17-3428 (L) United States v. Cardenas 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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st day of January, two thousand nineteen. Present: AMALYA L. KEARSE, ROBERT D. SACK, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. 17-3428 (L) 17-3450 (Con) MARIO CARDENAS, JENNIFER CARDENAS, Defendants-Appellants.* _____________________________________ For Appellant Mario Cardenas: JAMES EDWARD GROSS, Albany, NY. For Appellant Jennifer Cardenas: LUCAS ANDERSON, Rothman, Schneider, Soloway & Stern, LLP, New York, NY. For Appellee: PAUL D. SILVER, Assistant U.S. Attorney, for Grant C. * The Clerk of Court is respectfully requested to amend the official caption as set forth above. 1 Jacquith, U.S. Attorney for the Northern District of New York, Albany, NY. Appeal from a judgment of the United States District Court for the Northern District of New York (Scullin, S.J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Mario Cardenas (“Mario”) and Jennifer Cardenas (“Jennifer”) appeal from October 11, 2017 judgments of the Northern District of New York (Scullin, S.J.) convicting each of them, after jury trial, of six counts of visa fraud in violation of 18 U.S.C. § 1546(a). On appeal, Mario and Jennifer both argue that (1) the district court’s jury instructions constructively amended their indictment; (2) there was a prejudicial variance between the indictment and the evidence presented at trial; and (3) the evidence presented at trial was not sufficient to support the jury’s verdict. Jennifer also argues that the indictment failed to allege the “false statement” element of visa fraud. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review claims that there was a constructive amendment of, or prejudicial variance from, an indictment de novo. See United States v. Dove, 884 F.3d 138, 146, 149 (2d Cir. 2018). To prevail on a constructive-amendment claim and obtain reversal, a defendant must “demonstrate that either the proof at trial or the trial court’s jury instructions so altered an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury’s indictment.” United States v. Salmonese, 352 F.3d 608, 620 (2d Cir. ...
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals