United States v. Ryan-WebsterUnited States v. Ryan-Webster
COUNSEL
KING, Circuit Judge:
Sylvia Anita Ryan-Webster was convicted in the Eastern District of Virginia in 2002 of conspiracy to defraud the United States and four counts of immigration fraud. On appeal, Ryan-Webster challenges four of her five convictions, contending: (1) that the conduct underlying three of her immigration fraud convictions does not fall within the ambit of the governing statute,
I.
A.
During the relevant time period, Ryan-Webster was the sole practitioner in a District of Columbia law practice called Ryan & Webster. Her work primarily involved the representation of aliens seeking permanent legal status in the United States through the process for issuance of Permanent Resident Cards (commonly called “green cards“).1 One method for securing a Permanent Resident Card is for an alien to first obtain immigrant status based on employment in the United States. Under the evidence, Ryan-Webster systematically sought immigrant status for her clients as part of an immigration fraud scheme. That scheme, and particularly her use of fraudulent immigration documents, underlies the criminal convictions challenged in this appeal.
In order to properly assess Ryan-Webster‘s contentions, we must possess an elementary understanding of the process through which aliens seek and secure immigrant status based on employment. Pursuant to federal law, an alien seeking permanent legal status based on employment must utilize a three-step process, involving the Department of Labor (the “DOL“), the Department of State, and the Immigration and Naturalization Service (the “INS“).2
First, an alien must have a prospective employer in this country, and that employer must petition the DOL for a “Labor Certification” on behalf of the alien.3 The DOL administers its Labor Certification program through one of its agencies, the Employment and Training Administration (the “ETA“).4 When issued, a Labor Certification
tification Application is analyzed by the DOL and, if it satisfies the essential requirements, it is then “certified” and constitutes a valid Labor Certification.
In the second step of the process, the alien‘s prospective employer, or an attorney acting on the employer‘s behalf, is required to file with the INS the Labor Certification, along with a Form I-140, Visa Petition for Prospective Immigrant Employee (“Visa Petition“). An attorney representing the prospective employer in this second step must also file with the INS an Attorney Appearance Notice.6 See
The requirements for the final step of the three-part green card process depend upon whether the certified alien, at the time of his application, resides inside or outside the United States. When a resident alien receives a visa number, he must file with the INS a Form I-485, Application to Adjust Status (“Green Card Application“). The INS then considers the resident alien‘s Visa Petition and Green Card Application and determines whether to “adjust” the resident alien‘s status.
B.
In her law practice, Ryan-Webster specialized in securing permanent legal status for her alien clients through the process summarized above. Under the evidence, Ryan-Webster, in the typical situation, would file a Certification Application, together
Ryan-Webster developed a lucrative law practice in the representation of her alien clients. In order to expedite the process, she systematically forged the signatures of purported prospective employers on the Certification Applications and Visa Petitions filed with the DOL and the INS.7 Because she filed Attorney Appearance Notices with the DOL and the INS, purporting to represent prospective employers, the immigration authorities dealt exclusively with Ryan-Webster.
C.
In February 2002, Ryan-Webster was indicted in the Eastern District of Virginia for five felony offenses arising out of her immigration fraud scheme. In Count 1 of the Indictment, she was charged under
Whoever knowingly . . . utters, uses, [or] possesses . . . any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made [is guilty of a felony].
At the conclusion of the evidence, Ryan-Webster sought judgment of acquittal on Counts 2, 3, and 5, pursuant to Rule 29 of the Federal Rules of Criminal Procedure.10 In support of her Rule 29 motion, Ryan-Webster contended that
Prior to the jury deliberations, the court instructed the jury on the applicable legal principles. The court first instructed on
The jury found Ryan-Webster guilty on all five counts of the Indictment. On August 2, 2002, the court sentenced Ryan-Webster to sixty months imprisonment on Count 1 and to concurrent terms of seventy-two months on each of Counts 2 through 5. After filing her notice of appeal on August 6, 2002, Ryan-Webster filed an emergency pro se motion in the district court, seeking to vacate, set aside, or correct her sentence under
II.
We review de novo a district court‘s denial of judgment of acquittal. United States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001) (citing United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998)). Additionally, our consideration of the ambit of
III.
A.
In seeking reversal of her convictions on Counts 2, 3, and 5, Ryan-Webster does not contest the fact that the first and third elements of the
1.
In assessing a statute‘s scope, we first examine its plain language. United States v. Sheek, 990 F.2d 150, 152-53 (4th Cir. 1993) (“Statutory construction must begin with the language of the statute and the court should not look beyond that language unless there is ambiguity or unless the statute as literally read would contravene the unambiguously expressed legislative intent gleaned from the statute‘s legislative history.“); see also United States v. Buculei, 262 F.3d 322, 331 (4th Cir. 2001). As explained below, Certification Applications and Visa Petitions fall within the plain language of
First, the Certification Applications constitute documents pre-
scribed by both statute and regulation for entry into the United States. Pursuant to statutory mandate, an immigrant may not enter this country without “a valid unexpired immigrant visa.”
Pursuant to statute and the applicable regulations, it is clear that: (1) absent the filing of a Certification Application, the DOL is unable to issue a Labor Certification; (2) without a Labor Certification, an immigrant cannot obtain a valid employment-based visa; and (3) in the absence of an employment-based visa, an immigrant cannot legally enter the United States for employment. A Certification Application is therefore a “document” prescribed by both statute and regulation for entry into the United States. As such, the district court did not err in denying Ryan-Webster‘s request for judgment of acquittal on the charges relating to forged Certification Applications.
Secondly, Ryan-Webster‘s use of forged Visa Petitions, as alleged in Counts 3 and 5, also falls within the ambit of
Our analysis of whether a Visa Petition constitutes a document under
Notwithstanding these seemingly simple analyses, Ryan-Webster maintains that, because neither a Certification Application nor a Visa Petition constitutes the ultimate document presented to immigration authorities for entry into the United States, neither falls within the ambit of
2.
Pursuant to the foregoing, the provisions of
Prior to 1986,
alien registration receipt cards did not fall within its scope. The Court interpreted
In 1986, Congress amended
B.
Ryan-Webster next contends that the district court erred when it identified an alleged unindicted co-conspirator, not named by the grand jury, in its instructions to the jury. In instructing the jury, the court stated, without objection: “Now, evidence has been received in this case that a person, Nora Azenon-Gomez, the defendant‘s legal assistant, was a co-conspirator of the defendant and said things during the existence or life of the alleged conspiracy in order to further advance its goals.” Ryan-Webster contends that this instruction constituted an impermissible and erroneous modification of a form instruction spelled out in a jury practice textbook. The form instruction provides that: “Evidence has been received in this case that certain persons, who are alleged in . . . the indictment to be co-conspirators . . ., have done or said things during the existence or life of the alleged conspiracy in order to further or advance its goal[s].” O‘Malley, Grenig & Lee, Federal Jury Practice and Instructions § 31.06 (5th ed. 2000) (emphasis added). Ryan-Webster‘s contention on this point has two prongs: (1) that the court‘s reference to Azenon-Gomez by name undermined the jury‘s fact-finding role; and (2) that the court‘s statement that “evidence has been received” that Azenon-Gomez was a co-conspirator constituted a “neon sign,” effectively instructing the jury to find Ryan-Webster guilty. As explained below, this contention lacks merit and must be rejected.
First of all, because Ryan-Webster failed to object to this instruction at trial, we review her contention for plain error only. In order to award relief on a plain error contention, we must be able to “(1) identify an error, (2) which is plain, (3) which affects substantial rights, and (4) which ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.‘” United States v. Brewer, 1 F.3d 1430, 1434-35 (4th Cir. 1993) (
In the circumstances of this trial, the court‘s use of the witness‘s proper name in its instruction to the jury was appropriate. As Ryan-Webster acknowledges, it was obvious under the evidence that Azenon-Gomez was a co-conspirator; indeed, she was the only employee at Ryan & Webster during the fraud scheme. Moreover, Azenon-Gomez testified that she aided and assisted Ryan-Webster in falsifying Certification Applications and Visa Petitions.
Finally, the instruction as given, that “evidence has been received” that “Azenon-Gomez was a co-conspirator,” constituted permissible comment on the evidence by the trial court. As we have heretofore observed, “the trial judge, in charging the jury, may comment upon the evidence, so long as it is also clear that the jury determines all matters of fact . . . .”17 United States v. Godwin, 272 F.3d 659, 678
n.22 (4th Cir. 2001) (citing Quercia v. United States, 289 U.S. 466, 470 (1933)). The court‘s reference to Azenon-Gomez constituted a fair characterization of the evidence, and the instruction did not express any opinion on whether the evidence was either convincing or sufficient. In these circumstances, the instruction was not erroneous, and this assignment of error must be rejected.
IV.
Pursuant to the foregoing, we affirm Ryan-Webster‘s convictions and sentence.
AFFIRMED
WILLIAMS, Circuit Judge, concurring in part and dissenting in part:
Section 1546(a) of Title 18 is a comprehensive statute that indisputably prohibits Ryan-Webster‘s falsification of Certification Applications (ETA-750s) and Visa Petitions (I-140s). This conduct is specifically and unambiguously proscribed by the fourth unnumbered paragraph of
In interpreting statutes, our goal “is always to ascertain and implement the intent of Congress.” Scott v. United States, 328 F.3d 132, 138 (4th Cir. 2003). Accordingly, “[t]he first step of this process is to determine whether the statutory language has a plain and unambiguous meaning.” Id. at 139 (citing Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002)). If the statutory language is unambiguous and the statutory scheme is coherent and consistent, the inquiry ceases. Id.
When assessing the ambiguity, or lack thereof, of statutory language, courts “generally give words their ordinary, contemporary, and common meaning.” Id. But, the language itself is not the sole determinant of meaning, or even of whether the language is ambiguous. Courts also must refer to “the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). At bottom, my colleagues’ error lies in their failure to abide by this principle of statutory construction. The majority‘s analysis, ante at 9-14, has some persuasive appeal if one reads the first paragraph‘s catch-all phrase in isolation: the phrase “other documents prescribed by statute or regulation for entry into . . . the United States,” without any context, could plausibly be interpreted to cover application documents like the ETA-750 and the I-140.
Two canons of construction instruct us how properly to ascertain the meaning of statutory language from the context in which it is used. The first is the principle of ejusdem generis — i.e., “when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed.” Black‘s Law Dictionary 535 (7th ed. 1999); see also United States v. Parker, 30 F.3d 542, 552-53 n.10 (4th Cir. 1994) (applying ejusdem generis principle, and defining it as providing that “a general statutory term should be understood in light of the specific terms surrounding it” (internal quotation marks omitted)). Here, the first paragraph presents a textbook ejusdem generis scenario: a general phrase (“other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States“), the scope of which we are cal- led upon to interpret, follows a list of specific things (“any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card“). See
The enumerated documents in the first unnumbered paragraph have common characteristics, none of which are shared
The ETA 750 and I-140 forms have none of these characteristics. First, the government plays no role in the completion of these docu- ments. Applicants and applicants’ employers fill them out and submit them. Second, the documents have no evidentiary significance regarding the immigration status of the holder — they are simply applications, representing nothing more than the applicant‘s and/or his employer‘s desire that the applicant gain the right to enter or remain in the country legally. Consequently, these forms are not the type of documents that a person might present to immigration officials to gain entry into the country. In sum, the ETA-750 and the I-140 are not documents of the type enumerated in the first paragraph, and therefore they do not fall within that paragraph‘s catch-all phrase.
A second interpretive canon, the rule against superfluity, confirms that this is the proper construction of the first paragraph. Under the rule against superfluity, “[w]here possible, we must give effect to every provision and word in a statute and avoid any interpretation that may render statutory terms meaningless or superfluous.” Scott, 328 F.3d at 139 (citing Freytag v. Comm‘r Internal Revenue, 501 U.S. 868, 877 (1991)). The interpretation of the first paragraph that the majority adopts renders superfluous much of the fourth paragraph, if not the paragraph in its entirety.
As noted above, the fourth paragraph of
In summary,
*In footnote 16 of the majority opinion, my colleagues contend that their construction of the first paragraph does not render the word “application” in the fourth paragraph entirely superfluous because the first paragraph deals with forgeries, a type of conduct different from the making of false statements, which is covered by the fourth paragraph. The first paragraph, however, is concerned with more than just forgery — it makes criminal the use or possession of documents known to be “forged, counterfeited, altered or falsely made.”
Notes
Whoever knowingly . . . subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact . . . [is guilty of a felony].
did knowingly utter, use, and possess documents prescribed by statute or regulation for entry into, or as evidence of authorized stay or employment in the United States, that is, Alien Employment Certification Applications, also known as Form ETA 750s, purportedly on behalf of C.A.R. Collision and James Ratcliffe and Rachel Ratcliffe, which the defendant knew to be forged and falsely made . . . .As alleged in Count 3 of the Indictment, Ryan-Webster:
knowingly utter[ed], use[d], and possess[ed] a document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, that is, an employment based visa petition, purportedly on behalf of Mitra Rezvani and Lockhart Insurance Services, which the defendant knew to be forged and falsely made . . . .Finally, in Count 5, the grand jury charged that Ryan-Webster:
did knowingly utter, use and possess a document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, that is, an Alien Employment Certification Application and an employment based visa application, purportedly on behalf of Manik Kadir and the Little Flower Montessori School, which the defendant knew to be forged and falsely made . . . .