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United States v. Romero-Hernandez

United States District Court, N.D. Georgia, Atlanta Division

February 8, 2019

UNITED STATES OF AMERICA,
v.
ALFREDO ROMERO-HERNANDEZ, Defendant.

          MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION AND ORDER CERTIFYING THIS CASE READY FOR TRIAL

          LINDA T. A WALKR JUDGE

         This case is before the court on Defendant Alfredo Romero-Hernandez's (“Defendant”) Motion for a Bill of Particulars and a Motion to Dismiss. (Docs. 204, 362). For the reasons outlined below, this Court recommends that Defendant's Motion to/ Dismiss be DENIED. (Doc. 362). Also, Defendant's Motion for a Bill of Particulars is DENIED AS MOOT. (Doc. 204).

         I. BACKGROUND

         On December 21, 2016, a grand jury in the Northern District of Georgia returned an Indictment against Defendant charging him in three counts. (Doc. 1). Defendant, along with a number of others, is charged in Count 1 of the Indictment with Conspiracy, in violation of 18 U.S.C. § 371, alleging that Defendant conspired to: (a) knowingly and unlawfully enter into a marriage for the purpose of evading any provision of the immigration laws of the United States, in violation of 8 U.S.C. § 1325(c); (b) knowingly encouraging and inducing an alien to reside in the United States for the purpose of private financial gain, knowing and in reckless disregard of the fact that such residence is and would be in violation of law, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), (v)(II) and (B)(i); and (c) knowingly making a false statement under oath with respect to a material fact in an immigration application, affidavit, and other document required by immigration law, in violation of 18 U.S.C. § 1546. Additionally, Defendant is charged in Count 9 of the Indictment with Alien Harboring, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv); and in Count 16, Defendant is charged with Immigration Document Fraud, in violation of 18 U.S.C. § 1546(a). (Doc. 1). In total, fifteen individuals, including the Defendant, were charged in the Indictment. (Id.).

         On June 28, 2017, Defendant filed a Motion for a Bill of Particulars. (Doc. 204). On August 2, 2018, Defendant filed a Motion to Dismiss. (Doc. 362). The Government filed responses to Defendant's Motions (Docs. 368, 369), and Defendant filed a reply in support of the Motion to Dismiss. (Doc. 372).

         A. The Indictment

         Count 1 of the Indictment, Conspiracy, details the alleged conspiracy between Defendant and fourteen others named in the Indictment. (Doc. 1). Specifically, the Indictment provides as background information that, at all times relevant to the Indictment, pursuant to The Immigration and Nationality Act (“INA”), a non-citizen of the United States (i.e. an “alien”) was not permitted to permanently reside in the United States unless he/she was a lawful permanent resident (“LPR”). (Doc. 1, ¶ 2C). Pursuant to the INA, if an alien married a United States citizen, he/she could immediately adjust his/her status to a LPR based upon the marriage; however, if an alien married a LPR, the alien was required to wait a period of time prior to adjusting his/her immigration status. (Doc. 1, ¶ 2D). Under the Cuban Adjustment Act (“CAA”), Cuban nationals received LPR status upon entering the United States, and the CAA provided an exception to the normal waiting period for the adjustment of immigration status for an alien married to an LPR. (Doc. 1, ¶ 2E). Pursuant to the CAA, an alien who married a Cuban citizen could adjust his/her immigration status to a LPR regardless of the alien's country of citizenship if the alien was married to the Cuban citizen at the time of the adjustment of immigration status by U.S. Citizenship and Immigration Services (“USCIS”). (Id.). Upon approval by USCIS of the adjustment application for lawful permanent residence, a Permanent Resident Card (Form 1-551) was issued to the alien who was authorized via Form 1-551 to permanently reside and lawfully work in the United States. (Doc. 1, ¶ 2F).

         The Indictment also sets forth the manner and means by which Defendants purportedly sought to accomplish the purpose of the alleged conspiracy. (Doc. 1, ¶ 3). According to the Indictment, some of Defendant's alleged co-conspirators arranged fraudulent marriages between non-Cuban aliens and Cuban and United States citizens in order to fraudulently qualify the non-Cuban aliens for certain immigration benefits, including LPR status in the United States. (Doc. 1, ¶ 3A). The Indictment further alleges that Defendant, along with eleven co-conspirators, all Cuban citizens, “obtained payment for entering into marriages with non-Cuban aliens so that the non-Cuban aliens could receive LPR status.” (Doc. 1, ¶ 3B). Finally, the Indictment avers that some of Defendant's co-conspirators demanded payment from the non-Cuban aliens in exchange for arranging the fraudulent marriages. (Doc. 1, ¶ 3C).

         In listing the purported overt acts performed to accomplish the purpose of the conspiracy, the Indictment, [1] as it relates to Defendant, alleges that, on or about November 8, 2011, a non-Cuban alien entered into a fraudulent marriage in order to obtain LPR status, and this marriage was aided and abetted by Defendant and two other alleged co-conspirators, for which one of the co-conspirators received, and was to receive, payment. (Doc. 1, ¶ 4I). The Indictment also indicates that on or about January 12, 2012, USCIS received an INS Form I-485 for the non-Cuban alien in “furtherance of the marriage fraud scheme.” (Id.).

         Count 9, Alien Harboring, of the Indictment alleges that, on or about January 12, 2012, Defendant, aided and abetted by the other named Defendants (and others known and unknown to the Grand Jury), for the purpose of commercial advantage and financial gain, encouraged and induced an alien to come to, enter and reside in the United States, “knowing and in reckless disregard of the fact that such residence was and would be in violation of law.” (Doc. 1, pp. 8-9). Finally, Count 16, Immigration Document Fraud, of the Indictment alleges Defendant, aided and abetted by other Defendants, and others known and unknown to the Grand Jury, caused to be stated in a U.S. Citizenship and Immigration Services Immigration and Naturalization Service Form I-485 (“Application to Register Permanent Resident or Adjust Status”) that a reliable marriage had been established for legitimate reasons with respect to a non-Cuban alien, when in fact, and as Defendants knew, a reliable marriage for legitimate reasons had not been established. (Doc. 1, pp. 10-11).

         DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO ALLEGE AN OFFENSE

         In Defendant's Motion to Dismiss, Defendant contends that, while Count 1 of the Indictment charges him with conspiracy in violation of 18 U.S.C. § 371, the Indictment fails to allege facts which constitute a prosecutable offense. (Doc. 362). Specifically, Defendant maintains that, in detailing the manner and means of the conspiracy, the Indictment alleges he “‘obtained payment for entering into marriages with non-Cuban aliens so that the non-Cuban aliens could receive LPR status.'” (Id.). Defendant argues, however, that he is not alleged to have entered into such a marriage, and he is not accused of participating in the conspiracy by some other means. (Id.). That said, Defendant submits that Count 1 does not allege he participated in the conspiracy and should be dismissed. (Id.). Furthermore, Defendant contends that the Government, in order to succeed at trial, would be required to constructively amend the Indictment to allege a different means and manner of participation in the conspiracy.

         Regarding Count 9, Alien Harboring, and Count 16, Immigration Document Fraud, Defendant argues the applicable statute of limitations requires that an Indictment be filed within five years of commission of both offenses. (Id.). Defendant maintains the Government has represented his only role in the offenses was a divorce from his spouse on June 1, 2011, [2] and the Indictment was returned on December 21, 2016, over five years after the date of the divorce. (Id.).

         In response, the Government points out that Count 1 of the Indictment tracks the language of the relevant statutes (8 U.S.C. §§ 1324, 1325; 18 U.S.C. §§ 371, 1546(a)), and sets forth sufficient detail to place Defendant on notice of the allegations against him and to defend against Double Jeopardy. (Doc. 369). Although Defendant contends Count 1 does not state facts that constitute a prosecutable offense, because he is described therein as obtaining payment for entering into marriages with non-Cubans, yet he did not enter into a marriage, the Government responds that proof that Defendant actually entered into a marriage or divorced is not an element of the offense, and that Defendant “must only conspire with at least one other to bring about the unlawful plan.” (Id.). Furthermore, the Government maintains Defendant is relying upon facts that the undersigned is not allowed to consider in ruling on a motion to dismiss, and in essence, Defendant is improperly challenging at this stage of the proceedings the sufficiency of the Government's evidence regarding the conspiracy charge. (Id.).

         In regard to Count 9, the Government maintains that Alien Smuggling is governed by a ten-year statute of limitations period, and the crime was completed on January 12, 2012, the filing date of Form I-485, which was well within ten years of the filing date of the Indictment, December 21, 2016. (Id.). Although the Government agrees that a five-year statute of limitations governs the Immigration Document Fraud charge, the Government contends the limitations period runs from the date when the offense is completed, not when it began. (Id.). Again, utilizing January 12, 2012, as its determinative date for the completion of the crime, the Government maintains the limitations period would have expired in January 2017, while the Indictment was filed on December 21, 2016. (Id.).

         In his reply, Defendant renews his assertion that the Indictment fails to allege he participated in the marriage fraud conspiracy because it neglects to indicate a specific offense committed by him, and, in fact, the “Manners and Means” section of the Indictment expressly excludes him from the Conspiracy Count. (Doc. 372). Defendant further contends, in a new substantive argument, that there would be a variance of proof between the crime charged in the Indictment and the Government's proof at trial. (Id.). Finally, in regard to Counts 9 and 16, Defendant appears to have abandoned the statute of limitations argument and, instead, asserts for the first time, that although the Government has provided general descriptions of the offenses of Alien Harboring and Immigration Document Fraud, it has failed to provide facts sufficient to apprise Defendant of the specific offenses of which he is accused under both statutes. (Id.).

         I. LEGAL ANALYSIS

         Federal Rule of Criminal Procedure 12(b)(3)(B) allows a defendant to file a motion, alleging a defect in the indictment or information. Fed. R. Crim. P.12(b)(3)(B). “An indictment is considered legally sufficient if it: (1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense.” United States v. Schmitz, 634 F.3d 1247, 1259 (11th Cir. 2011). The sufficiency of a criminal indictment is determined from its face. United States v. Salman, 378 F.3d 1266, 1268 (11th Cir. 2004) quoting United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992). “It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.” United States v. Garrett, 467 Fed.Appx. 864, 867 (11th Cir. 2012), citing Hamling v. United States, 418 U.S. 87, 117 (1974); see also Critzer, 951 F.2d at 307-308. An indictment is defective if it is not framed to apprise the defendant with reasonable certainty of the nature of the accusation against him, even though it may follow the language of the statute. United States v. ...


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