The opinion of the court was delivered by: Johnson, Senior District Judge
Defendant Thomas Archer ("Archer"), an attorney, was charged in a four count superseding indictment with conspiracy to commit visa fraud (Count One) and with three counts of visa fraud (Counts Two, Four and Five).*fn1 On March 15, 2010, the case proceeded to trial and on March 24, 2010, he was convicted of all counts charged. (His co-defendant Rukhsana Rafique ("Rafique") was convicted of three of the four counts. She does not join in this motion.) Archer now moves the Court for a Judgment of Acquittal pursuant to Federal Rule of Criminal Procedure 29(c) ("Rule 29"), or, alternatively, a new trial, pursuant to Federal Rule of Criminal Procedure 33 ("Rule 33"). The following is a brief summary of the evidence adduced at trial.
The Department of Homeland Security ("DHS") CSS/Newman ("LULAC" or the "Program") program permitted certain undocumented residents of the United States to gain legal status. To be eligible, an applicant had to meet certain requirements. Specifically, the applicant had to have been present in the United States illegally as of January 1, 1982, and both applied for and rejected from a previous program on account of having left the United States in the interim. Two ancillary benefits accompanied the filing of a LULAC application: the applicant could legally work in the United States, and could travel in and out of the United States while the application was pending.
Archer operated a law practice in Jackson Heights, New York (which he later moved to Jamaica, New York). Rafique worked as his assistant at his office. On behalf of clients, he filed between 230 and 240 applications (the "Applications" or "I-687s") for the LULAC program, none of which were granted. One hundred sixty-eight Applications indicated that the applicant entered the United States within just a year of the January 1, 1982 cut-off date. Many Applications were accompanied by a template affidavit filled out in part by the applicant and in part by an affiant who claimed to have knowledge of the applicant's dates of entry and departure from the United States. Information in the fill-in-the-blank affidavit that tended to be filled out in advance included the applicant's date of arrival in the United States and any periods of travel- dates critical to an applicant's eligibility under the Program. (See, e.g.,Gov't Opp. to Def. Mot. Ex. C at 18.)
Gulistan NLN*fn2 ("Gulistan"), one of Archer's clients, testified that he paid $1,500 to Archer to file an I-687 on his behalf. Gulistan, a native of Pakistan, is illiterate with limited English verbal skills. Gulistan was instructed by Archer's co-defendant Rafique to sign the I-687, though it was not translated for him. The Application contained false information, all of which, if true, would have fulfilled criteria of LULAC. For example, while Gulistan testified that he came to the United States once in 1981 for a short stay and returned in 2000 with a visa, his I-687 states that he last arrived in August 1999 without a visa. The former entry date and type fails to meets LULAC's requirements. The latter fulfills LULAC. Also, Gulistan fathered seven children in Pakistan ranging between 10 and 25 years old, in other words, as late as 2000. To give the impression that he was instead living in the United States at that time and periodically going to Pakistan to have children, his I-687 lists seven short visits between 1988 and 1999 that Gulistan denied having taken. Indeed, Gulistan testified that he was living in Pakistan almost continually during that time, and made only few trips to Russia.
Archer signed Gulistan's Application and filed a notice of appearance on behalf of Gulistan to DHS. Gulistan worked and traveled to Pakistan while his application was pending.
When contacted by DHS for an interview in furtherance of his Application, Gulistan took DHS' letter to Archer, who wrote to DHS and requested an adjournment based on a scheduling conflict. Despite his limited English skills, Gulistan attended the rescheduled interview without Archer. Gulistan testified that he "showed the documents regarding my children [in Pakistan]" and that he was questioned about them.
Guliastan was subsequently questioned by Eric Silverman of Immigration and Customs Enforcement ("ICE"), the enforcement branch of DHS, about some of the false statements on his I-687. He told Agent Silverman that the information in his I-687 was wrong and agreed to meet with Archer while wearing a wire. During the tape-recorded meeting between Gulistan, Archer and Rafique, Archer admonished him for attending the meeting at DHS and advised him to move from his current residence to avoid discovery by the government:
Archer: What did the immigration officer tell you when you at the interview?
Archer: Did we give him any advice about the interview. . .did we tell him not to go . . .did we try to get him to withdraw it?
Rafique: Yeah. . . actually he wanted to go . . . everyone we were telling not to go. . .
Archer: At that point. . . yeah, because they were ...