United States v. Narang
| Decision Date | 09 August 2021 |
| Docket Number | 19-4850 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICHA NARANG, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John Cady Kiyonaga, LAW OFFICE OF JOHN C. KIYONAGA, Alexandria Virginia, for Appellant.
Jack Hanly, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria Virginia, for Appellee.
ON BRIEF:
Terrance G. Reed, LANKFORD &REED, PLLC, Alexandria, Virginia, for Appellant.
G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Before FLOYD, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
Richa Narang appeals her conviction of conspiracy to commit visa fraud and two counts of visa fraud. Following a strange procedural history, Narang and the government tried these counts in a one-day bench trial. Narang now appeals, arguing both that the court lacked jurisdiction over the trial and that she was convicted based on insufficient evidence. We reject both of Narang's arguments and affirm the judgment of the district court.
The government's prosecution centered on Narang's role as a high-level employee of EcomNets-a Virginia corporation purportedly providing technology services while running a sophisticated visa fraud scheme. EcomNets's business model involved sponsoring H-1B visa beneficiaries and then placing them with third-party vendors for a fee. The government alleged at trial that EcomNets's business model depended on the submission of fraudulent applications for H-1B worker visas.
The H-1B visa program is a temporary-worker program, which admits roughly 65, 000 applicants annually to work in specialty occupations requiring a bachelor's degree or its equivalent. 8 U.S.C. § 1184(g)(1)(A)(vii); 8 C.F.R. § 214.2(h)(4)(iii)(A). United States-based employers (the "petitioners") file petitions on behalf of non-citizen workers (the "beneficiaries") seeking U.S. Citizenship and Immigration Services (USCIS) approval for a beneficiary to work for a petitioner in the United States.
Before petitioners can file an H-1B petition with USCIS, they must first file a labor condition application (LCA) with the U.S. Department of Labor (DOL) promising to pay the beneficiary the prevailing wage for their occupational classification. See 8 U.S.C. § 1182(n)(1)(A)(i), (D). Once approved, the petitioner files a form I-129 with USCIS for adjudication, appending supporting documentation. USCIS adjudicators seek to determine whether there is a genuine employer-employee relationship between the petitioner and the beneficiary. Because the H-1B visa is employment-based, adjudicators also look for evidence that the beneficiary's employment will begin "at the time indicated on the [I-]129 petition." J.A. 222-23. And adjudicators look for whether that employment will conform to the wage and location specifications in the LCA.
USCIS scrutiny is even greater for staffing companies like EcomNets. J.A. 223 (). There is no per se prohibition against the use of shell companies or third-party staffing models by petitioners. If USCIS discovers, however, that documents were signed using fake names, that a staffing company would not begin seeking a placement until after a visa was granted, or that the listed job did not and would not exist at the time the visa was approved, USCIS would deny the petition.
EcomNets founder Raj Kosuri employed a small number of individuals at EcomNets's headquarters who assisted EcomNets's outside counsel in preparing LCAs and I-129 petitions for beneficiaries. These petitions listed EcomNets as the ultimate work location for beneficiaries, but EcomNets did not intend for the beneficiaries to work for EcomNets. Nor did EcomNets begin looking for third-party placement until after the H-1B visa was approved.
EcomNets took a number of steps to conceal its business model from USCIS adjudicators. First, Kosuri incorporated a series of shell companies-Unified Systems, United Tech, United Software Solutions, and Data Systems. These shell companies served as the petitioners on EcomNets's H-1B petitions but were not meaningfully independent from EcomNets. To create the appearance of independence, EcomNets falsified information about these companies in its visa petitions. EcomNets employee Sanchita Bhattacharya signed documents on behalf of United Tech as "Sonia Basu" and on behalf of United Software Solutions as "Sam Bose." Additionally, EcomNets included falsified leases for its shell companies in visa petitions.
The petitions usually falsely represented that these shell companies had contracted to place H-1B beneficiaries at a "Green Technology Center" owned by EcomNets in Danville, Virginia. J.A. 959-64. The petitions included contracts and purchase orders between the shells and EcomNets to support that assertion. In reality, there were no jobs available at what was an essentially empty warehouse and there was no plan for any H-1B beneficiary to work directly for EcomNets. EcomNets also falsified the signatures of beneficiaries on documents submitted to USCIS. EcomNets employees prepared offer letters to beneficiaries under the name of the shell companies reflecting this non-existent work. But once H-1B petitions were approved, EcomNets required beneficiaries to sign voluntary leave letters to avoid the company's obligation to pay beneficiaries. The company then began to look for third-party placements for its "benched" beneficiaries.
Narang played a central role in this scheme. EcomNets hired her in 2013 as its Senior Business Development Manager for IT services. One of her primary responsibilities was to find job placements for EcomNets's approved visa beneficiaries. She also played a key role in preparing documents in support of the overall scheme. For instance, at trial the government presented emails from Narang requesting that other employees use pseudonyms to sign and prepare documents-purportedly on behalf of EcomNets's shell companies. Narang also signed contractor agreements and purchase orders in which EcomNets agreed to host a shell company's H-1B beneficiary at its non-existent Green Technology Center. These agreements were then included in the shell company's H-1B petition to USCIS. In total, Narang signed 178 documents-be they contractor agreements, purchase orders, or verification letters-that were submitted in H-1B petitions to USCIS.
The government also adduced evidence suggesting that Narang knew the fraudulent nature of EcomNets's business model. Witnesses testified that it was common knowledge that EcomNets never intended to place any beneficiary in its Danville, Virginia warehouse. One employee also testified that Narang simply smiled when told that Bhattacharya should not be signing documents under the false name "Sam Bose." That same employee witnessed Narang participate in forging beneficiary signatures on offer letters to be submitted with H-1B petitions. Narang also maintained a list of companies involved in the scheme, which names should be used to sign on behalf of each, and other pertinent information for each company. Narang stressed to co-workers the importance of not interchanging this information on applications.
On April 26, 2016, a grand jury returned an indictment against six employees of EcomNets and its shell companies. Narang was charged with conspiracy to commit visa fraud in violation of 18 U.S.C. § 371 and two counts of visa fraud in violation of 18 U.S.C. § 1546(a). On August 18, 2016, Narang pleaded guilty to one substituted count of wire fraud charged in a criminal information. As part of her plea agreement, Narang promised to cooperate by testifying against co-conspirators. The court subsequently dismissed all original indictment counts against Narang.
Two of Narang's co-defendants-Vikrant Jharia and Bhattacharya-went to trial. During trial, the two raised Brady and Giglio violations. Based on the government's discovery errors, the district court dismissed the indictment against them. Narang and her remaining co-defendants-Kosuri, Smriti Jharia, and Raimondo Piluso, who also pleaded guilty-subsequently moved to dismiss their charges in light of the government's misconduct. The court declined to dismiss the remaining charges but gave each defendant the option to withdraw their guilty pleas or renegotiate new plea deals with the government.
Jharia and Kosuri decided to simply renegotiate, rather than withdraw, their guilty pleas. At a status conference Narang's counsel sought clarification on whether Narang's dismissed indictment counts needed to be presented a second time to the grand jury. J.A. 169 ( ). The court informed counsel that he could "brief [the issue] for me if you want to, but my . . . gut instinct is there's no reason why the Court cannot reinstate the grand jury indictment." Id. The court then stated that Narang needed to decide if she was formally withdrawing her plea. If so, the court stated it would "vacate the plea colloquy and the...
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