New trial ordered in alleged immigration fraud case

Where the jury convicted a couple of making materially false, fictitious and fraudulent statements on an immigration form, but the trial court then held that one of the statements could not be the basis for the charge, and it was not clear if the jury convicted based on that omitted statement, the convictions were vacated.

Background

A federal grand jury charged Andrey Kalugin and Laura Gallagher with three felonies. Count One accused them of conspiring to obtain naturalization and proof of U.S. citizenship for Kalugin by making false statements and submitting fraudulent documents.

Count Two accused them of violating 18 U.S.C. § 1425(a) by making four “materially false, fictitious, and fraudulent statements and representations” on the Form N-400. Count Three asserted another § 1425(a) violation based on two other false statements Kalugin made during his final naturalization interview in 2018. The jury found them guilty on all counts.

Evidence

Kalugin asserts this court should not consider various statements Gallagher made that the government introduced in its case in chief because those statements were inadmissible hearsay when offered against him. This court has rejected similar arguments, holding that a reviewing court considering a sufficiency challenge must consider “all the evidence considered by the jury, both admissible and inadmissible.”

Kalugin also asks this court to limit itself to evidence presented during the government’s case in chief and ignore any evidence he or Gallagher presented after their mid-trial motion for judgment of acquittal. This court has never adopted such a rule. Because there is no hint Kalugin was coerced into offering his own evidence by Gallagher’s choice to do so, this court adheres to its general rule: By presenting evidence, Kalugin abandoned any future argument the government’s case-in-chief was inadequate, and this court considers the full trial record in assessing his sufficiency challenge.

Count One

To prove Count One, the government had to show: “(1) the existence of an agreement, (2) an overt act by one of the conspirators in furtherance of [their] objectives, and (3) an intent on the part of the conspirators to agree, as well as to defraud the United States.”

One witness recounted Gallagher saying she and Kalugin “were separated, but that they were continuing his citizenship process in some agreement prior to obtaining a divorce.” Another asked Gallagher if she was “staying married so [Kalugin could] get his citizenship” and Gallagher responded “yes.” Kalugin and Gallagher also worked together on completing the various steps of the naturalization process. A reasonable jury could find that this evidence, along with the rest of the government’s proof, showed beyond a reasonable doubt that Kalugin and Gallagher intentionally made an agreement to defraud the government.

Count Two

To secure a conviction on Count Two, the government had to prove Kalugin and Gallagher procured Kalugin’s naturalization by knowingly lying about material facts. The jury would have been well-justified in finding Kalugin knowingly lied about where he was living between May 2016 (when he returned to California and obtained a California driver’s license) and February 2018 (when he was naturalized). A reasonable jury also could have concluded that lie was about a material fact.

Despite this holding, the court vacates both defendants’ convictions on Count Two. The jury returned a general verdict without specifying the statement(s) on which that verdict was based. The problem is that, after the jury returned its verdict, the district court ruled one of the charged statements could not support a conviction. Because it is “impossible to tell” if the jury found Kalugin and Gallagher guilty on Count Two based on the legally inadequate theory or one of the other theories, their convictions on that count must be vacated.

Remaining counts

The government’s theory at trial was that Kalugin and Gallagher’s marriage was over by the spring of 2016 and that everything after that was part of a conspiracy to obtain immigration benefits. Seeking to rebut that claim, Kalugin and Gallagher each sought to introduce seemingly loving Facebook messages the two sent each other after Kalugin left Virginia to return to California.

The district court excluded those messages as inadmissible hearsay during trial, and reiterated that conclusion when denying a post-trial motion focused exclusively on its failure to admit the more limited set of messages offered by Kalugin. The district court erred as a matter of law because many—if not all—of the proffered messages either are not hearsay or appear to fall within a valid hearsay exception. Because this court cannot conclude it is “highly probable that the [evidentiary] error did not affect the judgment,” it  vacates the convictions on Counts One and Three as well.

So ordered.

United States v. Gallagher, Case Nos. 22-4128, 22-4129, Jan. 3, 2024. 4th Cir. (Heytens), from EDVA at Alexandria (Ellis). Courtney Roberts Forrest and Hani Bashour for Appellants. Raizza Kristine Ty for Appellee. VLW 024-2-002. 23 pp.