United States v. Natallia Liapina

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4806
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NATALLIA LIAPINA,
Defendant - Appellant.
No. 12-4807
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIL LYAPIN,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Arenda Wright Allen, District
Judge. (2:11-cr-00158-AWA-DEM-2; 2:11-cr-00158-AWA-DEM-1)
Submitted: June 18, 2013 Decided: July 10, 2013
Before MOTZ, SHEDD, and FLOYD, Circuit Judges.
Affirmed in part and reversed in part by unpublished per curiam
opinion.
John S. Davis, V, WILLIAMS MULLEN, Richmond, Virginia; Garrick
A. Sevilla, C. Elizabeth Hall, WILLIAMS MULLEN, Raleigh, North
Carolina, for Appellant Natallia Liapina. Alan H. Yamamoto,
Alexandria, Virginia, for Appellant Danil Lyapin. Neil H.
MacBride, United States Attorney, Michael F. Murray, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
After a bench trial, the district court convicted Natallia
Liapina and her son, Danil Lyapin, of offenses arising from
their efforts to evade immigration laws by entering into
fraudulent marriages. The court sentenced Liapina to twenty-one
months imprisonment and Lyapin to forty-one months imprisonment.
On appeal, Liapina and Lyapin challenge their convictions and
sentences.
I.
Liapina was born in the Ukraine and is a Belarussian
national. In 2004, Liapina married Dr. Armando Figuero, a
United States citizen. Lyapin was born in Russia and is also a
Belarussian national. He came to the United States in 1996 and
subsequently married three different United States citizens
between 2000 and 2011. The Government maintains that Liapina
and Lyapin “engaged in a decade-long conspiracy to obtain green
cards for themselves by way of marriages to United States
citizens.” Government’s Br. at 2.
The district court found Liapina guilty of one count of
conspiracy, in violation of 18 U.S.C. § 371 (count one), and
three counts of false statements related to naturalization or
citizenship, in violation of 18 U.S.C. § 1015(a) (counts five,
six, and seven). The court found Lyapin guilty of one count of
3
conspiracy, in violation of 18 U.S.C. § 371 (count one), one
count of marriage fraud, in violation of 8 U.S.C. § 1325(c)
(count two), and two counts of false statements related to
naturalization or citizenship, in violation of 18 U.S.C.
§ 1015(a)(counts three and four). The court then sentenced
Liapina to twenty-one months imprisonment on each count, to run
concurrently, and Lyapin to forty-one months imprisonment on
each count, to run concurrently.
II.
Lyapin argues that the district court erred in denying his
motion to suppress statements he made after being arrested.
According to Lyapin, he made those statements after invoking his
right to have an attorney present, in response to continued
questioning by the Government. See Edwards v. Arizona, 451 U.S.
477, 484-85 (1981) (holding that, once the accused invokes his
right to counsel, the government cannot continue questioning
“unless the accused himself initiates further communication,
exchanges or conversations”).
The Government contends that we should decline to consider
Lyapin’s argument, because he did not file his motion to
suppress until 192 days after the deadline set by the district
court. See Fed. R. Crim. P. 12(b)(3), (e) (party waives any
request to suppress evidence not raised by deadline set by
4
court). Lyapin responds that the issue is properly before this
Court because the district court rejected his suppression motion
on the merits.
We need not resolve this dispute, however, because Lyapin’s
post-arrest statements were duplicative of other evidence the
Government presented. Thus, “review[ing] the remainder of the
evidence against” Lyapin, we conclude that any error the
district court may have committed in refusing to suppress
Lyapin’s post-arrest statements was “harmless beyond a
reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 310
(1991); see United States v. Johnson, 400 F.3d 187, 197 (4th
Cir. 2005).
III.
Liapina argues that the district court erred in considering
several witness statements she contends constitute inadmissible
hearsay. Because Liapina failed to raise this argument before
the district court, we review for plain error. Thus, we can
reverse only if Liapina shows that an error occurred, was plain,
and affected her substantial rights. See United States v.
Olano, 507 U.S. 725, 732 (1993). Generally, an error does not
affect substantial rights unless “there [is] a reasonable
probability that the error affected the outcome of the trial.”
United States v. Marcus, 130 S. Ct. 2159, 2164 (2010).
5
While the district court considered the statements in
question in finding Liapina guilty, the court also considered
abundant other evidence. This evidence included the testimony
of other witnesses that Lyapin and Figueroa had a romantic
relationship while Liapina and Figueroa did not live together
and had little interaction, and Liapina’s own statements
indicating that her marriage was fraudulent. Thus, even if the
court erred in admitting the statements to which Liapina
objects, she cannot show that “there [is] a reasonable
probability that the error affected the outcome of the trial.”
Marcus, 130 S. Ct. at 2164.
IV.
Liapina also argues that the Government presented
insufficient evidence to convict her on counts five, six, and
seven. Those counts charge violations of 18 U.S.C. § 1015(a),
which makes it a crime to “knowingly make[] any false statement
under oath” in an immigration matter.
Liapina’s statement on immigration forms and to immigration
officials, that she had never committed any crime for which she
had not been arrested, provides the basis for counts six and
seven. Her statement, that she had never committed a crime of
moral turpitude for which she had not been arrested, provides
the basis for count five. The indictment alleges that these
6
statements were knowingly false because Liapina had conspired to
engage in, and engaged in, a fraudulent marriage to Dr. Figueroa
in violation of 8 U.S.C. § 1325(c).
We review challenges to the sufficiency of the evidence de
novo, viewing the evidence in the light most favorable to the
Government. United States v. Ayesh, 702 F.3d 162, 169 (4th Cir.
2012). We must affirm if “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” United States v. Poole, 640 F.3d 114, 121 (4th Cir.
2011).
Liapina contends that the Government failed to prove the
knowledge element of 18 U.S.C. § 1015(a), because it offered no
evidence that she knew marriage fraud was a crime. The
Government, however, presented evidence that Liapina worried
about being caught and took measures to conceal the fraudulence
of her marriage. Viewing this evidence in the light most
favorable to the Government, we cannot conclude that no rational
trier of fact could find that Liapina knew entering into a
fraudulent marriage was a crime. See United States v. Beidler,
110 F.3d 1064, 1070 (4th Cir. 1997) (evidence defendant
attempted to conceal illegal activity may support conclusion
that defendant knew activity was illegal). Accordingly, we
affirm her convictions on counts six and seven.
7
The Government concedes, however, that Liapina’s counsel
was constitutionally ineffective for failing to raise a statute
of limitations defense to count five. We agree. Though
Liapina’s sentence will not change as a result of reversal on
count five, her conviction subjects her to the standard $100
assessment. This constitutes prejudice, see Ray v. United
States, 481 U.S. 736 (1987), and so requires reversal of her
conviction on count five.
V.
Finally, both Lyapin and Liapina argue that the district
court applied the wrong sentencing guidelines to their offenses,
resulting in inappropriately high guideline ranges. The court
applied the guideline for perjury or subornation of perjury
(U.S.S.G. § 2J1.3) to counts one, three, and seven, and the
guideline for falsely procuring immigration benefits for others
(U.S.S.G. § 2L2.1) to counts four, five, and six. Lyapin and
Liapina contends that the court should instead have applied
§ 2L2.2, the guideline for, inter alia, fraudulently acquiring
documents relating to naturalization, citizenship, or legal
resident status for the alien’s own use, to all counts.
Lyapin and Liapina do not dispute that § 2J1.3 may in some
cases apply to violations of 18 U.S.C. § 1015(a) and 18 U.S.C.
§ 371. See U.S.S.G. App’x A (indicating §§ 2B1.1, 2J1.3, 2L2.1,
8
or 2L2.2 may apply to violations of 18 U.S.C. § 1015(a)); id.§ 2X1.1 (base offense level for substantive offense applies to
conspiracy conviction). “When the offense of conviction
appear[s] to fall under the express terms of more than one
guideline, the sentencing court must choose the guideline that
is most applicable by compar[ing] the guideline texts with the
charged misconduct, rather than the statute . . . or the actual
conduct.” United States v. Boulware, 604 F.3d 832, 836 (4th
Cir. 2010) (internal quotation marks omitted). Lyapin and
Liapina did not urge the application of § 2L2.2 in the district
court, so our review is for plain error. See United States v.
Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010). *
Counts one, three, and seven charge Lyapin and Liapina with
making false statements under oath. While § 2L2.2 -- which
focuses specifically on naturalization fraud -- might be more
appropriate, we cannot conclude that any error in applying
§ 2J1.3 would be plain. As Lyapin and Liapina concede, neither
we nor the Supreme Court has held that § 2J1.3 does not apply to
*
Liapina does not assert to the contrary. Lyapin, however,
contends he preserved the issue for appeal because he objected
before the district court to the application of § 2J1.3 to
counts one and three. But in his objection, Lyapin indicated
that his base offense level should have been 11, and that base
offense level corresponds to § 2L2.1, a guideline Lyapin now
asserts is inapplicable. Lyapin did not preserve for appeal his
argument that § 2L2.2 is the applicable guideline.
9
the submission of false statements in connection with marriage
fraud. See United States v. Reid, 523 F.3d 310, 316 (4th Cir.
2008) (“To be plain, an error must be clear or obvious. An
error is clear or obvious when the settled law of the Supreme
Court or this circuit establishes that an error has occurred.”
(internal quotation marks and citations omitted)).
Lyapin and Liapina also challenge the district court’s
application of § 2L2.1 to counts four, five, and six. Both
Lyapin and Liapina received concurrent sentences on all counts
for which they were convicted. Thus, application of a lower
guideline range to counts four, five, and six would not alter
the length of their sentences, so any error did not affect their
substantial rights and does not constitute plain error. See
Marcus, 130 S. Ct. at 2164.
VI.
For the foregoing reasons, we reverse Liapina’s conviction
on count five and affirm in all other respects. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED IN PART AND REVERSED IN PART
10