Opinion
08 CR 1054 (SAS).
August 3, 2010
For the Government: Christian Everdell, Lee Renzin, Assistant United States Attorneys, New York, New York.
For Defendant Preldakaj: Arlen Yalkut, Esq., Yalkut, Saltzman Israel, White Plains, New York, Brooklyn, New York.
For Defendant Collazo: Ramon W. Pagan, Esq., Ramon A. Pagan, Esq., Law Office of Ramon W. Pagan, Bronx, New York, Manuel A. Sanchez, Jr., Law Office of Manuel A. Sanchez, Jr., Bronx, New York.
OPINION AND ORDER
I. INTRODUCTION
Counts One, Two, and Three of the Third Superseding Indictment charged defendants Salvador Collazo and Dalia Preldakaj with conspiring to commit visa fraud and immigration fee fraud, and with the substantive offenses of visa fraud and immigration fee fraud. Count Four charged Collazo with making false statements to the Federal Government. Counts Five, Six, and Seven charged Preldakaj with money laundering, engaging in an illegal monetary transaction, and witness tampering. The jury convicted Callazo on all counts, other than the immigration fee fraud count. The jury convicted Preldakaj on all counts.
Defendants now move for judgments of acquittal or, in the alternative, for a new trial, pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. For the following reasons, the motions are denied in their entirety.
II. STANDARD
Rule 29 requires the Court to determine whether upon the evidence, viewed in its totality, "a reasonable mind might fairly conclude guilt beyond a reasonable doubt . . . giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact[.]" The Court must view the evidence in the light most favorable to the Government and must draw all permissible inferences in the Government's favor. The task of choosing among permissible inferences is for the jury.
United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999) (quotation marks omitted).
Rule 33 provides the trial court broad discretion "to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice." "Because the courts generally must defer to the jury's resolution of conflicting evidence and assessment of witness credibility, `[i]t is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment.'" In general, the trial court need only satisfy itself that the jury's verdict is supported by "competent, satisfactory and sufficient" evidence, and a verdict should only be overturned where there is "a real concern that an innocent person may have been convicted."
United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992) (quotation marks omitted).
United States v. McCourty, 562 F.3d 458, 475-76 (2d Cir. 2009) (quoting Sanchez, 969 F.3d at 1414).
United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (quotation marks omitted).
III. COLLAZO'S CONVICTION
A. Count One — Conspiracy to Commit Visa Fraud
Collazo argues (1) that the evidence was insufficient to prove that he intentionally joined a conspiracy with Preldakaj to defraud his firm's immigration clients, and (2) even if a rational jury could have found that he was a member of the conspiracy, the evidence was insufficient to support a jury instruction on the law of conscious avoidance.
To prove conspiracy, the Government must show that the defendant "entered into an agreement with others with knowledge of the criminal purpose of the scheme and with the specific intent to aid in the accomplishment of those unlawful ends." Under the doctrine of conscious avoidance, a jury may infer knowledge of the existence of a particular fact if the defendant is aware of a high probability of its existence, unless the defendant actually believes that it does not exist. While conscious avoidance may not be used to prove intent to participate in a conspiracy, the doctrine may be used to establish that a defendant had knowledge of the unlawful objectives of the conspiracy. In other words, "`intent to participate' may be shown by finding that the defendant either knew, or consciously avoided knowing, the unlawful aims of the charged scheme and intended to advance those unlawful ends." I address the evidence showing Collazo's knowledge of the unlawful objectives of the conspiracy first, then the evidence showing his intent to participate in the conspiracy.
United States v. Svoboda, 347 F.3d 471, 477 (2d Cir. 2003).
See United States v. Kaiser, ___ F.3d ___, 2010 WL 2607140 (2d Cir. July 1, 2010).
See United States v. Reyes, 302 F.3d 48, 54-55 (2d Cir. 2002).
Svoboda, 347 F.3d at 480.
1. The Jury Permissibly Concluded that Collazo Had Knowledge of the Unlawful Objectives of the Conspiracy
The evidence at trial was sufficient to establish that Collazo knew or consciously avoiding knowing that the conspiracy aimed to commit visa fraud. Specifically, the evidence demonstrated that Collazo was aware of a high probability that many of his clients' applications for an immigration program known as "LULAC amnesty" were fraudulent, and deliberately avoided confirming that fact.
The jury could reasonably conclude that Collazo knew that many of the LULAC applications submitted on behalf of his firm's immigration clients contained lies. Collazo was present at Armando Munoz's immigration interview in October 2006 where Munoz was caught in a lie about when he first entered the United States and was forced to withdraw his application. Collazo also knew that, over a year earlier in August 2005, CIS had denied the LULAC application of Jose Carpio, because he had made false statements in his application and at his interview about when he first entered the United States. Collazo himself acknowledged that these were not isolated incidents when he told the Government that he believed many of the immigration clients were lying to him about the information in their applications. Given these facts, as well as the minuscule success rate of his client's LULAC applications, the jury could easily infer that Collazo knew of the high probability that the vast majority of the LULAC applicants did not, in fact, qualify for the program and that the applications were based on fraud.
The jury was also permitted to conclude that Collazo deliberately avoided confirming the fact that Preldakaj was behind the fraudulent applications. As background, the evidence established that Collazo believed that Preldakaj was a liar, who had been cheating him out of some of the profits of the immigration practice. In 2005, Collazo discovered a receipt book indicating that Preldakaj had been deceiving him by withholding money from the immigration practice, and told Viola Hidalgo that he felt "as if he had been tricked." When Collazo spoke with Special Agent Gordon, Collazo stated that he was not surprised when he learned that the search of his office related to the immigration practice, because he had "become suspicious" about the practice.
Tr. at 970-71.
Id. at 1100.
More importantly, Evelyn Hidalgo testified that Collazo knew that many of the immigration clients were complaining, and he personally reviewed their applications with them. Viola Hidalgo also testified that Collazo knew that Preldakaj was lying to clients. Collazo was explicitly told by Viola Hidalgo that she was concerned because Preldakaj was signing his name to immigration forms, to which Collazo replied: "There are some papers she can sign." While Preldakaj may have had authority to sign Collazo's name on some papers, the jury was permitted to infer, based on the evidence I have discussed, that Collazo deliberately failed to confirm that Preldakaj was signing his name on fraudulent immigration applications.
Id. at 950.
In addition, the evidence showed that Collazo was aware of other facts indicating that Preldakaj was at the root of the fraud. In July 2007, Ernesto Quintero sued Collazo, Preldakaj, and others in connection with his immigration application. The evidence established that Collazo thoroughly reviewed the entire litigation file, which contained, among other things, Preldakaj's notes from the initial interview of Quintero showing home addresses and previous employment dating from 1995, while the completed LULAC application showed additional home addresses and previous employment dating from 1981 — the date necessary to qualify for LULAC amnesty. Furthermore, the file contains Quintero's answer to Collazo's demand for a bill of particulars, dated January 7, 2008, which states that the basis for the lawsuit was that Collazo and his employees submitted an application to CIS on his behalf "knowing that [he] did not qualif[y] for the benefits sought." The file also contains a check from the bank account of Preldakaj's boyfriend, Jose Garcia, used to pay for an immigration filing for Quintero, which Collazo marked with a note indicating that he was aware and concerned that Preldakaj was using non-firm bank accounts to conduct the immigration business. Based on Collazo's review of these documents, the jury could easily infer that Collazo was aware of the nature of the fraud and Preldakaj's involvement in it.
Gov. Ex. 2900 at 77-78.
2. The Jury Permissibly Concluded that Collazo Intentionally Participated in the Conspiracy
The evidence was also sufficient to show that Collazo intentionally participated in the fraud scheme. Collazo signed numerous immigration applications — by his own count over 150, only one or two which were approved. He accompanied clients to their immigration interviews. He took an active role in the recruitment of immigration clients for the firm by seeking out potential clients at local churches.
More importantly, Collazo received regular cash payments of $200-$300 from Preldakaj from the immigration business, and that at this time the law firm was struggling financially. As the government correctly points out, the need to ensure that the revenue from the immigration business continued, and even expanded, created a motive for Collazo not to question Preldakaj or the clients about the details of the immigration practice or the information in the applications, which he already had reason to believe was false.
The evidence also indicates that Collazo made several false exculpatory statements, providing evidence of his consciousness of guilt. Collazo stated that he always reviewed every LULAC application before he signed it, that he would never sign an application unless the client had first signed it in his presence, and that Viola and Evelyn Hidalgo never brought him LULAC applications to sign. He also stated that he had no knowledge that immigration clients were having meetings in the office on Saturdays and that the bank accounts of Jose Garcia and Diolquiris Guzman were being used for firm business. These statements indicate that Collazo was attempting to distance himself from the conspiracy, and the immigration practice as a whole, by disclaiming any knowledge of suspicious aspects of the scheme that highlighted his awareness of the fraud. Further, these statements suggest that Collazo was trying to mislead the Government into believing he was a careful attorney who was a victim of Preldakaj's fraud, rather than someone who intentionally facilitated the conspiracy by blindly signing off on LULAC applications and standing to the side as he allowed Preldakaj to run the fraud scheme.
Collazo makes a number of arguments attacking the evidence showing his knowledge of the conspiracy and his intent to participate. At bottom, Collazo contends that the jury should have drawn different inferences from the evidence presented — that they should have found that Preldakaj was hiding the fraud from Collazo, and that Collazo was an innocent victim. For example, he argues that his actions with respect to the Quintero file reveal that he had no knowledge about the fraud scheme, because, for example, his notes show he did not understand things Preldakaj had done. Similarly, Collazo argues the evidence did not establish that the cash he received from Preldakaj was, in fact, derived from the fraud scheme, as opposed to legitimate immigration work. While the jury could have accepted Collazo's arguments, it did not. The only question is whether, after crediting all permissible inferences in the government's favor, the jury could conclude that Collazo knew — or consciously avoided knowing — of the conspiracy and intentionally took steps to further its ends. Taken as a whole and viewing the evidence in the light most favorable to the Government, the evidence at trial was sufficient for the jury to convict Collazo on Count One.
B. Count Two — Visa Fraud
The evidence just discussed was also sufficient to convict Collazo of visa fraud. It is undisputed that numerous LULAC applications presented to CIS by Collazo's law office contained materially false statements. The only issue Collazo contests is that he knew these applications were fraudulent. The evidence discussed above establishing Collazo's conscious avoidance of the underlying fraud applies equally here. Indeed, Collazo's own statement that he believed that some of the immigration clients were lying to him about the information on their LULAC applications raises an inference that he was aware of a high probability that the applications contained false information. When considered with the rest of the evidence showing his deliberate efforts to avoid confirming the fraud discussed above, the evidence is sufficient to sustain the conviction.
C. Count Four — False Statements
With regard to the false statements count, Collazo does not contest that Martha Mendoza's LULAC application contained materially false statements, including the statement attributed to Collazo, made under penalty of perjury, that the answers provided in the application were based on information "of which [he had] personal knowledge and/or were provided to [him] by [Mendoza] in response to the exact questions contained on this form." Rather, Collazo argues that the evidence was insufficient to establish that he, in fact, signed the document.
Gov. Ex. 1101 at 18.
Again, sufficient evidence existed for the jury to conclude that Collazo did sign Mendoza's application. Collazo, himself, told the Government on two separate occasions that the signature on the Mendoza application appeared to be his. Although Collazo did not state with absolute certainty that it was his signature, certainly as the owner of the signature, he would have immediately recognized if the signature was even slightly different than his usual signature, and would have said so. At the time he made these statements, Collazo was aware of the nature of the charges against him, and was also aware that Preldakaj had been signing his name to immigration forms without his knowledge.
Other evidence presented indicated that the signature belonged to Collazo. Viola Hidalgo testified that she recognized the signature on the Mendoza application as Collazo's and that it did not match the signatures on other documents that she knew to be forgeries by Preldakaj. Other documents such as Armando Munoz's formal withdrawal of his LULAC application, which bears a signature that matched the one on the Mendoza application and was undeniably signed by Collazo, offer further support.
Accordingly, the proof was more than sufficient to allow the jury to conclude that Collazo signed the Mendoza application and knowingly committed the crime of making false statements to the Government. Although Collazo asserts that the evidence of Preldakaj's forgeries created a conflicting inference that she created the signature and not Collazo, the jury clearly rejected that inference and reasonably found that it was Collazo who signed the document.
D. Collazo's Motion for a New Trial
Collazo argues for a new trial under Rule 33 on the ground that I incorrectly excluded the following statement made by Preldakaj on a consensual recording on January 19, 2009 with her client Alonso Amado: "I had to leave this office because there was no reason to do harm to a man who has no blame." Collazo argues, as he did at trial, that the statement is admissible as a statement against penal interest pursuant to Federal Rule of Evidence 804(b)(3), as a statement offered pursuant to Rule 806 to impeach the credibility of Preldakaj's previous statements that she and Collazo were "partners" and that "she wasn't the only one who knew what was going on," and under Rule 807, the residual exception to the hearsay rule.
When Collazo initially sought to introduce this statement, both the Government and Preldakaj's counsel pointed out that they believed the "man" referred to in the statement was not Collazo, but rather was the person Preldakaj was talking to at the time — Amado. When I excluded the statement, I explained that because it was not at all clear to whom the word "man" in the statement refers, the statement did not have probative force and was potentially highly misleading. The statement has gained no further clarity since trial, and I decline to revisit my decision.
Moreover, Collazo has not provided a valid basis for its admission. There are three requirements for a statement to be admissible as a statement against penal interest: (1) an unavailabledeclarant; (2) that the statement, at the time it was made, was against the declarant's penal interest; and (3) that when offered to exculpate a defendant, corroborating circumstances clearly indicate trustworthiness. Under the rule, "[t]he inference of trustworthiness from the proffered corroborating circumstances must be strong, not merely allowable." Moreover, because the purpose of the corroboration requirement is to prevent "fabrication" from being introduced in evidence, there must be "corroboration of both the declarant's trustworthiness as well as the statement's trustworthiness." Here, even assuming that the statement was against Preldakaj's penal interest, there were certainly not strong corroborating circumstances indicating the trustworthiness of either Preldakaj or the statement. What is more, the evidence at trial showed that Preldakaj often lied to her clients. Accordingly, the statement was correctly excluded on this ground.
See United States v. Harwood, 998 F.2d 91, 98 (2d Cir. 1993).
Id. (quotation marks omitted).
United States v. Bahadar, 954 F.2d 821, 829 (2d Cir. 1992).
With respect to Rule 806, the two prior statements of Preldakaj that Collazo sought to impeach with Preldakaj's recorded statement — that she and Collazo were "partners" and that "she wasn't the only one who knew what was going on" — were not, in fact, impeached by the recorded statement. The "partner" statement simply referred to the fact that Preldakaj and Collazo worked in the same office, not that they were co-conspirators. As for Preldakaj's statement that "she wasn't the only one who knew what was going on," it could refer to anyone in the office. Also, the statement had been specifically sanitized pursuant to Bruton to eliminate any reference to Collazo.
Finally, because the statement was not sufficiently trustworthy, it was not admissible pursuant to Rule 807.
In any event, the jury's verdict against Collazo was supported by competent, satisfactory, and sufficient evidence. Neither extraordinary circumstances nor a real concern that an innocent person may have been convicted exist here.
III. PRELDAKAJ'S CONVICTION
Preldakaj argues that the evidence at trial was insufficient to sustain the jury's guilty verdict on the conspiracy, illegal monetary transaction, and witness tampering counts.
A. Count One — Conspiracy to Commit Visa Fraud
As to the conspiracy count, Preldakaj argues that even if the evidence was sufficient to convict her of the substantive offense of visa fraud as charged in Count Two (a point she does not contest), the evidence was insufficient to prove that she and Collazo entered into a conspiracy to commit visa fraud.
For the reasons already discussed, the evidence was sufficient for the jury to find the existence of a conspiracy between Preldakaj and Collazo. In addition, the evidence also established that Preldakaj conspired with others — namely, Olga Garcia — to commit visa fraud. Solange Jatoba testified that she and her family were recruited by Garcia to meet with Preldakaj and that they paid thousands of dollars for this service. The government also produced a document from the law office listing Olga Garcia's client referrals. And Preldakaj, herself, told Special Agent Silverman after her arrest that "Olga Garcia was behind everything and that [she] would recruit illegal aliens and bring them to the office."
Tr. at 1522.
B. Count Six — Illegal Monetary Transaction
Preldakaj next attacks her conviction for committing an unlawful monetary transaction. She argues that the evidence was insufficient to prove the second element of the crime — that the monetary transaction involved criminally derived property having a value in excess of $10,000. Specifically, Preldakaj argues that the evidence was insufficient to establish that the $13,000 she deposited on March 17, 2008 into Diolquiris Guzman's Banco Popular account was actually derived from the visa fraud offense.
Based on the evidence presented at trial, a rational juror could conclude that the thirteen individual $1,000 postal money orders deposited on that date came from the immigration clients. Special Agent Katsoulaki's analysis of Guzman's Banco Popular account showed that during the time period from February 2007 to July 2008, when Preldakaj controlled this account, she deposited over $165,000 in postal money orders. A large number of these money orders were in $1,000 denominations. The evidence further established that the vast majority of these money orders were provided by people who were identified as immigration clients of the firm. This was consistent with the testimony of several victim witnesses, who stated that they paid Preldakaj in money orders for her immigration work, at her request, and with the testimony of Special Agent Silverman who stated that numerous money orders were recovered from Preldakaj's office during the search. Furthermore, other evidence established that Preldakaj would often request blank money orders, which she would fill out.
Preldakaj points out that at least $50,000 of the money that was deposited into the Guzman account during the relevant time period could not be traced, but that was simply because the backup documents did not exist to allow Special Agent Katsoulaki to trace them.
Based on the trial evidence, it was entirely reasonable for the jury to conclude that that the thirteen $1,000 money orders Preldakaj deposited on March 17, 2008 came from immigration clients and were fruits of the fraud scheme.
C. Count Seven — Witness Tampering
As to the witness tampering charge, Preldakaj concedes that her attempt to have Manuel Mazariego file a civil lawsuit against her for an unpaid loan constituted "misleading conduct" under the relevant statute. However, she asserts that the evidence was insufficient to show that her intent was to "influence, delay, or prevent" the testimony of Mazariego at her trial. Preldakaj argues that she was simply attempting to refund money owed to Mazariego, one of her immigration clients.
At the time that Preldakaj asked Mazariego to file the civil complaint against her in August 2009, Preldakaj had already been arrested and charged with visa fraud involving her former immigration clients. Accordingly, Mazariego was clearly a potential witness in the case against her. More importantly, Preldakaj's innocent explanation for her behavior belies the trial evidence. If Preldakaj simply intended to refund money to Mazariego, as she now claims, she could have done so without having Mazariego file a civil lawsuit against her. Instead, as Mazariego testified at trial, Preldakaj brought him to the Bronx courthouse, where she showed him a document that she said he had to fill out and sign in order to receive his refund. Mazariego did not read English and did not understand the document, so Preldakaj filled it out for him. The document was a check-a-box complaint to initiate a civil lawsuit. Under the heading "Reason for Claim," Preldakaj checked the box for "failure to pay for money loaned," rather than "failure to provide proper service." Based on this evidence, a rational juror was entitled to infer that, by having Mazariego file a formal court document stating that the money Preldakaj owed him was for a personal loan, as opposed to fees that he paid her for immigration work, Preldakaj intended to undercut any testimony Mazariego might provide against her.
Gov. Ex. 719.
D. Preldakaj's Motion for a New Trial
Finally, Preldakaj moves for a new trial on the ground that the victim witnesses who testified were not credible. Not only is it well-settled that courts generally must defer to the jury's assessment of witness credibility, I find that the witnesses were in fact credible. Moreover, a court should only overturn a verdict where there is a real concern that an innocent person may have been convicted. There is no such concern here.
V. CONCLUSION
For all of these reasons, Collazo's and Preldakaj's post-trial motions are denied. The Clerk of Court is directed to close these motions (Documents ## 55 and 56).
SO ORDERED: