United States v. Laurent

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 10, 2006
• Docket: 04-4745
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-4745

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANDRES LAURENT,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (CR-03-372)

Argued: February 3, 2006 Decided: March 10, 2006

Before WILKINS, Chief Judge, and WILLIAMS and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Brian Jay Grossman, Richmond, Virginia, for Appellant. Brian Lee Whisler, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United States Attorney, Michael J. Elston, Assistant United States Attorney, Alexandria, Virginia; John F. Wood, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Andres Laurent appeals his convictions for conspiring to

produce false identification documents, 18 U.S.C.A. § 1028(f) (West

2000), and presenting a false visa application, 18 U.S.C.A. §

1546(a) (West 2000 and Supp. 2005). For the reasons that follow,

we affirm.

I.

Laurent, a citizen of Estonia, was known by the name Andres

Titov until he changed his name to Andres Laurent in 2001. As

Titov, Laurent had a criminal record in Estonia for appropriation

of property, theft, and armed robbery. On April 20, 2001, a visa

application in Laurent’s name was submitted to the U.S. Embassy in

Estonia bearing Laurent’s picture and a signature of his name. The

visa application falsely stated that Laurent had no criminal

record. Laurent received a visa from the embassy and entered the

United States at Newark, New Jersey.

Once in the United States, Laurent, with the help of men named

Villu and Valery, started selling counterfeit immigration

documents, such as green cards and student visas, to unsuspecting

immigrants for exorbitant sums of money. Although the organization

of the counterfeiting scheme was somewhat fluid, the evidence

presented at trial showed that: (1) Villu, who lived in California,

produced the documents; (2) Valery located immigrants willing to

2 buy the documents; and (3) Laurent, posing as an immigration

official, fingerprinted, photographed, obtained signatures of the

victims, stamped the victims’ visas, and actually delivered the

counterfeit documents to the victims.

Laurent was charged with two counts: (1) conspiring to produce

false identification documents, 18 U.S.C.A. § 1028(f), and (2)

presenting a false visa application, 18 U.S.C.A. § 1546(a). In

support of the conspiracy count, the Government produced, inter

alia, a woman Laurent had abducted during the course of his

counterfeiting scheme, Oksana Solovatkena, and five of Laurent’s

victims, Taisia Ketoeva, Lyudmila Zachinyayeva, Eldar Aliyev,

Andrzej Hubert, and Ela Berulava. The statement of facts recounted

above is a summary of these witnesses’ testimony, viewed in the

light most favorable to the Government. In support of the false-

presentation count, the Government produced, inter alia: (1) an

Estonian police officer, Olavi Kavald, who testified as to

Laurent’s Estonian criminal record; (2) a copy of the false visa

application, which bore Laurent’s photograph and a signature of his

name; (3) an apartment rental application also bearing a signature

of Laurent’s name; (4) and Laurent’s former landlord, Wayne Hall,

who testified that Laurent had signed the lease.

The Government did not offer the testimony of Kavald to

authenticate the visa application. Instead, the Government

proceeded under the theory that the visa application was self-

3 authenticating because it had in its possession a certificate from

the vice consul of the United States embassy in Estonia purporting

to authenticate the visa application in compliance with 18 U.S.C.A.

§ 3505(a) (West 2000).1 The parties agreed, however, that the

certificate itself should not be admitted into evidence because at

the time, both parties were concerned that the certificate would

1 The full text of that subsection, which is entitled “Foreign records of regularly conducted activity,” provides:

(a)(1) In a criminal proceeding in a court of the United States, a foreign record of regularly conducted activity, or a copy of such record, shall not be excluded as evidence by the hearsay rule if a foreign certification attests that-- (A) such record was made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters; (B) such record was kept in the course of a regularly conducted business activity; (C) the business activity made such a record as a regular practice; and (D) if such record is not the original, such record is a duplicate of the original;

unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. (2) A foreign certification under this section shall authenticate such record or duplicate.

18 U.S.C.A. § 3505(a) (West 2000). Section 3505(a) is substantially similar to Fed. R. Evid. 902(12), which allows for self-authentication of certified foreign records of regularly conducted activity in civil cases.

4 violate the Confrontation Clause as interpreted by Crawford v.

Washington, 541 U.S. 36 (2004).

When the Government sought to introduce the visa application

into evidence, Laurent’s counsel objected, stating that “[the visa

application] is not certified, and [the Estonian police officer] is

not a proper authenticating witness.” (J.A at 235.) Upon hearing

counsel’s objections, the Assistant U.S. Attorney prosecuting the

case stated that “defense counsel’s objection is well taken in the

sense we don’t have a certification attached to the document right

now, but we have a certification.” (J.A. at 236.) The district

court admitted the visa application into evidence, but stated that

it would “back it out [of evidence]” if the Government did not

present the self-authenticating certificate to the court the next

day. (J.A. at 236.) It is unclear from the record, and Laurent’s

counsel could not recall at oral argument, whether the Government

actually produced the self-authenticating certificate to the

court.2 Counsel admitted, however, that whether or not the self-

authenticating certificate was produced, he did not object when the

evidence, including the visa application, was delivered to the jury

for its deliberations.

The jury convicted Laurent of both counts, and the district

court sentenced Laurent to 41 months’ imprisonment. On appeal,

2 Unfortunately, the Government was represented at oral argument by counsel who did not participate in the trial and who could not, therefore, shed any light on this gap in the record.

5 Laurent challenges both of his convictions.3 We address his

arguments in turn.

II.

Laurent challenges his § 1028(f) conviction for conspiring to

produce false identification documents, arguing that the evidence

was insufficient to convict him. We must uphold a jury verdict on

appeal if there is substantial evidence in the record, viewed in

the light most favorable to the Government, to support it. See

Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.

Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en banc). “[I]n the

context of a criminal action, substantial evidence is evidence that

a reasonable finder of fact could accept as adequate . . . to

support a conclusion of a defendant's guilt beyond a reasonable

doubt.” Burgos, 94 F.3d at 862. “[T]he appellate function is not

to determine whether the reviewing court is convinced of guilt

beyond reasonable doubt, but, viewing the evidence and the

reasonable inferences to be drawn therefrom in the light most

favorable to the Government, whether the evidence adduced at trial

3 In his brief, Laurent argued that this sentence violated the Sixth Amendment because it was based, in part, on facts found by the district court and not by a jury. At oral argument, however, Laurent expressly withdrew this argument. We therefore do not consider whether Laurent’s sentence was in error.

6 could support any rational determination of guilty beyond a

reasonable doubt.” Id. at 863 (internal quotation marks omitted).

To prove Laurent participated in a conspiracy, “the government

must establish an agreement to commit an offense, willing

participation by the defendant, and an overt act in furtherance of

the conspiracy.” United States v. Tucker, 376 F.3d 236, 238 (4th

Cir. 2004) (setting forth the elements of a conspiracy under 18

U.S.C. § 371). The conduct of the alleged conspirators can give

rise to an inference that an agreement exists. See United States

v. Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984). Laurent contends

that the evidence is insufficient because it shows only “a series

of buy-sell transactions between [him], his supplier, and his

customers,” (Appellant’s Br. at 8), not the “agreement” required

for a conspiracy. We disagree. Although “there may be instances

where one is merely a buyer or seller, but not a conspirator,”

United States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993), the

evidence here demonstrates more than a mere buyer-seller

arrangement. Several examples illustrate this point. Ketoeva, one

of Laurent’s victims, testified that Laurent and Valery said,

“[T]hey provide people with documents.“ (J.A. at 90 (emphasis

added).) Ketoeva arranged for others to receive green cards

through Laurent and Valery. Aliyev, another one of Laurent’s

victims, testified that Valery told him that he should give him

(Valery) money for the green card because he (Valery) “will send

7 the money to [Laurent].” (J.A. at 135.) Laurent once sent Valery

to retrieve a defective passport. Solovatkena, the woman Laurent

abducted, testified that “the general line up [was that] Valery .

. . procur[ed] clients while Villu . . . sen[t Laurent] documents.”

(J.A. at 48.) She also testified that she and Laurent went to

California to see Villu because there were mistakes on some of the

green cards that “they,” i.e., Laurent and Villu, had made for

their victims. (J.A. at 63-64.) Viewed in the light most

favorable to the Government, the evidence was clearly sufficient to

establish that Laurent entered into a criminal agreement.

III.

Laurent also challenges his § 1546(a) conviction for

presenting a false visa application. In support of this challenge,

he makes several arguments, which we address in turn.

First, Laurent argues that venue was not proper in the Eastern

District of Virginia because the visa application was submitted to

the United States embassy in Estonia. This argument is without

merit. The relevant venue statute, 18 U.S.C.A. § 3238 (West 2000),

provides that “[t]he trial of all offenses begun or committed . .

. out of the jurisdiction of any particular State or district shall

be in the district in which the offender . . . is arrested.” Here,

the offense was committed in Estonia and Laurent was arrested in

8 Richmond, which is located in Virginia’s Eastern District. Venue

was therefore properly laid in that district under § 3238.

Second, Laurent argues that because the indictment incorrectly

charges that the visa application was presented “in the Eastern

District of Virginia,” (J.A. at 14), not Estonia, where it was

actually presented, the Government did not prove the allegations in

the indictment. This argument is also without merit. Because the

location of the embassy is not an element of a § 1546(a) offense,

the variance in the indictment and the evidence presented at trial

is harmless. See United States v. Redd, 161 F.3d 793, 795-96 (4th

Cir. 1998) (“[A]s long as the proof at trial does not . . .

constitute a broadening of the charges, then minor discrepancies

between the Government’s charges and the facts proved at trial

generally are permissible. . . . [A variance is harmless if it]

does not affect an essential element of the offense.” (internal

quotation marks omitted)).

Third, Laurent argues that the district court erred in

admitting the visa application into evidence because the vice

consul’s self-authenticating certificate violated Crawford v.

Washington, 541 U.S. 36 (2004). This argument is unpersuasive. In

Crawford, the Supreme Court held that the Confrontation Clause

requires, among other things, that “[t]estimonal statements of

witnesses absent from trial [are admissible] only where the

declarant is unavailable and only where the defendant has had a

9 prior opportunity to cross examine.” Id. at 59. We need not

decide whether the self-authenticating certificate was

“testimonial” for Crawford purposes, however, because a necessary

condition of a Confrontation Clause violation is that the evidence

in question actually came before the jury. See U.S. Const. amend

VI (“In all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him. . . .”

(emphasis added)). Here, although the visa application was

admitted into evidence, the self-authenticating certificate was not

admitted (by agreement of the parties), and there is no argument

that the certificate otherwise came before the jury. Because the

certificate did not come before the jury, it presents no

Confrontation Clause issue.

Laurent also argues that the district court erred in admitting

the visa application into evidence because the self-authenticating

certificate was not also admitted into evidence. Although this

argument raises interesting questions about the proper operation of

§ 3505, we need not address the argument. Laurent’s counsel agreed

with the Government’s request that the district court not admit

into evidence the self-authenticating certificate and thereby

invited any error about which he now complains. In fact, counsel

informed us at oral argument that he would have objected on

Crawford grounds had the certificate been admitted. In these

circumstances, Laurent will not be heard to complain about any

10 error the district court may have made in failing to admit the

self-authenticating certificate. See United States v. Bennafield,

287 F.3d 320, 325 (4th Cir. 2002) (applying invited-error doctrine

to refuse to examine argument that jury charge was erroneous where

defendant had requested the charge).4

Fourth, Laurent argues that the evidence was insufficient to

convict him of presenting a false visa application. We review this

argument under the same standard as we did Laurent’s challenge to

his conspiracy conviction. To prove that Laurent violated §

1546(a), the Government must prove that he knowingly presented or

caused to be presented a material, false statement made under oath

on any document required by the immigration laws or regulations

promulgated thereunder. See 18 U.S.C.A. § 1546(a).

In support of his insufficiency argument, Laurent argues: “No

witness testified whether the application was signed by . . . him.

4 In addition to the arguments noted in the text, counsel also raised two new contentions at oral argument regarding the admissibility of the visa application. First, he contended that the self-authenticating certificate failed to comply with the rule governing admissibility of foreign records of regularly conducted activity because the vice-consul who signed the certificate was not qualified to make the certification. Second, he contended that the visa application should not have been admitted into evidence because the record failed to show that the Government produced the self-authenticating certificate to the district court, a gap in the record he argues reveals that the Government failed to satisfy the district court’s condition to the admission of the visa application. Counsel waived these arguments by failing to make them in his appellate brief. See Williams v. Giant Food, Inc., 370 F.3d 423, 430 n.4 (4th Cir. 2004) (interpreting Fed. R. App. P. 28(a)(9)(A) to provide that arguments not raised in brief are deemed abandoned on appeal).

11 No U.S. embassy personnel testified regarding whether visa

applications must be made in person or whether they may be handled

by intermediaries. The evidence at trial established no connection

between . . . the visa application [and him] whatsoever.”

(Appellant’s Br. at 8.) In opposition, the Government argues that

the jury could have compared the signatures of Laurent’s name on

the apartment rental application and the visa application, and if

it believed the testimony of Hall, Laurent’s landlord, that Laurent

signed the rental agreement, that it could have inferred that

Laurent also signed the visa application. In reply, Laurent argues

that the Government was required to produce a handwriting expert if

it wished to rely on the similarity of the signatures.

We agree with the Government. Hall testified that Laurent had

signed his name on the rental application. Viewing the evidence in

the light most favorable to the Government, we must assume that

Laurent in fact signed the rental application. Although the

Government presented no direct evidence showing that Laurent had

also signed the visa application, the jury was entitled to compare

Laurent’s signature of his name on the rental application with the

signature of his name on the visa application and infer from the

similarity in the signatures that Laurent had signed both

documents.5 Moreover, contrary to Laurent’s assertion, no expert

5 Laurent does not argue that the signatures on the visa application and the lease agreement were so different that no reasonable juror could conclude they were signed by the same

12 was required for the jury to make this comparison. See Goins v.

United States, 99 F.2d 147, 151 (4th Cir. 1938) (“The rule is well

settled that [the jury] may be permitted to compare . . . disputed

handwriting with writing admitted or proved to be genuine.”).

IV.

For the foregoing reasons, we affirm Laurent’s convictions.

AFFIRMED

person. In fact, at oral argument, Laurent’s counsel conceded that the similarity in the signatures was “a question for the jury.”