United States District Court, D. Massachusetts
For USA, Plaintiff: Eugenia M. Carris, Jeffrey Mark Cohen, LEAD ATTORNEYS, United States Attorney's Office, Boston, MA; Zachary R. Hafer, United States Attorney's Office MA, Boston, MA.
MEMORANDUM AND ORDER
MARK L. WOLF, UNITED STATES DISTRICT JUDGE.
In 2011, defendant Richard Schwartz was sentenced by Judge Nancy Gertner to probation after pleading guilty to one count of conspiracy to commit fraud and misuse of visas. While on probation, Schwartz was discovered in possession of a purported Wisconsin driver's license that had his picture and the name, address, and driver's license number of a deceased veteran, John Slack. This court subsequently found that Schwartz violated the conditions of his Supervised Release by possessing a counterfeit license. In addition, this court found that he lied to the United States Probation Office (" Probation" ) about whether he possessed the license or knew of John Slack. Therefore, the court revoked his probation and sentenced him to six months in custody.
Schwartz moved to stay his sentence pending his appeal of the revocation of his Supervised Release and sentence. He stated that, on appeal, he would argue that the court applied an incorrect definition of " counterfeit," that the evidence to prove the alleged violation was insufficient, and that the sentence was unreasonable.
The court finds that Schwartz has not proven that he is entitled to be released pending appeal. First, the court utilized the definition of " counterfeit" Schwartz advocates when it found that the license in his possession was " falsely made." Second, there was sufficient evidence to find that the license was counterfeit and, therefore, that Schwartz violated Mass. Gen. Law ch. 90, § 24B. Among other things,
the Wisconsin Department of Motor Vehicles (" DMV" ) did not issue the license to Schwartz, the license was not a sample, Schwartz lied about possessing it, and Schwartz had access to the identifying information concerning Slack that was on the license. Third, the court would have given Schwartz the same six-month sentence even if Schwartz had only lied to Probation about whether he knew he possessed the license in Slack's name. Therefore, any error in deciding that § 24B was violated would be harmless.
Accordingly, Schwartz's motion for a stay pending appeal is being denied. In order to give Schwartz an opportunity to seek a stay from the First Circuit, he is being ordered to report to the United States Marshal to begin to serve his sentence on March 2, 2015.
In addition, the government filed a motion to add evidence to the record supporting the finding that Schwartz violated § 24B. It appears that the court may not now consider additional evidence in deciding whether § 24B was violated. However, the government stated at a November 21, 2014 hearing that it is no longer seeking to supplement the record on appeal. Rather, it asked the court to consider the additional evidence only on the issue of whether Schwartz would be dangerous if released pending appeal. As the additional evidence is material only to the issue of dangerousness, which the court need not decide, the motion to supplement the record is being denied.
Schwartz was charged in 2008 with conspiracy to commit fraud and misuse of visas in violation of 18 U.S.C. § 371. It was alleged that while an employee of the Commonwealth of Massachusetts, Schwartz signed false letters, printed on Commonwealth letterhead, indicating that the state would " employ nonimmigrant workers with H-1B Visas." Indictment, ¶ ¶ 11, 13, 15, 20-31 (Docket No. 1). Schwartz's co-conspirators gave these letters to non-immigrant visa applicants in India, who submitted them with their United States visa applications. Id., ¶ ¶ 13-17. Schwartz pled guilty. Judge Gertner sentenced him to three-years' probation and a $10,000 fine. See June 10, 2011 J. in a Criminal Case (Docket No. 110).
On April 18, 2014, six days before Schwartz's probation was to expire, Probation filed a Petition for Summons alleging two violations. (Docket No. 122 ex parte) (the " Petition" ). First, it was alleged that while Schwartz was being booked at the Middlesex County Jail for civil contempt of court, a court officer discovered a fake Wisconsin driver's license in Schwartz's wallet. Id. at 1. The license had Schwartz's picture and the name of John Slack, a deceased veteran. Id. Second, it was alleged that upon questioning by Probation, Schwartz, among other things, denied that he possessed the fake license or knew about John Slack. Id. at 2.
At a hearing on August 4, 2014, the court found that Schwartz committed the first alleged violation by knowingly possessing a " counterfeit" driver's license in violation of § 24B. Aug. 4, 2014 Tr. at 76-79 (Docket No. 153). In doing so, the court discussed two definitions of " counterfeit" used by the First Circuit in interpreting federal statutes. One definition was " falsely made." Id. at 78 (citing
United States v. Suá rez-González, 760 F.3d 96, 99 (1st Cir. 2014)). The other was something that " resembles sufficiently a real [document] that it could deceive an honest, intelligent person who is unsuspecting concerning it." Id. (quoting United States v. Gomes, 969 F.2d 1290, 1293-94 (1st Cir. 1992) (quoting the court below)). The
court found that under either definition the government had met its burden of proof. Id. Therefore, it was proven that Schwartz had violated the conditions of his probation by committing a state crime.
The court also found that Schwartz lied to Probation about possessing the counterfeit license. Aug. 4, 2014 Tr. at 101. This was a violation of the condition of Schwartz's probation that required him to answer questions from Probation truthfully. See J. in a Criminal Case at 2.
The court sentenced Schwartz to six months in custody, to be followed by 36 months of Supervised Release. He was ordered to begin serving his sentence on September 15, 2014.
Schwartz filed a notice of appeal on August 15, 2014 (Docket No. 150). On September 8, 2014, Schwartz filed an Emergency Motion to Stay Sentence pending appeal (Docket No. 155) (" Mot. to Stay" ). After the government filed an opposition, the court heard argument on the motion on November 21, 2014. Schwartz's reporting date has been suspended pending a decision on his motion.
Following the Motion to Stay, the government filed a Motion for Leave to File Supplemental Information in Opposition to Defendant's Motion to Stay (Docket No. 161) (" ...