United States v. Daria Ershova

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 3, 2019
• Docket: 18-12338
• Status: Unpublished

Opinion

Case: 18-12338 Date Filed: 12/03/2019 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12338 Non-Argument Calendar ________________________

D.C. Docket No. 0:17-cr-60137-KMW-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARIA ERSHOVA,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(December 3, 2019)

Before WILSON, MARTIN and BLACK, Circuit Judges.

PER CURIAM: Case: 18-12338 Date Filed: 12/03/2019 Page: 2 of 13

Daria Ershova appeals her convictions for four counts of making a false

statement in a passport application, in violation of 18 U.S.C. § 1542. Ershova

asserts the district court abused its discretion in denying her motion to dismiss the

indictment because her action, as a notary, of signing a form necessary for a parent

to apply for a passport for a minor under the age of 16 was not a “statement”

within the meaning of § 1542. She also contends the district court erred in denying

her motion for a judgment of acquittal for the same reason. After review, we

affirm her convictions.

I. BACKGROUND

A grand jury indicted Ershova and two codefendants in a 15-count

indictment. As relevant to this appeal, Ershova was indicted for making false

statements in passport applications, in violation of 18 U.S.C. § 1542. Section 1542

provides, in pertinent part:

Whoever willfully and knowingly makes any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States, either for his own use or the use of another, contrary to the laws regulating the issuance of passports or the rules prescribed pursuant to such laws . . . [s]hall be fined [and/or imprisoned].

18 U.S.C. § 1542. Specifically, the indictment alleged in the substantive counts

that Ershova:

did willfully and knowingly make a false statement in an application for a passport with the intent to induce and secure the issuance of a passport under the authority of the United States for the use of

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another, contrary to the laws regulating the issuance of passports and the rules prescribed pursuant to such laws, in that she represented that she had personally witnessed a non-applying parent sign the DS-3053 Statement of Consent, when in truth and in fact, and as she then and there well knew, she had not personally witnessed a non-applying parent sign the DS-3053 Statement of Consent in violation of Title 18, United States Code, Sections 1542 and 2.

In applying for a United States passport for a minor child where one parent is not

available, a notarized form can be used as the Statement of Consent from the

unavailable or non-applying parent. See 22 C.F.R. § 51.28(a)(3). The Government

alleged that on some of the dates Ershova notarized fathers’ signatures on the

consent forms, the fathers had already returned to Russia, and on other forms, there

was no record the fathers had lawfully entered the United States.

Ershova moved to dismiss the indictment. Relevant to this appeal, she

argued there was no precedent in which a notary had been charged with violating

§ 1542. She contended a notarization was not a “statement” as used in § 1542, and

that her conduct therefore fell outside the scope of the statute.

Ershova attached a copy of a blank Form DS-3053 to her motion. The

instructions warn that false statements made “on passport applications, including

affidavits or other supporting documents submitted therewith” are punishable

under various statutes, including § 1542. The form itself has four sections for a

parent to provide information and state they consent to the child’s application for a

U.S. passport. Following these fields, the form states: “Stop! You must sign this

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form in front of a notary.” It then has a signature line saying, “I declare under

penalty of perjury that all statements made in this supporting document are true

and correct.” In the fifth section, titled “Statement of Consent Notarization,” the

form provides a line for the notary to sign and certify, among other things, that she

had personally witnessed the parent sign the document and that the notary had

personally viewed the parent’s identification document.

Ershova also attached a copy of a blank Form DS-11. In a section providing

requirements for minors’ passports, the form instructed that, when only one parent

applies for the passport, that parent also had to submit the other parent’s “notarized

written statement or DS-3053 . . . . The notarized statement . . . must be signed and

notarized on the same day . . . .” The form also provided a warning: “False

statements made knowingly and willfully in passport applications, including

affidavits or other documents submitted to support this application, are punishable

by fine and/or imprisonment under U.S. law including . . . 18 U.S.C. 1542 . . . .”

The district court held a hearing on the motion to dismiss. The court

acknowledged that no case had squarely addressed the issue, but noted the form

warned against making false statements. The court stated it considered the form to

be a “supporting document,” but that it did not consider Ershova’s argument to be

an appropriate inquiry at the motion to dismiss stage. The court stated the

language of the form notified whoever was filling out the form or was involved in

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the documentation in support of the passport application that a false statement

could lead to punishment. However, the court could not determine at the motion to

dismiss stage whether Ershova was merely negligent as opposed to criminally

liable. The court found that, based on the indictment and the text and use of the

Form DS-3053, a notarization was a “statement.” The court stated the form did not

exempt notaries from its warning, and accordingly, denied the motion to dismiss.

The case then went to trial, and one of Ershova’s codefendants, Vladimir

Nevidomy, testified against Ershova. Nevidomy testified that he was the co-owner

of a company called Status Med assistance. Status Med was a concierge business

that helped Russian medical tourists seeking to give birth in the United States by,

inter alia, preparing documents for patients’ babies, and it did business under the

name Sunny Medical Center. After a client gave birth, the business would prepare

documents, including applications for United States passports for the baby.

Ershova was one of the managers for Sunny Medical Center, and she worked the

front desk and helped prepare documents. For a baby’s passport application, both

parents had to be present, but a father could send a notarized consent form. If a

father could not fill out and notarize the form himself, either the mother or a Status

Med employee would forge his signature and then notarize the form. Nevidomy,

Ershova, and their codefendant Vera Muzyka first attempted to trace the father’s

signature, and then attempted practicing on multiple forms and picking the one that

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looked best. They had multiple conversations about forging the fathers’ signatures,

including how they needed to be careful because the government was closely

checking consent forms.

On the second day of trial, Aura Arauz-Figueroa, a fraud prevention

manager with the United States Department of State, testified that, for a passport

application for a minor, a Form DS-3053 had to be signed in front of the notary,

rather than before or after. She further testified that a child is not entitled to a

United States passport if the consent of a parent is falsely notarized. Next,

Caroline Schwab, the Notary Coordinator for the State of Florida, testified that the

course Ershova completed to become a notary covered personal physical presence

for notarization and that the document must be notarized on the same day the

person signed it. Narciso Fernandez, an enforcement officer with Customs and

Border Protection, testified that Ershova signed and dated seven Form DS-3053s

when the fathers were not in the United States, including two fathers who had not

entered the United States at all by those dates.

The Government next called Evgenii Romaschenko, whose alleged signature

as a parent consenting to his minor child’s application for a United States passport

had been notarized by Ershova. Although Romaschenko previously had a sexual

relationship with the birth mother, Olga Dynyak, Romaschenko had no knowledge

of whether the baby she gave birth to was his, and had not accompanied Dynyak to

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the United States for her to give birth to the child. Romaschenko had never met

Ershova, and he never signed a consent form authorizing Dynyak to apply for a

United States passport on behalf of the baby.

After calling other witnesses, the Government rested, and Ershova moved

for judgment of acquittal. In relevant part, she renewed her argument that her

notarization of the form was not a “statement” because a misstatement in the jurat

was not the punishment intention of the statute. The court denied the judgment of

acquittal, finding the instructions on Form DS-3053 warned that false statements

made in the application would be punishable by law. The court also found a jury

could reasonably determine Ershova filled out the forms based on the fact the

forms contained her signature and notary stamp. Ershova did not present evidence.

Ershova was convicted on four of the six counts of making a false statement in a

passport application in violation of 18 U.S.C. § 1542. The jury acquitted Ershova

of a conspiracy count and the two remaining counts of false statement in a passport

application.

II. DISCUSSION

A. Motion to Dismiss

In United States v. Critzer, we reversed the dismissal of an indictment after

the district court concluded that, even taking the facts proffered by the government

as constituting the elements of the offense as true, the defendant’s actions did not

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constitute a violation of federal law. 951 F.2d 306, 307-08 (11th Cir. 1992). We

noted “[t]here is no summary judgment procedure in criminal cases.” Id. at 307.

Rather, we held “[t]he sufficiency of a criminal indictment is determined from its

face,” and an indictment is sufficient if it follows the language of the statute and

sets forth the essential elements of the crime. Id. at 307-08.

The district court did not abuse its discretion in denying Ershova’s motion to

dismiss the indictment because the indictment tracked the language of the statute

and charged the essential elements of the offense. See id.; United States v. Waldon,

363 F.3d 1103, 1108 (11th Cir. 2004) (reviewing the denial of a motion to dismiss

the indictment for an abuse of discretion). Although Ershova argues her conduct

did not constitute a violation of § 1542 in that her notarization was not a

“statement,” that argument is outside the scope of a motion to dismiss. See Critzer,

951 F.2d at 307. Rather, because her argument does not go to the sufficiency of the

indictment but to the sufficiency of the evidence and what the Government was

required to prove under the statute, we address it below in the context of her

motion for a judgment of acquittal. See Yates v. United States, 135 S. Ct. 1074,

1080-81 (holding, in the context of a motion for a judgment of acquittal, that a fish

was not a “tangible object” within the meaning of 18 U.S.C. § 1519).

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B. Motion for Judgment of Acquittal

Section 1542 criminalizes “willfully and knowingly mak[ing] any false

statement in an application for passport [to procure a passport], either for his own

use or the use of another, contrary to the laws regulating the issuance of passports

or the rules prescribed pursuant to such laws.” 18 U.S.C. § 1542. The false

statement need not be material. United States v. Ramos, 725 F.2d 1322, 1323 (11th

Cir. 1984). “[A]ny false statement is sufficient” if it is made “with the intent to

induce or secure . . . a passport.” Id. at 1323-24 (quotations omitted) (alteration in

original). “The crime is complete when one makes a statement one knows is

untrue to procure a passport.” United States v. O’Bryant, 775 F.2d 1528, 1535

(11th Cir. 1985). “Good or bad motives are irrelevant.” Id.

Similarly, “[a] person providing false information as part of a passport

application, whether contemporaneously with the form or at any other time, is

subject to prosecution under applicable Federal criminal statutes.” 22 C.F.R.

§ 51.20(b). Regulations define “passport application” as “the application form for

a United States passport . . . and all documents, photographs, and statements

submitted with the form or thereafter in support of the application.” Id. § 51.1.

Where only one parent seeks to apply for a U.S. passport for a child under the age

of 16, that parent may do so only if she provides either (1) evidence that she is the

sole parent or has sole custody of the child; or (2) “[a] notarized written statement

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or affidavit from the non-applying parent . . . consenting to the issuance of the

passport.” Id. § 51.28(a)(3).

The district court did not err in denying the motion for judgment of acquittal.

United States v. Evans, 473 F.3d 1115, 1118 (11th Cir. 2006) (reviewing the denial

of a motion for judgment of acquittal de novo). First, to the extent Ershova argues

that § 1542 applies only to applicants or affiants, the statute does not contain any

such limiting language. Rather, the statute provides it applies to “[w]hoever”

makes a false statement. See 18 U.S.C. § 1542. Further, to the extent Ershova

argues that Form DS-3053 was not part of the “passport application,” the passport

application regulations state the passport application includes supporting

documents, see 22 C.F.R. § 51.1, and the form has to be submitted when one parent

is applying for a passport for a minor child, see id. § 51.28(a)(3). Accordingly,

Form DS-3053 is part of the “passport application.”

Ershova argues her notarization was not a “statement.” When interpreting a

statute, we assume that Congress used words as they are ordinarily understood, and

we construe the statute so that each provision is given full effect. See United States

v. McLymont, 45 F.3d 400, 401 (11th Cir. 1995). The plain meaning controls unless

the statute “is ambiguous or leads to absurd results.” Id. “Statement” is defined

as “[a] verbal assertion or non-verbal conduct intended as an assertion,” and it

defines “false statement” as “[a]n untrue statement knowingly made with the intent

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to mislead.” Statement, False Statement, Black’s Law Dictionary (11th ed. 2019).

An “assertion,” in turn, is defined as “a person’s speaking, writing, acting, or

failing to act with the intent of expressing a fact or opinion; the act or an instance

of engaging incommunicative behavior.” Assertion, Black’s Law Dictionary (11th

ed. 2019).

Looking at the language used in Form DS-3053, Ershova’s signature was her

certification of various facts, including that she witnessed the fathers sign the form.

Because, by signing the document, she intended to express the facts enumerated in

the form, we conclude her signature constitutes a “statement” within the ordinary

meaning of the term.

Ershova asserts her statement was not “contrary to the laws regulating the

issuance of passports or the rules prescribed pursuant to such laws.” First, by

making a false statement in a passport application, Ershova’s actions were directly

contrary to 22 C.F.R. § 51.20, which prohibits making false statements in an

application. Second, by falsely notarizing consent forms, Ershova induced the

issuance of passports where the applications did not comply with 22 C.F.R.

§ 51.28(a)(3). Consequently, her notarization of the consent forms was contrary to

the laws and regulations concerning the issuance of passports.

Because, by notarizing the consent forms, Ershova falsely asserted she had

witnessed the fathers sign them (in violation of one federal regulation) in order to

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induce the issuance of a passport even though the application did not meet the

requirements of another federal regulation, her conduct fell within § 1542. The

fact that other statutes also prohibited Ershova’s conduct does not create ambiguity

because § 1542 clearly defined the prohibited conduct and the punishments for

violating the statute. See United States v. Batchelder, 442 U.S. 114, 123-24 (1979)

(stating two statutes may validly provide different punishments for identical

conduct so long as they clearly define the prohibited conduct and the punishments

authorized, and where an act violates more than one criminal statute, the

government has the discretion to prosecute under either so long as it does not

discriminate against a class of defendants). Further, because the statute is

unambiguous as to its prohibition on Ershova’s conduct, this Court need not apply

the rule of lenity. See United States v. Trout, 68 F.3d 1276, 1280 (11th Cir. 1995)

(explaining where a criminal statute is ambiguous as to whether it applies to certain

conduct, the rule of lenity requires it be construed narrowly in favor of the

defendant).

As to the parties’ arguments regarding how Form DS-3053 is structured,

because the text of § 1542 unambiguously applied to Ershova’s conduct, this

Court’s inquiry stops with the statutory text. See BedRoc Ltd., LLC v. United

States, 541 U.S. 176, 183 (2004) (“[O]ur inquiry begins with the statutory text, and

ends there as well if the text is unambiguous.”). And although notaries have not

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previously been prosecuted under § 1542, the statute, standing alone, was

sufficiently clear to give Ershova fair warning that falsely certifying she had

witnessed the fathers sign the forms was criminal, so due process does not prohibit

her prosecution under that statute. See United States v. Lanier, 520 U.S. 259, 267

(1997) (explaining “the touchstone [for fair warning] is whether the statute, either

standing alone or as construed, made it reasonably clear at the relevant time that

the defendant’s conduct was criminal”).

For these reasons, the district court did not err in denying Ershova’s motion

for judgment of acquittal and we affirm her convictions.

AFFIRMED.