CASE NUMBER 17-60137-CR-KMW: United States Court Reporter

Case 0:17-cr-60137-KMW Document 235 Entered on FLSD Docket 08/21/2018 Page 1 of 25
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UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
3 C A S E N U M B E R 1 7 - 6 0 1 3 7- C R - K M W
4 UNITED STATES OF AMERICA
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vs.
6
VERA MUZYKA
7 DARIA ERSHOVA
VLADIMIR NEVIDOMY
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9 _______________________________________________________________
10 HEARING HELD 11-20-17

BEFORE THE HONORABLE KATHLEEN M. WILLIAMS
11 UNITED STATES DISTRICT COURT JUDGE
_______________________________________________________________
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APPEARANCES:
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FOR THE UNITED STATES: JESSICA OBENAUF, A.U.S.A.
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15 FOR THE DEFENDANTS: PHILIP HOROWITZ, ESQ.

MARTIN ROTH, ESQ.
16 YANINA SHEINKERMAN, ESQ.
17 REPORTED BY: PATRICIA SANDERS, RPR

United States Court Reporter
18 400 North Miami Avenue, Suite 11-3
Miami, FL 33128
19 T: 305.523.552
patricia_sanders@flsd.uscourts.gov.
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1 COURTROOM DEPUTY: This Court calls Case No.
2 17-CR-60137; United States versus Daria Ershova, Vera Muzyka
3 and Vladimir Nevidomy.
4 Counsel, please state your appearances.
5 MS. OBENAUF: Good afternoon, Your Honor, Jessica
6 Obenauf on behalf of the United States.
7 THE COURT: Good afternoon, Ms. Obenauf.
8 MS. SHEINKERMAN: Good afternoon, Your Honor, Yanina
9 Sheinkerman on behalf of Vera Muzkya who is present before the
10 Court.
11 MR. ROTH: Good afternoon, Your Honor, Martin Roth on
12 behalf of Daria Ershova who is here with me at counsel table.
13 THE COURT: Good afternoon.
14 MR. HOROWITZ: Good afternoon, Your Honor, Phil
15 Horowitz on behalf of Vladimir Nevidomy who is not present but
16 on his way.
17 THE COURT: Well, Mr. Horowitz, this matter was set
18 down about three weeks ago. I would have assumed you would have
19 informed him of the date and time of the hearing.
20 MR. HOROWITZ: Your Honor, I just spoke with him; he
21 is in Doral and on his way.
22 THE COURT: Which means of course means he will not be
23 in this courtroom until at the very earliest 3 o'clock.
24 Well, we cannot start without him, so I am going to go
25 back to chambers. Everyone is free to step out if they would

3
1 like and be back at 3 o'clock. I apologize to those of you who
2 are here on time. All right. I will be back when Mr. Nevidomy
3 arrives.
4 RECESS TAKEN
5 THE COURT: Good afternoon, again; everyone may be
6 seated. Mr. Nevidomy is now present. We are here on today on
7 Ms. Ershova's motion to dismiss.
8 At the conclusion of this hearing we will have some
9 bond discussions with regard to your client, but I want to move
10 forward at this time since we have started late.
11 MR. HOROWITZ: Yes, Your Honor.
12 THE COURT: As I said, we are here on Ms. Ershova's
13 motion to dismiss, which has been adopted by the codefendants.
14 The parties have fully briefed this matter and the
15 Government has responded. I don't know if the parties had any
16 particular matters they wished to argue before I made inquiry.
17 There are some things I am a little unclear on, but I
18 will turn to you Mr. Roth to see what your proposal is for
19 going forward.
20 MR. ROTH: Thank you, Your Honor. I have argued a few
21 matters before you; and I know Your Honor has read everything
22 and may understand this area of the law better than I do.
23 I did my best to present the issue to Your Honor in my
24 papers, so I don't want to go over what I put in my written
25 pleadings.
4
1 I wanted to try to emphasize or highlight to the Court
2 -- and I would ask the Court to take a look at the DS-3053
3 form; which I think was Exhibit 1.
4 THE COURT: Yes.
5 MR. ROTH: I have looked at the statute; and it does
6 not define statement. I have looked through the CFR's and it
7 does not define statement.
8 I have looked at the form, the instructions to the
9 DS-3053 -- they have instructions as to how to complete
10 paragraphs 1 through 4.
11 That's in the section that says form instructions; and
12 those instructions all apply to the applicant. The applicant
13 would be the parent of the child, or if the child has a
14 guardian.
15 On the form itself, paragraphs 1 through 4 are titled
16 statement of consent; but paragraph five, which applies to the
17 the notary, is entitled statement of consent notarization.
18 As I see it -- because the term statement is not
19 defined anywhere in the statute or in the Code of Federal
20 Regulations -- but when you look at how the agency itself is
21 looking at the term, they seem to be identifying the statement
22 portion, paragraphs 1 through 4 and paragraph five, as being
23 something separate; being a statement of consent notarization.
24 THE COURT: I did read your brief, and I think the
25 Government acknowledged no one can find a case on all fours.

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1 But in the warning false statements made knowingly and
2 willfully, and passport applications including affidavits or
3 other supporting documents; that's where I got stuck on your
4 presentation, Mr. Roth.
5 Because clearly this is an other -- if not these
6 supporting documents, other supporting documents; and under
7 five, statement of notarization, the certification is I have
8 personally witnessed whoever signed.
9 Now, at some point -- granted this is a first for me
10 -- in the case maybe there is a question of materiality; but I
11 think purely on the question of whether the Government has
12 alleged appropriately under the statute by the statutory terms
13 a crime, I think it is a unique area, but I don't know that at
14 this juncture it is an appropriate motion to dismiss inquiry.
15 MR. ROTH: I know that the authority to grant a motion
16 to dismiss of course is a very narrow authority; but what I did
17 note throughout the indictment is that all of the overt acts --
18 and in the substantive counts -- they specify what the false
19 statements are.
20 They are all the errors in the notarization. And so
21 the indictment does not reference any other type of false
22 statement.
23 Then I went through all of the cases -- not just in
24 1542 -- but I looked at 1001; and I could not find a single
25 case where a notary was charged.

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1 There were cases where notaries were called as
2 witnesses and so forth.
3 THE COURT: Right.
4 MR. ROTH: Then I found those two statutes that apply
5 specifically to notaries. So I think it makes sense why we
6 can't find a case. And I believe the statute was written in
7 1941 or has been in effect since 1941.
8 And before that there was a related or somewhat
9 similar statute. I could not find anything in the legislative
10 history.
11 Because paragraph five is not titled -- it is not
12 titled statement of notarization; it is titled statement of
13 consent notarization. And I think that is a very important
14 distinction.
15 Paragraphs 1 through 4 conclude by saying -- it is
16 oath -- I declare under penalty of perjury that all statements
17 made in this supporting documents are true and correct.
18 And paragraph five the notary is acknowledging an
19 oath; and they are certifying that the person has signed in
20 front of them.
21 There is no penalty of perjury warning. I think it is
22 distinct from the statement itself. The notary is not an
23 applicant; and the notary is not representing any facts by way
24 of a statement. They are simply -- in this case if the
25 Government's allegations are correct -- they are making a false

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1 notarization.
2 THE COURT: Okay.
3 MR. ROTH: Sometimes an indictment will specify and
4 says and other acts, but there is no reference to that in the
5 indictment.
6 So, within the four corners of the indictment either
7 this false notarization is a statement or the indictment does
8 not charge a crime.
9 THE COURT: Well, in the acts in furtherance in 4 and
10 5 the Government characterizes the false misrepresentation as
11 Ms. Ershova personally witnessing the signature of the parent,
12 when, in fact, no such person had appeared before her.
13 So under your reading prosecutors would always be
14 restricted in pursuing any activities by notaries to having
15 them punished by the notary officials.
16 I am assuming Ms. Obenauf -- without having to reveal
17 the Government's evidence -- there is evidence of a connection
18 between these three codefendants that go beyond Ms. Ershova
19 coming in and notarizing; and the out she goes to conduct her
20 life never to intersect with these two folks again.
21 Am I correct in that assumption?
22 MS. OBENAUF: Yes, Your Honor.
23 MR. ROTH: And I know Your Honor has to rely on what
24 the Government tells you at this time.
25 THE COURT: Yes.

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1 MR. ROTH: The evidence will show that Ms. Ershova was
2 a student at FIU and she worked at a medical office part-time.
3 She made an hourly income of -- I believe $15 an hour. The
4 evidence will not show she received any bonuses or any extra
5 payment.
6 She was a notary and she notarized documents within
7 the office. I don't think the evidence will show anything other
8 than that.
9 THE COURT: All right. Let me turn to Ms. Obenauf
10 because I do have some questions. Explain to me the process of
11 how this all worked if you would.
12 What was described in the defense motion is that this
13 medical center has an office somewhere in Moscow that offers to
14 Russian nationals services for people who want their children
15 to be born in the U.S.
16 Correct me if I'm wrong; I thought that that was
17 frowned upon, generally speaking, from an Immigration context.
18 I guess there are exceptions -- so tell me if you would what is
19 going on here.
20 MS. OBENAUF: So, what I can tell the Court is that the
21 practice of coming into this country and having a child while
22 in this country is a legal practice.
23 THE COURT: Yet some people have been quite vocal and
24 critical of certain nationalities doing such a thing. So, I am
25 not clear on how this works.

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1 MS. OBENAUF: So, Your Honor, I can't speak to the
2 policy reasons or the politics behind it, but what I can tell
3 the Court is Status Med, also known as Sunny Medical Center, is
4 a business that does have a practice of advertising their
5 services in foreign countries; primarily Russia.
6 And they do advertise that they can assist women who
7 are pregnant to come to the country and obtain American
8 citizenship for their children born in the United States.
9 THE COURT: And no one in Immigration has thought in
10 light of announced policies and objectives -- no one finds this
11 problematic? As a representative of the Executive Branch I am
12 asking you because I think in general were people to know this
13 they might be as confused as I am.
14 MS. OBENAUF: Right; and I think there have been issues
15 that have been identified, but we are not going to argue in any
16 way in this courtroom and during this trial that there were
17 nefarious reasons these people came into the United States and
18 had their children here.
19 I do think the problem has been identified through
20 several different agencies; but I just can't speak to what is
21 happening to rectify the issue.
22 THE COURT: Okay.
23 MS. OBENAUF: What I can say is this company entered
24 into contracts with pregnant women in Russia who were then
25 brought into the United States and subsequently gave birth.

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1 And the contractural agreement with Sunny Medical or
2 with Status Med is that they would assist them in traveling to
3 doctor's appointments, to and from the airport; sometimes they
4 found places for them to live while they were here.
5 And also to prepare and complete any documents that
6 were necessary in order to obtain U.S Citizenship for their
7 children born in the United States; including getting them
8 their U.S. passports.
9 THE COURT: So I am clear, this company advertises and
10 markets its services in Russia -- and I suppose but I don't
11 know -- it could advertise its services in France, Mexico or in
12 Argentina; and say we will help you have your babies here and
13 become U.S Citizens, and that's okay?
14 MS. OBENAUF: Your Honor, the Government is not saying
15 it is okay -- there have been other cases that have involved
16 people of other nationalities.
17 There was a case in California involving the same
18 practice as it related to primarily Chinese nationals.
19 THE COURT: What was that about? Was that thought to
20 be not consonant with Immigration policies?
21 MS. OBENAUF: The process of the pregnant women coming
22 into the country whereby they obtain B1, B2 Visa's, the tourist
23 Visa's, from what I understand they have not -- at least the
24 mothers involved in this investigation -- for the most part
25 were not denied entry when they stated they were coming here
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1 for tourism purposes; and even including having a child. And
2 Obviously those issues are -- they should be addressed by
3 Immigration -- but here we are talking about obtaining these
4 documents for their clients by fraudulent means through the
5 practice of fraudulent notarization.
6 THE COURT: Right. And one of the reasons I set this
7 down for hearing is I was somewhat startled when I read these
8 facts -- I thought, well, no, I must have this wrong; but it
9 appears I do not.
10 But here we are. And so let me ask you, Ms. Obenauf,
11 Sunny Medical Center is it still a thriving business here in
12 South Florida or has it been shut down?
13 MS. OBENAUF: As far as I know, Your Honor, they are
14 still thriving; although I can't really speak to that.
15 THE COURT: So, the Government's position I take it,
16 as to Ms. Ershova's role at least, is this is somebody who
17 worked at Sunny Medical Center who was filling out the notary
18 forms; that they do qualify as a statement and the fact that
19 these persons did not appear before her is the issue?
20 MS. OBENAUF: Correct.
21 THE COURT: So if the fathers had appeared before her
22 everything would be oakie doakie?
23 MS. OBENAUF: Yes, Your Honor. If the fathers had
24 appeared before her on the date that she notarized the form
25 then, yes.
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1 THE COURT: That's basically the gist of this entire
2 case, that these defendants were generating documents saying
3 they had personally witnessed persons presenting themselves
4 when, in fact, that was not the case?
6 THE COURT: They all worked for Sunny Medical Center;
7 the three defendants in this indictment?
9 THE COURT: This business that is still ongoing, do we
10 have any information about its business practices?
11 Who is it owned by?
12 MS. OBENAUF: They did have a medical doctor on staff;
13 there were -- there was an insurance fraud investigation that
14 stemmed out of this investigation.
15 I just learned today that that State prosecution was
16 dismissed; and I am not sure why. I know that there were
17 charging documents that came down for insurance fraud in State
18 Court at the same time the defendants were arrested in this
19 case.
20 It is my understanding they were offering medical
21 services that they perhaps should not have been -- that there
22 were some type of issues.
23 THE COURT: I obviously cannot ask the Government to
24 reveal its case; but I am assuming there will be someone that
25 can come forward as a witness to say this gentleman was not in

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1 the United States, this gentleman is this child's father --
2 something to give these statements context in terms of their
3 falsity or materiality to the applications?
5 THE COURT: All right; thank you, Ms. Obenauf.
6 I think I understand the position of the United
7 States.
8 MR. ROTH: One quick point.
9 THE COURT: Yes, of course.
10 MR. ROTH: What the evidence is going to show is that
11 the mother, and sometimes the mother and father, would go to
12 the United States Embassy in Moscow and apply for a Visa to
13 come to the United States.
14 And based upon the discovery I have seen, Visa's were
15 issued, and on some of the applications notes are made that the
16 parents provided proof that the medical bills had been prepaid
17 and so forth.
18 So, there is nothing surreptitious at all -- and the
19 Government to my understanding will have no evidence that shows
20 anyone misinformed the Embassy.
21 So, when you go to the Embassy; there is nobody there
22 from Immigration who decides whether or not you get a Visa.
23 And, Your Honor, these are officials of the U.S. State
24 Department, which is the same agency that is bringing the
25 investigation in this case.

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1 The State Department issued the Visas; and then when
2 the person comes to the United States and presents their
3 passport and Visa it is at that point that U.S. Immigration
4 looks at the Visa.
5 THE COURT: All right.
6 MR. ROTH: Since there was no fraud in obtaining the
7 Visa I don't think Immigration would have denied entry because
8 the people would have had valid Visa's.
9 THE COURT: So, you and the Government seem to be in
10 agreement up to that point. The problem is it appears either
11 the father did not, in fact, travel to the United States to
12 present his paperwork for reasons that may or may not come out
13 at trial, which led to the problem with the documentation.
14 And I suppose there might be discussion as to why that
15 was; but I think for purposes of a motion to dismiss quite
16 frankly the -- while there may be not CFR or case law that
17 gives us clear direction -- I think the language of the forms
18 gives at very least notice to whoever is filling out the form
19 and is involved in that documentation in support of this is
20 considered part of what would be amenable to punishment under a
21 false statement claim.
22 Predominately because there is a conspiracy charge Ms.
23 Ershova's contention -- at least at this juncture -- that she
24 was perhaps an unwitting pawn and only negligent as opposed to
25 criminally liable is I don't believe something that I can

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1 determine at this stage based on the pleadings.
2 MR. ROTH: Understood.
3 THE COURT: Thank you, Mr. Roth. Did co-counsel have
4 anything additionally to add?
5 MS. SHEINKERMAN: Briefly if I could just clarify some
6 questions that Your Honor was asking Ms. Obenauf.
7 THE COURT: Yes, of course.
8 MS. SHEINKERMAN: Your Honor is correct, the business
9 did advertise its services to the expectant mothers; however
10 when the expectant mothers would go to the Russian Embassy they
11 would go there to apply for a Visa with a cover letter or a
12 letter of invitation prepared by the business.
13 When applying for the Visa the mothers would have to
14 show they would not be a financial burden to the United States
15 and that the bills were paid and would be paid.
16 So in essence it was not just what would be referred
17 to as birth tourism; but it was for the medical care and
18 treatment, which was superior, that they would receive in the
19 United States.
20 The child would then as a result of being born here
21 also be a U.S Citizen; but the essence of the business was a
22 package to make the birthing experience better for the mother
23 and child.
24 Since the lack of medical care -- or the medical care
25 in Russia -- is almost frightening at times; and depending on

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1 where you reside it worsens. So, again, it was not just that
2 the child would become a U.S Citizen, but it was the whole
3 gamut of services that were provided.
4 THE COURT: I imagine there are some people who think
5 that the medical options in Haiti or Honduras or Guatemala are
6 pretty appalling; but I don't think they have that type of a
7 tourism market -- although I guess I could be wrong.
8 MS. SHEINKERMAN: I did want to say also that the
9 business is still operating, and the legality of the business
10 was never questioned.
11 The fact that the business does remain intact I think
12 demonstrates that laws were not broken. The United States may
13 be questioning the parameters of the law; however, it has not
14 been found or declared illegal by the Legislature or anyone
15 else.
16 I represented Ms. Muzyka in the State case, and the
17 Court did grant a motion to dismiss as to all three defendants
18 in the State case where the Court did not find the business was
19 committing any kind of insurance fraud or any other type of
20 illegality. And the Court did dismiss the information in the
21 State case as well.
22 THE COURT: Were the fraud charges -- they were not
23 tied into Medicare; is that correct?
24 MS. SHEINKERMAN: They were not, Your Honor.
25 THE COURT: All right.

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1 MS. SHEINKERMAN: There was a dispute where a former
2 physician, who was an owner of Sunny Medical Center, went to
3 the FBI -- and this was provided in the warrant and discovery
4 from the Government -- where she went to the FBI and alleged
5 Medicare and Medicaid fraud, money laundering, all sorts of
6 allegations.
7 Those charges were unsubstantiated; and therefore the
8 Court dismissed the State Court charges against them.
9 That warrant however was what enabled the FBI to get
10 access to e-mails and text messages for the codefendants
11 sitting here today.
12 Those e-mails and text messages upon further digging
13 and investigation led to the false statement on passport
14 applications; and why we are here today.
15 I would like to add that in the Government's discovery
16 they provided travel documentation of the consenting fathers.
17 I don't think the Government is alleging any of the fathers
18 were not consenting -- did not want their children to become
19 U.S Citizens.
20 But in four counts of the indictment the fathers were
21 actually present in the United States at or around the time of
22 the birth of the child.
23 So I believe in essence what the case is about is not
24 that the fathers were not consenting to the children becoming
25 U.S Citizens, not that the fathers did not sign the DS-3053's,
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1 rather the fathers did not sign the DS-3053's at the time that
2 the stamp and date of the notary was put on those DS-3053's.
3 I do not believe there is a victim father that will
4 come forward and testify that they did not want their child to
5 be present in the United States at the time of their birth or
6 they did not want their child to become a U.S Citizen.
7 If you look at the DS-11 instructions and look at the
8 DS-35 there is a difference in the instructions section when it
9 comes to consenting parents.
10 If the parent is not present -- if the second parent
11 is not present, which in this case is the fathers -- the
12 DS-3053 must be signed.
13 The DS-3053 does not state that it must be dated and
14 notarized on the same date the father's signature is placed on
15 that document; and the DS-11 does.
16 However, Your Honor, the DS-11 does not require any
17 kind of notarization. So the instructions do differ -- and I
18 think that does create some type of confusion as to the
19 notary's responsibilities because the notary is just notarizing
20 the DS-3053 not the DS-11.
21 THE COURT: The Government has chosen to charge this
22 in the manner it has under this particular title.
23 Apparently no one has found any similar scenario to
24 give to the Court. If I were to look perhaps to analogous
25 circumstances in say a 1001 -- although we are getting into

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1 different territory here -- but it does not matter if it
2 requires the time and date be stated at the same time; you are
3 making a false statement to an agency. And the question is
4 materiality in that instance.
5 So, on a motion to dismiss where the Government is
6 citing a statute, and has language that covers the elements of
7 the statute, the matter you bring to my attention I don't think
8 I can factor in, in making a determination.
9 Mr. Horowitz, do you have anything you would like to
10 add on behalf of Mr. Nevidomy?
11 MR. HOROWITZ: Your Honor, we filed a motion to adopt a
12 little more than a month ago; so I would ask that the motion be
13 granted on his behalf.
14 THE COURT: Oh, if I have not done that I apologize;
15 and I would grant that motion.
16 MR. HOROWITZ: I just want to echo what Ms. Sheinkerman
17 said about this being a totally legal business. I think that is
18 the most important issue that we have here; that this is a
19 totally legal business.
20 What the court of public opinion may believe as to
21 this type of a business does not really matter; the most
22 important thing is it is totally legal.
23 And there were no laws that were being violated to
24 bring these mothers in here. They provided legitimate and legal
25 services to these mothers; and the children that were born here
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1 are obviously U.S Citizens.
2 THE COURT: Right.
3 MR. HOROWITZ: But the crux of my argument is the oath
4 of the notary on the bottom of the DS-3053 -- I think everyone
5 is correct this is kind of unchartered territory.
6 But I have been able to find one case that maybe I
7 would say is close -- definitely not on all fours -- it is
8 United States versus S-A-R-W-A-I; 669 F.3d 401.
9 It is a Fourth Circuit case from 2012. And I have an
10 extra copy for the Court and the Government.
11 In that case it was the definition of the term father
12 on the DS-53. And Mr. Sarwai -- and I know I am butchering the
13 name -- had been granted asylum into the United States; and he
14 tried to bring his step children in and did not indicate on the
15 application that he was the stepfather but indicated he was the
16 real father.
17 And the issue that he raised was -- he said the term
18 father was ambiguous, which was an interesting argument before
19 the Fourth Circuit.
20 The Fourth Circuit looked at a case called Bronston; a
21 United States Supreme Court case -- I will try to get the cite
22 for the Court. It is 409 U.S 352; a 1973 case from the United
23 States Supreme Court.
24 Which talks about -- that an individual cannot be
25 convicted of perjury when the alleged false statement was

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1 literally true but not responsive to the question asked and
2 arguably misleading by negative implication.
3 What it really talks about is literal truth. In this
4 case the main words in the oath are personally witnessed.
5 What Ms. Sheinkerman said was that the date of the
6 notary did not correspond with the date of the actual signature
7 on the form.
8 In other words, if a father came by on let's say
9 October 31st, 2017 and signed it in front of the notary but the
10 notary did not affix the stamp and the date until let's say
11 November 15th of 2017, according to the Government, that would
12 be a violation of the statute.
13 And there are travel records that the Government has
14 provided that show that these fathers -- and I think in all
15 these cases and in all the counts alleged by the Government it
16 was the father's signature being contested.
17 In some of those cases the travel records correspond
18 with a period where the father was in the United States at or
19 near the birth of the child.
20 And so the Sarwai case deals with analysis of the 3053
21 form and talks about the form being so ambiguous; and that's
22 what we have here is an ambiguity.
23 THE COURT: I will give you that, Mr. Horowitz; this
24 whole case appears to represent ambiguity at every level of the
25 process.
22
1 Again, I don't know that that is for me to decide in
2 this context; that would be something a jury would have to
3 decide.
4 I thought, Ms. Obenauf, I read there were instances
5 where the Government had travel records where the parent was
6 not in the United States.
7 MS. OBENAUF: That is correct, Your Honor; Mr. Nevidomy
8 notarized two separate forms where the father never traveled
9 into the United States. And Ms. Ershova notarized two herself
10 where they had not traveled into the United States.
11 THE COURT: All right. In those contexts -- having
12 gone through this in another situation -- I don't know that a
13 situation where Mr. Nevidomy or Ms. Ershova had notarized
14 something where a parent had been in town on another date --
15 that wouldn't be relevant.
16 But if the allegation is they weren't here, the travel
17 records show they were not here, the signature was made that I
18 personally witnessed and signed the document -- if that's the
19 case.
20 MR. HOROWITZ: Yes, Your Honor. But we have a mixed bag
21 in this case; we have some where the travel records show the
22 fathers were actually here but not on the date of birth -- the
23 date the document was dated as opposed to the date they signed
24 it after presentation of valid identification to the notary.
25 THE COURT: Okay.

23
1 MR. HOROWITZ: So, we have that mixed bag of not all
2 the counts are where the father never traveled.
3 THE COURT: Okay. I don't know that I have a clearer
4 picture of what is going on; but at least I have a clearer
5 understanding of what the parties' positions are -- at least as
6 to the motion. So, I am going to deny the defendants' motion to
7 dismiss.
8 As I said, I think based on the indictment and the
9 case law with regard to a motion to dismiss, and the text of
10 both the DS-3053 and the form instructions and use of the form,
11 in the light most favorable to the Government I can find it to
12 be a statement.
13 There is warning that supporting documents would be
14 considered as such; and I don't think it exempts notaries from
15 the ambit of the penalty. So at this juncture I am going to
16 deny the motion to dismiss.
17 All right. Is there anything further the parties wish
18 to take up before we conclude this matter?
19 MR. ROTH: Yes, Your Honor. The trial calendar is the
20 period beginning January 8th. I had pre-planned a New Year's
21 cruise with my wife, which would go into that period. So, I
22 would ask to be set perhaps that next week if at all possible.
23 THE COURT: I have another matter that I think will go
24 the week of the eighth. I can't tell you whether you will go
25 that next week or if you will be rolled over to the next trial
24
1 period but you will be able to take your cruise; that is not a
2 problem.
3 MR. ROTH: I will believe the cruise will be during
4 the calendar call as well. So I would ask to be excused from
5 that as well.
6 MR. HOROWITZ: Your Honor, I will be more than happy
7 to stand in for Mr. Roth.
8 THE COURT: There you go. So, Mr. Roth, you may go and
9 enjoy your cruise.
10 MR. ROTH: I appreciate it, Your Honor.
11 THE COURT: All right. I would ask the parties to get
12 together and discuss some dates that you have available in
13 January and e-mail that to chambers; and I will get you a date
14 for trial either before or at calendar call.
15 MR. ROTH: Yes, Your Honor.
16 THE COURT: All right. We are in recess on this
17 matter.
18 HEARING CONCLUDED
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1 - - -
2 C E R T I F I C A T E
3 I hereby certify that the foregoing is an accurate
4 transcription of proceedings in the above-entitled matter.
6 /S/PATRICIA SANDERS
7 __________ _____________________
8 DATE FILED PATRICIA SANDERS, RPR
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CASE NUMBER 17-60137-CR-KMW: United States Court Reporter

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Case 0:17-cr-60137-KMW Document 235 Entered on FLSD Docket 08/21/2018 Page 1 of 25

4 UNITED STATES OF AMERICA

10 HEARING HELD 11-20-17

15 FOR THE DEFENDANTS: PHILIP HOROWITZ, ESQ.

17 REPORTED BY: PATRICIA SANDERS, RPR

1 COURTROOM DEPUTY: This Court calls Case No.

2 17-CR-60137; United States versus Daria Ershova, Vera Muzyka

3 and Vladimir Nevidomy.

4 Counsel, please state your appearances.

5 MS. OBENAUF: Good afternoon, Your Honor, Jessica

6 Obenauf on behalf of the United States.

7 THE COURT: Good afternoon, Ms. Obenauf.

8 MS. SHEINKERMAN: Good afternoon, Your Honor, Yanina

9 Sheinkerman on behalf of Vera Muzkya who is present before the

11 MR. ROTH: Good afternoon, Your Honor, Martin Roth on

12 behalf of Daria Ershova who is here with me at counsel table.

13 THE COURT: Good afternoon.

14 MR. HOROWITZ: Good afternoon, Your Honor, Phil

15 Horowitz on behalf of Vladimir Nevidomy who is not present but

17 THE COURT: Well, Mr. Horowitz, this matter was set

19 informed him of the date and time of the hearing.

20 MR. HOROWITZ: Your Honor, I just spoke with him; he

21 is in Doral and on his way.

22 THE COURT: Which means of course means he will not be

23 in this courtroom until at the very earliest 3 o'clock.

24 Well, we cannot start without him, so I am going to go

25 back to chambers. Everyone is free to step out if they would

1 like and be back at 3 o'clock. I apologize to those of you who

5 THE COURT: Good afternoon, again; everyone may be

6 seated. Mr. Nevidomy is now present. We are here on today on

7 Ms. Ershova's motion to dismiss.

8 At the conclusion of this hearing we will have some

9 bond discussions with regard to your client, but I want to move

10 forward at this time since we have started late.

11 MR. HOROWITZ: Yes, Your Honor.

12 THE COURT: As I said, we are here on Ms. Ershova's

13 motion to dismiss, which has been adopted by the codefendants.

14 The parties have fully briefed this matter and the

15 Government has responded. I don't know if the parties had any

16 particular matters they wished to argue before I made inquiry.

17 There are some things I am a little unclear on, but I

20 MR. ROTH: Thank you, Your Honor. I have argued a few

23 I did my best to present the issue to Your Honor in my

24 papers, so I don't want to go over what I put in my written

1 I wanted to try to emphasize or highlight to the Court

2 -- and I would ask the Court to take a look at the DS-3053

3 form; which I think was Exhibit 1.

4 THE COURT: Yes.

5 MR. ROTH: I have looked at the statute; and it does

6 not define statement. I have looked through the CFR's and it

7 does not define statement.

8 I have looked at the form, the instructions to the

9 DS-3053 -- they have instructions as to how to complete

11 That's in the section that says form instructions; and

12 those instructions all apply to the applicant. The applicant

13 would be the parent of the child, or if the child has a

15 On the form itself, paragraphs 1 through 4 are titled

16 statement of consent; but paragraph five, which applies to the

17 the notary, is entitled statement of consent notarization.

18 As I see it -- because the term statement is not

19 defined anywhere in the statute or in the Code of Federal

20 Regulations -- but when you look at how the agency itself is

21 looking at the term, they seem to be identifying the statement