UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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.”
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