In March 2021, the Second Court of Appeals upheld the conviction of a Queens, New York immigration disbarred lawyer who was charged with falsifying asylum applications. However, an appellate judge’s concurring opinion questioned whether prosecutors had unfairly brought more charges than necessary.
In United States v. Dumitru, the Second Circuit Court of Appeals upheld a five-year prison sentence imposed upon disbarred lawyer Andreea Dumitru.
Ms. Dumitru was charged with one count each of asylum fraud, making false statements, and aggravated identity theft. Notably, prosecutors did not add the third charge, for aggravated identity theft, until six months after the original indictment was filed.
In a concurring opinion, Second Circuit Court of Appeals Judge Jon Newman questioned the addition of the third charge and raised concerns about prosecutorial overcharging.
In September of 2018, Andreea Dumitru was accused of submitting over 100 false asylum applications to the United States Citizenship and Immigration Services (USCIS) between 2013 and 2017.
Prosecutors claimed that, in an effort to secure asylum for her clients, Ms. Dumitru fabricated details of mistreatment, falsely notarized affidavits, and forged client signatures attesting to the truth of matters set forth in asylum applications.
As preparer of the applications, Ms. Dumitru was attesting that the applications were accurate based on her knowledge of the applicant’s specific circumstances.
Many of the applications for asylum were based on the persecution of the Roma ethnic group in Romania. Members of the disbarred lawyer's staff testified she directed them to recycle narrative sections used in prior client’s applications for asylum and to use accompanying affidavits filed in prior client applications. By recycling these narrative sections, the applications did not form the basis for asylum that was specific to the particular individual applicant.
A government investigator corroborated these statements, testifying that he had reviewed 105 applications and that 100 of them contained one or more nearly identical narratives of past persecution. These narratives fell into five categories, which included broken school supplies, being beaten while in police custody, being personally stopped by police, being beaten in a factory, and being beaten outside a bar in Bucharest.
Ms. Dumitru’s staff members also testified that they signed and notarized affidavits and applications on behalf of clients in the space designated for the client’s signature, often without sending the documents to the client for review.
Former clients testified that they had not reviewed the applications submitted on their behalf before filing and that the applications contained inaccurate information.
The consequences of falsifying asylum applications could have severe consequences for Ms. Dumitru’s clients. If an immigration judge were to find that the applications were deliberately fabricated, the applicant could be permanently barred from receiving relief under the Immigration and Nationality Act.
At trial, Ms. Dumitru was convicted on all three counts and sentenced to five years in prison. She appealed, arguing that there was no evidence to support a conviction for aggravated identity theft.
The appellate court ultimately affirmed the disbarred lawyer's conviction, finding that charging her with aggravated identity theft did not lead to any additional adverse consequences because the trial judge sentenced Dumitru to concurrent sentences and could have arrived at the same five-year sentence without a conviction for identity theft.
However, in a concurring opinion, Appellate Judge Jon Newman questioned the fairness of the prosecutor’s decision to include the additional charge for aggravated identity theft.
In his concurrence, Judge Newman noted that prosecutors are expected to exercise judgment in deciding whether to charge a defendant with every statutory violation that could conceivably be brought. He also identified the following five factors that prosecutors should consider when deciding which charges to bring:
Judge Newman wrote that the case is “an example of a prosecutor’s decision to charge multiple counts that approaches, if not exceeds, the limits of fairness.”
Noting that the third charge for aggravated identity theft was added six months after the filing of the original complaint, he opined that the government simply wanted to add an additional two years of punishment.
Judge Newman concluded his opinion by noting that, while the indictment was lawful and the same sentence could have been arrived at with or without a conviction for identity theft, the question remains: “Was it fair?”
Expressing disappointment with the result, lawyers for Ms. Dumitru stressed Judge Newman’s concurring opinion, noting that “what happened to Ms. Dumitru is not fair” and that the government charging decision was an attempt to “exact the maximum punishment on a first-time offender.”
Prosecutors wield enormous power and have broad discretion when choosing which statutes to charge a criminal defendant with violating. As Judge Newman notes, there are important factors that prosecutors must consider when deciding what charges to bring. Unfortunately, in their zeal to secure a conviction and strengthen their position when negotiating a plea bargain, too many prosecutors overcharge criminal defendants.
Hope Lefeber would know; she started her career as an enforcement attorney with the United States Securities & Exchange Commission (SEC), where she learned first-hand how the government prepares and prosecutes federal criminal cases.
Today, Ms. Lefeber uses that experience to defend people facing criminal charges in federal court.
New York City federal criminal defense attorney Hope Lefeber is an aggressive and tenacious defender of her clients’ rights who vigorously opposes prosecutorial overcharging. She has received numerous accolades for her work, has lectured on federal criminal defense topics, and has appeared on TV as a legal expert.
Ms. Lefeber has defended high-profile clients in high-stakes litigation, including executives at Fortune 500 Companies, businessmen and women, doctors, lawyers, professors, healthcare professionals, and other people who have been charged with crimes in federal court.
If you are under investigation or have been charged with a crime in federal court, Hope Lefeber should be your first call. Contact Ms. Lefeber today to schedule a confidential consultation to discuss your case.