United States v. Greenberg

Opinion

23-7168 (L) United States v. Greenberg

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of The United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of February, two thousand twenty-five.

PRESENT: JOHN M. WALKER JR., BETH ROBINSON, SARAH A. L. MERRIAM, Circuit Judges. _________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. Nos. 23-7168 (L), 23-7249

JULIA GREENBERG, AKA SEALED DEFENDANT 3, ULADZIMIR DANSKOI, AKA SEALED DEFENDANT 2,

Defendants-Appellants,

YURY MOSHA, AKA SEALED DEFENDANT 1, ALEKSEI KMIT, AKA SEALED DEFENDANT 4, TYMUR SHCHERBYNA, AKA SEALED DEFENDANT 5, KATERYNA LYSYUCHENKO, Defendants. *

_________________________________________

FOR APPELLANT GREENBERG: BEAU B. BRINDLEY, The Law Offices of Beau B. Brindley, Chicago, IL.

FOR APPELLANT DANSKOI: JAMES M. BRANDEN, Law Office of James M. Branden, Staten Island, NY.

FOR APPELLEE: DAVID R. FELTON (Jonathan E. Rebold, Jacob R. Fiddelman, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

Appeal from criminal judgments entered in the United States District

Court for the Southern District of New York (Oetken, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that, for the reasons set forth in a separate per

curiam opinion issued today and in this summary order, the September 8, 2023

and September 28, 2023 judgments are AFFIRMED.

Defendants-Appellants Julia Greenberg and Uladzimir Danskoi were

convicted after a jury trial of a single count of conspiracy to commit immigration

fraud. Danskoi was a partner at Russian America, an immigration services firm

* The Clerk’s office is directed to amend the caption as reflected above.

2 in New York that purported to provide translation and other services for

individuals in immigration proceedings, and Greenberg was an immigration

attorney. The government presented evidence that Danskoi and other

conspirators associated with Russian America steered clients into fraudulently

applying for asylum based on fabricated stories, and that Greenberg then

represented those individuals in immigration proceedings and further bolstered

their applications, despite knowing that they contained false information.

The charged conspiracy based on this evidence had three alleged

objectives: (1) defrauding the United States, in violation of 18 U.S.C. § 371; (2)

immigration fraud by obtaining visas and asylum grants by means of false

claims, statements, or other fraudulent means, in violation of 18 U.S.C. § 1546(a)

para. 1; and (3) immigration fraud by knowingly presenting false statements

under oath regarding a material fact in an application, affidavit, or other

document required by the immigration laws, in violation of 18 U.S.C. § 1546(a)

para. 4. Both Defendants were convicted pursuant to a general verdict following

a two-week jury trial in December 2022.

On appeal, each defendant argues that the evidence was insufficient to

show that he or she entered into an agreement with another person to pursue an

3 alleged object of the conspiracy 1 and that the district court erred by giving the

jury a conscious avoidance charge. In addition, Greenberg contends the district

court committed plain error when it instructed the jury about an attorney’s

ethical duties. We assume the parties’ familiarity with the underlying facts,

procedural history, and arguments on appeal, to which we refer only as

necessary to explain our decision to affirm.

I. Sufficiency of the Evidence

We review a challenge to the sufficiency of the evidence de novo, meaning

without deference to the district court’s decision. United States v. Dove, 884 F.3d

138, 150 (2d Cir. 2018). In assessing the sufficiency of the government’s evidence,

“we must view the evidence in the light most favorable to the government, and

construe all permissible inferences in its favor.” United States v. Heinemann, 801

F.2d 86, 91 (2d Cir. 1986). 2 “This deferential standard of review is especially

important when reviewing a conviction of conspiracy because a conspiracy by its

very nature is a secretive operation, and it is a rare case where all aspects of a

1 Greenberg poses a legal challenge concerning the second objective—immigration fraud in violation of 18 U.S.C. § 1546(a) para. 1. We address this legal challenge in a separate published opinion issued contemporaneously with this summary order.

2 In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.

4 conspiracy can be laid bare in court with the precision of a surgeon’s scalpel.”

United States v. Pauling, 924 F.3d 649, 656 (2d Cir. 2019).

“To prove conspiracy, the government must show that two or more

persons entered into a joint enterprise for an unlawful purpose, with awareness

of its general nature and extent, and that those persons agreed to participate in

what they knew to be a collective venture directed toward a common goal. But

the government need not prove that the defendant knew all of the details of the

conspiracy or the identities of all of the other conspirators.” United States v.

Jimenez, 96 F.4th 317, 324 (2d Cir. 2024).

A. 18 U.S.C. § 371

We first consider whether the evidence was sufficient to prove a

conspiracy to “commit any offense against the United States, or defraud the

United States, or any agency thereof in any manner or for any purpose[.]” 18

U.S.C. § 371. “To prove a conspiracy under the ‘defraud clause,’ the government

must establish (1) that the defendant entered into an agreement (2) to obstruct a

lawful function of the government (3) by deceitful or dishonest means and (4) at

least one overt act in furtherance of the conspiracy.” United States v. Atilla, 966

F.3d 118, 130 (2d Cir. 2020).

5 i. Danskoi

During the investigation, a confidential source known as CS-3 posed as an

asylum applicant seeking the assistance of the Defendants; evidence regarding

his application and his interactions with Defendants was introduced at trial.

Danskoi contends the evidence was insufficient to show that he did not believe

that CS-3 was gay when he helped CS-3 pursue an asylum claim based on feared

persecution based on sexual orientation, and further argues that there is

insufficient proof that he acted with anyone else.

There is ample evidence from which the jury could conclude that Danskoi

believed that CS-3 was falsely claiming to be gay in his asylum application. For

one, CS-3 testified that after he and Danskoi began discussing a claim based on

sexual orientation persecution—an approach Danskoi identified as the best

option—CS-3 expressly told him that he was “not a gay . . . not gay.” Tr. 173:22. 3

Rather than changing course, Danskoi said that he “doesn’t hear it” and that CS-

3 should not be talking to him about that. Id. 173:24–25. Danskoi then referred

CS-3 to an associate, Kateryna Lysyuchenko, whom he described as “sort of an

expert talking about the subject,” to help CS-3 develop his claim. Id. 174:11–12.

3 “Tr.” refers to the trial transcript available on the district court’s docket.

6 Lysyuchenko, an indicted co-conspirator, gave CS-3 sample asylum

narratives based on sexual orientation persecution, talked to him about his claim,

and completed the application and wrote most of the accompanying narrative.

When CS-3 returned to Danskoi’s office to sign the final application, Danskoi

recommended that CS-3 “look around in New York” for what CS-3 characterized

as “[h]omosexual associated organizations.” Id. 214:19–23. Neither Danskoi nor

anyone in his office read the contents of the completed document to CS-3 in his

native language.

In response to CS-3’s request for an attorney to accompany him to the

asylum interview, Danskoi arranged for Attorney Greenberg to represent CS-3.

After CS-3 signed his application, Danskoi assured him that Greenberg would

help him “strengthen his case” and “prepare for the interview.” Id. 215:1–5.

This evidence is sufficient to support the conclusion that Danskoi

conspired with one or more people to defraud the United States.

ii. Greenberg

Similarly, when Greenberg met CS-3, she said, “Oh. You are going it as a

gay.” Tr. 231:5. CS-3 repeatedly implied that he was not, in fact, gay,

responding to her initial question by saying, “Well, like as if,” and explaining

7 that he didn’t want to but “they said it is better that way.” Id. 231:6, 8–9. He

asked her, “Do I look like one?” Id. 231:12.

In preparing CS-3 for his interview, Greenberg coached CS-3 to style

himself in a manner stereotypically associated with being gay. In preparing CS-3

to talk about a purported incident when he claimed to have been beaten up at a

bar, she asked him what month the incident occurred. He said the narrative did

not indicate a month and asked Greenberg, “What would be better?” Id. 248:25–

49:1. Greenberg coached him to say the assault took place in March, because at

that time Ukraine was still subject to the Soviet Union’s criminal code that

criminalized homosexuality. She told CS-3: “[T]hat’s the explanation for why

you didn’t call the police.” Id. 249:24–25. She also coached CS-3 to falsely state in

his asylum interview that Russian America had provided only translation

services and that they read his story back to him in his native language before it

was submitted. Moreover, Greenberg submitted supplemental country

conditions evidence to support CS-3’s claim for persecution.

The government also introduced texts between Greenberg and Yury

Mosha, who was Danskoi’s partner at Russian America and an indicted co-

conspirator. In the emails, Mosha arranged for a client, A.S., to meet with

8 Greenberg to discuss his asylum prospects. Before meeting with A.S. but after

reviewing his paperwork, Greenberg texted Mosha that A.S.’s asylum claim was

weak. When Greenberg met with A.S., she steered him toward seeking asylum

based on sexual orientation, though he had provided no basis for such a claim.

A.S. was not receptive to that approach, but Greenberg messaged Mosha after

her meeting with A.S. and said, “He is 100, effectively 100 percent gay but does

not admit.” Id. 958:15–16.

Finally, the government introduced evidence that Russian America

discussed Greenberg’s fees with their clients, and when Greenberg did not

receive a fee from a client referred by Russian America, she expected Russian

America to ensure she was paid. In fact, before Greenberg’s first meeting with

A.S., Mosha told her not to discuss finances with A.S.

This evidence is sufficient to show that Greenberg entered into an

agreement with one or more people to defraud the United States.

B. 18 U.S.C. § 1546(a) para. 4 (“Paragraph 4”)

We need not address Greenberg’s separate contention that the evidence

was insufficient to support a conviction for conspiracy to violate 18 U.S.C.

§ 1546(a) para. 4. Paragraph 4 makes it a crime to submit an application or other

9 document required by immigration laws knowing that it contains a false

statement under oath. The government conceded at trial that this objective did

not reach oral statements Greenberg made to immigration officials, and

Greenberg contends the evidence is insufficient to show that she entered a

conspiracy to enter any falsified documents.

Because we conclude that the evidence is sufficient to support Defendants’

convictions based on the first objective identified in the indictment, we need not

address Defendants’ challenges to the sufficiency of the evidence with respect to

this third object. See United States v. Duncan, 42 F.3d 97, 105 (2d Cir. 1994)

(“[W]hen a defendant is convicted of a multiple object conspiracy by a general

verdict, the conviction is sustainable if one of the conspiratorial objects is

supported by the evidence, even if the other is not.” (citing Griffin v. United

States, 502 U.S. 46, 49 (1991)). 4

4 When a defendant challenges the legal rather than evidentiary adequacy of one of the possible bases for conviction, this rule does not apply. Yates v. United States, 354 U.S. 298, 311–12 (1957) (“In these circumstances we think the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.”); see also Griffin v. United States, 502 U.S. 46, 59 (1991) (“When . . . jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence.”). For that reason, by separate opinion issued contemporaneously with this order, we do address Greenberg’s challenge to the legal sufficiency of the second alleged object of the conspiracy.

10 II. Conscious Avoidance Charge

“We review challenged jury instructions de novo but will reverse only if all

of the instructions, taken as a whole, caused a defendant prejudice.” United

States v. Applins, 637 F.3d 59, 72 (2d Cir. 2011). “A conscious avoidance

instruction may only be given if (1) the defendant asserts the lack of some

specific aspect of knowledge required for conviction, and (2) the appropriate

factual predicate for the charge exists.” United States v. Svoboda, 347 F.3d 471, 480

(2d Cir. 2003). Both Defendants challenge the factual predicate supporting the

charge.

We reject their claims. Both Defendants argued to the jury that they were

unaware of the falsity of various clients’ asylum claims, and the evidence was

sufficient to support a finding that both Defendants were “aware of a high

probability” of the disputed fact and deliberately avoided confirming otherwise.

Id. at 480. As stated above, when CS-3 explicitly told Danskoi he was not gay,

Danskoi told him he did not want to hear it. That is textbook conscious

avoidance. Similarly, CS-3 effectively – though not directly – conveyed the same

information to Greenberg, who proceeded to coach him on how to make his

story believable.

11 And we easily reject Greenberg’s separate argument that the instruction

allowed the jury to convict without evidence of actual intent to enter into an

agreement. The district court expressly instructed otherwise:

Here, because the Defendants are charged with participating in a conspiracy, it is also important to note that the concept of conscious avoidance cannot be used as a substitute for finding that the Defendants knowingly agreed to a joint undertaking, and you can only find the Defendants guilty if the evidence proves, beyond a reasonable doubt, that the Defendants knowingly and intentionally joined the conspiracy charged in the Indictment.

Jury Instructions at 47, No. 1:21-cr-00092(JPO) (S.D.N.Y. Dec. 16, 2022), ECF No.

187 (“Jury Instructions”).

III. Legal Ethics Charge

Given Greenberg’s role as a lawyer barred in New York, the district court

instructed the jury as to her ethical duties. Greenberg did not challenge the

instruction at trial but now argues that the instruction (1) should not have been

given at all and (2) was erroneous. We review for plain error, meaning that

Greenberg must show, among other things, that any claimed error affected her

“substantial rights.” United States v. Miller, 954 F.3d 551, 557–58 (2d Cir. 2020).

12 Greenberg specifically challenges the district court’s instruction that “a

USCIS agent conducting an asylum interview qualifies as a tribunal” for the

purposes of New York professional conduct rules providing that if a lawyer

comes to know of the material falsity of evidence offered to a tribunal by a client,

or knows a client is engaging in fraudulent conduct relating to a proceeding

before a tribunal, the lawyer must take “reasonable remedial measures,

including, if necessary, disclosure to the tribunal.” Jury Instructions at 39.

Greenberg contends that an asylum interview is not a proceeding before a

“tribunal” for purposes of this ethical rule.

We need not determine the application of these specific provisions of New

York’s ethics codes to asylum interviews because any error in giving this

instruction, or in its precise formulation, did not affect her substantial rights.

Instructions about the ethical requirements that applied to Greenberg were

relevant in light of her suggestion at trial that her conduct was consistent with

her duty as a lawyer. But the instructions emphasized that “[p]roof that

Greenberg violated one or more of her professional duties does not, without

more, mean that she is guilty of any crime. That is, a lawyer can violate her

ethical duties under New York law and Board of Immigration Appeals and

13 Immigration Court disciplinary rules without having the intent required to

commit a crime.” Id. at 41. Moreover, Greenberg herself testified that a USCIS

proceeding is a tribunal. Insofar as the rules are relevant to Greenberg’s state of

mind, her understanding of the rules is what matters.

Moreover, the district court also instructed that “a lawyer is prohibited

from counseling or assisting a client as to conduct that the lawyer knows is

illegal or fraudulent,” including by “suggesting how the wrongdoing might be

concealed.” Id. at 38. And the court instructed, “Although an attorney must use

all reasonable lawful means to attain the objectives of the client, counsel is

precluded from taking steps or in any way assisting the client in presenting false

evidence or otherwise violating the law.” Id. at 39. These instructions were not

linked to the existence of any proceeding before a “tribunal.” Greenberg does

not challenge these instructions. For all of these reasons, any error with respect

to a lawyer’s duties to a tribunal did not affect Greenberg’s substantial rights.

* * *

14 We have considered Appellants’ remaining arguments and conclude that

they are without merit. Accordingly, the District Court’s judgments are

AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court