*1 than the Appellees, conduct rather intentional conduct
reckless or liability. Accordingly, we affirm
support Appellants’ complaint.
the dismissal
AFFIRMED America,
UNITED STATES
Plaintiff-Appellee,
Sylvia RYAN-WEBSTER, Anita
Defendant-Appellant.
No. 02-4650. Appeals, Court
Fourth Circuit.
Argued: Sept.
Decided: Dec. *2 Hutcheson, Drewry Bacon
ARGUED: Hutcheson, Jr., McGinley, Elsberg & P.L.C., Alexandria, Virginia, Appellant. McQuillan, Higgins Thomas Assistant Alexandria, Attorney, Virgi- United States nia, for Appellee. ON BRIEF: Paul J. McNulty, Attorney, United States Robert Erickson, States At- C. Assistant United Alexandria, torney, Virginia, Appellee. WILLIAMS, TRAXLER, and Before KING, Judges. Circuit opinion. by published Judge Affirmed opinion, Judge KING in which wrote joined. Judge TRAXLER WILLIAMS concurring opinion part wrote dissenting part. securing
OPINION Permanent Resident Card is for first obtain status KING, Judge: Circuit based the United States. Sylvia Ryan-Webster Anita convict- evidence, Under the sys- Virginia ed in District of the Eastern *3 tematically sought immigrant status for 2002 of conspiracy defraud the part her as immigration clients of an fraud immigration States and four counts of scheme, That scheme. and particularly chal- appeal, fraud. On immigration her use fraudulent docu- convictions, lenges four of her five con- ments, underlies the criminal convictions (1) underlying the conduct tending: in challenged appeal. this three of her fraud convictions to properly Ryan-Web- order assess gov- does not fall the ambit of the within contentions, possess ster’s we an must ele- statute, 1546(a); erning and U.S.C. mentary understanding process (2) court plain that the district committed which through aliens seek and im- secure error it named an co- when unindicted migrant status employment. based on conspirator the instructions. As law, to federal an alien seeking below, reject we conten- these permanent legal status on employ- based tions and affirm. three-step ment must utilize a process, (the involving Department of Labor
I. “DOL”), State, Department and the A. Immigration and Naturalization Service (the “INS”).2 During period, Ryan- the relevant time First, practitioner Webster was the sole an prospective alien must have a practice District of law called employer country, Columbia and that employ- Ryan petition Her work primarily Webster. er must for a & DOL “Labor involved the seek- representation aliens Certification” on behalf of the alien.3 The ing permanent legal status the United DOL administers its Labor Certification through process of program through agencies, for issuance one of its (commonly Permanent Employment Resident Cards and Training Administration cards”).1 “ETA”).4 (the issued, “green called One method a Labor When Cer- special immigrants. 1. A excep- Permanent Resident Card evidences an such an Absent permanent tion, alien’s status lawful resident required a Labor Certification is for both right permanently with a to live work and unskilled skilled workers. See 8 U.S.C. the United States. See 8 264.1. A C.F.R. 1153(b). Ryan-Webster's fraud scheme in- Permanent Resident Card is also called an workers volved who Labor Certifica- Registration Receipt Alien Card. tions. INS, 2. On March which 4.The ETA administers the Labor Certification Justice, formerly part Department program through a network of state-level Citizenship became the Bureau of and Immi- agencies. agencies work The three such rele- gration Department Service in the Home- Maryland Department are the vant here Security. appeal land Because this concerns Labor, Licensing Regulations; Virgi- occurring events before we March Commission; Employment only nia and the Dis- refer to the INS. Department Employment trict of Columbia recognizes exceptions The INS certain purposes, Services. For our we refer collec- requirement; e.g., pri- the Labor Certification tively agencies state-level work workers, ority professionals with advanced the "DOL.” ETA as abilities, degrees exceptional certain eligible, alien as so acknowledg- classifies certified evidences the DOL’s tifieation (1) visa assigned the alien is predicate sufficient ment of two facts: able, Department of State. will- workers are not number United States particular available for a ing, qualified, and final requirements step for the (2) job; particular of a card three-part green process depend adversely wages effect alien will alien, at the upon the certified whether working of United States conditions application, of his resides inside time employed. See U.S.C. similarly workers the United States. When resi- outside 1182(a)(5)(A)(i). to secure a order number, a visa he must dent alien receives Certification, prospective an alien’s Labor 1-485, Applica- file a Form INS attorney acting its employer, *4 (“Green Adjust Appli- Card tion to Status behalf, file the a required is to DOL cation”). the The then resi- INS considers ETA-750, Alien Em- Application Form for Petition and Green Card dent alien’s Visa (“Certification Ap- ployment Certification Application to and determines whether If attorney acts the plication”). the “adjust” resident alien’s status. attorney required is to file employer, the 204.5(n). Ap- § If the C.F.R. Green Card G-28, DOL an INS Form Notice with the adjusts approved, the INS the plication is Attorney or Entry Appearance as a of the resident alien to status Representative (“Attorney Appearance resident is entitled permanent lawful who Notice”).5 656.20(b)(2). § The 20 C.F.R. to and work in the United States. 8 live analyzed by is the Application 1255(a). a § The INS then issues U.S.C. and, if it essential re- DOL satisfies the green immigrant evidencing card to the his and con- quirements, is then “certified” hand, status. On the other immigrant a valid Certification. stitutes Labor assigned a nonresident alien is a visa when number, the complete appli- he must then process, the step In the second the visa. process immigrant cation for an See employer, or an attor- prospective alien’s 1181(a). § of this Upon completion id. behalf, ney acting employer’s on the process receipt approval, the INS the the required to INS Labor file with immigrant alien receives an 1-140, nonresident Certification, along with a Form visa and is entitled enter work Prospective Immigrant Visa Petition for (“Visa the after Petition”). States. Sometime enter- attorney An Employee ing the re- the United employer in representing prospective green card from INS. ceives his this must file with the step second also Attorney Appearance INS an Notice.6 See B. § 8 C.F.R. 299.1. A Visa Petition consti- practice, Ryan-Webster request spe- a that the alien In her law tutes INS legal securing permanent in the be cialized in status named Labor Certification classi- process eligible apply designation through fied for her alien clients evidence, specified preference employ- a summarized above. Under within visa 1153(b). situation, Ryan-Webster, category. typical See U.S.C. to- approves Application, If Petition and file Certification the INS would Application, Employers represented by counsel in the As with process by employer represented Labor Certification counsel must also sign Certification submitted to sign a Visa Petition submitted to INS on 20 C.F.R. the DOL on their behalf. its behalf. 656.20(b)(1). Attorney Appearance conspiracy No- U.S.C. 371 with gether with an defraud tice, DOL, seeking “by Labor Certi- attempting with the United States to ob- tain, for an alien client the alien’s statements, fication obtaining, false employer. Upon prospective is- purported fraud, forgery benefits suance of Labor Certification aliens.” DOL, Ryan-Webster would submit it to Webster charged under 18 U.S.C. purported pro- INS behalf of 1546(a). charges alleged in those spective employer, along with a Visa Peti- three counts the language tracked Appearance Attorney tion and an Notice. first of the four unnumbered paragraphs normally charge would her §of The first $7,000 approximately alien clients each for provides, in relevant part: process. her work utters, uses, ... Whoever knowingly Ryan-Webster developed a lucrative law possesses visa, permit, [or] such representation her alien practice card, border crossing registration expedite process, clients. order to receipt card, or other document pre- systematically signatures she for en- employers prospective on the purported *5 try into or of stay as evidence authorized and Applications Visa Peti- employment or in the United tions filed with DOL and the INS.7 forged, counterfeited, knowing it to be Attorney Appearance Because she filed altered, falsely guilty or made [is of a INS, and purport- Notices with the DOL felony], ing represent prospective employers, to 1546(a).8 In charging Ryan- U.S.C. immigration dealt exclu- authorities with use of sively Ryan-Webster. with Webster the fraudulent Certifi- Petitions, cation and Applications Visa C. uttered, alleged Counts and 5 that she used, possessed and 2002, “pre- February Ryan-Webster In was regulation in District statute or Virginia indicted the Eastern of into, or authorized felony arising out of as evidence of for five offenses her immigration In in the United States” which fraud scheme. Count Indictment, charged forged she “knew to and made.”9 she was under 18 be prospective any purported 7. Several of the em- contains such false statement or which Ryan-Webster ployers signatures any whose fails to contain reasonable basis in law felony]. previously guilty had hired her to of a [is secure or fact legitimate immigrant argument, Labor 18 U.S.C. At oral Certifications prospective employees. Ryan-Webster any challenge visas for to abandoned her 4. conviction on Count Because the other 4, Ryan-Webster charged In Count was un- charges three in the Indict- fraud paragraph der fourth unnumbered paragraph only concern substance, 1546(a) with, making false in 1546(a), 1546(a)" "§ to our references Attorney Appearance statements on an No- only, except to its first where we paragraph: tice. Under that specifically distinguish between the first and paragraphs See true, *6 prospective employee for whom stay employment or in the United that was The Petition filed. reflected Ryan-Web- The court denied States....” Rezvani the United States lived outside ster’s motion. and to for an apply intended deliberations, 5, jury visa. to iden- Prior to the the court As Count Azenon-Gomez signed jury applicable legal tified on the Ryan-Webster having as instructed a on Noguchi” principles. name “Eliana on The court first instructed Certification 5, into, Finally, grand jury charged entry evidence authorized Count or as of States, Ryan-Webster: employment that stay or in the United utter, possess is, knowingly did a doc- use and Ap- Employment that Alien regulation 750s, ument statute or plications, also as ETA known Form entry or as evidence authorized purportedly on of C.A.R. Collision behalf States, stay employment in the United or Ratcliffe, and James Ratcliffe and Rachel is, Employment that an Alien forged to and which the defendant knew be Application employment and an visa based falsely made.... purportedly application, on of Manik behalf Indictment, alleged 3 of the in Count Kadir Flower and Little Montessori Ryan-Webster: School, which the defendant to be knew use[d], utter[ed], knowingly possessed] forged falsely made.... prescribed by regula- document author- tion for into or as evidence of 29(a): govern- to Rule "After stay employment United ized ment closes its evidence or after the close is, employment evidence, that based visa all the the court on the defendant’s petition, purportedly on of Mitra behalf judgment acquittal enter a motion must Services, Rezvani Lockhart Insurance evidence offense for which the is insuffi- forged which the defendant knew be cient to a conviction.” Fed.R.Crim.P. sustain falsely made....
359 1 of conspiracy premature, the law of under Count and authorizing her trial instructing jury on the lawyers Indictment. to withdraw. United States v. Count, co-conspirator aspect (E.D.Va. the Ryan-Webster, No. 02-60-A Aug. advised, “Now, court evidence has been 2002). 8, appeal, newly This appoint person, received this case that a Nora counsel, ed followed in due course. Azenon-Gomez, legal as- defendant’s sistant, a co-conspirator of the defen- II. things during dant and said the existence We review de novo a district alleged conspiracy life order to court’s denial of judgment acquittal. goals.” Ryan-Webster further advance its Gallimore, 134, United States v. 247 F.3d objection part raised no (4th Cir.2001) (citing 136 United States v. The instructions. court then instructed Romer, (4th Cir.1998)). 359, 148 F.3d 364 jury through on Counts 5. As to Additionally, our consideration of the am 3,2, the court presents law, bit of question obliged prove Government was each which we also review de novo. United beyond of three elements a reasonable Buculei, (4th States v. 262 F.3d First, uttered, doubt: “that the defendant Cir.2001) (citing Village Es of Hoffman used, document; possessed second, Estates, Inc., Flipside, tates v. Hoffman prescribed by that the document was stat- 489, 497-98, 455 U.S. ute or into or as evi- (1982)). By contrast, L.Ed.2d 362 we re dence of authorized plain view for error an issue raised on States; third, and, the United appeal previously but not asserted in the defendant knew document was court, Ryan-Webster’s district such as made.” also challenge jury instructions on Count object
did not
to this instruction.
30, 52(b);
1. See Fed.R.Crim.P.
Ryan-Webster guilty
found
on
(4th
Curry,
States v.
all five counts of the Indictment.
Au-
On
Cir.1975). Finally, in assessing the denial
gust
the court sentenced
motion,
of a Rule 29
we view the evidence
sixty
imprisonment
Webster
months
light
most
prosecu
favorable to the
*7
Count 1 and to
concurrent terms
seven-
tion. See Glasser v.
315
United
ty-two months on each of
2
Counts
60, 80,
457,
U.S.
court, vacate, aside, seeking to set or cor- § rect her sentence under 28 U.S.C. A. Additionally, Ryan-Webster’s lawyers seeking reversal of her convictions on sought to withdraw from represen- further 5, Ryan-Webster Counts and tation, does not asserting that she would not com- contest the fact that the first and third During August municate with them. an 1546(a) § motions, elements of the offense were hearing on these (1) is, proven, knowingly that she again Webster contended that her use of “uttered, used, document,” possessed the fraudulent a Applications Certification (2) and and that she “knew the document Visa Petitions did not fall within the 1546(a). Instead, § day, ambit of that same and made.” On her primary court entered an rejecting appeal order this con- contention on relates to tention, denying § § pro her se 2255 motion the second element of a offense. 360 and Appli- regulation statute that the Certification maintains
She 5) statutory and (underlying Counts United States. cations mandate, may (underlying immigrant an not enter Petitions the Visa 5) as docu- qualify do “other immi- country unexpired not “a valid without 1546(a).11 specifi- § More mentes]” The INS grant visa.” 8 U.S.C. Ap- that the cally, she asserts Certification may employment-based not visa issue neither Petitions are plications and Visa previously issued unless the DOL has en- statute prescribed id. Certification.13 See Labor prescribed try into the States nor United (“An 1153(b)(3)(C) [employment-based] stay or em- an authorized as evidence of not to an immigrant visa be issued States. ployment the United office is ... until the consular made receipt a determination Secretary pursuant provi- Labor scope, we assessing statute's 1182(a)(5)(A) title.”); sions of section of this United plain language. first examine its 1182(a)(5)(A)© (“Any alien who id. (4th Sheek, F.2d 152-53 States v. for the to enter the United States seeks Cir.1993) (“Statutory must construction performing skilled or unskilled purpose begin language the statute inadmissible, Secretary is labor unless lan beyond court not look should and certified of Labor has determined unless ambiguity guage unless there Attorney Secretary of State and literally read contra the statute as would (I) there General are not sufficient that — legisla unambiguously expressed vene the able, willing, qualified, workers who are gleaned legis tive intent from statute’s (II) employ- ... and ... and available history.”); see also United States lative adversely affect ment of such alien will Cir.2001). (4th Buculei, wages working conditions of work- below, Applica similarly em- ers Petitions fall within tions regula- ployed.”). Pursuant DOL’s they plain language of because tions, an must prospective employer alien’s prescribed by constitute documents Application with the file regulation for into the United can before the DOL issue a Labor DOL States.12 656.21(a) (“[A]n 20 C.F.R. Certification. First, for a labor employer apply who desires the Certification file, by both alien shall certification on behalf constitute documents (2) they had of authorized or em- 11. The court instructed the evidence following three in order ployment. to find elements we this conten- Because resolve *8 uttered, First, "that the to convict: used, defendant tion on the first two alternative second, document; possessed or a by prescribed prongs i.e., the documents are — prescribed by the document was statute regulation entry for the United statute into regulation entry into evidence for or as no reason to assess whether States —we have authorized prong the other second element of States; and, third, that the knew defendant 1546(a) § established. was also forged made.” the document requirement 13.The Certification Labor ele- 12. The court’s instruction on the second workers, 1153(b)(3)(C) pro- § to skilled refers properly ad- § offense fessionals, other labor. The "or,” unskilled jury, by disjunctive vised the use Ryan-Webster sought aliens for Labor whom proof prong statuto- either satisfies the mandate, i.e., categories. within these pre- Certifications fall ry were (1) by entry regulation for scribed by duplicate, and in signed Depart- Immigrant hand for Worker.” 8 C.F.R. 204.5(a) Application Labor for Em- § ment of Alien ”).
ployment Certification form.... analysis Our of whether a Visa Petition applicable statute and the § constitutes document under (1) regulations, (1) is clear that: absent the simple: absent filing of a Visa of a filing Application, Certification the Petition, an alien cannot be classified DOL is unable to issue a Labor Certifica- (2) INS; absent classification (2) tion; Certification, without a Labor an INS, an alien cannot employ- obtain an immigrant employ- cannot obtain a valid (3) visa; ment-based the absence of visa; (3) ment-based in the absence of employment-based visa, an may visa, an employment-based immigrant not legally enter the United States for cannot legally enter the United States for purposes of employment. Accordingly, a employment. A Application Certification Visa Petition constitutes a pre- document prescribed by is therefore “document” statute and regulation for entry both for entry States, into the United and the district such, the United States. As the district court did not err in denying judgment of court did not err in denying Ryan-Web- acquittal on the Visa Petition issue. request judgment acquittal ster’s charges relating forged Certification Notwithstanding these seemingly Applications. simple analyses, Ryan-Webster maintains that, because neither a Appli Certification Secondly, Ryan-Webster’s use of cation nor a Visa Petition constitutes the Petitions, alleged Counts 3 and ultimate presented document immigra 1546(a), § also falls within the ambit of tion entry authorities for into the United in that Visa Petitions are also States, neither falls within the ambit of by statute and regulation entry into the 1546(a). She contends that Certification United States. The limits INS the num- Applications and Visa Petitions alone are employment-based ber of immigrants who insufficient into the United may receive immigrant year. visas each States and immigrant that an must ulti 1151(a)(2) See 8 U.S.C. (allowing certain mately obtain an visa. Al employment-based number of visas each though accurately stated, this fact does 1151(d)(1) year); fiscal id. (specifying not remove Applications issued). may number of visas that be Visa Petitions from the reach of such, an alien must be classified for em- Applications and Visa Peti ployment purposes receiving before an im- insufficient, tions be in and of them 1153(b) (distribut- migrant visa. See id. selves, to authorize into the United ing visas allotted for employment-based they but plainly prescribed (1) (2) workers, among priority workers prerequisites law as thereof. As ex members of professions holding advanced above, plained absent filing of Certifi degrees (3) exceptional aliens of ability, Petitions, cation workers, and Visa professionals, skilled em and other (4) workers, ployment-based qualified immigrant visas special cannot be immigrants, *9 (5) creation). issued the INS. The fact that And the other regulations of the pre- INS documents also be specifically utilized the au petition scribe that classify “[a] to an alien thorities for entry purposes does not alter ... 1-140, must be filed on Form statutory Petition the regulatory mandates
362 registration cards not fall governing receipt did with- scope. interpreted its The Court Petitions.14 Visa 1546(a) only
§
to
a narrow
of
include
class
that,
documents,” and
“entry
it observed
although
registration receipt
an alien
card
the
foregoing,
provi-
to the
can
be used
an alien to
sometimes
1546(a)
unambiguous,
§
sions of
are
States,
the
its
reenter
United
essential
the
as used
document[s]”
term “other
identify
a
purpose is “to
the bearer as
Ap-
the
encompasses
therein
lawfully registered
residing
plications and
Petitions at issue here.
300,
at
United States.” Id.
B. all, First of because Ryan-Webster next object contends failed to trial, to this instruction at district court erred when it identified an we plain review her contention for error alleged unindicted co-conspirator, only. not In order to award relief on plain grand jury, “(1) named contention, its instruc- error we must be able to jury. (2) tions to instructing error, (3) jury, identify plain, which is stated, objection: “Now, the court (4) without which affects rights, substantial evidence has been fairness, received this case which ‘seriously in affeet[s] person, Azenon-Gomez, that a Nora tegrity public reputation judicial pro ” legal assistant, defendant’s Brewer, was a co-con- ceedings.’ United States v. spirator (4th Cir.1993) things defendant and said F.3d 1434-35 (quoting dissenting colleague Our (chargeable maintains paragraph) under the fourth "application” our decision renders the word forging application (chargeable without 1546(a) paragraph “entirely fourth paragraph). Ryan-Web- under the first Had See ante at superfluous.” disagree. We ster made false statements but 1546(a) paragraph While the fourth deals signatures applications, on these she statements, containing with documents false properly chargeable have been paragraph directly con- fourth prop- and not alia, forger- containing, cerns documents inter erly chargeable paragraph. under its first ies. And person may make a false state-
364 Olano, 725, 736, In these circum- vincing or sufficient. States v. 507 U.S.
United (1993)). erroneous, stances, instruction was not L.Ed.2d the S.Ct. 123 508 113 re- of error must be assignment in and this there no error the instruc- Because was jected. of, of this complained prong tion met, not the is not and we need assess
test analysis. error aspects plain
other
IV.
we affirm
foregoing,
to the
trial,
of this
the circumstances
Ryan-Webster’s convictions and sentence.
the
proper
the court’s use of
witness’s
jury
in its
was
name
instruction
AFFIRMED
Ryan-Webster
appropriate. As
acknowl
the
it was
under
evidence
edges,
obvious
WILLIAMS,
concurring
Judge,
Circuit
a co-conspirator;
that
was
Azenon-Gomez
dissenting
part:
in
in
part and
indeed,
only employee Ryan
she
the
at
was
compre-
of Title
Section
18 is
fraud
& Webster
during the
scheme.
indisputably prohibits
that
hensive statute
Moreover,
that
Azenon-Gomez testified
Ryan-Webster’s
of Certifica-
falsification
aided and assisted
she
(ETA-750s) and
Pe-
Applications
tion
Visa
falsifying
(I-140s).
specifical-
titions
This conduct is
Petitions.
proscribed by the
ly
unambiguously
Finally,
giv
fourth
unnumbered
the instruction as
1546(a),
en,
prohibits
from
persons
that
has been
that
which
“evidence
received”
oath,
...
mak[ing] under
co-conspirator,”
“knowingly
“Azenon-Gomez was a
any
permissible
penalty
perjury
comment on the
false statement
constituted
to a material
fact
respect
evidence
trial court. As we have
affidavit,
application,
observed,
trial
or other document
judge,
heretofore
“the
regu-
jury, may
required by
comment
laws or
charging
upon
evidence,
lations
18
long
so
as it is also clear that the
thereunder.”
,”17
1546(a) (West
2000 &
Supp.
U.S.C.A.
jury determines all matters
fact...
2003)
Godwin,
Government,
States
United
v.
678
Quercia
(4th Cir.2001)
unknown,
v.
(citing
charge
n. 22
reasons
chose
Ryan-Webster only
para-
first
United
U.S.
(1933)).
1546(a),
graph
which makes it a crime
ways to ascertain
implement
the intent
properly
how
to ascertain the meaning of
Congress.”
Scott v. United
statutory language
328
from the
context
(4th Cir.2003).
F.3d
138
Accordingly, which it is used. The first
principle
is the
step
process
first
of this
ejusdem
“[t]he
is to deter-
generis
i.e.,
general
“when a
—
statutory
mine whether the
language has a
phrase
word or
specific
follows
list of
plain and unambiguous meaning.” Id. at
persons
things,
or
general
word or
Co.,
(citing
Sigmon
139
Barnhart v.
phrase
Coal
will
interpreted
be
only
include
438, 450,
534 U.S.
122
persons
S.Ct.
things
of the
type
same
(2002)).
L.Ed.2d 908
If
statutory
lan-
those listed.” Black’s
Dictionary
Law
(7th
guage
unambiguous
ed.1999);
is
statutory
and the
see also United States v.
consistent,
Parker,
(4th
scheme is coherent and
the in-
n.
552-53
Cir.1994)
quiry ceases. Id.
(applying ejusdem generis princi-
ple,
defining
it as providing that “a
assessing
ambiguity,
When
or lack
general statutory term should be under-
thereof, of statutory language,
“gen-
courts
stood in light
specific
terms sur-
erally give
ordinary,
words their
contem-
(internal
rounding
quotation
it”
marks
porary,
But,
meaning.”
and common
Id.
omitted)). Here, the first paragraph pres-
language
itself is not the sole determi-
ejusdem
ents a textbook
generis scenario:
meaning,
nant of
or even of whether the
(“other
general
phrase
pre-
document
language is ambiguous. Courts also must
regulation
statute or
refer to “the specific context in
which
into or
stay
as evidence of authorized
used,
language is
and the broader context
States”),
in the United
of the statute as a whole.” Robinson v.
scope of
upon
which we are called
to inter-
Co.,
Shell Oil
519 U.S.
pret,
specific
(“any
follows a list of
things
(1997).
bottom,
of the catch-all Accordingly, I would reverse required by regula document Webster’s conviction as to Counts 3 and tion that an must submit under 5, and remand the case for re-sentencing. minimum, any immigration program. At a my colleagues otherwise, Because conclude majority’s interpretation renders the I respectfully dissent from Parts III.A. “application” paragraph word in the fourth panel’s opinion. IV. because, entirely superfluous majori if the ty’s interpretation of the first application
includes forms like the ETA 1-140, encompasses and the then it all
other “application” similar documents. Moreover, majority’s failure to cabin SONS, S. WALLACE EDWARDS & paragraph’s phrase catch-all INCORPORATED, Plaintiff- *14 any way superfluous renders the rest of Appellee, all, paragraph as well. After “affida v. required by vits other [and] document[s] regulations laws or pre The CINCINNATI INSURANCE COM scribed thereunder” “pre are documents PANY, Corporation, an Ohio De regulation” part fendant-Appellant. process governing some such, immigrants country, and as Sons, S. Wallace Edwards & they would fall within majority’s capa Incorporated, Plaintiff- cious construction.* Appellee, summary, 1546(a), 18 U.S.C.A. construed, properly unambiguous as it Company, The Cincinnati Insurance relates to falsified ETA I- forms 750 and Corporation, Ohio Defendant- 140. Falsification of such forms is covered Appellant. paragraph under the fourth of the statute Therefore, and not the first. the Govern- 02-1885, Nos. 02-1928. charged Ryan-Webster under the United States Court of Appeals, 1546(a), wrong provision §of and the dis- Fourth Circuit. trict court denying Ryan- erred both in judgment Webster’s motion for acquittal Argued: May as to Counts 3 and in instructing Decided: Dec. that forms ETA 750 and 1-140 qualified as documents covered the first
paragraph.
* counterfeited, majority opinion, my In footnote 16 of the "forged, altered made." U.S.C.A. colleagues contend that their construction Therefore, majority’s suggestion paragraph does not render the word "[h]ad made false state- "application” paragraph entirely in the fourth forged signatures ments but ap- on these superfluous paragraph because the first deals plications, properly she have been forgeries, type of conduct different chargeable under the fourth statements, making from the of false which is properly chargeable and not covered paragraph. the fourth The first 16, is, see ante at 363 n. paragraph," its first I however, paragraph, is concerned with more submit, respectfully appli- not accurate. An just forgery than makes criminal the use cation ques- with false statements is without —it possession "falsely known to be tion one that is made.” fourth thereof. notes knowingly ... subscribes Whoever infra 14, any respect false to a statement with mate- affidavit, any application, rial fact Indictment, 9.According Count immigra- other document Ryan-Webster: prescribed regulations tion laws or thereun- use, der, utter, any knowingly possess knowingly presents appli- such did docu- cation, affidavit, regulation ments or other document which 2002, was and on Petition filed on Ryan-Webster Application In April court Little tried federal Flower Montessori before behalf Alexandria, Virginia. Nora Azenon-Go- testimony, Noguchi In her Ms. School. mez, former office assis- Ryan-Webster’s knowledge these denied forms tant, key government Kadir, witness. employee was the prospective of Manik 2, connection with Count Azenon-Gomez named forms reflected thereon. signed had testified that Virginia Kadir resided intended Radcliffe,” the name “James on behalf adjustment his for an alien sta- petition Collision, fifteen on approximately C.A.R. immigrant. of an tus The defense with the Applications filed Ryan- no evidence on behalf of presented a wit- DOL. Radcliffe also called as was Webster. ness, he he testified that had neither evidence, Ryan- At the conclusion of the signed given Ryan-Web- those forms nor judgment of sought acquittal Webster permission Each sign ster him. 2, 5, pursuant to 29 of Counts Rule prospective alien form reflected that Rules of the Federal Criminal Procedure.10 employee the United States lived outside motion, support of her Rule 29 apply and intended to for an Webster contended does visa. In connection Count Azenon- underlying apply to the conduct name Lock- Gomez testified that the “Cecil specifically, and 5. she More asserted hart” on the relevant Visa Petition that Certification and Visa Lockhart, signed by Ryan-Webster. Petitions not constitute documents do testimony, any knowledge his denied “prescribed Rezvani, form or either this of Mitra or as of authorized evidence