United States v. Gallagher

90 F.4th 182

UNITED STATES of America, Plaintiff - Appellee, v. Laura Anne GALLAGHER, Defendant - Appellant.

United States of America, Plaintiff - Appellee, v. Audrey Nikolayevich Kalugin, Defendant - Appellant.

No. 22-4128

No. 22-4129

United States Court of Appeals, Fourth Circuit

Argued: September 22, 2023

Decided: January 3, 2024

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, Senior U.S. District Judge. (1:21-cr-00043-TSE-1; 1:21-cr-00043-TSE-2)

ARGUED: Courtney Roberts Forrest, KAISERDILLON PLLC, Washington, D.C.; Hani Bashour, CLEARY GOTTLIEB STEEN & HAMILTON LLP, Washington, D.C, for Appellants. Raizza Kristine Ty, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Ann Mason Rigby, Assistant Federal Public Defender, Alexandria, Virginia, Elizabeth A. Mullin, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Washington, D.C.; Matthew D. Slater, Maia Livengood, CLEARY GOTTLIEB STEEN & HAMILTON LLP, Washington, D.C., for Appellant Andrey Kalugin. Jessica D. Aber, United States Attorney, Richmond, Virginia, Morris R. Parker, Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before WYNN, QUATTLEBAUM, and HEYTENS, Circuit Judges.

Vacated and remanded by published opinion. Judge Heytens wrote the opinion, in which Judge Wynn and Judge Quattlebaum joined.

TOBY HEYTENS, Circuit Judge:

A foreign service officer and a noncitizen were convicted of conspiring to fraudulently obtain U.S. citizenship for the noncitizen and making false statements in their efforts to do so. We conclude the evidence was sufficient to support each defendant's convictions and thus reject the argument they are entitled to a judgment of acquittal. But because the jury was allowed to consider a legally inadequate theory on one count and an erroneous evidentiary ruling prevented the defendants from offering certain evidence on the remaining two counts, we vacate the convictions and remand for further proceedings.

I.

Andrey Kalugin and Laura Gallagher met in 2013, when they were students at the University of California, Davis School of Law. Kalugin was in the United States on a student visa; Gallagher is an American citizen.

The nature of Kalugin and Gallagher's relationship and how it evolved was a major issue at trial. What is undisputed, however, is that they married in June 2015, just over a year after graduating from law school and a month and a half before Kalugin's student visa was set to expire. Soon after, they signed and submitted government forms to get Kalugin a green card based on his status as Gallagher's spouse.

In April 2016, Kalugin and Gallagher moved from California to Virginia, where Gallagher was training to become a foreign service officer. By the end of May, however, Kalugin had left Virginia, returning to California and obtaining a new California driver's license that listed a California address.

In July 2016, Kalugin flew back to Virginia (with a ticket Gallagher paid for) for a green card interview with an immigration officer. Kalugin was granted conditional residency the same day, and flew back to California two days later.

The two then set about having Kalugin naturalized as a citizen. Because of Gallagher's job, Kalugin was eligible for expedited naturalization under 8 U.S.C. § 1430(b), which waives the required residency period for noncitizens whose U.S. citizen spouses are "in the employment of the Government of the United States" and "regularly stationed abroad." Gallagher filled out the required document (called a Form N-400) for Kalugin, had Kalugin sign it in August 2016, and submitted the form in September 2016.

In December 2016, Gallagher moved to Mexico to begin her first tour as a foreign service officer. Kalugin remained in California. Fourteen months passed with little action on Kalugin's naturalization application. Then, in February 2018, Kalugin flew to Virginia for an interview with an immigration officer. After that interview, Kalugin took the citizenship oath and was issued a naturalization certificate. Kalugin immediately applied for and soon obtained a United States passport.

Kalugin then set off for Mexico himself, but stayed less than a month. About three months after Kalugin left Mexico for good, Gallagher filed for divorce in California, listing the separation date as May 1, 2016 (more than two years earlier). The divorce was finalized soon after.

In 2019, a foreign service officer filed a complaint about Gallagher's conduct during Kalugin's naturalization process. That complaint led to an investigation by the State Department's diplomatic security service.

In 2021, a federal grand jury charged Kalugin and Gallagher with three felonies. Count 1 accused them of conspiring to obtain naturalization and proof of U.S. citizenship for Kalugin by making false statements and submitting fraudulent documents, thus violating 18 U.S.C. § 371. The other two counts charged violations of 18 U.S.C. § 1425(a), which makes it a crime to "knowingly procure[ ]" either "the naturalization of any person, or documentary or other evidence of naturalization or of citizenship" "contrary to law." Count 2 accused Kalugin and Gallagher of doing so by making four "materially false, fictitious, and fraudulent statements and representations" on the Form N-400. Count 3 asserted another Section 1425(a) violation based on two other false statements Kalugin made during his final naturalization interview in 2018.

Kalugin and Gallagher pleaded not guilty and were tried together before a jury. The jury found them guilty on all counts. The district court sentenced Kalugin to six months of imprisonment followed by two years of supervised release, and Gallagher to 15 months of imprisonment followed by two years of supervised release. Kalugin's Section 1425(a) convictions also led to the mandatory revocation of his citizenship. See 8 U.S.C. § 1451(e).

II.

We begin with the defendants' challenges to the sufficiency of the evidence. If they prevail on this point, none of the other issues matter. Under the Double Jeopardy Clause, the government gets one—but only one—"fair opportunity to offer whatever proof it [can] assemble." Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). If Kalugin and Gallagher are right the evidence failed as a matter of law, they are entitled to a judgment of acquittal without further proceedings. See id. at 18, 98 S.Ct. 2141.

A.

Before diving into the sufficiency challenges, we must define the relevant pool of evidence. Kalugin makes two tries at convincing us we must disregard some evidence from the full trial record. Neither succeeds.

First, Kalugin asserts we should not consider various statements Gallagher made that the government introduced in its case in chief because those statements were inadmissible hearsay when offered against him. This Court has rejected similar arguments, holding that a reviewing court considering a sufficiency challenge must consider "all the evidence considered by the jury, both admissible and inadmissible." United States v. Simpson, 910 F.2d 154, 159 (4th Cir. 1990); accord Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). We see no basis for a different result here.¹

Second, Kalugin asks us to limit ourselves to evidence presented during the government's case in chief and ignore any evidence he or Gallagher presented after their mid-trial motion for judgment of acquittal. As Kalugin admits, the usual rule is the opposite—that is, where a criminal defendant presents evidence after losing a mid-trial motion for judgment of acquittal, the mid-trial motion is deemed withdrawn and a reviewing court considers both sides' proof when faced with a post-trial sufficiency challenge. See United States v. Heller, 527 F.2d 1173, 1173 (4th Cir. 1975) (per curiam). But Kalugin insists the normal rules do not apply when—as here—multiple defendants are tried together. In that situation, Kalugin asserts, we may not consider any evidence offered by any defendant.

To be sure, the D.C. Circuit has adopted a rule that looks something like the one Kalugin proposes. That court refuses to consider "co-defendant testimony in evaluating the sufficiency of the evidence against the defendant," even if the defendant opted to present a defense. United States v. Lawrence, 471 F.3d 135, 140-41 (D.C. Cir. 2006) (discussing Cephus v. United States, 324 F.2d 893 (D.C. Cir. 1963), and United States v. Don Johnson, 952 F.2d 1407, 1411 (D.C. Cir. 1992)). According to the D.C. Circuit's most recent decision addressing the issue—itself now more than 17 years old—this rule derives from a two-step analysis. First, a defendant who is "forced or coerced into presenting a case in response to a co-defendant's testimony incriminating him" should not be deemed to have waived a mid-trial challenge to the sufficiency of the government's evidence standing alone. Id. at 140 (quotation marks removed). Second, because it often will be difficult for a reviewing court to "determine whether a co-defendant's testimony motivated the defendant to put on a defense," courts should refuse to consider such testimony in all circumstances. Id. at 140-41. Thus, the D.C. Circuit's prophylactic categorical rule.

As Kalugin acknowledges, this Court has never adopted such a rule. Indeed, Kalugin points to no other court that has adopted the D.C. Circuit's absolutist approach, and even a panel of that court has expressed grave doubts. See Lawrence, 471 F.3d at 140-41 (describing various problems with the rule and saying the panel only adheres to it because "[o]ne three-judge panel . . . does not have the authority to overrule another").

We do not foreclose the possibility that some criminal defendants could establish that the sole reason they presented evidence is because a co-defe...