                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4606


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MICHAEL MITRY HADEED, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:08-cr-00461-LMB-1)


Argued:   March 24, 2010                   Decided:   April 30, 2010


Before MICHAEL and DAVIS, Circuit Judges, and Eugene E.
SILER, Jr., Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.


Affirmed by unpublished opinion.    Senior Judge Siler wrote the
opinion, in which Judge Michael and Judge Davis joined.


ARGUED: Laurin Howard Mills, LECLAIR RYAN, PC, Alexandria,
Virginia, for Appellant. Joshua L. Rogers, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.   ON BRIEF:
William B. Cummings, WILLIAM B. CUMMINGS, PC, Alexandria,
Virginia, for Appellant.   Anthony Asuncion, Special Attorney to
the Attorney General of the United States, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
SILER, Senior Circuit Judge:

       Michael Hadeed, Jr., was convicted by a jury of conspiracy

to commit immigration fraud and to defraud the United States in

violation of 18 U.S.C. § 371 and aiding and abetting a material

false     statement        to     a    United          States       government         agency   in

violation      of    18    U.S.C.      §§     1001      and    2.     He     now    appeals     his

conviction on three alleged errors: (1) admission of certain

testimonial evidence; (2) insufficient evidence; and (3) jury

instructions.         For the following reasons we AFFIRM.



                     I.     FACTUAL & PROCEDURAL BACKGROUND

A.     Factual Background

       Hadeed is a Virginia attorney engaged in the practice of

immigration         law.        Antoine      “Tony”       Tahan,      a    former      client    of

Hadeed,      owns    and    operates        the        King    of   Pita     Bakery.       Hadeed

provided      general      legal      services          to    Tahan    for      several    years.

Hadeed’s conviction was based on an agreement between himself

and Tahan, in which Tahan’s business sponsored immigrants to

work    as     bakers      so    that       they       could    obtain         legal    permanent

resident status based on fraudulent information.                                   Tahan pleaded

guilty    to    immigration           fraud    and       testified        on    behalf    of    the

government.




                                                   3
       1.   Legal permanent resident status for a skilled worker

       Obtaining a labor certification to enter the United States

and    attaining      lawful      permanent      resident       status       as       a       skilled

worker involves a four-part process.                      First, the employer must

allow skilled American workers the opportunity to apply for the

position.       Second,       if    the   employer        cannot      find       an       American

worker to fill the position, the employer and prospective alien

employee apply for a labor certificate by submitting Form ETA-

750 to a state employment agency and, if approved by the state,

to the United States Department of Labor.                         That form describes

the qualifications required for the position and the alien’s

relevant job experience or education.                     The alien must attach an

“experience letter,” written by a prior employer in the alien’s

home   country     that   sets       forth    his     place     of    prior       employment,

position,    duration        of    his    employment,       and      salary.              If     this

letter contains false information, the request for certification

will be denied and could result in the alien’s being barred for

life from the United States.

       Third,    if     the        Department       of    Labor        issues             a    labor

certification, the employer then files an Immigrant Petition for

Alien Worker, known as a Form I-140, with the former Immigration

and    Naturalization         Service      (“INS”),       now        the    Department             of

Homeland Security (“DHS”).                Form I-140 asserts that the alien

has    sufficient      job     experience        or      education         and    meets          the

                                             4
requirements       for    the     particular         position.       If    the    I-140    is

approved, the alien then submits either a Form I-485 application

for permanent residence adjustment of status (if he is living

inside     the    country),       or   a   Form       DS-230      application       for    an

immigrant visa (if he is living outside the country).                              The Form

DS-230 includes a “skilled worker” section so consulate offices

can confirm that aliens coming to the United States to perform a

particular       job    have     the   requisite          work   experience.        If    the

consulate office discovers that the DS-230 is fraudulent, the

visa application is denied and the office typically recommends

revocation of the petition.

     2.      Evidence Presented at Trial

            a.         Fraudulent application of Marouf Abrid

     Tahan met Marouf Abrid at an airport in Beirut, Lebanon

where Abrid worked as a bartender.                         Abrid came to the United

States in 1999 and Tahan introduced him to Hadeed. 1                             Abrid told

Hadeed that he had been working as a bartender.                              Nonetheless,

Hadeed told Abrid that Tahan could file a petition for him to

become an employee at King of Pita as a skilled worker.                              Hadeed

told Abrid that he would need an employment letter stating that

he   was    a    baker     and    that     he       had    at    least    four    years    of


     1
       Tahan served as a translator during the meetings between
Abrid and Hadeed.



                                                5
experience.          When Tahan showed Abrid’s letter to Hadeed, Hadeed

said it was no good because it did not state that he had four

years of experience as a baker.                      Tahan then drafted a second

letter       for    Abrid,    based    on    what    Hadeed   told     him    should   be

included.          Hadeed submitted this letter with Abrid’s immigration

paperwork.

       To allow skilled American workers the opportunity to fill

the position, Hadeed advertised for the position in a newspaper.

Tahan found this advertisement to be confusing, however.                              When

he confronted Hadeed, Hadeed told him it was not important and

that “[t]he harder it is for people to respond to [the] ad, the

better it is.”

              b.     Fraudulent application of Ibrahim Alakwa

       In early 2000, Hadeed asked Tahan if he would be interested

in     sponsoring       other       immigrants       and    told   him       that   these

immigrants did not actually have to work at King of Pita, so

long    as    King    of     Pita   was     listed   as    their   sponsor.         Hadeed

indicated that if Tahan agreed to do this, Hadeed would forgive

the debt Tahan owed him for legal services.                    Tahan agreed.

       Hadeed introduced Tahan to Ibrahim Alakwa in early 2003.

Despite Alakwa’s lack of experience in baking, Hadeed prepared

Alakwa’s       immigration          papers,       which    indicated     he     was    an

experienced baker.             Alakwa received a labor certification from

the Department of Labor.              Although Tahan, Hadeed, and Alakwa did

                                              6
not intend for Alakwa to work at King of Pita, Hadeed suggested

Alakwa should go through training at King of Pita, “in case he

would be asked by the immigration officials any questions about

the company or the process of his experience.”               Hadeed also told

Tahan to issue payroll checks to Alakwa, but no money was to

change hands.       Alakwa would cash his payroll checks and return

the money to Tahan.

            c.    Fraudulent application of Juana Pagoaga

     Juana       Pagoaga,   a   Honduran   employee     of   King   of     Pita,

testified that she was introduced to Hadeed’s law firm by Ana

Araos, a paralegal at the firm.             Araos led a presentation on

immigration issues at King of Pita, during which she told the

attendees    that    they   needed   an    experience    letter.         Pagoaga

obtained a letter from her mother in Honduras and gave it to

Araos.   Araos showed the letter to Hadeed.             Neither Hadeed nor

Araos thought the letter was sufficient, and Araos told Pagoaga

that the letter needed to say that she had experience as a

pastry cook, even though Pagoaga did not have such experience.

Pagoaga obtained a second letter, which Hadeed used to prepare

and submit her ETA-750 and I-485.

            d.    Fraudulent application of Jean Claude Sakr

     Jean Claude Sakr, who also pleaded guilty to immigration

fraud and cooperated with the government, testified that he met

Hadeed when he was seeking assistance with an application for

                                      7
political       asylum.        Instead,    Hadeed          suggested         he    apply    for

employment        sponsorship,        because       it   was        easier    and     faster.

Shortly after Sakr began working at King of Pita, he showed

Hadeed    two      experience    letters       he    had      brought    with       him    from

Lebanon, indicating his experience as a bartender.                                Hadeed told

him   there       were   too   many    bartenders        in    America,       and    that    he

needed a letter stating he was a baker.                       Sakr obtained a letter,

and Hadeed prepared Sakr’s application with it.                          His application

was denied, however, due to fraudulent documentation.

             e.     Fraudulent application of Charbel Freifer

      Sakr        introduced     Charbel       Freifer         to     Tahan,       who     then

introduced Freifer to Hadeed. 2                 Although Freifer had a student

visa, Hadeed was going to help him get a work visa.                                   Freifer

told Hadeed he had never been a baker, but Hadeed told him that

he needed a letter attesting to the fact that he had worked as a

baker.       Freifer obtained such a letter, which Hadeed used in

preparing and submitting his Form ETA 750 labor certification

application and his Form DS-230 visa application.                                 Before any

agency action was taken on the Form DS-230, Hadeed had stopped

working on Freifer’s case, and Freifer had obtained new counsel.




      2
       Tahan also served as a translator for Hadeed during these
meetings.



                                           8
             f.   Hadeed’s statements

       Vikki Ravinskas, the office manager at Hadeed’s law firm,

testified regarding two conversations she had with Hadeed.                   In

one instance, Ravinskas received a phone call from Araos, who

told Ravinskas that she had been arrested for immigration fraud

and asked Ravinskas to tell Hadeed.            When Ravinskas told Hadeed

that information, he became very agitated and said, “It should

have been me that they were coming for.           It should have been me,

not Ana.”         He also said he needed to get an attorney.                 In

another instance, Ravinskas told Hadeed that she had learned

that Tahan was cooperating with the government.                  Hadeed became

frantic and said, “They’re coming for me next.                I should have

known.      I shouldn’t have been in this.            They’re coming for me

next.”

             g.   Mark Mancini’s testimony

       Hadeed’s theory of the case was that he was unaware of the

fraud.      Instead, he relied on Tahan, who interpreted for many of

the    aliens,    to    truthfully   convey   their    experience.      Hadeed

called one expert witness, Mark Mancini, who was qualified as an

expert in the practice of immigration law.             Mancini testified as

to    the   standards    that   immigration   attorneys    are    expected   to

uphold.      In particular, he explained that immigration attorneys

assisting aliens who are seeking a labor certification should

first explain the job experience requirement for that particular

                                       9
position.       He also explained that it was standard practice to

provide a handwritten sample of an experience letter for the

client.        He further stated that if a client brought back a

letter without all of the required information, he would tell

him it needed to be corrected.              However, Mancini said that if he

knew a client was not qualified for a particular position, but

intended       on    pursuing    the     application,      he    would      refuse       to

represent him.          Moreover, he would never counsel a client to

obtain    an    experience      letter    for   work    experience     he    knew    the

client did not have.

     Mancini also testified that because Virginia’s unemployment

level between May 2001 and April 2004 was low, there was not a

significant         difference    between       the    demand    for     skilled     and

unskilled      workers.      Accordingly,        the   wait     for   approval      as    a

skilled worker was roughly equivalent to that of an unskilled

worker.        Additionally,      unskilled      applicants      did   not    need       to

submit a letter establishing their work experience.                          He stated

that all immigration lawyers would have known that fact.



     B.        Procedural Background

     At the close of the government’s case, the district court

granted Hadeed’s motion under Federal Rule of Criminal Procedure

29(a) to dismiss two additional counts for lack of evidence.

The district court denied Hadeed’s motion for a jury instruction

                                           10
on multiple conspiracies, and the jury convicted Hadeed of the

remaining counts.     The district court denied Hadeed’s motion for

judgment    of   acquittal   or,     in    the   alternative,     a   new   trial.

Hadeed was sentenced to two years’ probation and a $2000 fine.



                               II.    ANALYSIS

A.   Statement to Ravinskas

     Hadeed      contends    that     the      district   court       abused   its

discretion in failing to exclude part of Ravinskas’s testimony.

We review the district court’s evidentiary rulings for abuse of

discretion, and “we will not vacate a conviction unless we find

that the district court judge acted arbitrarily or irrationally

in admitting evidence.”       United States v. Basham, 561 F.3d 302,

325-26 (4th Cir. 2009) (internal quotation marks and citations

omitted).

     Hadeed objected to the testimony by Ravinskas concerning

Hadeed’s statement when he found out that Araos was arrested.

Araos’s arrest was, in fact, connected to a separate immigration

fraud scheme, the Pillar investigation.              In a pre-trial ruling,

the district court excluded as irrelevant the introduction of

any evidence related to this investigation.

     Although Hadeed’s brief focused exclusively on Rule 404(b),

at oral argument he claimed that the testimony was inadmissible

under Rule 401, not 404(b).               Under Rule 401, relevance “means

                                          11
evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable     or    less       probable    than    it   would     be   without    the

evidence.”        Fed. R. Evid. 401.             Rule 404(b), which excludes

“[e]vidence of other crimes, wrongs, or acts” when admitted “to

prove the character of a person in order to show action in

conformity therewith,” Fed. R. Evid. 404(b), limits only the

admission of evidence of acts extrinsic to the one charged, but

does   not   limit      the   admission    of    evidence   of   intrinsic      acts.

United States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996).                          Other

acts are intrinsic when they are “inextricably intertwined or

both acts are part of a single criminal episode or the other

acts were necessary preliminaries to the crime charged.”                          Id.

(internal quotation marks omitted).

       The evidence indicates that Hadeed had no knowledge of the

Pillar conspiracy. 3          Ravinskas’s testimony also does not indicate

whether she specified the basis for Araos’s arrest.                        Because

Hadeed     did    not     know    about    the    Pillar    investigation        when

Ravinskas told him that Araos had been arrested for immigration

fraud, he appears to have assumed her arrest was based on either


       3
       At oral argument, counsel for Hadeed stated that when
Hadeed made this statement, he knew that Araos had been arrested
pursuant to the Pillar investigation.        However, he never
indicated that fact in his briefs.



                                          12
the King of Pita scheme or some other general immigration fraud

scheme.     Either way, his response, “It should have been me, not

Ana,” demonstrated a consciousness of guilt for acts that were

inextricably      intertwined      to    the     King    of   Pita    scandal.      In

addition,    the      statement      corroborated         a   similar       subsequent

statement    he    made    to   Ravinskas       upon    learning     that   Tahan   was

cooperating with the government.                Accordingly, the statement was

relevant and intrinsic to the charge at issue. 4



B.   Materiality of False Statement

     Under 18 U.S.C. § 1001 it is unlawful to knowingly and

willfully    make     a   material      false    statement     to    any    government

agency.     Hadeed was charged with aiding and abetting Freifer in

submitting     Form       DS-230   to    the     Department     of     State,    which

contained the false statement that Freifer had been employed as

     4
       Moreover, any error was harmless. “Where error is founded
on a violation of Rule 404(b), the test for harmlessness is
‘whether we can say with fair assurance, after pondering all
that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the
error.’”   United States v. Madden, 38 F.3d 747, 753 (4th Cir.
1994) (quoting United States v. Nyman, 649 F.2d 208, 211-12 (4th
Cir. 1980)).      In light of Hadeed’s second statement to
Ravinskas, the verdict was not substantially swayed by any error
in admitting his first statement. The jury heard evidence that
Hadeed’s second statement was made in direct response to his
discovery of the underlying investigation at issue in this case,
and this statement was more heavily relied upon by the
government.     There was also ample additional testimonial
evidence against Hadeed.



                                          13
a baker by the Al Najah Bakery in Lebanon from 1997 to 2001.

Hadeed argues that his motion for judgment of acquittal should

have been granted as to this count, because the false statement

at issue was not material as a matter of law.                      We review a

district court’s denial of a motion for judgment of acquittal de

novo, viewing the evidence in the light most favorable to the

government.   United States v. Midgett, 488 F.3d 288, 297 (4th

Cir. 2007).

      A statement “is material if it has a natural tendency to

influence, or was capable of influencing, the decision of the

body to which it was addressed.”               Kungys v. United States, 485

U.S. 759, 770 (1988) (internal quotation marks omitted); see

also United States v. Benkahla, 530 F.3d 300, 310 (4th Cir.

2008).   In an immigration context, evidence of materiality must

be   “sufficient    to    raise    a   fair    inference    that     a    statutory

disqualifying fact actually existed.”                Kungys, 485 U.S. at 783

(Brennan, J., concurring); see also United States v. Puerta, 982

F.2d 1297, 1304 (9th Cir. 2002); United States v. Agunbiade,

1999 WL 26937 at *3 (4th Cir. Jan. 25, 1999) (unpublished table)

(concluding   that       appellant’s    failure      to   disclose       his    prior

deportation   and    arrest       “could      have   influenced    the         INS’[s]

decision with regard to his naturalization application,” and was

therefore material).



                                        14
       Viewing the evidence in the light most favorable to the

government,        there      was    sufficient      evidence       to   demonstrate      the

materiality of the statement at issue.                            For example, Cathleen

Carothers, an employee of the Department of State, in the Bureau

of Consular Affairs, which offers legal advisory opinions on

visa issues, testified that “[i]f fraud was found [in the Form

DS-230], . . . and it . . . qualified for an ineligibility, then

the consular officer would find the applicant ineligible for the

visa   and       would      typically       return   the    petition     to   DHS    with   a

recommendation of revocation.”

       Hadeed argues that because the circumstances in Virginia

would have allowed Friefer to qualify for a visa as an unskilled

worker,      a    fact      that    was     supported      by   expert   testimony,       the

statement was not material.                  However, even if Freifer could have

qualified for an employment-based visa without work experience,

the particular type of visa he sought required relevant work

experience.            As    Carothers       testified,     consulate      offices    “rely

very heavily” on the portion of the Form DS-230 that addresses

previous employment in deciding how to process a skilled worker

immigrant visa.

       This case is distinguishable from Forbes v. INS, 48 F.3d

439,   443       (9th    Cir.      1995)     (holding      that    Forbes’s   failure       to

disclose         his    prior      arrest    on   his   visa       application      was   not

material, because the charges were eventually dropped and would

                                               15
not have impacted the visa determination); and La Madrid-Peraza

v.    INS,    492   F.2d    1297   (9th   Cir.       1974)    (concluding    that   the

petitioner’s overstatement of the wages she was to receive from

her     prospective        job   was    not     a    material      misrepresentation,

because the overstatement would not have justified a refusal to

issue a visa given that there was no evidence that her wage was

below the prevailing wage for similar jobs in her area (citing

Chaunt v. United States, 364 U.S. 350 (1960)).                        In the case at

hand,        Freifer’s       misrepresentations           regarding      his    prior

employment history would have impacted his visa determination,

because he was applying for a skilled worker visa.                      As Carothers

testified, an applicant’s prior employment as listed on the Form

DS-230 is directly relevant to the issuance of such a visa.

Thus, the misstatement is the kind that would “[have] a natural

tendency      to    influence,     or   [be]        capable   of    influencing,    the

decision of the body to which it was addressed.”                         Kungys, 485

U.S. at 770.



C.      Conspiracy Instruction

        We review a district court’s jury instructions for an abuse

of discretion.        United States v. Jeffers, 570 F.3d 557, 566 (4th

Cir.    2009).       In     reviewing     jury      instructions,      “we   will   not

reverse a conviction so long as the instructions, taken as a

whole, adequately state the controlling legal principles.”                          Id.

                                           16
at 566-67 (citing United States v. Bolden, 325 F.3d 471, 486

(4th Cir. 2003)).           Hadeed argues that although the indictment

charged a single conspiracy, the government’s proof demonstrated

multiple     conspiracies      and      the    district     court’s     refusal    to

instruct the jury on multiple conspiracies created a prejudicial

variance.

      “[A] defendant may establish the existence of a material

variance     by    showing     that     the    indictment     alleged     a    single

conspiracy but that the government’s proof at trial established

the   existence      of    multiple,     separate     conspiracies.”           United

States v. Kennedy, 32 F. 3d 876, 883 (4th Cir. 1994).                         We will

only find error in a conspiracy instruction “if the proof of

multiple conspiracies was likely to have confused the jury into

imputing guilt to the defendant as a member of one conspiracy

because     of    the     illegal     activity   of   members     of     the    other

conspiracy.”        Jeffers, 570 at 567 (citation, alteration, and

internal quotation marks omitted).               “A single conspiracy exists

when ‘[t]he conspiracy had the same objective, it had the same

goal, the same nature, the same geographic spread, and the same

product.’”        United States v. Johnson, 54 F.3d 1150, 1154 (4th

Cir. 1995) (quoting United States v. Crockett, 813 F.2d 1310,

1317 (4th Cir. 1987)).

      The government’s theory of conspiracy was that Hadeed and

Tahan formed the hub of a single conspiracy and the five aliens

                                          17
were     the    co-conspirators.             Relying      on    Kotteakos          v.     United

States, 328 U.S. 750 (1946) (holding there was no proof of a

single       conspiracy       where    there      was    one     key        figure      and     no

connection between the co-conspirators, because “the pattern was

‘that of separate spokes meeting at a common center,’ though we

may add without the rim of the wheel to enclose the spokes”);

and United States v. Chandler, 388 F.3d 796 (11th Cir. 2004)

(applying Kotteakos and concluding the evidence did not prove a

single conspiracy, because “[u]nlike the classic hub-and-spoke

conspiracy, . . . [the defendant] was the only conspirator in

the    hub,    and     when    he    moved     from     spoke    to     spoke,       he      moved

alone”), Hadeed contends that the government needed proof that

each    of     the   individual        aliens     had    to     be    involved          in    some

concerted action in furtherance of the conspiracy.                             What Hadeed

overlooks, however, is that this is not a conspiracy with a

single-man       hub    forming       agreements        with    five        individual         co-

conspirators.             Instead,       the      evidence       produced          at        trial

demonstrated a single agreement between Tahan and Hadeed, which

formed    the    hub,     and       separate    agreements           with    the     five     co-

conspirators.          Accordingly, this case is distinguishable from

Kotteakos and Chandler, in which the only agreements at issue

were the individual agreements with the “spokes.”                              Accordingly,




                                             18
the   agreement   between   Tahan   and   Hadeed   constituted   a   single

conspiracy and was not a variance from the indictment.

                                                                 AFFIRMED




                                    19
