United States v. Hadeed

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4606

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL MITRY HADEED, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:08-cr-00461-LMB-1)

Argued: March 24, 2010 Decided: April 30, 2010

Before MICHAEL and DAVIS, Circuit Judges, and Eugene E.
SILER, Jr., Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.

Affirmed by unpublished opinion. Senior Judge Siler wrote the
opinion, in which Judge Michael and Judge Davis joined.

ARGUED: Laurin Howard Mills, LECLAIR RYAN, PC, Alexandria,
Virginia, for Appellant. Joshua L. Rogers, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
William B. Cummings, WILLIAM B. CUMMINGS, PC, Alexandria,
Virginia, for Appellant. Anthony Asuncion, Special Attorney to
the Attorney General of the United States, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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SILER, Senior Circuit Judge:

Michael Hadeed, Jr., was convicted by a jury of conspiracy

to commit immigration fraud and to defraud the United States in

violation of 18 U.S.C. § 371 and aiding and abetting a material

false statement to a United States government agency in

violation of 18 U.S.C. §§ 1001 and 2. He now appeals his

conviction on three alleged errors: (1) admission of certain

testimonial evidence; (2) insufficient evidence; and (3) jury

instructions. For the following reasons we AFFIRM.

I. FACTUAL & PROCEDURAL BACKGROUND

A. Factual Background

Hadeed is a Virginia attorney engaged in the practice of

immigration law. Antoine “Tony” Tahan, a former client of

Hadeed, owns and operates the King of Pita Bakery. Hadeed

provided general legal services to Tahan for several years.

Hadeed’s conviction was based on an agreement between himself

and Tahan, in which Tahan’s business sponsored immigrants to

work as bakers so that they could obtain legal permanent

resident status based on fraudulent information. Tahan pleaded

guilty to immigration fraud and testified on behalf of the

government.

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 1. Legal permanent resident status for a skilled worker

Obtaining a labor certification to enter the United States

and attaining lawful permanent resident status as a skilled

worker involves a four-part process. First, the employer must

allow skilled American workers the opportunity to apply for the

position. Second, if the employer cannot find an American

worker to fill the position, the employer and prospective alien

employee apply for a labor certificate by submitting Form ETA-

750 to a state employment agency and, if approved by the state,

to the United States Department of Labor. That form describes

the qualifications required for the position and the alien’s

relevant job experience or education. The alien must attach an

“experience letter,” written by a prior employer in the alien’s

home country that sets forth his place of prior employment,

position, duration of his employment, and salary. If this

letter contains false information, the request for certification

will be denied and could result in the alien’s being barred for

life from the United States.

Third, if the Department of Labor issues a labor

certification, the employer then files an Immigrant Petition for

Alien Worker, known as a Form I-140, with the former Immigration

and Naturalization Service (“INS”), now the Department of

Homeland Security (“DHS”). Form I-140 asserts that the alien

has sufficient job experience or education and meets the

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requirements for the particular position. If the I-140 is

approved, the alien then submits either a Form I-485 application

for permanent residence adjustment of status (if he is living

inside the country), or a Form DS-230 application for an

immigrant visa (if he is living outside the country). The Form

DS-230 includes a “skilled worker” section so consulate offices

can confirm that aliens coming to the United States to perform a

particular job have the requisite work experience. If the

consulate office discovers that the DS-230 is fraudulent, the

visa application is denied and the office typically recommends

revocation of the petition.

2. Evidence Presented at Trial

a. Fraudulent application of Marouf Abrid

Tahan met Marouf Abrid at an airport in Beirut, Lebanon

where Abrid worked as a bartender. Abrid came to the United

States in 1999 and Tahan introduced him to Hadeed. 1 Abrid told

Hadeed that he had been working as a bartender. Nonetheless,

Hadeed told Abrid that Tahan could file a petition for him to

become an employee at King of Pita as a skilled worker. Hadeed

told Abrid that he would need an employment letter stating that

he was a baker and that he had at least four years of

1
Tahan served as a translator during the meetings between
Abrid and Hadeed.

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experience. When Tahan showed Abrid’s letter to Hadeed, Hadeed

said it was no good because it did not state that he had four

years of experience as a baker. Tahan then drafted a second

letter for Abrid, based on what Hadeed told him should be

included. Hadeed submitted this letter with Abrid’s immigration

paperwork.

To allow skilled American workers the opportunity to fill

the position, Hadeed advertised for the position in a newspaper.

Tahan found this advertisement to be confusing, however. When

he confronted Hadeed, Hadeed told him it was not important and

that “[t]he harder it is for people to respond to [the] ad, the

better it is.”

b. Fraudulent application of Ibrahim Alakwa

In early 2000, Hadeed asked Tahan if he would be interested

in sponsoring other immigrants and told him that these

immigrants did not actually have to work at King of Pita, so

long as King of Pita was listed as their sponsor. Hadeed

indicated that if Tahan agreed to do this, Hadeed would forgive

the debt Tahan owed him for legal services. Tahan agreed.

Hadeed introduced Tahan to Ibrahim Alakwa in early 2003.

Despite Alakwa’s lack of experience in baking, Hadeed prepared

Alakwa’s immigration papers, which indicated he was an

experienced baker. Alakwa received a labor certification from

the Department of Labor. Although Tahan, Hadeed, and Alakwa did

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not intend for Alakwa to work at King of Pita, Hadeed suggested

Alakwa should go through training at King of Pita, “in case he

would be asked by the immigration officials any questions about

the company or the process of his experience.” Hadeed also told

Tahan to issue payroll checks to Alakwa, but no money was to

change hands. Alakwa would cash his payroll checks and return

the money to Tahan.

c. Fraudulent application of Juana Pagoaga

Juana Pagoaga, a Honduran employee of King of Pita,

testified that she was introduced to Hadeed’s law firm by Ana

Araos, a paralegal at the firm. Araos led a presentation on

immigration issues at King of Pita, during which she told the

attendees that they needed an experience letter. Pagoaga

obtained a letter from her mother in Honduras and gave it to

Araos. Araos showed the letter to Hadeed. Neither Hadeed nor

Araos thought the letter was sufficient, and Araos told Pagoaga

that the letter needed to say that she had experience as a

pastry cook, even though Pagoaga did not have such experience.

Pagoaga obtained a second letter, which Hadeed used to prepare

and submit her ETA-750 and I-485.

d. Fraudulent application of Jean Claude Sakr

Jean Claude Sakr, who also pleaded guilty to immigration

fraud and cooperated with the government, testified that he met

Hadeed when he was seeking assistance with an application for

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political asylum. Instead, Hadeed suggested he apply for

employment sponsorship, because it was easier and faster.

Shortly after Sakr began working at King of Pita, he showed

Hadeed two experience letters he had brought with him from

Lebanon, indicating his experience as a bartender. Hadeed told

him there were too many bartenders in America, and that he

needed a letter stating he was a baker. Sakr obtained a letter,

and Hadeed prepared Sakr’s application with it. His application

was denied, however, due to fraudulent documentation.

e. Fraudulent application of Charbel Freifer

Sakr introduced Charbel Freifer to Tahan, who then

introduced Freifer to Hadeed. 2 Although Freifer had a student

visa, Hadeed was going to help him get a work visa. Freifer

told Hadeed he had never been a baker, but Hadeed told him that

he needed a letter attesting to the fact that he had worked as a

baker. Freifer obtained such a letter, which Hadeed used in

preparing and submitting his Form ETA 750 labor certification

application and his Form DS-230 visa application. Before any

agency action was taken on the Form DS-230, Hadeed had stopped

working on Freifer’s case, and Freifer had obtained new counsel.

2
Tahan also served as a translator for Hadeed during these
meetings.

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 f. Hadeed’s statements

Vikki Ravinskas, the office manager at Hadeed’s law firm,

testified regarding two conversations she had with Hadeed. In

one instance, Ravinskas received a phone call from Araos, who

told Ravinskas that she had been arrested for immigration fraud

and asked Ravinskas to tell Hadeed. When Ravinskas told Hadeed

that information, he became very agitated and said, “It should

have been me that they were coming for. It should have been me,

not Ana.” He also said he needed to get an attorney. In

another instance, Ravinskas told Hadeed that she had learned

that Tahan was cooperating with the government. Hadeed became

frantic and said, “They’re coming for me next. I should have

known. I shouldn’t have been in this. They’re coming for me

next.”

g. Mark Mancini’s testimony

Hadeed’s theory of the case was that he was unaware of the

fraud. Instead, he relied on Tahan, who interpreted for many of

the aliens, to truthfully convey their experience. Hadeed

called one expert witness, Mark Mancini, who was qualified as an

expert in the practice of immigration law. Mancini testified as

to the standards that immigration attorneys are expected to

uphold. In particular, he explained that immigration attorneys

assisting aliens who are seeking a labor certification should

first explain the job experience requirement for that particular

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position. He also explained that it was standard practice to

provide a handwritten sample of an experience letter for the

client. He further stated that if a client brought back a

letter without all of the required information, he would tell

him it needed to be corrected. However, Mancini said that if he

knew a client was not qualified for a particular position, but

intended on pursuing the application, he would refuse to

represent him. Moreover, he would never counsel a client to

obtain an experience letter for work experience he knew the

client did not have.

Mancini also testified that because Virginia’s unemployment

level between May 2001 and April 2004 was low, there was not a

significant difference between the demand for skilled and

unskilled workers. Accordingly, the wait for approval as a

skilled worker was roughly equivalent to that of an unskilled

worker. Additionally, unskilled applicants did not need to

submit a letter establishing their work experience. He stated

that all immigration lawyers would have known that fact.

B. Procedural Background

At the close of the government’s case, the district court

granted Hadeed’s motion under Federal Rule of Criminal Procedure

29(a) to dismiss two additional counts for lack of evidence.

The district court denied Hadeed’s motion for a jury instruction

10
on multiple conspiracies, and the jury convicted Hadeed of the

remaining counts. The district court denied Hadeed’s motion for

judgment of acquittal or, in the alternative, a new trial.

Hadeed was sentenced to two years’ probation and a $2000 fine.

II. ANALYSIS

A. Statement to Ravinskas

Hadeed contends that the district court abused its

discretion in failing to exclude part of Ravinskas’s testimony.

We review the district court’s evidentiary rulings for abuse of

discretion, and “we will not vacate a conviction unless we find

that the district court judge acted arbitrarily or irrationally

in admitting evidence.” United States v. Basham, 561 F.3d 302,

325-26 (4th Cir. 2009) (internal quotation marks and citations

omitted).

Hadeed objected to the testimony by Ravinskas concerning

Hadeed’s statement when he found out that Araos was arrested.

Araos’s arrest was, in fact, connected to a separate immigration

fraud scheme, the Pillar investigation. In a pre-trial ruling,

the district court excluded as irrelevant the introduction of

any evidence related to this investigation.

Although Hadeed’s brief focused exclusively on Rule 404(b),

at oral argument he claimed that the testimony was inadmissible

under Rule 401, not 404(b). Under Rule 401, relevance “means

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evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the

evidence.” Fed. R. Evid. 401. Rule 404(b), which excludes

“[e]vidence of other crimes, wrongs, or acts” when admitted “to

prove the character of a person in order to show action in

conformity therewith,” Fed. R. Evid. 404(b), limits only the

admission of evidence of acts extrinsic to the one charged, but

does not limit the admission of evidence of intrinsic acts.

United States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996). Other

acts are intrinsic when they are “inextricably intertwined or

both acts are part of a single criminal episode or the other

acts were necessary preliminaries to the crime charged.” Id.

(internal quotation marks omitted).

The evidence indicates that Hadeed had no knowledge of the

Pillar conspiracy. 3 Ravinskas’s testimony also does not indicate

whether she specified the basis for Araos’s arrest. Because

Hadeed did not know about the Pillar investigation when

Ravinskas told him that Araos had been arrested for immigration

fraud, he appears to have assumed her arrest was based on either

3
At oral argument, counsel for Hadeed stated that when
Hadeed made this statement, he knew that Araos had been arrested
pursuant to the Pillar investigation. However, he never
indicated that fact in his briefs.

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the King of Pita scheme or some other general immigration fraud

scheme. Either way, his response, “It should have been me, not

Ana,” demonstrated a consciousness of guilt for acts that were

inextricably intertwined to the King of Pita scandal. In

addition, the statement corroborated a similar subsequent

statement he made to Ravinskas upon learning that Tahan was

cooperating with the government. Accordingly, the statement was

relevant and intrinsic to the charge at issue. 4

B. Materiality of False Statement

Under 18 U.S.C. § 1001 it is unlawful to knowingly and

willfully make a material false statement to any government

agency. Hadeed was charged with aiding and abetting Freifer in

submitting Form DS-230 to the Department of State, which

contained the false statement that Freifer had been employed as

4
Moreover, any error was harmless. “Where error is founded
on a violation of Rule 404(b), the test for harmlessness is
‘whether we can say with fair assurance, after pondering all
that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the
error.’” United States v. Madden, 38 F.3d 747, 753 (4th Cir.
1994) (quoting United States v. Nyman, 649 F.2d 208, 211-12 (4th
Cir. 1980)). In light of Hadeed’s second statement to
Ravinskas, the verdict was not substantially swayed by any error
in admitting his first statement. The jury heard evidence that
Hadeed’s second statement was made in direct response to his
discovery of the underlying investigation at issue in this case,
and this statement was more heavily relied upon by the
government. There was also ample additional testimonial
evidence against Hadeed.

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a baker by the Al Najah Bakery in Lebanon from 1997 to 2001.

Hadeed argues that his motion for judgment of acquittal should

have been granted as to this count, because the false statement

at issue was not material as a matter of law. We review a

district court’s denial of a motion for judgment of acquittal de

novo, viewing the evidence in the light most favorable to the

government. United States v. Midgett, 488 F.3d 288, 297 (4th

Cir. 2007).

A statement “is material if it has a natural tendency to

influence, or was capable of influencing, the decision of the

body to which it was addressed.” Kungys v. United States, 485

U.S. 759, 770 (1988) (internal quotation marks omitted); see

also United States v. Benkahla, 530 F.3d 300, 310 (4th Cir.

2008). In an immigration context, evidence of materiality must

be “sufficient to raise a fair inference that a statutory

disqualifying fact actually existed.” Kungys, 485 U.S. at 783

(Brennan, J., concurring); see also United States v. Puerta, 982

F.2d 1297, 1304 (9th Cir. 2002); United States v. Agunbiade,

1999 WL 26937 at *3 (4th Cir. Jan. 25, 1999) (unpublished table)

(concluding that appellant’s failure to disclose his prior

deportation and arrest “could have influenced the INS’[s]

decision with regard to his naturalization application,” and was

therefore material).

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 Viewing the evidence in the light most favorable to the

government, there was sufficient evidence to demonstrate the

materiality of the statement at issue. For example, Cathleen

Carothers, an employee of the Department of State, in the Bureau

of Consular Affairs, which offers legal advisory opinions on

visa issues, testified that “[i]f fraud was found [in the Form

DS-230], . . . and it . . . qualified for an ineligibility, then

the consular officer would find the applicant ineligible for the

visa and would typically return the petition to DHS with a

recommendation of revocation.”

Hadeed argues that because the circumstances in Virginia

would have allowed Friefer to qualify for a visa as an unskilled

worker, a fact that was supported by expert testimony, the

statement was not material. However, even if Freifer could have

qualified for an employment-based visa without work experience,

the particular type of visa he sought required relevant work

experience. As Carothers testified, consulate offices “rely

very heavily” on the portion of the Form DS-230 that addresses

previous employment in deciding how to process a skilled worker

immigrant visa.

This case is distinguishable from Forbes v. INS, 48 F.3d

439, 443 (9th Cir. 1995) (holding that Forbes’s failure to

disclose his prior arrest on his visa application was not

material, because the charges were eventually dropped and would

15
not have impacted the visa determination); and La Madrid-Peraza

v. INS, 492 F.2d 1297 (9th Cir. 1974) (concluding that the

petitioner’s overstatement of the wages she was to receive from

her prospective job was not a material misrepresentation,

because the overstatement would not have justified a refusal to

issue a visa given that there was no evidence that her wage was

below the prevailing wage for similar jobs in her area (citing

Chaunt v. United States, 364 U.S. 350 (1960)). In the case at

hand, Freifer’s misrepresentations regarding his prior

employment history would have impacted his visa determination,

because he was applying for a skilled worker visa. As Carothers

testified, an applicant’s prior employment as listed on the Form

DS-230 is directly relevant to the issuance of such a visa.

Thus, the misstatement is the kind that would “[have] a natural

tendency to influence, or [be] capable of influencing, the

decision of the body to which it was addressed.” Kungys, 485

U.S. at 770.

C. Conspiracy Instruction

We review a district court’s jury instructions for an abuse

of discretion. United States v. Jeffers, 570 F.3d 557, 566 (4th

Cir. 2009). In reviewing jury instructions, “we will not

reverse a conviction so long as the instructions, taken as a

whole, adequately state the controlling legal principles.” Id.

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at 566-67 (citing United States v. Bolden, 325 F.3d 471, 486

(4th Cir. 2003)). Hadeed argues that although the indictment

charged a single conspiracy, the government’s proof demonstrated

multiple conspiracies and the district court’s refusal to

instruct the jury on multiple conspiracies created a prejudicial

variance.

“[A] defendant may establish the existence of a material

variance by showing that the indictment alleged a single

conspiracy but that the government’s proof at trial established

the existence of multiple, separate conspiracies.” United

States v. Kennedy, 32 F. 3d 876, 883 (4th Cir. 1994). We will

only find error in a conspiracy instruction “if the proof of

multiple conspiracies was likely to have confused the jury into

imputing guilt to the defendant as a member of one conspiracy

because of the illegal activity of members of the other

conspiracy.” Jeffers, 570 at 567 (citation, alteration, and

internal quotation marks omitted). “A single conspiracy exists

when ‘[t]he conspiracy had the same objective, it had the same

goal, the same nature, the same geographic spread, and the same

product.’” United States v. Johnson, 54 F.3d 1150, 1154 (4th

Cir. 1995) (quoting United States v. Crockett, 813 F.2d 1310,

1317 (4th Cir. 1987)).

The government’s theory of conspiracy was that Hadeed and

Tahan formed the hub of a single conspiracy and the five aliens

17
were the co-conspirators. Relying on Kotteakos v. United

States, 328 U.S. 750 (1946) (holding there was no proof of a

single conspiracy where there was one key figure and no

connection between the co-conspirators, because “the pattern was

‘that of separate spokes meeting at a common center,’ though we

may add without the rim of the wheel to enclose the spokes”);

and United States v. Chandler, 388 F.3d 796 (11th Cir. 2004)

(applying Kotteakos and concluding the evidence did not prove a

single conspiracy, because “[u]nlike the classic hub-and-spoke

conspiracy, . . . [the defendant] was the only conspirator in

the hub, and when he moved from spoke to spoke, he moved

alone”), Hadeed contends that the government needed proof that

each of the individual aliens had to be involved in some

concerted action in furtherance of the conspiracy. What Hadeed

overlooks, however, is that this is not a conspiracy with a

single-man hub forming agreements with five individual co-

conspirators. Instead, the evidence produced at trial

demonstrated a single agreement between Tahan and Hadeed, which

formed the hub, and separate agreements with the five co-

conspirators. Accordingly, this case is distinguishable from

Kotteakos and Chandler, in which the only agreements at issue

were the individual agreements with the “spokes.” Accordingly,

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the agreement between Tahan and Hadeed constituted a single

conspiracy and was not a variance from the indictment.

AFFIRMED

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