United States v. Stewart

United States Court of Appeals
For the First Circuit

No. 12-2395

UNITED STATES OF AMERICA,

Appellee,

v.

BETH A. STEWART,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, U.S. District Judge]

Before

Howard, Circuit Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.

Lawrence Gatei, with whom Immigration & Business Law Group,
LLP was on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

February 26, 2014

*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 STAHL, Circuit Judge. Following a bench trial on a

record of stipulated facts, Defendant-Appellant Beth A. Stewart was

convicted of conspiracy to defraud the United States for

participating in a sham marriage to secure a change in immigration

status for her spouse. She appeals, arguing that the prosecution

was time-barred because she committed no overt act in furtherance

of the conspiracy within the five-year period before the return of

the indictment. We disagree, and affirm.

I. Facts & Background

On September 22, 2011, a grand jury returned a one-count

indictment charging Stewart with conspiracy to defraud the United

States, in violation of 18 U.S.C. § 371. The indictment was filed

the following day. The indictment charged that Stewart was a

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

participate in a sham marriage for the purpose of defrauding the

United States." According to the indictment, the conspiracy had

two objects: (1) for Stewart to "profit financially by accepting

payments from co-conspirators, including [FN], in exchange for

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participating in a sham marriage and helping [FN] obtain a change

of his immigration status"; and (2) for FN to "acquire a change of

United States immigration status to which he would not otherwise

have been entitled by falsely representing to agencies of the

United States Government that the marriage into which [FN] had

entered was bona fide when in fact it was not."

Finally, the indictment alleged that Stewart committed

the following overt acts in furtherance of the conspiracy: (1) she

entered into a sham marriage with FN on March 29, 2005, knowing

that "the sole purpose of the wedding was to permit FN to apply for

a change in immigration status to which he would not otherwise have

been entitled"; (2) between the wedding date and October 27, 2005,

she traveled to Massachusetts and obtained various documents to

make it appear that she and FN were living together when in fact

they were not, understanding that these documents would be filed in

support of FN's petition to have his immigration status changed;

(3) on October 7, 2005, she and FN attended an interview at the

Boston offices of the U.S. Citizenship and Immigration Service

("USCIS") in support of that petition, with FN being granted

conditional residency on that date based upon the information they

had provided; and (4) on June 22, 2007, she traveled to

Massachusetts and signed a Form I-751, Petition to Remove

Conditions on Residence, on FN's behalf, which form was

subsequently filed with USCIS.

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 Stewart filed a motion to dismiss the indictment as

time-barred, arguing that the signing and filing of the Form I-751

-- the only overt act alleged within the five-year statute of

limitations period, see 18 U.S.C. § 3282 -- was not done in

furtherance of the conspiracy. She contended that the object of

the conspiracy had been achieved on October 7, 2005, when USCIS

granted FN lawful permanent resident ("LPR") status on a

conditional basis.1 Thus, she insisted, the Form I-751 was

irrelevant to the conspiratorial objectives. The government argued

that FN's receipt of conditional LPR status was simply the first

step toward unconditional legal permanent residence and eventually

citizenship, and the filing of the Form I-751 was a further step in

that process. The district court denied Stewart's motion, holding

that the indictment was facially sufficient to put her on notice of

the elements of the crime and the nature of the charge, and that it

was not for the court to inquire whether the evidence would

ultimately be sufficient to support that charge.

The matter then proceeded to a bench trial on a record of

stipulated facts and associated exhibits. We summarize those

stipulations here. FN was a Kenyan national who entered the United

States in 2001 on a visa that was set to expire in September of

2006. Through various third parties, Stewart learned that a

1
Under 8 U.S.C. § 1186a(a) and (h)(1), an alien spouse who is
granted LPR status within two years of the qualifying marriage is
considered to have obtained that status on a conditional basis.

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marriage arranger was looking for someone to marry a foreign

national in return for $4,000. She agreed to participate in the

sham marriage. On March 29, 2005, Stewart met FN for the first

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. After the ceremony, Stewart was paid $1,000. In

June, FN gave Stewart a money order for $1,500, which she used to

secure an apartment in Lewiston, Maine. FN never resided in that

apartment, and in fact lived in Massachusetts. Stewart

occasionally traveled to Massachusetts after the marriage: 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 a Lowell,

Massachusetts, address where she had never lived; yet another time,

she and FN opened a joint bank account. In May, FN (or someone

acting on his behalf) signed Stewart's name to several USCIS forms,

seeking to have FN's immigration status changed on the basis of the

marriage. FN also signed a Form I-485 seeking the same relief. In

August, FN gave Stewart an additional $1,500. Stewart gave FN

copies of her I.R.S. W-2 forms for 2002–2004, which FN or someone

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acting on his behalf used to generate what purported to be

Stewart's tax returns for those years. The marriage certificate,

photographs, Massachusetts identification card, and tax returns, as

well as copies of checks drawn on their joint account, were all

submitted to USCIS along with their joint petitions. On October 7,

2005, Stewart and FN attended an interview in support of the

petitions at the Boston office of USCIS, where they both

intentionally created the impression that they entered into their

marriage in good faith, lived together, and intended to establish

a life together. Based on the written and verbal information they

provided, USCIS granted their petitions and granted FN conditional

residency. In February of 2006 and March of 2007, Stewart and FN

signed and filed joint tax returns for 2005 and 2006, respectively,

listing themselves as spouses and listing Stewart's daughter as a

dependent. In June of 2006, Stewart signed a residential lease

extension indicating that she and FN continued to live together in

Lowell, Massachusetts; in April of 2007, she signed a lease

indicating that she and FN had rented an apartment in Dracut,

Massachusetts. On June 22, 2007, Stewart and FN signed USCIS Form

I-751, seeking to have the conditions on FN's residency lifted.

They submitted their 2005 and 2006 tax returns and the leases in

support of their application. At some point, the I-751 petition

was withdrawn. In addition to the agreed-upon $4,000, FN provided

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Stewart $100 per month through at least November 2009 to help

support Stewart and her daughter.

Neither party sought to introduce additional evidence

aside from the stipulated facts and exhibits. In post-trial

briefing, Stewart argued that the government had failed to prove

beyond a reasonable doubt that the object of the conspiracy

consisted of anything beyond procuring the 2005 change in residency

status and the payment of $4,000 to Stewart. She contended that,

because the conspiratorial objective was achieved with FN's

attainment of conditional LPR status, the filing of Form I-751 was

not in furtherance of the conspiracy. Because, the argument

continued, FN was granted conditional LPR status nearly six years

before the grand jury returned the indictment, the government had

not met its burden of proving that she had committed any overt act

within the five-year limitations period. The district court

disagreed, and found her guilty as charged in the indictment. This

appeal followed.

II. Analysis

The central question raised in this appeal is whether the

district court correctly found that the filing of Form I-751 was an

overt act committed in furtherance of the objects of the conspiracy

as alleged in the indictment. Stewart argues that the district

court erred in denying her motion to dismiss on limitations

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grounds, a ruling we review de novo, see United States v. Bucci,

582 F.3d 108, 115 (1st Cir. 2009).

The conspiracy statute under which Stewart was charged

provides that:

If two or more persons conspire either to commit any
offense against the United States, or to defraud the
United States, or any agency thereof in any manner or for
any purpose, and one or more of such persons do any act
to effect the object of the conspiracy, each shall be
fined under this title or imprisoned not more than five
years, or both.

18 U.S.C. § 371. Because § 371 does not include a statute of

limitations, the general five-year statute of limitations applies.

See id. § 3282(a) ("Except as otherwise expressly provided by law,

no person shall be prosecuted, tried, or punished for any offense,

not capital, unless the indictment is found . . . within five years

next after such offense shall have been committed."). Where, as

here, a conspiracy charge requires proof of an overt act, the

government must show that the conspiracy still existed, and that at

least one overt act in furtherance of the conspiracy was committed,

during the limitations period. Grunewald v. United States, 353

U.S. 391, 396–97 (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 that the

indictment was issued within the limitations period). Thus, "the

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crucial question in determining whether the statute of limitations

has run is the scope of the conspiratorial agreement, for it is

that which determines both the duration of the conspiracy, and

whether the act relied on as an overt act may properly be regarded

as in furtherance of the conspiracy." Grunewald, 353 U.S. at 397.

At the indictment stage, the government need not "show,"

but merely must allege, the required elements. An indictment "must

be a plain, concise, and definite written statement of the

essential facts constituting the offense charged." Fed. R. Crim.

P. 7(c)(1). "[A]n indictment is sufficient if it specifies the

elements of the offense charged, fairly apprises the defendant of

the charge against which he must defend, and allows him to contest

it without fear of double jeopardy." United States v. Eirby, 262

F.3d 31, 37–38 (1st Cir. 2001). The indictment's allegations are

assumed to be true, and "courts routinely rebuff efforts to use a

motion to dismiss as a way to test the sufficiency of the evidence

behind an indictment's allegations." United States v. Guerrier,

669 F.3d 1, 3–4 (1st Cir. 2011).

The indictment here was returned on September 22, 2011,

and filed the next day. Thus, we will assume that September 23,

2006, is the critical date after which the indictment must have

alleged the commission of at least one overt act in furtherance of

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the conspiracy.2 The district court correctly held that the

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

form was thereafter filed with [USCIS]."

On appeal, Stewart revives her argument that the

indictment should have been dismissed because the conspiratorial

object 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 the questions of the actual scope of the

conspiratorial agreement, whether the acts alleged actually

occurred, and, if so, whether they furthered the conspiracy's

objectives. See United States v. Upton, 559 F.3d 3, 11 (1st Cir.

2009) ("Determining the contours of the conspiracy ordinarily is a

factual matter entrusted largely to the jury."). Here, whether

Stewart's agreement encompassed the removal of the conditions on

FN's LPR status was not appropriate for resolution at the motion-

to-dismiss stage.

2
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).

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 To the extent that Stewart raises a separate sufficiency-

of-the-evidence argument (and it is not clear from her briefing

that she does), we reject that argument as well. "We review the

evidence and all the reasonable inferences that arise therefrom in

the light most favorable to the verdict." United States v.

Dellosantos, 649 F.3d 109, 111 (1st Cir. 2011).3

After reviewing the parties' stipulations and post-trial

memoranda, the district court found Stewart "guilty as charged as

set forth in the indictment." The district court, by necessary

implication, accepted the government's contention that the

conspiracy's objectives were not achieved when FN first received

conditional LPR status. Stewart argues that conditional LPR status

is the "change of United States immigration status to which [FN]

would not otherwise have been entitled" contemplated by the

indictment. Thus, she claims, removal of conditions would not

effect a "change in status," and seeking such removal could not be

in furtherance of the conspiracy. In support of this argument,

Stewart cites inapplicable statutes and distinguishable caselaw.

First, she points to 8 U.S.C. § 1255(b), which, she

contends, is the law that governs the time when a person's status

3
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.

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is adjusted. However, § 1255(d) states that aliens, like FN, who

were granted conditional LPR status on the basis of marriage under

8 U.S.C. § 1186a may not be granted unconditional LPR status under

§ 1255's general LPR program. See Gallimore v. Attorney Gen., 619

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 ninety-

day period before the second anniversary of the grant of

conditional LPR status, file a joint petition averring, inter alia,

that the marriage "was not entered into for the purpose of

procuring an alien's admission as an immigrant." Id.

§ 1186a(c)(1)(A), (d)(1)(A)(i)(III), (d)(2)(A). They must also

appear for a personal interview with USCIS. Id. § 1186a(c)(1)(B),

(d)(3). If the couple fails to comply with these requirements, or

if USCIS makes an adverse determination on the petition, the

alien's permanent resident status is terminated and he is subject

to removal. Id. §§ 1186a(c)(2)(A), (3)(C), 1227(a)(1)(D)(i). This

petition -- Form I-751 -- was a necessary step in achieving the

conspiratorial objective of helping FN acquire an immigration

status to which he would not otherwise have been entitled. Stewart

would have the court narrowly define "immigration status" to refer

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only to conditional LPR status. However, while receipt of

conditional LPR status is surely a change in status, the

immigration process involves multiple changes in status up through,

ultimately, naturalization and citizenship.4 The term "immigration

status," as used in the indictment, is broad enough to encompass

steps taken subsequent to receipt of conditional LPR status,

including removal of that conditional basis.5

4
Aside from the removal-of-conditions process, "the rights,
privileges, responsibilities and duties which apply to all other
lawful permanent residents apply equally to conditional permanent
residents," 8 C.F.R. § 216.1, but that does not mean that removal
of conditions is not a change in status or, at minimum, a step
toward a subsequent change in status.
5
At oral argument, Stewart raised, for the first time, an
argument based on the fact that § 1186a allows, in certain
circumstances, waiver of the joint petition and interview. See 8
U.S.C. § 1186a(c)(4); see also, e.g., Kinisu v. Holder, 721 F.3d
29, 31–32 (1st Cir. 2013) (describing statutory framework). On
this basis, she claims that the marriage was not essential to the
removal of conditions and thus signing the I-751 was beyond the
scope of the conspiracy. Even if this argument were properly
before us, it is unpersuasive: just because a conspiratorial
objective could have been achieved via different means does not
suggest that the means selected were not in furtherance of the
conspiracy.

Also at oral argument, Stewart cited United States v. Rojas,
718 F.3d 1317 (11th Cir. 2013) (per curiam), for the proposition
that the offense was complete at the time the marriage occurred.
Rojas is inapt; the offense charged there was marriage fraud, not
conspiracy. See id. at 1319. The relevant statutory language,
making it an offense to "knowingly enter[] into a marriage for the
purpose of evading any provision of the immigration laws," 8 U.S.C.
§ 1325(c), necessarily means that the crime is complete upon
"enter[ing]" the marriage and "cannot plausibly be read to require
that a defendant take the additional step of filing for immigration
benefits in order for the crime to be complete," Rojas, 718 F.3d at
1320.

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 Stewart urges this court to follow the Second Circuit's

decisions in United States v. Roshko (Roshko I), 969 F.2d 1 (2d

Cir. 1992), and United States v. Roshko (Roshko II), 969 F.2d 9 (2d

Cir. 1992). There, Meir Roshko entered into a sham marriage with

a U.S. citizen, received his green card, terminated his sham

marriage, and married Irene Roshko with the intent of using his new

status as the basis for adjusting Irene's status. Roshko II, 969

F.2d at 10. The court held that the conspiracy prosecution was

time-barred because only the divorce and remarriage occurred within

the limitations period; the conspiracy's objective, as alleged in

the indictment, was limited to changing Meir's immigration status.

Id. at 11; Roshko I, 969 F.2d at 5–6. Therefore, while the

termination of Meir's sham marriage and marriage to Irene may have

been in furtherance of changing Irene's status, these acts could

not be said to have been in furtherance of the conspiracy alleged.

Roshko II, 969 F.2d at 11. But see United States v. Ramos Algarin,

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). Although Roshko II held that the conspiracy

terminated with Meir Roshko's receipt of his green card, the

prosecution proceeded on a theory that the conspiratorial object

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was his receipt of a green card.6 Roshko I, 969 F.2d at 2. 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

affirmatively withdrew the form in September of 2011, and thus

abandoned the conspiracy. There are several problems with this

argument. First, it was not raised before the district court and

thus is not properly before us. See United States v. Nee, 261 F.3d

79, 86 (1st Cir. 2001) ("It is a cardinal principle that [i]ssues

not squarely raised in the district court will not be entertained

on appeal." (citation and internal quotation marks omitted))

(alteration in original). Second, it lacks evidentiary support.

The stipulation states simply that the form was withdrawn; it does

not state when or by whom. Third, mere withdrawal of the I-751 is

insufficient to constitute abandonment of the conspiracy, which

6
Moreover, Roshko's receipt of his green card in 1984
preceded the passage of the Immigration Marriage Fraud Amendments
of 1986, Pub. L. 99-639, 100 Stat. 3537, which, among other things,
introduced the two-year conditional basis now attached to LPR
status obtained via marriage under § 1186a. See Gallimore, 619
F.3d at 222. "The purpose of this scheme is obvious: to ferret out
sham marriages entered into for the purpose of obtaining entry into
the United States." Id. Before the Amendments, a non-citizen
spouse automatically received unconditional LPR status upon
marrying a citizen. See Carpio v. Holder, 592 F.3d 1091, 1094
(10th Cir. 2010). Thus, when Roshko received his green card, the
conspiratorial objective of receiving his green card was quite
obviously achieved.

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requires that the conspirator "act affirmatively either to defeat

or disavow the purposes of the conspiracy, such as by confessing to

the authorities or informing his coconspirators that he has

forsaken the conspiracy and its goals." United States v. Mehanna,

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, 45–46 (1st Cir. 2013).

Withdrawal within the statute of limitations period does not shield

a conspirator from liability for pre-withdrawal acts. Id. at 46 &

n.8. Thus, Stewart's purported withdrawal offers her no

protection.

III. Conclusion

For the foregoing reasons, we affirm Stewart's

conviction.

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