Opinion
No. S1 01 Cr. 635 (CSH).
June 5, 2002
MEMORANDUM OPINION AND ORDER
On March 4, 2002, a jury convicted Eric Newton of twelve of the fourteen counts charged against him in the superseding indictment. Specifically, the jury convicted Newton on Count Two, which charged him with a conspiracy in July 1999 to violate the federal laws against making false statements in a matter within the jurisdiction of the United States, 18 U.S.C. § 1001, and visa fraud, 18 U.S.C. § 1542, but acquitted him on Count One, which charged a conspiracy to make false statements and commit visa fraud in May of 1999. The jury also acquitted Newton of the substantive counts related to the May conspiracy: making false statements (Count Three) and committing visa fraud (Counts Eight and Nine) on May 14, 1999. Newton was convicted on all of the remaining counts: making false statements on June 1, 1999 (Count Four), on July 23, 1999 (Counts Five and Six) and in August 1999 (Count Seven), and committing visa fraud on June 1, 1999 (Count Ten) and July 23, 1999 (Counts Eleven, Twelve, Thirteen and Fourteen).
Proffering several arguments, Newton presently moves pursuant to Fed.R.Crim.P. 29(c) for a judgment of acquittal on Counts Two, Six and Seven. In short, Newton contends that the verdict on the conspiracy count is unsupported by the evidence, that a fatal variance between the indictment and the evidence requires his acquittal on Count Seven, and that insufficient evidence of materiality and the multiplicitous nature of Counts Five and Six require his acquittal on Count Six. As discussed in detail below, none of these arguments warrants acquittal.
BACKGROUND
The core events underlying this prosecution were described in this Court's Memorandum Opinion and Order dated February 11, 2002 resolving in limine disputes, familiarity with which is assumed. Briefly, Newton was charged with providing false information to procure non-immigrant visas for seven Nigerian citizens while he was stationed as Deputy Country Attache for the United States Drug Enforcement Agency (the "DEA") at the United States Embassy in Lagos, Nigeria (the "embassy"). The indictment alleged that the visas were obtained in three groups: two were procured on May 14, 1999, one on June 1, 1999 and four on July 23, 1999.
At trial, the jury heard the testimony of Maurice Parker and Alma Gurski, respectively Consul General and Visa Section Chief at the embassy during the pertinent time period. Alma Gurski testified in relevant part that she had received all seven visa referrals from Newton and that he had falsely told her in each case that the applicants were either traveling to the United States for law enforcement training or, with respect to the June 1 applicant, assisting the DEA in an undercover investigation. Gurski approved all seven visas.
Another key witness was Steven Chalupsky, the antifraud consul investigator at the embassy. Chalupsky testified that he interviewed Newton at the end of October 1999 in connection with Chalupsky's investigation into the issuance of the July 23 visas. According to Chalupsky's testimony, Newton told him that the visas were obtained by four applicants who were traveling to Quantico, Virginia for DEA training as part of a confidential vetted team of Nigerian law enforcement officers. At trial, the government offered evidence that showed that these individuals were not who Newton purported them to be. Newton did not dispute the government's contention that none of the individuals was in fact attending DEA-sponsored training in the United States or assisting the DEA with an investigation.
Newton took the stand in his own defense. He flatly denied committing fraud in connection with the visa applications or making any knowingly false statements. He admitted that he had submitted all of the visa referrals. But as for the May 14 and July 23 applicants, he claimed that he had been furnished their completed applications by Joshua Obadan, an officer of the Nigerian Drug Law Enforcement Agency ("NDLEA") who informed him that the applicants were all NDLEA agents traveling to Quantico for DEA-sponsored training. Newton stated that he took Obadan at his word and merely passed along the applications without any reason to believe that they were false. As for the June 1 application, Newton disputed Gurski's contention that he told her the applicant was assisting the DEA in an undercover operation. Contradicting Gurski's account, Newton testified that he never told Gurski the applicant was working undercover. Instead he said he candidly asked Gurski to issue a visa to this applicant as a favor because she needed to travel to the United States for medical treatment.
After a two week trial, the jury acquitted Newton of all charges arising out of the May 14 applications, but convicted him of all charges stemming from the June 1 and July 23 applications.
DISCUSSION
1. Count Seven
Count Seven charged Newton with making materially false statements in a matter within the jurisdiction of the Department of State "in or about August 1999." In a letter to Newton's counsel submitted more than three months before trial, the government clarified that the State Department official referenced in Count Seven was Steve Chalupsky. At trial, Chalupsky testified that Newton made the false statements to him about the four July 23 applicants at the end of October 1999. Chalupsky also testified that he had not heard anything at all about those visa applications prior to the end of October. Focusing upon the discrepancy in dates between the indictment and the trial evidence on this count, Newton argues that this variance requires acquittal because it caused the jury to believe that he was accused of making false statements on both dates. Newton also suggests that this discrepancy rises to the level of a constructive amendment of the indictment which warrants automatic acquittal on this count.
A "variance" occurs "when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment." United States v. Frank, 156 F.3d 332, 338 n. 5 (2d Cir. 1998) (quoting United States v. Zingaro, 858 F.2d 94, 98 (2d Cir. 1988) (internal quotation marks omitted)). In order to prevail on a variance claim, a defendant must demonstrate that he was substantially prejudiced by the difference between the conduct charged and the proof at trial. United States v. Weiss, 752 F.2d 777, 790 (2d Cir. 1985) (differences between the indictment and proof which do not modify an essential element of the offense are "variances which do not require reversal absent a showing that the variance caused substantial prejudice to the defendant"). "[P]rejudice occurs where surprise to the defendant deprives him of the opportunity to meet the prosecutor's case."United States v. Stern, No. 97 Cr. 410, 1998 WL 813477, *2 (S.D.N.Y. Nov. 19, 1998).
Constructive amendment, by contrast, occurs "when the terms of the indictment were effectively modified by the presentation of evidence or by actions of the court so that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment." United States v. Thomas, 274 F.3d 655, 669 (2d Cir. 2001) (internal quotation marks omitted). A constructive amendment constitutes a pro se prejudicial constitutional violation. Id. Courts do not lightly find constructive amendments. The Second Circuit has explained that "[b]ecause proof at trial need not, indeed cannot, be a precise replica of the charges contained in the indictment, this court has consistently permitted significant flexibility in proof provided that the defendant was given notice of the core of criminality to be proven at trial." United States v. Frank, 156 F.3d 332, 338 (2d Cir. 1997) (quotingUnited States v. Heimann, 705 F.2d 662, 666 (2d Cir. 1983)) (alteration in Frank).
In this case, the noted discrepancy between the date cited in the indictment and the dates the proof showed Newton made false statements to Chalupsky is neither a prejudicial variance nor a constructive amendment. The variance at issue is a two-month difference in the date of the false statements made to Chalupsky. The evidence that Newton made those statements in October hardly proves a fact "materially different" from the indictment's charge that he made those statements in August.Cf. United States v. Teague, 93 F.3d 81, 83-84 (2d Cir. 1996) (no impermissible variance where June 21 date charged in indictment was "substantially similar" to trial evidence of early June drug transactions). In all other respects apart from date, the proof at trial aligned with Count Seven's charges.
Even if this seemingly minor variation in dates were material, Newton cannot show prejudice arising from it. He argues that he was prejudiced by the impression created in the jury's collective mind that he made false statements twice in relation to this Count — once in August as the indictment charges, and once in October as Chalupsky testified. In Newton's view, this piling on of dates may have confused the jury and led them more readily to convict Newton. This argument has no substance. Despite the August date listed in the indictment, all of the evidence related to Chalupsky referenced only October statements. There was no evidence of statements made by Newton to Chalupsky — or anyone — in August. The evidence showed that Chalupsky was not even aware of the July 23 referrals until October 26. Moreover, in its summation the government alerted the jury to the discrepancy in dates between Count Seven and the proof and reminded the jury that with respect to this count it had heard testimony about "Newton's statements to Steve Chalupsky in October of 1999." Trial Transcript ("Tr.") at 1010. In light of the evidence and the government's summation which all pointed to only one set of false statements in October, Newton's claim that the variance misled the jury into believing that he committed the crime twice is unpersuasive.
Equally baseless is Newton's argument that the variation in dates effected a constructive amendment of the indictment. Newton argues that the specificity of the evidence possessed by the government about the Chalupsky statements having occurred in October raises the strong possibility that the evidence which led the grand jury to indict Newton for August false statements must have been related to a different offense than that for which he was convicted. The government does not undertake to explain the genesis of the discrepancy in dates or the nature of the evidence it presented to the grand jury. Given that the trial evidence offers no hint that Newton was making false statements to anyone about the July 23 referrals during the month of August, it is difficult to surmise that the grand jury was presented with evidence that Newton made false statements materially different than those for which he was convicted.
But even if I were persuaded by Newton's argument that the evidence modified the terms of Count Seven I would still conclude that it does not require acquittal, because Newton was furnished significant prior notice of the precise nature of the charge against him. In a letter to defense counsel dated October 24, 2001, the government disclosed in much fuller detail the substance of the false statements charged in Count Seven. In a November 1, 2001 letter to counsel, the government identified the State Department official as Steve Chalupsky. On January 25, 2002, the government provided Newton with the Jencks Act material related to Chalupsky. This material plainly revealed that Newton made false statements to Chalupsky at the end of October, not in August. All of this information offered Newton, as of a month before trial, notice of the "core of criminality" with which he was charged in Count Seven. As a result, he had a full opportunity to defend himself on the count and the variation in dates is therefore not unconstitutional. Rather, it is the sort of discrepancy that is sanctioned by the flexibility in proof the Second Circuit affords.
2. Count Two
Counts One and Two charged Newton with two different conspiracies to make false statements in a matter within the State Department and to commit visa fraud. The charge in Count One arose from the two visa applications submitted on May 14, 1999, and the charge in Count Two stemmed from the four visa applications granted on July 23, 1999. The jury acquitted Newton of the conspiracy charged in Count One but convicted him on Count Two. Newton now urges the Court to grant him a judgment of acquittal on Count Two on the ground insufficient evidence supported his conviction for that conspiracy.
It is well understood that "[a] defendant who challenges the sufficiency of the evidence supporting his conviction bears a heavy burden." United States v. Velasquez, 271 F.3d 364, 370 (2d Cir. 2001) (internal quotation marks omitted), cert. denied, 122 S.Ct. 1382 (2002). In order to succeed, he must "demonstrate that no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Id. (internal quotation marks omitted). When evaluating whether evidence was sufficient to convict a defendant, a court must consider all of the evidence, both direct and circumstantial, in the light most favorable to the government, crediting every inference that the jury might have drawn in favor of the government." Id. (internal quotation marks omitted). The evidence must be considered "in its totality, not in isolation, and the government need not negate every theory of innocence." United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). Furthermore, a court must "defer to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence." Velasquez, 271 F.3d at 370 (internal quotation marks omitted). The deference accorded to the jury's verdict "is especially important when reviewing a conviction of conspiracy . . . because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel." United States v. Pitre, 960 F.2d 1112, 1121 (2d Cir. 1992) (internal quotation marks and citation omitted).
Newton makes a two-fold argument in support of his request for acquittal on this count. First, he appears to suggest that because the evidence supporting the conspiracy charged in Count Two was the same as the evidence supporting the Count One conspiracy, it was not rational for the jury to convict him on Count Two but acquit him on Count One. Second, he argues that the evidence that certain of the July 23rd applicants paid money to obtain their visas fails to demonstrate the existence of a single conspiracy involving Newton because there was no evidence tying Newton to the payments or suggesting that the applicants were aware of each other.
These arguments fail to carry Newton's burden. Newton is mistaken in arguing that there was no difference between the evidence supporting the two conspiracies. The jury was offered considerably more evidence concerning the July 23rd applications than the May 14th ones. For example, as Newton observes, the government presented evidence that two of the July 23rd applicants paid the equivalent of $4,000 to secure their visas. The mother of one of the applicants, Mrs. Adesokan, testified that she paid the money to a friend who said he knew someone with contacts at the U.S. embassy. After the visa was received, Mrs. Adesokan was furnished, through this same contact, the correct address of the new DEA training center in Virginia for her son to use. In addition, Alma Gurski's testimony concerning Newton's statements on July 23rd was much more detailed than hers concerning the May 14th statements. Whereas her memory lapsed with respect to the May 14th conversation, she was very clear and specific concerning the conversations surrounding the July 23rd applications.
Together, this evidence gives rise to a reasonable inference that Newton, who admitted submitting the applications and was one of only three DEA agents at the embassy, was involved in perpetrating the fraud. The fact that this evidence is purely circumstantial does not invalidate it. As I instructed the jury, "[c]ircumstantial evidence, if believed, is of no less value than direct evidence. The government may rely on both direct and circumstantial evidence." Tr. at 1083. The government was entitled to prove the conspiracy entirely by means of circumstantial evidence. See United States v. Desena, 260 F.3d 150, 154 (2d Cir. 2001).
The circumstantial evidence clearly supports a reasonable inference that Newton agreed with at least one other person to fraudulently procure visas for the four July 23rd applicants. Newton makes much of the fact that the evidence failed to show that the applicants knew each other, but this argument is equally misguided. The applicants did not have to know each other or even know that there were other applicants involved in order for Newton to be convicted of participation in the single conspiracy charged. Newton seems to suggest that the evidence shows at most several different conspiracies because there is no evidence that the four applicants were acting in concert. This argument is misguided. Whether or not the applicants were acting in concert is irrelevant. The evidence unmistakably showed that Newton was acting in concert with at least one other person in perpetrating the fraud. The evidence that two of the applicants were involved with at least one other co-conspirator — the intermediary through whom they procured their visas — along with the evidence that at least two of the applicants paid the exact same amount to an intermediary and that all four applications were submitted together on the same day gives rise to a strong inference that Newton was engaged in a single conspiracy with at least one other person to procure these four applications. Although the government did not establish the identity of the intermediary, Newton points to no authority that would require it do so in order to prove the conspiracy.
Viewing the evidence concerning the July 23rd visas in its totality and crediting the inferences that must have been drawn by the jury, I conclude that a rational trier of fact could have found beyond a reasonable doubt that Newton conspired to commit visa fraud and make false statements related to the July 23rd visas. Accordingly, I deny his request for a judgment of acquittal on Count Two.
3. Count Six
Count Six charged Newton with making false statements to Maurice Parker, the embassy's Consul General, in connection with the July 23rd visas in violation of 18 U.S.C. § 1001. Count Five charged Newton with a violation of the same statute as the result of his statements to Alma Gurski about the July 23rd visas. Section 1001 makes it unlawful if a person:
(a) . . . in any matter within the jurisdiction of the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully —
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.
Newton contends that the Court should grant him a judgment of acquittal on Count Six because the evidence does not support a finding that the statements he made to Parker were material, given Parker's testimony that he had no control over Alma Gurski's adjudication of the visas and would leave the final decision to her. In Newton's view, if Parker could not have affected Gurski's decision, any statements Newton made to Parker could not have been material. For the same reason — the inability of his statements to Parker to affect the adjudication of the visas — Newton also argues that Count Six is impermissibly multiplicitous of Count Five.
An indictment "is multiplicitous when a single offense is alleged in more than one count." United States v. Nakashian, 820 F.2d 549, 552 (2d Cir. 1987). In making his arguments, Newton relies exclusively on a series of cases emanating from the Eighth and Ninth Circuits which address multiple convictions under § 1001. See United States v. Graham, 60 F.3d 463, 466 (8th Cir. 1995); United States v. Trent, 949 F.2d 998 (8th Cir. 1991), United States v. Olsowy, 836 F.2d 439 (9th Cir. 1988); United States v. Salas-Camacho, 859 F.2d 788 (9th Cir. 1988). Confronted with an argument that three false statement charges were multiplicitous because they involved the same statement made to three different individuals, the Eighth Circuit in Graham summarized this line of cases in language that it is useful to quote at length:
In Olsowy the Ninth Circuit held that multiple convictions under 18 U.S.C. § 1001 may not be based upon the same false statement made to the same secret service agent. In United States v. Salas-Camacho, 859 F.2d 788 (9th Cir. 1988), the Ninth Circuit distinguished Olsowy by holding that identical false statements made to different government agents could each be prosecuted separately if the repetition of the statement constituted an additional impairment of the operations of the government. Id. at 791. In Salas-Camacho, the second statement was made to a secondary customs inspector whose duties were different from the primary customs inspector to whom the false statement was initially made. In Trent this court held that the rationale of Olsowy was applicable where the same false statement was made by a bank teller to two FBI agents investigating a false report of a robbery, one of whom was present during both interviews, because the second statement "added nothing to the harm caused to the FBI's inquiry." 949 F.2d at 1000 (citing Olsowy, 836 F.2d at 443).
We conclude that the rationale of Trent, Olsowy and Salas-Camacho merge to create a unitary harm rule whereby repetition of a false statement which does not constitute an additional impairment of governmental functions should not be charged separately in an indictment.60 F.3d at 466-67 (footnote, internal quotation marks and citation omitted). Applying that rule, the Graham court concluded that because the defendant had made the identical false statement in a bankruptcy inquiry to three different individuals who were acting in the same role and with the same objective, his repetition of the first misleading statement "added nothing further to harm the bankruptcy action" and therefore could not support multiple § 1001 convictions. Id. at 467.
It would seem that the Second Circuit has never considered the circumstances under which it is permissible to obtain multiple convictions under § 1001 for making the same false statements to different individuals.
Olsowy and its progeny do not support a judgment of acquittal here because the trial evidence showed that the statements made to Parker constituted an additional impairment to the functions of the visa section at the embassy. Parker was Gurski's superior. Tr. 238. In his testimony, Parker explained that the decision of an adjudicating officer, Gurski in this instances is sacrosanct. We can, supervisors of visa sections can advise the officers on how to process cases, but we do not have the authority to instruct them to issue or deny a visa. Tr. 264. Parker reiterated that he could "counsel [the adjudicating officers] and tell them that I would not issue said visa, but it is up to the adjudicating officer to make up their own mind." Tr. 268.
Parker, as Counsel General, was far from ineffectual in this process. Although he could not dictate an outcome, he acknowledged that he had influence in other respects. As noted, he could "advise" and "counsel" the adjudicating officer. In addition, he testified that he could override an officer's decision to grant a visa. Tr. 264. More pertinently, Parker explained that in the event of an officer's decision to deny a visa, he had the power to "override that opinion and conversely issue the visa". Id. This latter statement is consistent with Alma Gurski's testimony concerning the visa adjudication process. She explained that in the event she denied a visa, "[i]f someone above me wanted to then issue a new application, it could be done and that person would issue — rarely is a customs officer's decision overruled by someone. That is your decision. You refuse it, but someone else can issue the visa if they decide." Tr. 393 (emphasis added).
This testimony illustrates the power Parker had over the visa adjudication process even though Gurski retained the initial decision-making authority. For example, he could have separately granted the visa applications if Gurski had denied them, and he could have overridden any decision to deny them. Moreover, Parker had more than theoretical influence over the applications in question. His statements to Newton implied that he had at least some control over the decision. Parker testified that when he was first approached by Newton about the four visas, Parker told him that "on face value it appeared to be a good referral," Tr. 254, and if Newton could get the proper documentation of the training and he "would process, make sure the visas were process immediately to a conclusion." Tr. 255. Moreover, when asked on cross-examination whether he had the "authority to strongly advise [Gurski] or counsel her not to issue a visa which is unaccompanied by the appropriate documentation in your view," Parker answered, "I had already made that clear during my conversation with Eric and Alma sitting in my office." Tr. 268.
All this testimony leads to the inescapable conclusion (or at the very least, a reasonable inference) that Parker was not a potted plant with no authority or influence over the visa applications, and that Newton could not have believed him to be so ineffectual. It follows that Newton's statements to Parker clearly caused additional impairment of the operations of the visa section. Parker and Gurski were not on the same level of authority and had different professional responsibilities. Parker could have granted the visas relying on Newton's statements in the event Gurski denied them and he could have advised or counseled Gurski to grant them if he had been so inclined. Indeed, despite Newton's suggestion that Parker had "abdicated" his authority in the decision-making process, the evidence shows that Parker did counsel Gurski about the adjudications, albeit not in the manner desired by Newton.
Although Parker did not have the authority to dictate a decision, he clearly possessed the unique ability, as Gurski's supervisor, to achieve a particular result through offering advice or re-adjudicating the decision. The supervisory influence Parker had over Gurski and his independent ability to adjudicate the visas distinguishes this case fromTrent and Graham, where repetition of the same false statements to different people with essentially the same function was held to cause no additional impairment. The facts of this case are closer to those ofSalas-Camacho, 859 F.2d at 791, in which the court held that two counts of false statements by an alleged smuggler for making the same statement to two different customs inspectors were not multiplicitous because the inspectors had different duties and responsibilities. Here, Newton's false statements to Parker compounded those he made to Gurski because they were aimed over her head, designed to have her supervisor keep her in check, and thereby ensure that Newton received visas with the annotations he wanted regardless of Gurski's initial misgivings. Newton's argument that these counts are multiplicitous is therefore meritless.Cf. United States v. Bin Laden, 91 F. Supp.2d 600, 620 (S.D.N.Y. 2000) (perjury counts were not multiplicitous under Olsowy because same statements were made to two different grand juries conducting somewhat different inquiries).
The same conclusion follows with respect to Newton's materiality claim. I charged the jury in relevant part with respect to materiality as follows:
The government must also prove beyond a reasonable doubt that the statement or representation was material. Materiality is demonstrated if the question posed is such that a truthful response could have influenced the government's decisions or activities. Put another way, if the false statement or representation was capable of influencing, or had a natural effect or tendency to influence the government's actions or decisions, then the false statement or representation is material. However, as I have said to you, you need not find that the false statement actually influenced the government's decision, or had any actual effect.
Materiality must be decided in full context; the issue does not turn simply on whether a particular question, standing alone, could have provoked a material reply.
Tr. 1103-04 (emphasis added). Newton argues that his remarks to Parker did not have any effect on the adjudication of the visas because Parker removed himself from the decision-making process. The difficulty with this argument is that "[t]he test of materiality involves only the capability of the statement to influence the agency's operations."Salas-Camacho, 859 F.2d at 791 (internal quotation marks and citation omitted). Thus, even if Parker decided to ignore Newton's comments about these referrals, his and Gurski's testimony made clear that he was not powerless to act on them. He could have brought to bear his authority over Gurski and advised, counseled, or guided her to a particular decision, or he could have granted the visas on his own initiative if Gurski had decided to deny them. The evidence overwhelmingly supports a conclusion that Newton's false statements to Parker could have influenced the embassy's handling of the visa referrals. His argument that insufficient evidence of materiality requires his acquittal on Count Six does not persuade.
CONCLUSION
Newton's motion for a judgment of acquittal on Counts Two, Six and Seven is denied.