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United States v. Zhu

United States Court of Appeals, Fourth Circuit

April 12, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
KAIXIANG ZHU, Defendant-Appellant.

          Argued: October 28, 2016

          Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:12-cr-00258-GBL-11)

         ARGUED:

          Jessica Nicole Carmichael, HARRIS & CARMICHAEL, PLLC, Alexandria, Virginia, for Appellant.

          Christopher John Catizone, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

          ON BRIEF:

          Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

          Before TRAXLER, DIAZ, and HARRIS, Circuit Judges.

          Affirmed by published per curiam opinion.

          PER CURIAM:

         Kaixiang Zhu was convicted by a jury of conspiring to commit immigration fraud, see 18 U.S.C. § 371, and aiding and abetting fraud and misuse of immigration documents, see 18 U.S.C. § 1546(a), charges stemming from a green card sting operation. Zhu appeals his conviction on various grounds. For the reasons set forth below, we affirm.

         I.

         Zhu, a native of China, entered the United States in February 2001 using a J-1 visa authorized for nonimmigrant exchange visitors.[1] Although his J-1 visa authorized only a temporary stay until August 2001, Zhu overstayed his visa and remained in the United States without authorization. Zhu subsequently married Xiu Yun Lu, a fellow Chinese citizen he had met in the United States. In 2004, Zhu's wife unsuccessfully attempted to adjust her status to permanent legal resident, and an order of removal to China was entered against her. Likewise, Ming Hui Lu, Zhu's brother-in-law and housemate, applied to adjust his status, but his application was denied and an order of removal was entered against him.

          In 2011, federal agents commenced a sting operation in which Officer Mark Butler, who was operating undercover, posed as a private business owner offering to sell bona fide green cards which had been obtained illegally. Officer Butler, known to his contacts as "Andrew, " claimed that he had a relationship with American immigration officials through whom he could obtain green cards to sell, but Andrew indicated the price would be exorbitant-at least $25, 000 apiece, and sometimes even in excess of $60, 000. In this scheme, Andrew did not deal directly with individuals who wanted to obtain a green card without having to go through the proper legal channels; instead, he used "brokers" both to identify potential customers in their communities and to communicate with them. The brokers were also tasked with bringing their customers to Virginia for a face-to-face meeting with Andrew, which law enforcement agents secretly recorded.

         Zhu was brought into the green card scheme by Chang Yun Hui ("Dr. Hui")[2], an acquaintance from New York who was a broker for Andrew. Dr. Hui spoke very little English but, according to Officer Butler, he always had someone to translate at hand. Their primary form of communication, however, was via email. Andrew told Dr. Hui that the green cards were very expensive and explained that "they were real green cards obtained fraudulently, and that [they] could all go to jail if [they] didn't do things exactly the right way." J.A. 310. Officer Butler testified that he "wanted to have the price so high that people knew it was illegal." J.A. 310.

         In order to obtain one of the green cards offered by Andrew, would-be purchasers were required to provide certain documents to Dr. Hui, who would submit them to Andrew. Zhu gave Dr. Hui a copy of his Chinese passport, two passport photos, and a Form I-485 to adjust status, which was filled out in English and in Zhu's handwriting. Zhu's Form I-485 was incomplete and contained several misstatements, including, for example, Zhu's assertion that he was applying "with" his wife to adjust status. J.A. 477. Likewise, Lu, Zhu's brother-in-law, and Qiao Chan Zhang, Zhu's sister-in-law, sought to purchase green cards from Andrew and provided passports and Form I-485 applications to Dr. Hui. Like Zhu's Form I-485, the forms submitted by Lu and Zhang contained misstatements and omissions. Dr. Hui sent Zhu's paperwork, along with the documents provided by Lu and Zhang, to Andrew. Andrew then asked Dr. Hui to bring his customers from New York to Virginia purportedly to meet Andrew and to be fingerprinted for their green cards.

         In August 2011, Dr. Hui accompanied Zhu, Lu and Zhang, and 13 other customers to the Crystal City Hilton in Virginia. Dr. Hui brought his customers in small groups to a room rented by Andrew, which, unbeknownst to Dr. Hui and his customers, was wired for audio and video recording. During each meeting, Andrew explained to the customers that "this isn't an [i]mmigration office" and that "what we are doing is not legal. We can all go to jail." J.A. 728. Andrew "provided several warnings . . . to inform them that . . . this is dangerous, [and] illegal." J.A. 338. Nevertheless, Zhu permitted Andrew to fingerprint him.

         For several months after the meeting, Andrew and Dr. Hui exchanged emails about the status of the green cards. In April 2012, Andrew sent an email to Dr. Hui, suggesting that he "relax" and that he was "working on all the stuff you ask for. [T]hese people need to realize that this is illegal and doesn't [work] like it would if you go into the immigration office." J.A. 191. On April 24, Dr. Hui responded, listing customers, including Zhu, that still wanted to pay Andrew for green cards:

I got your email, please do your best to help them do what they want, I will tell them to wait for your good news. Thank you! . . . The other cards please follow this order to give them: mingxian chen, qiaochan zhang, baodi hu, yingjiao yang, meixia tian, kaiyang zhu, xiuqing wu, xuejiang chen, jinjian lin, jianling lin, jinshun zhu, yuewen zheng, wu lin. Please [reply]! Thank you!

DR. HUI J.A. 191 (emphasis added).

         Finally, in June 2012, Dr. Hui and his customers were told that the green cards were ready and that they could pick them up in exchange for cash at a hotel in Manassas, Virginia. Zhu, however, was not among the customers who appeared in Virginia to purchase a green card, and neither were his brother-in-law Lu or his sister-in-law Zhang. The customers who appeared in Virginia were arrested.

         Dr. Hui was also arrested and charged in connection with the immigration fraud conspiracy. He cooperated with law enforcement agents, submitting to a post-arrest interview about the green card scheme. Agents prepared a report summarizing the details of Dr. Hui's interview which reflected his clear understanding that the means by which he and his customers were obtaining green cards was illegal. According to the report, Dr. Hui explained that "'Andrew' told him (HUI) that he could get the green cards and that he (HUI) knew the process in obtaining green cards was illegal"; and Dr. Hui "indicated 'Andrew' did not mention about the clients' green cards being obtained through fraudulent means, but that he (Hui) understood the paperwork for the green cards was not legitimate." J.A. 757. Dr. Hui also "acknowledged that he knew it was an illegal process to mail-out the documents, " J.A. 759, and that he "knew that taking fingerprints was part of the process of obtaining the green card through fraud." J.A. 760.

         The report, however, contained a contradictory remark attributed to Dr. Hui. The report stated that Dr. Hui specifically identified four customers, including Zhu's in-laws Lu and Zhang, whom he told that they were obtaining the green cards legally:

HUI stated that he advised the [four] individuals that 'Andrew's' way of obtaining the green cards was legal and that the green cards are 'real' green cards. HUI stated that he knew the legal process to obtain green cards was by applying through Citizenship and Immigration Services (CIS). . . . HUI stated that he (HUI) did not think that the green card itself was fraudulent, but knew that the process in obtaining the green card was illegal. HUI stated ...

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