                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 31 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 10-10350

              Plaintiff - Appellee,              D.C. No. 2:06-cr-00058-FCD-5

  v.
                                                 AMENDED MEMORANDUM*
LUCIANA HARMATH,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-10481

              Plaintiff - Appellee,              D.C. No. 2:06-cr-00058-FCD-1

  v.

IOSIF CAZA,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-10482

              Plaintiff - Appellee,              D.C. No. 2:06-cr-00058-FCD-4

  v.



        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
MANJIT KAUR RAI, Esquire,

           Defendant - Appellant.



UNITED STATES OF AMERICA,                    No. 10-10483

           Plaintiff - Appellee,             D.C. No. 2:06-cr-00058-FCD-2

  v.

JAGPRIT SINGH SEKHON,

           Defendant - Appellant.



UNITED STATES OF AMERICA,                    No. 10-10485

           Plaintiff - Appellee,             D.C. No. 2:06-cr-00058-FCD-3

  v.

JAGDIP SINGH SEKHON, Esquire,

           Defendant - Appellant.


                Appeals from the United States District Court
                    for the Eastern District of California
            Frank C. Damrell, Jr., Senior District Judge, Presiding

                     Argued and Submitted June 9, 2014
                         San Francisco, California

Before: SCHROEDER, GRABER, and BYBEE, Circuit Judges.


                                      2
      Defendants, Luciana Harmath, Iosif Caza, Manjit Rai, Jagprit Sekhon, and

Jagdip Sekhon, appeal in this consolidated federal criminal case. Defendants were

convicted of conspiring to commit an offense against or to defraud the United

States, in violation of 18 U.S.C. § 371, by impeding the lawful functions of the

Bureau of Citizenship and Immigration Services or by knowingly submitting false

immigration documents, in violation of 18 U.S.C. § 1546 (Count One). All

Defendants except for Jagdip Sekhon were convicted of conspiring to defraud or

commit an offense against the United States, in violation of 18 U.S.C. § 371, by

making false statements in connection with an asylum application, in violation of

18 U.S.C. § 1001 (Count Seventeen). All Defendants except for Jagdip Sekhon

also were convicted of one or more counts of aiding and abetting a false statement

under 18 U.S.C. § 1001 or 18 U.S.C. § 1546. We affirm in part and, as to

Harmath, Caza, Rai, and Jagprit Sekhon, vacate in part and remand for

resentencing.

      1. We need not decide whether the admission of the foreign stamps and

signatures violated Defendants’ Sixth Amendment rights because any error was

harmless beyond a reasonable doubt. See United States v. Miguel, 111 F.3d 666,

671–72 (9th Cir. 1997) (applying harmless error analysis to a Confrontation Clause

claim). There was overwhelming other evidence as to each Defendant’s guilt,


                                          3
including testimony from former clients of the firm that the firm instructed them to

submit false information; records found at Sekhon & Sekhon’s Sacramento office

and at Caza’s home; and, as to four Defendants, taped conversations in which they

helped a confidential informant prepare and submit an application that they knew

was false. The result would not have been different for any Defendant even if the

stamps and signatures had been disallowed, or if all of the foreign officials and

physicians had been required to testify.

      2. The district court did not abuse its discretion, United States v. Anekwu,

695 F.3d 967, 971 (9th Cir. 2012), cert. denied, 133 S. Ct. 2379 (2013), by

admitting summary charts from Agent Webster that documented similarities across

asylum applications. Defendants’ argument that the government failed to give

them access to the underlying documents, in violation of Federal Rule of Evidence

1006, is unavailing. All of the asylum narratives used in the chart were originally

generated by Defendants themselves, and they do not argue otherwise.

Furthermore, the government did provide copies of all documents listed on Agent

Webster’s summary charts, and each chart was entered into evidence together with

copies of the narratives it summarized. With respect to Defendants’ other Rule

1006 arguments, the district court has broad discretion to admit summary evidence,

and we have declined to reverse where, as here, the underlying documents are


                                           4
admissible. Id. at 982. Given the volume of the documents, the district court had

discretion to admit this summary evidence. Finally, the summary evidence was

relevant because it demonstrated the probability of asylum fraud in the firm, Fed.

R. Evid. 401, and it was not unfairly prejudicial, United States v. Rizk, 660 F.3d

1125, 1132–34 (9th Cir. 2011) (discussing Fed. R. Evid. 403).

      Nor did the district court abuse its discretion, United States v. Figueroa-

Lopez, 125 F.3d 1241, 1244 (9th Cir. 1997), by allowing Agent Webster to offer

lay opinion testimony. Agent Webster’s testimony was "rationally based on [her]

perceptions," United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995), and

"on [her] general knowledge of the investigation," United States v. Freeman, 498

F.3d 893, 902 (9th Cir. 2007), which is a proper foundation for lay opinion

testimony.

      3. The district court did not plainly err when it instructed the jury that "an

intent to defraud" was "a[n] intent to deceive or cheat." See United States v.

Bhagat, 436 F.3d 1140, 1147 (9th Cir. 2006) (holding that where, as here, the

defendant did not object to a jury instruction at trial, we review for plain error).

The district court’s jury instruction clearly excluded the acts of legal advocacy that

Jagdip Sekhon argues could have been covered under the government’s "defraud"

theory. Nor was the government’s "defraud" theory overbroad under any of Jagdip


                                            5
Sekhon’s other arguments: The underlying purpose of the conspiracy charged was

the submission of fraudulent asylum applications, conduct clearly "proscribed by

criminal statute." United States v. Murphy, 809 F.2d 1427, 1432 (9th Cir. 1987).

      4. We review de novo whether the district court’s denial of jury instructions

on a lawyer’s duty to clients prevented Jagdip Sekhon and Rai from arguing their

theory of the defense. United States v. Duran, 59 F.3d 938, 941 (9th Cir. 1995).

There was no error, because the district court provided a legally accurate

instruction on a lawyer’s duty to clients, and the instructions in their totality

allowed Jagdip Sekhon and Rai to argue their theory of the defense. United States

v. Thomas, 612 F.3d 1107, 1120 (9th Cir. 2010).

      5. We review de novo Jagdip Sekhon’s and Harmath’s sufficiency of the

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

government and affirming if "‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’" Rizk, 660 F.3d at

1134 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

      Sufficient evidence supported Jagdip Sekhon’s conviction on Count One.

Former employees and clients of the firm testified that Jagdip Sekhon’s comments

reflected an awareness of the ongoing pattern of asylum fraud at the law firm, for

which he was one of only two principals; that he faxed template documents to


                                            6
India to obtain fake declarations for at least one client’s asylum application; and

that he and Rai provided false details to embellish that application.

       Sufficient evidence supported Harmath’s convictions on Counts One,

Eleven, and Seventeen. Evidence adduced at trial showed that she participated in

the confidential informant’s initial intake meetings; that she knew that he lived in

the state of Georgia, but told him to get a California address and become familiar

with the details of that residence; that she knew he did not experience persecution

for his faith in Romania, but that he would need to play up his faith and be familiar

with the Bible; and that he would need to "study" the story that he would find in

his file, be it one of religious or ethnic persecution. This and other evidence

adduced at trial was sufficient for a rational trier of fact to find that the pattern of

fraud at the firm was so pervasive that Harmath knew about and agreed to

participate in the conspiracy.

       6. The district court’s finding of fact that Caza was connected to more than

100 fraudulent documents was not clearly erroneous, and the district court did not

abuse its discretion in applying the Guidelines to that finding. United States v. Yi,

704 F.3d 800, 805 (9th Cir. 2013). The evidence on which the district court relied,

including a list of documents distilled from lists presented by the government and

Caza, possessed "sufficient indicia of reliability to support its probable accuracy."


                                             7
United States v. August, 86 F.3d 151, 154 (9th Cir. 1996) (internal quotation marks

omitted).

      7. Where, as here, the issue of multiplicity of convictions and sentences was

not raised in the district court, we review for plain error. United States v. Zalapa,

509 F.3d 1060, 1064 (9th Cir. 2007). We apply a five-factor test, reviewing the

period of time, location, persons charged, overt acts, and statutes violated, United

States v. Guzman, 852 F.2d 1117, 1120 (9th Cir. 1988), to determine whether any

rational trier of fact could have found that the government proved separate

conspiracies, United States v. Smith, 424 F.3d 992, 1001 (9th Cir. 2005), on

Counts One and Seventeen.

      We hold that the evidence cannot support a finding of two conspiracies. The

period of time, location, and persons charged in Count Seventeen were subsets of

the period of time, location, and persons charged in Count One. Three of the six

overt acts from Count Seventeen also were charged in Count One, and none of the

different overt acts concerned a separate meeting of the minds or conduct that

reflected a second, separate conspiracy. Finally, both counts charged a violation of

18 U.S.C. § 371, and although the objects charged were different, all of the objects

reflect one underlying agreement to systematically file fraudulent asylum

applications for clients of the law firm. The activities described in Count


                                           8
Seventeen reflected mere "subgroups" acting according to "subagreements" within

the overarching conspiracy on Count One, rendering conviction on both counts

multiplicitous. Guzman, 852 F.2d at 1120. Because of the potential for collateral

consequences, multiplicitous sentences and convictions constitute plain error.

Zalapa, 509 F.3d at 1064–65. Accordingly, we hold that the convictions on Count

One and Seventeen were multiplicitous. We therefore remand the cases of

Harmath, Caza, Rai, and Jagprit Sekhon to the district court, with instructions to

vacate one of the two multiplicitous convictions for each of those four Defendants,

and to resentence each.1

      8. Jagdip Sekhon’s argument that evidence from multiple conspiracies was

used to prove Count One necessarily fails because, for the reasons discussed above,

a rational trier of fact could find that the evidence proved a single conspiracy.

Therefore, there was no variance between the single conspiracy on which he was

charged in the indictment and the evidence adduced at trial. See United States v.

Fernandez, 388 F.3d 1199, 1226–27 (9th Cir. 2004) (citing Kotteakos v. United

States, 328 U.S. 750 (1946), and holding that, under variance theory, "if the



      1
         Although only Harmath raised this argument, the government at oral
argument conceded that, if the evidence proved only one conspiracy, the
multiplicitous convictions should be corrected for each of the four Defendants
sentenced on Counts One and Seventeen. Because the error is plain, we agree.
                                           9
indictment alleges a single conspiracy, but the evidence at trial establishes only

that there were multiple unrelated conspiracies, there is insufficient evidence to

support the conviction on the crime charged").

      9. We review de novo whether Jagprit Sekhon occupied a "position of trust"

under U.S.S.G. § 3B1.3. United States v. Laurienti, 731 F.3d 967, 973 (9th Cir.

2013). From the point of view of the victim, the United States government, United

States v. Technic Servs., Inc., 314 F.3d 1031, 1048 (9th Cir. 2002), overruled in

part on other grounds by United States v. Contreras, 593 F.3d 1135, 1136 (9th Cir.

2010) (en banc) (per curiam), adopting in part United States v. Contreras, 581 F.3d

1163, 1168 n.5 (9th Cir. 2009), Jagprit Sekhon did not "exercise substantial

discretionary judgment that is ordinarily given considerable deference," Contreras,

593 F.3d at 1136, adopting 581 F.3d at 1168 n.5 (internal quotation marks

omitted).2 Unlike the clients of a financial advisor who relied on his professional

expertise and fraudulent advice to make decisions, Laurienti, 731 F.3d at 973–74,

the United States did not rely on Jagprit Sekhon’s discretionary judgment. Instead,

the government relied on the professional discretion of its own officials: asylum

officers and immigration judges. On remand, the district court therefore is


      2
         We note also that many of the cases on which the parties rely, which use
the "difficult to detect" test for the "abuse of trust" enhancement, are no longer
good law. Contreras, 593 F.3d at 1136, adopting 581 F.3d at 1168.
                                          10
instructed to resentence Jagprit Sekhon without the "position of trust"

enhancement.

      AFFIRMED in part; VACATED and REMANDED in part.




                                         11
