[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-12338

Non-Argument Calendar

________________________

D.C. Docket No. 0:17-cr-60137-KMW-3

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

DARIA ERSHOVA, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(December 3, 2019)

Before WILSON, MARTIN and BLACK, Circuit Judges.

PER CURIAM: 

Case: 18-12338 Date Filed: 12/03/2019 Page: 1 of 13 
2

Daria Ershova appeals her convictions for four counts of making a false 

statement in a passport application, in violation of 18 U.S.C. § 1542. Ershova 

asserts the district court abused its discretion in denying her motion to dismiss the 

indictment because her action, as a notary, of signing a form necessary for a parent 

to apply for a passport for a minor under the age of 16 was not a “statement” 

within the meaning of § 1542. She also contends the district court erred in denying 

her motion for a judgment of acquittal for the same reason. After review, we 

affirm her convictions.

I. BACKGROUND

A grand jury indicted Ershova and two codefendants in a 15-count 

indictment. As relevant to this appeal, Ershova was indicted for making false 

statements in passport applications, in violation of 18 U.S.C. § 1542. Section 1542 

provides, in pertinent part:

Whoever willfully and knowingly makes any false statement in an 

application for passport with intent to induce or secure the issuance of 

a passport under the authority of the United States, either for his own 

use or the use of another, contrary to the laws regulating the issuance 

of passports or the rules prescribed pursuant to such laws . . . [s]hall 

be fined [and/or imprisoned].

18 U.S.C. § 1542. Specifically, the indictment alleged in the substantive counts 

that Ershova:

did willfully and knowingly make a false statement in an application 

for a passport with the intent to induce and secure the issuance of a 

passport under the authority of the United States for the use of 

Case: 18-12338 Date Filed: 12/03/2019 Page: 2 of 13 
3

another, contrary to the laws regulating the issuance of passports and 

the rules prescribed pursuant to such laws, in that she represented that 

she had personally witnessed a non-applying parent sign the DS-3053 

Statement of Consent, when in truth and in fact, and as she then and 

there well knew, she had not personally witnessed a non-applying 

parent sign the DS-3053 Statement of Consent in violation of Title 18, 

United States Code, Sections 1542 and 2.

In applying for a United States passport for a minor child where one parent is not 

available, a notarized form can be used as the Statement of Consent from the 

unavailable or non-applying parent. See 22 C.F.R. § 51.28(a)(3). The Government 

alleged that on some of the dates Ershova notarized fathers’ signatures on the 

consent forms, the fathers had already returned to Russia, and on other forms, there 

was no record the fathers had lawfully entered the United States.

Ershova moved to dismiss the indictment. Relevant to this appeal, she 

argued there was no precedent in which a notary had been charged with violating 

§ 1542. She contended a notarization was not a “statement” as used in § 1542, and 

that her conduct therefore fell outside the scope of the statute.

Ershova attached a copy of a blank Form DS-3053 to her motion. The 

instructions warn that false statements made “on passport applications, including 

affidavits or other supporting documents submitted therewith” are punishable 

under various statutes, including § 1542. The form itself has four sections for a 

parent to provide information and state they consent to the child’s application for a 

U.S. passport. Following these fields, the form states: “Stop! You must sign this 

Case: 18-12338 Date Filed: 12/03/2019 Page: 3 of 13 
4

form in front of a notary.” It then has a signature line saying, “I declare under 

penalty of perjury that all statements made in this supporting document are true 

and correct.” In the fifth section, titled “Statement of Consent Notarization,” the 

form provides a line for the notary to sign and certify, among other things, that she 

had personally witnessed the parent sign the document and that the notary had 

personally viewed the parent’s identification document.

Ershova also attached a copy of a blank Form DS-11. In a section providing 

requirements for minors’ passports, the form instructed that, when only one parent 

applies for the passport, that parent also had to submit the other parent’s “notarized 

written statement or DS-3053 . . . . The notarized statement . . . must be signed and 

notarized on the same day . . . .” The form also provided a warning: “False 

statements made knowingly and willfully in passport applications, including 

affidavits or other documents submitted to support this application, are punishable 

by fine and/or imprisonment under U.S. law including . . . 18 U.S.C. 1542 . . . .”

The district court held a hearing on the motion to dismiss. The court 

acknowledged that no case had squarely addressed the issue, but noted the form 

warned against making false statements. The court stated it considered the form to 

be a “supporting document,” but that it did not consider Ershova’s argument to be 

an appropriate inquiry at the motion to dismiss stage. The court stated the 

language of the form notified whoever was filling out the form or was involved in 

Case: 18-12338 Date Filed: 12/03/2019 Page: 4 of 13 
5

the documentation in support of the passport application that a false statement 

could lead to punishment. However, the court could not determine at the motion to 

dismiss stage whether Ershova was merely negligent as opposed to criminally 

liable. The court found that, based on the indictment and the text and use of the 

Form DS-3053, a notarization was a “statement.” The court stated the form did not 

exempt notaries from its warning, and accordingly, denied the motion to dismiss. 

The case then went to trial, and one of Ershova’s codefendants, Vladimir 

Nevidomy, testified against Ershova. Nevidomy testified that he was the co-owner 

of a company called Status Med assistance. Status Med was a concierge business 

that helped Russian medical tourists seeking to give birth in the United States by, 

inter alia, preparing documents for patients’ babies, and it did business under the 

name Sunny Medical Center. After a client gave birth, the business would prepare

documents, including applications for United States passports for the baby. 

Ershova was one of the managers for Sunny Medical Center, and she worked the 

front desk and helped prepare documents. For a baby’s passport application, both 

parents had to be present, but a father could send a notarized consent form. If a 

father could not fill out and notarize the form himself, either the mother or a Status 

Med employee would forge his signature and then notarize the form. Nevidomy, 

Ershova, and their codefendant Vera Muzyka first attempted to trace the father’s 

signature, and then attempted practicing on multiple forms and picking the one that 

Case: 18-12338 Date Filed: 12/03/2019 Page: 5 of 13 
6

looked best. They had multiple conversations about forging the fathers’ signatures, 

including how they needed to be careful because the government was closely 

checking consent forms. 

On the second day of trial, Aura Arauz-Figueroa, a fraud prevention 

manager with the United States Department of State, testified that, for a passport 

application for a minor, a Form DS-3053 had to be signed in front of the notary, 

rather than before or after. She further testified that a child is not entitled to a 

United States passport if the consent of a parent is falsely notarized. Next, 

Caroline Schwab, the Notary Coordinator for the State of Florida, testified that the 

course Ershova completed to become a notary covered personal physical presence

for notarization and that the document must be notarized on the same day the 

person signed it. Narciso Fernandez, an enforcement officer with Customs and 

Border Protection, testified that Ershova signed and dated seven Form DS-3053s 

when the fathers were not in the United States, including two fathers who had not 

entered the United States at all by those dates. 

The Government next called Evgenii Romaschenko, whose alleged signature 

as a parent consenting to his minor child’s application for a United States passport 

had been notarized by Ershova. Although Romaschenko previously had a sexual 

relationship with the birth mother, Olga Dynyak, Romaschenko had no knowledge 

of whether the baby she gave birth to was his, and had not accompanied Dynyak to 

Case: 18-12338 Date Filed: 12/03/2019 Page: 6 of 13 
7

the United States for her to give birth to the child. Romaschenko had never met 

Ershova, and he never signed a consent form authorizing Dynyak to apply for a 

United States passport on behalf of the baby. 

After calling other witnesses, the Government rested, and Ershova moved 

for judgment of acquittal. In relevant part, she renewed her argument that her 

notarization of the form was not a “statement” because a misstatement in the jurat 

was not the punishment intention of the statute. The court denied the judgment of 

acquittal, finding the instructions on Form DS-3053 warned that false statements 

made in the application would be punishable by law. The court also found a jury 

could reasonably determine Ershova filled out the forms based on the fact the 

forms contained her signature and notary stamp. Ershova did not present evidence. 

Ershova was convicted on four of the six counts of making a false statement in a 

passport application in violation of 18 U.S.C. § 1542. The jury acquitted Ershova 

of a conspiracy count and the two remaining counts of false statement in a passport 

application. 

II. DISCUSSION

A. Motion to Dismiss

In United States v. Critzer, we reversed the dismissal of an indictment after 

the district court concluded that, even taking the facts proffered by the government 

as constituting the elements of the offense as true, the defendant’s actions did not 

Case: 18-12338 Date Filed: 12/03/2019 Page: 7 of 13 
8

constitute a violation of federal law. 951 F.2d 306, 307-08 (11th Cir. 1992). We 

noted “[t]here is no summary judgment procedure in criminal cases.” Id. at 307. 

Rather, we held “[t]he sufficiency of a criminal indictment is determined from its 

face,” and an indictment is sufficient if it follows the language of the statute and 

sets forth the essential elements of the crime. Id. at 307-08.

The district court did not abuse its discretion in denying Ershova’s motion to 

dismiss the indictment because the indictment tracked the language of the statute 

and charged the essential elements of the offense. See id.; United States v. Waldon, 

363 F.3d 1103, 1108 (11th Cir. 2004) (reviewing the denial of a motion to dismiss 

the indictment for an abuse of discretion). Although Ershova argues her conduct 

did not constitute a violation of § 1542 in that her notarization was not a 

“statement,” that argument is outside the scope of a motion to dismiss. See Critzer, 

951 F.2d at 307. Rather, because her argument does not go to the sufficiency of the 

indictment but to the sufficiency of the evidence and what the Government was 

required to prove under the statute, we address it below in the context of her 

motion for a judgment of acquittal. See Yates v. United States, 135 S. Ct. 1074,

1080-81 (holding, in the context of a motion for a judgment of acquittal, that a fish 

was not a “tangible object” within the meaning of 18 U.S.C. § 1519).

Case: 18-12338 Date Filed: 12/03/2019 Page: 8 of 13 
9

B. Motion for Judgment of Acquittal

Section 1542 criminalizes “willfully and knowingly mak[ing] any false 

statement in an application for passport [to procure a passport], either for his own 

use or the use of another, contrary to the laws regulating the issuance of passports 

or the rules prescribed pursuant to such laws.” 18 U.S.C. § 1542. The false 

statement need not be material. United States v. Ramos, 725 F.2d 1322, 1323 (11th 

Cir. 1984). “[A]ny false statement is sufficient” if it is made “with the intent to 

induce or secure . . . a passport.” Id. at 1323-24 (quotations omitted) (alteration in 

original). “The crime is complete when one makes a statement one knows is 

untrue to procure a passport.” United States v. O’Bryant, 775 F.2d 1528, 1535 

(11th Cir. 1985). “Good or bad motives are irrelevant.” Id.

Similarly, “[a] person providing false information as part of a passport 

application, whether contemporaneously with the form or at any other time, is 

subject to prosecution under applicable Federal criminal statutes.” 22 C.F.R. 

§ 51.20(b). Regulations define “passport application” as “the application form for 

a United States passport . . . and all documents, photographs, and statements 

submitted with the form or thereafter in support of the application.” Id. § 51.1. 

Where only one parent seeks to apply for a U.S. passport for a child under the age 

of 16, that parent may do so only if she provides either (1) evidence that she is the 

sole parent or has sole custody of the child; or (2) “[a] notarized written statement 

Case: 18-12338 Date Filed: 12/03/2019 Page: 9 of 13 
10

or affidavit from the non-applying parent . . . consenting to the issuance of the 

passport.” Id. § 51.28(a)(3).

The district court did not err in denying the motion for judgment of acquittal. 

United States v. Evans, 473 F.3d 1115, 1118 (11th Cir. 2006) (reviewing the denial 

of a motion for judgment of acquittal de novo). First, to the extent Ershova argues 

that § 1542 applies only to applicants or affiants, the statute does not contain any 

such limiting language. Rather, the statute provides it applies to “[w]hoever” 

makes a false statement. See 18 U.S.C. § 1542. Further, to the extent Ershova 

argues that Form DS-3053 was not part of the “passport application,” the passport 

application regulations state the passport application includes supporting 

documents, see 22 C.F.R. § 51.1, and the form has to be submitted when one parent 

is applying for a passport for a minor child, see id. § 51.28(a)(3). Accordingly, 

Form DS-3053 is part of the “passport application.”

Ershova argues her notarization was not a “statement.” When interpreting a 

statute, we assume that Congress used words as they are ordinarily understood, and 

we construe the statute so that each provision is given full effect. See United States 

v. McLymont, 45 F.3d 400, 401 (11th Cir. 1995). The plain meaning controls unless 

the statute “is ambiguous or leads to absurd results.” Id. “Statement” is defined 

as “[a] verbal assertion or non-verbal conduct intended as an assertion,” and it 

defines “false statement” as “[a]n untrue statement knowingly made with the intent 

Case: 18-12338 Date Filed: 12/03/2019 Page: 10 of 13 
11

to mislead.” Statement, False Statement, Black’s Law Dictionary (11th ed. 2019). 

An “assertion,” in turn, is defined as “a person’s speaking, writing, acting, or 

failing to act with the intent of expressing a fact or opinion; the act or an instance 

of engaging incommunicative behavior.” Assertion, Black’s Law Dictionary (11th 

ed. 2019).

Looking at the language used in Form DS-3053, Ershova’s signature was her 

certification of various facts, including that she witnessed the fathers sign the form. 

Because, by signing the document, she intended to express the facts enumerated in 

the form, we conclude her signature constitutes a “statement” within the ordinary 

meaning of the term. 

Ershova asserts her statement was not “contrary to the laws regulating the 

issuance of passports or the rules prescribed pursuant to such laws.” First, by 

making a false statement in a passport application, Ershova’s actions were directly 

contrary to 22 C.F.R. § 51.20, which prohibits making false statements in an 

application. Second, by falsely notarizing consent forms, Ershova induced the 

issuance of passports where the applications did not comply with 22 C.F.R. 

§ 51.28(a)(3). Consequently, her notarization of the consent forms was contrary to 

the laws and regulations concerning the issuance of passports.

Because, by notarizing the consent forms, Ershova falsely asserted she had 

witnessed the fathers sign them (in violation of one federal regulation) in order to 

Case: 18-12338 Date Filed: 12/03/2019 Page: 11 of 13 
12

induce the issuance of a passport even though the application did not meet the 

requirements of another federal regulation, her conduct fell within § 1542. The 

fact that other statutes also prohibited Ershova’s conduct does not create ambiguity 

because § 1542 clearly defined the prohibited conduct and the punishments for 

violating the statute. See United States v. Batchelder, 442 U.S. 114, 123-24 (1979) 

(stating two statutes may validly provide different punishments for identical 

conduct so long as they clearly define the prohibited conduct and the punishments 

authorized, and where an act violates more than one criminal statute, the 

government has the discretion to prosecute under either so long as it does not 

discriminate against a class of defendants). Further, because the statute is 

unambiguous as to its prohibition on Ershova’s conduct, this Court need not apply 

the rule of lenity. See United States v. Trout, 68 F.3d 1276, 1280 (11th Cir. 1995) 

(explaining where a criminal statute is ambiguous as to whether it applies to certain 

conduct, the rule of lenity requires it be construed narrowly in favor of the 

defendant). 

As to the parties’ arguments regarding how Form DS-3053 is structured, 

because the text of § 1542 unambiguously applied to Ershova’s conduct, this 

Court’s inquiry stops with the statutory text. See BedRoc Ltd., LLC v. United 

States, 541 U.S. 176, 183 (2004) (“[O]ur inquiry begins with the statutory text, and 

ends there as well if the text is unambiguous.”). And although notaries have not 

Case: 18-12338 Date Filed: 12/03/2019 Page: 12 of 13 
13

previously been prosecuted under § 1542, the statute, standing alone, was 

sufficiently clear to give Ershova fair warning that falsely certifying she had 

witnessed the fathers sign the forms was criminal, so due process does not prohibit 

her prosecution under that statute. See United States v. Lanier, 520 U.S. 259, 267

(1997) (explaining “the touchstone [for fair warning] is whether the statute, either 

standing alone or as construed, made it reasonably clear at the relevant time that 

the defendant’s conduct was criminal”).

For these reasons, the district court did not err in denying Ershova’s motion 

for judgment of acquittal and we affirm her convictions. 

AFFIRMED.

Case: 18-12338 Date Filed: 12/03/2019 Page: 13 of 13