14-2994-cr
United States v. Tsirlina

                                    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 summary 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 serve 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 7th
day of July, two thousand fifteen.

PRESENT:

           JOSÉ A. CABRANES,
           ROSEMARY S. POOLER,
           DENNY CHIN,
                                Circuit Judges.
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UNITED STATES OF AMERICA,
                      Appellee,

                     -v.-                                                                  No. 14-2994-cr

ALEKSANDR SHUSTERMAN AKA Alex Shusterman, ANDREI
KURAKIN, STEVEN CHER AKA Valdislev Cherednichhenko,
             Defendants,

ANNA TSIRLINA,
                      Defendant-Appellant.
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FOR DEFENDANT-APPELLANT:                                                  Aaron M. Goldsmith, Law Office of Aaron
                                                                          M. Goldsmith, PC, New York, New York.

FOR APPELLEE:                                                             David C. James, Lauren Howard Elbert,
                                                                          Samuel P. Nitze, Assistant United States
                                                                          Attorneys, for Kelly T. Currie, Acting United


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                                                       States Attorney for the Eastern District of
                                                       New York, Brooklyn, New York.

        Appeal from a November 26, 2014 amended judgment of the United States District Court
for the Eastern District of New York (Raymond J. Dearie, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the November 26, 2014 amended judgment of the District Court is
AFFIRMED.

        Defendant Anna Tsirlina appeals from an amended judgment of conviction entered in the
District Court after a jury found her guilty of one count of visa fraud conspiracy, in violation of 18
U.S.C. § 371, and ten counts of visa fraud, in violation of 18 U.S.C. § 1546(a). The District Court
sentenced Tsirlina principally to a term of 24 months’ imprisonment and a three-year term of
supervised release.

         On appeal, Tsirlina contends that (1) the evidence presented at trial was insufficient to
sustain both her conspiracy and substantive convictions, (2) the government’s summation was
improperly prejudicial, and (3) the government misrepresented the voluntariness of the testimony
presented by witnesses who had entered into non-prosecution agreements. We assume the parties’
familiarity with the underlying facts and the procedural history of the case.

                                           DISCUSSION

                                    I. Sufficiency of the Evidence

        We review Tsirlina’s challenge to the sufficiency of the evidence supporting her conviction de
novo, United States v. Desposito, 704 F.3d 221, 226 (2d Cir. 2013), but mindful that she “bears a heavy
burden,” United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (quotation marks omitted), because we
review evidence on a sufficiency challenge “in the light most favorable to the government and
draw[ ] all inferences in favor of the government,” United States v. Henry, 325 F.3d 93, 103 (2d Cir.
2003). We will uphold a conviction if “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Coplan, 703 F.3d at 62 (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original)).

        Tsirlina’s insufficiency challenges are without merit. On the conspiracy count, a reasonable
jury would have little trouble concluding that Tsirlina conspired with Aleksandr Shusterman and
Andrei Kurakin to commit visa fraud. In fact, numerous witnesses testified that they coordinated
with Tsirlina and the other defendants to discuss their immigration status before a fraudulent
application was submitted. Similarly, the evidence presented at trial was sufficient to demonstrate to
a rational trier of fact that Tsirlina knowingly committed the substantive fraud alleged as well.

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Indeed, over the span of a few years, Tsirlina signed and filed numerous fraudulent immigration
applications. The applications were riddled with inconsistencies, fabrications, and obfuscations. And
the applications were submitted on behalf of companies that were clearly shams. Viewing the
evidence in the light most favorable to the government, Tsirlina does not overcome the heavy
burden required to overturn her conviction.

                                                  II. Summation

        Improper statements made during summation require a new trial when such statements
“cause[d] the defendant substantial prejudice by so infecting the trial with unfairness as to make the
resulting conviction a denial of due process.” United States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999)
(internal citations and quotation marks omitted). In deciding whether the defendant was prejudiced,
we consider: (1) the severity of the misconduct; (2) the measures adopted to cure the misconduct;
and (3) the certainty of conviction absent the misconduct. United States v. Elias, 285 F.3d 183, 190 (2d
Cir. 2002). Defendants challenging the government’s summation face a heavy burden, as it is only in
the “rare case” that improper summation comments will be so prejudicial as to warrant a new trial.
United States v. Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992) (internal quotation marks omitted). Indeed,
remarks of the prosecutor in summation do not amount to a denial of due process unless they
constitute “egregious misconduct.” Shareef, 190 F.3d at 78 (internal quotation marks omitted).

        Tsirlina contends that the government’s summation was improper because it “made several
references . . . that shifted the scope of the evidence at trial and caused the Jury to improperly
speculate.” Appellant’s Br. 28. Under plain error review,1 we conclude that the government’s
summation did not amount to a denial of defendant’s due process. Most of Tsirlina’s challenges
misstate the record while the other challenged statements were reasonable inferences made by the
government in light of the evidence presented at trial. In short, nothing in the government’s
summation constituted the egregious misconduct required to warrant a new trial. See Shareef, 190
F.3d at 78.

        III. Disclosure of Witnesses Testifying Pursuant to Non-Prosecution Agreements

        Without providing any citation to the trial record, Tsirlina asserts that the government
misrepresented the voluntariness of certain witnesses who testified pursuant to non-prosecution
agreements. But as Tsirlina concedes, the government was “careful to elicit the existence of the non-
prosecution agreements and introduced copies of the agreements with each correlating witness.”
Appellant’s Br. 32. Moreover, the District Court instructed the jury to scrutinize the testimony of
these cooperating witnesses “with caution” and to “weigh [their testimonies] with great care.” J.A.
646. Accordingly, even if the government improperly mischaracterized the nature of the non-

   1As Tsirlina did not object at trial, we review for plain error. See United States v. Olano, 507 U.S. 725, 733-
   34 (1993).

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prosecution agreements, we hold that—in conjunction with the Court’s subsequent jury
instruction—it did not result in substantial prejudice to Tsirlina, much less show the “flagrant
abuse” necessary to secure reversal where, as here, there was no objection at trial. See United States v.
Rivera, 22 F.3d 430, 437 (2d Cir. 1994).

                                           CONCLUSION

       We have considered Tsirlina’s remaining arguments and find them without merit.
Accordingly, we AFFIRM the November 26, 2014 amended judgment of the District Court.


                                                 FOR THE COURT,
                                                 Catherine O’Hagan Wolfe, Clerk of Court




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