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United States v. Wantuch

May 1, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RAFAL WANTUCH, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CR 165-Elaine E. Bucklo, Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge.

ARGUED JANUARY 25, 2008

Before BAUER, WOOD and EVANS, Circuit Judges.

Rafal Wantuch was indicted on charges of conspiracy to defraud the United States, bribery of a public official, fraudulent receipt of temporary Alien Registration Stamps, and making false statements to the (now defunct) Immigration and Naturalization Service ("INS"). Much of the evidence admitted at trial consisted of various recorded conversations between Wantuch and a cooperating witness, his co-conspirators, and undercover officers, from March of 1999 to October of 2000. A jury convicted Wantuch on all four counts. The district court sentenced Wantuch to 63 months' imprisonment on each count, to be served concurrently. Wantuch appeals, challenging various evidentiary rulings by the district court and the jury instructions. We affirm.

I. Background

In 1998, the FBI, INS and Social Security Administration initiated a joint investigation called "Operation Golden Schemes," which focused on the criminal activities within Chicago's Eastern European community, particularly the marketing of fraudulent immigration documents. The FBI opened an undercover travel agency called G.S. Golden Travel ("GSGT"), located in a small two-story building on Belmont Avenue in Chicago. GSGT had a sign on the door that read "By appointment only," and was wired for audio and video surveillance. The FBI monitored GSGT from an adjacent storefront, and enlisted the services of several individuals: cooperating witness Gregory Sienkiewicz, a convicted felon with important connections within the eastern European Chicago community; undercover INS official Clarence Robinson, posing as a corrupt INS official who sold authentic green cards to illegal immigrants in exchange for bribes; Tommy Stevens, another undercover INS official who assisted clients in obtaining fingerprints for the green card applications; and (among others) FBI agents Michael Rogers and Robert Kowalski, who conducted surveillance at GSGT.

As part of the investigation, Sienkiewicz spread the word (with the help of official business cards) throughout the criminal community that he had plenty of financial resources to spend on contraband and stolen goods, and that he was running an illegal green card operation out of GSGT. (The business card was less explicit about the illegal aspects of the business). The cover story was that Sienkiewicz made an INS connection while he was in prison, which led him to partner with a crooked INS official (Robinson) who was willing to accept a bribe of $5,000 in order to issue green cards to illegal immigrants.

After word got out in the community about GSGT, "brokers" began contacting Sienkiewicz, seeking green cards for their illegal immigrant "clients" in Chicago. Brokers and their clients would make appointments at GSGT, bringing with them identification, fingerprints (obtained from Tommy Stevens) and medical examination records. Sienkiewicz acted as a liaison between the brokers and Robinson, and took a portion of the payments that the brokers received from their clients. Sienkiewicz would take them to Robinson's office, where Robinson would conduct an interview and pretend to sell green cards. He instructed the client to make false representations on INS forms, namely that the client was being sponsored by an immediate family member who was a United States citizen, and to state that the interview was not conducted at GSGT, but at the INS office at 10 West Jackson, in downtown Chicago. At the end of the interview, he placed an official INS I-551 stamp on each client's passport.

In March of 1999, the FBI received information that a man had thirty boxes of contraband cigarettes for sale, and he was looking for a buyer. Sienkiewicz met the seller, who turned out to be Wantuch, at a building in northwest Chicago. (Wantuch, a native of Poland, legally obtained a green card when he came to the United States in 1993.) Wantuch offered to sell the cigarettes for $15,000. Wantuch and Sienkiewicz went back to GSGT where Sienkiewicz gave Wantuch the cash. Wantuch told Sienkiewicz that he had "other merchandise," if Sienkiewicz needed anything, and that Wantuch would call him to conduct business in the future.

On May 19, 1999, Wantuch sold another box of contraband cigarettes to Sienkiewicz for $250. Wantuch also offered to sell Sienkiewicz stolen cars, liquor and other hot merchandise. Wantuch lamented that he was broke and needed to make more money, and asked Sienkiewicz if he needed or wanted anything. The discussion turned to green cards, and Wantuch lowered his voice and inquired about whether there were "bugs." He discussed the possibility of working with Sienkiewicz to bring in clients to obtain green cards. They talked about details, confirming that Sienkiewicz's "partner" Robinson required $5,000 and Sienkiewicz would receive fifty percent of the profits. Wantuch said that he already had a client lined up who would pay $12,000 for a green card.

Wantuch soon became quite the successful broker, acquiring as many as fourteen clients from July of 1999 to April of 2000, to purchase green cards.*fn1 He charged his clients between $5,000 to $13,000 in cash, above and beyond the $5,000 bribe paid to Robinson. Wantuch attended the interviews with his clients at GSGT, where Robinson gave blank INS forms to Wantuch's clients, instructed them to falsely claim that they were sponsored by immediate family members who were United States citizens and told them that they were already approved by the INS. During these interviews (caught on videotape by the FBI), Wantuch assisted in coaching his clients to make the false representations.

Jurgita Savickiene was one of Wantuch's clients. She and her sister, Lina, were illegal immigrants from Lithuania. In October of 1999, they heard about Wantuch's INS connection, and went to Wantuch's apartment to fill out the paperwork. Jurgita asked Wantuch how the process worked, and Wantuch explained to her that she would have to obtain fingerprints, a medical examination, and go to GSGT to meet the immigration officer who would place a stamp on her passport. Wantuch told Jurgita that it did not matter what her actual immigration status was, and that she was "pretty much safe." Jurgita said she would think about it, and Wantuch responded that the "immigration guy" would be raising his prices. Jurgita eventually agreed to pay Wantuch for a green card. She went to Wantuch's apartment on November 3, 1999, to fill out the paperwork, and they agreed on a price of $13,000. Jurgita gave Wantuch $3,000 as a down payment. Wantuch later called her to say he had made an appointment for her at GSGT and to bring the remaining $10,000 in cash with her.

On December 13, 1999, Wantuch and Jurgita arrived at GSGT with the paperwork. Jurgita testified that she knew that the travel agency was not an INS facility. During the meeting, in which Sienkiewicz was present, Wantuch, Jurgita, and Robinson went over her paperwork. Robinson told her that if she was ever asked, to say that her sister was a U.S. citizen and her immigration interview was conducted downtown at the INS office. Wantuch agreed, and also told her, "Just don't worry about anything, just go to the line for the U.S. citizens in the airport . . . just don't go to the visitor's . . . everything is going to be in the computer." Robinson stamped her passport. Wantuch took the cash from Jurgita, gave $5,000 to Robinson and $2,000 to Sienkiewicz, and placed the remainder of the cash in his sock.

Gregorz Gudanowski, an illegal immigrant from Poland, was Wantuch's fourteenth and final client. Gudanowski was introduced to Wantuch by a friend, and met with him in February of 2000 to discuss Gudanowski's immigration problems.*fn2 Wantuch told Gudanowski that he could get a green card in six months for $20,000. Gudanowski thought the price was too high. Wantuch lowered his price to $16,000, and Gudanowski agreed to pay. On March 10, 2000, Gudanowski met Wantuch at the INS fingerprint office where Tommy Stevens worked, and gave Wantuch a down payment of $2,000. Wantuch set up an appointment at GSGT on April 19, 2000, and instructed Gudanowski to bring $10,000 cash, his paperwork, and passport. During the meeting in Robinson's office, Robinson stamped Gudanowski's passport and told him that, if anyone asked, he was interviewed at the INS office on Jackson. Wantuch told Gudanowski that "in case anyone ever asks you, you were at . . . West Jackson . . . downtown, Chicago. That's where you got this stamp." Wantuch told Robinson that Gudanowski did not have any relatives in the United States, to which Robinson responded, "Yes you do . . . you're his brother" and gestured to Wantuch. Wantuch agreed, stating "yeah, ok" and "in case anyone asks you, then say brother." Sienkiewicz told Wantuch to explain everything to Gudanowski later, to which Wantuch responded, "yeah." Gudanowski placed $10,000 on the chair and left. Wantuch paid Robinson $5,000, Sienkiewicz $2,500, and pocketed the remaining $2,500. Gudanowski never received his green card, and in 2003, he received a notice of deportation from the INS.

In mid-2000, Wantuch attempted to contact Sienkiewicz, who did not return Wantuch's phone calls for two months. They finally spoke on September 9, 2000. In a recorded conversation, Wantuch anxiously told Sienkiewicz that he had procured many new clients, some of whom already gave him a down payment for green cards. Sienkiewicz told Wantuch that he had put the INS business on hold, and to stop contacting Tommy Stevens. Wantuch promised to stop, explaining that he only contacted Stevens because he had not heard from Sienkiewicz.

In October of 2000, the FBI recorded a meeting with Wantuch and Robinson at GSGT. Wantuch complained that he could not reach Robinson since the business had slowed down, and he told Robinson that he had six more clients. Robinson explained that the INS was conducting an audit, but he was still in business, just taking things slowly. Robinson told Wantuch that "we don't want nobody goin' to jail." Wantuch responded, "Of course!"

On February 17, 2005, Wantuch was charged in a four count indictment: (1) conspiracy to defraud the United States in violation of 18 U.S.C. § 371; (2) bribery of a public official in violation of 18 U.S.C. § 201(b)(1)(A) and (2); (3) fraudulent receipt of temporary alien registration stamps, in violation of 18 U.S.C. § 1546; and (4) making false statements to the INS, in violation of 18 U.S.C. § 1001 (a)(2) and (2).

The government's theory was that between March of 1999 and April of 2000, Wantuch conspired with Gudanowski and his other "clients" to defraud the government by obtaining temporary green card stamps through bribes to an INS officer and false statements on green card applications. Prior to trial, the government submitted a written Santiago*fn3 proffer, which set forth the facts supporting the admission of relevant portions of the tape recorded conversations from 1999 to 2000 depicting Wantuch's involvement in Operation Golden Schemes, pursuant to the Federal Rule of Evidence 801(d)(2)(E). Wantuch filed no objections.

At trial, the aforementioned facts were introduced through nine witnesses called by the government, including Sienkiewicz, Robinson, Jurgita, and Gudanowski. The government also successfully moved to admit into evidence the audio and video taped conversations involving Wantuch, recorded on March 17, 1999, May 19, 1999, September 22, 1999, December 13, 1999, April 19, 2000, September 9, 2000, and October 4, 2000.

Wantuch testified in his own defense. He denied any wrongdoing, claiming that Sienkiewicz hired him to work for GSGT as an interpreter and office helper, and that Sienkiewicz told him that the INS wanted to sell immigration benefits on the black market in order to raise funds for the modernization of its computers for Y2K. Wantuch denied he was committing a crime during the March 17, 1999 and May 19, 1999 cigarette transactions, claiming he was moving the cigarettes for a friend. He also denied that he offered to get or sell Sienkiewicz guns or other stolen merchandise. He was shown video footage of the meetings at GSGT with his "clients" and Robinson, and admitted that he instructed and encouraged his clients to lie about having a United States citizen relative as green card sponsors, and to lie about having received their I-551 stamps at 10 West Jackson. However, Wantuch claimed that he only told his clients to lie because Sienkiewicz and Robinson told him to do so.

When asked about the payment of money on the video between Wantuch, Robinson and Sienkiewicz, Wantuch claimed that he was merely acting as a go-between for his clients. He denied making payoffs to Sienkiewicz, and said Sienkiewicz was actually paying Wantuch, since he was on the payroll at the office. He also admitted that he knew the proper location to obtain a green card was 10 West Jackson, and not GSGT, as he went through the application process and obtained a legal green card in 1993 when he immigrated to the United States. He also testified that he paid much less than $16,000-the amount he charged Gudanowski-to legally obtain his green card.

A jury convicted Wantuch on all four counts of the indictment. Wantuch was sentenced to 63 months' imprisonment on each count, to be served concurrently. This timely appeal followed.

II. Discussion

Wantuch raises four issues on appeal that we will address: (1) whether the district court erred by allowing Sienkiewicz and Robinson to testify as to their opinion of Wantuch's intent under Federal Rule of Evidence 701; (2) whether the court erred in admitting testimony about a confrontation between Gudanowski and Wantuch in 2003; (3) whether the court erred in admitting evidence of the cigarette sales between Wantuch and Sienkiewicz; and (4) whether ...


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