concluding that I-140 forms are documents required by immigration laws and thus satisfy this element
How later courts described this case
- concluding that I-140 forms are documents required by immigration laws and thus satisfy this element
- holding that visa fraud counts as a specified un- lawful activity
Written by the judges who cited it.
The opinion
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10569
________________________
D.C. Docket No. 1:16-cr-00153-KD-N-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID JESUS JIMENEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(August 25, 2020)
Before WILSON, LAGOA and HULL, Circuit Judges.
HULL, Circuit Judge:
After a jury trial, defendant David Jimenez appeals his convictions for
conspiracy to commit immigration-document fraud, in violation of 18 U.S.C. § 371
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and the fourth paragraph of 18 U.S.C. § 1546(a), conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956(h), and money laundering, in violation
of 18 U.S.C. § 1956(a)(1)(A)(i). After careful review, we affirm Jimenez’s three
convictions. We conclude that there was sufficient evidence to convict Jimenez of
his fraud-conspiracy offense because the I-140 petitions and certain related
documents contained false statements and were required by immigration laws or
regulations, within the meaning of 18 U.S.C. § 1546(a). There was also sufficient
evidence to support Jimenez’s two money laundering convictions because the
immigration-document fraud was an underlying “specified unlawful activity” for
purposes of § 1956(a)(1)(A)(i).
I. INDICTMENT
Jimenez’s convictions arose out of a scheme to obtain fraudulently a
particular kind of employment-based visa for “multinational executives and
managers,” called an EB-1C visa, from the U.S. Citizenship and Immigration
Service (“CIS”). Under the scheme, Jimenez recruited and paid U.S. businesses to
enter into a fictitious joint venture with a Chinese business. Jimenez then filed an
employer I-140 Petition for Immigrant Worker in the U.S. business’s name on
behalf of a named Chinese-national beneficiary to classify that beneficiary as an
EB-1C multinational executive or manager, even though Jimenez knew that
beneficiary would not work for the U.S. business or the joint venture. Once the I-
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140 petition was granted, that Chinese-national beneficiary obtained an EB-1C
work visa and immigrated to the United States but never actually worked for the
U.S. business or the fictitious joint venture.
The indictment 1 charged Jimenez with one count of conspiracy to commit an
offense against the United States, that is: immigration-document fraud under the
fourth paragraph of 18 U.S.C. § 1546(a), in violation of 18 U.S.C. § 371 (Count 1);
several counts of conspiracy to commit wire fraud and wire fraud, in violation of
18 U.S.C. §§ 1343, 1349 (Counts 2 through 7); one count of conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956(h) (Count 8); and one count of
money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (Count 9). Because
ultimately Counts 2 through 7 were dismissed, we focus on only Jimenez’s
convictions on Counts 1, 8 and 9.
According to the indictment, the false statements in the I-140 petitions and
supporting documentation, which Jimenez and his co-conspirators filed with the
CIS, were about the Chinese-national beneficiaries’ purported employment with
these fictitious joint ventures between the U.S. businesses and Chinese businesses,
as follows:
8. To start the process, United States businesses filed I-140
petitions and supporting documents on behalf of these Chinese
nationals. In most instances, the petitions and related documents
represented that the Chinese nationals were executives at a Chinese
1
By “indictment,” we refer to the second superseding indictment filed in this case.
3
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company that had entered into a written joint venture agreement with
the United States business, and that said joint venture would be
operated in the United States.
9. In most instances, the documentation filed with CIS
falsely represented that the Chinese national, upon immigration to the
United States, would assume a high-level executive position with the
newly formed joint venture. In reality, however, many of the
documents filed with CIS contained forged, fictitious, and materially
false representations. These documents were submitted to CIS as part
of an elaborate effort to obtain EB-1C visas for certain Chinese
nationals by false and fraudulent pretenses.
The conspirators included people in China, Canada, and the United States.
Defendant Jimenez and named co-conspirator Christopher Dean, as two of the U.S-
based co-conspirators, recruited business owners in the United States to use to file
the I-140 petitions, joint venture agreements, and related documents.
As to Count 1, the indictment alleged that defendant Jimenez and his co-
conspirators, including Christopher Dean, conspired to violate the fourth paragraph
of § 1546(a), as follows:
[T]o knowingly make under oath, and as permitted under penalty of
perjury . . . , to knowingly subscribe as true, any false statement with
respect to a material fact in any application, affidavit, or other respect
to a material fact in any application, affidavit, or other document
required by the immigration laws and regulations prescribed
thereunder, and to knowingly present any such application, affidavit, or
other document which contains any such false statement and which fails
to contain any reasonable basis in law or fact, in violation of Title 18,
United States Code, Section 1546(a).
The manner and means section of Count 1 alleged that Jimenez and Dean
paid the U.S. business owners “for signing documents relating to an I-140
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petition,” providing them with documents, and allowing the petitions to be filed in
their businesses’ names. Many of the documents Jimenez and his co-conspirators
submitted to CIS relating to the joint venture agreements contained materially false
information, including being backdated. “In truth, much of the documentation
submitted to CIS was materially false, and there was no legitimate business
relationship between the Chinese national and the U.S. business filing the I-140
petitions.”
The overt acts section of Count 1 stated that Jimenez and his co-conspirators
“committed the following overt acts, among others, in the Southern District of
Alabama, and elsewhere.” Jimenez traveled to Orange Beach, Alabama, where he
recruited a local business owner to file an I-140 petition for a specific Chinese
national, and, in September 2011, “caused an I-140 petition” in that business’s
name to be filed and “caused related documents containing materially false
information to be submitted to CIS in support of this I-140 petition.” Jimenez also
traveled to Mobile, Alabama, and did the same thing with another local business
owner, causing an I-140 petition to be filed in that business’s name in January
2013 and causing “related documents containing materially false information to be
submitted to CIS in support of this I-140 petition.”
The indictment also listed other overt acts involving the submission of false
documents to CIS, including altered invoices, a fictitious lease agreement,
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photographs falsely depicting the business location and offices, and documents
purporting to show that two wire transfers were made to the petitioning U.S.
business to fund the business relationship.
As to the money laundering charges in Counts 8 and 9, the indictment
alleged that the offenses “involved the proceeds of specified unlawful activity, to
wit: visa fraud, in violation of Title 18, United States Code, Section 1546(a), and
wire fraud, in violation of Title 18, United States Code, Section 1343.”
II. GOVERNMENT’S TRIAL EVIDENCE
A. Dean and Dean Brothers, Inc.
Prior to Jimenez’s trial, co-conspirator Christopher Dean pled guilty to an
information charging him with conspiracy to commit money laundering. See
United States v. Dean, 16-cr-000206 (S.D. Ala. Dec. 7, 2016). Dean testified for
the government at Jimenez’s trial.
Dean was the general manager of his family’s scrap metal and demolition
business, Dean Brothers, Inc., near Mobile, Alabama. In late 2010, friends
introduced Dean to defendant Jimenez and a China-based co-conspirator, Tom
Wayne, who was Jimenez’s father-in-law. Jimenez pitched to Dean a “program”
to allow Chinese nationals to immigrate to the United States by structuring a joint
venture between Dean Brothers and a Chinese business, for which Dean would be
(and ultimately was) paid $30,000. Dean agreed, and provided Jimenez with Dean
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Brothers’s business documents, including tax returns, invoices, and “anything
[Jimenez] requested.”
Jimenez then filed an I-140 petition in Dean Brothers’s name on behalf of
Defeng Li, as the Chinese-national beneficiary who ostensibly was to be the
executive employed by the joint venture and who would obtain the EB-1C visa to
immigrate to the United States. In connection with the I-140 petition, Jimenez
submitted a cover letter signed by Dean, and a purported joint venture agreement,
also signed by Dean, between Dean Brothers and Defeng Li’s Chinese employer,
Anhui Sunny Technology, Co. However, the representations made in the I-140
petition and the joint venture agreement—such as about Dean Brothers and Defeng
Li working together in the joint venture—were false, as Li never worked for Dean
Brothers and there never was a joint venture. Although Dean signed the joint
venture agreement in December 2011, it was backdated to August 31, 2010, before
Dean had even met Jimenez and Wayne.2
After traveling to China and meeting several China-based members of the
conspiracy, including Bobby Wang, Dean began working directly for Wang. Dean
recruited “eligible U.S. companies” in the same way Jimenez did, “to match [them]
2
In its brief, the government explains that the conspirators backdated the joint venture
agreements because they believed (perhaps wrongly) that the regulations required the joint
venture to have existed for over a year before the I-140 petition was filed. According to Dean,
he initially believed Jimenez’s joint venture proposal was legitimate, but he realized it was not
when they backdated the joint venture agreement.
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with foreign companies to petition for executive directors for immigration
purposes.” If the business owner agreed to be an I-140 petitioner, Dean asked for
the same documents Jimenez had requested from Dean, which were needed to file
the I-140 petitions, and then shepherded the documents through to ensure the
petition was approved. Dean testified that the documents were falsified or
contained misrepresentations to get the petitions approved, and that Jimenez and
other conspirators knew this. Dean estimated that he recruited “30-plus” U.S.
companies to participate in the scheme, “close to 12” of which had their petitions
approved. For his services, Dean netted about “a quarter mill a year” for three
years. 3 Wang paid Dean via wire transfers for recruiting the U.S. businesses. 4
In addition to Dean, the government presented testimony from 15 business
owners in Alabama, Florida, Mississippi, and California who were recruited by
either Jimenez or Dean to be I-140 petitioners for the EB-1C work visa scheme.
All of the witnesses identified I-140 petitions and supporting documents that
contained false statements, forged signatures, or materially misleading information.
3
Dean said his pitch, which was similar to Jimenez’s pitch, was as follows:
That we would structure an international joint venture and the venture is not really
active so there's not a lot of risk associated with it. And if the Government approves
the joint venture or the immigration application, both, then you’ll be—the joint
venture will be funded with 30K, and you’ll possibly have a business partner to do
future business, a wealthy business partner.
Dean told the U.S. businesses that the Chinese nationals would not have to show up for work, but
he did not tell them he would be filing false documents in support of the petitions.
4
However, Jimenez paid Dean for the Dean Brothers’s I-140 petition by check.
8
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Among those business owners who testified were Shannon “Duke” Middleton and
Terri Long, and their testimony illustrates how the fraud scheme worked.
B. Middleton and Jet Blast in Mississippi
Shannon Duke Middleton was the owner of Jet Blast, a “power sport”
dealership in Gulfport, Mississippi. In 2013, Jimenez contacted Middleton and
pitched the idea of paying Middleton to participate in a business venture to help
Chinese millionaires immigrate to the United States. Middleton understood that
the prospective Chinese immigrant would never work at his company.
Thereafter, in September 2013, Jimenez caused to be filed with CIS an I-140
petition for an EB-1C visa and supporting documentation in Jet Blast’s name on
behalf of a Chinese national named Yan Xu. A cover letter submitted to CIS in
support of the I-140 petition referenced that, in December 2011, Jet Blast had
entered into a joint venture agreement with a Chinese company, Arden Garments
Guangzhou, Co. Ltd., and Yan Xu had been appointed the executive director of the
joint venture. Middleton had never heard of Yan Xu or Arden Garments, did not
employ Yan Xu, did not agree to a joint venture, and did not sign a joint venture
agreement or any other documents, including the cover letter and a job offer letter,
submitted with the I-140 petition.5
5
The supporting documentation also included a shared Chinese bank account statement
showing a “portfolio” of over $2 million and a $300,000 deposit, a description of Yan Xu’s job
duties and an organizational chart of the joint venture with Yan Xu as the executive director and
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The I-140 petition, purportedly filed by Jet Blast on behalf of Yan Xu, states
in Part 2 that the petition is filed for a “multinational executive or manager.” Part
6 of the petition represents that Jet Blast will employ Xu in a new, full-time,
permanent position, paying her $50,000 per year, with the job title “Executives &
Managers.” For the “Nontechnical Description of the Job,” the petition states:
“Establishing long-term and mid-term Company objectives, setting of business
plans, and the design of business models for the company; Assigning marketing
strategies and reforming the business procedures, and strengthening our
distribution and client channels; see job offer letter for more.” The cover letter
submitted with the I-140 petition and purportedly signed by Middleton states, inter
alia, that Arden Garments and Jet Blast have entered into a joint venture agreement
and that documents are hereby “submitted to establish that there is a qualifying
relationship between Jet Blast and Arden under 8 CFR § 204.5(j)(2)(D),”
including: (1) “the Jet Blast Joint Venture Agreement entered on December 1,
2011, and (2) a “Joint Venture Management Conceptual Flow Chart,” and (3) a
“Bank Confirmation into Joint Venture in the amount of $300,000.”6
containing the names of some of Jet Blast’s employees. Middleton had never seen any of these
documents before and said they were all false.
6
Among the co-conspirators’ emails, federal investigator Don Herrington found one
email from Jimenez to his co-conspirators stating that he would soon finish the joint venture
agreement for Jet Blast and a subsequent email from Jimenez sending to his co-conspirators the
Jet Blast joint venture agreement that ultimately was submitted to CIS with the Jet Blast I-140
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The cover letter also states that the partners of the joint venture had
appointed Xu as the executive director of the joint venture, and attached multiple
documents “to establish the executive position to be offered to Ms. Xu,” including
a “Job Offer Letter by Jet Blast.” The cover letter includes a section on “Ability to
Pay,” stating that “petitioner has submitted its 2012 federal tax returns” and Jet
Blast’s “gross income of $147,273.00 is more than able to pay the beneficiary’s
proffered wage of $50,000.00 a year.”
C. Long and Wildflowers Boutique in Alabama
Terri Long and her daughter owned Wildflowers Boutique, a women’s
clothing store in Orange Beach, Alabama. In September 2011, defendant Jimenez
and his father-in-law Tom Wayne approached Long about a business deal to
expand her business and start a clothing label using their connections in China. To
set up the deal, Long had her bookkeeper give Jimenez business documents he
requested, such as bank account records and tax documents.
Unbeknownst to Long, Jimenez caused to be filed an I-140 petition for an
EB-1C visa in Wildflower Boutique’s name on behalf of Weihua Xu as the
Chinese beneficiary. As with Jet Blast’s I-140 petition and supporting documents,
the I-140 petition and accompanying cover letter filed in Wildflowers Boutique’s
petition. In another email to Jimenez, a co-conspirator was trying to get more information about
Jet Blast in order to create the fake bank account statement.
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name represented that Wildflowers Boutique and the Chinese company, Viva
Group Co. Ltd, China, had entered into a joint venture, and the joint venture would
employ Weihua Xu as a multinational executive or manager.
Long remembered signing documents at Jimenez’s request, but she did not
know if she signed the I-140 petition. Long remembered meeting Weihua Xu, the
Chinese beneficiary, and others once for lunch and a brief tour of her store.
However, Jimenez never discussed with Long filing an I-140 petition for a Chinese
national or having Weihua Xu work for Long, and Long did not know the Chinese
company, Viva Group, listed on the joint venture agreement with Wildflowers
Boutique. Long did not recall signing the joint venture agreement and said that the
signature on the agreement did not look like hers and that statements in the
agreement about a business relationship with Viva Group were false. Long also
did not sign the cover letter accompanying the documentation. Although Long
received two checks from Jimenez (totaling about $5,000), she never entered into
any business relationship with the Chinese businessperson connected to Jimenez.
Jimenez’s signature on one of the checks closely resembled the witness signature
on the joint venture agreement.
III. JIMENEZ’S EVIDENCE
Jimenez’s expert in immigration law, Kari Ann Fonte, testified that for
purposes of an EB-1C visa petition, a joint venture “qualifying relationship” under
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immigration regulations exists when the U.S. company and the foreign company
each own 50 percent of the joint venture.7 Fonte said that the joint venture could
be established orally, by implication, or by written contract, and whether there is a
joint venture is determined by the parties’ intent to create a business relationship
including a joint venture. The U.S petitioner’s intent would be evidenced by the I-
140 petition itself and accompany documents like the job offer letter to the
beneficiary.
Fonte said that immigration regulations do not require a written contract to
prove the joint venture. However, Fonte admitted it “would be wise to have a
document to evidence” a joint venture in the context of the EB-1C program
“because immigration processes, cases, are based on documentation.” Fonte
agreed that if there was no agreement between the two parties, there was no joint
venture and thus no qualifying relationship. Further, if there is no qualifying
relationship, then the petitioner does not qualify for the EB-1C visa program.
Fonte also testified that “generally, there’s three groups of documents that
are submitted” along with the I-140 petition—documents pertaining to (1) the
beneficiary, (2) the U.S. business that is the petitioner, and (3) the foreign
7
Fonte explained that the immigration regulations define three types of “qualifying
relationships” for EB-1C visa purposes: an affiliate, a subsidiary, and a joint venture. An
affiliate is “where the same person or group of persons owns or controls both companies” and a
subsidiary is “where one of the companies owns the majority of the other company.”
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company. However, Fonte contended that “[t]here’s nothing in the regulation that
requires specific documents” except for documents to prove the ability to pay and
that otherwise the “the statute is silent as to what must be provided in order to
establish the legal requirements.”
IV. JURY’S VERDICT
Both after the government rested and at the close of the evidence, Jimenez
moved for a judgment of acquittal, and the district court denied the motions at to
Count 1 and Counts 8 and 9. The district court, however, granted the
government’s motion to dismiss the wire fraud charges in Counts 2 through 7 with
prejudice.
The jury convicted Jimenez on Counts 1, 8 and 9. The district court
imposed concurrent 33-month sentences on each count, followed by three years of
supervised release.
V. DISCUSSION
A. Insufficient Evidence
On appeal, Jimenez argues that the government presented insufficient
evidence that the material misrepresentations he conspired to make were in
documents “required by the immigration laws or regulations prescribed
thereunder,” as specified by the fourth paragraph of § 1546(a). Jimenez contends
that “none of the documents containing misrepresentations he was charged with
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making were legally required.” He further maintains that, because the government
did not prove the “Visa Fraud” conspiracy in Count 1, there is no “specified
unlawful activity” for the money laundering offenses in Counts 8 and 9.
When a defendant has challenged the sufficiency of the evidence by an
appropriate motion for judgment of acquittal, we review de novo whether there
was sufficient evidence to support a conviction. United States v. Jiminez, 564 F.3d
1280, 1284 (11th Cir. 2009). In reviewing the sufficiency of the evidence, we
view the record in the light most favorable to the government, resolving all
reasonable inferences in favor of the verdict. Id. We assume that the jury made all
credibility choices in support of the verdict. Id. at 1285. The evidence is sufficient
if a reasonable jury could find that the evidence established the defendant’s guilt
beyond a reasonable doubt. Id. at 1284-85.
B. False Statements in Immigration Documents
In Count 1, Jimenez was found guilty of conspiracy to commit immigration-
document fraud in violation of 18 U.S.C. § 371 and the fourth paragraph of 18
U.S.C. § 1546(a).
To prove a conspiracy under 18 U.S.C. § 371, as alleged in Count 1, the
government must show: “(1) an agreement among two or more persons to achieve
an unlawful objective; (2) knowing and voluntary participation in the agreement;
and (3) an overt act by a conspirator in furtherance of the agreement.” United
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States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003). Here, the charged
unlawful objective was to commit the fraud offense in paragraph four of 18 U.S.C.
§ 1546(a).
Section 1546(a) contains four unnumbered paragraphs, each of which
criminalizes different fraudulent conduct involving immigration documents. 18
U.S.C. § 1546(a); see United States v. Pirela Pirela, 809 F.3d 1195, 1200 (11th Cir.
2015) (interpreting the first paragraph of § 1546(a)). The fourth paragraph of
§ 1546(a) criminalizes making a sworn false statement in a document “required by
the immigration laws or regulations,” as follows:
Whoever knowingly makes under oath, or as permitted under penalty
of perjury under section 1746 of title 28, United States Code, knowingly
subscribes as true, any false statement with respect to a material fact in
any application, affidavit, or other document required by the
immigration laws or regulations prescribed thereunder, or knowingly
presents any such application, affidavit, or other document which
contains any such false statement or which fails to contain any
reasonable basis in law or fact—[commits an offense under this
section].
18 U.S.C. § 1546(a) (emphasis added). As charged in Jimenez’s indictment, the
government was required to prove beyond a reasonable doubt that Jimenez:
(1) conspired; (2) to knowingly make a false statement under oath or to knowingly
subscribe under penalty of perjury that a false statement was true; (3) the false
statement was “with respect to a material fact”; and (4) the false statement was
made in a document “required by the immigration laws and regulations.”
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Jimenez’s sufficiency-of-the-evidence challenge concerns only this last element of
the conspiracy’s charged objective.
The two questions in this appeal are: (1) whether an I-140 petition is a
document “required by the immigration laws or regulations”; and if so, (2) whether
the government presented sufficient evidence of false statements being made in the
I-140 petitions involved here.
C. I-140 Petitions and § 1546(a)
On appeal, Jimenez argues that none of the documents the government
introduced at trial qualify as “other document[s] required by the immigration laws
or regulations” for purposes of § 1546(a)’s fourth paragraph. We disagree for two
reasons. First, an I-140 petition undoubtedly falls within the “other document[s]”
clause of § 1546(a)’s fourth paragraph.
Section 203(b)(1) of the Immigration and Nationality Act (“INA”) gives a
preference to “employment-based immigrants” in certain classes of “priority
workers.” See INA § 203(b)(1), 8 U.S.C. § 1153(b)(1). One of these classes is
multinational executives and managers. Id. § 203(b)(1)(C), 8 U.S.C.
§ 1153(b)(1)(C). An alien seeking classification as a multinational executive and
manager under § 203(b)(1)(C) must have been employed for one year, within the
last three years, by a firm, corporation, “or other legal entity or an affiliate or
subsidiary thereof,” and must be seeking to enter the United States to continue
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rendering services to the same employer “or to a subsidiary or affiliate thereof in a
capacity that is managerial or executive.” Id. The employment-based visa issued
to the alien as a multinational executive and manager is called an EB-1C visa.
Under the implementing regulations, the U.S. employer “desiring and
intending to employ” the alien files the petition seeking the alien’s classification as
an EB-1C multinational executive or manager. 8 C.F.R. § 204.5(c). The petition
to classify the alien “under section 203(b)(1) . . .[of the INA] must be filed on
Form I-140, Petition for Immigrant Worker.” 8 C.F.R. § 204.5(a), (j)(1). The
Form I-140 petition “is considered properly filed if it is,” among other things,
“[a]ccompanied by any other required supporting documentation.” Id.
§ 204.5(a)(3). Notably, the Form I-140 petition requires the petitioner to certify
under penalty of perjury that “this petition and the evidence submitted with it are
all true and correct.”
Second, a document demonstrating the qualified relationship for the EB-1C
visa program also falls within the “other documents” clause. Specifically,
§ 204.5(j) of the regulations contains definitions and additional requirements
pertaining to employer petitions filed as part of the EB-1C visa program for
multinational executives or managers. 8 C.F.R. § 204.5(j)(2)-(3). In a subsection
entitled “Required evidence,” the regulation states that the I-140 petition “must be
accompanied by a statement from an authorized official of the petitioning United
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States employer which demonstrates,” among other things, that “[t]he prospective
employer in the United States is the same employer or a subsidiary or affiliate of
the firm or corporation or other legal entity by which the alien was employed
overseas.” Id. § 204.5(j)(3)(i). A “subsidiary” is defined to include “a firm,
corporation, or other legal entity of which a parent owns . . . directly or indirectly,
50 percent of a 50-50 joint venture and has equal control and veto power over the
entity.” Id. § 204.5(j)(2).
In other words, the relevant regulations require the petitioning U.S.
employer to submit an I-140 petition accompanied by another document—a
statement by an authorized official—demonstrating a qualifying relationship—in
this case a joint venture relationship—between the prospective U.S. employer and
the overseas employer. Before filing the I-140 petition, the U.S. employer must
swear that its contents and the accompanying statement are true and correct.
Under the circumstances, we have little trouble concluding that an employer’s I-
140 petition and the required accompanying statement demonstrating the
qualifying relationship for purposes of the EB-1C visa program both fall within the
meaning of § 1546(a)’s “other document required by the immigration laws or
regulations.” 18 U.S.C. § 1546(a). Further, the government introduced cover
letters to the I-140 petitions falsely stating that the U.S. and Chinese companies
had entered into joint venture agreements, along with the false joint venture
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agreements. Accordingly, a reasonable jury could have convicted Jimenez of
conspiring to violate the fourth paragraph of § 1546(a) based on the evidence
presented at trial.
Jimenez points to another provision in 8 C.F.R. § 204.5, which requires all
petitions for employment-based immigration with an offer of employment to
demonstrate that the U.S employer has the ability to pay the prospective employee.
See 8 C.F.R. § 204.5(g)(2). Subsection (g)(2) requires evidence of the ability to
pay to “be either in the form of copies of annual reports, federal tax returns, or
audited financial statements.” Id. Jimenez contends that these financial documents
a U.S. employer must submit are the only “required” documents for an I-140
petition seeking an EB-1C visa.
Jimenez’s argument not only ignores § 204.5(j), but it also ignores
§ 204.5(g)(1). Subsection (g)(1), entitled “General,” states that “[s]pecific
requirements for initial supporting documents for the various employment-based
immigrant classifications are set forth in this section,” which is true. 8 C.F.R.
§ 204.5(g)(1). Various subsections of 8 C.F.R. § 204.5 contain specific document
requirements for each of the types of employment-based petitions permitted under
INA § 203(b)(1). See, e.g., 8 C.F.R. § 204.5(h) (requiring certain documentation
and evidence for aliens with extraordinary ability). Section 204.5(g)(1) clarifies
that “ordinary legible photocopies” of these specific supporting documents
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generally are acceptable for initial filing and approval. Id. § 204.5(g)(1). Thus,
§ 204.5(g) recognizes that other supporting documents are required besides the
documents showing an employer’s ability to pay, and for alien multinational
executives and managers seeking EB-1C visas, the other required supporting
documents can be found in § 204.5(j).8
D. Sufficiency of the Evidence of False Statements in I-140 Petitions
A reasonable jury could conclude from the trial evidence that Jimenez
conspired to commit a § 1546(a) offense by making false statements in I-140
petitions on behalf of Chinese-national beneficiaries seeking EB-1C employment-
based visas and in the accompanying statements (the cover letters) demonstrating a
qualifying joint venture relationship. At trial, the government introduced
numerous I-140 petitions that Jimenez and his co-conspirators filed with CIS in
order to obtain EB-1C employment-based visas for Chinese nationals, including in
the name of Dean Brothers, Wildflower Boutique, and Jet Blast. Each I-140
8
Section 204.5(g)(2) requires certain documents, such as tax returns and annual reports,
to show the U.S. employer’s ability to pay, but then states that “[i]n appropriate cases” the
petitioner “may” submit other kinds of documents, such as “profit/loss statements, bank account
records or personnel records.” 8 C.F.R. § 204.5(g)(2). Jimenez argues that in his case only
“optional” as opposed to “required” documents were introduced at his trial. Jimenez’s
arguments ignore all the I-140 petitions and the accompanying statements of the qualifying joint
venture relationship that were also introduced at trial. The I-140 petitions and cover letters
containing statements demonstrating joint ventures are clearly documents “required” by 8 C.F.R.
§ 204.5(j)(1) and (j)(3)(i)(C). The government’s case was about these fictitious joint ventures
concocted to allow Chinese nationals to immigrate. While the conspirators created fake ability-
to-pay documents along with everything else they fabricated, the government’s case did not rest
on the ability-to-pay documents.
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petition contained a certification, purportedly signed by the petitioner and made
under penalty of perjury, that “this petition and the evidence submitted with it are
all true and correct.”
At trial, numerous business owners, such as Terri Long, Duke Middleton,
and co-conspirator Christopher Dean, testified that these I-140 petitions, filed in
their businesses’ names, were fundamentally false because the businesses did not
offer to, and never did, employ the named Chinese-national beneficiary as an
executive or manager of any joint venture. The business owners further testified
that much of the supporting documentation submitted with the I-140 petitions,
including, inter alia, the cover letters stating that the U.S. and Chinese companies
had entered joint ventures, and copies of the joint venture agreements and job offer
letters, contained false statements because there was no joint venture with a
Chinese company or a job offer for a Chinese national. Moreover, some business
owners, including Terri Long and Duke Middleton, testified that their signatures
had been forged on the I-140 petition or the supporting documentation, or both.
Jimenez contends that the only documents that can be considered on appeal
are those “charged in the indictment” as containing material misrepresentations.
Jimenez then identifies these documents as “documents relating to wire transfers,
false invoices; a fictitious lease; and misleading photos” which were alleged in the
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“overt acts” portion of the second superseding indictment, and argues that none of
them are “required by law.”
Jimenez’s argument fails for two reasons. First, in reviewing the sufficiency
of the evidence supporting Jimenez’s conspiracy conviction, we are not limited to
the particular documents mentioned in the indictment as part of the conspiracy’s
overt acts. 9 In fact, the indictment itself states that the alleged overt acts occurred
“among others,” indicating that these acts are just some of the acts the conspirators
took in furtherance of the conspiracy. Rather, to determine whether the
government presented sufficient evidence of “other document[s] required by the
immigration laws or regulations,” we may examine all of the evidence introduced
at trial. See United States v. Alejandro, 118 F.3d 1518, 1520-21 (11th Cir. 1997)
(explaining that when reviewing the sufficiency of the evidence, we “examine all
of the evidence”).
Second, and in any event, Count 1 of the indictment alleged other
documents, besides those identified in Jimenez’s appellate brief, that contained
materially false statements, including “at least nine” I-140 petitions and related
documents, including joint venture agreements, offered in support of the I-140
9
Notably, the overt acts did not need to directly involve any element of a § 1546(a)
offense, such as a “document required by the immigration laws or regulations,” because overt
acts may be innocent acts, so long as they are taken in furtherance of the conspiracy. See United
States v. Campa, 529 F.3d 980, 1002 (11th Cir. 2008).
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petitions. In addition, in listing some of the overt acts taken by the conspirators,
the indictment alleged that Jimenez and his co-conspirators caused I-140 petitions
and related documents containing materially false information to be submitted to
CIS in the name of local businesses in Orange Beach, Alabama (i.e., Wildflower
Boutique) and Mobile, Alabama (i.e., Dean Brothers). At trial, the government
presented ample, if not overwhelming, evidence to support a jury finding that the
conspirators caused both I-140 petitions and accompanying statements
demonstrating qualifying joint venture relationships to be filed with CIS in the
names of Wildflower Boutique and Dean Brothers and that these documents,
required by 8 C.F.R. § 204.5(j)(1) and (j)(3)(i) respectively, contained materially
false statements.
Because there is sufficient evidence for a reasonable jury to convict Jimenez
of conspiracy to commit immigration-document fraud, a reasonable jury also could
convict Jimenez of conspiracy to commit money laundering and money laundering.
The only issue Jimenez raises on appeal with respect to these convictions in Counts
8 and 9 is that these convictions cannot stand without a “specified unlawful
activity.” See United States v. Johnson, 440 F.3d 1286, 1294 (11th Cir. 2006)
(stating that to prove a conviction under 18 U.S.C. § 1956(a)(1)(A)(i) and (h), the
government must prove, inter alia, that the defendant conducted a financial
transaction involving the proceeds of an unlawful activity, “with the intent to
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promote the specified unlawful activity”). Counts 8 and 9 of the indictment listed
“visa fraud” as one of the two “specified unlawful activities” in Jimenez’s money
laundering offenses, and the evidence presented at trial demonstrated that Jimenez
and co-conspirators carried out a visa fraud scheme by authoring and filing false I-
140 petitions and supporting documentation demonstrating a qualifying joint
venture relationship.
Accordingly, we affirm Jimenez’s convictions on Counts 1, 8 and 9.10
AFFIRMED.
10
On appeal, Jimenez appears to claim his indictment is legally insufficient. However,
Jimenez did not raise this issue in the district court and, to the extent he has raised it here, he has
shown no plain error in his indictment.
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