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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12338
Non-Argument Calendar
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D.C. Docket No. 0:17-cr-60137-KMW-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARIA ERSHOVA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 3, 2019)
Before WILSON, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
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Daria Ershova appeals her convictions for four counts of making a false
statement in a passport application, in violation of
18 U.S.C. § 1542. Ershova
asserts the district court abused its discretion in denying her motion to dismiss the
indictment because her action, as a notary, of signing a form necessary for a parent
to apply for a passport for a minor under the age of 16 was not a “statement”
within the meaning of § 1542. She also contends the district court erred in denying
her motion for a judgment of acquittal for the same reason. After review, we
affirm her convictions.
I. BACKGROUND
A grand jury indicted Ershova and two codefendants in a 15-count
indictment. As relevant to this appeal, Ershova was indicted for making false
statements in passport applications, in violation of
18 U.S.C. § 1542. Section 1542
provides, in pertinent part:
Whoever willfully and knowingly makes any false statement in an
application for passport with intent to induce or secure the issuance of
a passport under the authority of the United States, either for his own
use or the use of another, contrary to the laws regulating the issuance
of passports or the rules prescribed pursuant to such laws . . . [s]hall
be fined [and/or imprisoned].
18 U.S.C. § 1542. Specifically, the indictment alleged in the substantive counts
that Ershova:
did willfully and knowingly make a false statement in an application
for a passport with the intent to induce and secure the issuance of a
passport under the authority of the United States for the use of
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another, contrary to the laws regulating the issuance of passports and
the rules prescribed pursuant to such laws, in that she represented that
she had personally witnessed a non-applying parent sign the DS-3053
Statement of Consent, when in truth and in fact, and as she then and
there well knew, she had not personally witnessed a non-applying
parent sign the DS-3053 Statement of Consent in violation of Title 18,
United States Code, Sections 1542 and 2.
In applying for a United States passport for a minor child where one parent is not
available, a notarized form can be used as the Statement of Consent from the
unavailable or non-applying parent. See
22 C.F.R. § 51.28(a)(3). The Government
alleged that on some of the dates Ershova notarized fathers’ signatures on the
consent forms, the fathers had already returned to Russia, and on other forms, there
was no record the fathers had lawfully entered the United States.
Ershova moved to dismiss the indictment. Relevant to this appeal, she
argued there was no precedent in which a notary had been charged with violating
§ 1542. She contended a notarization was not a “statement” as used in § 1542, and
that her conduct therefore fell outside the scope of the statute.
Ershova attached a copy of a blank Form DS-3053 to her motion. The
instructions warn that false statements made “on passport applications, including
affidavits or other supporting documents submitted therewith” are punishable
under various statutes, including § 1542. The form itself has four sections for a
parent to provide information and state they consent to the child’s application for a
U.S. passport. Following these fields, the form states: “Stop! You must sign this
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form in front of a notary.” It then has a signature line saying, “I declare under
penalty of perjury that all statements made in this supporting document are true
and correct.” In the fifth section, titled “Statement of Consent Notarization,” the
form provides a line for the notary to sign and certify, among other things, that she
had personally witnessed the parent sign the document and that the notary had
personally viewed the parent’s identification document.
Ershova also attached a copy of a blank Form DS-11. In a section providing
requirements for minors’ passports, the form instructed that, when only one parent
applies for the passport, that parent also had to submit the other parent’s “notarized
written statement or DS-3053 . . . . The notarized statement . . . must be signed and
notarized on the same day . . . .” The form also provided a warning: “False
statements made knowingly and willfully in passport applications, including
affidavits or other documents submitted to support this application, are punishable
by fine and/or imprisonment under U.S. law including . . . 18 U.S.C. 1542 . . . .”
The district court held a hearing on the motion to dismiss. The court
acknowledged that no case had squarely addressed the issue, but noted the form
warned against making false statements. The court stated it considered the form to
be a “supporting document,” but that it did not consider Ershova’s argument to be
an appropriate inquiry at the motion to dismiss stage. The court stated the
language of the form notified whoever was filling out the form or was involved in
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the documentation in support of the passport application that a false statement
could lead to punishment. However, the court could not determine at the motion to
dismiss stage whether Ershova was merely negligent as opposed to criminally
liable. The court found that, based on the indictment and the text and use of the
Form DS-3053, a notarization was a “statement.” The court stated the form did not
exempt notaries from its warning, and accordingly, denied the motion to dismiss.
The case then went to trial, and one of Ershova’s codefendants, Vladimir
Nevidomy, testified against Ershova. Nevidomy testified that he was the co-owner
of a company called Status Med assistance. Status Med was a concierge business
that helped Russian medical tourists seeking to give birth in the United States by,
inter alia, preparing documents for patients’ babies, and it did business under the
name Sunny Medical Center. After a client gave birth, the business would prepare
documents, including applications for United States passports for the baby.
Ershova was one of the managers for Sunny Medical Center, and she worked the
front desk and helped prepare documents. For a baby’s passport application, both
parents had to be present, but a father could send a notarized consent form. If a
father could not fill out and notarize the form himself, either the mother or a Status
Med employee would forge his signature and then notarize the form. Nevidomy,
Ershova, and their codefendant Vera Muzyka first attempted to trace the father’s
signature, and then attempted practicing on multiple forms and picking the one that
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looked best. They had multiple conversations about forging the fathers’ signatures,
including how they needed to be careful because the government was closely
checking consent forms.
On the second day of trial, Aura Arauz-Figueroa, a fraud prevention
manager with the United States Department of State, testified that, for a passport
application for a minor, a Form DS-3053 had to be signed in front of the notary,
rather than before or after. She further testified that a child is not entitled to a
United States passport if the consent of a parent is falsely notarized. Next,
Caroline Schwab, the Notary Coordinator for the State of Florida, testified that the
course Ershova completed to become a notary covered personal physical presence
for notarization and that the document must be notarized on the same day the
person signed it. Narciso Fernandez, an enforcement officer with Customs and
Border Protection, testified that Ershova signed and dated seven Form DS-3053s
when the fathers were not in the United States, including two fathers who had not
entered the United States at all by those dates.
The Government next called Evgenii Romaschenko, whose alleged signature
as a parent consenting to his minor child’s application for a United States passport
had been notarized by Ershova. Although Romaschenko previously had a sexual
relationship with the birth mother, Olga Dynyak, Romaschenko had no knowledge
of whether the baby she gave birth to was his, and had not accompanied Dynyak to
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the United States for her to give birth to the child. Romaschenko had never met
Ershova, and he never signed a consent form authorizing Dynyak to apply for a
United States passport on behalf of the baby.
After calling other witnesses, the Government rested, and Ershova moved
for judgment of acquittal. In relevant part, she renewed her argument that her
notarization of the form was not a “statement” because a misstatement in the jurat
was not the punishment intention of the statute. The court denied the judgment of
acquittal, finding the instructions on Form DS-3053 warned that false statements
made in the application would be punishable by law. The court also found a jury
could reasonably determine Ershova filled out the forms based on the fact the
forms contained her signature and notary stamp. Ershova did not present evidence.
Ershova was convicted on four of the six counts of making a false statement in a
passport application in violation of
18 U.S.C. § 1542. The jury acquitted Ershova
of a conspiracy count and the two remaining counts of false statement in a passport
application.
II. DISCUSSION
A. Motion to Dismiss
In United States v. Critzer, we reversed the dismissal of an indictment after
the district court concluded that, even taking the facts proffered by the government
as constituting the elements of the offense as true, the defendant’s actions did not
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constitute a violation of federal law.
951 F.2d 306, 307-08 (11th Cir. 1992). We
noted “[t]here is no summary judgment procedure in criminal cases.”
Id. at 307.
Rather, we held “[t]he sufficiency of a criminal indictment is determined from its
face,” and an indictment is sufficient if it follows the language of the statute and
sets forth the essential elements of the crime.
Id. at 307-08.
The district court did not abuse its discretion in denying Ershova’s motion to
dismiss the indictment because the indictment tracked the language of the statute
and charged the essential elements of the offense. See id.; United States v. Waldon,
363 F.3d 1103, 1108 (11th Cir. 2004) (reviewing the denial of a motion to dismiss
the indictment for an abuse of discretion). Although Ershova argues her conduct
did not constitute a violation of § 1542 in that her notarization was not a
“statement,” that argument is outside the scope of a motion to dismiss. See Critzer,
951 F.2d at 307. Rather, because her argument does not go to the sufficiency of the
indictment but to the sufficiency of the evidence and what the Government was
required to prove under the statute, we address it below in the context of her
motion for a judgment of acquittal. See Yates v. United States,
135 S. Ct. 1074,
1080-81 (holding, in the context of a motion for a judgment of acquittal, that a fish
was not a “tangible object” within the meaning of
18 U.S.C. § 1519).
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B. Motion for Judgment of Acquittal
Section 1542 criminalizes “willfully and knowingly mak[ing] any false
statement in an application for passport [to procure a passport], either for his own
use or the use of another, contrary to the laws regulating the issuance of passports
or the rules prescribed pursuant to such laws.”
18 U.S.C. § 1542. The false
statement need not be material. United States v. Ramos,
725 F.2d 1322, 1323 (11th
Cir. 1984). “[A]ny false statement is sufficient” if it is made “with the intent to
induce or secure . . . a passport.”
Id. at 1323-24 (quotations omitted) (alteration in
original). “The crime is complete when one makes a statement one knows is
untrue to procure a passport.” United States v. O’Bryant,
775 F.2d 1528, 1535
(11th Cir. 1985). “Good or bad motives are irrelevant.”
Id.
Similarly, “[a] person providing false information as part of a passport
application, whether contemporaneously with the form or at any other time, is
subject to prosecution under applicable Federal criminal statutes.”
22 C.F.R.
§ 51.20(b). Regulations define “passport application” as “the application form for
a United States passport . . . and all documents, photographs, and statements
submitted with the form or thereafter in support of the application.”
Id. § 51.1.
Where only one parent seeks to apply for a U.S. passport for a child under the age
of 16, that parent may do so only if she provides either (1) evidence that she is the
sole parent or has sole custody of the child; or (2) “[a] notarized written statement
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or affidavit from the non-applying parent . . . consenting to the issuance of the
passport.” Id. § 51.28(a)(3).
The district court did not err in denying the motion for judgment of acquittal.
United States v. Evans,
473 F.3d 1115, 1118 (11th Cir. 2006) (reviewing the denial
of a motion for judgment of acquittal de novo). First, to the extent Ershova argues
that § 1542 applies only to applicants or affiants, the statute does not contain any
such limiting language. Rather, the statute provides it applies to “[w]hoever”
makes a false statement. See
18 U.S.C. § 1542. Further, to the extent Ershova
argues that Form DS-3053 was not part of the “passport application,” the passport
application regulations state the passport application includes supporting
documents, see
22 C.F.R. § 51.1, and the form has to be submitted when one parent
is applying for a passport for a minor child, see
id. § 51.28(a)(3). Accordingly,
Form DS-3053 is part of the “passport application.”
Ershova argues her notarization was not a “statement.” When interpreting a
statute, we assume that Congress used words as they are ordinarily understood, and
we construe the statute so that each provision is given full effect. See United States
v. McLymont,
45 F.3d 400, 401 (11th Cir. 1995). The plain meaning controls unless
the statute “is ambiguous or leads to absurd results.”
Id. “Statement” is defined
as “[a] verbal assertion or non-verbal conduct intended as an assertion,” and it
defines “false statement” as “[a]n untrue statement knowingly made with the intent
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to mislead.” Statement, False Statement, Black’s Law Dictionary (11th ed. 2019).
An “assertion,” in turn, is defined as “a person’s speaking, writing, acting, or
failing to act with the intent of expressing a fact or opinion; the act or an instance
of engaging incommunicative behavior.” Assertion, Black’s Law Dictionary (11th
ed. 2019).
Looking at the language used in Form DS-3053, Ershova’s signature was her
certification of various facts, including that she witnessed the fathers sign the form.
Because, by signing the document, she intended to express the facts enumerated in
the form, we conclude her signature constitutes a “statement” within the ordinary
meaning of the term.
Ershova asserts her statement was not “contrary to the laws regulating the
issuance of passports or the rules prescribed pursuant to such laws.” First, by
making a false statement in a passport application, Ershova’s actions were directly
contrary to
22 C.F.R. § 51.20, which prohibits making false statements in an
application. Second, by falsely notarizing consent forms, Ershova induced the
issuance of passports where the applications did not comply with
22 C.F.R.
§ 51.28(a)(3). Consequently, her notarization of the consent forms was contrary to
the laws and regulations concerning the issuance of passports.
Because, by notarizing the consent forms, Ershova falsely asserted she had
witnessed the fathers sign them (in violation of one federal regulation) in order to
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induce the issuance of a passport even though the application did not meet the
requirements of another federal regulation, her conduct fell within § 1542. The
fact that other statutes also prohibited Ershova’s conduct does not create ambiguity
because § 1542 clearly defined the prohibited conduct and the punishments for
violating the statute. See United States v. Batchelder,
442 U.S. 114, 123-24 (1979)
(stating two statutes may validly provide different punishments for identical
conduct so long as they clearly define the prohibited conduct and the punishments
authorized, and where an act violates more than one criminal statute, the
government has the discretion to prosecute under either so long as it does not
discriminate against a class of defendants). Further, because the statute is
unambiguous as to its prohibition on Ershova’s conduct, this Court need not apply
the rule of lenity. See United States v. Trout,
68 F.3d 1276, 1280 (11th Cir. 1995)
(explaining where a criminal statute is ambiguous as to whether it applies to certain
conduct, the rule of lenity requires it be construed narrowly in favor of the
defendant).
As to the parties’ arguments regarding how Form DS-3053 is structured,
because the text of § 1542 unambiguously applied to Ershova’s conduct, this
Court’s inquiry stops with the statutory text. See BedRoc Ltd., LLC v. United
States,
541 U.S. 176, 183 (2004) (“[O]ur inquiry begins with the statutory text, and
ends there as well if the text is unambiguous.”). And although notaries have not
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previously been prosecuted under § 1542, the statute, standing alone, was
sufficiently clear to give Ershova fair warning that falsely certifying she had
witnessed the fathers sign the forms was criminal, so due process does not prohibit
her prosecution under that statute. See United States v. Lanier,
520 U.S. 259, 267
(1997) (explaining “the touchstone [for fair warning] is whether the statute, either
standing alone or as construed, made it reasonably clear at the relevant time that
the defendant’s conduct was criminal”).
For these reasons, the district court did not err in denying Ershova’s motion
for judgment of acquittal and we affirm her convictions.
AFFIRMED.
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