United States v. Gregory Garcia , 855 F.3d 615 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4224
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
GREGORY GARCIA, a/k/a Gregory Garcia Perez,
Defendant − Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Max O. Cogburn, Jr., District Judge. (3:15−cr−00040−MOC−DSC−1)
Argued: March 30, 2017 Decided: May 2, 2017
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge Shedd
and Judge Agee joined.
ARGUED: William Robinson Heroy, GOODMAN, CARR, LAUGHRUN, LEVINE &
GREENE, PLLC, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee. ON BRIEF: Chris Greene, GREENE & ASSOCIATES, INC., Charlotte,
North Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
DUNCAN, Circuit Judge:
Defendant-Appellant Gregory Garcia appeals his conviction on two counts of
unlawful procurement of naturalization, in violation of 18 U.S.C. § 1425(a). On appeal,
Garcia argues that the district court erred by (1) denying his post-trial motions for
judgment of acquittal and a new trial, and (2) taking judicial notice of a portion of the
U.S. Citizenship and Immigration Services’ (“USCIS”) website. For the reasons that
follow, we affirm.
I.
The jury convicted Garcia for giving false and misleading statements about his
criminal history during the naturalization process, on or about November 9, 2006
(Count 1) and August 14, 2007 (Count 2). Garcia’s appeal turns on the sequence of the
following relevant events, which we recount in detail below: (1) on May 31, 2006, Garcia
first met with a USCIS officer; (2) on August 23, 2006 and September 15, 2006, Garcia
was indicted on and arrested for federal fraud charges; (3) on November 9, 2006, Garcia
appeared for a follow-up meeting with a second USCIS officer; and
(4) on August 14, 2007, Garcia took his naturalization oath.
A.
Garcia immigrated to the United States in 1993 and became a lawful permanent
resident. In early 2005, he filed an application to become a naturalized citizen. The
naturalization process required Garcia to submit a standardized application form
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(“Form N-400”), appear in person for questioning, and pass tests designed to elicit his
knowledge of U.S. history and government, as well as written and spoken English.
On May 31, 2006, Garcia appeared for an in-person meeting with USCIS Officer
Jason Rucienski. During the meeting, Officer Rucienski tested Garcia on his civics and
English knowledge, and reviewed Garcia’s criminal history. Garcia passed the civics
examination, but failed the language test. Officer Rucienski provided Garcia with an
“interview results” form, explaining that Garcia had failed the language test and would
have a second chance to take it. J.A. 685. He also informed Garcia that he needed to
bring a certified record concerning an incident in his criminal history to the next meeting.
On August 23, 2006, a federal grand jury indicted Garcia on charges related to a
conspiracy involving credit-card and identity fraud. Authorities arrested Garcia on
September 15, 2006, and he made his initial appearance in federal court that day. He
later pleaded guilty to two of the charges. Slightly more than a month after Garcia’s
arrest, USCIS sent Garcia a notice scheduling him to appear on November 9, 2006, for a
“Re-Examination for Reading, Writing, or Speaking English,” and “Naturalization
Re-Interview.” J.A. 689.
On November 9, 2006, Garcia appeared for a meeting with USCIS Officer Kevin
Winn. Officer Winn retested Garcia on his English skills, and Garcia passed. Officer
Winn also reviewed with Garcia his Form N-400. Questions 16 and 17 asked whether
Garcia had ever been “arrested, cited, or detained by any law enforcement officer” or
“charged with committing any crime.” J.A. 678. Garcia listed two criminal incidents in
New Jersey from the late 1990s, but he did not disclose the federal charges for which he
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had been indicted and arrested several months earlier. Question 23 asked whether Garcia
had ever given false or misleading information to any U.S. official while applying for any
immigration benefit, and Garcia checked the box designated as no. Garcia then
signed Form N-400, certifying under penalty of perjury that the contents of the form were
true and correct. Officer Winn recommended Garcia’s application for approval.
USCIS approved Garcia’s application in July 2007 and scheduled him to appear
for a naturalization oath ceremony on August 14, 2007. The ceremony notice included
Form N-445, asking whether Garcia had been, inter alia, cited, arrested, indicted, or
convicted of any crime “AFTER the date you were first interviewed.” J.A. 696.
Although Garcia checked yes, he told USCIS Officer Edna Falls at the oath ceremony
that his only intervening offense was a speeding violation, which Officer Falls noted on
the form. Garcia never disclosed his August 2006 indictment or September 2006 arrest
on federal charges. Garcia signed Form N-445 on August 14, 2007, certifying that it was
true and correct. He became a naturalized citizen that day.
B.
On February 19, 2015, federal prosecutors charged Garcia with two counts of
violating § 1425(a), based on his knowing failure to disclose his federal charges. Garcia
pleaded not guilty and proceeded to trial.
1.
At the close of evidence, Garcia moved for judgment of acquittal. As to count
one, he argued that there was insufficient evidence he was asked about his criminal
history during his interview with Officer Winn on November 9, 2006. As to count two,
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he argued that his May 2006 meeting with Officer Rucienski did not qualify as a
naturalization “interview,” but only an examination on the civics and language portions
of the process. Because, on this theory, he was not “interviewed” until
November 9, 2006 with Officer Winn, his Form N-445 accurately stated that he had not
been arrested or charged with any crimes after the date he was “first interviewed.”
The district court denied the motion based on the evidence presented at trial.
Supporting count one, Officer Winn testified that Garcia never disclosed his pending
federal charges during the November interview, though he could not tell from the
completed form whether he or the prior officer had asked particular questions. The
government also introduced the Form N-400 that Garcia signed on November 9, 2006,
which showed that he both falsely failed to acknowledge his recent federal charges, and
certified that his answers were true and correct.
As relevant to count two, the government elicited testimony supporting the view
that Garcia was first interviewed on May 31, 2006. For example, the government’s case
agent testified that in May 2006, Officer Rucienski was the first USCIS officer to
interview Garcia, and Officer Winn testified that he was the second USCIS officer to
interview Garcia. USCIS Officer Beth Barbee testified that if an applicant fails the civics
or language test during his “initial interview,” he is scheduled to return for “a second
interview.” J.A. 173–74. She confirmed that the language and civics testing is part of the
“naturalization interview.” J.A. 194–95. Finally, Officer Falls testified that she reviewed
Garcia’s answer to the question on Form N-445 asking whether there had been any new
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criminal incidents after his first interview and that Garcia reported only a speeding
citation.
2.
Before closing statements, the district court inquired about what constitutes an
“N-400 interview,” and reported that his law clerk found information on the USCIS
website generally describing the naturalization process. J.A. 476–78. The relevant
portion of the website stated: “During your naturalization interview, a USCIS Officer will
ask you questions about your application and background. You will also take an English
and civics test unless you qualify for an exemption or waiver.” J.A. 738.2. Garcia
objected to the district court’s consideration of the website excerpt, but the district court
concluded it could take judicial notice of the information. Garcia subsequently asked the
district court to take judicial notice of the USCIS Policy Manual, which the district court
agreed to do. The district court took judicial notice of a portion of the manual that
provided that the naturalization process includes all factors relating to eligibility,
including in-person interviews and language and civics testing. The court read all of the
judicially noticed facts to the jury.
The jury convicted Garcia on both counts of the indictment, and the district court
denied his post-trial motions. Garcia timely appealed.
II.
Under 18 U.S.C. § 1425(a), it is unlawful to knowingly procure or attempt to
procure naturalization or citizenship in a manner contrary to law. The government can
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prove a violation by showing that the defendant “knowingly misstated his criminal record
on his application or in his interview.” United States v. Pasillas-Gaytan,
192 F.3d 864, 868 (9th Cir. 1999).
On appeal, Garcia argues that the district court erred by (1) denying his motions
for judgment of acquittal and a new trial, and (2) taking judicial notice of the website
excerpt. We discuss each argument in turn.
A.
Garcia’s arguments are the same for both his motion for judgment of acquittal and
for a new trial: his convictions cannot stand because he did not knowingly make a false
statement in November 2006 or August 2007. We review the district court’s denial of a
motion for judgment of acquittal de novo. United States v. White, 810 F.3d 212, 228 (4th
Cir. 2016). Viewing the evidence in the light most favorable to the government, we ask
whether “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
We review the district court’s denial of a motion for a new trial for abuse of discretion,
but assess any legal determinations de novo. United States v. Parker, 790 F.3d 550, 558
(4th Cir. 2015). Under the standard for a new trial, the district court should only overturn
a jury verdict in the “rare circumstance” when the verdict is against the great weight of
the evidence. United States v. Smith, 451 F.3d 209, 217 (4th Cir. 2006). We have little
hesitation concluding that the record contains sufficient evidence of Garcia’s knowing
misstatements.
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1.
As to count one, Garcia contends that there was no evidence Officer Winn actually
asked him questions about his criminal history on November 9, 2006, and so the jury’s
conclusion that he knowingly misstated his criminal history on that date was unsupported
by the record. We disagree.
By signing his Form N-400 on November 9, Garcia attested that he knew the
contents of the form and that they were “true and correct.” J.A. 680. They were not.
The form omits any reference to Garcia’s August indictment or September arrest and
affirms that Garcia had never given false or misleading information to any U.S. official
while trying to gain an immigration benefit. Garcia’s criminal intent can be inferred from
the fact that he listed two prior criminal incidents from years earlier, but not the pending
charges that began several months before the interview. Moreover, Officer Rucienski
directed Garcia to bring documentation concerning his prior criminal history with him to
the November 9, 2006 meeting, indicating that Garcia knew he needed to keep his
criminal history updated. For these reasons, even without evidence that Officer Winn
specifically asked Garcia questions about his criminal history, the jury had sufficient
evidence to reasonably conclude that Garcia knowingly misstated his criminal record
when he signed the inaccurate Form N-400 on November 9, 2006. 1
1
Garcia’s argument that he lacked criminal intent because he did not understand
written English is without merit. Garcia passed the written English exam, and Officer
Winn testified that Garcia had no trouble communicating in English during the interview.
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2.
The basis for count two is Garcia’s attestation on Form N-445 that the only time
he had been arrested or cited since the date he was “first interviewed” was for speeding.
J.A. 697. Garcia contends that his first interview was the interview with Officer Winn on
November 9, 2006, because the meeting with Officer Rucienski on May 31, 2006 did not
count as an “interview,” but only an examination of his English and civics knowledge.
Under this view, his August 2006 indictment and September 2006 arrest occurred before
the date he was “first interviewed,” making the statement on his Form N-445 accurate.
This argument is unavailing. The government presented sufficient evidence for the jury
to conclude that Officer Rucienski interviewed Garcia on May 31, 2006, and Garcia’s
counsel acknowledged as much at oral argument. 2
The evidence showed that: (1) Officer Rucienski provided Garcia with a form
titled “interview results” after their meeting, J.A. 685; (2) Garcia was instructed to appear
for a “Naturalization Re-interview” with Officer Winn, J.A. 689 (emphasis added); and
(3) Officer Winn testified that he was the second person to interview Garcia,
see J.A. 388–89. Furthermore, Officer Barbee’s testimony that the language and civics
tests were part of the naturalization interview supports the conclusion that Officer
Rucienski interviewed Garcia even if he did nothing more than conduct those tests. But
2
The government contends that even if the November interview with Officer
Winn were the first “interview,” Garcia still lied because he failed to disclose that he
pleaded guilty to the fraud charges after that interview. Because we conclude that there
was sufficient evidence that Garcia was interviewed in May, we need not reach this
alternative theory.
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even on a narrow view of what constitutes an “interview,” the evidence indicated that
Officer Rucienski did more than just conduct testing. Officer Rucienski instructed Garcia
to bring additional documents concerning his criminal history to the follow-up meeting,
which implies that Officer Rucienski interviewed Garcia concerning his criminal history
in May 2006. Therefore, Garcia’s Form N-445, which failed to disclose his indictment
and arrest that occurred after this interview, was not accurate. 3
The jury also had before it sufficient evidence to conclude that Garcia acted
knowingly. The documents Garcia received from USCIS indicated that Officer
Rucienski had interviewed Garcia in May 2006, and Garcia knew that he had not
previously disclosed his federal charges. His failure to do so at the oath ceremony on
Form N-445, despite disclosing a speeding ticket, supports the inference that Garcia acted
with the requisite intent.
In sum, substantial evidence supported Garcia’s convictions on counts one and
two. Therefore, the district court properly denied Garcia’s motions for judgment of
acquittal and a new trial.
3
Garcia argues that the government’s case agent testified on cross-examination
that she could not identify a false statement on his Form N-445. But the agent made this
statement in the course of questioning from Garcia’s counsel that assumed Garcia was
not interviewed until November 9, 2006. See J.A. 320–23. As discussed above, the
government presented sufficient evidence to demonstrate that Garcia was in fact
interviewed in May 2006. And on re-direct, the case agent testified that the November
interview was Garcia’s second interview. See J.A. 364–67.
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B.
Finally, Garcia contends that the district court erred when it took judicial notice of
a portion of the USCIS website because the website supported the government’s view of
an “interview.” We review a district court’s evidentiary rulings for abuse of discretion.
United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010). Erroneous evidentiary
rulings are harmless so long as we are assured that they did not substantially sway the
judgment. Id. We find no merit in Garcia’s argument.
Under Federal Rule of Evidence 201(b), the district court may judicially notice a
fact that is not subject to reasonable dispute when it is either (1) generally known within
the district court’s jurisdiction, or (2) can be readily determined from an indisputably
accurate source. This court and numerous others routinely take judicial notice of
information contained on state and federal government websites.
See, e.g., Hall v. Virginia, 385 F.3d 421, 424 n.3 (4th Cir. 2004); Garling v. U.S. Envtl.
Prot. Agency, 849 F.3d 1289, 1297 n.4 (10th Cir. 2017); Swindol v. Aurora Flight Sci.
Corp., 805 F.3d 516, 519 (5th Cir. 2015).
Here, the USCIS website is a source whose accuracy cannot reasonably be
questioned. The portion of the website as to which the district court took judicial notice
simply described in general terms the process for naturalization. Garcia’s contention that
the district court’s notice of the excerpt effectively credited the government’s
interpretation of an “interview” is unavailing. The district court took judicial notice of
the facts contained on the website, not any interpretation of what constitutes a
naturalization interview. The excerpt does not purport to define an “interview,” and it is
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at least susceptible to multiple readings. Garcia has not identified anything he believes to
be inaccurate about the excerpt, relying instead on his concern that the jury may have
inferred something detrimental to his case from its structure. But a document does not
become inappropriate for judicial notice just because a jury could draw inferences that
might impact one party’s theory of the case. The district court acted well within its
discretion when it took judicial notice of the facts contained on the government website. 4
III.
Because we discern no error, the judgment of the district court is
AFFIRMED.
4
Even assuming the district court did err in admitting the portion of the website, it
was harmless. The government presented sufficient evidence as to the nature of an
interview that we are assured the judgment was not substantially swayed by any potential
error. Johnson, 617 F.3d at 292.
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