United States v. Stewart

• Decision Date: 26 February 2014
• Docket Number: No. 12–2395.,12–2395.
• Citation: 744 F.3d 17
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Beth A. STEWART, Defendant, Appellant.

744 F.3d 17

UNITED STATES of America, Appellee,

v.Beth A. STEWART, Defendant, Appellant.

No. 12–2395.

United States Court of Appeals,First Circuit.

Feb. 26, 2014.

Lawrence Gatei, with whom Immigration & Business Law Group, LLP was on brief, for appellant.

Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before HOWARD, Circuit Judge, SOUTER,^* Associate Justice, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

Following a bench trial on a record of stipulated facts, Defendant–Appellant Beth A. Stewart was convicted of conspiracy to defraud the United States for participating in a sham marriage to secure a change in immigration status for her spouse. She appeals, arguing that the prosecution was time-barred because she committed no overt act in furtherance of the conspiracy within the five-year period before the return of the indictment. We disagree, and affirm.

I. Facts & Background

On September 22, 2011, a grand jury returned a one-count indictment charging Stewart with conspiracy to defraud the United States, in violation of 18 U.S.C. § 371. The indictment was filed the following day. The indictment charged that Stewart was a United States citizen, and that her spouse (identified only by his initials, FN) was a citizen of Kenya who had entered the United States legally, but whose authorization to remain was set to expire. The indictment alleged that, “[f]rom on or about March 29, 2005, and continuing until a date unknown but at least June 22, 2007, ... Stewart knowingly and willfully conspired and agreed, with others both known and unknown to the Grand Jury, to participate in a sham marriage for the purpose of defrauding the United States.” According to the indictment, the conspiracy had two objects: (1) for Stewart to “profit financially by accepting payments from co-conspirators, including [FN], in exchange for participating in a sham marriage and helping [FN] obtain a change of his immigration status”; and (2) for FN to “acquire a change of United States immigration status to which he would not otherwise have been entitled by falsely representing to agencies of the United States Government that the marriage into which [FN] had entered was bona fide when in fact it was not.”

Finally, the indictment alleged that Stewart committed the following overt acts in furtherance of the conspiracy: (1) she entered into a sham marriage with FN on March 29, 2005, knowing that “the sole purpose of the wedding was to permit FN to apply for a change in immigration status to which he would not otherwise have been entitled”; (2) between the wedding date and October 27, 2005, she traveled to Massachusetts and obtained various documents to make it appear that she and FN were living together when in fact they were not, understanding that these documents would be filed in support of FN's petition to have his immigration status changed; (3) on October 7, 2005, she and FN attended an interview at the Boston offices of the U.S. Citizenship and Immigration Service (“USCIS”) in support of that petition, with FN being granted conditional residency on that date based upon the information they had provided; and (4) on June 22, 2007, she traveled to Massachusetts and signed a Form I–751, Petition to Remove Conditions on Residence, on FN's behalf, which form was subsequently filed with USCIS.

Stewart filed a motion to dismiss the indictment as time-barred, arguing that the signing and filing of the Form I–751—the only overt act alleged within the five-year statute of limitations period, see18 U.S.C. § 3282—was not done in furtherance of the conspiracy. She contended that the object of the conspiracy had been achieved on October 7, 2005, when USCIS granted FN lawful permanent resident (“LPR”) status on a conditional basis.¹ Thus, she insisted, the Form I–751 was irrelevant to the conspiratorial objectives. The government argued that FN's receipt of conditional LPR status was simply the first step toward unconditional legal permanent residence and eventually citizenship, and the filing of the Form I–751 was a further step in that process. The district court denied Stewart's motion, holding that the indictment was facially sufficient to put her on notice of the elements of the crime and the nature of the charge, and that it was not for the court to inquire whether the evidence would ultimately be sufficient to support that charge.

The matter then proceeded to a bench trial on a record of stipulated facts and associated exhibits. We summarize those stipulations here. FN was a Kenyan national who entered the United States in 2001 on a visa that was set to expire in September of 2006. Through various third parties, Stewart learned that a marriage arranger was looking for someone to marry a foreign national in return for $4,000. She agreed to participate in the sham marriage. On March 29, 2005, Stewart met FN for the first time at the City Hall in Auburn, Maine, where the two applied for and obtained a marriage license. They were married later that day, with Stewart and FN both signing the marriage license and listing as their residence an address where neither had ever lived. Stewart understood that the purpose of the marriage was to allow FN to stay in the United States and that she would be paid for her participation. After the ceremony, Stewart was paid $1,000. In June, FN gave Stewart a money order for $1,500, which she used to secure an apartment in Lewiston, Maine. FN never resided in that apartment, and in fact lived in Massachusetts. Stewart occasionally traveled to Massachusetts after the marriage: once, she went to what she understood to be FN's apartment, where the two posed for photographs; another time, she obtained a Massachusetts identification card, listing as her residence a Lowell, Massachusetts, address where she had never lived; yet another time, she and FN opened a joint bank account. In May, FN (or someone acting on his behalf) signed Stewart's name to several USCIS forms, seeking to have FN's immigration status changed on the basis of the marriage. FN also signed a Form I–485 seeking the same relief. In August, FN gave Stewart an additional $1,500. Stewart gave FN copies of her I.R.S. W–2 forms for 2002–2004, which FN or someone acting on his behalf used to generate what purported to be Stewart's tax returns for those years. The marriage certificate, photographs, Massachusetts identification card, and tax returns, as well as copies of checks drawn on their joint account, were all submitted to USCIS along with their joint petitions. On October 7, 2005, Stewart and FN attended an interview in support of the petitions at the Boston office of USCIS, where they both intentionally created the impression that they entered into their marriage in good faith, lived together, and intended to establish a life together. Based on the written and verbal information they provided, USCIS granted their petitions and granted FN conditional residency. In February of 2006 and March of 2007, Stewart and FN signed and filed joint tax returns for 2005 and 2006, respectively, listing themselves as spouses and listing Stewart's daughter as a dependent. In June of 2006, Stewart signed a residential lease extension indicating that she and FN continued to live together in Lowell, Massachusetts; in April of 2007, she signed a lease indicating that she and FN had rented an apartment in Dracut, Massachusetts. On June 22, 2007, Stewart and FN signed USCIS Form I–751, seeking to have the conditions on FN's residency lifted. They submitted their 2005 and 2006 tax returns and the leases in support of their application. At some point, the I–751 petition was withdrawn. In addition to the agreed-upon $4,000, FN provided Stewart $100 per month through at least November 2009 to help support Stewart and her daughter.

Neither party sought to introduce additional evidence aside from the stipulated facts and exhibits. In post-trial briefing, Stewart argued that the government had failed to prove beyond a reasonable doubt that the object of the conspiracy consisted of anything beyond procuring the 2005 change in residency status and the payment of $4,000 to Stewart. She contended that, because the conspiratorial objective was achieved with FN's attainment of conditional LPR status, the filing of Form I–751 was not in furtherance of the conspiracy. Because, the argument continued, FN was granted conditional LPR status nearly six years before the grand jury returned the indictment, the government had not met its burden of proving that she had committed any overt act within the five-year limitations period. The district court disagreed, and found her guilty as charged in the indictment. This appeal followed.

II. Analysis

The central question raised in this appeal is whether the district court correctly found that the filing of Form I–751 was an overt act committed in furtherance of the objects of the conspiracy as alleged in the indictment. Stewart argues that the district court erred in denying her motion to dismiss on limitations grounds, a ruling we review de novo, see United States v. Bucci, 582 F.3d 108, 115 (1st Cir.2009).

The conspiracy statute under which Stewart was charged provides that:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

18 U.S.C. § 371. Because § 371 does not include a statute of limitations, the general five-year statute of limitations applies. See id. § 3282(a) (“Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found ... within five years next...