13-2479(L) United States v. Tischler, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summa ry order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must se rve a copy of it on any party not represented by

counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17 th
day of July, two thousand fourteen.

PRESENT:

G UIDO C ALABRESI

, J OSÉ A. C ABRANES

, C HRISTOPHER F. D RONEY

, Circuit Judges.

_____________________________________

U NITED S TATES OF A MERICA

,

Appellee

,

v. Nos. 13-2479 (L), 13-2480 (Con), 13-2505 (Con), 13-2622 (Con)

H AROLD T ISCHLER

, AKA H ERSHY

, R EFAEL B RODJIK

, AKA R AFI

, N ATHAN S CHWARTZ

, G ULAY C IBIK

, AKA S EALED D EFENDANT 2,

Defendants-Appellants

,

A LI G OMAA

, ET AL

.,

Defendants

. *

_____________________________________

* The Clerk of Court is directed to amend the caption in th is case to conform to the lis ting of the parties above.FOR HAROLD TISCHLER: J EFFREY A R ABIN (Edward M. Rappaport, on the brief ), Brooklyn, NY.

FOR REFAEL BRODJIK: J EREMY G UTMAN , New York, NY.

FOR NATHAN SCHWARTZ: P ETER E. B RILL

, Brill Legal Group, P.C., New York, NY.

FOR GULAY CIBIK: Xavier R. Donaldson, Donaldson, Chilliest
LLP, New York, NY.

FOR UNITED STATES: J ANIS M. E CHENBERG (James J. Pastore, Brent S. Wible, on the brief ), Assistant United States Attorneys , for Preet Bharara, United States Attorney for the Southern District of New
York, New York, NY.

Appeal from judgments of conviction of the Un ited States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the District Court’s judgments are AFFIRMED

.

Defendants Harold Tischler, Refael Brodjik , Nathan Schwartz, and Gulay Cibik (jointly, “defendants”) appeal from judgments of convicti on entered on June 21, 2013, following a 13-day jury trial, for conspiracy to commit visa fraud and to make false statements, in violation of 18 U.S.C. § 1001, and making false statements to immigration authorities, in violation of 18 U.S.C. §§ 1546(a)

and 2. 1 We consider on appeal various constitution al and statutory challenges raised by each

defendant to his conviction and sentence. We assu me the parties’ familiarity with the underlying facts and the procedural history of the case, to which we refer only as necessary to explain our

decision to affirm.

BACKGROUND

The eight-count superseding indictment in this case arises out of a massive immigrationfraud scheme that operated out of the law office of Earl David (the “David Firm”). The indictment alleged that, over more than a decade, the David Firm submitted fraudulent immigration applications to United States Ci tizenship and Immigration Services (“USCIS”) and the United States Department of Labor (“DOL”). Th e scheme allegedly exploited rules that permitted an alien to seek lawful immigration status in the United St ates based on a certification from the DOL that a United States employer was prepared to hire (or “s ponsor”) the alien. In return for substantial fees,

the David Firm obtained thousands of such DO L certifications based on phony employment sponsorships and falsified documents.

1 Brodjik was also convicted of making false statements in connection with his own naturalization application, in violation of 18 U.S.C. §§ 1015(a) and 2.3 The defendants were alleged to have contributed to the scheme in various capacities. Brodjik and Cibik allegedly worked at the David Fi rm to assist in the preparation and filing of immigration applications for its clients, among othe r duties. Tischler and Schwartz were alleged to have acted as phony sponsors who falsely affirmed, in exchange for payment, that they had conducted a job search and had agreed to extend a job to a particular alien. On February 5, 2013, the jury returned its verdict, finding the defendan ts guilty on each of the counts in which they were charged. This timely appeal followed.

DISCUSSION

I. Sufficiency of the Evidence

Cibik and Tischler each contend that the ev idence at trial was insufficient to support the jury’s verdict. We review challenges to the suffici ency of the evidence “in the light most favorable to the government, crediting every inference that coul d have been drawn in the government’s favor, and deferring to the jury’s assessment of witness cr edibility, and its assessment of the weight of the

evidence.” United States v. Chavez , 549 F.3d 119, 124 (2d Cir. 2008) (internal quotation marks, citations, and alterations omitted). We m ust uphold the judgment of conviction if “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979).

Cibik argues on appeal that the there was no evidence that she had a specific intent to further the fraud, as opposed to an intent to do her job as a mere assistant to Earl David. The evidence, viewed in the light most favorable to the government, shows otherwise. Cibik admitted to law enforcement that she had falsified some aliens’ work histories to improve their chances of being approved for a green card, and that she knew some of the sponsors the David Firm had supplied for

its clients were fictitious. Several witnesses al so testified that Cibik had prepared fraudulent applications by using phony sponsors.

Tischler argues that there was insufficient ev idence to show that, as a sponsor, he did not have the intention to hire the sponsored alien. We disagree. The evidence showed that, in return for a fee from the David Firm of $400 per successf ul application, Tischler sponsored hundreds of aliens. Tischler confirmed in numerous telephone ca lls with the DOL that he in fact intended to hire these aliens, while expressing to a David Firm employee that he was nervous about these calls. Tischler’s companies ultimately did not, and were not financially able to, pay the aliens they were allegedly sponsoring.

In light of this evidence of fraud, among other evidence presented at trial, we accordingly reject Cibik and Tischler’s sufficiency challenges. 2

2 Tischler’s other argument on appeal is that he received ineffective assistance of counsel. However, we decline

to address Tischler’s claim at this time since “a motion br ought under [28 U.S.C.] § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.” Massaro v. United States , 538 U.S. 500, 504 (2003).4 II. Fair Trial

Brodjik claims that he was deprived of a fair trial based on certain comments and rulings the District Judge made during trial that disparaged Brodjik’s attorney and interfered with his right to confront witnesses and to make appropriate arguments at summation. Specifically, Brodjik objects to the Judge’s comments made (1) during the cross examination of a cooperating witness, and (2) in sustaining objections during Brodjik’s counsel’ s summation—specifically, comments relating to Brodjik’s wife’s prior job experience, the existence of a bakery that purportedly offered Brodjik’s wife a job, and Cibik’s statements to o fficers during an initial interview.

Reversal based on the conduct of a district ju dge is warranted only if, after reviewing the entire record, the reviewing court is convinced that “the jurors have been so impressed by the judge’s partiality that it affected their deliberations.” United States v. Tocco , 135 F.3d 116, 129 (2d Cir. 1998). The question is “whether the jury was so impressed with the judge’s partiality to the prosecution that it became a factor in determining th e defendant’s guilt or whether it appeared clear to the jury that the court believed the accused is gu ilty.” United States v. Amiel, 95 F.3d 135, 146 (2d Cir. 1996) (alterations, citation, and interna l quotation marks omitted). The District Judge’s comments did not rise to this level. They did not reflect the Judge’s views on the witness’s credibility or Brodjik’s guilt, nor did they improperly lim it counsel’s right to elicit testimony or make appropriate arguments during summation. Moreover , given the strength of the evidence against Brodjik as a whole, we cannot say th at he was denied a fair trial as a result of the Judge’s mild comments or relatively inconsequential rulings.

III. Confrontation Clause

Defendant Schwartz contends that the admission of certain DOL “case notes” with

notations that the case was associated with the Earl David investigation violated his right to

confrontation under the Sixth Amendment. In Crawford v. Washington , 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial.” Id. at 53-54. An item of evidence is “testimonial” if its “primary purpose . . . is to establish or prove pa st events potentially relevant to later criminal prosecution.” Davis v. Washington , 547 U.S. 813, 822 (2006). To assess a statement’s “primary purpose,” courts conduct an “objective analysis of . . . the statements and actions of the parties.” Michigan v. Bryant , 131 S. Ct. 1143, 1156 (2011). Business records are not testimonial when they are “created for the administration of an entity’s affa irs and not for the purpose of establishing or proving some fact at trial.” Melendez-Diaz v. Massachusetts , 557 U.S. 305, 324 (2009).

After review, we conclude that the primary pu rpose of the DOL records, which all parties agree were business records under Fed. R. Evid. 803(6) , was not for later use at trial. These records were created solely as part of the administrative ta sk of processing applications to ensure that only valid ones were approved. The references to th e Earl David investigation do not persuade us5 otherwise. The circumstances under which these case notes were prepared, viewed objectively, do

not establish that the primary purpose of a reasonable departme nt employee in the declarant’s position would have been to create a record for use at a later trial. See United States v. James , 712 F.3d 79, 94 (2d Cir. 2013). We thus conclude that admission of the DOL records did not violate the

Confrontation Clause.

IV. Sentencing

Finally, defendants Cibik and Brodjik challenge the procedural and substantive

reasonableness of their sentences. We review th ese claims of procedural unreasonableness for rigorous plain error because the defendants failed to raise their claims below. United States v. Cassesse

, 685 F.3d 186, 188 (2d Cir. 2012). We “will . . . set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible decisions.’” United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting United States v. Rigas , 490 F.3d 208, 238 (2d Cir. 2007)).

Cibik argues that her sentence was procedur ally unreasonably because the District Court failed to take into account all of her employme nt history, and did not expressly mention the § 3553(a) factors. Yet “a district judge need not robotically incant the factors prescribed by 18 U.S.C. § 3553(a).” United States v. Doe , 741 F.3d 359, 364 (2d Cir. 20 13). The Court here discussed the seriousness of Cibik’s role in the offense, as well as Cibik’s personal history and characteristics— namely, her employment history and lack of any crim inal record. Cibik argues her below-Guidelines sentence was substantively unreasonable because it failed to reflect her prior employment and scope of involvement in the conspiracy. We disagree in li ght of Cibik’s lengthy participation in, and profit from, a truly massive immigration fraud.

Brodjik contends that he should have receive d a minor-role adjustment under § 3B1.2 of the Guidelines, and that the Court failed to account for unwarranted sentencing disparities. As to the minor-role adjustment, the Court properly recogniz ed Brodjik’s role in allowing Earl David to perpetuate the fraud from Canada. With regard to the issue of disparity, Brodjik’s sentence was more than a year below the Guidelines range, and, in any event, the supposed comparators were not similarly situated. We also reject Brodjik’s ar gument that his below-Guidelines sentence was substantively unreasonably given the totality of Brodjik’s conduct.

CONCLUSION

We have considered all of defendants’ arguments on appeal and find them to be without merit. Accordingly, we AFFIRM the June 21, 2013 judgments of the District Court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk