Criminal Defense of Immigrants

(D)  An Offense “Involving” Fraud.   If the offense of conviction lacks an essential element requiring intent to defraud or deceive, the conviction is arguably not a conviction of an offense involving fraud or deceit.[742]  However, some courts have read the “involving fraud or deceit” language more broadly to include offenses related to fraud or deceit.[743]

In Olmari v. Gonzalez,[744] the Fifth Circuit held that a federal conviction for interstate transportation of stolen, converted, and fraudulently obtained property,[745] was not necessarily an aggravated felony fraud offense, as the statute included “stolen” and “converted” property, as well as property that had been “fraudulently obtained.”  Although noting that the “involves” language meant that the offense must “necessarily entail fraud or deceit,”[746] the court did not find that the transportation offense would never qualify as a fraud offense because the offense itself did not require proof of fraud.  The court instead analyzed the conviction similarly to a Second Circuit case finding that possession of a forged document was an offense “related to” forgery.[747]  The court, in fact, made this point explicit:

If the tickets had been fraudulently obtained, Omari’s conviction for knowingly transporting or transferring them might well have been a conviction for an offense involving fraud or deceit.  Whether an offense “involves” fraud is a broader question than whether it constitutes fraud.  Cf. United States v. Winbush, 407 F.3d 703, 707-08 (5th Cir. 2005) (attempted possession of controlled substance with intent to distribute is offense “involving ... manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance,” and therefore a “serious drug offense”);  Richards v. Ashcroft, 400 F.3d 125, 129-30 (2d Cir. 2005) (possession of forged instrument with intent to defraud or deceive is offense “relating to” forgery, though not actual forgery).[748]

The Third and Fifth circuits may be split on how broadly to read the “involves fraud or deceit” language.  Counsel should argue that the Third Circuit’s definition should be applied, and that the Fifth Circuit incorrectly applied the “relating to” analysis to the fraud category, where that language is not present. 

If the offense was in federal court, treatment under the U.S. Sentencing Guidelines may serve as evidence that, for example, an offense involving theft should not be charged as fraud.  For example, if there was no enhancement of the sentence for an offense involving fraud under U.S.S.G. § 2Fl.1(b), then the offense should be held not to have included fraud.

                Without presenting any analysis, the Seventh Circuit has found that a federal conviction for conspiracy to bribe a federal official (in order to obtain forged green-cards) was a fraud offense involving a loss to the victim exceeding $10,000, where the defendant personally received more than $10,000 in payment from undocumented noncitizens in payment for the forged cards.[749]  This decision seems wrong in many respects.  For one, bribery of an official does not involve fraud, because there is no intent in bribery to falsely represent a material fact.  The court also (strangely) found that this offense was an aggravated felony forgery offense.  The bulk of the decision involved jurisdictional issues.  Therefore, counsel should argue that the court’s fraud findings should be considered dictum.

[742] Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002).

[743] See also “related to” discussion at § 19.6, supra.

[744] Omari v. Gonzales, 419 F.3d 303 (5th Cir. July 25, 2005).  See also James v. Gonzales, 464 F.3d 505, 509 (5th Cir. Sept. 5, 2006) (federal conviction of aiding and abetting bank fraud, in violation of 18 U.S.C. § § 2, 1344, constituted an offense “involving” fraud or deceit, since the elements of aiding and abetting bank fraud “necessarily entailed the criminal intent to see bank fraud committed, some affirmative conduct designed to aid the bank fraud, and his seeking, by his own action, to make the bank fraud successful.”).

[745] 18 U.S.C. § 2314.

[746] Omari, supra, at 307.

[747] Richards v. Ashcroft, 400 F.3d 125 (2d Cir. Mar. 3, 2005).  See § 19.71, supra.

[748] Id. at 309 n.11.

[749] Petrov v. Gonzales, 464 F.3d 800 (7th Cir. Oct. 6, 2006) (federal conviction of conspiracy to bribe federal officials to provide bogus “green cards” as part of an immigration fraud, for which he received more than $10,000, constituted a fraud offense aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i)).