Petition for Writ of Certiorari — Julia Greenberg, Petitioner v. United States
Supreme Court briefMay 5, 2025
Ask Donna
What actually matters in this document.
Text
No. ___________
IN THE SUPREME COURT OF THE UNITED STATES
________________________
JULIA GREENBERG,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
________________________
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Second Circuit
________________________
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
________________________
Beau B. Brindley
COUNSEL OF RECORD
For Petitioner Julia Greenberg
Law Offices of Beau B. Brindley
53 W Jackson Blvd. Ste 1410
Chicago IL 60604
(312)765-8878
bbbrindley@gmail.com
INDEX TO APPENDICES
APPENDIX A – Opinion of the United States Court of Appeals for the Second
Circuit .......................................................................................................................... 1a
APPENDIX B - Unpublished Summary Order of the Second Circuit Court of
Appeals Denying Petitioner's remaining issues ....................................................... 10a
APPENDIX C - Superseding Indictment ................................................................ 25a
APPENDIX D - District Court Order Denying Motion to Dismiss ........................ 41a
APPENDIX E – Excerpt of Jury Instruction .......................................................... 97a
Case: 23-7168, 02/03/2025, DktEntry: 60.1, Page 1 of 9
23-7168 (L)
United States v. Greenberg
In the
United States Court of Appeals
For the Second Circuit
August Term, 2024
(Argued: January 8, 2025
Decided: February 3, 2025)
Docket Nos. 23-7168 (L), 23-7249 (Con)
UNITED STATES OF AMERICA,
Appellee,
–v.–
JULIA GREENBERG, AKA SEALED DEFENDANT 3, ULADZIMIR DANSKOI, AKA SEALED
DEFENDANT 2,
Defendants-Appellants,
YURY MOSHA, AKA SEALED DEFENDANT 1, ALEKSEI KMIT, AKA SEALED
DEFENDANT 4, TYMUR SHCHERBYNA, AKA SEALED DEFENDANT 5, KATERYNA
LYSYUCHENKO,
Defendants. *
Before:
*
WALKER, ROBINSON, and MERRIAM, Circuit Judges.
The Clerk’s office is directed to amend the caption as reflected above.
1a
Case: 23-7168, 02/03/2025, DktEntry: 60.1, Page 2 of 9
Defendants-Appellants Julia Greenberg and Uladzimir Danskoi
appeal from criminal judgments entered in the United States District Court
for the Southern District of New York (Oetken, J.) convicting them of a single
count of conspiracy to commit immigration fraud. Defendants raise several
challenges to the convictions, most of which are addressed in a summary
order issued contemporaneously with this opinion.
In this opinion, we address only Defendant Greenberg’s challenges to
the legal sufficiency of one of the charged objects of the conspiracy—
namely, committing immigration fraud by obtaining certain immigration
documents knowing them to be “forged, counterfeited, altered, or falsely
made, or to have been procured by means of any false claim or statement,
or to have been otherwise procured by fraud or unlawfully obtained,” in
violation of 18 U.S.C. § 1546(a) para. 1 (“Paragraph 1”). Greenberg argues
that Paragraph 1 does not reach the possession of authentic documents that
one knows to have been procured by a false claim or statement but is instead
limited to counterfeit documents.
We conclude that the plain language of Paragraph 1 applies to the
possession of authentic documents known to have been procured by means
of a false claim. Through the summary order and this opinion, we thus
AFFIRM the district court’s judgments.
DAVID R. FELTON (Jonathan E. Rebold, Jacob R.
Fiddelman, on the brief), Assistant United States
Attorneys, for Damian Williams, United States
Attorney for the Southern District of New York,
New York, NY, for Appellee.
BEAU B. BRINDLEY, The Law Offices of Beau B.
Brindley, Chicago, IL, for Appellant Greenberg.
JAMES M. BRANDEN, Law Office of James M.
Branden, Staten Island, NY, for Appellant Danskoi.
1
2a
Case: 23-7168, 02/03/2025, DktEntry: 60.1, Page 3 of 9
PER CURIAM:
Defendants-Appellants Julia Greenberg and Uladzimir Danskoi appeal
criminal judgments entered in the United States District Court for the Southern
District of New York (Oetken, J.). For the reasons set forth below and in a
summary order issued contemporaneously with this opinion, we AFFIRM the
judgments.
BACKGROUND
Defendants-Appellants Julia Greenberg and Uladzimir Danskoi were
convicted of a single count of conspiracy to commit immigration fraud. Danskoi
was a partner at Russian America, an immigration services firm in New York that
purported to provide translation and other services for individuals in immigration
proceedings. The government presented evidence that Danskoi and other charged
conspirators associated with Russian America steered clients into fraudulently
applying for asylum based on fabricated stories, and that Greenberg, an
immigration attorney, then represented those individuals in immigration
proceedings and further bolstered their applications, despite knowing that they
were fictitious. Both Defendants were convicted pursuant to a general verdict
following a two-week jury trial in December 2022.
2
3a
Case: 23-7168, 02/03/2025, DktEntry: 60.1, Page 4 of 9
Most of Defendants’ challenges to the convictions are addressed in a
summary order issued contemporaneously with this opinion. This opinion deals
solely with Greenberg’s challenge to whether the government met its burden to
prove the second alleged object of the conspiracy—namely, committing
immigration fraud by obtaining certain immigration documents knowing them to
be “forged, counterfeited, altered, or falsely made, or to have been procured by
means of any false claim or statement, or to have been otherwise procured by fraud
or unlawfully obtained,” in violation of 18 U.S.C. § 1546(a) para. 1 (“Paragraph 1”).
As relevant to this opinion, the government introduced evidence that
Greenberg coached CS-1 and CS-3, two government informants who were posing
as applicants for asylum based on fabricated stories, in their asylum proceedings
after Russian America submitted the applicants’ written applications.
The
government’s theory at trial was that Defendants’ conspiracy to secure I-94 forms,
documenting grants of asylum, was tantamount to a conspiracy to violate
Paragraph 1. Greenberg contends that as a matter of law, Paragraph 1 does not
apply to that conduct.
DISCUSSION
Paragraph 1 punishes:
3
4a
Case: 23-7168, 02/03/2025, DktEntry: 60.1, Page 5 of 9
Whoever knowingly forges, counterfeits, alters, or falsely
makes any immigrant or nonimmigrant visa, permit,
border crossing card, alien registration receipt card, or
other document prescribed by statute or regulation for
entry into or as evidence of authorized stay or
employment in the United States, or utters, uses,
attempts to use, possesses, obtains, accepts, or receives
any such visa, permit, border crossing card, alien
registration receipt card, or other document prescribed
by statute or regulation for entry into or as evidence of
authorized stay or employment in the United States,
knowing it to be forged, counterfeited, altered, or falsely
made, or to have been procured by means of any false
claim or statement, or to have been otherwise procured
by fraud or unlawfully obtained . . . .
18 U.S.C. § 1546(a).
Greenberg argues that this provision does not reach possession of any
authentic immigration documents – no matter how they were procured – but
rather punishes only counterfeiting and possession of counterfeit documents. She
contends that the triggering requirement of Paragraph 1 is that the documents in
question be forged, counterfeited, altered, or falsely made, and that the reference
to obtaining, possessing or using “any such” documents refers only to documents
that were forged, counterfeited, altered, or falsely made. See Greenberg Br. at 28.
We disagree.
Paragraph 1 reaches both “knowingly forg[ing], counterfeit[ing], alter[ing],
or falsely mak[ing]” any of the specifically listed immigration-related documents
4
5a
Case: 23-7168, 02/03/2025, DktEntry: 60.1, Page 6 of 9
in the statute, and receiving, possessing, or using “any such [document] . . .
knowing it to be forged, counterfeited, altered, or falsely made, or to have been
procured by means of any false claim or statement, or to have been otherwise procured by
fraud or unlawfully obtained.” 18 U.S.C. § 1546(a) para. 1 (emphasis added). We
read “any such” document as referencing the specific list of immigration-related
documents covered by the statute, not the means of falsifying those documents.
It is a “cardinal principle of interpretation that courts must give effect, if
possible, to every clause and word of a statute.” Liu v. Sec. & Exch. Comm’n, 591
U.S. 71, 89 (2020) (citation omitted). “[I]f it can be prevented,” we construe statutes
such that “no clause, sentence, or word shall be superfluous, void, or
insignificant.” El Omari v. Int'l Crim. Police Org., 35 F.4th 83, 90 (2d Cir. 2022)
(citation omitted). Greenberg’s construction would effectively require the Court
to ignore the statute’s specific reference to receipt, possession, or use of documents
known “to have been otherwise procured by fraud or unlawfully obtained.” That
statutory clause expressly encompasses fraudulent acquisition of immigration
documents through means other than forgery and counterfeiting. Greenberg’s
reading would render it inoperative. This reinforces our conclusion that the plain
language of Paragraph 1 proscribes the receipt or possession of an authentic
document that one knows to have been procured by a false claim or statement.
5
6a
Case: 23-7168, 02/03/2025, DktEntry: 60.1, Page 7 of 9
Every court to have considered this provision has reached the same
conclusion. See, e.g., United States v. Kouevi, 698 F.3d 126, 134 (3d Cir. 2012)
(holding that the plain language of Paragraph 1 “prohibits the possession and use
of authentic immigration documents obtained by fraud”); United States v. Krstic,
558 F.3d 1010, 1017 (9th Cir. 2009) (concluding, based on statutory history and
“common sense,” that Paragraph 1 “prohibits possessing an otherwise authentic
document that one knows has been procured by means of a false claim or
statement”).
Greenberg relies primarily on United States v. Campos-Serrano, 404 U.S. 293
(1971), for the proposition that Paragraph 1 pertains only to “counterfeiting,”
whereas other paragraphs of § 1546(a) address fraud in the acquisition of authentic
immigration documents, id. at 301 n.13. We agree with the district court that
“Campos-Serrano cannot support the weight Greenberg places upon it.” United
States v. Greenberg, No. 1:21-cr-00092, 2022 WL 827304, at *18 (S.D.N.Y. Mar. 9,
2022) (Nathan, J.) (alterations accepted). In Campos-Serrano, the Court considered
whether an “alien registration receipt card” was a document required for “entry
into . . . the United States” such that § 1546(a) para. 1 proscribed possession of a
counterfeit version of it. 404 U.S. at 295. The Court did not address whether
6
7a
Case: 23-7168, 02/03/2025, DktEntry: 60.1, Page 8 of 9
Paragraph 1 prohibited possession of an otherwise authentic document obtained
through a false claim.
And, contrary to Greenberg’s argument, reading Paragraph 1 to reach both
authentic and inauthentic documents does not render Paragraph 4 of § 1546(a)
superfluous. Paragraph 4 punishes “knowingly mak[ing] under oath . . . any false
statement with respect to a material fact” in an immigration application. 18 U.S.C.
§ 1546(a) para. 4.
Paragraph 4 does not cover the possession or receipt of
fraudulently obtained documents, which is addressed only in Paragraph 1.
In sum, based on the plain text of the statute, we conclude that Paragraph 1
unambiguously prohibits the knowing acquisition, possession, or use of authentic
immigration documents obtained by fraud or false statement and thus the rule of
lenity doesn’t apply. See United States v. DiCristina, 726 F.3d 92, 104 (2d Cir. 2013)
(“[T]he rule of lenity only applies if, after considering text, structure, history, and
purpose, there remains a grievous ambiguity or uncertainty in the statute.”
(citation omitted)).
Greenberg does not otherwise challenge the factual sufficiency of the
government’s evidence on this reading of the statute. Accordingly, the district
court’s inclusion of violating Paragraph 1 as one object of the charged conspiracy
was not error and provides no basis to overturn Greenberg’s conviction.
7
8a
Case: 23-7168, 02/03/2025, DktEntry: 60.1, Page 9 of 9
CONCLUSION
For these reasons and for the reasons set forth in the separately issued
summary order, we AFFIRM.
8
9a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 1 of 15
23-7168 (L)
United States v. Greenberg
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of The United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 3rd day of February, two thousand twenty-five.
PRESENT:
JOHN M. WALKER JR.,
BETH ROBINSON,
SARAH A. L. MERRIAM,
Circuit Judges.
_________________________________________
UNITED STATES OF AMERICA,
Appellee,
v.
Nos. 23-7168 (L), 23-7249
JULIA GREENBERG, AKA SEALED DEFENDANT 3,
ULADZIMIR DANSKOI, AKA SEALED DEFENDANT 2,
Defendants-Appellants,
YURY MOSHA, AKA SEALED DEFENDANT 1,
ALEKSEI KMIT, AKA SEALED DEFENDANT 4,
TYMUR SHCHERBYNA, AKA SEALED DEFENDANT 5,
KATERYNA LYSYUCHENKO,
10a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 2 of 15
Defendants. *
_________________________________________
FOR APPELLANT GREENBERG:
BEAU B. BRINDLEY, The Law Offices of
Beau B. Brindley, Chicago, IL.
FOR APPELLANT DANSKOI:
JAMES M. BRANDEN, Law Office of James
M. Branden, Staten Island, NY.
FOR APPELLEE:
DAVID R. FELTON (Jonathan E. Rebold,
Jacob R. Fiddelman, on the brief),
Assistant United States Attorneys, for
Damian Williams, United States
Attorney for the Southern District of
New York, New York, NY.
Appeal from criminal judgments entered in the United States District
Court for the Southern District of New York (Oetken, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that, for the reasons set forth in a separate per
curiam opinion issued today and in this summary order, the September 8, 2023
and September 28, 2023 judgments are AFFIRMED.
Defendants-Appellants Julia Greenberg and Uladzimir Danskoi were
convicted after a jury trial of a single count of conspiracy to commit immigration
fraud. Danskoi was a partner at Russian America, an immigration services firm
*
The Clerk’s office is directed to amend the caption as reflected above.
2
11a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 3 of 15
in New York that purported to provide translation and other services for
individuals in immigration proceedings, and Greenberg was an immigration
attorney. The government presented evidence that Danskoi and other
conspirators associated with Russian America steered clients into fraudulently
applying for asylum based on fabricated stories, and that Greenberg then
represented those individuals in immigration proceedings and further bolstered
their applications, despite knowing that they contained false information.
The charged conspiracy based on this evidence had three alleged
objectives: (1) defrauding the United States, in violation of 18 U.S.C. § 371; (2)
immigration fraud by obtaining visas and asylum grants by means of false
claims, statements, or other fraudulent means, in violation of 18 U.S.C. § 1546(a)
para. 1; and (3) immigration fraud by knowingly presenting false statements
under oath regarding a material fact in an application, affidavit, or other
document required by the immigration laws, in violation of 18 U.S.C. § 1546(a)
para. 4. Both Defendants were convicted pursuant to a general verdict following
a two-week jury trial in December 2022.
On appeal, each defendant argues that the evidence was insufficient to
show that he or she entered into an agreement with another person to pursue an
3
12a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 4 of 15
alleged object of the conspiracy 1 and that the district court erred by giving the
jury a conscious avoidance charge. In addition, Greenberg contends the district
court committed plain error when it instructed the jury about an attorney’s
ethical duties. We assume the parties’ familiarity with the underlying facts,
procedural history, and arguments on appeal, to which we refer only as
necessary to explain our decision to affirm.
I.
Sufficiency of the Evidence
We review a challenge to the sufficiency of the evidence de novo, meaning
without deference to the district court’s decision. United States v. Dove, 884 F.3d
138, 150 (2d Cir. 2018). In assessing the sufficiency of the government’s evidence,
“we must view the evidence in the light most favorable to the government, and
construe all permissible inferences in its favor.” United States v. Heinemann, 801
F.2d 86, 91 (2d Cir. 1986). 2 “This deferential standard of review is especially
important when reviewing a conviction of conspiracy because a conspiracy by its
very nature is a secretive operation, and it is a rare case where all aspects of a
Greenberg poses a legal challenge concerning the second objective—immigration fraud in
violation of 18 U.S.C. § 1546(a) para. 1. We address this legal challenge in a separate published
opinion issued contemporaneously with this summary order.
1
In quotations from caselaw and the parties’ briefing, this summary order omits all internal
quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.
2
4
13a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 5 of 15
conspiracy can be laid bare in court with the precision of a surgeon’s scalpel.”
United States v. Pauling, 924 F.3d 649, 656 (2d Cir. 2019).
“To prove conspiracy, the government must show that two or more
persons entered into a joint enterprise for an unlawful purpose, with awareness
of its general nature and extent, and that those persons agreed to participate in
what they knew to be a collective venture directed toward a common goal. But
the government need not prove that the defendant knew all of the details of the
conspiracy or the identities of all of the other conspirators.” United States v.
Jimenez, 96 F.4th 317, 324 (2d Cir. 2024).
A. 18 U.S.C. § 371
We first consider whether the evidence was sufficient to prove a
conspiracy to “commit any offense against the United States, or defraud the
United States, or any agency thereof in any manner or for any purpose[.]” 18
U.S.C. § 371. “To prove a conspiracy under the ‘defraud clause,’ the government
must establish (1) that the defendant entered into an agreement (2) to obstruct a
lawful function of the government (3) by deceitful or dishonest means and (4) at
least one overt act in furtherance of the conspiracy.” United States v. Atilla, 966
F.3d 118, 130 (2d Cir. 2020).
5
14a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 6 of 15
i. Danskoi
During the investigation, a confidential source known as CS-3 posed as an
asylum applicant seeking the assistance of the Defendants; evidence regarding
his application and his interactions with Defendants was introduced at trial.
Danskoi contends the evidence was insufficient to show that he did not believe
that CS-3 was gay when he helped CS-3 pursue an asylum claim based on feared
persecution based on sexual orientation, and further argues that there is
insufficient proof that he acted with anyone else.
There is ample evidence from which the jury could conclude that Danskoi
believed that CS-3 was falsely claiming to be gay in his asylum application. For
one, CS-3 testified that after he and Danskoi began discussing a claim based on
sexual orientation persecution—an approach Danskoi identified as the best
option—CS-3 expressly told him that he was “not a gay . . . not gay.” Tr. 173:22. 3
Rather than changing course, Danskoi said that he “doesn’t hear it” and that CS3 should not be talking to him about that. Id. 173:24–25. Danskoi then referred
CS-3 to an associate, Kateryna Lysyuchenko, whom he described as “sort of an
expert talking about the subject,” to help CS-3 develop his claim. Id. 174:11–12.
3
“Tr.” refers to the trial transcript available on the district court’s docket.
6
15a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 7 of 15
Lysyuchenko, an indicted co-conspirator, gave CS-3 sample asylum
narratives based on sexual orientation persecution, talked to him about his claim,
and completed the application and wrote most of the accompanying narrative.
When CS-3 returned to Danskoi’s office to sign the final application, Danskoi
recommended that CS-3 “look around in New York” for what CS-3 characterized
as “[h]omosexual associated organizations.” Id. 214:19–23. Neither Danskoi nor
anyone in his office read the contents of the completed document to CS-3 in his
native language.
In response to CS-3’s request for an attorney to accompany him to the
asylum interview, Danskoi arranged for Attorney Greenberg to represent CS-3.
After CS-3 signed his application, Danskoi assured him that Greenberg would
help him “strengthen his case” and “prepare for the interview.” Id. 215:1–5.
This evidence is sufficient to support the conclusion that Danskoi
conspired with one or more people to defraud the United States.
ii. Greenberg
Similarly, when Greenberg met CS-3, she said, “Oh. You are going it as a
gay.” Tr. 231:5. CS-3 repeatedly implied that he was not, in fact, gay,
responding to her initial question by saying, “Well, like as if,” and explaining
7
16a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 8 of 15
that he didn’t want to but “they said it is better that way.” Id. 231:6, 8–9. He
asked her, “Do I look like one?” Id. 231:12.
In preparing CS-3 for his interview, Greenberg coached CS-3 to style
himself in a manner stereotypically associated with being gay. In preparing CS-3
to talk about a purported incident when he claimed to have been beaten up at a
bar, she asked him what month the incident occurred. He said the narrative did
not indicate a month and asked Greenberg, “What would be better?” Id. 248:25–
49:1. Greenberg coached him to say the assault took place in March, because at
that time Ukraine was still subject to the Soviet Union’s criminal code that
criminalized homosexuality. She told CS-3: “[T]hat’s the explanation for why
you didn’t call the police.” Id. 249:24–25. She also coached CS-3 to falsely state in
his asylum interview that Russian America had provided only translation
services and that they read his story back to him in his native language before it
was submitted. Moreover, Greenberg submitted supplemental country
conditions evidence to support CS-3’s claim for persecution.
The government also introduced texts between Greenberg and Yury
Mosha, who was Danskoi’s partner at Russian America and an indicted coconspirator. In the emails, Mosha arranged for a client, A.S., to meet with
8
17a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 9 of 15
Greenberg to discuss his asylum prospects. Before meeting with A.S. but after
reviewing his paperwork, Greenberg texted Mosha that A.S.’s asylum claim was
weak. When Greenberg met with A.S., she steered him toward seeking asylum
based on sexual orientation, though he had provided no basis for such a claim.
A.S. was not receptive to that approach, but Greenberg messaged Mosha after
her meeting with A.S. and said, “He is 100, effectively 100 percent gay but does
not admit.” Id. 958:15–16.
Finally, the government introduced evidence that Russian America
discussed Greenberg’s fees with their clients, and when Greenberg did not
receive a fee from a client referred by Russian America, she expected Russian
America to ensure she was paid. In fact, before Greenberg’s first meeting with
A.S., Mosha told her not to discuss finances with A.S.
This evidence is sufficient to show that Greenberg entered into an
agreement with one or more people to defraud the United States.
B. 18 U.S.C. § 1546(a) para. 4 (“Paragraph 4”)
We need not address Greenberg’s separate contention that the evidence
was insufficient to support a conviction for conspiracy to violate 18 U.S.C.
§ 1546(a) para. 4. Paragraph 4 makes it a crime to submit an application or other
9
18a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 10 of 15
document required by immigration laws knowing that it contains a false
statement under oath. The government conceded at trial that this objective did
not reach oral statements Greenberg made to immigration officials, and
Greenberg contends the evidence is insufficient to show that she entered a
conspiracy to enter any falsified documents.
Because we conclude that the evidence is sufficient to support Defendants’
convictions based on the first objective identified in the indictment, we need not
address Defendants’ challenges to the sufficiency of the evidence with respect to
this third object. See United States v. Duncan, 42 F.3d 97, 105 (2d Cir. 1994)
(“[W]hen a defendant is convicted of a multiple object conspiracy by a general
verdict, the conviction is sustainable if one of the conspiratorial objects is
supported by the evidence, even if the other is not.” (citing Griffin v. United
States, 502 U.S. 46, 49 (1991)). 4
When a defendant challenges the legal rather than evidentiary adequacy of one of the possible
bases for conviction, this rule does not apply. Yates v. United States, 354 U.S. 298, 311–12 (1957)
(“In these circumstances we think the proper rule to be applied is that which requires a verdict
to be set aside in cases where the verdict is supportable on one ground, but not on another, and
it is impossible to tell which ground the jury selected.”); see also Griffin v. United States, 502 U.S.
46, 59 (1991) (“When . . . jurors have been left the option of relying upon a legally inadequate
theory, there is no reason to think that their own intelligence and expertise will save them from
that error. Quite the opposite is true, however, when they have been left the option of relying
upon a factually inadequate theory, since jurors are well equipped to analyze the evidence.”).
For that reason, by separate opinion issued contemporaneously with this order, we do address
Greenberg’s challenge to the legal sufficiency of the second alleged object of the conspiracy.
4
10
19a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 11 of 15
II.
Conscious Avoidance Charge
“We review challenged jury instructions de novo but will reverse only if all
of the instructions, taken as a whole, caused a defendant prejudice.” United
States v. Applins, 637 F.3d 59, 72 (2d Cir. 2011). “A conscious avoidance
instruction may only be given if (1) the defendant asserts the lack of some
specific aspect of knowledge required for conviction, and (2) the appropriate
factual predicate for the charge exists.” United States v. Svoboda, 347 F.3d 471, 480
(2d Cir. 2003). Both Defendants challenge the factual predicate supporting the
charge.
We reject their claims. Both Defendants argued to the jury that they were
unaware of the falsity of various clients’ asylum claims, and the evidence was
sufficient to support a finding that both Defendants were “aware of a high
probability” of the disputed fact and deliberately avoided confirming otherwise.
Id. at 480. As stated above, when CS-3 explicitly told Danskoi he was not gay,
Danskoi told him he did not want to hear it. That is textbook conscious
avoidance. Similarly, CS-3 effectively – though not directly – conveyed the same
information to Greenberg, who proceeded to coach him on how to make his
story believable.
11
20a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 12 of 15
And we easily reject Greenberg’s separate argument that the instruction
allowed the jury to convict without evidence of actual intent to enter into an
agreement. The district court expressly instructed otherwise:
Here, because the Defendants are charged with
participating in a conspiracy, it is also important to note
that the concept of conscious avoidance cannot be used
as a substitute for finding that the Defendants knowingly
agreed to a joint undertaking, and you can only find the
Defendants guilty if the evidence proves, beyond a
reasonable doubt, that the Defendants knowingly and
intentionally joined the conspiracy charged in the
Indictment.
Jury Instructions at 47, No. 1:21-cr-00092(JPO) (S.D.N.Y. Dec. 16, 2022), ECF No.
187 (“Jury Instructions”).
III.
Legal Ethics Charge
Given Greenberg’s role as a lawyer barred in New York, the district court
instructed the jury as to her ethical duties. Greenberg did not challenge the
instruction at trial but now argues that the instruction (1) should not have been
given at all and (2) was erroneous. We review for plain error, meaning that
Greenberg must show, among other things, that any claimed error affected her
“substantial rights.” United States v. Miller, 954 F.3d 551, 557–58 (2d Cir. 2020).
12
21a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 13 of 15
Greenberg specifically challenges the district court’s instruction that “a
USCIS agent conducting an asylum interview qualifies as a tribunal” for the
purposes of New York professional conduct rules providing that if a lawyer
comes to know of the material falsity of evidence offered to a tribunal by a client,
or knows a client is engaging in fraudulent conduct relating to a proceeding
before a tribunal, the lawyer must take “reasonable remedial measures,
including, if necessary, disclosure to the tribunal.” Jury Instructions at 39.
Greenberg contends that an asylum interview is not a proceeding before a
“tribunal” for purposes of this ethical rule.
We need not determine the application of these specific provisions of New
York’s ethics codes to asylum interviews because any error in giving this
instruction, or in its precise formulation, did not affect her substantial rights.
Instructions about the ethical requirements that applied to Greenberg were
relevant in light of her suggestion at trial that her conduct was consistent with
her duty as a lawyer. But the instructions emphasized that “[p]roof that
Greenberg violated one or more of her professional duties does not, without
more, mean that she is guilty of any crime. That is, a lawyer can violate her
ethical duties under New York law and Board of Immigration Appeals and
13
22a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 14 of 15
Immigration Court disciplinary rules without having the intent required to
commit a crime.” Id. at 41. Moreover, Greenberg herself testified that a USCIS
proceeding is a tribunal. Insofar as the rules are relevant to Greenberg’s state of
mind, her understanding of the rules is what matters.
Moreover, the district court also instructed that “a lawyer is prohibited
from counseling or assisting a client as to conduct that the lawyer knows is
illegal or fraudulent,” including by “suggesting how the wrongdoing might be
concealed.” Id. at 38. And the court instructed, “Although an attorney must use
all reasonable lawful means to attain the objectives of the client, counsel is
precluded from taking steps or in any way assisting the client in presenting false
evidence or otherwise violating the law.” Id. at 39. These instructions were not
linked to the existence of any proceeding before a “tribunal.” Greenberg does
not challenge these instructions. For all of these reasons, any error with respect
to a lawyer’s duties to a tribunal did not affect Greenberg’s substantial rights.
* * *
14
23a
Case: 23-7168, 02/03/2025, DktEntry: 61.1, Page 15 of 15
We have considered Appellants’ remaining arguments and conclude that
they are without merit. Accordingly, the District Court’s judgments are
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
15
24a
Case 1:21-cr-00092-JPO
Document 12
Filed 02/18/21
Page 1 of 16
UNITED STATES DISTRICT COURT
SOUTHERN DI STRICT OF NEW YORK
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
X
SEALED
SUPERSED I NG INDICTMEN T
UNITED STATES OF AMERICA
- v. -
Sl 21 Cr .
YURY MOSHA ,
ULADZ I MIR DANSKOI ,
JULIA GREENBERG ,
ALEKSEI KMIT,
TYMUR SHCHERBYNA , and
KATERYNA LYSYUCHENKO
ct~
Defendants .
- - - - - - - - - - - - - - - -
X
COUNT ONE
(Conspiracy to Commit Immigration Fraud)
The Grand Jury charges:
1.
" Russian America" is a company which , at all times
relevant to this Indictment, purported to assist clients ,
primarily aliens from Russia and the Commonwealth of Independent
States (" CIS " ) , seeking visas, asylum , citizenship , and other
forms of legal status in the United States .
YURY MOSHA and
ULADZIMIR DANSKOI , the defendants , operated Russian America . At
all times relevant to this Indictment , DANSKOI maintained one of
Russian America ' s office in Brooklyn , New York (the "Brooklyn
Office) , and at all times relevant to the Indictment up to and
including at least in or about December 2019 , MOSHA maintained a
second office in Manhattan , New York (the " Manhattan Office") .
25a
Case 1:21-cr-00092-JPO
2.
Document 12
Filed 02/18/21
Page 2 of 16
At all times relevant to this Indictment , Russian
America helped certain of its clients obtain asylum under
fraudulent pretenses. It did so in a number of ways.
Among
other things , YURY MOSHA and ULADZIMIR DANSKOI , the defendants ,
advised clients regarding the manner in which they were most
likely to obtain asylum using false claims , knowing that these
clients did not legitimately qualify for asylum ; connected
clients wi th coconspirators , such as JULIA GREENBERG , TYMUR
SHCHERBYNA , and KATERYNA LYSYUCHENKO , the defendants , so that
these ind i viduals could knowingly assist Russian America clients
with var i ous aspects of the clients '
fraudulent asylum
applications ; and prepared and submitted to United States
Citizensh i p and Immigration Services (" USCIS " ) clients '
asylum
applications and affidavits , knowing that these documents
contained materially false information .
3.
For example , YURY MOSHA , the defendant , advised
certain clients to establish and maintain online blogs that were
critical of the clients ' home countries , as a way to generate a
claim that , based on the clients ' political opinions , it was no
longer safe for the clients to return to their native countries .
MOSHA did so understanding that the clients ' decision to blog
was prompted not by their own idea or initiative , but by MOSHA ' s
instruction , and that the clients ' motive for blogging was to
2
26a
Case 1:21-cr-00092-JPO
Document 12
Filed 02/18/21
Page 3 of 16
contrive a basis for asylum , rather than to publicly express a
sincerely held opinion .
4.
Further , YURY MOSHA , the defendant , understood that ,
in some instances , his clients did not have the desire , topical
knowledge , journalistic ability , and/or technical expertise to
write blogposts and/or maintain and operate their blogs .
To the
contrary , MOSHA referred certain Russian America clients to
TYMUR SHCHERBYNA , the defendant , a Ukraine - based purported
journalist , with the understanding that , in exchange for a fee ,
SHCHERBYNA would and did maintain and ghost - write Russian
America ' s clients ' blogs .
SHCHERBYNA , in turn , understood that
Russian America clients would use these blogs as a fraudulent
basis to seek asylum .
5.
Defendant YURY MOSHA also referred Russian America
clients to individuals such as KATERYNA LYSYUCHENKO, the
defendant , and others known and unknown , who knowingly helped
Russian America clients draft fraudulent affidavits
("As ylum
Affidavits " ) so that they could be submitted as part of the
clients' asylum applications .
These Asylum Affidavits , which
were designed to support clients '
false persecution claims ,
conveyed purported aspects of the clients ' personal histories
and contained material falsehoods , such as fabricated events ,
incidents of alleged persecution , and false claims about the
clients ' authorship and maintenance of their blogs.
3
27a
Case 1:21-cr-00092-JPO
6.
Document 12
Filed 02/18/21
Page 4 of 16
YURY MOSHA , the defendant, also personally prepared
clients' fraudulent asylum applications and submitted them ,
along with Asylum Affidavits and other documents containing
material falsehoods , such as fabricated claims of past
persecution , to
7.
users.
YURY MOSHA, the defendant, also connected Russian
America clients with attorneys, such as JULIA GREENBERG , the
defendant , who knowingly prepared and encouraged certain Russian
America clients to lie under oath about their fraudulent asylum
claims during interviews conducted by users Officers ("Asylum
Officers") .
GREENBERG would accompany these clients to , and
represent them , during these interviews and in proceedings
conducted by immigration judges , during which clients and/or
GREENBERG made claims that GREENBERG understood were false .
8.
Russian America also employed individuals, including
ALEKSEI KMIT , the defendant, who , among other things: served as
certain clients ' primary point of contact; coordinated
communications between these clients and other coconspirators
such as YURY MOSHA , TYMUR SHCHERBYNA, KATERYNA LYSYUCHENKO , and
JULIA GREENBERG , the defendants; and provided advice to clients
about their asylum applications , Asylu~ Affidavits , and related
forms of evidence , understanding that these documents were
fraudulent in nature.
4
28a
Case 1:21-cr-00092-JPO
9.
Document 12
Filed 02/18/21
Page 5 of 16
ULADZIMIR DANSKOI , the defendant , also knowingly
assisted Russian America clients to prepare and submit
fraudulent asylum applications , performing many of the same
functions as YURY MOSHA , the defendant.
For example , DANSKOI
knowingly assisted and advised a Russian America client (who was
in fact a government confidential source (" CS-3 " ) acting at the
direct i on of law enforcement) , to fraudu l ently seek asylum by
claiming persecution based on sexual orientation when DANSKOI
fu l ly understood that CS - 3 endured no such persecution .
addition to adv i sing
In
cs- i how to lie in CS-3 ' s asylum
application and aff i davit , and how to defraud an Asylum Officer ,
DANSKOI connected CS - 3 with KATERYNA LYSYUCHENKO , the defendant ,
so that LYSYUCHENKO could knowingly assist CS - 3 draft an asylum
affidavit f a l sely claiming persecution based on sexual
or i entatio n.
DANSKOI a l so referred CS - 3 to JU LIA GRE ENBERG , the
defendant , so that GREENB ERG could kn owingly prepare the client
to lie under oath during immigration proceedings , including
during an interview with an Asylum Officer .
BACKGROUND ON THE ASYLUM PROCESS
10 .
Pursuant to federal immigration law , to obtain asylum
in the United States , an alien is required to show that he or
she has suffered persecution in his or her country of origin on
account of race , religion , nationality , political opinion , or
5
29a
Case 1:21-cr-00092-JPO
Document 12
Filed 02/18/21
Page 6 of 16
membership in a particular social group , or has a well - founded
fear of persecution if he or she were to return to such country .
11.
Alien applicants seeking asylum are required to
complete and present a form,
Form I - 589 , to
users .
The Form I -
589 requires a detailed and specific account of the basis of the
claim to asylum .
Alien applicants are permitted to append to
the Form I-589 an Asylum Affidavit , providing greater detail
about the applicant ' s background and basis for seeking asylum.
If the Form I - 589 is prepared by someone other than the
applicant or a relative of the applicant , such as an attorney ,
the preparer is required to set forth his or her name and
address on the form.
The alien applicant and preparer are
required to sign the petition under penalty of perjury .
The
alien applicant must typically apply for asylum within one year
of his or her arrival in the United States .
12.
After the Form I-589 is submitted , the alien applicant
is interviewed by an Asylum Officer to determine whether the
applicant qualifies for asylum.
At the interview , the applicant
is permitted to speak on his or her own behalf , and can present
witnesses or documentation in support of his or her asylum
claim .
After the interview , the Asylum Officer determines
whether the alien applicant qualifies for asylum .
13.
If an alien applicant is granted asylum , he or she
receives a completed Form I - 94 that reflects that the
6
30a
users has
Case 1:21-cr-00092-JPO
Document 12
granted him or her asylum status .
Filed 02/18/21
Page 7 of 16
The grant of asylum typically
applies to the applicant ' s spouse and children as well.
An
alien who has a Form I - 94 can apply for , among other things ,
lawful permanent resident status.
A grant of asylum status does
not expire , although USCIS can terminate asylum status if , among
other things , it is later discovered that the applicant obtained
asylum through fraud or no longer has a well - founded fear of
persecution in his or her home country .
14 .
If the Asylum Officer determines that the applicant is
ineligible for asylum status , and if the applicant is in the
United States illegally , the matter is referred to an
Immigration Judge at the Executive Office for Immigration
Review.
The Immigration Judge holds a hearing during which the
alien applicant , and commonly an immigration lawyer , appear
before the Immigration Judge and present evidence in support of
the asylum application.
For asylum applicants residing in the
Southern and Eastern Districts of New York , all immigration
hearings take place in Manhattan , New York.
After the hearing ,
the Immigration Judge renders a decision on the alien ' s asylum
application .
If the Immigration Judge denies the asylum
application , the applicant may appeal that decision to the Board
of Immigration Appeals ("BIA") .
If the applicant loses his or
her appeal before the BIA , the applicant may appeal to a federal
court .
7
31a
Case 1:21-cr-00092-JPO
15 .
Document 12
Filed 02/18/21
Page 8 of 16
At all times relevant to this Indictment , a successful
application for asylum generally required , among other things ,
that :
a.
The applicant submit his or her application
within one year of his or her last arrival in the United States ;
b.
The applicant demonstrate that he or she is a
"r efugee ," meaning , in general terms , that he or she is unable
to return to his or her country because of persecution or a
well - founded fear of persecution on account of race , religion ,
nationality , membership in a particular social group , or
political opinion ;
c.
The applicant subscribe to the assertions
contained in his or her application for asylum under penalty of
perjury ; and
d.
The applicant be interviewed , under oath , by an
asylum officer.
16.
In the course of their work for and with Russian
America , YURY MOSHA , ULADZIMIR DANSKOI , JULIA GREENBERG , ALEKSEI
KMIT , TIMUR SHCHERBYNA , and KATERYNA LYSYUCHENKO , the
defendants , and others known and unknown , conspired to provide
applicants and potential applicants for asylum with assistance
in making and supporting fraudulent claims for asylum .
Specifically , MOSHA , DANSKOI, GREENBERG , KMIT , SHCHERBYNA ,
LYSYUCHENKO, and others known and un known , helped applicants and
8
32a
Case 1:21-cr-00092-JPO
Document 12
Filed 02/18/21
potential applicants to , among other things ,
Page 9 of 16
(i) concoct false
and fraudulent bases that would purport to satisfy the
aforementioned criteria for asylum ,
(ii) generate fraudulent
evidence that purported to support those false and fraudulent
assertions ,
(iii) prepare and submit asylum applications ,
aff i dav i ts , and documents containing the false and fraudulent
assertions , and (iv) prepare for and accompany applicants to the
asylum interview at which the applicant would be required to
reiterate the false and fraudulent assertions.
Statutory Allegations
17 .
From at least in or about August 2018 , up to and
including at least in or about February 2021 , in the Southern
District of New York and elsewhere , YURY MOSHA , ULADZIMIR
DANSKOI , JU LIA GREENBERG , ALEKSEI KMIT , TIMUR SHCHERBYNA , and
KATERYNA LYSYUCHENKO , the defendants , and others known and
unknown , knowingly and willfully did combine , conspire ,
confederate and agree together and with each other to defraud
the United States of America and an agency thereof , to wit ,
users , and to commit offenses against the United States ,
to wit ,
to violate Section 1546(a) of Title 18 , United States Code .
18 .
It was a part and an object of the conspiracy that
YURY MOSHA , ULADZIMIR DANSKOI , JULIA GREENBERG , ALEKSEI KMIT ,
TIMUR SHCHERBYNA , and KATERYNA LYSYUCHENKO , the defendants , and
others known and unknown , willfully and knowingly would and did
9
33a
Case 1:21-cr-00092-JPO
Document 12
defraud the United States and
Filed 02/18/21
Page 10 of 16
users for the purpose of impeding ,
impairing , obstructing , and defeating the lawful governmental
functions of USCIS in processing , reviewing , and deciding upon
applications for asylum .
19 .
It was further a part and an object of the conspiracy
that YURY MOSHA , ULADZIMIR DANSKOI , JULIA GREENBERG , ALEKSEI
KMIT , TI MUR SHCHERBYNA , and KATERYNA LYSYUCHENKO , the
defendants , and others known and unknown , unlawfully , willfully ,
and knowingly would and did utter , use , attempt to use , possess,
obtain , accept , and receive an immigrant and nonimmigrant visa ,
permit , border crossing card , alien registration receipt card ,
and other document prescribed by statute and regulation for
entry into and as evidence of authorized stay and emp l oyment in
the United States , knowing it to be forged , counterfeited ,
altered , and falsely made , and to have been procured by means of
a false claim and statement , and to have been otherwise procured
by fraud and unlawfully obtained , and would and did make under
oath , and as permitted under penalty of perjury under section
1746 of Title 28 , United States Code , subscribe as true , a false
statement with respect to a material fact in an application ,
affidavit , and other document required by the immigration laws
and regulations prescribed thereunder , and would and did present
such application , affidavit , and other document which contained
such false statement and which failed to contain a reasonable
10
34a
Case 1:21-cr-00092-JPO
Document 12
Filed 02/18/21
Page 11 of 16
basis in law and fact , in violation of Title 18, United States
Code , Section 1546(a) .
Overt Acts
20 .
In furtherance of said conspiracy and to effect the
illegal objects thereof , the following overt acts , among others ,
were committed in the Southern District of New York and
elsewhere :
a.
In or about September 2018 , TYMUR SHCHERBYNA , the
defendant , agreed to and subsequently did ghost-write and
maintain a blog on behalf of a cooperating witness (" CS - 1 " ) that
was critical of the Ukrainian government , understanding that
this blog would form a basis for CS - l ' s asylum application , and
that CS - 1 would further claim to United States immigration
authorities that CS - 1 personally wrote and ma in tained said blog .
b.
In or about April 2019 , while in Manhattan , New
York , YURY MOSHA, the defendant , prepared , signed , and mailed
CS - l ' s Form I-589 asylum application and Asylum Affidavit to
users ,
knowing that these documents contained several material
misrepresentations , including that (1) CS - 1 started a blog to
cr iti cize the Ukrainian government , when in fact MOSHA
understood that CS-1 started the blog , at MOSHA ' s instruction ,
to generate a basis to seek asylum;
(2) CS-1 authored the
blogposts on CS-l ' s online blog , when in fact MOSHA understood
that CS - l ' s blogposts were ghost - written by SHCHERBYNA , whom
11
35a
Case 1:21-cr-00092-JPO
Document 12
Filed 02/18/21
Page 12 of 16
MOSHA introduced to CS - 1 ; and (3) CS - 1 was allegedly assaulted
to the point of unconsciousness in Ukraine because CS - 1 was
overheard speaking Russian , when in fact MOSHA understood that
no such incident actually occurred .
c.
In or about September 2019 , while in Manhattan ,
New York , JULIA GREENBERG , the defendant , knowingly prepared and
coached CS -1 to lie under oath to a
users Asylum Officer ,
understanding that CS-1 would convey false information about ,
among other things,
(1) CS-l ' s reason for starting a blog that
was critical of the Ukrainian government ;
(2) CS-l ' s alleged
authorship and maintenance of said blog ; and (3) CS -l' s alleged
persecution endured in Ukraine , including an incident in which
CS - 1 was allegedly assaulted because of CS -l' s status as a
Russian-speaking Ukrainian .
d.
In or about September 2019 , while in Manhattan ,
New York , a government confidential source ("CS - 2 " ) , met with
KMIT , who . explained that CS-2 ' s Form I-589 asylum application
had already been prepared by Russian America , even though CS-2
had not yet established an online blog criticizing CS-2 ' s home
government , which KMIT understood was the exclusive basis for
CS - 2 ' s asylum claim .
e.
In or about September 2019 , while in Brooklyn ,
New York , CS - 3 met with ULADZIMIR DANSKOI , the defendant , who
knowingly helped CS-3 pursue asylum on the fabricated basis that
12
36a
Case 1:21-cr-00092-JPO
Document 12
Filed 02/18/21
Page 13 of 16
CS - 3 was persecuted in Ukraine for his sexual orientation ,
knowing that CS - 3 was actually a heterosexual male who suffered
no such persecution .
f.
In or about October 2019 , KATERYNA LYSYUCHENKO,
the defendant , helped CS - 3 seek asylum on the fraudulent basis
that CS - 3 was persecuted in Ukraine for his sexual orientation ,
while understanding that CS-3 was actually a heterosexual male
who endured no such persecution.
g.
In or about December 2020 , while in Brooklyn , New
York , JULIA GREENBERG , the defendant , understanding that CS-3
was a heterosexual male who did not suffer persecution in his
home country, prepared CS-3 to defraud a
users Asylum Officer
by , among other things, conducting a mock asylum interview,
advising CS - 3 how to falsely answer certain anticipated
questions , and instructing CS-3 to appear and dress for CS - 3's
asylum interview in a manner that comported with GREENBERG ' s
estimation of the appearance of , and clothing worn by , a gay
male.
(Title 18, United States Code , Section 371 . )
13
37a
Case 1:21-cr-00092-JPO
Document 12
Filed 02/18/21
Page 14 of 16
FORFEITURE ALLEGATION
21 .
As a result of committing the offense alleged in Count
One of this Indictment , YURY MOSHA , ULADZIMIR DANSKOI , JULIA
GREENBERG , ALEKSEI KMIT , TIMUR SHCHERBYNA , and KATERYNA
LYSYUCHENKO , the defendants , shall forfeit to the United States ,
pursuant to Title 18 , United States Code , Section
982 (a) (6) (A) (ii) (I) , all property , real and personal , that
constitutes or is derived from or is traceable to the proceeds
obtained d i rectly or indirectly from the commission of the
offense , including but not limited to a sum in United States
currency representing the amount of proceeds obtained as a
result of the offense .
Substitute Assets Provision
22 .
If any of the above - described forfeitable property , as
a result of any act or omission of the defendants :
a.
cannot be located upon the exercise of due
diligence;
b.
has been transferred or sold to ,
or deposited
wi th , a third person ;
c.
has been placed beyond the jurisdiction of the
Court ;
d.
has been substantially diminished in val u e ; or
e.
has been commingled with other property which
cannot be subdivided without difficulty ;
14
38a
Case 1:21-cr-00092-JPO
Document 12
Filed 02/18/21
Page 15 of 16
it is the intent of the United States , pursuant to Title 21 ,
United States Code , Section 853(p) and Title 28 , United States
Code , Section 2461(c) , to seek forfeiture of any other property
of the defendants up to the value of the above forfeitable
property .
(Title 18 , United States Code , Section 982 ;
Title 21 , United States Code , Section 853 ; and
Title 28 , United States Code , Section 2461.)
United
15
39a
Case 1:21-cr-00092-JPO
Document 12
Filed 02/18/21
Form No. USA- 33s-274
(Ed. 9-25-58)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
v.
YURY MOSHA,
ULADZIMIR DANSKOI,
JULIA GREENBERG,
ALEKSEI KMIT,
TIMUR SHCHERBYNA, and
KATERYNA LYSYUCHENKO
Defendants.
SEALED
SUPERSEDING INDICTMENT
Sl 21 Cr.
(18 U.S . C. §§ 371 and 1546.)
Audrey Strauss
United States Attorney
~ ~on
40a
Page 16 of 16
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 1 of 56
POCUMEN'f
EU: TRONICA1..LY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
3/9/22
United States of America,
–v–
21-CR-92 (AJN)
Julia Greenberg,
OPINION & ORDER
Defendant.
ALISON J. NATHAN, District Judge:
The Government filed a one-count superseding indictment against six Defendants,
including Julia Greenberg. Greenberg now moves to dismiss the indictment due to outrageous
government conduct, to dismiss the indictment as duplicitous, to sever Greenberg’s trial from the
other five Defendants, to dismiss the indictment for failure to allege a crime, to suppress her
statements allegedly obtained in violation of the Fifth Amendment, and to produce minutes of
the grand jury proceedings to her or for in camera inspection. For the reasons that follow, the
Court DENIES Greenberg’s motion.
I.
Background
Generally, in evaluating a motion to dismiss, the Court “accept[s] as true all of the
allegations of the indictment.” United States v. Goldberg, 756 F.2d 949, 950 (2d Cir. 1985).
The Court first recites the facts as drawn from the superseding indictment filed February 18,
2021. S1 Indictment, Dkt. No. 12. Greenberg’s motions to dismiss for outrageous government
conduct and to suppress her post-arrest statements, however, necessarily implicate facts beyond
the confines of the superseding indictment and, in resolving those issues, the Court is permitted
to consider facts extrinsic to the indictment. See United States v. Cuervelo, 949 F.2d 559, 567
(2d Cir. 1991); United States v. Regan, 103 F.3d 1072, 1082 (2d Cir. 1997).
1
41a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 2 of 56
A. Facts alleged in the superseding indictment
The superseding indictment alleges a conspiracy to commit immigration fraud by
preparing and submitting false asylum claims. Generally, to obtain asylum, applicants must
show that they have suffered persecution in their country of origin on account of race, religion,
nationality, political opinion, or membership in a particular social group, or have a well-founded
fear of persecution if they were to return to their country. S1 Indictment ¶ 10.1 An asylum
applicant must complete Form I-589 and present it to U.S. Citizenship and Immigration Services.
Id. ¶ 11.2 Because Form I-589 asks for a detailed account of the applicant’s asylum claim,
applicants often attach to it an asylum affidavit that provides more detail about their background
and the basis for their claim. Id. If another individual, like an attorney, prepares Form I-589 for
the applicant, then that preparer must provide her name and address. Id. Both the applicant and
the preparer must sign Form I-589 under penalty of perjury. Id.
After Form I-589 is submitted, the applicant is interviewed by an Asylum Officer to
determine if the applicant is eligible for asylum. Id. ¶ 12. The applicant may speak, under oath,
on her own behalf at the interview and may present witnesses or additional documentation to
substantiate her claim. Id. The Asylum Officer then determines the applicant’s eligibility. Id.
If the applicant is deemed eligible, she receives a completed Form I-94, which demonstrates that
she was granted asylum and permits the applicant to pursue other relief like permanent resident
status. Id. ¶ 13. If the applicant is deemed ineligible, her application is referred to an
Immigration Judge who holds a hearing to determine the applicant’s eligibility. Id. ¶ 14. If the
See generally 8 U.S.C. § 1158 (primary asylum statute); id. § 1101(a)(42) (defining “refugee”);
8 C.F.R. § 1208.1 et seq. (primary asylum regulations); United States v. Dumitru, 991 F.3d 427,
430 (2d Cir. 2021) (per curiam), cert. denied, 142 S. Ct. 831 (2022).
1
2
See Liang v. Garland, 10 F.4th 106, 109 n.2 (2d Cir. 2021).
2
42a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 3 of 56
Immigration Judge also denies the applicant, the applicant may appeal to the Board of
Immigration Appeals and, if still unsuccessful, to the U.S. Court of Appeals. Id. ¶ 14.
Russian America is a company that assists its clients, primarily noncitizens from Russia,
Ukraine, and nearby countries, in seeking asylum, visas, citizenship, and other forms of legal
status in the United States. S1 Indictment ¶ 1. Defendants Yury Mosha and Uladzimir Danskoi
operated Russian America, Mosha from an office in Manhattan and Danskoi from an office in
Brooklyn. Id. The indictment alleges that Mosha and Danskoi advised Russian America clients
to obtain asylum by false claims, knowing they did not qualify for asylum. Id. ¶ 2. According to
the indictment, in advising these false asylum claimants, Mosha and Danskoi conspired with
Defendants Julia Greenberg, Tymur Shcherbyna, and Kateryna Lysyuchenko, who knowingly
assisted with the clients’ fraudulent asylum claims and helped them prepare and submit asylum
applications and affidavits to USCIS. Id. Greenberg is a licensed immigration attorney. Id. ¶ 7.
In the alleged scheme, she prepared applicants that she knew would lie to USCIS officers to
obtain asylum and she accompanied these applicants to their USCIS interviews, during which
she and the applicant made statements that she knew were false. Id.
The superseding indictment identifies three cooperating witnesses that acted as clients of
Russian America. The first of these is CS-1, a Ukrainian national, who in April 2019 started a
blog critical of the Ukrainian government, “at Mosha’s instruction, to generate a basis to seek
asylum.” Id. ¶¶ 3–4, 20. Mosha submitted CS-1’s Form I-589, which claimed that CS-1
authored the blog posts when Mosha knew that the blog was in fact written by Defendant
Shcherbyna, who Mosha introduced to CS-1. Id. ¶ 20. CS-1’s Form I-589 also recounted an
incident when CS-1 was assaulted in Ukraine because he spoke Russian, though Mosha
understood that this incident did not occur. Id. Greenberg in September 2019 “knowingly
3
43a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 4 of 56
prepared and coached CS-1 to lie under oath to a USCIS Asylum Officer, understanding that CS1 would convey false information about” why he started the blog, who wrote the blog, and the
persecution he faced in Ukraine. Id.
The second cooperating witness, CS-2, met with Defendant Aleksei Kmit, who told CS-2
that Russian America had already prepared his Form I-589 on the basis of a blog that CS-2 had
not yet written. Id. The superseding indictment does not allege that Greenberg ever interacted
with CS-2 or that Russian America ever submitted CS-2’s Form I-589 to USCIS.
The third cooperating witness, CS-3, met with Danskoi in Brooklyn. Id. Danskoi
assisted CS-3 in preparing a Form I-589 on the basis of CS-3’s sexual orientation while knowing
that CS-3 was a heterosexual male who did not face persecution. Id.3 CS-3 was further assisted
in preparing his application by Defendant Lysyuchenko. Id. Danskoi referred CS-3 to
Greenberg, knowing she would prepare CS-3 to lie in his interview. Id. ¶ 9. In December 2020,
Greenberg met with CS-3 and helped prepare him for his interview with a USCIS Asylum
Officer, knowing that CS-3 would falsely claim persecution based on his sexual orientation. Id.
¶ 20. Greenberg further instructed CS-3 to appear and dress in a manner that comported with the
expected appearance of a gay man. Id.
B. Relevant facts extrinsic to the superseding indictment
The Court draws the following facts, which reflect only a portion of the Government’s
investigation, from representations in the parties’ briefing and the exhibits attached to
Greenberg’s motion. Where the parties differ, the Court accepts as true the allegations proffered
by Greenberg. An evidentiary hearing is therefore unnecessary. See United States v. LaPorta,
“Persecution on account of sexual orientation has been recognized by the Attorney General as a
protected ground under the ‘particular social group’ category of the definition of a refugee.”
Morett v. Gonzales, 190 F. App’x 47, 48 (2d Cir. 2006) (citing Matter of Toboso-Alfonso, 20 I. &
N. Dec. 819, 822 (BIA 1990)).
3
4
44a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 5 of 56
46 F.3d 152, 160 (2d Cir. 1994); United States v. Davis, 57 F. Supp. 3d 363, 364 n.1 (S.D.N.Y.
2014) (“Because the Court accepts as true all of the facts proffered by the Defendants, and
nonetheless finds that the Government’s alleged conduct does not render the indictment
constitutionally defective, a hearing need not be held.”).4
1. CS-1, CS-2, and Mosha
The Federal Bureau of Investigation on February 18, 2018, received an anonymous tip
that Russian America, and Mosha specifically, was committing immigration fraud. Greenberg
Br., Ex. A, Dkt. No. 115. The FBI engaged CS-1 to meet with Mosha and tell him that CS-1
wanted asylum to stay in the United States and not return to Ukraine. Greenberg Br. at 4.5 On
August 14, 2018, CS-1 met with Mosha, who stated that he and Russian America “do not take
any fictious cases.” Id., Ex. C at 3. He then “suggest[ed] that [CS-1] start his own blog about
the situation in the Ukraine,” that Mosha would help promote it, and that CS-1 “pay six thousand
[dollars] for the whole case including a lawyer.” Id. at 3, 5. As Mosha explained, by “writing a
blog,” CS-1 “will be proving that [he] will be persecuted in the future because they kill bloggers
and journalists there for real.” Id. at 3. He continued: “But it has to be done, you have to work
on it, not just for the asylum sake, see? Because your officer will understand if you are not that
knowledgeable about the subject, politics, etc.” Id. at 4.
CS-1 met Mosha again on August 23, 2018, and expressed his lack of direction and
unfamiliarity in writing a blog on websites like Live Journal. Id., Ex. D at 5–9. Mosha told CS1 that he will “have to prove” to the Asylum Officer that he “came to the blog [himself], and it
[was his] decision and [he was] not doing it just for a green card,” to which CS-1 affirmed, “I
4
Greenberg does not request an evidentiary hearing on any issue raised in her motion.
5
Greenberg emphasizes that CS-1 was previously convicted of drug trafficking, conspiracy to
commit bank fraud, and aggravated identity theft. Greenberg Br. at 4–5; see also Ex. B at 7.
5
45a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 6 of 56
can’t say that . . . [Mosha] said to make a blog” and that “it is my decision, of course.” Id. at 12–
13. During this conversation, CS-1 also asked about whether he could choose the lawyer with
whom he would work. Mosha said that “they are all good,” and that the “function of a lawyer is
to check the story, to add some kind of information, and that’s their whole function for a case.
That is, she doesn’t go to the interview with you.” Id. at 11. CS-1 reiterated that this application
was important to him, and Mosha stated he “will give it to [him].” Id. But, Mosha said, CS-1
did not need to be in touch with a lawyer “right now.” Id. at 15.
On September 11, 2018, CS-1 and Mosha again met and CS-1 expressed difficulty in
writing the blog. Id., Ex. F at 4. Mosha responded that he could “give [CS-1] a guy” that works
in Ukraine that CS-1 would pay “like $50 or $100 a month.” Id. Mosha explained that the guy,
later identified as Defendant Shcherbyna, would “be doing this with [CS-1],” would “discuss this
with [CS-1],” and for “additional money . . . can help [CS-1] with technical aspects.” Id. CS-1
again agreed that the blog had to be his own. Id. at 5. Then, following from their prior
conversation about an attorney, CS-1 told Mosha that he had “read” and “like[d] this Julia
[Greenberg].” Id. at 8. Mosha said that she was busy with, “like[,] everyone else.” Id. In his
later report to the FBI, CS-1 said that Mosha said Greenberg was near the Mexican border with
another client at the time. Id., Ex. E at 2.6 Mosha then referred to another, unnamed attorney,
who also had a “heavy load” of “many clients,” but that “[i]f she will have free time, then we’ll
call her next week. She’ll understand.” Id., Ex. F at 8.
On October 11, 2018, CS-1 spoke with Mosha, first asking about how he could pay
Mosha. Id., Ex. G at 2–3. CS-1 then told Mosha that he was paying Shcherbyna “$40 per week”
and that Shcherbyna “is doing one post per day,” which CS-1 “really like[d].” Id. at 3. CS-1
6
As Greenberg notes, this information is not contained in the transcript of Mosha and CS-1’s
conversation. Greenberg Br. at 6.
6
46a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 7 of 56
continued: “I was just saying that I thought that it would just be some writing and that’s it. But
he is really like NBC News, in short. In other words, there are photos on there, documents,
thoughts, analysis.” Id. Mosha responded that this was “especially good” and to “[l]et it be like
this.” Id. at 3–4. CS-1 then asked about an attorney, to which Mosha said they would “do a
meeting with an attorney . . . when the attorney confirms the story.” Id. at 4.
On November 19, 2018, CS-1 spoke with Lysyuchenko, who was recommended to CS-1
by Mosha to assist with CS-1’s asylum affidavit. According to the Government, Mosha had told
Lysyuchenko that CS-1 had never been persecuted in Ukraine and that someone else was writing
his blog. Gov’t Br. at 7, Dkt. No. 126. CS-1 expressed that he had “no time at all to write [his]
history” and that he “really [has] nothing to write about.” Id., Ex. H at 1 (“I told you that the last
time.”). Lysyuchenko responded: “I am not allowed to write the history. I can correct it for you.
. . . . I just don’t know anything about you. I can’t write it like that.” Id. After CS-1 again said
that he had told Mosha he had “no history of being pursued,” Lysyuchenko stated that she “can’t
write the story. That’s totally forbidden by law.” Id. 2. When CS-1 offered to “pay [her] extra
money,” Lysyuchenko again said it was “forbidden by law” for her to write the affidavit. Id.
Finally, Lysyuchenko agreed to write a “plan” for a statement and agreed to accept “additional
payment” for doing so. Id. at 3.
After receiving the plan, CS-1 asked Lysyuchenko if he could simply insert his name into
it. Greenberg Br. at 7. Lysyuchenko said this would be illegal. Id. In a February 22, 2019
phone call, Lysyuchenko said that CS-1’s affidavit would be sent to “the lawyer to check,” but
that the draft of his affidavit did not “really strongly show” a real fear of persecution needed for
asylum. Id., Ex. I at 1–2. CS-1 asked if the lawyer would “fill in this picture in such a way that .
. . we are discussing now,” to which Lysyuchenko said “No, she doesn’t . . . fill in” but instead
7
47a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 8 of 56
writes “comments.” Id. at 2. Lysyuchenko asked if the lawyer knew the affidavit was “a
product of [his] imagination,” to which Lysyuchenko said that was “for [CS-1] to discuss with
Aleksey. I don’t know what it says in the terms of your contract.” Id.; see also id. at 3 (CS-1
referring to him and Lysyuchenko “invent[ing] everything possible”).
The Government on February 15, 2019, asked the FBI to send another cooperating
witness, CS-2, to Mosha. Id., Ex. J at 9. CS-1 on June 17, 2019, introduced CS-2 to Mosha, and
asked that Mosha introduce CS-2 to Shcherbyna. Greenberg Br. at 8. Mosha told CS-2 that his
case for asylum must be real. Id. Without CS-1, CS-2 met with Mosha on December 1, 2019,
and asked how he could fabricate an asylum case and whether he could use someone else’s
address in his application. Greenberg Br. at 8. Mosha told CS-2 that these actions were illegal
and that he should tell only the truth. Id. On December 11, 2019, Russian America terminated
its agreement with CS-2 and refunded his payment. Id. at 9.
On July 30, 2019, CS-1 and Mosha discussed the answers that CS-1 should give in his
upcoming interview. E.g., id., Ex. K at 2–5. CS-1 told Mosha he had “stopped reading” the
posts in his blog “because there are many of them,” to which Mosha responded that he should
read “5–6 topics.” Id. at 5. Mosha then told CS-1 that he “[doesn’t] need a lawyer at the
interview” and that “[a] lawyer doesn’t do anything.” Id. at 5–6. Mosha then relented to CS-1’s
request for a lawyer, telling CS-1 that while Greenberg “is on vacation,” he would “ask around if
anybody is able to go.” Id. at 6; see also Greenberg Br. at 8 & n.5. CS-1 told the FBI that
Mosha stated that Greenberg was his “usual attorney” for asylum interviews but that she was on
vacation. Id., Ex. L at 2.7
7
Greenberg correctly notes that this statement is not in the transcript of the conversation
supplied by the Government. Greenberg Br. at 8.
8
48a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 9 of 56
After CS-1 rescheduled his interview, with the Government’s assistance, Greenberg
returned from vacation and Mosha asked her to appear at CS-1’s interview. Greenberg Br. at 8.
Greenberg agreed to represent CS-1 at the interview for $1,500. Id., Ex. M at 3.
Greenberg met with CS-1 along with an interpreter on September 5, 2019, immediately
before his asylum interview. Greenberg told CS-1 that she had read CS-1’s affidavit but had not
spoken with Mosha about it. Id., Ex. N at 2. She also clarified that her role was to “only speak
at the end,” not to tell “the officer not to ask a certain question” or to stop CS-1 from saying
“anything stupid.” Id. Over the course of their conversation, CS-1 told Greenberg that he did
not write the blog but that another “person wrote the blog for [him],” a person that Mosha
“referred.” Id. at 3; see also id. at 6 (“I did not write it at all. Another person is writing it. . . .
But in reality, I don’t even read it, let alone write it.”). He also explained that he had changed
the details of an assault that he allegedly suffered in Ukraine after Mosha had told him that prior
versions of the story were “not suitable.” Id. at 2–6 (“I rewrote this backstory five times.”).
Greenberg asked CS-1 for additional details, including what injuries he had sustained and why
he had not gone to a hospital. Id. at 5–6. Later in the discussion, in which Greenberg asked CS1 questions that the Asylum Officer was likely to ask, CS-1 described the alleged assault in
significant detail and also went into greater depth his reasons for starting the blog, including that
he was “really angry over the level of theft and corruption . . . in Ukraine.” Id. at 19–22 (“Not
because Yuriy Mosha said so.”).
CS-1’s asylum interview was recorded. At the end, the Asylum Officer noted that he had
“credibility concerns” and asked if Greenberg would “address that a little bit.” Id. at 23. In
response, Greenberg referred back to CS-1’s story of the assault at a bar that he alleged occurred
9
49a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 10 of 56
because he spoke Russian. Id. at 24–27. After they exited the interview, CS-1 paid Greenberg
$1,000. Id. at 28.
USCIS denied CS-1’s asylum application and placed CS-1 into removal proceedings—
though he was not in fact eligible for removal—to be overseen by an Immigration Judge in New
York. Greenberg Br. at 12; Gov’t Br. at 10. Greenberg agreed to represent CS-1 in these
proceedings for an additional $6,000 retainer. Gov’t Br. at 10–11. A short scheduling hearing
was held before the Immigration Judge, without the Judge’s knowledge of the FBI’s
investigation or that CS-1 was not a genuine asylum applicant, at which Greenberg represented
CS-1. Id. at 11; Greenberg Br. at 12–13. An official from the Office of the Principal Legal
Advisor represented to the Immigration Judge that CS-1 was a removable immigrant. Greenberg
Br. at 13. A formal immigration hearing was scheduled for November 6, 2023. Gov’t Br. at 11.
2. CS-3 and Danskoi
CS-3 first met with Danskoi in Russian America’s Brooklyn office in August 2019.
Greenberg Br. at 13.8 In that initial conversation, Danskoi suggested different bases on which
CS-3 could seek asylum, including for his political opinions. Id. In a later conversation, CS-3
paid Danskoi $1,500 to prepare and file his asylum application, id., and Danskoi referred CS-3 to
Lysyuchenko, id., Ex. O at 2. Danskoi told CS-3 that CS-3 “should not tell [Lysyuchenko]
directly that, ‘You know, make everything up for me,’” to which CS-3 responded, “No, I won’t.”
Id. at 7.
The FBI directed CS-3 to seek asylum as a gay man. Id., Ex. J. at 9. Danskoi told CS-3
that asylum based on sexual orientation was “the most important one” of the bases they had
8
CS-3 had previously pled guilty to unlawful possession of a firearm and the FBI agreed to
facilitate CS-3’s efforts to obtain a green card in exchange for his assistance. Greenberg Br. at
13.
10
50a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 11 of 56
discussed because Asylum Officers “don’t even ask for proof, for the analysis of the evidence,”
as they do for a claim based on political opinion. Id., Ex. P at 1. CS-3 “sarcastically” told
Danskoi that he “is clearly not gay.” Id. at 3. Danskoi told CS-3 to ask Lysyuchenko for
examples of asylum affidavits on the basis of sexual orientation, and Danskoi then told CS-3 that
he should “[m]aybe wear an earring to the interview.” Id. at 4.
CS-3 on December 27, 2019, told Danskoi that he wanted to hire a lawyer for an
additional fee. Greenberg Br. at 14. Danskoi told him that it was not necessary because an
attorney could only observe the interview, but that he would find CS-3 a lawyer if CS-3 really
wanted one. Id. On January 29, 2020, Danskoi again told CS-3 that he “shouldn’t worry about
an attorney at this point.” Id. at 15.
On March 18, 2020, the Government requested that CS-3 be scheduled for an asylum
interview to see if he would be assigned an attorney. Id., Ex. Q at 3. Once the interview was
scheduled, Danskoi gave Greenberg’s phone number to CS-3 and CS-3 called Greenberg to
schedule a consultation. Greenberg Br. at 15. During the November 20, 2020 consultation,
when Greenberg asked if CS-3 applied for asylum on the basis of sexual orientation, CS-3 said
“it’s that way according to the story,” laughed, and then said, “I wouldn’t want that, but he says
it’s better this way,” to which Greenberg said, “Yes.” Id., Ex. R at 3. CS-3 asked Greenberg if
he should “wear different clothes,” and Greenberg said, “Absolutely.” Id. at 4. Greenberg later
told CS-3 that she “wouldn’t advise going back” to Ukraine,” to which CS-3 said “I won’t go
there. I’d better not go there at all.” Id. at 5. CS-3 then asked Greenberg if he will “pass.” Id. at
7. Greenberg said that, “[t]o tell you the truth, um, you don’t . . . you don’t look like [UI] gay.”
Id. at 7–8. CS-3 responded, “Yes, I understand.” Id. at 8. During this consultation, CS-3 did not
directly state that he was not gay.
11
51a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 12 of 56
Greenberg and CS-3 met again on December 9, 2020, in advance of CS-3’s interview
scheduled for December 22, 2020. Id., Ex. S. Greenberg asked CS-3 a series of questions based
on his asylum affidavit. When Greenberg asked about an injury that CS-3 sustained while
wrestling in college, CS-3 said that “I didn’t do wrestling. . . . [S]he wrote it like that. I thought,
‘Well, [UI]’ Katya came up with that.” Id. at 3. Near the end of their discussion, Geenberg told
CS-3 that she “wanted to tell [him] that both me and the officer . . . we roughly understand when
a person is lying to us. . . . [T]herefore, there are no gays who are embarrassed by their, um—
being gay . . . . There are no gays who can’t describe their feelings when they found out about it
for the first time, how they were scared by it . . . .” Id. at 18 (italics in original). CS-3 said that
“[e]verything will be fine.” Id. He continued that he would “buy clothing before the interview,”
to which Greenberg responded that he “absolutely must have a scarf” and “must have shoes of
some unusual . . . color.” Id. at 19; see also id. at 20 (“We’ll pluck the eyebrows and do a
manicure.”).
3. Greenberg’s post-arrest statement
Greenberg was arrested by armed federal officers early on February 18, 2021, in
Colorado, where she and her family, including two of her three children, were on vacation.
Greenberg Br. at 17. The officers arrested Greenberg, placed her in handcuffs, and drove her for
approximately 2.5 hours to the U.S. courthouse in Denver. Id. at 18. The conversation in the car
was recorded. Before a Miranda warning was given, Agent Danielle Deboer briefly encouraged
Greenberg to cooperate and to “think of [her] future with [her] kids, with [her] husband.”
Recording at 2:04–3:20. Deboer then administered the Miranda warning and Greenberg waived
her rights both orally and in writing. Greenberg Br. at 18, Gov’t Br. at 50. Greenberg proceeded
12
52a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 13 of 56
to make a series of potentially inculpatory statements over the remainder of the recording, which
spans 2 hours and 9 minutes.
C. Procedural history
A grand jury returned an indictment, dated February 11, 2021, charging Defendants with
one count of conspiracy to commit immigration fraud in violation of 18 U.S.C. § 1546(a) and 18
U.S.C. § 371. Dkt. No. 3. The superseding indictment was filed February 18, 2021. Dkt. No.
12. Greenberg filed this motion on October 15, 2021. Dkt. No. 114. The Government filed its
response on November 12, 2021, Dkt. No. 126, and Greenberg filed a reply on November 26,
2021, Greenberg Reply, Dkt. No. 127. Greenberg filed a notice of supplemental authority on
February 11, 2022. Dkt. No. 136. A jury trial is tentatively scheduled for June 13, 2022. See
Dkt. No. 131.
The Court on February 4, 2022, ordered the Government to produce to the Court a flash
drive containing the audio recording of Greenberg’s post-arrest statement made to law
enforcement. Dkt. No. 135. The Court received the recording on February 7, 2022.
II.
Legal standard
Because “federal crimes are solely creatures of statute, a federal indictment can be
challenged on the ground that it fails to allege a crime within the terms of the applicable statute.”
United States v. Aleynikov, 676 F.3d 71, 75–76 (2d Cir. 2012) (cleaned up). However, “[a]
defendant faces a high standard in seeking to dismiss an indictment, because an indictment need
provide the defendant only a plain, concise, and definite written statement of the essential facts
constituting the offense charged.” United States v. Post, 950 F. Supp. 2d 519, 527 (S.D.N.Y.
2013) (cleaned up) (quoting Fed. R. Crim. P. 7(c)(1)); see also United States v. Smith, 985 F.
Supp. 2d 547, 561 (S.D.N.Y. 2014); United States v. Stringer, 730 F.3d 120, 124 (2d Cir. 2013)
13
53a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 14 of 56
(explaining that “an indictment need do little more than to track the language of the statute
charged and state the time and place (in approximate terms) of the alleged crime” (cleaned up)).
Generally, “[a] court should not look beyond the face of the indictment and draw
inferences as to proof to be adduced at trial, for ‘the sufficiency of the evidence is not
appropriately addressed on a pretrial motion to dismiss an indictment.’” United States v. Scully,
108 F. Supp. 3d 59, 116–17 (E.D.N.Y. 2015) (quoting United States v. Alfonso, 143 F.3d 772,
776–77 (2d Cir. 1998)). That is, “although a judge may dismiss a civil complaint pretrial for
insufficient evidence, a judge generally cannot do the same for a federal criminal indictment.”
United States v. Sampson, 898 F.3d 270, 280 (2d Cir. 2018). To be clear, this rule does not apply
to every claim that a defendant can raise in a pretrial motion. “Judges can, of course, make
factual determinations in matters that do not implicate the general issue of a defendant’s guilt,
such as motions to suppress evidence, selective prosecution objections, and objections
concerning discovery. But when a defense raises a factual dispute that is inextricably
intertwined with a defendant’s potential culpability, a judge cannot resolve that dispute on a Rule
12(b) motion.” Id. at 281 (citing Fed. R. Crim P. 12(b), 12(b)(3)(A), 12(b)(3)(C), 12(b)(3)(E),
and 12(d)). “The Government is entitled to marshal and present its evidence at trial, and the
defendant is entitled to challenge the sufficiency of that evidence pursuant to Rule 29 of the
Federal Rules of Criminal Procedure.” United States v. Kelly, 462 F. Supp. 3d 191, 197
(E.D.N.Y. 2020) (citing United States v. Gambino, 809 F. Supp. 1061, 1079 (S.D.N.Y. 1992)).9
The Second Circuit has acknowledged an “extraordinarily narrow” exception to this general
rule that permits the Court to consider the sufficiency of the evidence in a pretrial motion when
“‘the government has made what can fairly be described as a full proffer of the evidence it
intends to present at trial.’” Sampson, 898 F.3d at 282 (quoting Alfonso, 143 F.3d at 776). But
the Court does not follow that exception here. First, Greenberg has not invoked it. Second, the
Government cannot fairly be said to have made such a full proffer, as it neither submitted a
sworn affidavit nor made a “detailed presentation of the entirety of the evidence” to the Court as
would be required. Id. at 282–83 (citing Alfonso, 143 F.3d at 777, and United States v. Mennuti,
639 F.2d 107, 108 & n.1 (2d Cir. 1981)). And third, the Second Circuit has expressed serious
9
14
54a
Case 1:21-cr-00092-JPO
III.
Document 139
Filed 03/09/22
Page 15 of 56
Discussion
Greenberg raises three distinct arguments for dismissal of the indictment against her.
First, that the indictment must be dismissed under the outrageous-government-conduct doctrine.
Second, that the single count is duplicitous because it inappropriately combines two distinct
conspiracies. And third, that the indictment, for several reasons, fails to allege a crime.
In the absence of total dismissal, or in addition to partial dismissal, Greenberg seeks three
additional forms of relief. First, she asks that she be severed from the five other Defendants
charged in the superseding indictment because their charges are legally and factually distinct.
Second, she seeks to suppress post-arrest statements that she made to law enforcement. Last, she
requests the production of the minutes of the grand jury proceedings for her own review or for in
camera review by the Court.
A. Motion to dismiss for outrageous government conduct
1. Applicable law
The Supreme Court and Second Circuit have long observed that “Government
involvement in a crime may in theory become so excessive that it violates due process and
requires the dismissal of charges against a defendant even if the defendant was not entrapped.”
United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011) (citing United States v. Rahman,
189 F.3d 88, 131 (2d Cir. 1999); United States v. Russell, 411 U.S. 423, 431–32 (1973)).10 “To
doubts about the exception’s constitutionality and its continued vitality in light of intervening
decisions of the Supreme Court. See id. at 281, 282 n.10 (citing Kaley v. United States, 571 U.S.
320 (2014)).
10
This doctrine differs from that of entrapment in at least two important respects. First,
entrapment “focuses on the defendant’s predisposition” while the outrageous-governmentconduct doctrine “focuses on the conduct of the government agents.” Al Kassar, 660 F.3d at
121. Second, unlike an entrapment defense presented at trial, “[a] motion to dismiss an
indictment on account of outrageous government conduct is directed to the court rather than
15
55a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 16 of 56
establish a due process violation on this ground, a defendant must show that the government’s
conduct is ‘so outrageous that common notions of fairness and decency would be offended were
judicial processes invoked to obtain a conviction.’” Id. (quoting United States v. Schmidt, 105
F.3d 82, 91 (2d Cir. 1997)). Generally, for conduct to be “outrageous,” “the government’s
involvement in a crime must involve either coercion or a violation of the defendant’s person.”
Id. It is not enough that “the government created the opportunity for the offense, even if the
government’s ploy is elaborate and the engagement with the defendant is extensive”; nor is it
enough that the government employed “feigned friendship, cash inducement, and coaching in
how to commit the crime.” Id. (citing Schmidt, 105 F.3d at 91; and United States v. Myers, 692
F.2d 823, 837–39 (2d Cir. 1982)).
The defendant carries the burden of proof. United States v. Nunez–Rios, 622 F.2d 1093,
1098 (2d Cir. 1980). That burden is “very heavy” because of courts’ “well-established deference
to the Government’s choice of investigatory methods.” Al Kassar, 660 F.3d at 121 (quoting
Rahman, 189 F.3d at 131). Consequently, the Second Circuit has rarely, if ever, held that a
government investigation met this high bar. United States v. Heyward, No. 10-CR-84 (LTS),
2010 WL 4484642, at *3 (S.D.N.Y. Nov. 9, 2010) (“[T]he Second Circuit has yet to identify a
particular set of circumstances in which government investigative conduct was so egregious that
it shocked the conscience and violated fundamental guarantees of due process.”); United States
v. Gomez, 83 F. Supp. 3d 489, 492 (S.D.N.Y. 2014) (explaining that the Second Circuit “has
never found a violation of due process based on the government’s outrageous conduct” (citing
Schmidt, 105 F.3d at 91)); United States v. Cromitie, 781 F. Supp. 2d 211, 222–23 (S.D.N.Y.
jury.” Regan, 103 F.3d at 1082. Thus, a defendant may prove a defense of entrapment without
proving outrageous government conduct and vice versa. Cuervelo, 949 F.2d at 565.
16
56a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 17 of 56
2011), aff’d, 727 F.3d 194 (2d Cir. 2013) (identifying United States v. Twigg, 588 F.2d 373 (3d
Cir. 1978), as the only circuit case in which an outrageous-government-conduct claim
prevailed).11
2. Analysis
Greenberg identifies four aspects of the Government’s conduct here that, she says,
constituted outrageous conduct warranting dismissal of the indictment. First, she claims that the
Government “manufactured” the alleged fraud, pointing to a number of statements in which the
Defendants, for example, insisted that they take only genuine asylum claims, refused to fabricate
stories for the cooperating witnesses, and, in the case of CS-2, terminated their representation
once CS-2’s intent to file a false asylum claim became clear. Greenberg Br. at 23–25. Second,
Greenberg argues that the FBI improperly used other government entities, notably including the
Immigration Court without its knowledge, to further its investigation. Id. a 26–27. Third, she
states that the Government’s investigation preyed on her duty of loyalty to her clients, making
her an unknowing participant to fraud. Id. at 27–29. And fourth, Greenberg argues that the
Government violated due process by obtaining her statements in CS-1’s and CS-3’s civil asylum
proceedings. Id. at 29–30.
The Court addresses first Greenberg’s argument that the fraud was manufactured because
the Defendants expressly refused to engage in fraud. As an initial matter, this argument rests on
Greenberg’s own interpretation of the incomplete record presented, an interpretation that differs
markedly from the Government’s reading of these transcripts. It is not the Court’s role to now
decide whether there is sufficient evidence of the Defendants’ intent to conspire to commit
11
Greenberg disputes whether the Second Circuit has ever found a violation of the outrageousgovernment-conduct doctrine, citing dicta in United States v. Archer, 486 F.2d 670, 676–77 (2d
Cir. 1973). Greenberg Reply at 24. Regardless, it is indisputable that any such case is “rare.”
Schmidt, 105 F.3d at 91.
17
57a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 18 of 56
immigration fraud. See Sampson, 898 F.3d at 280. But the Court concludes that, at this time,
Greenberg has not demonstrated that the crimes alleged were merely the product of the
Government’s “own imagination” and “deceit and trickery.” Greenberg Br. at 23–24 (citing
United States v. Gardner, 658 F. Supp. 1573, 1577 (W.D. Pa. 1987) (finding outrageous conduct
where the government agent “persisted over a period of time in inducing and p[e]rsuading the
Defendant to commit the crime in question with [the] sole motive and intention of overcoming
the obvious reluctance of the Defendant”)). Greenberg notes, for example, that in Mosha’s first
meeting with CS-1, Mosha repeatedly stated that he and Russian America “do not take any
fictious cases.” Greenberg Br., Ex. C at 3. Yet an individual does not have to orally admit to
having a fraudulent intent to be guilty of fraud. In that same conversation, Mosha suggested that
CS-1 write a blog so that he could develop a basis for asylum. Id. at 3–4. When CS-1 later
expressed difficulties writing the blog, Mosha referred CS-1 to Shcherbyna. To be sure, Mosha
said that CS-1’s monthly payments to Shcherbyna were only so that Shcherbyna would “discuss”
writing a blog with CS-1. Id., Ex. F at 5. But just one month later, when CS-1 told Mosha that
Shcherbyna was writing “one post per day,” Mosha responded that it was “especially good” and
that CS-1 should “[l]et it be like this.” Id., Ex. G at 3–4.
As to CS-3, Danskoi said that it would be illegal for Danskoi to arrange a sham marriage
for CS-3. Greenberg Br. at 25. And, as Greenberg quotes, Danskoi told CS-3 not to tell
Lysychenko, “make everything up for me.” Id. (quoting Ex. O at 7). But Danskoi’s comments
immediately following that statement can reasonably be understood as a suggestion that CS-3
nevertheless should be less than truthful in his asylum affidavit: “Well, I am not urging you to
make something up, or lie, but you, if you have some relation to it, you should try to describe it .
. . how you feel about it.” Ex. O at 7. Moreover, in later conversations, Danskoi noted that one
18
58a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 19 of 56
feature of seeking asylum on the basis of sexual orientation is that the Asylum Officer allegedly
won’t “even ask for proof.” Id., Ex. P. at 1. Upon consideration of both the specific instances
identified by Greenberg, and consideration of the available record as a whole, the Court does not
find that the cooperating witnesses’ requests to Mosha and Danskoi manufactured the
Defendants’ alleged fraud or constituted outrageous behavior by the Government. Accord
Myers, 692 F.2d at 843 (“Due process challenges to an undercover agent’s encouragement have
been rejected when one defendant was solicited twenty times before committing an offense . . .
.”); Cromitie, 781 F. Supp. 2d at 222–23 (government agent “spent a half a year or more trying to
persuade [the defendant] to go forward with a jihadist mission, but there was no coercion of any
sort, no suggestion of duress and no physical deprivation”); Gomez, 83 F. Supp. 3d at 493
(“[T]he Second Circuit has repeatedly stated that government encouragement, even if extensive,
does not amount to outrageous conduct unless it rises to the level of coercion or physical force . .
. .”).12
Next, as to Greenberg’s argument that the FBI improperly used USCIS and the
Immigration Court in its investigation, the Court finds that this claim, too, does not justify
dismissal of the indictment. The Second Circuit has previously upheld even more elaborate sting
operations. For example, in Schmidt, government agents “posed as hit men, accepted a
prisoner’s solicitation to murder two government agents during an escape, and then conducted a
12
Greenberg notes at several points that CS-1 and CS-3 were compensated by the Government
for cooperating in the investigation, including that the Government would assist CS-3 in
obtaining lawful status in the United States. E.g., Greenberg Br. at 24. But while compensation
to undercover informants may be a valid basis for impeachment at trial, even substantial
compensation is not a basis for dismissal of charges. See, e.g., United States v. Myers, 527 F.
Supp. 1206, 1240 (E.D.N.Y. 1981), aff’d, 692 F.2d 823 (2d Cir. 1982) (informant was paid
approximately $250,000 for undercover operation).
19
59a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 20 of 56
fabricated prison breakout.” United States v. Davis, 57 F. Supp. 3d 363, 366–68 (S.D.N.Y.
2014) (citing Schmidt, 105 F.3d at 91–92). That the FBI here arranged two asylum interviews
for fictitious applicants is not more outrageous than the conduct in Schmidt. Nor was it a
violation of due process for CS-1’s case to go before an Immigration Judge in what Greenberg
describes as a short “calendar hearing.” Greenberg Br. at 12. Simply put, this aspect of the
FBI’s investigation was not “‘so repugnant and excessive’ as to shock the conscience.” United
States v. Duggan, 743 F.2d 59, 84 (2d Cir. 1984) (quoting United States v. Romano, 706 F.2d
370, 372 (2d Cir. 1983)).
Third, that Greenberg was retained as CS-1’s and CS-3’s attorney, meaning that
Greenberg owed them a duty of loyalty, does not render the Government’s investigation
outrageous. Greenberg’s briefing is not entirely clear on this point. The Court understands
Greenberg’s argument to be that once Greenberg allegedly learned that CS-1’s and CS-3’s
claims for asylum were fraudulent, she owed a “legal obligation of zealous advocacy and
unconflicted loyalty to” them as clients, which included a duty “to protect CS3 and his privileged
information.” Greenberg Br. at 28. To the extent Greenberg argues she had an obligation to
represent CS-1 and CS-3 even after she learned their claims were fraudulent, the Court rejects
that argument. “For example, Rule 1.2(d) [of the Model Rules of Professional Conduct]
prohibits attorneys from advising clients to commit fraudulent or criminal acts.” Hersh v. U.S.
ex rel. Mukasey, 553 F.3d 743, 756 (5th Cir. 2008); see also Model Rules of Pro. Conduct r.
3.3(b) (“A lawyer who represents a client in an adjudicative proceeding and who knows that a
person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to
the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the
tribunal.”). Similarly, the otherwise-inviolable attorney-client privilege gives way where the
20
60a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 21 of 56
communications made between an attorney and her client were “made for the purpose of getting
advice for the commission of a fraud or crime.” United States v. Zolin, 491 U.S. 554, 563 (1989)
(cleaned up); Clark v. United States, 289 U.S. 1, 15 (1933) (“There is a privilege protecting
communications between attorney and client. The privilege takes flight if the relation is abused.
A client who consults an attorney for advice that will serve him in the commission of a fraud will
have no help from the law.”). Thus, notwithstanding attorneys’ obligations to clients, it is
unremarkable that the Second Circuit has repeatedly upheld attorneys’ convictions for
immigration fraud, even though those attorneys had owed a duty of loyalty to their immigration
clients. See, e.g., Dumitru, 991 F.3d at 429; United States v. Archer, 671 F.3d 149 (2d Cir.
2011).13 Nor is the Court persuaded that CS-1’s and CS-3’s payments to Greenberg to
participate in fraud constituted outrageous conduct. Courts have held, for example, that cash
payments as large as $250,000 are not coercive when offered to commit a crime. See United
States v. Cromitie, 727 F.3d 194, 220–21 (2d Cir. 2013).
Fourth, the Court will not dismiss the indictment on the grounds that the Government
obtained statements from Greenberg in the course of civil asylum proceedings that the
Government instituted for the purpose of investigating the Defendants. Greenberg does not cite
any case in which the use of civil proceedings in an investigation was outrageous conduct that
justified dismissal. Rather, she cites three cases in which defendants sought to suppress
deposition testimony given in civil enforcement proceedings that paralleled a criminal
13
Greenberg’s position is not aided by her citation to Arthur Andersen LLP v. United States, 544
U.S. 696, 704 (2005), for the proposition that attorneys are permitted to advise clients to
withhold information from the government. That case does not suggest that attorneys cannot be
held criminally liable for their actions in the course of advising clients. Rather, Arthur Andersen
more narrowly held that the criminal statute at issue—which punished “corrupt[t] persua[sion]”
under 18 U.S.C. § 1512(b)—requires that an offending attorney know the advice was criminal.
Id. at 704–06.
21
61a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 22 of 56
investigation, only one of which granted the defendant’s motion. Greenberg Br. at 29 (citing
United States v. Kordel, 397 U.S. 1, 11–12 (1970) (suggesting in dicta that suppression may be
warranted “where the Government has brought a civil action solely to obtain evidence for its
criminal prosecution”); United States v. Scrushy, 366 F. Supp. 2d 1134, 1140 (N.D. Ala. 2005)
(in a criminal prosecution, suppressing a civil deposition because “the S.E.C. civil investigation
became inescapably intertwined with the criminal investigation”); United States v. Teyibo, 877 F.
Supp. 846, 856–57 (S.D.N.Y. 1995) (declining to suppress a civil deposition taken by the SEC
under subpoena because the government did not pursue the “civil action solely to obtain
evidence for a criminal prosecution” and there was no “coercive environment”)).14 Greenberg,
in her opening brief, did not make a motion to suppress statements made during these asylum
interviews. In her reply brief, she makes the request for the first time in a short paragraph.
Greenberg Reply at 19. “It is well-established that arguments raised for the first time in a
movant’s reply are waived.” Parnass v. Brit. Airways, PLC, No. 1:19-CV-04555 (MKV), 2021
WL 4311342, at *7 (S.D.N.Y. Sept. 21, 2021). Accordingly, the Court will not now resolve
whether suppression of any statements Greenberg made in asylum interviews is justified.15
At bottom, the Government’s investigation of Greenberg did not approach the kind of
outrageous conduct that justifies dismissal of an indictment. The Court therefore rejects this
ground for dismissing the indictment.
B. Motion to dismiss as duplicitous
14
In Scrushy, the district court dismissed three counts of perjury only because they rested
entirely on statements made in the deposition that the court suppressed. 366 F. Supp. 2d at 1140.
But here, the immigration-fraud count against Greenberg does not rely entirely on the statements
she made during CS-1’s and CS-3’s asylum interviews.
15
Moreover, as further explained in Section III.E.3, a motion to suppress must be accompanied
by a sworn affidavit, which Greenberg has not supplied here.
22
62a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 23 of 56
Greenberg next argues that the indictment should be dismissed because the single count
of conspiracy to commit immigration fraud is duplicitous, charging distinct conspiracies in a
single count. Specifically, she argues that the other Defendants’ alleged conspiracy had the
objective to “assist in preparing and filing asylum applications containing false statements” while
her alleged conspiracy had the objective to “conceal [those applicants’] lies during asylum
interviews.” Greenberg Br. at 31.
1. Applicable law
“An indictment is duplicitous if it joins two or more distinct crimes in a single count. A
duplicitous indictment, which alleges several offenses in the same count, must be distinguished
from ‘the allegation in a single count of the commission of a crime by several means.’ The latter
is not duplicitous.” United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992) (citations
omitted) (quoting United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980)). “Duplicitous
pleading . . . is not presumptively invalid.” United States v. Olmeda, 461 F.3d 271, 281 (2d Cir.
2006). Rather, duplicitous pleading is prohibited only where it prejudices the defendant. United
States v. Sturdivant, 244 F.3d 71, 75 & n.3 (2d Cir. 2001). That determination of prejudice is
guided by the “policy considerations” that underlie duplicity doctrine, which include:
avoiding the uncertainty of whether a general verdict of guilty conceals a finding
of guilty as to one crime and a finding of not guilty as to another, avoiding the
risk that the jurors may not have been unanimous as to any one of the crimes
charged, assuring the defendant adequate notice, providing the basis for
appropriate sentencing, and protecting against double jeopardy in a subsequent
prosecution.
United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981) (citing Murray, 618 F.2d at 896–
97).
“A conspiracy indictment presents ‘unique issues’ in the duplicity analysis because ‘a
single agreement may encompass multiple illegal objects.’” Aracri, 968 F.2d at 1518 (quoting
23
63a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 24 of 56
Murray, 618 F.2d at 896). “In this Circuit it is well established that the allegation in a single
count of a conspiracy to commit several crimes is not duplicitous, for the conspiracy is the crime
and that is one, however diverse its objects.” Id. (cleaned up).
In a pretrial motion to dismiss a count as duplicitous, the Court considers only the
indictment “on its face.” United States v. Miller, 26 F. Supp. 2d 415, 422–23 (N.D.N.Y. 1998)
(citing United States v. Reed, 639 F.2d 896, 904 (2d Cir. 1981)); see United States v. Walsh, 194
F.3d 37, 46 (2d Cir. 1999) (explaining that in a post-trial motion, a court “may consider the
record as a whole in determining whether an indictment is in fact multiplicitous or duplicitous”);
accord United States v. Eufrasio, 935 F.2d 553, 567 (3d Cir. 1991) (“In determining whether a
trial court erred by joining multiple defendants under Rule 8(b), we focus on the indictment, not
on the proof subsequently adduced at trial.” (cited by Greenberg Br. at 31)). Pretrial dismissal is
inappropriate so long as “the Court cannot conclude on the basis of the pleadings alone that there
is no set of facts . . . that could warrant a reasonable jury in finding a single conspiracy.” United
States v. Gabriel, 920 F. Supp. 498, 505 (S.D.N.Y. 1996), aff’d, 125 F.3d 89 (2d Cir. 1997).
Otherwise, “[t]he question whether the proof establishes a single or multiple conspiracies is an
issue of fact ‘singularly well-suited to resolution by the jury.’” United States v. Potamitis, 739
F.2d 784, 787 (2d Cir. 1984) (quoting United States v. McGrath, 613 F.2d 361, 367 (2d Cir.
1979)).
2. Analysis
The Court concludes that the single count is not duplicitous because it alleges a single
crime of conspiracy in which all of the Defendants participated. The superseding indictment
alleges that Russian America employees Mosha and Danskoi referred clients to non-employees,
including Greenberg, to assist in the preparation and submission of fraudulent asylum
24
64a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 25 of 56
applications. S1 Indictment ¶ 2. While other Defendants prepared written applications,
Greenberg’s alleged role in this conspiracy was to “knowingly prepare[] and encourage[] certain
Russian America clients to lie under oath about their fraudulent asylum claims” and to
accompany them to their interviews. Id. ¶¶ 7, 9. As the alleged facts outlined above reflect, the
selected pretrial materials proffered by the parties demonstrate that Mosha and Danskoi knew
Greenberg and referred clients to Greenberg, and that Greenberg knew that Mosha and Danskoi,
as well as others connected to Russian America, had assisted in the preparation of those clients’
asylum applicants. And at the stage of conducting asylum interviews, Russian America provided
further assistance, such as supplying translators.
Greenberg argues that the conspiracy in which she was allegedly involved was distinct
from that in which the other Defendants were involved. She refers the Court to the Korfant
factors, which courts in this circuit use to determine whether two conspiracies constitute the
same offense for purposes of the Double Jeopardy Clause. Greenberg Br. at 34 (citing United
States v. Korfant, 771 F.2d 660,662 (2d Cir. 1985)). Those factors include:
(1) the criminal offenses charged in successive indictments; (2) the overlap of
participants; (3) the overlap of time; (4) similarity of operation; (5) the existence
of common overt acts; (6) the geographic scope of the alleged conspiracies or
location where overt acts occurred; (7) common objectives; and (8) the degree of
interdependence between alleged distinct conspiracies.
United States v. Hernandez, No. 09 CR 625 (HB), 2009 WL 3169226, at *9 (S.D.N.Y.
Oct. 1, 2009) (quoting United States v. Macchia, 35 F.3d 662, 668 (2d Cir. 1994)).
Without deciding whether the Korfant factors are controlling in a determination of
duplicity, the Court considers Greenberg’s application of the factors. Greenberg argues, first,
that the objective of the other Defendants’ conspiracy was to submit a fraudulent Form I-589
while her alleged conspiracy’s objective was “for the limited and express purpose of preparing
and accompanying the clients to their asylum interviews.” Greenberg Br. at 35. She cites
25
65a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 26 of 56
primarily United States v. Gabriel, 920 F. Supp. 498 (S.D.N.Y. 1996), which dismissed one of
eighteen counts in an indictment on statute-of-limitations grounds because that count alleged a
conspiracy distinct from the others alleged. Relevant here, Gabriel concluded that one
conspiracy was by an airplane parts repairer to defraud its customers by using substandard repair
methods while a distinct conspiracy later in time, perpetrated by executives that later joined the
repair company, sought to “limit the damage” of subsequent investigations and lawsuits by
downplaying the extent to which the fraud was intentional. Id. at 503–04.
The Court concludes, however, that the superseding indictment alleges a single objective
of the conspiracy: to obtain completed Forms I-94—that is, proof of asylum—for Russian
America’s clients. That objective required both the written applications in which Mosha,
Danskoi, and the other Defendants, were allegedly involved, as well as the in-person interview in
which Greenberg was allegedly involved. After all, submitting a Form I-589 is, in itself,
insufficient to obtain asylum protection because the applicant must also pass an in-person
interview. See 8 U.S.C. § 1158(d)(5)(A)(ii); 8 C.F.R. §§ 1208.10, 1208.13(d)(2)(i)(H).
Consider, by analogy, a student who submits an application to a college: Her objective is to gain
admission, not simply to apply. That is true even if the college further requires that the student
pass an in-person interview. In either instance, both actions are necessary steps toward the
ultimate objective of gaining admission. This case is therefore unlike Gabriel, where the later
conspiracy to cover up fraud had a distinct objective from the completed conspiracy to commit
the fraud. Further, even if Greenberg’s particular objective was distinct from that of the other
Defendants, that would not require a conclusion that the count is duplicitous because “a single
agreement may encompass multiple illegal objects.” Murray, 618 F.2d at 896.
26
66a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 27 of 56
Greenberg also argues that the superseding indictment alleges two distinct conspiracies
because even if Greenberg made an unlawful agreement, it was only with the Government’s
cooperating witnesses, which is insufficient to allege a conspiracy. Greenberg Br. at 33; see,
e.g., United States v. Rosenblatt, 554 F.2d 36, 38 & n.2 (2d Cir. 1977) (holding that there can be
no conspiracy with only a “government informant who secretly intends to frustrate the
conspiracy” (citing Sears v. United States, 343 F.2d 139 (5th Cir. 1965)). As an initial matter,
Greenberg’s argument requires that the Court look at materials outside the indictment, which it
cannot do at this stage as to this claim. But even taking account of additional materials, the
Court would still reject Greenberg’s claim. Crucially, “[a] conspiracy need not be shown by
proof of an explicit agreement but can be established by showing that the parties have a tacit
understanding to carry out the prohibited conduct.” United States v. Svoboda, 347 F.3d 471, 477
(2d Cir. 2003) (quoting United States v. Samaria, 239 F.3d 228, 234 (2d Cir. 2001)). And “[a]
defendant can conspire with individuals he has never met, so long as he participates and is aware
of their assistance in the criminal venture.” United States v. Medina, 32 F.3d 40, 44 (2d Cir.
1994). Further, though agreement with a government informant alone cannot establish a
conspiracy, “a government agent may serve as a ‘link’ between ‘genuine’ conspirators,” and a
conspiracy may exist where one conspirator “communicated solely through” a government agent.
Id. (cleaned up); see also United States v. Cordero, 668 F.2d 32, 43 (1st Cir. 1981) (Breyer, J.).
Last, “[t]he defendant’s participation in a single transaction can, on an appropriate record, suffice
to sustain a charge of knowing participation in an existing conspiracy.” United States v. Santos,
541 F.3d 63, 73 (2d Cir. 2008) (quoting United States v. Miranda–Ortiz, 926 F.2d 172, 176 (2d
Cir. 1991)). These principles in mind, the Court finds an adequate basis to permit a reasonable
jury to find that Greenberg conspired with the other Defendants, even if that agreement was not
27
67a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 28 of 56
made explicitly, was made using CS-1 and CS-3 as “links,” and/or involved only a single
transaction.
Greenberg also argues, citing the Korfant factors, that the difference in time between her
actions and the actions of the other Defendants is too great, disproving that there was a single
conspiracy. But courts have declined to dismiss counts as duplicitous even where longer periods
of time have passed between alleged coconspirators’ actions. E.g., United States v. Willis, 475 F.
Supp. 2d 269, 273 (W.D.N.Y. 2007) (fifteen-month conspiracy alleged). And in the context of
the conspiracy alleged here, a substantial period of time between the submission of an
application and an applicant’s interview is consistent with the significant wait times that
applicants face in the asylum process. Cf., e.g., Fangfang Xu v. Cissna, 434 F. Supp. 3d 43, 60
(S.D.N.Y. 2020) (“The swell in asylum applications had produced a rapidly increasing backlog
of asylum applications and left the asylum system prone to fraud . . . .”); Yueliang Zhang v. Wolf,
No. 19-CV-5370 (DLI), 2020 WL 5878255, at *5 (E.D.N.Y. Sept. 30, 2020).
Even if the Court concluded that the single-count indictment alleged two distinct
conspiracies such that the count is duplicitous, Greenberg has not demonstrated that the duplicity
is prejudicial to her. See Margiotta, 646 F.2d at 733. The superseding indictment provides
Greenberg adequate notice of the conduct alleged and the timing of that conduct. Further, a
general verdict of guilty is unlikely to conceal a finding of not guilty as to one of the crimes. If a
jury were to conclude, for instance, that Greenberg did not participate in a conspiracy but that the
other Defendants did, then the jury would be required to return a verdict of not guilty as to
Greenberg.
The Court therefore denies Greenberg’s motion to dismiss the count against her as
duplicitous.
28
68a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 29 of 56
C. Motion to sever Greenberg
Related to her claim that the count of conspiracy to commit immigration fraud is
duplicitous, Greenberg next argues that, at the least, her trial should be severed from that of her
co-Defendants.
1. Applicable law
Under Federal Rule of Criminal Procedure 8,
The indictment or information may charge 2 or more defendants if they are
alleged to have participated in the same act or transaction, or in the same series of
acts or transactions, constituting an offense or offenses. The defendants may be
charged in one or more counts together or separately. All defendants need not be
charged in each count.
Fed. R. Crim. P. 8(b).
This language means that “joinder of defendants is appropriate where the alleged criminal
conduct is ‘unified by some substantial identity of facts or participants, or arise out of a common
plan or scheme.’” United States v. Burke, 789 F. Supp. 2d 395, 398 (E.D.N.Y. 2011) (quoting
United States v. Attanasio, 870 F.2d 809, 815 (2d Cir. 1989)). Relevant here, joinder may be
satisfied “where the Government alleges the existence of an overall conspiracy linking the
various substantive crimes charged in an indictment,” United States v. Lech, 161 F.R.D. 255, 256
(S.D.N.Y. 1995), or where the indictment charges multiple conspiracies that “arise from a
common plan or scheme,” United States v. Moon, No. 88-CR-64, 1988 WL 88056, at *3
(N.D.N.Y. Aug. 23, 1988) (quoting United States v. Velasquez, 772 F.2d 1348, 1353 (7th Cir.
1985)), or where multiple conspiracies are otherwise “‘intertwined’ with each other,” United
States v. Tuzman, 301 F. Supp. 3d 430, 439 (S.D.N.Y. 2017) (quoting Attanasio, 870 F.2d at
815).
“There is a preference in the federal system for joint trials of defendants who are indicted
together.” United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998) (per curiam) (quoting
29
69a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 30 of 56
Zafiro v. United States, 506 U.S. 534, 537 (1993)); see also Richardson v. Marsh, 481 U.S. 200,
209–10 (1987) (explaining that “[j]oint trials play a vital role in the criminal justice system”).
But if joinder is not permitted under Rule 8(b), then the Court must sever the defendants. United
States v. Lane, 474 U.S. 438, 449 (1986) (“Rule 8(b), however, requires the granting of a motion
for severance unless its standards are met, even in the absence of prejudice . . . .”). Additionally,
even if joinder is proper under Rule 8(b), a court may nevertheless grant severance “[i]f the
joinder of offenses or defendants in an indictment . . . appears to prejudice a defendant.” Fed. R.
Crim. P. 14(a). A defendant that seeks severance carries an “extremely difficult burden,”
Tuzman, 301 F. Supp. 3d at 440 (quoting United States v. Casamento, 887 F.2d 1141, 1149 (2d
Cir. 1989)), as they “must show not simply some prejudice but substantial prejudice,” United
States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004) (quoting United States v. Werner, 620 F.2d
922, 928 (2d Cir. 1980)). The Supreme Court has instructed that “when defendants properly
have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if
there is a serious risk that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about guilt or innocence.”
Zafiro, 506 U.S. at 539. Whether to grant severance is reserved “to the district court’s sound
discretion.” Id.
2. Analysis
The Court concludes, first, that joinder was proper. As explained above, the single count
alleges a single conspiracy that includes Greenberg and the other Defendants. That conspiracy is
alleged to have the objective of fraudulently obtaining asylum relief for Russian America’s
clients. Some of the Defendants are alleged to have participated in earlier stages of the asylumapplication process, such as assisting in the preparation of the clients’ asylum affidavits or by
30
70a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 31 of 56
writing the clients’ blogs to provide a basis for asylum. But even if Greenberg was involved
only in the clients’ later in-person interviews with Asylum Officers, participation in that “single
transaction” would be sufficient to sustain a charge of conspiracy, especially because the
conspiracy’s objective could be obtained only if clients pass those interviews. Santos, 541 F.3d
at 73.
Greenberg argues again, as she did with regard to duplicity, that the other Defendants
engaged in a distinct conspiracy of submitting an asylum application, arguing that the submission
of Form I-589 was a “completed ‘act or transaction’” in which Greenberg did not participate.
Greenberg Br. at 38. But, as explained, this parsing of the indictment is artificial. Submitting a
Form I-589 cannot result in the desired Form I-94 without an in-person interview. Greenberg’s
argument that she and Russian America must have been involved in separate conspiracies
because Russian America was not a law firm does not change this calculus. Rather, a jury could
find that Greenberg’s role within the alleged conspiracy, as a licensed immigration attorney, was
to provide those services that Russian America was legally barred from providing, such as
appearing at an asylum interview. See 8 C.F.R. § 292.4 (providing that an appearance in an
asylum proceeding may be filed only by an “attorney or accredited representative”); see also
Greenberg Br., Ex. N at 9 (Greenberg told CS-1, “You cannot say at all that [Mosha] is an
attorney or provides legal services. . . . He fills out documents and does translations. He has no
right to give you legal advice or anything like that.”). Similarly, Greenberg’s observation that
the other Defendants allegedly completed the substantive offense of immigration fraud before
Greenberg assisted CS-1 and CS-3 in their interviews, Greenberg Br. at 44, is irrelevant to
whether the Defendants entered into a conspiracy to commit immigration fraud.
31
71a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 32 of 56
Greenberg also reiterates that the superseding indictment alleges distinct conspiracies
because the conspiracies “took place at a much different time, in different places, during
different states of asylum process, and had different participants.” Greenberg Br. at 41. These
differences in the Defendants’ roles, however, are not sufficient to conclude that Greenberg was
misjoined. Greenberg’s role, as alleged, took place at a different time at a later stage in the
asylum process, but her role was nevertheless necessary to achieve the conspiracy’s objective.
And while Greenberg is not alleged to have been in Russian America’s offices with Mosha and
Danskoi, the conduct alleged in the superseding indictment is centered on the same geographic
location of New York City.
Greenberg likens her case to United States v. Kouzmine, 921 F. Supp. 1131 (S.D.N.Y.
1996), which found that distinct conspiracies to commit immigration fraud were misjoined. But
there, the court found, and the government acknowledged, that defendants involved in an earlier
conspiracy did not have “any knowledge whatever of the latter offenses,” and that there was “no
colorable argument . . . that both conspiracies alleged . . . were part of a single overarching
scheme.” Id. at 1133. Here, by contrast, the superseding indictment expressly alleges that all six
Defendants entered a single conspiracy to submit fraudulent asylum applications. S1 Indictment
¶ 2. And, further unlike Kouzmine, the Defendants are alleged to have been aware of each
others’ roles, as Mosha and Danskoi “connected” and “referred” clients to Greenberg. Id. ¶¶ 7,
9.
For similar reasons, Greenberg’s citation to United States v. Lech, 161 F.R.D. 255
(S.D.N.Y. 1995), is unavailing. There, a seven-count indictment alleged three separate schemes
to fraudulently obtain construction permits from the New York City Board of Education. Id. at
255–56. As with Kouzmine, the government conceded that the participants in each scheme “did
32
72a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 33 of 56
not participate in, or have specific knowledge of, the [other] schemes,” requiring severance. Id.
at 256–57. Again, those facts are distinguishable from the present case where the superseding
indictment alleges a single conspiracy in which all Defendants participated.
Greenberg further argues that she had no knowledge, at the time that CS-1’s and CS-3’s
asylum applications were submitted, that the applications were fraudulent. Greenberg Br. 43–44.
Whether Greenberg had adequate knowledge of the conspiracy raises a question of the
sufficiency of the evidence and so is properly a question for the jury. However, the Court notes
that “[a] defendant need not have joined a conspiracy at its inception in order to incur liability for
the unlawful acts of the conspiracy committed both before and after he or she became a
member.” Santos, 541 F.3d at 73 (quoting United States v. Rea, 958 F.2d 1206, 1214 (2d Cir.
1992)).
Having concluded that joinder was proper, the Court further concludes that Greenberg
has not carried her burden of making a substantial showing of prejudice as would justify
severance. She points first to the risk of prejudice that evidence of Russian America’s actions
will be improperly considered by the jury as proof of Greenberg’s guilt. Greenberg Br. at 45–46
(citing Zafiro, 506 U.S. at 539). But where the Government has alleged a single conspiracy, as
here, “all the evidence admitted to prove that conspiracy, even evidence relating to acts
committed by co-defendants, is admissible against the defendant.” United States v. Salameh,
152 F.3d 88, 111 (2d Cir. 1998). Further, juror confusion can be addressed with “less drastic
measures, such as limiting instructions.” Zafiro, 506 U.S. at 539.
Greenberg also claims that as an attorney, she may raise additional defenses that are
unavailable to her non-attorney co-Defendants. Greenberg Br. at 46. But “it is well settled that
defendants are not entitled to severance merely because they may have a better chance of
33
73a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 34 of 56
acquittal in separate trials.” Zafiro, 506 U.S. at 540. Further, that defendants have distinct
defense theories is not a sufficient basis for severance. Indeed, the Supreme Court has held that
even when defendants have “conflicting” or “[m]utually antagonistic defenses,” that is “not
prejudicial per se.” Id. at 538; see also United States v. Stein, 428 F. Supp. 2d 138, 144
(S.D.N.Y. 2006).
Even if Greenberg did identify prejudice, it would not reach the high bar required by Rule
14. That is especially so because the prejudice to Greenberg is not “sufficiently severe to
outweigh the judicial economy that would be realized by avoiding lengthy multiple trials.”
United States v. Lanza, 790 F.2d 1015, 1019 (2d Cir. 1986) (quoting United States v. Panza, 750
F.2d 1141, 1149 (2d Cir. 1984)); see Stein, 428 F. Supp. 2d at 145 (listing as efficiencies “the
risk of inconsistent verdicts, the burden on the court and the prosecution of trying the defendants
or several groups of defendants seriatim, and the need for defense counsel to cover repeatedly on
cross-examination in successive trials material that could be covered but once in a joint trial”).
The Court therefore denies Greenberg’s claim of misjoinder and, further, denies her
request to be severed from the other Defendants.
D. Motion to dismiss for failure to state a crime
Greenberg next raises a series of argument as to why the superseding indictment does not
allege a crime. In evaluating these claims, the Court may not “look beyond the face of the
indictment and draw inferences as to proof to be adduced at trial, for ‘the sufficiency of the
evidence is not appropriately addressed on a pretrial motion to dismiss an indictment.’” Scully,
108 F. Supp. 3d at 116–17; see also Sampson, 898 F.3d at 280.
Greenberg was charged with a single count of conspiracy to commit immigration fraud
under both 18 U.S.C. § 371 and 18 U.S.C. § 1546(a). She argues that the count cannot stand
34
74a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 35 of 56
under § 1546(a) because that provision criminalizes only the possession of a fraudulent proof of
lawful immigration status—here, a completed Form I-94—which is not the conduct in which she
allegedly engaged. Nor can the count stand under § 371, she continues, because she had no duty
to disclose the truth to USCIS and so did not defraud any U.S. agency. Last, she argues that her
alleged conduct of advising her clients—even advising them to lie to USCIS—is protected by the
First Amendment.
The Court addresses first Greenberg’s arguments under § 1546(a) because, Greenberg
claims, the § 371 charge depends at least in part on the validity of the § 1546(a) charge.
1. The superseding indictment is sufficiently pled
As an initial matter, to be legally sufficient, “an indictment need do little more than to
track the language of the statute charged and state the time and place (in approximate terms) of
the alleged crime.” Stringer, 730 F.3d at 124. Consequently, “[c]ourts have repeatedly refused,
in the absence of prejudice, to dismiss counts of indictments for lack of specificity ‘[w]hen the
charges in an indictment have stated the elements of the offense and provided even minimal
protection against double jeopardy.’” United States v. Nejad, No. 18-CR-224 (AJN), 2019 WL
6702361, at *15 (S.D.N.Y. Dec. 6, 2019) (quoting Stringer, 730 F.3d at 124).
The superseding indictment exceeds these baseline requirements. In addition to reciting
the elements of the charged statutes, e.g., S1 Indictment ¶¶ 18–19, it states the approximate time
period of the conspiracy (August 2018 to February 2021), and the approximate locations
(namely, the Southern District of New York, Manhattan, and Brooklyn), id. ¶¶ 1, 17. Further,
the superseding indictment lists seven overt acts that make up the conspiracy, and for each
identifies an approximate time and place. Id. ¶ 20. No more is required. See Scully, 108 F.
35
75a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 36 of 56
Supp. 3d at 116. Nevertheless, the Court will additionally address Greenberg’s particular
arguments as to why the superseding indictment is facially insufficient.
2. Whether § 1546 covers the alleged crime
Section 1546(a) of title 18 contains four paragraphs. The Government’s brief argues only
that Greenberg can be convicted under the first paragraph of these paragraphs, and the Court
therefore considers only whether Greenberg’s alleged conduct is prohibited under the first
paragraph.16 That paragraph states in full:
Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant
or nonimmigrant visa, permit, border crossing card, alien registration receipt card,
or other document prescribed by statute or regulation for entry into or as evidence
of authorized stay or employment in the United States, or utters, uses, attempts to
use, possesses, obtains, accepts, or receives any such visa, permit, border crossing
card, alien registration receipt card, or other document prescribed by statute or
regulation for entry into or as evidence of authorized stay or employment in the
United States, knowing it to be forged, counterfeited, altered, or falsely made, or
to have been procured by means of any false claim or statement, or to have been
otherwise procured by fraud or unlawfully obtained;
18 U.S.C. § 1546(a) ¶ 1.
In interpreting criminal statutes, the Court is mindful that it must “construe criminal
statutes narrowly.” United States v. Valle, 807 F.3d 508, 528 (2d Cir. 2015) (quoting United
States v. Nosal, 676 F.3d 854, 863 (9th Cir. 2012)). The Supreme Court instructed as much
when interpreting the same statute at issue here. United States v. Campos-Serrano, 404 U.S.
293, 297 (1971) (“It has long been settled that penal statutes are to be construed strictly, and that
one is not to be subjected to a penalty unless the words of the statute plainly impose it.” (cleaned
up)). But that instruction “does not mean that every criminal statute must be given the narrowest
16
The Government does not contest Greenberg’s claim that the fourth paragraph of § 1546(a)
does not cover Greenberg’s allegedly false statements that she made orally to USCIS. See
Greenberg Br. at 59; Greenberg Reply at 16 (citing United States v. Jabateh, 974 F.3d 281, 297
(3d Cir. 2020) (interpreting the fourth paragraph to apply only to written false statements, not
“false statements made orally under oath”)).
36
76a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 37 of 56
possible meaning in complete disregard of the purpose of the legislature.” Moskal v. United
States, 498 U.S. 103, 113 (1990) (quoting McElroy v. United States, 455 U.S. 642, 658 (1982)).
Greenberg raises three basic arguments for why her conduct alleged in the superseding
indictment is not punishable under the terms of § 1546(a)’s first paragraph. For the reasons
following, the Court disagrees.
First, Greenberg argues that a Form I-589 is not covered by § 1546(a) because it is only
an application for asylum protection and not itself a “document prescribed by statute or
regulation for entry into or as evidence of authorized stay or employment in the United States.”
Greenberg Br. at 54–56 (citing United States v. Phillips, 543 F.3d 1197 (10th Cir. 2008)).
Rather, she continues, her conduct is covered by the statute only if she conspired to possess a
completed Form I-94, which actually authorizes an asylee’s entry into, or stay in, the United
States. Greenberg Reply at 10–11. Whether Greenberg’s interpretation of the statute is correct
remains an open question in this circuit. United States v. Christo, 413 F. App’x 375, 376 (2d Cir.
2011) (summary order) (citing Phillips but concluding that the court “need not reach the question
of whether a Form I-589 is a document required for entry into this country”); see also United
States v. Ryan-Webster, 353 F.3d 353, 357 (4th Cir. 2003) (applying § 1546(a) to the forgery of
application materials). The Government, however, does not contest Greenberg’s reading.
Instead, it argues that the superseding indictment alleges that Greenberg conspired to “obtain[]” a
“document” that “would result from a successful asylum application,” namely, a completed Form
I-94. Gov’t Br. at 45–46. The Court therefore assumes without deciding that § 1546(a) covers
Greenberg’s conduct only if the object of her conspiracy was to obtain a completed Form I-94.
Second, Greenberg argues that the first paragraph of § 1546(a) “does not apply to
authentic documents” but punishes only “the forging, counterfeiting, altering or falsely making
37
77a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 38 of 56
of certain immigration documents or their use, possession, or receipt.” Greenberg Reply at 9;
Greenberg Br. at 57. The possession of an authentic immigration document that was obtained by
submitting “false statements in support of an I-589 application,” she claims, is punished only by
§ 1546(a)’s fourth paragraph, which the Government has abandoned. Greenberg Reply at 10.
This interpretation defies the text of the paragraph. Greenberg emphasizes the first half
of the paragraph—which does proscribe “forg[ing], counterfeit[ing], alter[ing], or falsely
mak[ing]” an immigration document—but ignores the second half that punishes whoever
“possesses, obtains, accepts, or receives any such . . . other document . . . knowing it to be
forged, counterfeited, altered, or falsely made, or to have been procured by means of any false
claim or statement, or to have been otherwise procured by fraud or unlawfully obtained.” 18
U.S.C. § 1546(a) (emphasis added). This “clear and definite” language, Campos-Serrano, 404
U.S. at 298, proscribes not only the knowing possession of a forged or counterfeited document
but also the possession of an authentic document that one knows to have been procured by a
false claim or statement. This latter prohibition covers the allegations in the superseding
complaint that Greenberg conspired to procure an authentic Form I-94 for asylum applicants by
means of false asylum claims.
That conclusion is consistent, as far as this Court is aware, with the conclusion of every
court to consider the question. See United States v. Krstic, 558 F.3d 1010, 1017 (9th Cir. 2009)
(concluding, after exhaustively considering the statute’s text, history, and purpose, that it
“prohibits possessing an otherwise authentic document that one knows has been procured by
means of a false claim or statement”); United States v. Kouevi, 698 F.3d 126, 139 (3d Cir. 2012)
(“The plain language of the statute reveals that the first paragraph of § 1546(a) must be read to
prohibit the possession or use of authentic immigration documents which are obtained by
38
78a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 39 of 56
fraud.”); see also United States v. Kantengwa, No. CRIM.A. 08-10385-RGS, 2012 WL 4591891,
at *2 n.5 (D. Mass. Oct. 3, 2012), aff’d, 781 F.3d 545 (1st Cir. 2015) (citing Krstic); United
States v. Cvijanovic, No. 10-CR-280, 2011 WL 1498599, at *2 (E.D. Wis. Feb. 8, 2011), report
and recommendation adopted, 2011 WL 1498595 (E.D. Wis. Apr. 19, 2011) (observing that
Congress “criminaliz[ed] not merely the making of a false statement on an immigration forms,
but also the possession of immigration documents obtained as a result of those false
statements”); United States v. Jakisa, No. 14-CR-119 SRN/SER, 2015 WL 520618, at *5 (D.
Minn. Feb. 9, 2015) (citing Cvijanovic).
Greenberg dismisses this straightforward reading of the statute in two ways. First, she
argues, the Supreme Court has “literally opined” on this issue and agreed that the first paragraph
of § 1546(a) is only a counterfeiting prohibition, Greenberg Reply at 9–10, quoting dicta that
appears in a footnote in Campos-Serrano: “The prohibition of counterfeiting in § 1546 is
contained in the first paragraph of that section. The prohibition of fraud in the acquisition of
documents is contained in the third paragraph of § 1546.” 404 U.S. at 301 n.13 (cleaned up).
But “Campos–Serrano cannot support the weight [Greenberg] places upon it.” Krstic, 558 F.3d
at 1014. At issue in Campos-Serrano was the distinct question of whether the statute covered the
act of counterfeiting an alien registration receipt card, and the Court held it did not. Id. at 300–
01. The Supreme Court had no reason to consider whether the first paragraph also covered an
authentic document that was procured by fraud. The opinion’s “one-line description” of the
statute “revises (for easier reading) the statute’s own” language—it does not purport to be
comprehensive or binding. Borden v. United States, 141 S. Ct. 1817, 1833 n.9 (2021); see
Krstic, 558 F. 3d at 1014 (explaining that this language in Campos-Serrano “merely serves as
39
79a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 40 of 56
general background information about the statute; it does not purport to be a comprehensive
catalog of all conduct prohibited by the statute”).17
Second, Greenberg argues that interpreting the first paragraph to cover both authentic and
inauthentic documents must be rejected because it would render superfluous § 1546(a)’s fourth
paragraph. Greenberg Reply at 11, 14. The Court disagrees. Each paragraph still has
independent effect. The fourth paragraph prohibits the act of making a false statement under
oath “in any application, affidavit, or other document required by the immigration laws.” 18
U.S.C. § 1546(a). Only the first paragraph covers “possession of an immigration document that
was fraudulently obtained.” Krstic, 558 F.3d at 1017. Moreover, Greenberg’s interpretation
creates its own surplusage problem, as it gives no effect to the first paragraph’s proscription of
possessing a document knowing it “to have been procured by means of any false claim or
statement, or to have been otherwise procured by fraud or unlawfully obtained.” Id.; see Kouevi,
698 F.3d at 133–34 (rejecting Greenberg’s interpretation because otherwise “the last clause . . . is
transformed into surplusage; it would add absolutely nothing to what comes before it”). Last,
though courts should minimize surplus text in a statute, “[t]he canon against surplusage is not an
absolute rule.” Panjiva, Inc. v. U.S. Customs & Border Prot., 975 F.3d 171, 179 (2d Cir. 2020)
(quoting Marx v. Gen. Revenue Corp., 568 U.S. 371, 385 (2013)).
17
Nor is the Court persuaded by language that Greenberg quotes from the United States
Attorneys’ Manual, Greenberg Br. at 57, which states that “[t]he first paragraph of 18 U.S.C.
§ 1546(a) proscribes the forging, counterfeiting, altering or falsely making of certain
immigration documents or their use, possession, or receipt.” U.S. Dep’t of Just., Just. Manual
§ 9-73.000. That language refers to one application of § 1546(a), but it does not exclude the
interpretation the Court adopts here; moreover, it cannot bind this Court. See Kouevi, 698 F.3d
at 137–38 (rejecting this same argument).
40
80a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 41 of 56
The Court therefore interprets the first paragraph of § 1546(a) to cover authentic
immigration documents—including Form I-94—that were “procured by means of any false
claim or statement, or to have been otherwise procured by fraud or unlawfully obtained.”
Third, Greenberg asserts that even if § 1546(a) is interpreted to cover an authentic Form
I-94, she “couldn’t have conspired to obtain an I-94 card.” Greenberg Reply at 11. Greenberg’s
precise claim is unclear, but it appears to rest on two premises. First, she asserts that the word
“obtain” in § 1546(a) means “simply ‘taking possession’” and so “does not extend to the process
of unlawfully applying for an immigration document.” Id. at 11. In other words, she says, the
second half of the first paragraph punishes only “the literal knowing possession of fraudulently
made or obtained documents.” Id. at 12. As with her prior argument, she claims that only the
fourth paragraph “punish[es] the effort of obtaining . . . authentic immigration documents.” Id.
at 13. Second, she argues, the Defendants could not have conspired to obtain a Form I-94
because submitting an application and appearing at an interview before an Asylum Officer “does
not, in and of itself, result in the issuance of an I-94,” noting that “only 29.8% of asylum
applications” get approved. Id. at 13–14; see also id. at 13 n.4 (arguing that the Government’s
theory of the case “could only actually work if the Government also theorized and established
that the Defendants were in collaboration with a corrupt actor at USCIS, who was going to help
them assuredly ‘obtain’ these fraudulently emitted I-94s”).
Neither of these premises withstands scrutiny. Greenberg’s unsourced definition of the
term “obtain” as synonymous with “possess” fails to give the terms independent effect. Rather,
obtain is better defined to mean “to procure, esp[ecially] through effort” or “[t]o succeed either
in accomplishing (something) or in having it be accomplished; to attain by effort,” such as “to
obtain a loan.” Obtain, Black’s Law Dictionary (11th ed. 2019); see also Obtain, Merriam-
41
81a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 42 of 56
Webster Dictionary, https://www.merriam-webster.com/dictionary/obtain (accessed March 7,
2022) (defining obtain as “to gain or attain usually by planned action or effort”); Honeycutt v.
United States, 137 S. Ct. 1626, 1632–33 (2017) (similarly defining “obtain” in 18 U.S.C.
§ 853(a)(1)). Here, Greenberg allegedly conspired to obtain—that is, to procure or accomplish
through effort—a completed Form I-94.18 The fact that her effort was not guaranteed to achieve
the object of the conspiracy because the ultimate decision to issue a Form I-94 rests with USCIS
is irrelevant. Any criminal enterprise entails the risk of failure. It is established that because the
crime of conspiracy requires only an unlawful agreement, “to be actionable, a conspiracy need
not be carried to a successful conclusion.” United States v. Rosengarten, 857 F.2d 76, 79 (2d
Cir. 1988); see Christo, 413 F. App’x at 376 (“Given this, the failure of defendants to finalize
and file the Form I–589 does not require the conspiracy conviction be overturned.”).19
The Court therefore concludes that the first paragraph of 18 U.S.C. § 1546(a) covers
Greenberg’s conduct alleged in the superseding indictment. In the language of the statute, the
Government has adequately alleged that Greenberg and the other Defendants conspired to
“obtain[] . . a[] . . . document prescribed by statute or regulation for entry into or as evidence of
authorized stay or employment in the United States, knowing it . . . to have been procured by
Greenberg’s citations to cases that describe § 1546(a) as a “possessory offense” are inapposite.
E.g., Greenberg Reply at 12 (citing Krstic, 558 F.3d at 1015). The issue in those cases was
whether the offense was completed when the false statement was made or whether it continued
throughout the defendant’s possession of the document—a distinction with significant
implications for the statute of limitations. That determination of the statute of limitations did not
purport to hold that § 1546(a) punishes only possession.
18
19
Greenberg again argues that the superseding indictment alleges only that she entered an
agreement with government agents, CS-1 and CS-3, which is inadequate to allege a conspiracy.
Greenberg Reply at 17–19. As explained above, the superseding indictment alleges that
Greenberg conspired with the other five Defendants and that to the extent CS-1 and CS-3 acted
as links between Defendants, that is sufficient to allege a conspiracy. See Medina, 32 F.3d at 44.
Greenberg also argues that the Government has not proffered adequate evidence of an
agreement. Greenberg Reply at 19. The Court cannot resolve this sufficiency-of-the-evidence
claim at this juncture.
42
82a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 43 of 56
means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully
obtained.” 18 U.S.C. § 1546(a).
3. Whether § 371 covers the alleged crime
Section 371, which is titled “Conspiracy to commit offense or to defraud United States,”
imposes punishment,
If two or more persons conspire either to commit any offense against the United
States, or to defraud the United States, or any agency thereof in any manner or for
any purpose, and one or more of such persons do any act to effect the object of the
conspiracy . . . .
18 U.S.C. § 371 ¶ 1.
Thus, “§ 371 is divisible into two clauses: the ‘offense clause’ and the ‘defraud clause.’”
Rodden v. Wilkinson, 845 F. App’x 25, 27 (2d Cir. 2021) (summary order). “The ‘offense
clause’ makes it unlawful to conspire ‘to commit any offense against the United States,’ while
the ‘defraud clause’ prohibits conspiracies ‘to defraud the United States, or any agency thereof in
any manner or for any purpose.’” United States v. Atilla, 966 F.3d 118, 130 (2d Cir. 2020). “To
prove a conspiracy under the ‘defraud clause,’ the government must establish (1) that the
defendant entered into an agreement (2) to obstruct a lawful function of the government (3) by
deceitful or dishonest means and (4) at least one overt act in furtherance of the conspiracy.” Id.
(cleaned up) (quoting United States v. Ballistrea, 101 F.3d 827, 832 (2d Cir. 1996)). Obstruction
requires only that the Government show that the alleged act “‘interfere[s] with or obstruct[s] one
of [the United States’] lawful governmental functions by deceit, craft or trickery, or at least by
means that are dishonest,’ even if the Government is not ‘subjected to property or pecuniary loss
by the fraud.’” Ballistrea, 101 F.3d at 831–32 (quoting Hammerschmidt v. United States, 265
U.S. 182, 188 (1924)).
43
83a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 44 of 56
Greenberg argues that the superseding indictment does not allege a violation of the
defraud clause. First, she flatly asserts that the “[f]iling of or presenting false statements in an
[asylum] application is not” obstruction of the lawful function of a U.S. agency. Greenberg Br.
at 51. But the “broad text” of the defraud clause “has been applied to conspiracies to obstruct the
functions of a variety of government agencies,” Atilla, 966 F.3d at 130, including the federal
immigration agency, Lutwak v. United States, 344 U.S. 604, 605 (1953). The Court concludes
that a conspiracy to obtain asylum protection by submitting false statements to USCIS alleges
obstruction of a lawful government function.
Second, Greenberg argues that she did not “defraud” because she did not “owe an
independent duty to disclose the client’s falsities or forego his representation.” Greenberg Br. at
52 (citing Chiarella v. United States, 445 U.S. 222, 235 (1980) (defining fraud under Section
10(b) of the Securities Exchange Act of 1934)). This argument misapprehends the superseding
indictment, which alleges that Greenberg and her co-Defendants conspired to submit “materially
false information” in asylum applications to USCIS and that Greenberg in particular prepared
clients to make false statements at interviews, “during which clients and/or GREENBERG made
claims that GREENBERG understood were false.” S1 Indictment ¶¶ 1, 7. Thus, the allegation
against Greenberg is not a mere failure to disclose. Moreover, Greenberg’s attempt to narrow
the meaning of “defraud” in § 371 by reference to other statutes is unavailing, as it is “well
established that the term ‘defraud’ as used in section 371 ‘is interpreted much more broadly than
when it is used in the mail and wire fraud statutes,’” Ballistrea, 101 F.3d at 831 (quoting United
States v. Rosengarten, 857 F.2d 76, 78 (2d Cir. 1988), and than how it was defined at common
law, United States v. Coplan, 703 F.3d 46, 61 (2d Cir. 2012).
44
84a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 45 of 56
Last, Greenberg suggests that because § 371 is ambiguous, it should be construed
narrowly in accordance with the rule of lenity. Greenberg Br. at 50 (citing Lander v. United
States, 358 U.S. 169 (1958)). But Greenberg has identified no “grievous ambiguity” necessary
to invoke lenity. Chapman v. United States, 500 U.S. 453, 463 (1991).
The Court therefore rejects Greenberg’s motion to dismiss any charge under 18 U.S.C.
§ 371.
4. Whether Greenberg’s conduct is protected by the First Amendment
Greenberg argues that because her advocacy on behalf of her clients, CS-1 and CS-3, was
“intended to affect the outcome of a proceeding,” it is “protected by the First Amendment.
Greenberg Br. at 66 (citing Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 511
(1972)). It would not be a crime, she says, if her “purpose may have been to make it more
difficult for the USCIS to discover that her clients had perjured themselves.” Id. at 66–67.
The contours of Greenberg’s First Amendment claim are unclear. In any event, her
argument proves far too much. Two basic principles of First Amendment doctrine bar
Greenberg’s challenge. First, “it has long been established that the First Amendment does not
shield knowingly false statements made as part of a scheme to defraud.” United States v.
Konstantakakos, 121 F. App’x 902, 905 (2d Cir. 2005) (summary order) (citing Illinois ex rel.
Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 611 (2003)); see, e.g., United States v.
Rowlee, 899 F.2d 1275, 1279 (2d Cir. 1990) (“The consensus of this and every other circuit is
that liability for a false or fraudulent tax return cannot be avoided by evoking the First
Amendment.”); Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 496 (1982)
(holding that the government may “regulate or ban entirely” speech “proposing an illegal
transaction”). Second, the government may regulate attorneys’ “speech as well as their conduct”
45
85a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 46 of 56
in furtherance of a substantial interest, including “to protect the integrity and fairness of a
[government’s] judicial system.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075 (1991);
see also Hersch, 553 F.3d at 756 (“The ability of the government to regulate the speech of
attorneys is also made evident by [the] Model Rules of Professional Conduct.”). In fact, contrary
to Greenberg’s assertions, “the speech of lawyers representing clients in pending cases may be
regulated under a less demanding standard” because “[l]awyers representing clients in pending
cases are key participants in the criminal justice system.” Gentile, 501 at 1075 (emphasis
added).20
Following the above law, the Second Circuit has previously rejected First Amendment
challenges raised by defendants convicted under the statutes at issue, 18 U.S.C. § 1546 and 18
U.S.C. § 371. Konstantakakos, 121 F. App’x at 905 (holding that “§ 1546, on its face, applies
only to knowing falsehoods material to the immigration submission at issue, and . . . such
deliberate falsehoods enjoy no First Amendment protection”); see also United States v. Daly,
756 F.2d 1076, 1082 (5th Cir. 1985) (§ 371 “punish[es] actions, not speech. . . . [A]n illegal
course of conduct is not protected by the First Amendment merely because the conduct was in
part initiated, evidenced, or carried out by means of language”). And courts in this circuit have
repeatedly upheld convictions of attorneys convicted for immigration fraud under the statutes.
See, e.g., Dumitru, 991 F.3d 427; Archer, 671 F.3d 149; United States v. You, No. 12-CR-690
(JMF), Dkt. No. 36 (S.D.N.Y. Feb. 5, 2015) (immigration attorney convicted under 18 U.S.C.
In a footnote, Greenberg attempts to narrow her objection, stating that she “doesn’t argue that
any advice by a lawyer is shielded by the First Amendment. Instead, a restriction on the content
of an attorney’s advice must be prohibited by a criminal statute to be constitutional.” Greenberg
Reply Br. at 20 n.6. But this clarification is question begging. The statutes at issue expressly
criminalize certain types of speech when made to the United States. Namely, as explained, 18
U.S.C. § 1546(a) proscribes the act of obtaining an immigration document that was “procured by
means of any false claim or statement.”
20
46
86a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 47 of 56
§§ 371, 1546(a)); United States v. Philwin, No. 11-CR-424-13 (NRB), Dkt. No. 255 (S.D.N.Y.
May 10, 2013) (immigration attorney convicted under 18 U.S.C. § 371).
Greenberg’s cited case law does not require a contrary conclusion. She cites initially to
California Motor Transport, but there, in rejecting a First Amendment defense to an alleged
antitrust violation, the Supreme Court stated that “[i]t is well settled that First Amendment rights
are not immunized from regulation when they are used as an integral part of conduct which
violates a valid statute.” 404 U.S. at 514; see also id. at 515 (“First Amendment rights may not
be used as the means or the pretext for achieving ‘substantive evils’ which the legislature has the
power to control.” (citation omitted)).
Second, Greenberg cites to a concurring opinion in Conant v. Walters, 309 F.3d 629 (9th
Cir. 2002), where the Ninth Circuit upheld, on First Amendment grounds, a permanent
injunction that prevented the federal government from investigating any physician or revoking
any physician’s license solely because that physician recommended medical marijuana to their
patients. That holding was justified, in part, by the protections traditionally afforded to the
doctor-patient relationship and to commercial speech. Id. at 636–37. A concurrence quoted by
Greenberg explained that “the fulcrum of this dispute is not the First Amendment right of the
doctors” but instead the disparity between the minimal benefit that doctors derived from giving
such advice to their patients and the immense burden that they faced by giving the advice—
namely, the potential loss of their licenses and livelihoods. Id. at 639–40 (Kozinski, J.,
concurring). This reasoning, which is not binding on this Court, is distinguishable. The speech
alleged here was the knowing submission of false statements to a federal agency, and such
fraudulent statements, unlike commercial speech or speech made in private by a doctor to a
patient, are not protected by the First Amendment. Konstantakakos, 121 F. App’x at 905.
47
87a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 48 of 56
Moreover, the federal government has a far more “immediate[]” and “direct[]” interest in
preventing the obstruction of an agency’s lawful functions than it did in preventing doctors’
encouragement of marijuana usage in Conant. 309 F.3d at 640 (Kozinski, J., concurring). And
last, the Court notes that unlike the physicians in Conant, Greenberg here is alleged to have
received direct financial compensation for her advice to clients and statements to USCIS.
Finally, Greenberg on February 11, 2022, filed a letter notifying the Court of the Ninth
Circuit’s decision in United States v. Hansen, --- F.4th ---, No. 17-10548, 2022 WL 402897 (9th
Cir. Feb. 10, 2022). That decision held that 8 U.S.C. § 1324(a)(1)(A)(iv)—which punishes any
person who “encourages or induces an alien to come to, enter, or reside in the United States,
knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be
in violation of law”—is facially overbroad under the First Amendment because it “encompasses
a vast amount of protected speech related to immigration, including general immigration
advocacy” while the government has an interest only in a “narrow prohibition on speech integral
to criminal conduct.” Id. at *3.
The Court rejects Greenberg’s reliance on Hansen because Greenberg did not raise an
overbreadth challenge in her prior briefing to the Court. See Greenberg Br. at 66–67; Greenberg
Reply at 19–21. The argument, whatever its merits, is therefore waived. Parnass, 2021 WL
4311342, at *7.21 Even if the Court considered the merits of Hansen, the Court finds its
21
In fact, Hansen’s procedural history tells a cautionary tale. The Ninth Circuit had held
§ 1324(a)(1)(A)(iv) unconstitutionally overbroad in a prior opinion, United States v. SinenengSmith, 910 F.3d 461, 485 (9th Cir. 2018), but the Supreme Court vacated the decision because
the defendant had argued only that the statute was unconstitutional as to her and the Ninth
Circuit abused its discretion in reaching to find the statute unconstitutionally overbroad, United
States v. Sineneng-Smith, 140 S. Ct. 1575, 1578 (2020). The Court will not accept Greenberg’s
invitation to commit a similar error here.
48
88a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 49 of 56
reasoning distinguishable.22 Unlike the provision at issue in Hansen, the Second Circuit has
concluded that § 1546(a) “applies only to knowing falsehoods material to the immigration
submission at issue,” which “enjoy no First Amendment protection.” Konstantakakos, 121 F.
App’x at 905.
Accordingly, Greenberg has not made an adequate showing that the conduct alleged in
the superseding indictment is protected by the First Amendment.23
E. Motion to suppress
Greenberg next argues that the statements she made to officers shortly after her arrest in
Colorado without the presence of counsel must be suppressed as obtained in violation of the
Fifth Amendment because, she claims, the Government “coerced Greenberg to provide
statements against her interests after she was arrested.” Greenberg Br. at 68. At the Court’s
order, the Government supplied an audio recording of the complete statement. Though the
parties disagree about whether the statement is voluntary as a matter of law, Greenberg accepts
the veracity of the recording and relies on it in her own briefing. The Court therefore finds that it
can resolve Greenberg’s motion without an evidentiary hearing. See United States v. Cobb, 544
F. Supp. 3d 310, 339–40 (W.D.N.Y. 2021).
22
The precise question decided in Hansen remains an open one in this circuit, though other
courts in the circuit have expressed sympathy for the claim as to § 1324. United States v.
Raniere, 384 F. Supp. 3d 282, 309 (E.D.N.Y. 2019).
23
Greenberg also argues that the superseding indictment effectively imposed on her a duty to
investigate and report her clients, citing in support cases including U.S. ex rel. Wilcox v.
Johnson, 555 F.2d 115, 121–22 (3d Cir. 1977), for the proposition that attorneys have an
obligation not to investigate their clients. Greenberg Br. at 67–68. This argument, for the
reasons explained above, is unpersuasive. The Government can punish attorneys’ knowingly
false statements made to the Government. The dicta that Greenberg quotes from Wilcox is not
binding and, in any event, distinct from this circumstance, stating that if an attorney “were in fact
to discuss with the Trial Judge his belief that his client intended to perjure himself, without
possessing a firm factual basis for that belief, he would be violating the duty imposed upon him
as defense counsel.” 555 F.2d at 121–22.
49
89a
Case 1:21-cr-00092-JPO
Document 139
Filed 03/09/22
Page 50 of 56
1. Applicable facts
In the portion of the recording of the post-arrest statement that Greenberg quotes in her
brief, Deboer stated:
So, I want to be transparent with you, Julia. I want your cooperation. I am not going to
sweet talk to you or anything. I am going to tell you a lot of stuff that I learned, . . . I
could dice this around. I could give you statutes, I could give you max and min, it is not
worth it, if you know this game. How long have you been an attorney? 15 years. I know
you were born in Belarus, I know you came over here and you started Zontlaw. So I
want you to think of your future with your kids, with your husband, and you are maybe in
the position to help yourself. What does that mean? Basically, there are other people in
this conspiracy that you will be able to provide information on, and you can talk–we are
not even out of the area here. People that have a lot less than you and I know you have a
lot of info on them, from what I have seen. We will just take it from there.
Recording at 2:04–3:20.
Deboer then administered the Miranda warning and Greenberg waived her rights both
orally and in writing. Greenberg Br. at 18, Gov’t Br. at 50. At this point, and throughout the
interview, Greenberg appears to understand the warnings, to be alert, and to be responsive to
questions. After Greenberg waived Miranda,
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.