Petition for Writ of Certiorari — Julia Greenberg, Petitioner v. United States

Supreme Court briefMay 5, 2025

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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APPENDIX B - Unpublished Summary Order of the Second Circuit Court of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.

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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.

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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.

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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:

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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

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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.

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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

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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.

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CONCLUSION

For these reasons and for the reasons set forth in the separately issued

summary order, we AFFIRM.

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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,

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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.

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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

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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

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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).

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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.

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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

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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

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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

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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

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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.

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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).

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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

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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.

* * *

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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

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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") .

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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

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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.

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6.

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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.

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9.

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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

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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

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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 .

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15 .

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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

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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

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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

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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

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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

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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 . )

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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 ;

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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

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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

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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).

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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).

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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

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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)).

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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.

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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.

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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

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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.

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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

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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.

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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.

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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

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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)

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(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

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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

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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.

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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.

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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

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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).

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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

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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.

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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.

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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

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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

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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

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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.

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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

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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.

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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

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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

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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.

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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

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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

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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

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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.

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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”)).

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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

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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

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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

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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).

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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-

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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.

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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)).

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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).

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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”

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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

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§§ 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.

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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.

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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.

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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.

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