United States v. Valeriy Tsoy

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14095
Non-Argument Calendar
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D.C. Docket No. 6:17-cr-00205-PGB-KRS-7
VALERIY TSOY,
Defendant-Appellant,
versus
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 18, 2019)
Before WILLIAM PRYOR, GRANT, and HULL, Circuit Judges.
PER CURIAM:
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Valeriy Tsoy appeals his conviction for marriage fraud in violation of 8
U.S.C. § 1325(c). Tsoy argues that the evidence was insufficient to sustain his
conviction, because it did not support a finding that he intended to enter into a
marriage for the purpose of evading immigration laws. After thorough review, we
affirm.
I.
Tsoy, a native of Kazakhstan, came to the United States in 2011 on a
temporary student visa. When his visa expired, Tsoy paid Denis Yakovlev—a
sham marriage broker who arranged over one hundred fraudulent marriages before
he was apprehended—to find him an American bride. April Moore, an exotic
dancer and heroin user from Brevard County, agreed to marry Tsoy because she
needed the money. Tsoy and Moore were married at a courthouse in Brevard
County on July 6, 2015.
Unfortunately for the newlyweds, the Department of Homeland Security
soon caught wind of Yakovlev’s marriage fraud enterprise. Yakovlev pled guilty,
and in 2017, a grand jury indicted a number of his associates and customers—
including both Tsoy and Moore. Moore was convicted before Tsoy, and she
decided to testify against him—even though the government promised her nothing
in exchange—“[b]ecause I was found guilty for marriage fraud and my husband
would like to say that he’s not guilty, which is a lie.”
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After a two-day trial, a jury found Tsoy guilty of marriage fraud in violation
of 8 U.S.C. § 1325(c). The district court sentenced him to time served and one
year of supervised release. This appeal followed.
II.
We ordinarily review the sufficiency of the evidence de novo, drawing all
reasonable inferences and making all credibility determinations in favor of the
verdict. United States v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996). Evidence is
sufficient if “a reasonable trier of fact could find that the evidence established guilt
beyond a reasonable doubt.” Id. Here, however, because Tsoy moved for a
judgment of acquittal after the government’s case-in-chief but failed to renew his
motion at the close of all of the evidence, he has “waived any objection to the
sufficiency of the evidence.” United States v. Bichsel, 156 F.3d 1148, 1150 (11th
Cir. 1998). Accordingly, we will reverse his conviction only if we find “a manifest
miscarriage of justice”—that is, if the evidence “on a key element of the offense is
so tenuous that a conviction would be shocking.” Id. (quoting United States v.
Williams, 144 F.3d 1397, 1402 (11th Cir. 1998).
To prove marriage fraud, the government had to show that (1) Tsoy
“knowingly entered into a marriage” (2) “for the purpose of evading any provision
of the immigration laws.” United States v. Rojas, 718 F.3d 1317, 1320 (11th Cir.
2013); see 8 U.S.C. § 1325(c). Tsoy challenges the sufficiency of the evidence as
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to the second element only. There was ample evidence, however, that Tsoy
married Moore with the purpose of evading federal immigration laws.
As Moore testified at trial, she and Tsoy met “approximately two months
prior” to their wedding day, at a meeting with Yakovlev and his associates. They
discussed the terms of the arrangement, under which Moore would “receive $800
upon going to the courthouse” to marry Tsoy, and $5,000 more for participating in
an interview with an immigration officer a few months later. They would “stay
married for four years” or so, and then—once Tsoy became a lawful permanent
resident—Moore would receive another “large sum of money” and “divorce” him.
Moore further testified that she and Tsoy spent just “two or three hours”
together before getting married in July 2015. The morning of her wedding, Moore
was awakened by her then-boyfriend—one of Yakovlev’s associates—who “yelled
at” her to “hurry it up, get ready, you have a marriage to do.” Tsoy and Moore got
married in the courthouse, while Moore’s boyfriend waited outside in the car. No
family members from either side attended the wedding, and Tsoy, Moore, and
Moore’s boyfriend went to a strip club together after the ceremony.
Over the next year or so, Moore made multiple trips to New York to get to
know Tsoy and prepare for their immigration interview. On Yakovlev’s
instructions, they posed for pictures together—with Moore’s family at Christmas,
at tourist sites, and in Tsoy’s apartment—for a photo album to show the
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immigration official. When the time came, Tsoy and Moore aced the interview.
Moore “was paid $5,000 right afterwards and went shopping.”
At trial, Tsoy tried to argue that he married Moore for love. As evidence,
Tsoy proffered photos of him and Moore looking “happy” and “having a good
time.” But the jury apparently credited Moore, who testified that she barely knew
Tsoy on their wedding day and that the photos were staged in order to dupe the
immigration official. Moore also testified that she never had “a romantic
relationship” or “any sexual relationship” with Tsoy, and that he “never really
wanted to get to know” her—even “as a friend.” She testified that Tsoy knew that
she was romantically involved with two other men during their marriage, and
indeed “encouraged” her to date his next-door neighbor. Moore’s now ex-
boyfriend, who was also convicted for his part in Yakovlev’s enterprise, testified
that he and Moore “slept together” the night that she married Tsoy, while Tsoy was
in the spare bedroom. It was reasonable for the jury to conclude that Tsoy married
Moore not for love, but for a green card.
It does appear that Tsoy spent some time in Florida, and that he would
sometimes drive Moore from Florida to her parents’ home in North Carolina when
she was having boyfriend problems. He would also periodically give her money
and drive her places so that she could buy drugs. But Moore made clear that Tsoy
did not come to Florida in order to visit her, and in fact primarily visited Florida to
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help his own friends find wives through Yakovlev. And as the government
explained, Tsoy may have “kept his eye on her, because he needed her to complete
the process of getting a green card”—because if Moore “disappeared, was arrested,
or even died, he would have had a great difficulty in securing his immigration
green card.” Drawing that inference in favor of the verdict, this evidence does not
undermine the jury’s conclusion.
On appeal, Tsoy shifts gears and emphasizes that he never finished the green
card application process—on the theory that he did not “trick” or “defraud” the
government because he never actually received a green card. But fraudulently
obtaining a green card is not an element of marriage fraud, which criminalizes
merely entering into a marriage for the purpose of evading immigration laws.
Marriage fraud is not a “continuing offense,” and if Tsoy “entered into a marriage
with the purpose of evading the immigration laws” on July 6, 2015, “he completed
the crime of marriage fraud on that date.” Rojas, 718 F.3d at 1320. Even if Tsoy
never followed through—and even if he had a change of heart about breaking the
law—all that mattered was his intent at the time that he entered into the marriage.
In light of all of the evidence, it is hardly “shocking” that the jury found
Tsoy guilty of marriage fraud beyond a reasonable doubt. We find no manifest
miscarriage of justice in upholding Tsoy’s conviction.
AFFIRMED.
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