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U.S. v. JACQUES DESSANGE

June 28, 2000

UNITED STATES OF AMERICA,
V.
JACQUES DESSANGE, INC. AND HOWARD DEUTSCH, DEFENDANTS.



The opinion of the court was delivered by: Cote, District Judge.

OPINION AND ORDER

Defendant Jacques Dessange, Inc. ("Dessange") moves for a judgment of acquittal or a new trial following its conviction by a jury on April 6, 2000. Dessange was convicted of one count of conspiring with, among others, co-defendant Howard Deutsch, its attorney on immigration matters, to submit false visa applications to the Immigration & Naturalization Service ("INS"), and of thirty-one counts of submitting false visa applications. For the following reasons, Dessange's post-trial motions are denied.

BACKGROUND

Dessange is a New York corporation and wholly-owned subsidiary of a French company, Franklin Holding SA ("Franklin Holding"), which owns or licenses approximately 600 hair salons around the world. Prior to 1994, Dessange was Franklin Holding's only authorized American salon. Franklin Holding decided to expand its American operations and sent Yves Anthonioz ("Anthonioz") to Dessange in 1994, to oversee the expansion. Anthonioz, who was made the Vice President of Dessange, hoped to open as many as 100 salons in the United States by franchising the salons under the name "Jacques Dessange" in return for a licensing fee. Franklin Holding and Anthonioz formed a company named French Hair Style and Beauty Corporation ("FHSBC") to enter into franchise agreements with the licensees, to receive the licensing fees from these new salons, and to be the entity through which Jacques Dessange branded hair products would be sold in the United States.

Franklin Holding and Anthonioz understood that the franchisees would require hair stylists trained in the "Jacques Dessange method" to staff their salons, and Anthonioz promised prospective franchisees a steady supply of such foreign trained stylists. Anthonioz contacted Dessange's immigration attorney, Howard Deutsch, explained the need to bring foreign stylists into this country to work at the franchisees, and asked for his assistance. Between 1994 and 1997, Deutsch and his partner Libby Salberg helped scores of foreign stylists to enter the United States on L-1A visas to work at the franchisees, or in a few instances at Dessange itself. The L-1A visa allows for an intracompany transfer of a managerial or executive level employee from a company abroad to its affiliate or subsidiary in this country. The application for an L-1A visa is presented to the INS by the domestic employer, and in each instance, Anthonioz signed the visa application in his capacity as Vice President of Dessange.

The substantive counts on which Dessange was convicted reflect thirty-one separate visa applications, each of which contained one or more false statements. Almost all of the fabricated applications falsely represented that the employee would be working as a managerial employee at Dessange in New York. Dessange, and not the franchisees, was listed as the domestic employer since franchisees are not permitted to bring foreign employees into this country under the L-1A visa program; using the terminology in the regulations, a franchisee relationship with a foreign employer is not a "qualifying" relationship.

Starting in 1995, the INS periodically inquired about the visa applications submitted by Dessange. In response, and to support other applications, Anthonioz supplied Libby Salberg with false documentation, including organizational charts for Dessange showing multiple layers of managerial staff which had little or no relationship to reality. The jury was entitled to find, based not only on Anthonioz's admissions to the jury but also on substantial circumstantial evidence, that Anthonioz knew at the time he signed each L-1A visa application enumerated in the indictment's substantive counts that it contained false information.

In October 1997, the INS conducted a raid on a Jacques Dessange salon in Dallas, Texas; a raid on a Chicago, Illinois salon occurred in July 1999. During the investigation by the United States Attorney's Office which followed the Texas raid, Anthonioz initially lied to government investigators, but later decided to cooperate with the investigation. He returned to the United States from France for the trial and testified under a cooperation agreement that provided him with immunity from prosecution.

Dessange has first moved for a judgment of acquittal on the grounds that the evidence was insufficient to sustain the guilty verdicts against Dessange on all but one of the substantive counts on which it was convicted:*fn1 with respect to the conspiracy count, Dessange contends that there was insufficient evidence that Anthonioz entered into an agreement with another person to commit immigration fraud; with respect to all but one of the substantive false visa application counts, Dessange contends that there was insufficient evidence that Anthonioz intended to benefit Dessange, as opposed to himself, FHSBC, or the franchisees, when he submitted the false visa application to the INS. Next, Dessange moves for a judgment of acquittal or in the alternative for a new trial on the grounds that the charge on the substantive counts impermissibly amended the indictment by not including (1) the element of willfulness, or (2) an aiding and abetting charge. In the absence of a charge on willfulness, either as an element of the substantive crime or of an aiding and abetting charge, Dessange lost its right to its defense in connection with the substantive counts that it had relied on the advice of counsel. This defense was, however, included in the charge on the conspiracy count.

DISCUSSION

A defendant seeking to overturn a conviction based upon insufficiency of the evidence bears a "`heavy burden.'" United States v. Walsh, 194 F.3d 37, 51 (2d Cir. 1999) (quoting United States v. Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995)). This Court must view the evidence in the light most favorable to the Government and draw all reasonable inferences in its favor, see United States v. Autuori, 212 F.3d 105, 117 (2d Cir. 2000), deferring

to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence.

United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998). The conviction may be overturned "only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. See also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This deferential standard 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 conspiracy can be laid bare in court with the precision of a surgeon's scalpel.

United States v. Pitre, 960 F.2d 1112, 1121 (2d Cir. 1992) (internal quotations and citations omitted). Thus,

[a] conviction for conspiracy must be upheld if there was evidence from which the jury could reasonably have inferred that the defendant knew of the conspiracy charged in the indictment and that he associated himself with the venture in some fashion, participated in it as something ...

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