United States v. Sandra Bart

United States Court of Appeals
For the Eighth Circuit
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No. 17-1236
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Sandra Lee Bart
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: December 14, 2017
Filed: April 24, 2018
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Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
After a five day trial, a jury found Sandra Bart guilty of conspiracy to commit
visa fraud, 18 U.S.C. § 371; conspiracy to commit fraud in foreign labor contracting,
18 U.S.C. § 1349; and conspiracy to commit mail and wire fraud, 18 U.S.C. § 1349.
Bart's convictions arise from her role in a scheme to bring seasonal workers to the
United States through federal work visa programs and then require them to pay a
recruitment fee, travel costs, and kickbacks on their wages. Bart appeals, claiming
that the jury verdict was not supported by sufficient evidence and that the district
court abused its discretion by denying her motions for an evidentiary hearing and new
trial based on juror misconduct. We affirm.
I.
Sandra Bart operated Horizon Lawn Management ("Horizon"), a lawn care
company located in Ohio. She began hiring through the federal H-2A and H-2B work
visa programs in 2002 or 2003. These programs allow certain American employers
to hire foreign workers to meet their seasonal labor needs if the employer
demonstrates both that domestic workers are unavailable and that employing foreign
workers will not depress domestic labor wages. The Department of Labor ("DOL"),
the Department of Homeland Security ("DHS"), and the Department of State ("DOS")
all oversee the H-visa programs and require employers to certify their compliance
with program standards before approving employer participation. To participate in
the H-2A program, an employer must certify the following to DOL and DHS under
penalty of perjury: that it did not require compensation from prospective workers as
a condition of employment, that it will pay transportation costs to bring the workers
to the United States, that it will pay to house the workers in the United States, and
that it will pay the wage rate set annually by DOL.1
Bart and Wilian Cabrera, a former H-2B worker from the Dominican Republic,
formed Labor Listo in 2008. This organization sought to connect American
employers with Dominican workers by means of the H-visa system. Bart and Cabrera
agreed that Cabrera would recruit workers while Bart would recruit farmers. They
1
Beginning in January 2009, employers were required to certify their
compliance with these standards under penalty of perjury. A DOL investigator
testified at trial, however, that the listed prohibitions have been in effect for decades.
All certifications relevant in this case were filed between 2010 and 2015.
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also agreed to charge prospective Dominican employees an initial fee of $500. From
that they planned to deduct their legitimate costs, such as consulate fees and those for
internet usage, and divide the remainder between them. Bart recorded an early
version of this arrangement in a handwritten journal entry on October 13, 2008 titled
"Meeting w/ Wilian." The entry includes the notes "Costs–pass on to applicant" and
"Charge to applicant for Labor Listo services."2 The entry shows a projected
commission of $216 to Bart for each applicant.
In the summer of 2009 Bart contacted John Svihel, owner of Svihel Farm in
Minnesota, and offered to supply Dominican H-2A workers for the 2010 season.
Svihel agreed to the proposal and later testified that Bart told him a "do-gooder"
group would pay for their airfare. DOL investigators determined that although Bart
paid for the flights during the first year, workers had to return the cost to Cabrera,
who then reimbursed Bart. After working with Labor Listo in 2010, Svihel told Bart
he was no longer interested in employing H-2A workers because DOL had increased
the required wage rate for the 2011 season. Bart then proposed that the 2011 workers
give Svihel a kickback sufficient to make their effective wage equal to that in 2010.
From then on, Cabrera consistently communicated to the Dominican workers that
their actual wage rate would be lower than the DOL required wage rate. Worker
testimony confirms that they did pay kickbacks to offset the increased amount. In
2012, Svihel began paying airfare costs for the workers, who reimbursed him later.
He testified that this was Bart's idea.
In 2014, DOL received an anonymous complaint about Svihel Farm's labor
practices. During the subsequent investigation, DOL learned about the illegal
kickbacks, recruiting fees, and travel costs. On May 28, 2015, law enforcement
2
To the extent that Bart claims the January 2009 rule change shields her from
liability because she and Cabrera first discussed their plan in late October 2008, her
argument is undermined by evidence that the parties implemented their plan with full
knowledge of the change and after it became effective.
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executed search warrants at the Horizon offices, the homes of Bart and Cabrera, and
Svihel Farm. Investigators discovered handwritten notes by Bart and Cabrera, some
of which referenced $216 payments owed to Bart by H-2A workers. According to
Angela Olson, a DOS investigator who worked on Bart's case, the Horizon payroll
records consistently reflected $216 deductions. Olson confirmed that in many cases,
the collective deductions from worker paychecks were equal to the total cost of
airfare reflected on Bart's credit card bills. The day after the searches, Bart deleted
the entire Labor Listo email account.
From 2010 to 2015, Svihel had hired a private agency to submit required
annual certifications to DOL and DHS, which included a certification that he or his
agents paid the DOL wage rate and worker transportation fees, without collecting a
recruiting fee. According to Lesli Downs, who submitted Svihel's certifications, Bart
was aware of the program requirements and involved in the certification process.
Downs submitted Svihel's paperwork to DOL by mail from 2010 to 2012 and by wire
communication thereafter.
Cabrera testified that he and Bart knew their arrangement was illegal and that
she had told him it was illegal. For that reason, he warned prospective Dominican
workers that they could not discuss the initial fee with anyone. Patricia Sowards, an
agent who filed Bart's own certifications with Horizon, testified that, on a scale of one
to ten, Bart's knowledge about the requirements of the H-2A program was a ten.
Bart was charged in three conspiracy counts: conspiracy to commit visa fraud,
18 U.S.C. § 371; conspiracy to commit fraud in foreign labor contracting, § 1349; and
conspiracy to commit mail and wire fraud, § 1349.3 After the defense rested at trial,
an Assistant United States Attorney notified the district court that on a courthouse
3
Cabrera and Svihel both pled guilty to one conspiracy count and cooperated
in Bart's prosecution.
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elevator she had overheard a juror say the word "guilty." Although the defense
sought to question the jury about the incident, the district court instead provided a
curative instruction:
Another issue came up and that is that it's come to the court's attention
that some or one of the jurors may have been discussing the case last
Thursday after the close of evidence here in the courthouse. As I have
instructed you throughout the case, you are not to discuss the case with
anyone, including your fellow jurors, until the case has been concluded
and you have been instructed on the law. Now, I trust that you have
followed that instruction, because the only indication we had was a
mention of a word and there was no context to that word. And so,
therefore, I trust that you have followed that instruction and will
continue to do so until you begin your deliberations as a jury.
Bart then moved unsuccessfully for a new trial.
On August 8, 2016, the jury convicted Bart on all three conspiracy charges.
The district court sentenced her to 60 months in prison. She appeals.
II.
Bart claims that the evidence at trial was insufficient to prove each of the three
conspiracy charges.
"We review challenges to the sufficiency of the evidence de novo." United
States v. Johnson, 745 F.3d 866, 868–69 (8th Cir. 2014). In doing so, we view the
evidence in the light most favorable to the guilty verdict, construing all reasonable
inferences to support that verdict. United States v. Sullivan, 714 F.3d 1104, 1107
(8th Cir. 2013). "We will reverse a conviction only if no reasonable jury could have
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found the defendant guilty beyond a reasonable doubt." United States v. Yang, 603
F.3d 1024, 1026 (8th Cir. 2010).
To prove a conspiracy to commit visa fraud under 18 U.S.C. § 371, the
government must show that: (1) two or more people agreed to commit visa fraud; (2)
the defendant voluntarily and intentionally joined the agreement at some point; (3)
the defendant knew the purpose of the agreement; and (4) someone in the agreement
knowingly acted in furtherance of the conspiracy. Model Crim. Jury Instr. 8th Cir.
5.06A–I (2014). The elements of visa fraud are: (1) a false statement; (2) under
penalty of perjury; (3) made with knowledge that the statement was false; (4) the
statement was made on an application, affidavit or other document required by
immigration laws or regulations; and (5) the statement was material. 18
U.S.C. § 1546.
Viewed in the light most favorable to the government, the trial testimony was
sufficient to demonstrate that Bart had agreed with Cabrera, and later Svihel, to bring
H-2A workers to the U.S. and to require them to pay a recruitment fee, travel costs,
and kickbacks on their wages. Bart had already been using the H-visa system for
years and knew its legal requirements. She knew that the scheme would require that
she, Cabrera, or Svihel file false certifications with DOL and DHS under penalty of
perjury and that those false statements would materially affect agency decisions to
certify Svihel Farm as an H-2A employer. Because they knew it was illegal, Cabrera
and Bart both tried to prevent workers from discussing the arrangement with
authorities. The conspirators carried out a number of overt acts in furtherance of their
arrangement, including Svihel's actual submission of false certifications and
deductions from workers' wages. We therefore conclude that the government
presented sufficient evidence that Bart conspired to commit visa fraud.
To prove a conspiracy to commit fraud in foreign labor contracting under 18
U.S.C. § 1349, the government must prove: (1) two or more people agreed to commit
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fraud in foreign labor contracting; (2) the defendant voluntarily and intentionally
joined the agreement at some point; and (3) the defendant knew the purpose of the
agreement. Model Crim. Jury Instr. 8th Cir. 5.06A–I (2014). The substantive offense
of fraud in foreign labor contracting occurs when someone: (1) recruits, solicits, or
hires a person outside the United States, or causes another person to do so, or
attempts to do so; (2) does so by means of materially false or fraudulent pretenses,
representations or promises regarding that employment; and (3) acts knowingly and
with intent to defraud. 18 U.S.C. § 1351.
Both Cabrera and Svihel pled guilty to conspiracy to commit fraud in foreign
labor contracting. Their testimony, viewed in the light most favorable to the
government and in conjunction with the testimony of federal investigators,
demonstrates that Bart intentionally, knowingly, and voluntarily agreed to participate
in the conspiracy that led to those guilty pleas: recruiting Dominican workers through
false representations to the United States government with the intent to collect
fraudulent kickbacks. For this reason we conclude that the government presented
sufficient evidence that Bart conspired to commit fraud in foreign labor contracting.
To prove a conspiracy to commit mail or wire fraud under 18 U.S.C. § 1349,
the government must prove: (1) two or more people agreed to commit mail or wire
fraud; (2) the defendant voluntarily and intentionally joined the agreement at some
point; and (3) the defendant knew the purpose of the agreement. Model Crim. Jury
Instr. 8th Cir. 5.06A–I (2014). The substantive offense of mail fraud occurs when
someone: (1) voluntarily and intentionally devises or participates in a scheme to
defraud or obtain money by means of material false representations or promises; (2)
does so with the intent to defraud; and (3) uses, or causes to be used, the mail or a
commercial interstate carrier to complete or attempt some essential step in the
scheme. 18 U.S.C. § 1341. In the case of wire fraud, the person must use an
interstate wire communication to carry out an essential step in the scheme. 18 U.S.C.
§ 1343.
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A reasonable jury could have found that Bart conspired to commit mail or wire
fraud for all the reasons stated. Bart knew and intended that someone would submit
federal certifications across state lines by either the internet or a mail carrier. Svihel
did both through his agent. We conclude that the government presented sufficient
evidence that Bart conspired to commit mail or wire fraud.
III.
Finally, Bart claims that the district court should have granted her motion to
question jurors individually at an evidentiary hearing as well as her motion for a new
trial after an Assistant United States Attorney overheard a juror say the word "guilty,"
in the presence of other jurors, on an elevator.
"We review both the district court's handling of allegations of juror misconduct
and its denial of the motion for a new trial for an abuse of discretion." United States
v. Caldwell, 83 F.3d 954, 955 (8th Cir. 1996). "The granting of a new trial . . . is a
remedy to be used only 'sparingly and with caution.'" United States v. Dodd, 391
F.3d 930, 934 (8th Cir. 2004) (citation omitted). District courts have "'broad
discretion' regarding whether to conduct evidentiary hearings regarding juror
misconduct allegations." United States v. Muhammad, 819 F.3d 1056, 1061 (8th Cir.
2016) (citation omitted).
The district court did not abuse its discretion by denying Bart's motions. The
elevator conversation occurred after all evidence had been presented but before
closing arguments. The attorney who overheard the conversation only heard the word
"guilty" without any context. Nothing in the record suggests that the jurors discussed
the case or, if they did, that they considered improper evidence. The district court
heard from both sides about the allegations of misconduct before deciding not to
grant Bart's motions. Instead, it offered an appropriate curative instruction within its
broad discretion.
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IV.
Accordingly, the judgment of the district court is affirmed.
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