     14-4048-cr
     United States v. Gupta
                               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.
 1
 2          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 3   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 14th day of October, two thousand fifteen.
 5
 6   PRESENT: BARRINGTON D. PARKER,
 7            GERARD E. LYNCH,
 8            SUSAN L. CARNEY,
 9                Circuit Judges.
10   _____________________________________
11
12   UNITED STATES OF AMERICA,
13                           Appellee,
14
15                            v.                                       No.    14-4048-cr
16
17   RAGHUBIR K. GUPTA,
18                                          Defendant-Appellant.
19   _____________________________________
20
21   FOR APPELLANT:                         RITHER ALABRE (Susan C. Wolfe, on the brief),
22                                          Blank Rome LLP, New York, NY,
23
24   FOR APPELLEE:                          MICHAEL GERBER, Assistant United States Attorney
25                                          (Margaret Garnett, Assistant United States Attorney, on
26                                          the brief), for PREET BHARARA, United States
27                                          Attorney for the Southern District of New York, New
28                                          York, NY.
29
30             Appeal from the United States District Court for the Southern District of New

31   York (Robert P. Patterson, Jr., J.).

32
 1          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the judgment of the district court is AFFIRMED.

 3          Raghubir Gupta appeals from a judgment of conviction for causing the false

 4   subscription to, and the submission of fraudulent immigration documents, in violation of

 5   Title 18, United States Code, Sections 1546(a) and 2(b).1 We assume the parties’

 6   familiarity with the facts and procedural history.

 7          First, Gupta argues that under § 1546(a), the false statement and swearing under

 8   oath or penalty of perjury must be “simultaneous.” Gupta instructed his clients to write

 9   false answers on a questionnaire and sign blank amnesty applications. Using the answers

10   from the questionnaires, Gupta’s staff would type up the applications. Gupta would then

11   sign them as the preparer and submit them to the USCIS. Contrary to Gupta’s argument

12   that “common sense” requires that the false statement and swearing under oath be

13   simultaneous, one must either swear first and then make the statements, as one typically

14   does when testifying in court, or make the statements first, then swear to their truth, as

15   one typically does when signing a document. The order of swearing and asserting makes

16   no difference. The fact that the false information was transferred to a form signed and

17   sworn to in advance does not avoid a violation of § 1546(a), where both Gupta and his

18   clients understood that the clients were swearing to the truth of information that all

19   involved knew was false.


            1
              Gupta was first tried and convicted in 2008, but this conviction was reversed
     because of procedural errors not relevant here. See United States v. Gupta, 699 F.3d 682
     (2d Cir. 2012).

                                                   2
 1          Second, Gupta argues that he cannot be held liable as a principal under § 2(b) for

 2   the acts of the government’s confidential informant, because the informant was acting at

 3   the direction of the government, and therefore was not under penalty of perjury when she

 4   signed the application form. The argument is without merit. The government informant

 5   did sign the form under penalty of perjury; she simply had a defense that she was acting

 6   under government direction. Her defense does not avail Gupta. As we have held, “if the

 7   defendant willfully caused an act that, had he performed it directly, would be an offense

 8   against the United States, he may be prosecuted under § 2(b) even though the agent who

 9   committed the act is innocent or acquitted.” United States v. Concepcion, 983 F.2d 369,

10   384 (2d Cir. 1992) (emphasis added) (internal quotation marks omitted).

11          Third, Gupta argues that the district court erred by failing to instruct the jury that

12   to convict him under the “presenting” prong of § 1546(a) (whoever “knowingly presents

13   any such application . . . which contains any such false statement”), the jury must find

14   that the false statements were made under penalty of perjury. The argument is unavailing.

15   First, it is foreclosed by United States v. Khalje, 658 F.2d 90 (2d Cir. 1981), which holds

16   that the reference to “such false statement” in the “presenting” prong does not incorporate

17   the “penalty of perjury” requirement. Gupta urges us to overrule Khalje, but only the

18   Court sitting en banc, or the Supreme Court, may do that. See United States v.

19   Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004). Second, even if Khalje were overruled,

20   Gupta’s conviction would still have to be affirmed. The jury returned a special verdict

21   finding Gupta guilty both of causing another to make a false statement under penalty of


                                                   3
 1   perjury and of presenting false statements to the USCIS. Since the former finding is

 2   unaffected by Gupta’s argument, and since the jury did find that the statements in

 3   question were made under penalty of perjury, any error was harmless.

 4          Finally, Gupta’s argument that the district court improperly instructed the jury on

 5   the “willfully” component of § 2(b) is without merit. He contends that rather than

 6   defining willfully as “knowingly and intentionally,” the district judge should have

 7   instructed the jury that willfully means “with a bad purpose to do something that the law

 8   forbids.” The argument is foreclosed by our precedent. Although “willfully” sometimes

 9   has the meaning Gupta suggests, see, e.g., Bryan v. United States, 524 U.S. 184 (1998),

10   the word is notoriously “a word of many meanings,” id. at 191. In the context of § 2(b),

11   we have held that in order to establish willfulness, “the government need not prove a

12   knowing violation of the law,” and “a defendant with the mental state necessary to violate

13   the underlying section is guilty of violating [§ 2(b)] if he intentionally causes another to

14   commit the requisite act.” United States v. Gabriel, 125 F.3d 89, 101 (2d. Cir. 1997),

15   abrogated on other grounds by Arthur Andersen LLP v. United States, 544 U.S. 696,

16   705–06 (2005). The district judge here properly instructed the jury that in order to

17   convict, it had to find that Gupta acted with the requisite intent to violate the underlying

18   statute, that is, that he knew the statements were false, and that he intended to cause

19   another to commit the requisite act. Joint App’x 103–04.

20

21



                                                   4
1         We have considered Gupta’s remaining arguments and find them to be without

2   merit. Accordingly, we AFFIRM the judgment of the district court.
3
4
5                                   FOR THE COURT:
6                                   CATHERINE O’HAGAN WOLFE, Clerk of Court
7
8
9




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