United States v. Ryan-Webster ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4650
SYLVIA ANITA RYAN-WEBSTER,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-02-60-A)
Argued: September 26, 2003
Decided: December 22, 2003
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Traxler joined. Judge Williams wrote an opinion concur-
ring in part and dissenting in part.
COUNSEL
ARGUED: Drewry Bacon Hutcheson, Jr., MCGINLEY, ELSBERG
& HUTCHESON, P.L.C., Alexandria, Virginia, for Appellant.
Thomas Higgins McQuillan, Assistant United States Attorney, Alex-
andria, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United
States Attorney, Robert C. Erickson, Assistant United States Attor-
ney, Alexandria, Virginia, for Appellee.
2 UNITED STATES v. RYAN-WEBSTER
OPINION
KING, Circuit Judge:
Sylvia Anita Ryan-Webster was convicted in the Eastern District
of Virginia in 2002 of conspiracy to defraud the United States and
four counts of immigration fraud. On appeal, Ryan-Webster chal-
lenges four of her five convictions, contending: (1) that the conduct
underlying three of her immigration fraud convictions does not fall
within the ambit of the governing statute, 18 U.S.C. § 1546(a); and
(2) that the district court committed plain error when it named an
unindicted co-conspirator in the jury instructions. As explained
below, we reject these contentions and affirm.
I.
A.
During the relevant time period, Ryan-Webster was the sole practi-
tioner in a District of Columbia law practice called Ryan & Webster.
Her work primarily involved the representation of aliens seeking per-
manent legal status in the United States through the process for issu-
ance of Permanent Resident Cards (commonly called "green cards").1
One method for securing a Permanent Resident Card is for an alien
to first obtain immigrant status based on employment in the United
States. Under the evidence, Ryan-Webster systematically sought
immigrant status for her clients as part of an immigration fraud
scheme. That scheme, and particularly her use of fraudulent immigra-
tion documents, underlies the criminal convictions challenged in this
appeal.
In order to properly assess Ryan-Webster’s contentions, we must
possess an elementary understanding of the process through which
aliens seek and secure immigrant status based on employment. Pursu-
ant to federal law, an alien seeking permanent legal status based on
1
A Permanent Resident Card evidences an alien’s status as a lawful
permanent resident with a right to live and work permanently in the
United States. See 8 C.F.R. § 264.1. A Permanent Resident Card is also
called an Alien Registration Receipt Card.
UNITED STATES v. RYAN-WEBSTER 3
employment must utilize a three-step process, involving the Depart-
ment of Labor (the "DOL"), the Department of State, and the Immi-
gration and Naturalization Service (the "INS").2
First, an alien must have a prospective employer in this country,
and that employer must petition the DOL for a "Labor Certification"
on behalf of the alien.3 The DOL administers its Labor Certification
program through one of its agencies, the Employment and Training
Administration (the "ETA").4 When issued, a Labor Certification evi-
dences the DOL’s acknowledgment of two predicate facts: (1) suffi-
cient United States workers are not able, willing, qualified, and
available for a particular job; and (2) employment of a particular alien
will not adversely effect the wages and working conditions of United
States workers similarly employed. See 8 U.S.C. § 1182(a)(5)(A)(i).
In order to secure a Labor Certification, an alien’s prospective
employer, or an attorney acting on its behalf, is required to file with
the DOL a Form ETA-750, Application for Alien Employment Certi-
fication ("Certification Application"). If an attorney acts for the
employer, the attorney is required to file with the DOL an INS Form
G-28, Notice of Entry of Appearance as Attorney or Representative
("Attorney Appearance Notice").5 20 C.F.R. § 656.20(b)(2). The Cer-
2
On March 1, 2003, the INS, which was formerly part of the Depart-
ment of Justice, became the Bureau of Citizenship and Immigration Ser-
vice in the Department of Homeland Security. Because this appeal
concerns events occurring before March 1, 2003, we refer only to the
INS.
3
The INS recognizes certain exceptions to the Labor Certification
requirement; e.g., priority workers, professionals with advanced degrees
or exceptional abilities, and certain special immigrants. Absent such an
exception, a Labor Certification is required for both skilled and unskilled
workers. See 8 U.S.C. § 1153(b). Ryan-Webster’s fraud scheme involved
workers who required Labor Certifications.
4
The ETA administers the Labor Certification program through a net-
work of state-level work agencies. The three such agencies relevant here
are the Maryland Department of Labor, Licensing and Regulations; the
Virginia Employment Commission; and the District of Columbia Depart-
ment of Employment Services. For our purposes, we refer collectively to
the state-level work agencies and the ETA as the "DOL."
5
Employers represented by counsel in the Labor Certification process
are required to sign Certification Applications submitted to the DOL on
their behalf. 20 C.F.R. § 656.20(b)(1).
4 UNITED STATES v. RYAN-WEBSTER
tification Application is analyzed by the DOL and, if it satisfies the
essential requirements, it is then "certified" and constitutes a valid
Labor Certification.
In the second step of the process, the alien’s prospective employer,
or an attorney acting on the employer’s behalf, is required to file with
the INS the Labor Certification, along with a Form I-140, Visa Peti-
tion for Prospective Immigrant Employee ("Visa Petition"). An attor-
ney representing the prospective employer in this second step must
also file with the INS an Attorney Appearance Notice.6 See 8 C.F.R.
§ 299.1. A Visa Petition constitutes a request to the INS that the alien
named in the Labor Certification be classified as eligible to apply for
designation within a specified visa preference employment category.
See 8 U.S.C. § 1153(b). If the INS approves the Visa Petition and
classifies the certified alien as so eligible, the alien is assigned an
immigrant visa number by the Department of State.
The requirements for the final step of the three-part green card pro-
cess depend upon whether the certified alien, at the time of his appli-
cation, resides inside or outside the United States. When a resident
alien receives a visa number, he must file with the INS a Form I-485,
Application to Adjust Status ("Green Card Application"). The INS
then considers the resident alien’s Visa Petition and Green Card
Application and determines whether to "adjust" the resident alien’s
status. 8 C.F.R. § 204.5(n). If the Green Card Application is
approved, the INS adjusts the status of the resident alien to that of a
lawful permanent resident who is entitled to live and work in the
United States. 8 U.S.C. § 1255(a). The INS then issues a green card
to the immigrant evidencing his immigrant status. On the other hand,
when a nonresident alien is assigned a visa number, he must then
complete the application process for an immigrant visa. See id.§ 1181(a). Upon completion of this process and receipt of INS
approval, the nonresident alien receives an immigrant visa and is enti-
tled to enter and work in the United States. Sometime after entering
the United States, the immigrant receives his green card from the INS.
6
As with the Certification Application, an employer represented by
counsel must also sign a Visa Petition submitted to the INS on its behalf.
UNITED STATES v. RYAN-WEBSTER 5
B.
In her law practice, Ryan-Webster specialized in securing perma-
nent legal status for her alien clients through the process summarized
above. Under the evidence, Ryan-Webster, in the typical situation,
would file a Certification Application, together with an Attorney
Appearance Notice, with the DOL, seeking a Labor Certification for
an alien client and the alien’s purported prospective employer. Upon
issuance of a Labor Certification by the DOL, Ryan-Webster would
submit it to the INS on behalf of the purported prospective employer,
along with a Visa Petition and an Attorney Appearance Notice. Ryan-
Webster would normally charge her alien clients approximately
$7,000 each for her work in this process.
Ryan-Webster developed a lucrative law practice in the representa-
tion of her alien clients. In order to expedite the process, she system-
atically forged the signatures of purported prospective employers on
the Certification Applications and Visa Petitions filed with the DOL
and the INS.7 Because she filed Attorney Appearance Notices with
the DOL and INS, purporting to represent prospective employers, the
immigration authorities dealt exclusively with Ryan-Webster.
C.
In February 2002, Ryan-Webster was indicted in the Eastern Dis-
trict of Virginia for five felony offenses arising out of her immigra-
tion fraud scheme. In Count 1 of the Indictment, she was charged
under 18 U.S.C. § 371 with conspiracy to defraud the United States
"by attempting to obtain, and by obtaining, by false statements, for-
gery and fraud, immigration benefits for aliens." In Counts 2, 3, and
5, Ryan-Webster was charged under 18 U.S.C. § 1546(a). The
charges alleged in those three counts tracked the language of the first
of the four unnumbered paragraphs of § 1546(a). The first paragraph
of § 1546(a) provides, in relevant part:
7
Several of the purported prospective employers whose signatures
Ryan-Webster forged had previously hired her to secure legitimate Labor
Certifications and immigrant visas for prospective alien employees.
6 UNITED STATES v. RYAN-WEBSTER
Whoever knowingly . . . utters, uses, [or] possesses . . . any
such visa, permit, border crossing card, alien registration
receipt card, or other document prescribed by statute or reg-
ulation for entry into or as evidence of authorized stay or
employment in the United States, knowing it to be forged,
counterfeited, altered, or falsely made [is guilty of a felony].
18 U.S.C. § 1546(a).8 In charging Ryan-Webster with the fraudulent
use of Certification Applications and Visa Petitions, Counts 2, 3, and
5 alleged that she uttered, used, and possessed documents "prescribed
by statute or regulation for entry into, or as evidence of authorized
stay or employment in the United States" which she "knew to be
forged and falsely made."9
8
In Count 4, Ryan-Webster was charged under the fourth unnumbered
paragraph of § 1546(a) with, in substance, making false statements on an
Attorney Appearance Notice. Under that paragraph:
Whoever knowingly . . . subscribes as true, any false statement
with respect to a material fact in any application, affidavit, or
other document required by the immigration laws or regulations
prescribed thereunder, or knowingly presents any such applica-
tion, affidavit, or other document which contains any such false
statement or which fails to contain any reasonable basis in law
or fact . . . [is guilty of a felony].
18 U.S.C. § 1546(a). At oral argument, Ryan-Webster abandoned any
challenge to her conviction on Count 4. Because the other three immigra-
tion fraud charges in the Indictment concern only the first paragraph of
§ 1546(a), our references to "§ 1546(a)" are to its first paragraph only,
except where we specifically distinguish between the first and fourth
paragraphs thereof. See infra notes 14, 16.
9
According to Count 2 of the Indictment, Ryan-Webster:
did knowingly utter, use, and possess documents prescribed by
statute or regulation for entry into, or as evidence of authorized
stay or employment in the United States, that is, Alien Employ-
ment Certification Applications, also known as Form ETA 750s,
purportedly on behalf of C.A.R. Collision and James Ratcliffe
and Rachel Ratcliffe, which the defendant knew to be forged and
falsely made . . . .
As alleged in Count 3 of the Indictment, Ryan-Webster:
UNITED STATES v. RYAN-WEBSTER 7
In April of 2002, Ryan-Webster was tried before a jury in federal
court in Alexandria, Virginia. Nora Azenon-Gomez, Ryan-Webster’s
former office assistant, was a key government witness. In connection
with Count 2, Azenon-Gomez testified that Ryan-Webster had signed
the name "James Radcliffe," on behalf of C.A.R. Collision, on
approximately fifteen Certification Applications filed with the DOL.
Radcliffe was also called as a witness, and he testified that he had nei-
ther signed those forms nor given Ryan-Webster permission to sign
for him. Each form reflected that the prospective alien employee lived
outside the United States and intended to apply for an immigrant visa.
In connection with Count 3, Azenon-Gomez testified that the name
"Cecil Lockhart" on the relevant Visa Petition was signed by Ryan-
Webster. Lockhart, in his testimony, denied any knowledge of either
this form or of Mitra Rezvani, the prospective alien employee for
whom it was filed. The Visa Petition reflected that Rezvani lived out-
side the United States and intended to apply for an immigrant visa.
As to Count 5, Azenon-Gomez identified Ryan-Webster as having
signed the name "Eliana Noguchi" on a Certification Application and
on a Visa Petition filed on behalf of the Little Flower Montessori
School. In her testimony, Ms. Noguchi denied any knowledge of
these forms and of Manik Kadir, the prospective employee named
thereon. The forms reflected that Kadir resided in Virginia and
intended to petition for an adjustment of his alien status to that of an
knowingly utter[ed], use[d], and possess[ed] a document pre-
scribed by statute or regulation for entry into or as evidence of
authorized stay or employment in the United States, that is, an
employment based visa petition, purportedly on behalf of Mitra
Rezvani and Lockhart Insurance Services, which the defendant
knew to be forged and falsely made . . . .
Finally, in Count 5, the grand jury charged that Ryan-Webster:
did knowingly utter, use and possess a document prescribed by
statute or regulation for entry into or as evidence of authorized
stay or employment in the United States, that is, an Alien
Employment Certification Application and an employment based
visa application, purportedly on behalf of Manik Kadir and the
Little Flower Montessori School, which the defendant knew to
be forged and falsely made . . . .
8 UNITED STATES v. RYAN-WEBSTER
immigrant. The defense presented no evidence on behalf of Ryan-
Webster.
At the conclusion of the evidence, Ryan-Webster sought judgment
of acquittal on Counts 2, 3, and 5, pursuant to Rule 29 of the Federal
Rules of Criminal Procedure.10 In support of her Rule 29 motion,
Ryan-Webster contended that § 1546(a) does not apply to the conduct
underlying Counts 2, 3, and 5. More specifically, she asserted that
Certification Applications and Visa Petitions do not constitute docu-
ments "prescribed by statute or regulation for entry into or as evi-
dence of authorized stay or employment in the United States . . . ."
The court denied Ryan-Webster’s motion.
Prior to the jury deliberations, the court instructed the jury on the
applicable legal principles. The court first instructed on the law of
conspiracy under Count 1 of the Indictment. In instructing the jury on
the co-conspirator aspect of that Count, the court advised, "Now, evi-
dence has been received in this case that a person, Nora Azenon-
Gomez, the defendant’s legal assistant, was a co-conspirator of the
defendant and said things during the existence or life of the alleged
conspiracy in order to further advance its goals." Ryan-Webster raised
no objection to this part of the instructions. The court then instructed
the jury on Counts 2 through 5. As to Counts 2, 3, and 5, the court
explained that the Government was obliged to prove each of three ele-
ments beyond a reasonable doubt: First, "that the defendant uttered,
used, or possessed a document; second, that the document was pre-
scribed by statute or regulation for entry into or as evidence of autho-
rized stay or employment in the United States; and, third, that the
defendant knew the document was forged and falsely made." Ryan-
Webster also did not object to this instruction.
The jury found Ryan-Webster guilty on all five counts of the
Indictment. On August 2, 2002, the court sentenced Ryan-Webster to
sixty months imprisonment on Count 1 and to concurrent terms of
seventy-two months on each of Counts 2 through 5. After filing her
10
Pursuant to Rule 29(a): "After the government closes its evidence or
after the close of all the evidence, the court on the defendant’s motion
must enter a judgment of acquittal of any offense for which the evidence
is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a).
UNITED STATES v. RYAN-WEBSTER 9
notice of appeal on August 6, 2002, Ryan-Webster filed an emer-
gency pro se motion in the district court, seeking to vacate, set aside,
or correct her sentence under 28 U.S.C. § 2255. Additionally, Ryan-
Webster’s lawyers sought to withdraw from further representation,
asserting that she would not communicate with them. During an
August 8, 2002, hearing on these motions, Ryan-Webster again con-
tended that her use of the fraudulent Certification Applications and
Visa Petitions did not fall within the ambit of § 1546(a). On that same
day, the court entered an order rejecting this contention, denying her
pro se § 2255 motion as premature, and authorizing her trial lawyers
to withdraw. United States v. Ryan-Webster, No. 02-60-A (E.D. Va.
Aug. 8, 2002). This appeal, with newly appointed counsel, followed
in due course.
II.
We review de novo a district court’s denial of judgment of acquit-
tal. United States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001) (cit-
ing United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998)).
Additionally, our consideration of the ambit of § 1546(a) presents a
question of law, which we also review de novo. United States v.
Buculei, 262 F.3d 322, 331 (4th Cir. 2001) (citing Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497-98
(1982)). By contrast, we review for plain error an issue raised on
appeal but not previously asserted in the district court, such as Ryan-
Webster’s challenge to the jury instructions on Count 1. See Fed. R.
Crim. P. 30, 52(b); United States v. Curry, 512 F.2d 1299, 1303 (4th
Cir. 1975). Finally, in assessing the denial of a Rule 29 motion, we
view the evidence in the light most favorable to the prosecution. See
Glasser v. United States, 315 U.S. 60, 80 (1942).
III.
A.
In seeking reversal of her convictions on Counts 2, 3, and 5, Ryan-
Webster does not contest the fact that the first and third elements of
the § 1546(a) offense were proven, that is, (1) that she knowingly "ut-
tered, used, or possessed a document," and (2) that she "knew the doc-
ument was forged and falsely made." Instead, her primary contention
10 UNITED STATES v. RYAN-WEBSTER
on appeal relates to the second element of a § 1546(a) offense. She
maintains that the Certification Applications (underlying Counts 2
and 5) and the Visa Petitions (underlying Counts 3 and 5) do not qual-
ify as "other document[s]" under § 1546(a).11 More specifically, she
asserts that the Certification Applications and Visa Petitions are nei-
ther prescribed by statute or regulation for entry into the United States
nor prescribed as evidence of an authorized stay or employment in the
United States.
1.
In assessing a statute’s scope, we first examine its plain language.
United States v. Sheek, 990 F.2d 150, 152-53 (4th Cir. 1993)
("Statutory construction must begin with the language of the statute
and the court should not look beyond that language unless there is
ambiguity or unless the statute as literally read would contravene the
unambiguously expressed legislative intent gleaned from the statute’s
legislative history."); see also United States v. Buculei, 262 F.3d 322,
331 (4th Cir. 2001). As explained below, Certification Applications
and Visa Petitions fall within the plain language of § 1546(a) because
they constitute documents prescribed by statute and regulation for
entry into the United States.12
First, the Certification Applications constitute documents pre-
11
The court instructed the jury that they had to find the following three
elements in order to convict: First, "that the defendant uttered, used, or
possessed a document; second, that the document was prescribed by stat-
ute or regulation for entry into or as evidence of authorized stay or
employment in the United States; and, third, that the defendant knew the
document was forged and falsely made."
12
The court’s instruction on the second element of the § 1546(a)
offense properly advised the jury, by use of the disjunctive "or," that
proof of either prong satisfies the statutory mandate, i.e., the documents
were prescribed by statute or regulation (1) for entry or (2) as evidence
of authorized stay or employment. Because we resolve this contention on
the first of the two alternative prongs — i.e., the documents are pre-
scribed by statute or regulation for entry into the United States — we
have no reason to assess whether the other prong of the second element
of § 1546(a) was also established.
UNITED STATES v. RYAN-WEBSTER 11
scribed by both statute and regulation for entry into the United States.
Pursuant to statutory mandate, an immigrant may not enter this coun-
try without "a valid unexpired immigrant visa." 8 U.S.C. § 1181(a).
The INS may not issue an employment-based visa unless the DOL
has previously issued a Labor Certification.13 See id. § 1153(b)(3)(C)
("An [employment-based] immigrant visa may not be issued to an
immigrant . . . until the consular office is in receipt of a determination
made by the Secretary of Labor pursuant to the provisions of section
1182(a)(5)(A) of this title."); id. § 1182(a)(5)(A)(i) ("Any alien who
seeks to enter the United States for the purpose of performing skilled
or unskilled labor is inadmissible, unless the Secretary of Labor has
determined and certified to the Secretary of State and the Attorney
General that — (I) there are not sufficient workers who are able, will-
ing, qualified, . . . and available . . . and (II) the employment of such
alien will not adversely affect the wages and working conditions of
workers in the United States similarly employed."). Pursuant to the
DOL’s regulations, an alien’s prospective employer must file a Certi-
fication Application with the DOL before the DOL can issue a Labor
Certification. 20 C.F.R. § 656.21(a) ("[A]n employer who desires to
apply for a labor certification on behalf of an alien shall file, signed
by hand and in duplicate, a Department of Labor Application for
Alien Employment Certification form . . . .").
Pursuant to statute and the applicable regulations, it is clear that:
(1) absent the filing of a Certification Application, the DOL is unable
to issue a Labor Certification; (2) without a Labor Certification, an
immigrant cannot obtain a valid employment-based visa; and (3) in
the absence of an employment-based visa, an immigrant cannot
legally enter the United States for employment. A Certification Appli-
cation is therefore a "document" prescribed by both statute and regu-
lation for entry into the United States. As such, the district court did
not err in denying Ryan-Webster’s request for judgment of acquittal
on the charges relating to forged Certification Applications.
13
The Labor Certification requirement in § 1153(b)(3)(C) refers to
skilled workers, professionals, and other unskilled labor. The aliens for
whom Ryan-Webster sought Labor Certifications fall within these cate-
gories.
12 UNITED STATES v. RYAN-WEBSTER
Secondly, Ryan-Webster’s use of forged Visa Petitions, as alleged
in Counts 3 and 5, also falls within the ambit of § 1546(a), in that
Visa Petitions are also prescribed by statute and regulation for entry
into the United States. The INS limits the number of employment-
based immigrants who may receive immigrant visas each year. See 8
U.S.C. § 1151(a)(2) (allowing certain number of employment-based
visas each fiscal year); id. § 1151(d)(1) (specifying number of visas
that may be issued). As such, an alien must be classified for employ-
ment purposes before receiving an immigrant visa. See id. § 1153(b)
(distributing visas allotted for employment-based workers among (1)
priority workers, (2) members of professions holding advanced
degrees or aliens of exceptional ability, (3) skilled workers, profes-
sionals, and other workers, (4) qualified special immigrants, and (5)
employment creation). And the regulations of the INS specifically
prescribe that "[a] petition to classify an alien . . . must be filed on
Form I-140, Petition for Immigrant Worker." 8 C.F.R. § 204.5(a)
(emphasis added).
Our analysis of whether a Visa Petition constitutes a document
under § 1546(a) is simple: (1) absent the filing of a Visa Petition, an
alien cannot be classified by the INS; (2) absent classification by the
INS, an alien cannot obtain an employment-based visa; and (3) in the
absence of an employment-based visa, an alien may not legally enter
the United States for purposes of employment. Accordingly, a Visa
Petition constitutes a document prescribed by statute and regulation
for entry into the United States, and the district court did not err in
denying judgment of acquittal on the Visa Petition issue.
Notwithstanding these seemingly simple analyses, Ryan-Webster
maintains that, because neither a Certification Application nor a Visa
Petition constitutes the ultimate document presented to immigration
authorities for entry into the United States, neither falls within the
ambit of § 1546(a). She contends that Certification Applications and
Visa Petitions alone are insufficient for entry into the United States
and that an immigrant must ultimately obtain an immigrant visa.
Although accurately stated, this fact does not remove Certification
Applications and Visa Petitions from the reach of § 1546(a). Certifi-
cation Applications and Visa Petitions may be insufficient, in and of
themselves, to authorize entry into the United States, but they are
plainly prescribed by law as prerequisites thereof. As explained
UNITED STATES v. RYAN-WEBSTER 13
above, absent the filing of Certification Applications and Visa Peti-
tions, employment-based immigrant visas cannot be issued by the
INS. The fact that other documents may also be utilized by the
authorities for entry purposes does not alter the statutory and regula-
tory mandates governing Certification Applications and Visa Petitions.14
2.
Pursuant to the foregoing, the provisions of § 1546(a) are unambig-
uous, and the term "other document[s]" as used therein encompasses
the Certification Applications and Visa Petitions at issue here. As
such, our analysis of whether they are prescribed for entry into the
United States must end, unless Congress has clearly expressed an
intent to the contrary. See Buculei, 262 F.3d at 331; Sheek, 990 F.2d
at 152-53. In this instance, Congress has not expressed a contrary
intent. Instead, Congress, in amending the statute in 1986, expressed
its intent to broaden the types of documents included within the reach
of § 1546(a).
Prior to 1986, § 1546(a) specifically encompassed visas, permits,
and other documents required for entry into the United States. The
Supreme Court had occasion to construe the predecessor statute in
1971, and it did so narrowly. In United States v. Campos-Serrano,
404 U.S. 293 (1971), the Court affirmed the reversal of defendant’s
conviction under the predecessor § 1546(a),15 ruling that counterfeit
14
Our dissenting colleague maintains that Ryan-Webster should have
been charged under the fourth paragraph of § 1546(a), rather than under
the first paragraph thereof, and that the prosecution’s failure to charge
under the fourth paragraph constitutes reversible error. See ante at 19-21.
With all respect, we disagree. The issue we face is not whether the fourth
paragraph of § 1546(a) is a better fit for Counts 2, 3, and 5, but whether
the first paragraph of § 1546(a) is a proper statutory basis for those
charges. And as our analysis reflects, Counts 2, 3, and 5 are valid. When
criminal conduct contravenes more than one statute, it is within the pros-
ecutor’s discretion to choose the provision under which to charge. See
United States v. Brewer, 528 F.2d 492, 498 (4th Cir. 1975) ("When the
conduct violates overlapping statutes, the prosecutor can elect to charge
the defendant under either."); see also United States v. Batchelder, 442
U.S. 114, 123-24 (1979).
15
The relevant portion of the predecessor § 1546(a) provided in rele-
vant part: "whoever . . . knowingly forges, counterfeits, alters, or falsely
14 UNITED STATES v. RYAN-WEBSTER
alien registration receipt cards did not fall within its scope. The Court
interpreted § 1546(a) to include only a narrow class of "entry docu-
ments," and it observed that, although an alien registration receipt
card can sometimes be used by an alien to reenter the United States,
its essential purpose is "to identify the bearer as a lawfully registered
alien residing in the United States." Id. at 300. According to the
Court, "[t]he language of § 1546 denotes a very special class of
‘entry’ documents — documents whose primary raison d’être is the
facilitation of entry into the country." Id. at 299.
In 1986, Congress amended § 1546(a) to expand its reach. Signifi-
cantly, Congress replaced the phrase "required for entry" with the
phrase "prescribed by statute or regulation for entry," which is the
operative terminology that we must assess. In doing so, Congress
expressed the clear intention of broadening the types of documents
encompassed by § 1546(a). See H. Rep. No. 99-682(I), at 94 (1986)
(explaining that 1986 amendments expanded types of documents
within § 1546(a)); S. Rep. No. 99-132, at 31 (1985) (same). As the
Fifth Circuit explained in construing the 1986 amendments, "Con-
gress expanded the proscription of the statute from being limited to
required entry documents to any documents prescribed either by stat-
ute or by regulation for entry into the United States." United States
v. Osiemi, 980 F.2d 344, 346 (5th Cir. 1993) (emphasis in original)
(holding that counterfeit passports fall within "prescribed" language
of § 1546(a) even though they are not always "required for entry");
see also United States v. Rahman, 189 F.3d 88, 118-19 (2d Cir. 1999),
cert. denied, 528 U.S. 982 (2000) (agreeing with Osiemi that plain
language of § 1546(a) encompasses foreign passports). In specifying
documents prescribed by statute or regulation for entry into the
United States, rather than just those documents required for entry,
Congress expanded § 1546(a) to include documents such as the
forged Certification Applications and Visa Petitions underlying Ryan-
Webster’s convictions. In such circumstances, the district court did
makes any immigrant or nonimmigrant visa, permit, or other document
required for entry into the United States, or utters, uses, [or] possesses
any such visa, permit, or document, knowing it to be forged, counter-
feited, altered, or falsely made . . . [commits a felony]."
UNITED STATES v. RYAN-WEBSTER 15
not err when it denied judgment of acquittal as to Counts 2, 3, and
5.16
B.
Ryan-Webster next contends that the district court erred when it
identified an alleged unindicted co-conspirator, not named by the
grand jury, in its instructions to the jury. In instructing the jury, the
court stated, without objection: "Now, evidence has been received in
this case that a person, Nora Azenon-Gomez, the defendant’s legal
assistant, was a co-conspirator of the defendant and said things during
the existence or life of the alleged conspiracy in order to further
advance its goals." Ryan-Webster contends that this instruction con-
stituted an impermissible and erroneous modification of a form
instruction spelled out in a jury practice textbook. The form instruc-
tion provides that: "Evidence has been received in this case that cer-
tain persons, who are alleged in . . . the indictment to be co-
conspirators . . ., have done or said things during the existence or life
of the alleged conspiracy in order to further or advance its goal[s]."
O’Malley, Grenig & Lee, Federal Jury Practice and Instructions
§ 31.06 (5th ed. 2000) (emphasis added). Ryan-Webster’s contention
on this point has two prongs: (1) that the court’s reference to Azenon-
Gomez by name undermined the jury’s fact-finding role; and (2) that
the court’s statement that "evidence has been received" that Azenon-
Gomez was a co-conspirator constituted a "neon sign," effectively
instructing the jury to find Ryan-Webster guilty. As explained below,
this contention lacks merit and must be rejected.
16
Our dissenting colleague maintains that our decision renders the
word "application" in the fourth paragraph of § 1546(a) "entirely super-
fluous." See ante at 20. We disagree. While the fourth paragraph of
§ 1546(a) deals with documents containing false statements, the first
paragraph of § 1546(a) directly concerns documents containing, inter
alia, forgeries. And a person may make a false statement (chargeable
under the fourth paragraph) without forging an application (chargeable
under the first paragraph). Had Ryan-Webster made false statements but
not forged signatures on these applications, she may have been properly
chargeable under the fourth paragraph of § 1546(a) and not properly
chargeable under its first paragraph.
16 UNITED STATES v. RYAN-WEBSTER
First of all, because Ryan-Webster failed to object to this instruc-
tion at trial, we review her contention for plain error only. In order
to award relief on a plain error contention, we must be able to "(1)
identify an error, (2) which is plain, (3) which affects substantial
rights, and (4) which ‘seriously affect[s] the fairness, integrity or pub-
lic reputation of judicial proceedings.’" United States v. Brewer, 1
F.3d 1430, 1434-35 (4th Cir. 1993) (quoting United States v. Olano,
507 U.S. 725, 736 (1993)). Because there was no error in the instruc-
tion complained of, the first prong of this test is not met, and we need
not assess the other aspects of the plain error analysis.
In the circumstances of this trial, the court’s use of the witness’s
proper name in its instruction to the jury was appropriate. As Ryan-
Webster acknowledges, it was obvious under the evidence that
Azenon-Gomez was a co-conspirator; indeed, she was the only
employee at Ryan & Webster during the fraud scheme. Moreover,
Azenon-Gomez testified that she aided and assisted Ryan-Webster in
falsifying Certification Applications and Visa Petitions.
Finally, the instruction as given, that "evidence has been received"
that "Azenon-Gomez was a co-conspirator," constituted permissible
comment on the evidence by the trial court. As we have heretofore
observed, "the trial judge, in charging the jury, may comment upon
the evidence, so long as it is also clear that the jury determines all
matters of fact . . . ."17 United States v. Godwin, 272 F.3d 659, 678
17
As an elementary principle, we do not examine jury instructions in
isolation. Instead, "[i]n reviewing the adequacy of the instructions, we
‘accord the district court much discretion and will not reverse provided
that the instructions, taken as a whole, adequately state the controlling
law.’" United States v. Wills, 346 F.3d 476 (4th Cir. 2003) (quoting
Teague v. Bakker, 35 F.3d 978, 985 (4th Cir. 1994)). In giving the con-
tested instruction to the jury, the court further explained that "[s]uch acts
and statements of Nora Azenon-Gomez may be considered by you in
determining whether or not the Government has proven the charges in
count one of the indictment against the defendant." Additionally, the
court explained that "[n]othing I say in these instructions is to be taken
as an indication that I have an opinion about the facts of the case or what
that opinion is. It’s not my function to determine the facts. It is yours."
Viewing the instructions as a whole, as we must, the jury was adequately
advised of its role as the finder of fact.
UNITED STATES v. RYAN-WEBSTER 17
n.22 (4th Cir. 2001) (citing Quercia v. United States, 289 U.S. 466,
470 (1933)). The court’s reference to Azenon-Gomez constituted a
fair characterization of the evidence, and the instruction did not
express any opinion on whether the evidence was either convincing
or sufficient. In these circumstances, the instruction was not errone-
ous, and this assignment of error must be rejected.
IV.
Pursuant to the foregoing, we affirm Ryan-Webster’s convictions
and sentence.
AFFIRMED
WILLIAMS, Circuit Judge, concurring in part and dissenting in part:
Section 1546(a) of Title 18 is a comprehensive statute that indispu-
tably prohibits Ryan-Webster’s falsification of Certification Applica-
tions (ETA-750s) and Visa Petitions (I-140s). This conduct is
specifically and unambiguously proscribed by the fourth unnumbered
paragraph of § 1546(a), which prohibits persons from "knowingly
mak[ing] under oath, or . . . penalty of perjury . . . any false statement
with respect to a material fact in any application, affidavit, or other
document required by the immigration laws or regulations prescribed
thereunder." 18 U.S.C.A. § 1546(a) (West 2000 & Supp. 2003)
(emphasis added). The Government, for reasons unknown, chose to
charge Ryan-Webster only under the first paragraph of § 1546(a),
which makes it a crime knowingly to falsify "any immigrant or non-
immigrant visa, permit, border crossing card, alien registration receipt
card, or other document prescribed by statute or regulation for entry
into or as evidence of authorized stay or employment in the United
States." Id. (emphasis added). Because I disagree with my colleagues’
conclusion that the forms that Ryan-Webster falsified here are "other
documents" within the meaning of the first paragraph, I respectfully
dissent from Parts III.A. and IV. of the panel’s opinion. I concur in
the remainder of the opinion.
In interpreting statutes, our goal "is always to ascertain and imple-
ment the intent of Congress." Scott v. United States, 328 F.3d 132,
18 UNITED STATES v. RYAN-WEBSTER
138 (4th Cir. 2003). Accordingly, "[t]he first step of this process is
to determine whether the statutory language has a plain and unambig-
uous meaning." Id. at 139 (citing Barnhart v. Sigmon Coal Co., 534
U.S. 438, 450 (2002)). If the statutory language is unambiguous and
the statutory scheme is coherent and consistent, the inquiry ceases. Id.When assessing the ambiguity, or lack thereof, of statutory lan-
guage, courts "generally give words their ordinary, contemporary, and
common meaning." Id. But, the language itself is not the sole determi-
nant of meaning, or even of whether the language is ambiguous.
Courts also must refer to "the specific context in which that language
is used, and the broader context of the statute as a whole." Robinson
v. Shell Oil Co., 519 U.S. 337, 341 (1997). At bottom, my colleagues’
error lies in their failure to abide by this principle of statutory con-
struction. The majority’s analysis, ante at 9-14, has some persuasive
appeal if one reads the first paragraph’s catch-all phrase in isolation:
the phrase "other documents prescribed by statute or regulation for
entry into . . . the United States," without any context, could plausibly
be interpreted to cover application documents like the ETA-750 and
the I-140. 18 U.S.C.A. § 1546(a). These documents, as the majority
correctly notes, are "prescribed by statute or regulation" and, although
they do not themselves allow entry into the country, they are submit-
ted as part of one of the avenues through which an immigrant might
gain the right to lawfully "enter" the country. When read in context,
however, the first paragraph’s reach is unambiguously narrower.
Two canons of construction instruct us how properly to ascertain
the meaning of statutory language from the context in which it is
used. The first is the principle of ejusdem generis — i.e., "when a
general word or phrase follows a list of specific persons or things, the
general word or phrase will be interpreted to include only persons or
things of the same type as those listed." Black’s Law Dictionary 535
(7th ed. 1999); see also United States v. Parker, 30 F.3d 542, 552-53
n.10 (4th Cir. 1994) (applying ejusdem generis principle, and defining
it as providing that "a general statutory term should be understood in
light of the specific terms surrounding it" (internal quotation marks
omitted)). Here, the first paragraph presents a textbook ejusdem
generis scenario: a general phrase ("other document prescribed by
statute or regulation for entry into or as evidence of authorized stay
or employment in the United States"), the scope of which we are cal-
UNITED STATES v. RYAN-WEBSTER 19
led upon to interpret, follows a list of specific things ("any immigrant
or nonimmigrant visa, permit, border crossing card, alien registration
receipt card"). See 18 U.S.C.A. § 1546(a). Accordingly, the ejusdem
generis canon compels us to constrain the scope of the general phrase
to "other documents" of the same type as those specifically identified.
The enumerated documents in the first unnumbered paragraph have
common characteristics, none of which are shared by the ETA-750 or
the I-140. Each of these items is a final document issued by the gov-
ernment that has some independent evidentiary significance respect-
ing the legality of the bearer’s entry into or stay in the country. For
example, the "immigrant visa" is a document "issued by a consular
officer" signifying that the lawful bearer is "an eligible immigrant"
under the provisions of the federal immigration laws. See 8 U.S.C.A.
§ 1101(a)(16) (West 1999). Likewise, the "border crossing card" is a
document issued "by a consular officer or an immigration officer" sig-
nifying that the lawful bearer is "lawfully admitted for permanent res-
idence," or is a "resident in foreign contiguous territory" to whom the
card was issued "for the purpose of crossing over the borders between
the United States and foreign contiguous territory" in accordance with
the conditions of issuance. 8 U.S.C.A. § 1101(a)(6). The "alien regis-
tration receipt card" similarly is a document issued by the government
that signifies that the lawful bearer has complied with the require-
ments of the Alien Registration Act of 1940. See 8 U.S.C.A.
§ 1304(d) (West 1999). Because each of these documents signifies
that the holder has been found by the government to have complied
with some aspect of the immigration laws, they are documents of a
type that an alien or immigrant might be required to present to immi-
gration authorities in order to gain entry into or prove the lawfulness
of one’s stay in the United States. Accordingly, pursuant to the princi-
ple of ejusdem generis, the catch-all phrase "other document pre-
scribed by statute for entry into . . . the United States" must be limited
to documents of the same type — i.e., final documents issued by the
government that have independent evidentiary significance that one
might be expected to present to an immigration official, either to gain
entry into the country or to prove the lawfulness of one’s stay in the
country.
The ETA 750 and I-140 forms have none of these characteristics.
First, the government plays no role in the completion of these docu-
20 UNITED STATES v. RYAN-WEBSTER
ments. Applicants and applicants’ employers fill them out and submit
them. Second, the documents have no evidentiary significance regard-
ing the immigration status of the holder — they are simply applica-
tions, representing nothing more than the applicant’s and/or his
employer’s desire that the applicant gain the right to enter or remain
in the country legally. Consequently, these forms are not the type of
documents that a person might present to immigration officials to gain
entry into the country. In sum, the ETA-750 and the I-140 are not
documents of the type enumerated in the first paragraph, and there-
fore they do not fall within that paragraph’s catch-all phrase.
A second interpretive canon, the rule against superfluity, confirms
that this is the proper construction of the first paragraph. Under the
rule against superfluity, "[w]here possible, we must give effect to
every provision and word in a statute and avoid any interpretation that
may render statutory terms meaningless or superfluous." Scott, 328
F.3d at 139 (citing Freytag v. Comm’r Internal Revenue, 501 U.S.
868, 877 (1991)). The interpretation of the first paragraph that the
majority adopts renders superfluous much of the fourth paragraph, if
not the paragraph in its entirety.
As noted above, the fourth paragraph of § 1546(a) makes it a crime
for persons to "knowingly mak[e] under oath, or . . . penalty of per-
jury . . . any false statement with respect to a material fact in any
application, affidavit, or other document required by the immigration
laws or regulations prescribed thereunder." 18 U.S.C.A. § 1546(a)
(emphasis added). Fairly read, the majority’s interpretation of the
catch-all phrase encompasses any document required by statute or
regulation that an immigrant must submit under any immigration pro-
gram. At a minimum, the majority’s interpretation renders the word
"application" in the fourth paragraph entirely superfluous because, if
the majority’s interpretation of the first paragraph includes application
forms like the ETA 750 and the I-140, then it encompasses all other
similar "application" documents. Moreover, the majority’s failure to
cabin the first paragraph’s catch-all phrase in any way renders super-
fluous the rest of the paragraph as well. After all, "affidavits [and]
other document[s] required by the immigration laws or regulations
prescribed thereunder" are documents "prescribed by statute or regu-
lation" as part of some process governing the entry or stay of immi-
UNITED STATES v. RYAN-WEBSTER 21
grants in this country, and as such, they would fall within the
majority’s capacious construction.*
In summary, 18 U.S.C.A. § 1546(a), properly construed, is unam-
biguous as it relates to falsified forms ETA 750 and I-140. Falsifica-
tion of such forms is covered under the fourth paragraph of the statute
and not the first. Therefore, the Government charged Ryan-Webster
under the wrong provision of § 1546(a), and the district court erred
both in denying Ryan-Webster’s motion for judgment of acquittal as
to Counts 2, 3 and 5, and in instructing the jury that forms ETA 750
and I-140 qualified as documents covered by the first paragraph.
Accordingly, I would reverse Ryan-Webster’s conviction as to Counts
2, 3 and 5, and remand the case for re-sentencing. Because my col-
leagues conclude otherwise, I respectfully dissent from Parts III.A.
and IV. of the panel’s opinion.
*In footnote 16 of the majority opinion, my colleagues contend that
their construction of the first paragraph does not render the word "appli-
cation" in the fourth paragraph entirely superfluous because the first
paragraph deals with forgeries, a type of conduct different from the mak-
ing of false statements, which is covered by the fourth paragraph. The
first paragraph, however, is concerned with more than just forgery — it
makes criminal the use or possession of documents known to be "forged,
counterfeited, altered or falsely made." 18 U.S.C.A. § 1546(a) (emphasis
added). Therefore, the majority’s suggestion that "[h]ad Ryan-Webster
made false statements but not forged signatures on these applications,
she may have been properly chargeable under the fourth paragraph of
§ 1546(a) and not properly chargeable under its first paragraph," see ante
at 15 n.16, is, I respectfully submit, not accurate. An application with
false statements is without question one that is "falsely made."