Professional Documents
Culture Documents
Before
Howard, Circuit Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.
of
conspiracy
to
defraud
the
United
States
for
United States citizen, and that her spouse (identified only by his
initials, FN) was a citizen of Kenya who had entered the United
States legally, but whose authorization to remain was set to
expire. The indictment alleged that, "[f]rom on or about March 29,
2005, and continuing until a date unknown but at least June 22,
2007, . . . Stewart knowingly and willfully conspired and agreed,
with
others
both
known
and
unknown
to
the
Grand
Jury,
to
-2-
provided;
Massachusetts
Conditions
on
and
and
(4)
on
signed
Residence,
June
a
on
Form
22,
I-751,
FN's
-3-
2007,
she
traveled
Petition
behalf,
which
to
to
Remove
form
was
FN
lawful
conditional
basis.1
permanent
Thus,
resident
she
("LPR")
insisted,
the
status
Form
on
I-751
a
was
We summarize those
time at the City Hall in Auburn, Maine, where the two applied for
and obtained a marriage license. They were married later that day,
with Stewart and FN both signing the marriage license and listing
as their residence an address where neither had ever lived.
Stewart understood that the purpose of the marriage was to allow FN
to stay in the United States and that she would be paid for her
participation.
In
June, FN gave Stewart a money order for $1,500, which she used to
secure an apartment in Lewiston, Maine.
apartment,
and
in
fact
lived
in
Stewart
once,
she went to what she understood to be FN's apartment, where the two
posed for photographs; another time, she obtained a Massachusetts
identification
card,
listing
as
her
residence
Lowell,
Massachusetts, address where she had never lived; yet another time,
she and FN opened a joint bank account.
In
Stewart gave FN
-5-
acting
on
his
behalf
used
to
generate
what
purported
to
be
at
the
Boston
office
of
USCIS,
where
they
both
signed and filed joint tax returns for 2005 and 2006, respectively,
listing themselves as spouses and listing Stewart's daughter as a
dependent.
-6-
In post-trial
the
conspiratorial
objective
was
with
FN's
Analysis
-7-
Where, as
U.S. 391, 39697 (1957); see also Fiswick v. United States, 329
U.S. 211, 216 (1946) (limitations period begins running as of the
date of the last overt act in furtherance of the conspiracy's
objects); United States v. Ferris, 807 F.2d 269, 272 (1st Cir.
1986)
(government
bears
the
burden
of
establishing
-8-
that
the
Thus, "the
plain,
concise,
and
definite
written
statement
of
the
Fed. R. Crim.
2006, is the critical date after which the indictment must have
alleged the commission of at least one overt act in furtherance of
-9-
the conspiracy.2
indictment did so: it alleged that, "[o]n June 22, 2007, [Stewart]
traveled from Maine to Massachusetts and signed the Form I-751,
Petition to Remove Conditions of Residency, on FN's behalf.
This
appeal,
Stewart
revives
her
argument
that
the
was
achieved
on
October
7,
2005,
when
FN
attained
conditional LPR status, and any subsequent acts could not have been
in furtherance of an already-completed conspiracy. However, at the
motion-to-dismiss stage, the allegations are taken as true, leaving
for
the
jury
conspiratorial
the
questions
agreement,
of
the
actual
whether
the
acts
scope
alleged
of
the
actually
Here, whether
See United States v. Hoffecker, 530 F.3d 137, 157 (3d Cir.
2008) (an indictment is "found" within the meaning of 3282(a)
when it has been returned by the grand jury and filed); United
States v. Srulowitz, 819 F.2d 37, 40 (2d Cir. 1987) (same).
-10-
To the extent that Stewart raises a separate sufficiencyof-the-evidence argument (and it is not clear from her briefing
that she does), we reject that argument as well.
United States v.
accepted
the
government's
contention
that
the
not
otherwise
indictment.
have
been
entitled"
contemplated
by
the
We will assume, in light of the unusual proceedings below -a bench trial solely on a stipulated record -- that Stewart
preserved this issue by arguing in her post-trial brief that the
statute of limitations barred her conviction.
Treating this
request as the functional equivalent of a motion for acquittal, we
review her sufficiency claim de novo. See Dellosantos, 649 F.3d at
115.
-11-
is adjusted.
F.3d 216, 229 n.11 (3d Cir. 2010). Section 1186a provides that "an
alien spouse . . . shall be considered, at the time of obtaining
the status of an alien lawfully admitted for permanent residence,
to have obtained such status on a conditional basis subject to the
provisions of this section."
8 U.S.C. 1186a(a)(1).
In order to
remove the conditional basis, the couple must, within the ninetyday
period
before
the
second
anniversary
of
the
grant
of
the
marriage
procuring
an
"was
alien's
not
entered
admission
as
into
an
for
(d)(3).
purpose
immigrant."
the
of
Id.
Id. 1186a(c)(1)(B),
-12-
only
to
conditional
conditional
LPR
LPR
status
status.
is
surely
However,
a
change
while
in
receipt
status,
of
the
584 F.2d 562, 569 (1st Cir. 1978) (sham marriage arranger's act of
obtaining divorce terminating sham marriage was overt act in
furtherance of "entire plan to obtain resident alien status" for
immigrant-spouse).
-14-
Here,
the prosecution's theory was not similarly limited, and the Roshko
cases thus say nothing about whether an I-751 petition furthers the
objective of obtaining a change in immigration status.
Finally, Stewart argues that, even if signing the I-751
was
an
overt
act
in
furtherance
of
the
conspiracy,
she
appeal."
(citation
and
(alteration in original).
internal
quotation
marks
omitted))
The stipulation states simply that the form was withdrawn; it does
not state when or by whom.
authorities
or
informing
his
coconspirators
that
he
has
735 F.3d 32, 57 (1st Cir. 2013) (citation and internal quotation
marks
omitted).
Finally,
even
if
Stewart
did
abandon
the
conspiracy in 2011, that would mean only that she would not be
liable for post-abandonment conduct of her co-conspirators.
See
United States v. Guevara, 706 F.3d 38, 4546 (1st Cir. 2013).
Withdrawal within the statute of limitations period does not shield
a conspirator from liability for pre-withdrawal acts.
n.8.
Thus,
Stewart's
purported
withdrawal
Id. at 46 &
offers
her
no
protection.
III.
For
the
foregoing
Conclusion
reasons,
conviction.
-16-
we
affirm
Stewart's