United States v. Hendricks , 69 F. App'x 592 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4974
ROBERT C. HENDRICKS,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4975
JOYCE E. PERDUE, a/k/a Pastor Joyce,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4976
ELIZABETH BROWN,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-98-515-MJG)
Submitted: April 30, 2003
Decided: June 26, 2003
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
2 UNITED STATES v. HENDRICKS
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas L. Crowe, LAW OFFICES OF THOMAS L. CROWE, Balti-
more, Maryland; Richard D. Bennett, Sean P. Vitrano, MILES &
STOCKBRIDGE, P.C., Baltimore, Maryland; John C. Fones, LAW
OFFICES OF JOHN C. FONES, Baltimore, Maryland, for Appel-
lants. Thomas M. DiBiagio, United States Attorney, Bonnie S. Green-
berg, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Robert C. Hendricks, Joyce E. Perdue and Elizabeth Brown were
convicted at a bench trial for conspiracy to commit visa and immigra-
tion fraud, 18 U.S.C. § 371 (2000), six counts of visa fraud, 18 U.S.C.
§ 546 (2000), and ten counts of immigration fraud, 18 U.S.C. § 1324(2000). Hendricks and Perdue were convicted of an additional count
of visa fraud, 18 U.S.C. § 546. They appeal the introduction of evi-
dence of activities related to the adoption of Estonian children, certain
elements in the imposition of their sentences, and a special condition
imposed on their supervised release. Finding no error, we affirm the
convictions and sentences as imposed by the district court.
Defendants are devout Pentecostal Charismatic Christians and
members of the World Faith Outreach Church. Perdue is the Pastor
and spiritual head of the church. Hendricks is the Associate Pastor.
Brown is an active church member and the head of the children’s
ministry and the music ministry. Beginning in 1990, the church
UNITED STATES v. HENDRICKS 3
embarked on a series of missions to Estonia. In 1992, Defendants
moved to Estonia.
In 1997, Defendants returned to the United States. Thirteen Esto-
nians between the ages of thirteen and eighteen sought and received
religious worker or student visas to enter the United States with the
Defendants. The Defendants instructed the Estonians to state in their
student visa applications that they would not work while in the United
States and in their religious worker applications that they would only
engage in religious work. The Defendants, however, required the
Estonians, including the minors, to work in the cleaning company or
the furniture installation company they owned, which had been the
Defendants’ intention when they recruited the Estonians. The students
attended school irregularly. The Estonians were paid ten to one-
hundred dollars a week for their labor.
In addition to the cleaning company and the furniture installation
company, the Defendants also owned an adoption agency that sought
fraudulent visas for women to come to the United States with their
children who were to be placed with adoptive families. In the course
of seeking to place children with families in the United States, the
Defendants attempted to escape the notice of the Estonian officials
that they were seeking babies to remove from Estonia, obtained false
visas to bring the children to the United States, paid the mothers of
the children who were to be adopted and encouraged adoptive parents
to write checks for adoption fees to the church so they could be
treated as charitable contributions.
In May 1999, Perdue, Hendricks, and Brown pled guilty to Count
One of the indictment but preserved their right to appeal the district
court’s ruling on the Government’s motion in limine. That motion
sought to prevent the Defendants from presenting evidence that they
had a good faith belief the immigrants were not performing work
within the meaning of the Immigration and Naturalization Service’s
regulations in order to negate the mens rea required by the statutes.
The remaining counts of the indictment were dismissed. Brown was
sentenced to a term of imprisonment of twelve months, Hendricks
was sentenced to a term of imprisonment of twenty-four months, and
Perdue was sentenced to a term of imprisonment of twenty-seven
months. On appeal, this Court determined the district court had not
4 UNITED STATES v. HENDRICKS
considered the most relevant case authority on the issue of the mens
rea requirements of § 1324(a) and remanded for re-consideration
under United States v. Oloyede, 982 F.2d 133 (4th Cir. 1992). United
States v. Hendricks, No. 99-4562(L), 2000 WL 341914, at **3-4 (4th
Cir. Apr. 3, 2000) (unpublished).
Following remand, a bench trial was held, and the district court
entered its memorandum of decision finding all Defendants guilty of
all counts. Perdue was sentenced to a term of seventy-two months
imprisonment, Hendricks to a term of seventy-eight months imprison-
ment, and Brown to a term of fifteen months imprisonment. As a spe-
cial term of supervised release, the Defendants were precluded from
communicating with each other.
First, Defendants appeal the district court’s denial of their motion
in limine to exclude evidence relating to the New Life Adoption
Agency and their involvement with the adoption of Estonian children
by Americans. Defendants assert the district court erred in its holding
that the evidence was direct evidence of the conspiracy charged in
Count One of the indictment and, alternatively, that the evidence was
admissible under Fed. R. Evid. 404(b). Defendants also assert evi-
dence of acts relating to adoptions that occurred before the period
charged in the indictment were not proper Rule 404(b) evidence
because the probative value of such evidence was severely out-
weighed by the actual prejudice to the Defendants.
In denying the motion in limine, the district court found the lan-
guage of the indictment broad enough to encompass the proffered evi-
dence of the conspiracy if the Defendants were, within the time frame
charged in the indictment, causing Estonian mothers to make false or
misleading statements to obtain or seek to obtain visas. The court
stated that even if the adoption evidence fell under Rule 404(b), it was
evidence of criminal intent and would contradict contentions of good
faith. Fed. R. Evid. 404(b). The district court reaffirmed its ruling dur-
ing the course of the trial when the Government introduced two docu-
ments dated prior to the period of the indictment. The court clarified
that evidence of acts prior to the date of the indictment would be Rule
404(b) evidence and admissible as such. We find this reasoning to be
sound. The activities related to the Defendants’ attempts to place
Estonian children in adoptive homes in the United States were
UNITED STATES v. HENDRICKS 5
undertaken in violation of the law. The instructions to prepare false
and misleading responses on the visa applications for both the teenage
Estonians and the mothers seeking to put their children up for adop-
tion were part of the same conspiracy that was specifically identified
in the indictment. Moreover, the evidence related to the Defendants’
manipulation of the visa process for the mothers, which helped to
explain the nature of the conspiracy and to fill in the details of the
crime. See United States v. Kennedy, 32 F.3d 876, 885-86 (4th Cir.
1994); United States v. Mark, 943 F.2d 444, 448 (4th Cir. 1991). We
find there was no abuse of discretion in the court’s finding that the
adoption evidence was admissible as evidence of the visa fraud con-
spiracy and the evidence of prior acts was properly admitted as Rule
404(b) evidence. United States v. Rawle, 845 F.2d 1244, 1247 (4th
Cir. 1988). We also find the motion in limine was properly denied.
See Malone v. Microdyne Corp., 26 F.3d 471, 480 (4th Cir. 1994)
(stating standard of review).
Next, Defendants raise several issues related to their sentences.
First, Defendants assert the district court vindictively increased their
sentences after remand from this court. There is no presumption of
vindictiveness when a district court imposes a greater penalty after
trial than was imposed after a prior guilty plea. Alabama v. Smith, 490
U.S. 794, 801-02 (1989). At the eleven-day trial on remand, numer-
ous prosecution witnesses (including the customers of the cleaning
and furniture installation companies that employed the Estonians, a
school official, and church members) were presented. Hendricks testi-
fied. There were over two hundred documents introduced at trial. The
sentence imposed by the district court was proper under the sentenc-
ing guidelines. See United States v. Olivares, 292 F.3d 196, 198 & n.2
(4th Cir.), cert. denied, 123 S. Ct. 41 (2002). Defendants’ assertion
that the district court was vindictive in the imposition of sentence
upon remand is meritless.
Next, Perdue and Hendricks contend the district court improperly
enhanced their base offense levels for abuse of trust and improperly
enhanced Hendricks’ sentence for obstruction of justice. This Court
reviews the district court’s application of the sentencing enhance-
ments de novo, and factual findings with respect to sentencing for
clear error. United States v. Bollin, 264 F.3d 391, 415 (4th Cir.), cert.
denied, 534 U.S. 935 (2001).
6 UNITED STATES v. HENDRICKS
Hendricks and Perdue assert the victim of their false statements
was the United States Government and they did not occupy a position
of trust vis-a-vis the Government. The district court found that Hen-
dricks and Perdue occupied positions of trust as Pastor and Assistant
Pastor in relation to the Estonians and abused that trust. The district
court’s determination that an adjustment for abuse of trust applies is
a factual question reviewed for clear error. United States v. Akinkoye,
185 F.3d 192, 203 (4th Cir. 1999). We find the district court did not
clearly err in its factual finding that Hendricks and Perdue occupied
a position of trust vis-a-vis the Estonians and they betrayed that trust
such that the application of U.S. Sentencing Guidelines Manual
§ 3B1.3 (2000) was appropriate.
Hendricks appeals the district court’s application of a two-level
adjustment for obstruction of justice, USSG § 3C1.1. Hendricks was
the only Defendant to testify at trial, and the district court found that
Hendricks lied about four distinct matters. Hendricks contends that
these matters were not material matters upon which he gave false tes-
timony with the willful intent to deceive and related only to his per-
sonal knowledge and his intent. We find the record supports the
district court’s enhancement for obstruction of justice. See United
States v. Stotts, 113 F.3d 493, 497 (4th Cir. 1997) (citing United
States v. Dunnigan, 507 U.S. 87, 94 (1993)).
Third, Hendricks and Perdue challenge the application of a two-
level departure to the base offense level for abuse of the teenagers
pursuant to USSG § 5K2.0 and a one level departure based on the tax
fraud scheme. Hendricks and Perdue assert they did not receive ade-
quate notice of the court’s intent to depart upward. The court notified
the Defendants that it was contemplating departures on Friday,
November 16, 2001. Sentencing was Monday, November 19, 2001.
A district court must give reasonable notice that it is contemplating
an upward departure when the ground for the departure is not identi-
fied in the presentence report or a prehearing submission by the gov-
ernment. Burns v. United States, 501 U.S. 129, 138 (1991). Both
factual bases for the upward departures were raised in the Govern-
ment’s sentencing memorandum filed on November 9, 2001. The
Government sought an upward departure pursuant to USSG § 5K2.3
(psychological injury) based on the impact the Defendants had on the
teenagers’ lives. The Government also sought an upward departure
UNITED STATES v. HENDRICKS 7
for uncharged conduct including the tax fraud in that same memoran-
dum. This claim is thus meritless because Hendricks and Perdue had
adequate notice of the factual bases for the departures in the Govern-
ment’s sentencing memorandum.
Hendricks and Perdue assert the court’s finding of abuse of chil-
dren pursuant to USSG § 5K2.0 is unsupported in the record. This
contention is meritless. The court’s ultimate decision to depart is
reviewed for abuse of discretion, but its underlying factual findings
are reviewed for clear error. United States v. Rybicki, 96 F.3d 754,
756-57 (4th Cir. 1996). Our review of the record demonstrates the
district court did not clearly err in its finding that the children were
abused.
Hendricks and Perdue assert the fraud in which they engaged as
part of the scheme to bring the Estonians to the United States on visas
acquired with fraudulent applications is not outside the heartland of
the offense contemplated by the guidelines. They contend immigra-
tion fraud involving illegal workers normally includes such elements
as lack of workers’ compensation insurance and failure to deduct and
pay payroll taxes. They also aver that to the extent the degree of fraud
may take their case out of the heartland, it is mitigated by their belief
that the Estonians were volunteers, not employees.
The district court found it appropriate to depart upward two levels
because the evidence presented was "outside the heartland of normal
cases involving visa fraud." Id., at 758. The court specifically men-
tioned: (1) the adoption scheme, which was charged but not in the
heartland of the visa fraud, including the use of innocent third parties
to sponsor mothers and their children in conjunction with the pur-
chase and attempted purchase of babies in Estonia for adoption in the
United States; (2) the tax fraud scheme involving the acceptance of
charitable deductions for adoption fees using the presumed tax
exempt status of the church; and (3) the insurance fraud involving the
acquisition of workers’ compensation insurance that covered Hen-
dricks only and not the Estonians, so that the cleaning service could
provide businesses with proof of insurance. We find the district court
did not clearly err in its factual findings and did not abuse its discre-
tion in departing upward for the scope of the fraud perpetuated by
Hendricks and Perdue.
8 UNITED STATES v. HENDRICKS
Fourth, Defendants assert the district court’s imposition as a special
term of supervised release that "the defendant shall not meet or com-
municate with co-defendants," is overbroad, not narrowly tailored to
meet the ends of rehabilitation and to protect the public, and an
improper restriction on their First Amendment right of free associa-
tion. The district court’s decision to impose special conditions of
supervised release is reviewed for abuse of discretion. United States
v. Crandon, 173 F.3d 122, 127 (3d Cir. 1999). "Probation conditions
may seek to prevent reversion into a former crime-inducing lifestyle
by barring contact with old haunts and associates, even though the
activities may be legal." United States v. Bolinger, 940 F.2d 478, 480
(9th Cir. 1991) (citing Malone v. United States, 502 F.2d 554, 556-57
(9th Cir. 1974)); see also United States v. Bortels, 962 F.2d 558, 559-
60 (6th Cir. 1992); United States v. Showalter, 933 F.2d 573, 575-76
(7th Cir. 1991). We find the restrictions placed on the Defendants do
not unnecessarily interfere with the Defendants’ right to associate.
Accordingly, we affirm Perdue’s, Hendricks’ and Brown’s convic-
tions and sentences. We deny Hendricks’ motion to file a pro se sup-
plemental brief. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid in the decisional process.
AFFIRMED