United States v. Robinson-Gordon

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4165
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLOVER MAY ROBINSON-GORDON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:09-cr-00003-MSD-TEM-26)
Submitted: February 25, 2011 Decided: March 18, 2011
Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Carol J. Breece, CAROL J. BREECE, P.A., Samuel J. Rabin, Jr.,
SAMUEL J. RABIN, JR., P.A., Miami, Florida, for Appellant.
Neil H. MacBride, United States Attorney, Joseph E. DePadilla,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clover May Robinson-Gordon appeals from her
convictions for conspiracy to defraud the United States and five
counts of international money laundering. On appeal, Appellant
challenges the sufficiency of the evidence supporting her
convictions and asserts that the Government suborned perjury.
We affirm.
I.
We review a district court’s denial of a motion for
judgment of acquittal de novo. United States v. Osborne, 514
F.3d 377, 385 (4th Cir. 2008). We are “obliged to sustain a
guilty verdict that, viewing the evidence in the light most
favorable to the prosecution, is supported by substantial
evidence.” Id. (internal quotation marks and citations
omitted). Substantial evidence is “evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc).
A defendant bringing a sufficiency challenge bears a
“heavy burden.” United States v. Hoyte, 51 F.3d 1239, 1245 (4th
Cir. 1995). The Government must be given the benefit of every
reasonable inference. Id. Reversal for insufficient evidence
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is reserved for “the rare case where the prosecution’s failure
is clear.” United States v. Beidler, 110 F.3d 1064, 1067 (4th
Cir. 1997) (internal quotation marks and citation omitted).
Robinson-Gordon was charged with conspiring with
Viktar Krus and others to fraudulently procure H2B visas for
Jamaican workers. The H2B Visa Program was designed by
Congress to allow American companies with seasonal job
opportunities to temporarily hire foreign labor when employers
could not find willing and qualified U.S. workers to fill the
jobs. The work must be full-time, temporary work. Specific job
types and locations must be identified, and workers cannot move
between job types, employers, or locations. The worker must
return to his or her native country when the work period ends.
The conspiracy involved obtaining H2B visas and then sending
workers to locations, jobs, and employers, different from those
listed on the workers’ documentation.
Given certain admissions in her reply brief, the only
issues unwaived on appeal with regard to the sufficiency of the
evidence on the conspiracy conviction are (1) whether the
Government proved that Appellant had knowledge of the H2B rules
or was willfully blind to them and (2) whether the Government
proved that Appellant and Krus’s company worked together toward
a common goal. Since a conspiracy is by its nature clandestine
and covert, it is generally proved by circumstantial evidence.
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Burgos, 94 F.3d at 857. Evidence tending to prove a conspiracy
may include a defendant’s relationship with other members of the
conspiracy, and the existence of a conspiracy may be inferred
from a development and collocation of circumstances. Id. at
858. “Circumstantial evidence sufficient to support a
conspiracy conviction need not exclude every reasonable
hypothesis of innocence, provided the summation of the evidence
permits a conclusion of guilt beyond a reasonable doubt.” Id.(citation omitted).
We conclude that the evidence was more than sufficient
on both these issues. First, a Ministry of Labour (“MOL”)
official testified that, in her first application for a license
for her business, Appellant informed the MOL that she had
knowledge of how the H2B program operates. The official
testified that the MOL required licensees to be familiar with
the H2B laws and even held training and seminars in that area
that Appellant attended. In addition, the employment agreement
that Appellant gave to the workers to fill out and that she sent
to the MOL specifically stated that H2B visas required workers
to work at a specified job in a specified location. Moreover,
Appellant regularly completed DS-156 forms that listed incorrect
positions or locations. On the basis of such evidence, the jury
could have easily found that Appellant was aware of the
governing laws and, thus, the illicit nature of the enterprise.
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Even accepting Appellant’s testimony that she never read any of
the relevant documents or regulations, the jury was justified,
given the above evidence, in concluding that she was willfully
blind to the H2B rules. United States v. Schnabel, 939 F.2d
197, 203 (4th Cir. 1991) (allowing the jury to impute the
element of knowledge to the defendant where the evidence
indicates that he purposely closed his eyes to avoid knowing
what was taking place around him).
Turning to Appellant’s assertion that she did not
share a common goal with the other coconspirators and operated
independently, the record undercuts her argument. A
co-conspirator testified that the majority of Krus’s foreign
labor force came from Jamaica and that Appellant’s company was a
“major” supplier of workers. Appellant’s company supplied
workers from early 2007 until January of 2009, and the two
companies had a “mutual agreement” and a system of forwarding
documentation and payments. Appellant continued sending workers
after being notified that the workers would be going to states
and job types other than those listed on the immigration forms.
This evidence was sufficient to show that the conspirators
shared a common goal and that Appellant intended to further that
goal by continuing her part in the scheme. Accordingly, the
district court properly denied the motion for judgment of
acquittal on the conspiracy charge.
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II.
With regard to her money laundering convictions,
Appellant first asserts that the evidence was insufficient to
support the conclusion that she knew that the wire transfers she
made were in support of “the fraudulent procurement of H-2B
visas for nonimmigrant aliens,” as charged in the indictment.
To prove that Appellant engaged in international money
laundering, the Government had to show that she caused funds to
be transferred “to a place in the United States from or through
a place outside ... with the intent to promote the carrying on
of specified unlawful activity.” 18 U.S.C. § 1956(a)(2)(A)
(2006). Intent to promote may be proven with evidence that the
defendant used proceeds from an unlawful scheme to keep the
scheme going. United States v. Caplinger, 339 F.3d 226, 233
(4th Cir. 2003). The promotion of an unlawful scheme can be
proven without records documenting specific expenditures, and it
is sufficient for the Government to prove that the transfers
allowed Appellant to “perpetuate” the scheme. Id.The first charged wire transfer took place on
February 2, 2008, fully a year after Appellant began working
with Krus. By the time of the first wire transfer, Appellant
had already been licensed in Jamaica to provide H2B workers, she
had attended a seminar on the regulations, and she had falsely
completed DS-156 forms. In addition, she had been using the
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Krus employment agreement that spelled out the H2B requirements
and limitations. This evidence was sufficient to prove that
Appellant was aware of, or was willfully blind to, the H2B
regulations and her violation thereof.
Appellant also contends that certain of the payments
were reimbursements for advance payments for airline tickets for
the employees. She asserts that airline tickets did not promote
the fraudulent procurement of H2B visas; however, she is
mistaken. Even if these wire transfers reimbursed Krus for
airline tickets purchased for the workers, this was a necessary
step to “keep the scheme going.” That is, Appellant profited
from the fraudulent procurement of H2B visas, and this profit
could not continue if the workers could not travel to the United
States. The workers’ travel was necessary to the success of the
fraudulent visa scheme, and thus, payments for airline travel
promoted the charged illegal activity. See United States v.
Bolden, 325 F.3d 471, 489 (4th Cir 2003) (finding sufficient
evidence where transfers were “integral to the success of the
overall scheme”).
Finally, Appellant asserts that the last three
payments did not promote the future fraudulent procurement of
H2B visas but rather constituted payment for past procurement.
These payments took place between August and October 2008. The
Government presented evidence that, in December 2008, Appellant
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and a co-conspirator discussed, in a recorded conversation,
their continuing relationship and their plans for future
contracts, which would be implemented in the same manner as were
contracts in the past. Thus, there was sufficient evidence to
show that these three payments promoted the future fraudulent
procurement of H2B visas in that future agreements with Krus
depended on the successful completion of current contracts. The
evidence showed that Appellant sought the continuation of her
relationship with Krus, and such payments were crucial to any
additional criminal endeavor. Accordingly, Appellant’s motion
for a judgment of acquittal was properly denied as to the money
laundering charges.
III.
Finally, Appellant contends that a Government witness—
Agent Mann—committed perjury when he gave false testimony that
another company to which Appellant supplied workers had created
an e-mail account, similar to Krus’s, in order to deceive the
authorities rather than to deceive Appellant. Appellant argued
at trial that any transfer or diversion of workers between the
companies was not illegal because they were the same company, or
she believed they were the same company, based in part on the
similar e-mails. Appellant avers that the Government knew Agent
8
Mann’s testimony was false when it occurred and failed to
disclose this fact. *
The testimony in question is Agent Mann’s responses to
Appellant’s questions during cross-examination. Specifically,
when asked by counsel whether the similarity of the e-mails is a
coincidence, Agent Mann responded, “My opinion [is] that is a
method to avoid detection by law enforcement.” Counsel then
asked whether Agent Mann “think[s]” the similarity would also
confuse Appellant, and Mann responded, “Not at all.”
This testimony could only be perjurious if Mann was
misrepresenting his subjective belief as to the purpose of the
similar e-mails. An allegation of perjury as to a “matter of
perception” fails absent “conclusive proof” that the witness
testified falsely as to his belief. Moreover, the Government
suborned perjury only if the prosecutors actually knew that Mann
was testifying falsely about his subjective beliefs. Absent
“actual knowledge,” the Government does not suborn perjury, even
if its lawyers suspected or had reason to suspect that the
*
Appellant further asserts that the Government used this
testimony in closing argument and wrongly attributed it to a
co-conspirator. In closing argument, the Government, without
objection, argued that the co-conspirator testified that the
similar e-mails would protect them from law enforcement. We
find that this was a proper inference from the co-conspirator’s
testimony that the second company suggested the similar e-mails
because they “need[ed]” it to look like the two separate
companies were, in fact, one company.
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witness was lying about his views. See United States v.
Derrick, 163 F.3d 799, 828 (4th Cir. 1998).
Here, Appellant falls far short of showing perjury and
subornation of perjury. At most, Appellant has raised a
question as to the purpose of the similar e-mails; she points to
no evidence supporting the conclusion that Mann lied about his
subjective belief that Appellant was not fooled by the similar
e-mails. In fact, Appellant’s counsel elicited this information
by asking for Mann’s opinion. Moreover, there is no evidence
that the Government believed that Mann was incorrectly
expressing his subjective belief. As the record does not
support a finding of perjury, Appellant’s claim is without
merit.
IV.
Based on the foregoing, we affirm Robinson-Gordon’s
convictions. 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 the decisional
process.
AFFIRMED
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