Words (and Emojis) Of Love Not Hearsay
The United States Court of Appeals for the Fourth Circuit has reversed the three count convictions of two defendants who married while in law school and were later charged with immigration-related offenses.
A foreign service officer and a noncitizen were convicted of conspiring to fraudulently obtain U.S. citizenship for the noncitizen and making false statements in their efforts to do so. We conclude the evidence was sufficient to support each defendant’s convictions and thus reject the argument they are entitled to a judgment of acquittal. But because the jury was allowed to consider a legally inadequate theory on one count and an erroneous evidentiary ruling prevented the defendants from offering certain evidence on the remaining two counts, we vacate the convictions and remand for further proceedings.
I.
Andrey Kalugin and Laura Gallagher met in 2013, when they were students at the University of California, Davis School of Law. Kalugin was in the United States on a student visa; Gallagher is an American citizen.
The nature of Kalugin and Gallagher’s relationship and how it evolved was a major issue at trial. What is undisputed, however, is that they married in June 2015, just over a year after graduating from law school and a month and a half before Kalugin’s student visa was set to expire. Soon after, they signed and submitted government forms to get Kalugin a green card based on his status as Gallagher’s spouse.
In April 2016, Kalugin and Gallagher moved from California to Virginia, where Gallagher was training to become a foreign service officer. By the end of May, however, Kalugin had left Virginia, returning to California and obtaining a new California driver’s license that listed a California address.
In July 2016, Kalugin flew back to Virginia (with a ticket Gallagher paid for) for a green card interview with an immigration officer. Kalugin was granted conditional residency the same day, and flew back to California two days later.
The two then set about having Kalugin naturalized as a citizen. Because of Gallagher’s job, Kalugin was eligible for expedited naturalization under 8 U.S.C. § 1430(b), which waives the required residency period for noncitizens whose U.S. citizen spouses are “in the employment of the Government of the United States” and “regularly stationed abroad.” Gallagher filled out the required document (called a Form N-400) for Kalugin, had Kalugin sign it in August 2016, and submitted the form in September 2016.
In December 2016, Gallagher moved to Mexico to begin her first tour as a foreign service officer. Kalugin remained in California. Fourteen months passed with little action on Kalugin’s naturalization application. Then, in February 2018, Kalugin flew to Virginia for an interview with an immigration officer. After that interview, Kalugin took the citizenship oath and was issued a naturalization certificate. Kalugin immediately applied for and soon obtained a United States passport.
Kalugin then set off for Mexico himself, but stayed less than a month. About three months after Kalugin left Mexico for good, Gallagher filed for divorce in California, listing the separation date as May 1, 2016 (more than two years earlier). The divorce was finalized soon after.
In 2019, a foreign service officer filed a complaint about Gallagher’s conduct during Kalugin’s naturalization process. That complaint led to an investigation by the State Department’s diplomatic security service.
Evidentiary error
The government’s theory at trial was that Kalugin and Gallagher’s marriage was over by the spring of 2016 and that everything after that was part of a conspiracy to obtain immigration benefits. See JA 1362–63 (government arguing in closing argument that Kalugin and Gallagher “decided to separate” in April 2016 but remained “in agreement” about seeking Kalugin’s naturalization). Seeking to rebut that claim, Kalugin and Gallagher each sought to introduce seemingly loving Facebook messages the two sent each other after Kalugin left Virginia to return to California, including those in which the couple sent photos, used emojis, or called each other pet names. The district court excluded those messages as inadmissible hearsay during trial, and reiterated that conclusion when denying a post-trial motion focused exclusively on its failure to admit the more limited set of messages offered by Kalugin.
Not hearsay
Not everything a person says or writes is hearsay. Hearsay is an out-of-court statement offered “to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c)(2) (emphasis added). If a statement is offered for any other reason, it is not hearsay and may not be excluded on that basis. See Fed. R. Evid. 802 (providing hearsay is generally not admissible but establishing no broad rule against out-of-court statements). A classic example are statements offered for their effect on the listener. See United States v. Simmons, 11 F.4th 239, 263–64 (4th Cir. 2021). Such statements are not hearsay because their relevance does not depend on whether the declarant spoke the truth. Instead, they are admissible because they are offered to “establish the state of mind thereby induced” in the recipient or “to show the information which [the recipient] had as bearing on the reasonableness [or] good faith . . . of subsequent conduct.” 2 McCormick on Evid. § 249 (8th ed.) (McCormick).
That is exactly what we have here. Whether Gallagher truly loved Kalugin when she wrote him saying she did, the messages were relevant to show what Kalugin could have believed about the state of the marriage based on what he was hearing from Gallagher. And the affectionate messages Kalugin sent Gallagher are similarly relevant to show the effect they would have had on her. In concluding otherwise, the district court “relie[d] on [an] erroneous . . . legal premise[].” Wall v. Rasnick, 42 F.4th 214, 220 (4th Cir. 2022).
The district court also outpaced its discretion in concluding each defendant’s expressions of their own affection fell outside the hearsay exception for statements of a “declarant’s then-existing state of mind” under Rule 803(3).
Reversible error
Because we cannot conclude it is “highly probable that the [evidentiary] error did not affect the judgment,” we vacate the convictions on Counts 1 and 3 as well. Id. at 350