United States v. Servillana Soriano

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 23, 2024
• Docket: 22-10229
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10229

Plaintiff-Appellee, D.C. No. 1:20-cr-00007-RVM-1 v.

SERVILLANA SORIANO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of the Northern Mariana Islands Ramona V. Manglona, Chief District Judge, Presiding

Argued and Submitted June 12, 2024 Honolulu, Hawai‘i

Before: CALLAHAN, HURWITZ, and H.A. THOMAS, Circuit Judges.

Servillana Soriano appeals her conviction for conspiracy to defraud the

United States in violation of 18 U.S.C. § 371. We presume the parties’ familiarity

with the facts and discuss them here only to the extent necessary to provide context

and resolve the issues raised on appeal. We have jurisdiction under 28 U.S.C.

§ 1291, see 48 U.S.C. § 1824(b), and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Soriano argues that a United States Citizenship and Immigration

Services (“USCIS”) officer testified falsely about the requirements for CW-1 visas.

Specifically, Soriano contends that the officer falsely testified that a “petitioner is

not allowed to get reimbursed any of the fees” from beneficiaries, and that the

prosecution knew or should have known such testimony was false.

The USCIS officer’s testimony was a reasonable interpretation of the federal

regulations governing CW-1 visas. See 8 C.F.R. § 214.2(w)(5) (“An employer

who seeks to classify an alien as a CW-1 worker must file a petition with USCIS

and pay the requisite petition fee . . . .”). Further, in responding to public comment

concerning a beneficiary’s ability to pay the CW-1 petition fees, the Department of

Homeland Security explained that “the petitioning employer will pay the

applicable petition fees” and that “[t]he employee is only responsible for paying

the biometrics fee.” Commonwealth of the Northern Mariana Islands Transitional

Worker Classification, 76 Fed. Reg. 55502, 55514 (Sept. 7, 2011). In any event,

the officer subsequently acknowledged at trial that there was no regulation

explicitly stating that petitioners cannot be reimbursed. There was therefore no

due process violation. See Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en

banc) (“[A] criminal defendant is denied due process of law when a prosecutor

either knowingly presents false evidence or fails to correct the record to reflect the

true facts when unsolicited false evidence is introduced at trial.”). Moreover, the

2 officer’s testimony, even if false, was not material because Soriano collected

$2,700 from the beneficiaries, which was more than the actual cost of $1,110 for

the CW-1 visa petition. So, even if Soriano could lawfully collect reimbursement

for petition fees, she made a profit of almost $1,590, which the jury was entitled to

consider as evidence of guilt. Id. (explaining that false testimony is material when

“there is any reasonable likelihood that the false testimony could have affected the

judgment of the jury”).

2. Soriano next argues that a written statement introduced at trial was

inadmissible hearsay and violated her Sixth Amendment confrontation right. “We

review claimed violations of the confrontation clause de novo, a district court’s

construction of the hearsay rule de novo, and a district court’s decision to admit

evidence under exceptions to the hearsay rule for abuse of discretion.” United

States v. Orellana-Blanco, 294 F.3d 1143, 1148 (9th Cir. 2002) (internal footnote

omitted).

In United States v. Nazemian, 948 F.2d 522, 528 (9th Cir. 1991), we held

that so long as a translator acts “as a mere language conduit,” the defendant and

translator are “treated as identical for testimonial purposes.” In such a situation,

admission of a defendant’s translated statements “create[s] neither confrontation

clause nor hearsay problems.” Id. “Determining whether the translator was

merely a language conduit under Nazemian requires analyzing four factors: (1)

3 which party supplied the interpreter, (2) whether the interpreter had any motive to

mislead or distort, (3) the interpreter’s qualifications and language skill, and (4)

whether actions taken subsequent to the conversation were consistent with the

statements as translated.” United States v. Aifang Ye, 808 F.3d 395, 401 (9th Cir.

2015) (citation and internal quotations omitted).

The district court correctly found that the translators used to interview

Soriano qualified as “language conduits” and that the written statement was

therefore properly attributed to her as the declarant. See Fed. R. Evid. 801(d)(2).

For the first Nazemian factor, although the government provided the translators,

which weighs in favor of excluding the written statement, this is not dispositive of

admissibility. Aifang Ye, 808 F.3d at 401. For the second factor, Soriano “points

to no specific evidence of bias on the part of the interpreter” to establish that the

interpreter had motive to mislead or distort. Nazemian, 948 F.2d at 527; see also

Bourjaily v. United States, 483 U.S. 171, 180 (1987) (“The party opposing

admission has an adequate incentive to point out the shortcomings in such

evidence before the trial court finds the preliminary facts.”). For the third factor,

the officers interviewing Soriano “checked the accuracy of the translation by

asking the translators to have [Soriano] confirm line-by-line read-backs of what

[she] had said.” Aifang Ye, 808 F.3d at 402. To test the accuracy of the

translation, the officers also “inserted intentional inaccuracies,” all of which

4 Soriano “identified and corrected.” Id. “This indicates that the translators’ work

was accurate.” Id. Finally, because Soriano “took no action” after signing the

written statement, the fourth factor “is not relevant in this case.” See United States

v. Romo-Chavez, 681 F.3d 955, 960 (9th Cir. 2012).

3. Finally, Soriano argues that there was insufficient evidence to support

her conviction, a claim which we review de novo. United States v. Bennett, 621

F.3d 1131, 1135 (9th Cir. 2010). Even assuming the USCIS officer’s testimony

regarding reimbursements and the written statement should have been excluded

from trial, there remained ample evidence establishing Soriano’s guilt. For

example, the jury heard testimony about the “Request for Evidence” that USCIS

sent Soriano asking for proof that the beneficiaries would work for a third party,

and how Soriano responded with a purported contract with Kanoa Resort. The

purported contract was executed by Soriano and Halim Khan, and the jury heard

testimony that Khan did not have authority to enter into such contracts on behalf of

Kanoa Resort. The jury also heard testimony from the accountant who helped

Soriano submit the CW-1 petition that Soriano submitted the petition “as a favor”

to Khan. Taken together, and “viewing the evidence in the light most favorable to

the prosecution,” Jackson v. Virginia, 443 U.S. 307, 319 (1979), the jury could

have reasonably inferred from this evidence that Soriano (1) knew Khan was not

authorized to sign the purported contract, (2) knew the beneficiaries would not

5 actually work at Kanoa Resort, and (3) submitted the purported contract to defraud

USCIS.

AFFIRMED.