Argued: October 28, 2016
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)
Jessica Nicole Carmichael, HARRIS & CARMICHAEL, PLLC,
Alexandria, Virginia, for Appellant.
Christopher John Catizone, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
J. Boente, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
TRAXLER, DIAZ, and HARRIS, Circuit Judges.
Affirmed by published per curiam opinion.
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.
native of China, entered the United States in February 2001
using a J-1 visa authorized for nonimmigrant exchange
visitors. 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.
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.
brought into the green card scheme by Chang Yun Hui
("Dr. Hui"), 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.
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.
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.
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).
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.
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.
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
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 ...