complete Form I-589 and present it to U.S. Citizenship and Immigration Services. Id. ¶ 11.[2] Because Form I-589 asks for a detailed account of the applicant's asylum claim, applicants often attach to it an asylum affidavit that provides more detail about their background and the basis for their claim. Id. If another individual, like an attorney, prepares Form I-589 for the applicant, then that preparer must provide her name and address. Id. Both the applicant and the preparer must sign Form I-589 under penalty of perjury. Id.
After Form I-589 is submitted, the applicant is interviewed by an Asylum Officer to determine if the applicant is eligible for asylum. Id. ¶ 12. The applicant may speak, under oath, on her own behalf at the interview and may present witnesses or additional documentation to substantiate her claim. Id. The Asylum Officer then determines the applicant's eligibility. Id. If the applicant is deemed eligible, she receives a completed Form I-94, which demonstrates that she was granted asylum and permits the applicant to pursue other relief like permanent resident status. Id. ¶ 13. If the applicant is deemed ineligible, her application is referred to an Immigration Judge who holds a hearing to determine the applicant's eligibility. Id. ¶ 14. If the Immigration Judge also denies the applicant, the applicant may appeal to the Board of Immigration Appeals and, if still unsuccessful, to the U.S. Court of Appeals. Id. ¶ 14.
Russian America is a company that assists its clients, primarily noncitizens from Russia, Ukraine, and nearby countries, in seeking asylum, visas, citizenship, and other forms of legal status in the United States. S1 Indictment ¶ 1. Defendants Yury Mosha and Uladzimir Danskoi operated Russian America, Mosha from an office in Manhattan and Danskoi from an office in Brooklyn. Id. The indictment alleges that Mosha and Danskoi advised Russian America clients to obtain asylum by false claims, knowing they did not qualify for asylum. Id. ¶ 2. According to the indictment, in advising these false asylum claimants, Mosha and Danskoi conspired with Defendants Julia Greenberg, Tymur Shcherbyna, and Kateryna Lysyuchenko, who knowingly assisted with the clients' fraudulent asylum claims and helped them prepare and submit asylum applications and affidavits to USCIS. Id. Greenberg is a licensed immigration attorney. Id. ¶ 7. In the alleged scheme, she prepared applicants that she knew would lie to USCIS officers to obtain asylum and she accompanied these applicants to their USCIS interviews, during which she and the applicant made statements that she knew were false. Id.
The superseding indictment identifies three cooperating witnesses that acted as clients of Russian America. The first of these is CS-1, a Ukrainian national, who in April 2019 started a blog critical of the Ukrainian government, “at Mosha's instruction, to generate a basis to seek asylum.” Id. ¶¶ 3-4, 20. Mosha submitted CS-1's Form I-589, which claimed that CS-1 authored the blog posts when Mosha knew that the blog was in fact written by Defendant Shcherbyna, who Mosha introduced to CS-1. Id. ¶ 20. CS-1's Form I-589 also recounted an incident when CS-1 was assaulted in Ukraine because he spoke Russian, though Mosha understood that this incident did not occur. Id. Greenberg in September 2019 “knowingly prepared and coached CS-1 to lie under oath to a USCIS Asylum Officer, understanding that CS-1 would convey false information about” why he started the blog, who wrote the blog, and the persecution he faced in Ukraine. Id.
The second cooperating witness, CS-2, met with Defendant Aleksei Kmit, who told CS-2 that Russian America had already prepared his Form I-589 on the basis of a blog that CS-2 had not yet written. Id. The superseding indictment does not allege that Greenberg ever interacted with CS-2 or that Russian America ever submitted CS-2's Form I-589 to USCIS.
The third cooperating witness, CS-3, met with Danskoi in Brooklyn. Id. Danskoi assisted CS-3 in preparing a Form I-589 on the basis of CS-3's sexual orientation while knowing that CS-3 was a heterosexual male who did not face persecution. Id.[3] CS-3 was further assisted in preparing his application by Defendant Lysyuchenko. Id. Danskoi referred CS-3 to Greenberg, knowing she would prepare CS-3 to lie in his interview. Id. ¶ 9. In December 2020, Greenberg met with CS-3 and helped prepare him for his interview with a USCIS Asylum Officer, knowing that CS-3 would falsely claim persecution based on his sexual orientation. Id. ¶ 20. Greenberg further instructed CS-3 to appear and dress in a manner that comported with the expected appearance of a gay man. Id.
The Court draws the following facts, which reflect only a portion of the Government's investigation, from representations in the parties' briefing and the exhibits attached to Greenberg's motion. Where the parties differ, the Court accepts as true the allegations proffered by Greenberg. An evidentiary hearing is therefore unnecessary. See United States v. LaPorta, 46 F.3d 152, 160 (2d Cir. 1994); United States v. Davis, 57 F.Supp.3d 363, 364 n.1 (S.D.N.Y. 2014) (“Because the Court accepts as true all of the facts proffered by the Defendants, and nonetheless finds that the Government's alleged conduct does not render the indictment constitutionally defective, a hearing need not be held.”).[4]
1. CS-1, CS-2, and Mosha
The Federal Bureau of Investigation on February 18, 2018, received an anonymous tip that Russian America, and Mosha specifically, was committing immigration fraud. Greenberg Br., Ex. A, Dkt. No. 115. The FBI engaged CS-1 to meet with Mosha and tell him that CS-1 wanted asylum to stay in the United States and not return to Ukraine. Greenberg Br. at 4.[5] On August 14, 2018, CS-1 met with Mosha, who stated that he and Russian America “do not take any fictious cases.” Id., Ex. C at 3. He then “suggest[ed] that [CS-1] start his own blog about the situation in the Ukraine, ” that Mosha would help promote it, and that CS-1 “pay six thousand [dollars] for the whole case including a lawyer.” Id. at 3, 5. As Mosha explained, by “writing a blog, ” CS-1 “will be proving that [he] will be persecuted in the future because they kill bloggers and journalists there for real.” Id. at 3. He continued: Id. at 4.
CS-1 met Mosha again on August 23, 2018, and expressed his lack of direction and unfamiliarity in writing a blog on websites like Live Journal. Id., Ex. D at 5-9. Mosha told CS-1 that he will “have to prove” to the Asylum Officer that he “came to the blog [himself], and it [was his] decision and [he was] not doing it just for a green card, ” to which CS-1 affirmed, “I can't say that . . . [Mosha] said to make a blog” and that “it is my decision, of course.” Id. at 12- 13. During this conversation, CS-1 also asked about whether he could choose the lawyer with whom he would work. Mosha said that “they are all good, ” and that the Id. at 11. CS-1 reiterated that this application was important to him, and Mosha stated he “will give it to [him].” Id. But, Mosha said, CS-1 did not need to be in touch with a lawyer “right now.” Id. at 15.
On September 11, 2018, CS-1 and Mosha again met and CS-1 expressed difficulty in writing the blog. Id., Ex. F at 4. Mosha responded that he coul...
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