[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________________ FILED
U.S. COURT OF APPEALS
No. 04-15172 ELEVENTH CIRCUIT
February 15, 2006
_______________________________
THOMAS K. KAHN
CLERK
D.C. Docket No. 03-21000-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
VIVIAN CIARROCHI,
Defendant-Appellant.
_______________________________
Appeal from the United States District Court for the
Southern District of Florida
________________________________
(February 15, 2006)
Before EDMONDSON, Chief Judge, BARKETT, Circuit Judge, and HUNT*,
District Judge.
*
Honorable Willis B. Hunt, Jr., United States Senior District Judge for the Northern
District of Georgia, sitting by designation.
PER CURIAM:
Vivian Ciarrochi appeals her convictions for conspiring to possess, obtain
and transfer, through fraud and other means, “Employment Authorization
Documents”1 (“EAD cards”) issued by the Immigration and Naturalization Service
(“INS”) in violation of 18 U.S.C. § 371, and for knowingly possessing, obtaining
and transferring EAD cards in violation of 18 U.S.C. §§ 1546(a) and 1028(a)(2)
and 2.
On appeal, Ciarrochi argues that the evidence produced at trial is
insufficient to sustain her conviction for conspiracy and immigration fraud and
that the district court abused its discretion by denying her motion for new trial.
Specifically, Ciarrochi submits that she is entitled to a new trial because the
government deliberately deported witnesses that she contends would have
provided exculpatory evidence and that certain evidence was improperly admitted
at trial. We consider each argument in turn.
1
An EAD card is a work permit, authorizing an alien to obtain employment legally in the
United States. EAD cards contain identifying information, such as the holder’s photograph,
fingerprint, name, date of birth and Alien Number and may be used to obtain other forms of
identification, including a Social Security card and driver’s license. 8 U.S.C. § 1324a(b)(1)(B).
Individuals legally present in the United States and in the process of becoming a legal resident
are eligible for EAD cards, while those illegally in the U.S are not. 8 C.F.R. § 274a.12.
2
Sufficiency of the Evidence
Sufficiency of the evidence is an issue that we review de novo to determine
whether “a reasonable jury, viewing the evidence and all reasonable inferences
therefrom in the light most favorable to the government could find the defendant[]
guilty as charged beyond a reasonable doubt.” United States v. Williams, 339
F.3d 1295, 1299 (11th Cir. 1993)(internal quotations omitted). Applying this
standard to the circumstances of this case, we find the evidence presented at trial
more than sufficient to support Ciarrochi’s convictions.
First, an agent from the Bureau of Immigration and Customs Enforcement
(“ICE”) testified that Ciarrochi, after becoming a target of the investigation
through interviews of illegal aliens in possession of fraudulent EAD cards,
cooperated at first with the investigation and arrest of her co-conspirators, Miguel
Raggio, the middleman who took the aliens to the INS, and Isidro Guerrero, the
INS employee who issued the fraudulent EAD cards. Her assistance included
making controlled calls to Raggio, informing him that she had a group of people
who wanted to purchase false EAD cards from Guerrero at the INS. Later, the
agent witnessed Ciarrochi meet with Raggio and provide him with cash and the
personal information of the purchasers. After collecting and turning over the
money and information to Raggio, Ciarrochi would then instruct the alien
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customers where to meet Raggio so they could be taken to the INS office to obtain
the fraudulent EAD cards from Guerrero.
Ciarrochi also provided ICE agents with a detailed list of over seventy
aliens whom she personally recruited and arranged for the purchase of false EAD
cards.2 This list turned out to be inaccurate, however, because Ciarrochi later
admitted that she actually handled over two hundred aliens.
In addition to the agent’s testimony, Raggio testified against Ciarrochi at
trial, identifying her as a key participant in the scheme. After admitting to his role
as the middleman who escorted the customers to the INS where Guerrero provided
the EAD cards, Raggio identified Ciarrochi as the person who “collected” the
people for the scheme, coordinated the process out of her home, informed
purchasers of and collected the high fees in cash, handed out the necessary forms,
accepted and later returned customer’s passports with fraudulent entry stamps, and
eventually instructed customers where to meet either Raggio or herself in order to
receive the false EAD cards. He further testified that Ciarrochi always received a
share of the proceeds for her participation and typically identified herself to
2
Part of the scheme required aliens to relinquish their passports to Ciarrochi or Raggio in
order to receive a fraudulent entry stamp on their passports. An entry stamp verifies an alien’s
date of entry into the United States and that stamp can only be issued by a law enforcement
officer. Ciarrochi’s passport also contained a fraudulent entry stamp.
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customers as Raggio’s secretary.
Finally, several alien witnesses who purchased fraudulent EAD cards
testified about Ciarrochi’s role in the scheme. All of these witnesses met with
Ciarrochi in her home and testified that she quoted the cost of the service,
accepted their cash payments, coordinated the meeting place where the customers
would then receive the false EAD cards, filled out immigration forms and
applications, and returned entry forms and passports back to customers bearing a
fraudulent entry stamp. One witness testified that upon receiving her payment for
the EAD card, Ciarrochi stated that this money was for the doctor, referring to
Ciarrochi’s pregnancy.
In light of this overwhelming evidence against her, we find Ciarrochi’s
sufficiency of the evidence claim without merit.
Motion for New Trial
Ciarrochi argues that she should have been granted a new trial because
neither the testimony of rebuttal witness, Guette Gilles, nor her passport or the list
of immigrants that she compiled for the INS should have been admitted at trial.
She also contends that the government improperly deported certain witnesses who
would have testified in her favor, thereby entitling her to a new trial.
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We review the denial of a motion for a new trial for abuse of discretion.
United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002). Evidentiary
and other non-constitutional errors, however, are not grounds for reversal absent a
reasonable likelihood that the defendant’s substantial rights were affected. United
States v. Range, 94 F.3d 614, 620 (11th Cir. 1996). Where an error had no
substantial influence on the outcome, and sufficient evidence unaffected by error
supports the verdict, a new trial is not warranted. United States v. Hawkins, 905
F.2d 1489, 1493 (11th Cir. 1990). The admission of testimony not objected to at
trial is reviewed only for plain error. United States v. Williford, 764 F.2d 1493,
1502 (11th Cir. 1985).
Guette Gilles, an INS examiner called by the Government as a rebuttal
witness, testified about INS procedures concerning permanent residency
applications during the time that Ciarrochi first entered the United States in 1990.
Ciarrochi submits it was error to admit this testimony because Gilles did not
become an examiner until one month after Ciarrochi arrived. However, in
response to this objection, the district court instructed the jury that Gilles did not
have personal knowledge of Ciarrochi’s case and was only testifying about INS
procedures during late 1990. Having reviewed the record and considered both the
context of the testimony and the district court’s limiting instruction, we find no
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reversible error.
Likewise, after a plain error review, we find no reversible error in the
admission of Ciarrochi’s passport and list of alien recruits. Ciarrochi argues that
these documents are inadmissible pursuant to her letter of immunity provided by
the government during her interview with INS agents. However, that letter of
immunity was conditioned upon Ciarrochi providing truthful information and it is
undisputed that she lied about the number of aliens she recruited to purchase
fraudulent EAD cards. Consequently, the admission of this evidence did not
violate the immunity letter.
Finally, we find no merit in Ciarrochi’s contention that the Government
maliciously deported witnesses who would have provided exculpatory evidence.
According to her, these witnesses would have testified that Raggio charged
$6,500.00 per false EAD card, which would prove that Ciarrochi did not earn any
money from these transactions. This fact, argues Ciarrochi, establishes that she
did not have knowledge of the illegal scheme. We find, however, that such
testimony would be cumulative as at least three other witnesses testified that
Raggio charged $6,500.00 for their EAD cards.
AFFIRMED
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