Alvarez v. United States

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-23048-CIV-LENARD/O’SULLIVAN

(Criminal Case No. 15-20579-Cr-Lenard)

ELISABET KERESE ALVAREZ,

Movant,

v.

UNITED STATES OF AMERICA,

Respondent.

___________________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION (D.E. 29), DENYING

MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT

SENTENCE (D.E. 1), DENYING CERTIFICATE OF APPEALABILITY, AND

CLOSING CASE

THIS CAUSE is before the Court on the Report and Recommendation of

Magistrate Judge John J. O’Sullivan issued August 19, 2020. (“Report,” D.E. 29.)1

Movant Elisabet Alvarez filed Objections on September 2, 2020, (“Objections,” D.E. 30),

to which the Government filed a Response on September 25, 2020, (“Response,” D.E. 32).

Upon review of the Report, Objections, Response, and the record, the Court finds as

follows.

I. Background

On July 28, 2015, a Grand Jury sitting in the Southern District of Florida returned

an Indictment charging Movant with conspiracy to commit marriage fraud in violation of

1 The Court will cite docket entries in this civil case as “(D.E. [#]),” and will cite

docket entries in the underlying criminal case as “(Cr-D.E. [#]).”

18 U.S.C. § 371 (Count 1), and marriage fraud in violation of 8 U.S.C. § 1325(c) (Count

6). (Cr-D.E. 1.) Trial commenced August 22, 2016. (Cr-D.E. 517.) Because Movant does

not object to Judge O’Sullivan’s recitation of the relevant evidence adduced at trial, the

Court reproduces it here for consistency:

The movant is a Venezuelan citizen who entered the United States on

a B-2 visitor visa, later applied for a student visa, and was at all times legally

present in the United States. (CR-DE# 648:75, 649: 86; 652:19, 28,

3/15/2017). The movant did not testify at trial.

I. Special Agent Mildred Laboy’s Trial Testimony

Special Agent Mildred Laboy (“Agent Laboy”), a Homeland Security

Investigations (“HSI”) agent testified at the trial and provided the following

information. On July 1, 2014, Agent Laboy and other agents of HSI executed

a search warrant on Tita’s Tramite & Travel and searched the premises to

gather evidence regarding allegations of marriage fraud by the business.

(CR-DE# 648:73, 3/15/2017). While HSI was conducting its search at Tita’s

Tramite & Travel, the movant walked into the business and was sitting in the

lobby. Id. at 75. Agent Laboy sat next to the movant and asked the movant

why she was there. Id. Agent Laboy explained that they were in the middle

of a search warrant that was related to allegations of the business arranging

fraudulent marriages. Id.

Agent Laboy testified that the movant told Agent Laboy that she met

[Co-Defendants Odalys “Tita”] Marrero and [Rolando] Mulet at a barbecue

at a friend’s house, that the movant spoke to Marrero and Mulet about her

immigration situation, and that Marrero and Mulet told the movant that they

help people fix their immigration status and gave the movant their business

card to make an appointment. (CR-DE# 648:76, 3/15/2017). Agent Laboy

testified that the movant told Agent Laboy that she retained Marrero and

Mulet’s services to find a Cuban national with whom she could enter a

marriage, which Marrero and Mulet told the movant was the only way they

could help her. Id. Agent Laboy testified that Manuel Andres Gomez

(“Gomez”)2 and his attorney told Agent Laboy that Marrero and Mulet

operated a business called Tita’s Tramite & Travel, which maintained an

office on a busy street in Miami and arranged fraudulent marriages so their

clients could obtain lawful permanent residency. Id. at 21, 62-64. The

2 Gomez is a former disgruntled client of Marrero and Mulet who testified at trial.

movant told Agent Laboy that she paid Marrero and Mulet $6,000 cash to

start the process. Id. at 76-77. Agent Laboy testified that at another time the

movant said she only paid $2,500 cash. (CR-DE# 649:99, 3/15/2017). Agent

Laboy testified that the movant told her that Marrero and Mulet advised the

movant that they would charge her $5,000 to complete the immigration

paperwork for her. (CR-DE# 648:76, 3/15/2017) (The movant told Agent

Laboy that “the total amount would have been a little bit over $10,000, about

$11,000, for all of that.”); (CR-DE# 649: 99, 3/15/2017).

Agent Laboy testified that the movant said she married [Co-Defendant

Osvaldo Lastre] Duran, a Cuban national, on April 11, 2014, with Mulet

officiating over the ceremony and notarizing the documentation at Tita’s

Tramite and Travel. (CR-DE# 648: 19, 3/15/2017). A couple of days after

she married Duran, the movant traveled back to Venezuela because of work

and to see her sick grandmother. (CR-DE# 648:78, 3/15/2017). Agent Laboy

testified that the movant left the United States shortly after her marriage to

Duran on April 11, 2014 and returned on June 29, 2014. (CR-DE# 649:101,

3/15/2017). The marriage license was filed with the Bureau of Marriages,

the Clerk of the Courts on April 14, 2014. Id. at 18-20; Government Ex. 10.

Agent Laboy testified that on July 1, 2014, the movant told her that

she was at Tita’s Tramite & Travel to take chocolate to Marrero because the

movant travelled to Venezuela after Marrero and Rolando had notarized the

marriage license. (CR-DE# 648: 75-76, 3/15/2017). The movant also told

Agent Laboy that she was there to tell Marrero that she wanted to file for

divorce. (CR-DE# 649: 57, 3/15/2017). When asked by Agent Laboy, the

movant provided Duran’s name but denied that she had his address or

telephone number. (CR-DE# 648:77, 3/15/2017). Agent Laboy did not

testify that the movant gave any indication that the movant believed she had

done anything illegal. Id. at 75-78. Agent Laboy’s July 1, 2014 interview of

the movant was not recorded as that is not HSI’s policy and procedure. (CR-

DE# 649:60-62, 3/15/2017).

Agent Laboy testified about the statements the movant made during a

second interview that Agent Laboy conducted on July 2, 2014 in the Doral

office of HSI. (CR-DE# 648:79, 3/15/2017). While going over the movant’s

prior statements, Agent Laboy testified that she observed the movant

becoming agitated, aggressive, denying her July 1, 2014 statements and

accusing Agent Laboy of making up the movant’s prior statements. Id. at

79-80. The movant repeatedly stated that she met Duran at a shopping center,

they had great sex, fell in love and got married. Id. at 80-81. During the July

2, 2014 interview, Agent Laboy advised the movant that the movant may

answer her cell phone that repeatedly rang during the interview. Id. at 81.

The movant did not answer her cell phone but allowed Agent Laboy to see

the movant’s cell phone. Id. Agent Laboy noticed on the screen of the cell

phone that the caller was Duran and that the call log between the movant and

Duran began on July 1, 2014. Id.

Agent Laboy testified that the movant, Duran and other individuals

were arrested on August 19, 2015. (CR-DE# 648: 107, 3/15/2017). Agent

Laboy testified that she read the movant her Miranda rights. Id. at 107-108.

The movant waived her Miranda rights and spoke to Agent Laboy. Id. Agent

Laboy provided the following testimony regarding the movant’s post-

Mirandized statement. Agent Laboy testified that in her Mirandized post-

arrest statement, the movant told Agent Laboy that she had retained Marrero

and Mulet to help her with her immigration status. Id. at 108. The movant

told Agent Laboy that she married Duran to obtain her legal permanent

resident card. Id. Agent Laboy testified that after their first meeting on July

1, 2014, the movant told Agent Laboy that Duran called the movant, they

met up and came up with their story about how they met, had great sex, and

were married. Id. at 111. Agent Laboy testified that the movant said that the

movant and Duran came up with the story because they were afraid of getting

in trouble. Id. The movant told Agent Laboy that on a different occasion the

movant and Duran took naked photos of themselves at a motel to show them

to Agent Laboy or other officials. Id. Agent Laboy testified that the movant

told her that the movant and Duran took the pictures because they were

desperate to be able to prove that their marriage was real, so they came up

with the story of sex and met up at a motel and took pictures of themselves

simulating that they were having sex. (CR-DE# 649:79-80, 96-97,

3/15/2017). Agent Laboy testified that the movant told her that the movant

never lived with Duran, never had a romantic relationship with Duran, never

had sex with Duran, and that the thought of having sex with Duran was gross

due to Duran’s physical appearance. Id. at 100.

At trial, the Court admitted Government Exhibits18A through G,

which were some of the documents, pertaining to the movant, that were

found on top of Mulet’s desk during HSI’s execution of the search warrant

on Tita’s Tramite & Travel on July 1, 2014. Id. at 92-93. Government

Exhibits 18A through G include: a color copy of the movant’s Venezuelan

passport (Ex. 18-B), Duran’s Immigration Form G-325 (Ex. 18-C), a color

copy of Duran’s Florida driver’s license (Ex. 18-D), Duran’s Cuban birth

certificate (Ex. 18-E), a color copy of Duran’s green card (Ex. 18-F), and a

color copy of Duran’s Cuban passport (Ex. 18-G). Id. at 92-93, 97, 99, 103.

II. Osvaldo Lastre Duran’s Trial Testimony

At trial, Duran, a Cuban national, testified that before the marriage,

the movant and Duran discussed with Marrero that the purpose of the

marriage was to obtain lawful permanent residency for the movant and that

Duran would be paid $5,000. (CR-DE# 648: 106, 109; 649: 106, 109,

3/15/2017). Duran testified that Marrero told the movant and Duran to take

pictures together with different clothes at a Cuban restaurant, La Carreta, at

Ermita de la Caridad, a church, and a Venezuelan place named El Arepazo,

after marrying to appear as if they were in a romantic relationship, as these

photos would possibly be included in the movant’s application for

adjustment of immigration status. Id. at 110-11. Additionally, Marrero

explained that, on a later date, she would provide Duran and the movant a

written document of questions to help them prepare for a marriage interview

conducted by the United States Immigration and Citizenship Services. (CR-

DE# 649:112, 3/15/2017). Duran testified that he did not know his conduct

was illegal. (CR-DE# 651:73, 3/15/2017). Duran testified that the movant

did not express any concerns or worries about getting married. Id. at 105.

Duran testified that he married the movant for the sole purpose of helping

her obtain an immigration benefit and evade immigration laws. Id. at 107.

Duran testified that they took pictures “to show that [they] were having sex.

But we did not have any sex. We did not have any intimate relationship. It

was just to make believe that we did.” (CR-DE# 650:21, 3/15/2017). Duran

admitted at trial that he deceived the movant and did not disclose having a

common-law wife and children until after they were married. (CR-DE#

651:15-16, 3/15/2017).

Duran testified that within a couple of days of marriage, the movant

told Duran that she had to travel to Venezuela for work and to see her sick

grandmother. (CR-DE# 650:8-10, 3/15/2017). Duran drove the movant to

the airport and told her that he thought her travel to Venezuela shortly after

their marriage would not look good at an immigration interview. Id. at 8.

Duran testified that the movant told Duran that her grandmother’s illness is

an emergency and that she would remain in contact with him while she was

gone. Id. 8-9. The movant remained in Venezuela for more than two months

thereafter. (CR-DE# 650:11, 3/15/2017). Duran testified that he did not

communicate via emails, texts, mailings, FaceTime, WhatsApp, or Skype

connections with the movant while she was in Venezuela. (CR-DE# 651:40-

44, 3/15/2017). Duran testified that the movant did not send him anything to

indicate they were in a relationship while she was in Venezuela. Id. at 44.

Duran testified that the movant called him on July 1, 2014 after she

met with Agent Laboy and told him that she wanted to speak with him

because she was questioned by the police. (CR-DE# 650:13, 14-15; 651: 44,

3/15/2017). Duran testified that the movant and Duran met that day and the

movant told him that she told the police about their false marriage. (CR-DE#

650:15-16, 3/15/2017). Duran testified that in response he asked the movant,

“How are you going to tell the truth to the police? You know that if you say

that, we’re already in jail.” Id. at 16. Duran testified that the movant advised

him that she had an appointment the next day at the police office and invited

Duran to go with her, but he refused. Id. at 16-17. Duran testified that they

had agreed to say that they met at a mall, their marriage was real, because of

love, and she needed to travel to Venezuela to see her sick grandmother. Id.

at 17.

Duran testified that after the July 2, 2014 interview with Agent Laboy,

the movant met with Duran and told him that she denied what she told Agent

Laboy on July 1, 2014 because she felt nervous, pressured and coerced, but

that the marriage was for real and they married for love. Id. at 19. Duran

testified that the marriage was not real and was not based on love. Id. Duran

testified that the couple decided to go to a motel and take nude photos to look

like they were having sex, but they did not have sex and did not have an

intimate relationship. Id. 20-22. Duran testified that the movant and he

decided that they were going to convince whoever they needed to that the

marriage was for real and that it was based on love. Id. at 19-20. Duran

commenced divorce proceedings on July 29, 2014 and was divorced from

the movant in December 2014. Id. at 25-26; Government Ex. 19.

Duran testified that he spoke with Agent Laboy two or three times

before he was arrested. (CR-DE# 650:27-28, 3/15/2017). Duran testified

that he had relationship problems with his long-time partner and the mother

of his children. (CR-DE# 650:29-30). Duran testified that he told Agent

Laboy that he married the movant for sex. Id. at 30. Duran testified that he

married the movant for money, not love, to help the movant obtain her legal

status in the United States and for Duran to receive money. Id.

Duran testified that on August 19, 2015, the movant and Duran were

arrested separately but placed in the backseat of a police car together. (CR-

DE# 650:34-35). Duran testified that he thought he and the movant were

placed inside the police car in order to record their conversation or videotape

them. Id. at 35. Their conversation was recorded. Id. at 36, 39, 43;

Transcript of the recording (Government Ex. 4); CD of the recording

(Government Ex. 8). Duran testified that while they were in the police car

together, the movant kept telling Duran to tell the truth and that it was in his

best interest to tell the truth. Id. at 35-36, 47-50. Duran testified that he

thought their conversation was being recorded and that the movant was trying

to incriminate him. Id. at 48. While Duran and the movant were in the

backseat of the police car, Duran testified that he stated, “We got married

because we liked each other and to have – have sex.” Id. at 49. At trial,

Duran testified that he understood he was doing something wrong but did not

think it was a crime at the time he married the movant to help her evade

immigration laws. Id. at 51.

The government did not produce any initialed notes of a confession

by the movant, any photographs taken by or of the movant, or any records

indicating that the movant made any calls to the government’s witnesses.

(CR-DE# 653:58-59, 95-97, 100-104, 3/15/2017).

III. Manuel Andres Gomez’s Trial Testimony

At trial, Manuel Andres Gomez, a government witness who was a

disgruntled former client of Tita’s Tramite & Travel, testified about his

dealings with Marrero and Mulet in 2012 to resolve his immigration status

issues by marrying to obtain a green card. (CR-DE# 647:53-78). Gomez

testified that Marrero required cash payments to pay for a Cuban national

bride, that Mulet married the couple in their office the same day as they

obtained the marriage license, that Marrero advised them to take photographs

to document their relationship and suggested that they go to Ermita de la

Caridad, and provided the couple with sample immigrations questions. Id.

Gomez never met the movant and had no knowledge of her interactions with

Marrero, Mulan or Duran. (CR-DE# 647:83; CR-DE# 648: 6, 20-21).

(Report at 4-11.) The Government rested on August 30, 2016, and Movant did not present

a case-in-chief. (Trial Tr., Aug. 30, 2016, D.E. 652 at 30:14, 33:7-8.) Defense counsel

moved for judgment of acquittal under Federal Rule of Civil Procedure 29, and the Court

denied the motion. (Id. at 37:2 – 75:23.)

During the subsequent charge conference, defense counsel requested that the jury

instructions include a modified version of the Eleventh Circuit’s pattern Good-Faith

Defense jury instruction. (Id. at 92:15.) At the time of Movant’s trial, the Eleventh

Circuit’s pattern Good-Faith Defense instruction stated, in its entirety:

“Good faith” is a complete defense to a charge that requires intent to

defraud. A defendant isn’t required to prove good faith. The Government

must prove intent to defraud beyond a reasonable doubt.

An honestly held opinion or an honestly formed belief cannot be

fraudulent intent – even if the opinion or belief is mistaken. Similarly,

evidence of a mistake in judgment, an error in management, or carelessness

can’t establish fraudulent intent.

But an honest belief that a business venture would ultimately succeed

doesn’t constitute good faith if the Defendant intended to deceive others by

making representations the Defendant knew to be false or fraudulent.

Special Instruction 17, Good-Faith Defense, Eleventh Circuit Pattern Jury Instructions

(Criminal Cases) 2010, at 84. Defense counsel requested that the Court issue Special

Instruction 17 without the third paragraph. (Trial Tr., Aug. 30, 2016, Cr-D.E. 652 at 94:20

– 95:2.) The Government stated that it “would not oppose a good-faith defense instruction

as set forth in Special Instruction 17. However, we would ask that the third paragraph also

be included so as to give the full instruction.” (Id. at 95:12-15.) Defense counsel stated

that if the Court was inclined to give Special Instruction 17 with the third paragraph, then

the defense was withdrawing the request for the good-faith defense instruction. (Id. at

99:16-18.) The Court stated that it was “inclined to give it, but the three paragraphs in the

special.” (Id. at 99:22-23.) Defense counsel stated that “the language is problematic, your

Honor, in terms of the third paragraph[,]” and withdrew the request. (Id. at 99:24 – 100:2.)

The Court then stated “for the record that, based upon the initial statement that Osvaldo

Lastre Duran said to Agent Laboy that they married for sex, that I would have given the

special instruction as Special 17 in the pattern in total.” (Id. at 100:3-7.) However, because

Movant withdrew her request for a good-faith defense instruction, the Court did not give a

good-faith defense instruction. (See id. at 100:8-9; see also Jury Instructions, D.E. 544.)

On August 31, 2016, the jury returned a verdict of guilty as to both charges. (Cr-

D.E. 536; Cr-D.E. 653 at 147:25 – 148:7; see also Jury Verdict, D.E. 539.)

On November 16, 2016, the Court sentenced Movant to time served as to both

counts, to be followed by three years’ supervised release, including eight months’ home

detention as a special condition of supervised release. (Tr. of Sentencing Hr’g, D.E. 654

at 43:12-25; see also Judgment, D.E. 623.)

Defendant appealed arguing, inter alia, that the Court “abused its discretion by

refusing to instruct the jury regarding her good-faith defense[.]” United States v. Alvarez,

732 F. App’x 729, 736 (11th Cir. 2018). The Eleventh Circuit found that Movant was

“precluded from raising this argument because she invited any error in the district court’s

decision to not instruct the jury regarding her good-faith defense.” Id. (citing United States

v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013); United States v. Ross, 131 F.3d 970 ,987

(11th Cir. 1997)).

After the district court indicated that it would give the entire pattern

instruction instead of the modified instruction that Alvarez had requested,

she withdrew her request. The district court stated that it would have given

the pattern instruction, based on trial testimony, but was not doing so because

Alvarez withdrew her request. Additionally, when given the opportunity to

object after the jury was instructed, Alvarez did not raise any objections.

Id.

Movant also argued on appeal that the Court “erred in denying her motion for a

judgment of acquittal based on its determination that the government had provided

sufficient evidence to support convictions for conspiracy to commit marriage fraud and

marriage fraud.” Alvarez, 732 F. App’x at 734. She argued that although the Eleventh

Circuit had not “held that the government must prove that a defendant knew that her

conduct was unlawful when proving marriage fraud,” it should follow other courts of

appeals that had done so. Id. (citations omitted). Movant argued that the Government had

failed to prove that she knew her conduct was unlawful and therefore her convictions were

invalid. Id.

The Eleventh Circuit found no error in denying Movant’s Rule 29 motion because

“even assuming we required proof that Alvarez knew that her conduct was illegal, the

government presented sufficient evidence to sustain the conviction.” Id. (citing United

States v. Rojas, 718 F.3d 1317, 1320 & n.2 (11th Cir. 2013)). Specifically,

The government presented evidence that Alvarez married Duran, a Cuban

citizen, and, prior to their marriage, they discussed that the purpose of the

marriage was to obtain legal status for Alvarez to remain permanently in the

United States. The government also presented evidence that Alvarez and

Duran did not plan to have a life together as a married couple. Prior to their

marriage, Alvarez and Duran discussed that they would need to take pictures

and practice questions to make their marriage look real during the

immigration interview, indicating that Alvarez knowingly entered the

marriage in order to evade U.S. immigration laws. Notably, if Alvarez

believed that marrying just to obtain lawful permanent resident status was in

accordance with U.S. immigration law, she would have had no reason to take

fake pictures and other steps to convince immigration authorities that their

marriage was real.

Id. The Eleventh Circuit further found that there was sufficient evidence supporting the

conspiracy charge:

[T]he government presented sufficient evidence for a reasonable jury to find

that at least two individuals agreed to participate in the marriage-fraud

scheme, Alvarez was a knowing and voluntary participant, and there was an

overt act by a conspirator. See Gonzalez, 834 F.3d at 1219; Rojas, 718 F.3d

at 1320; Seher, 562 F.3d at 1364. First, the government presented testimony

that, in addition to Alvarez and Duran agreeing to marry as part of the

scheme, at least two other people agreed to be involved, and Alvarez’s

marriage was part of a larger marriage fraud conspiracy including at least

two other people. Alvarez had paid Marrero and Mulet to find her a Cuban

husband, Mulet had married Alvarez and Duran, and Marrero had instructed

them on how to make their marriage look real. Furthermore, Manuel Gomez

testified regarding his fraudulent marriage to a Cuban woman that he had

entered into under Marrero and Mulet’s direction in order to resolve his

immigration issues.

Second, as discussed above, the government presented sufficient evidence

that Alvarez was a knowing and voluntary participant in the fraudulent

marriage, which was part of the conspiracy. Third, the government presented

evidence that an overt act was committed in furtherance of the scheme

because Alvarez went through a staged marriage ceremony on April 11,

2014. Accordingly, the evidence was sufficient for a reasonable factfinder

to find Alvarez guilty beyond a reasonable doubt as to both offenses. Seher,

562 F.3d at 1364.

Id.

Ultimately, the Eleventh Circuit rejected all of Movant’s arguments and affirmed

her convictions and sentence. Id. at 732-37. Movant did not petition the Supreme Court

for a writ of certiorari.

On July 22, 2019, Movant filed her Motion under 28 U.S.C. § 2255 to Vacate, Set

Aside, or Correct Sentence, (Cr-D.E. 690), which was opened as a new civil case, 19-

23048-Civ-Lenard/O’Sullivan, (D.E. 1).3 The Motion asserts that Movant was denied the

3 The Government does not challenge the Motion on grounds that (1) it is untimely

or (2) Movant was not “in custody” when she filed the Motion.

As relevant here, a one-year limitations period applies to motions under 28 U.S.C. § 2255

running from the date on which the judgment of conviction became final. 28 U.S.C. § 2255(f)(1).

Here, Movant’s conviction became final ninety days after the Eleventh Circuit issued its opinion

affirming the Court’s Judgment when the period for filing a petition for writ of certiorari expired.

Clay v. United States, 537 U.S. 522, 525 (2003). The Eleventh Circuit issued its opinion on April

effective assistance of counsel when her attorney forfeited her right to proceed with a good

faith instruction and defense. (Id. at 4.)

The Court referred the case to Judge O’Sullivan for a ruling on all pretrial,

nondispositive matters and for a Report and Recommendation on any dispositive matters.

(D.E. 3.) The Government filed a Response to the Motion on September 16, 2019, (D.E.

10), to which Movant filed a Reply on October 7, 2019, (D.E. 13). On May 27, 2020,

Judge O’Sullivan held an evidentiary hearing. (D.E. 25.) Movant’s former trial counsel,

Menachem Mayberg, Esq., was the only witness who testified at the evidentiary hearing.

(Report, D.E. 29 at 3.) Mr. Mayberg testified that he could not recall the basis or

justification for his belief that the pattern Good-Faith Defense jury instruction that he did

not request at trial was “problematic.” (Id.)

After the hearing, Judge O’Sullivan ordered the Parties to file supplemental briefs.

(D.E. 26.) Movant filed her post-hearing brief on June 15, 2020, (D.E. 27), to which the

Government filed a Response on June 29, 2020, (D.E. 28).

23, 2018, and the period for filing a petition for writ of certiorari expired ninety days later on July

22, 2018. See id. However, because July 22, 2018 was a Sunday, the ninety-day period for filing

a petition for writ of certiorari expired on Monday, July 23, 2018. See Fed. R. Civ. P. 6(a)(1).

Pursuant to 28 U.S.C. § 2255(f)(1), Movant had one year from that date to file her 2255 Motion.

Movant filed her 2255 Motion within the one-year limitations period on July 22, 2019. (D.E. 1.)

Therefore, the Court finds that the Motion was timely filed within one year of the date Movant’s

conviction became final.

The relief provided under Section 2255 is only available to “[a] prisoner in custody under

sentence of a court established by Act of Congress . . . .” 28 U.S.C. § 2255(a) (emphasis added).

A person serving a term of supervised release is “in custody” within the meaning of 2255. United

States v. Brown, 117 F.3d 471, 475 (11th Cir. 1997). According to the United States Probation

Office, Movant’s term of supervised release expired on November 18, 2019—three years after the

Court entered Judgment. Movant filed the instant 2255 Motion while she was still on supervised

release on July 22, 2019. Therefore, the Court finds that Movant was “in custody” for purposes

of Section 2255 when she filed her Motion.

On August 19, 2020, Judge O’Sullivan issued his Report and Recommendations.

(D.E. 29.) Judge O’Sullivan recommends denying the 2255 Motion because Movant failed

to show that she was prejudiced by counsel’s allegedly deficient performance. (Id. at 18.)

Judge O’Sullivan noted that marriage fraud is not a continuing offense and is complete

when the marriage occurs. (Id. at 18-19 (discussing Rojas, 718 F.3d at 1320 & n.2).) Judge

O’Sullivan found that the “trial evidence of the movant’s decision to enter the marriage for

the purpose of evading any provision of the immigration laws is overwhelming.” (Id. at

20.) Specifically:

Agent Laboy testified that the movant told Agent Laboy that the movant paid

a sum of cash (either $6,000 or $2,500) to Tita’s Tramite & Travel to marry

Duran, a Cuban national. The movant and Duran obtained a marriage

license, were married on April 11, 2014, and provided the marriage license

to the Clerk of Courts, Marriage Bureau. In her first interview with Agent

Laboy, the movant admitted her plan to marry Duran to obtain immigration

benefits. After that initial July 1, 2014 interview, the movant called Duran,

met with him and decided to make up their story that they met at a shopping

mall and married for sex. At her July 2, 2014 interview with Agent Laboy,

the movant denied what she told Agent Laboy on the previous day and told

Agent Laboy that she met Duran at a shopping mall and married him for sex.

After the movant’s meeting with Agent Laboy on July 2, 2014, the movant

and Duran checked into a motel and took nude photographs to provide proof

of their relationship.

At trial, the evidence in the record included inconsistent statements made by

the movant and Duran. On at least one occasion, each of them said they

married for sex. On separate occasions both denied ever having sex with

each other and the movant told Agent Laboy that the idea of sex with Duran

was gross. On another occasion, each of them said they married for the

movant to receive an immigration status benefit. Duran testified that

Marrero, the movant and he discussed that the purpose of the marriage was

to obtain lawful permanent residency for the movant and that Duran would

be paid $5,000. Duran testified that Marrero suggested that they take

photographs in different locations. The fact that the movant and Duran

divorced within the same year does not alter the reason the movant and Duran

agreed to marry in the first place.

There is no evidence of the movant engaging Tita’s Tramite & Travel for

legitimate match-making services. The movant was never in a romantic

relationship with Duran and never intended to live with him. Documents

seized during the execution of the search warrant included documents that

would be necessary for the movant to seek a change to her immigration

status.

. . . Although the movant and Duran provided inconsistent statements, the

record shows that the movant had no plans to create a permanent life with

Duran as a married couple and that the couple did not have a romantic

relationship. Their attempt to cover up their fraudulent marriage after the

fact by creating the shopping mall story and taking nude photographs in a

motel supports the movant’s marriage fraud conviction as well as the

conspiracy to commit marriage fraud conviction. See Alvarez, 732 Fed.

App’x at 735 (describing the facts that support both convictions). In Alvarez,

the Eleventh Circuit noted that “if Alvarez believed that marrying just to

obtain lawful permanent resident status was in accordance with U.S.

immigration law, she would have had no reason to take fake pictures and

other steps to convince immigration authorities that their marriage was real.”

Id.

(Id. at 19-21.) Based on this evidence, Judge O’Sullivan found that Movant “has failed to

show that even if the trial Court gave the pattern good faith jury instruction that there is a

reasonable probability that the outcome would have been different.” (Id. at 21-22.)

On September 2, 2020, Movant filed her Objections. (D.E. 30.)

II. Legal Standards

a. Report and recommendations

Upon receipt of the Magistrate Judge’s Report and Movant’s Objections, the Court

must “make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); accord

Fed. R. Civ. P. 72(b)(3). The court must conduct a de novo review of any part of the Report

that has been “properly objected to.” Fed. R. Civ. P. 72(b)(3); see 28 U.S.C. § 636(b)(1)

(providing that the district court “shall make a de novo determination of those portions of

the [R & R] to which objection is made”). “Parties filing objections to a magistrate’s report

and recommendation must specifically identify those findings objected to. Frivolous,

conclusive, or general objections need not be considered by the district court.” Marsden v.

Moore, 847 F.2d 1536, 1548 (11th Cir. 1988). Those portions of a magistrate judge’s

report and recommendation to which no objection has been made are reviewed for clear

error. See Lombardo v. United States, 222 F. Supp. 2d 1367, 1369 (S.D. Fla. 2002); see

also Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006) (“Most circuits agree

that [i]n the absence of a timely filed objection, a district court need not conduct a de novo

review, but instead must only satisfy itself that there is no clear error on the face of the

record in order to accept the recommendation.”) (internal quotation marks and citations

omitted). The Court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

b. 28 U.S.C. § 2255

Because collateral review is not a substitute for direct appeal, the grounds for

collateral attack on a final judgment, pursuant to 28 U.S.C. § 2255, are extremely limited.

Pursuant to Section 2255, a prisoner in federal custody may move the court which imposed

the sentence to vacate, set aside, or correct the sentence if it was imposed in violation of

federal constitutional or statutory law, was imposed without proper jurisdiction, is in excess

of the maximum authorized by law, or is otherwise subject to collateral attack. See United

States v. Jordan, 915 F.2d 622, 625 (11th Cir. 1990). Thus, relief under Section 2255 “is

reserved for transgressions of constitutional rights and for that narrow compass of other

injury that could not have been raised in direct appeal and would, if condoned, result in a

complete miscarriage of justice.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.

2004) (quotation marks and citations omitted). If a court finds a claim under Section 2255

valid, the court “shall vacate and set the judgment aside and shall discharge the prisoner or

resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28

U.S.C. § 2255(b).

c. Ineffective assistance of counsel

With regard to Movant’s claim of ineffective assistance of counsel, the two-pronged

test established in Strickland v. Washington, 466 U.S. 668 (1984) applies. “First, the

defendant must show that counsel’s performance fell below a threshold level of

competence. Second, the defendant must show that counsel’s errors due to deficient

performance prejudiced his defense such that the reliability of the result is undermined.”

Tafero v. Wainwright, 796 F.2d 1314, 1319 (11th Cir. 1986). Under the first prong of the

Strickland test, Petitioner “must establish that no competent counsel would have taken the

action that his counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th

Cir. 2000) (en banc). Under the second prong, Petitioner “must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The Eleventh

Circuit has routinely found that where there is overwhelming evidence of guilt, a 2255

movant cannot show Strickland prejudice. See, e.g., Boschen v. United States, 845 F.2d

921, 922-23 (11th Cir. 1988); Streeter v. United States, 335 F. App’x 859, 862-63 (11th

Cir. 2009); Franklin v. United States, 227 F. App’x 856, 857 (11th Cir. 2007).

If the Court finds that the movant failed to satisfy one prong of the test, it need not

address the other. Id. at 697; see also Brown v. United States, 720 F.3d 1316, 1326 (11th

Cir. 2013) (“If a defendant fails to satisfy either Strickland prong, we need not address

both.”) (citations omitted).

III. Applicable Law

a. Marriage fraud

“Federal law prohibits ‘[a]ny individual . . . [from] knowingly enter[ing] into a

marriage for the purpose of evading any provision of the immigration laws.’” Avlarez, 732

F. App’x at 734 (quoting 8 U.S.C. § 1325(c)). “To prove marriage fraud under § 1325(c),

the government must establish that: ‘(1) the defendant knowingly entered into a marriage

(2) for the purpose of evading any provision of the immigration laws.’” Id. (quoting Rojas,

718 F.3d at 1320). “Although some circuits have required that the government also prove

the defendant knew that her conduct was illegal when she entered the marriage, [the

Eleventh Circuit] ha[s] not determined whether such a showing is necessary.” Id. at 735

(citing Rojas, 718 F.3d at 1320 n.2).

b. Conspiracy

“Federal law prohibits conspiring to commit an offense against the United States or

to defraud the United States.” Id. (citing 18 U.S.C. § 371). “To prove conspiracy under §

371, the government must establish: ‘(1) an agreement by two or more individuals to

commit an offense against or defraud the United States; (2) knowing and voluntary

participation; and (3) an overt act by a conspirator.’” Id. (quoting United States v.

Gonzalez, 834 F.3d 1206, 1219 (11th Cir. 2016)).

IV. Discussion

Movant objects to Judge O’Sullivan’s finding that there was “overwhelming”

evidence that Movant’s decision to enter the marriage was for the purpose of evading a

provision of the immigration laws. (Obj. at 1, 5.) She argues that “the Report relies

mistakenly on conduct and statements made by the defendant to exculpate herself after she

learned that federal agents considered her conduct criminal.” (Id. at 2 (citing Report at 19-

20).) She agrees with Judge O’Sullivan that “any marriage fraud would have been

complete as of April 2014 upon the marriage’s occurrence[,]” (id. at 2 (citing Report at

18)), but argues that there is no evidence that she knew at the time she was married in April

2014 that her conduct was illegal, (id. at 2-3). Movant further argues that Judge O’Sullivan

erroneously viewed the evidence in the light most favorable to the Government. (Id. at 4.)

She argues that although the Report cites evidence relevant to the good-faith defense, the

Report “fails to discuss the importance of” that evidence. (Id.) In this regard, she states:

• Alvarez met Odalys Marrero and Rolando Mulet in a normal social event that

did not suggest illegality or impropriety. Cr-DE:648:76. Marrero and Mulet

owned Tita’s Tramite and Travel, Inc. (Tita’s), with an office on a busy street

in Miami. Cr-DE:647:52-53; Cr- DE:648:21, 64. The office was open to the

public and looked legitimate. Cr-DE:648:21; Cr- DE:651:11-12. They had

been in business for many years. Cr-DE:648:21; Cr-DE:649:44. They

“served as a matchmakers for foreign nationals who would pay them to find

spouses who were natives and citizens of Cuba.” DE:10:2 (emphasis added).

• Duran deceived Alvarez, by concealing his common-law wife and children.

See Cr-DE:651:15. When he married Alvarez, Duran (who later pled guilty)

did not know his conduct was illegal, Cr-DE:650:51—thus, he would likely

not have conveyed criminal suspicion to Alvarez. Duran testified at trial: “I

simply got married. But when I realized it was a crime, then I didn’t [go

forward with anything].” Cr-DE:651:73. Those are odd admissions for a

government witness who is supposed to be the defendant’s wilful [sic]

conspirator. Alvarez did not “express [to Duran] any concerns . . . or worries

about . . . getting married in this way.” Cr-DE:651:105. Duran and Alvarez

did not fulfill the required process to go forward with immigration use of the

marriage. Cr-DE:649:112. Evidence at trial that Duran’s guilty plea was

accepted even though he didn’t realize he was committing a crime heightened

the need for the good faith defense theory instruction; without it, the jury

might have concluded good faith was not a defense given that Duran did not

know of any illegality at the time of the marriage. Alvarez was not present

for the purported meeting at which Marrero offered Duran a financial

incentive to enter into a marriage. Cr-DE:649:106. Still, Marrero told Duran

“everything would be legal,” Cr-DE:649:106, and suggested he would be

pleased with Alvarez. Cr-DE:649:108.

• When Alvarez told Duran that she had told the police about their marriage,

Duran berated Alvarez, saying that because of her statement, “we’re already

in jail.” Cr-DE:650:16. The impact of the Laboy interview and the Duran

interaction—both of which occurred three months after the marriage—

caused Alvarez to believe she violated the law. Alvarez told Duran she had

an appointment to speak with the police the next day, and she asked Duran

to go with her. Cr-DE:650:16. He refused. Cr-DE:650:16-17. Instead, he

told Alvarez to go to the meeting and tell the police an exculpatory story. Cr-

DE:650:17. Alvarez allegedly followed through on Duran’s demands in her

meeting with Laboy on July 2, but again Laboy did not record the interaction.

Cr-DE:649:60-62, 70-71.

• During the July 1 search of Tita’s office, agents found documents that

pertained to Duran and Alvarez, including a copy of Alvarez’s passport, but

absolutely no documents signed or prepared by Alvarez for any immigration

purpose, such as the i325 application that would have been necessary to use

the marriage for immigration purposes. Cr-DE:648:90, 92-93, 98-104; Cr-

DE:649:16-19. Tita’s never submitted any immigration paperwork on

Alvarez’s behalf, and no immigration application was ever signed by

Alvarez. Cr-DE:649:74-75.

• In August 2015, after Alvarez’s post-arrest statement concluded, the agents

placed Alvarez and Duran in a car together and recorded the conversation

that ensued. Cr-DE:649:21; Cr-DE:650:35. Alvarez repeatedly implored

Duran to tell the truth. Cr-DE:650:35-36, 47-50. And after all this, Duran

testified at trial that when he decided to marry Alvarez, he “never thought

that it was a crime.” Cr-DE:650:51.

(Id. at 7-9.) Movant further argues that Judge O’Sullivan failed “to give appropriate weight

to defects and inconsistencies in the government’s proof.” (Id. at 3.) In this regard, she

states:

• Although Laboy claimed to have writings showing Alvarez’s agreement with

Laboy’s version of a post-arrest interview—in which Alvarez said nothing

about knowing in April 2014 that her conduct was illegal—no such notes

were produced at trial.

• Duran claimed that he and Alvarez took photos as proof that they were a

couple. Cr-DE:649:110-12. But no such photographs were produced at trial.

Duran testified that he took nude photos of simulated sex with Alvarez. Cr-

DE:650:20-21. But no such photographs were ever produced at trial or in

discovery. And when defense counsel pointed this out at trial, he was met

with a burden-shifting rebuttal argument by the government. Alvarez moved

for a mistrial on grounds that the government had attempted in rebuttal to

shift the burden of proof.[4] Cr-DE:653:139-40; see also Cr-DE:653:113,

140, 144-47.

• Despite testimony that the program for a Tita’s fraudulent marriage included

elaborate conduct to make it appear the couple cohabited and otherwise

shared a life, none of that was shown as to Alvarez and Duran. No joint bank

accounts, no services under both names; nothing reflecting a wedding

ceremony or celebration; none of the usual indicia of a faked marriage. The

absence of records or photographs of ceremonies, emails, joint bank

accounts, utilities, or even a single text between Duran and Alvarez was

telling as to the absence of an effort to present a false image of marriage—at

any time prior to Duran’s desperate July 2014 demands that Alvarez help

him avoid problems with Agent Laboy.

• Government witnesses testified that Alvarez corrected and initialed notes of

a statement, made phone calls to a government witness, and took

photographs. E.g., Cr-DE:648:106-07, 109-11; Cr-DE:649:14-15; Cr-

DE:650:6-7, 9-11, 20-21. But no such exhibits or records were offered by

the government at trial or at the § 2255 evidentiary hearing: no confession,

4 Movant argued on appeal that the Court abused its discretion by denying her

mistrial on these grounds, but the Eleventh Circuit rejected the argument. Alvarez, 732 F. App’x

at 736.

no photographs, no any records indicating Alvarez made any such phone

calls.

• Also, the manner in which some exculpatory evidence had to be coaxed from

the government’s witnesses warranted doubts about the government’s theory

of Alvarez’s intent. See, e.g., Cr-DE:649:57 (Agent Laboy first denies that

Alvarez told her she was at Tita’s to get divorced without ever using the

immigration application, then under cross-examination, admits it; “Q. Do

you recall saying that she mentioned that she was there to give Tita a gift and

also wanted to file for divorce? She didn’t want to go through with the

marriage with the Cuban man? A. Yes. Q. So she did tell you that that day?

A. Correct.”).

(Id. at 9-10.) Movant argues that the fact that she never actually attempted to obtain an

immigration benefit makes this different from other marriage fraud cases. (Id. at 6.) She

further argues that Judge O’Sullivan applied an incorrect standard for Strickland prejudice,

requiring her to show a reasonable probability that but for counsel’s unprofessional errors,

the result of the proceeding would have been different. (Id.) She argues that the proper

test is whether there was an error that “undermine[s] confidence in the outcome.” (Id.

(quoting Strickland, 466 U.S. at 694).)

Upon de novo review, the Court finds that Movant has failed to show that she is

entitled to relief under Section 2255. Even assuming arguendo that defense counsel

provided deficient performance by forfeiting Movant’s right to proceed with a Good-Faith

Defense jury instruction, she has failed to establish a reasonable probability that but for

this deficiency the outcome of the proceedings would have been different.5

5 As an initial matter, the Court summarily rejects Movant’s argument that Judge

O’Sullivan applied an incorrect standard for prejudice. “To establish prejudice a petitioner must

‘show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Castillo v. Fla., Sec’y of DOC, 722 F.3d 1281,

1286 (11th Cir. 2013) (quoting Strickland, 466 U.S. at 687). This is the standard Judge O’Sullivan

At the time of Movant’s trial, the Eleventh Circuit’s pattern Good-Faith Defense

instruction stated:

“Good faith” is a complete defense to a charge that requires intent to

defraud. A defendant isn’t required to prove good faith. The Government

must prove intent to defraud beyond a reasonable doubt.

An honestly held opinion or an honestly formed belief cannot be

fraudulent intent – even if the opinion or belief is mistaken. Similarly,

evidence of a mistake in judgment, an error in management, or carelessness

can’t establish fraudulent intent.

But an honest belief that a business venture would ultimately succeed

doesn’t constitute good faith if the Defendant intended to deceive others by

making representations the Defendant knew to be false or fraudulent.

Special Instruction 17, Good-Faith Defense, Eleventh Circuit Pattern Jury Instructions

(Criminal Cases) 2010, at 84.

Defendant did not present a case-in-chief, and Movant cites no direct evidence that

she had an honestly held opinion or honestly formed belief that marrying Duran to obtain

an immigration benefit was legal (or otherwise non-fraudulent). Movant argues that when

construing all of the evidence in her favor and drawing all inferences in her favor, “there

is reason to believe that at least one juror would have found reasonable doubt as to whether

the defendant’s marital decision was based on a good faith belief that the matchmaking

applied. (Report at 21-22 (“The plaintiff has failed to show that even if the trial Court gave the

pattern good faith jury instruction that there is a reasonable probability that the outcome would

have been different.”).) Although “[a] reasonable probability is a probability sufficient to

undermine confidence in the outcome[,]” Strickland, 466 U.S. at 694, there is no indication that

Judge O’Sullivan applied any other test for assessing whether a “reasonable probability” existed

in this case.

service had arranged a lawful marriage for her.” (Obj. at 1.) The Court disagrees. As

Judge O’Sullivan correctly noted:

There is no evidence of the movant engaging Tita’s Tramite & Travel for

legitimate match-making services. The movant was never in a romantic

relationship with Duran and never intended to live with him. Documents

seized during the execution of the search warrant included documents that

would be necessary for the movant to seek a change to her immigration

status.

(Report at 20.) Indeed, in her initial discussion with Agent Laboy on July 1, 2014, Movant

admitted that she retained Mulet and Marrero to help her with her immigration status; after

Mulet and Marrero told Movant that “the only way that they can help her is finding a Cuban

spouse,” Movant paid them $6,000 in cash to “start the process.” (Cr-D.E. 648 at 76:12 –

77:1.) Movant further admitted during her post-arrest, Mirandized statement to Agent

Laboy that she married Duran “to obtain her legal permanent resident card, her green card,

here.” (Id. at 108:8 – 109:1.)

Furthermore, Duran testified that before their marriage, he was introduced to

Movant at Tita’s Tramite & Travel during a meeting with Mulet and Marrero. (Cr-D.E.

649 at 108:11:14.) At that meeting—in Movant’s presence—Marrero explained that

Movant and Duran were going to be married because Movant “needed the legal status in

order to be able to remain in this country[,]” and further explained that Duran would be

paid $5,000 after Movant adjusted her immigration status.6 (Id. at 109:12-17.) During the

6 In her Objections, Movant argues that she “was not present for the purported

meeting at which Marrero offered Duran a financial incentive to enter into a marriage.”’ (Obj. at

8 (citing Cr-D.E. 649at 106).) Although Movant may not have been present at that initial meeting,

she was present during a subsequent meeting during which Marrero explained that Duran would

be paid $5,000 after Movant adjusted her immigration status. (Cr-D.E. 109:12-17.)

same meeting, Movant stated that she was marrying Duran because “she wanted to remain

permanently in this country, that her objective would be to -- her objective was to get

documents and papers to be able to remain in this country permanently.” (Id. at 109:21-

23.) During this meeting Marrero told Movant and Duran to take pictures together at

different locations—a Cuban restaurant, “a religious place,” and a “Venezuelan place[,]”—

“with different attire, different clothing, to simulate that it was on different dates.” (Id. at

110:23 – 111:22.) She also told them that she would provide them “with a written

document that would include questions that we would have to answer in order to prepare

for Immigration and the interview in Immigration.” (Id. at 112:6-8.) As the Eleventh

Circuit observed, “if Alvarez believed that marrying just to obtain lawful permanent

resident status was in accordance with U.S. immigration law, she would have had no reason

to take fake pictures and other steps to convince immigration authorities that their marriage

was real.” Alvarez, 732 F. App’x at 735. Thus, although Movant argues that the Report

“relies mistakenly on conduct and statements made by the defendant to exculpate herself

after she learned that federal agents considered her conduct criminal[,]” (Obj. at 2), there

was plenty of evidence from which the jury could conclude that Movant entered the

marriage knowing that her conduct was illegal. The overwhelming evidence of Movant’s

later conduct and statements reinforce this conclusion.

Therefore, in light of all of the evidence and having considered all of Movant’s

arguments, the Court finds that there is not a reasonable probability—i.e., a probability

sufficient to undermine confidence in the outcome—that the jury would have acquitted

Movant if defense counsel had asked the Court to issue the Eleventh Circuit’s pattern

Good-Faith Defense instruction in its totality.

V. Conclusion

Accordingly, itis ORDERED AND ADJUDGED that:

1. The Report and Recommendation of the Magistrate Judge issued August 19,

2020 (D.E. 29) is ADOPTED;

2. Movant Elizabet Alvarez’s Motion under 28 U.S.C. § 2255 to Vacate, Set

Aside, or Correct Sentence (D.E. 1) is DENIED;

3. A Certificate of Appealability SHALL NOT ISSUE;

4. All pending motions are DENIED AS MOOT; and

5. This case is now CLOSED.

DONE AND ORDERED in Chambers at Miami, Florida this 1st day of February,

2021.

iE fed

UNITED STATES DISTRICT JUDGE

25