11-1359-cr
United States v. Yurochkina
                              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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 14th day of May, two thousand twelve.

PRESENT: GUIDO CALABRESI,
                 REENA RAGGI,
                 DENNY CHIN,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                              v.                                               No. 11-1359-cr

YEKATERINA YUROCHKINA, a.k.a. Katya Yuro,
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                          PETER F. LANGROCK (Michele B. Patton, on
                                                  the brief), Langrock Sperry & Wool, LLP,
                                                  Middlebury, Vermont.

APPEARING FOR APPELLEE:                           SARAH E. PAUL (Justin S. Weddle, on the
                                                  brief), Assistant United States Attorneys, for Preet
                                                  Bharara, United States Attorney for the Southern
                                                  District of New York, New York, New York.

          Appeal from a judgment of the United States District Court for the Southern District

of New York (Alvin K. Hellerstein, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of conviction entered on April 1, 2011, is AFFIRMED.

       Yekaterina Yurochkina challenges the sufficiency of the evidence underlying her

conviction after jury trial on substantive and conspiratorial counts of immigration fraud. See

18 U.S.C. §§ 371, 1546(a). Specifically, Yurochkina argues that the evidence was sufficient

to prove only that she made incomplete, and not false, statements in failing to provide

required information in affidavits of financial support she prepared for submission to the

United States Citizenship and Immigration Service (“USCIS”).1

       The argument fails because Yurochkina affirmatively conceded the sufficiency of the

evidence of her guilt to the district court. Where a party intentionally relinquishes or

abandons a known right in order to obtain a tactical advantage at sentencing, such

abandonment “constitutes a true waiver which will negate even plain error review.” United

States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007) (internal quotation marks omitted).

This is that case. In an effort to obtain a downward adjustment of her offense level under the

Sentencing Guidelines for acceptance of responsibility, see U.S.S.G. § 3E1.1, Yurochkina,

through counsel, conceded to the district court that “all of the financial sponsor affidavits

contained materially false statements because each failed to properly state the number of


       1
         The government argues that, regardless of the merits of the sufficiency challenge
Yurochkina advances on appeal, the evidence was sufficient to permit a rational jury to find
that each of the eight financial affidavits underlying Yurochkina’s conviction contained two
other false statements that Yurochkina has not challenged. Because we reject Yurochkina’s
sufficiency challenge on the merits, we need not address the government’s alternative
arguments for affirmance.

                                              2
times Ms. Perez had obligated herself to be a financial sponsor for others. Ms. Yurochkina

does not dispute that finding as the jury had sufficient evidence to reach that determination.”

Schoenbach Letter to Judge Hellerstein, Feb. 11, 2011, at 5. Further, to secure acceptance

consideration, Yurochkina highlighted her trial testimony that she “knew that to leave it [i.e.,

the question asking how many other permanent residents Perez had sponsored] blank it’s not

accurate.” Gov’t Add. at 5. Accordingly, Yurochkina’s sentencing concession that she

knowingly made materially false statements in immigration documents submitted to the

immigration authorities not only waives any sufficiency challenge on appeal, but

affirmatively establishes her guilt. See United States v. Archer, 671 F.3d 149, 154 (2d Cir.

2011) (observing that conviction for immigration fraud requires proof that “the defendant

(1) knowingly (2) presented (3) an application or ‘document required by the immigration

laws’ (4) that contained a false statement (5) as to a material fact” (quoting 18 U.S.C.

§ 1546(a))).

       Yurochkina urges us to ignore her sentencing concession on appeal because it was

made by sentencing counsel and not directly by her. This argument finds no support in our

case law. See, e.g., United States v. Quinones, 511 F.3d at 320–21 (finding true waiver of

challenge to sentence of life imprisonment where defense counsel argued to jury that

rejecting death penalty would result in life sentence). As Yurochkina’s counsel conceded

guilt in a bid for leniency at sentencing, Yurochkina cannot now “evade the consequences

of [that] unsuccessful tactical decision.” United States v. Coonan, 938 F.2d 1553, 1561 (2d

Cir. 1991).

                                               3
       In any event, Yurochkina’s sufficiency challenge fails because the trial record

provides a sufficient evidentiary basis for a reasonable jury to find that Yurochkina

knowingly made a false statement when, on the numerous financial sponsorship affidavits

she prepared in the name of her secretary, Irene Perez, she failed to respond to a question

asking how many other permanent residents Perez had sponsored. See Jackson v. Virginia,

443 U.S. 307, 318–19 (1979) (holding that evidence is only insufficient if no reasonable jury

could have found that it proved guilt beyond reasonable doubt); United States v. Abu-Jihaad,

630 F.3d 102, 134–35 (2d Cir. 2010) (same). Yurochkina’s own testimony confirmed the

omissions were not inadvertent and discredited Yurochkina’s innocent explanations for the

omissions. See United States v. O’Connor, 650 F.3d 839, 855 (2d Cir. 2011) (observing that,

on sufficiency review, court “must credit every reasonable inference that the jury could have

drawn in the government’s favor”). She testified that she knew that leaving the question

blank was “not accurate” because she “knew that Perez sponsored many of [Yurochkina’s]

clients, some of [whom] got approval.” Trial Tr. at 630–31. Nevertheless, she maintained

that a blank response was truthful because she did not know precisely how many permanent

residents Perez had sponsored. See id. Moreover, Perez testified that she signed several

blank affidavits of support without reading them, and that she believed Yurochkina signed

Perez’s signature without her permission on other affidavits. Perez testified that she and

Yurochkina intended for these affidavits to be sent to the government so that their clients

could receive green cards, although they did not intend to provide financial support to their

clients. Assuming, as we must, that the jury did not credit Yurochkina’s explanation or other

                                             4
self-serving parts of her testimony, but rather credited Perez’s testimony and drew all

inferences from that testimony and from the other record evidence in favor of the

prosecution, see United States v. Abu-Jihaad, 630 F.3d at 134 (noting that, on sufficiency

review, court must “assum[] that the jury resolved all questions of witness credibility and

competing inferences in favor of the prosecution”), we conclude that a reasonable jury could

have found beyond a reasonable doubt that Yurochkina failed to answer the question not

because she did not know the answer, but, rather, because she intended thereby falsely to

represent that Perez had not sponsored any other permanent residents, which she knew was

not the case. Accordingly, Yurochkina’s sufficiency challenge also fails on the merits.

       We have considered Yurochkina’s remaining arguments on appeal and conclude that

they are without merit. Accordingly, the judgment is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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