Criminal Defense of Immigrants

 

(A)  Proof of Loss.  In general, the assessment of the immigration consequences of a criminal conviction is limited to the elements of the offense as established by the record of conviction, and the immigration or federal courts may not resort to information outside the record of conviction to bring a conviction within a ground of deportation.  See Chapter 16, supra.

 

                The Ninth Circuit has adopted this position in regards to establishing loss to the victims, at least in the context of a jury trial conviction.  In Li v. Ashcroft, [763] the court held that when looking to an offense that does not require, as an essential element, a finding that a specific loss, or any loss, occurred, the court could resort to the record of conviction to determine the amount of loss.[764] 

 

                The court found that, in the jury trial context, an amount of loss in excess of $10,000 must have been specifically found by the jury.  To establish deportability, the immigration authorities had offered into evidence the criminal charge (which did contain sufficient facts to establish the fraud offense and the required amount of loss) and the judgment, which merely recited that the defendant had been found guilty of the charges, but which did not state, “as charged in the information.”[765]  The court found that it could not sustain a finding of deportability on the basis of that record because the record provided no assurance that the jury itself had made a finding that the loss to the victims was the same as the loss charged in the information:

 

Our later cases have cited our conclusion in Parker that the verdict form must confirm the requisite factual findings when the jury instructions are absent. See, e.g., United States v. Fish, 368 F.3d 1200, 1203 n. 2 (9th Cir. 2004); United States v. Franklin, 235 F.3d 1165, 1170 n. 5 (9th Cir. 2000).  We are especially reluctant to rely solely on the charging document and the judgment to establish a fact that the government was not required to prove, and the jury was not required to find, to convict Petitioner. Amount of loss is not an element of the underlying crimes of conviction, as we have pointed out, and we have in the record no jury instructions, verdict form, or other comparable document suggesting that the jury actually was called on to decide, for example, that Petitioner’s false claims were for a particular amount. Although it is tempting to presume that the false claims for which the jury convicted Petitioner were those alleged in the superseding information -- count 8 described one invoice for $134,199.42 and another for $113,133.53 -- we do not know for sure that the prosecutor introduced the invoices or that the indictment’s description of the invoices was accurate or that the entire amount of the invoices was fraudulent.[766]

 

The court also rejected the argument that the amount of loss could be proven by looking to findings made by the sentencing judge:

 

A finding by the sentencing judge by a preponderance of the evidence that Petitioner and his associates were responsible for losses amounting to much more than $10,000 does not satisfy the categorical approach, however, because it does not satisfy the requirement that the defendant have been convicted of each element of the generic crime.[767]

 

The court expressed no opinion as to whether a sentencing fact found beyond a reasonable doubt by either a jury or a judge would qualify as a “conviction” of that fact, or whether a defendant’s admission of a specific sentencing fact would suffice.

 

The Eleventh Circuit analysis largely coincides with that of the Ninth.  In Obasohan v. United States Att’y Gen.,[768] the court found that a conviction for conspiracy to use a counterfeit access device,[769] with a restitution order of $37,000, was not an aggravated felony fraud offense.  The court strongly suggested that the offense could not be aggravated felony fraud because (although the petitioner conceded the offense did involve fraud), loss to the victim was not an element of the offense.[770] 

The restitution was not based on the conspiracy charge to which Obasohan pled guilty, nor on the overt acts to which Obasohan admitted by pleading guilty.  Rather, the order was based on additional conduct that was alleged only in the PSI: the fraudulent use of particular credit cards-which would constitute a substantive offense rather than a conspiracy. Obasohan objected to the PSI's assertion that he had used the credit cards associated with the losses.  Obasohan therefore did not admit, adopt, or assent to the factual findings that formed the basis of the restitution order. Furthermore, while a sentencing court in the criminal context may order restitution not only for convicted conduct but also for a broad range of relevant conduct, the plain language of the INA requires that an alien have been convicted of an aggravated felony to be removable. The INA does not authorize removal on the basis of the relevant conduct that may be considered at sentencing. Rather, what constitutes an “aggravated felony” for purposes of the INA must be tethered to convicted conduct. Relevant conduct for sentencing purposes, on the other hand, may include criminal conduct that was not charged. See United States v. Ignancio Munio, 909 F.2d 436, 438-39 (11th Cir. 1990). Relevant conduct may also include acquitted conduct. United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997); United States v. Averi, 922 F.2d 765, 766 (11th Cir. 1991). Indeed, we have held that relevant conduct for sentencing purposes may even include losses caused by criminal conduct that cannot be prosecuted because those acts fall outside the statute of limitations. See United States v. Behr, 93 F.3d 764, 765-66 (11th Cir. 1996). See also United States v. Dickerson, 370 F.3d 1330, 1342-43 (11th Cir. 2004). [9]

The court also found that any loss must be proven in criminal court by clear and convincing evidence.[771]  The court noted that a restitution amount found by a sentencing court may be based upon “factual findings regarding conduct and loss amounts that were not charged, proven or admitted.”[772]

 

The Third Circuit found that, while evidence of the loss to the victim must be found within the confines of the record of conviction,[773] it is not required that the statute of conviction require proof of loss.[774]  The court also does not seem to require proof of loss beyond a reasonable doubt, as the Ninth Circuit did in Li, supra.  The First Circuit has similarly found that loss to the victim may be determined by looking to any information available in the record of conviction, including a restitution order.[775]

 

Without presenting any analysis, the Seventh Circuit 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.[776]  This decision seems wrong in many respects.  For one, the fact that the defendant ultimately received $10,000 in payment for the forged documents does not mean that the “victim” (the government? the noncitizens?) lost that amount.  The court also found that this offense was an aggravated felony forgery offense, and the bulk of the decision involved jurisdictional issues.  Therefore, counsel should argue that the court’s fraud finding should be considered dictum.

[777] Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19. 2004) (conviction of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).  It also held that a conviction of making a false statement to a United States official, in violation of 18 U.S.C. § 1001, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition.

[763] Id. at 897.  See also § 16.7, supra.

[764] Id. at 898.  Compare United States v. Alvarez, 972 F.2d 1000, 1105-1106 (9th Cir. 1992) (per curiam) (record of conviction sufficient if proven by an information that alleged the requisite elements of the generic crime and a jury’s verdict form stating that it found the defendant guilty “as charged in the Information.”).

[765] See Li v. Ashcroft, 389 F.3d at 889 (9th Cir. 2004).

[766] Ibid.

[767] Obashohan v. United States Att’y Gen., 479 F.3d 785 (11th Cir. Feb. 23, 2007).

[768] 18 U.S.C. § § 1029(a)(1), (b)(2).

[769] Id. at 789, n.7.  The court noted that while 18 U.S.C. § 1029(a)(2) requires a minimum showing of loss of $1,000, the offense of conviction in this case, 18 U.S.C. § 1029(a)(1) does not require any showing of loss. 

[770] Obasohan v. U.S. Attorney General, 479 F.3d 785, 790 (11th Cir. February 23, 2007) (footnotes omitted) (federal conviction of conspiracy to produce, use and traffic in counterfeit access devices, in violation of 18 U.S.C. § 1029(b)(2), with a restitution order for fraudulent use of other credit cards during the course of the conspiracy which had caused losses in excess of $37,000 to three financial institutions, issued pursuant to 18 U.S.C. § 3663, did not constitute an aggravated felony fraud offense, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), for purposes of removal, because the restitution order, standing alone, was insufficient to establish deportability), citing Knutsen v. Gonzales, 429 F.3d 733, 739-40 (7th Cir. 2005) (vacating removal order based on admission of loss caused by relevant conduct and contained in restitution order; holding that inquiry should focus narrowly on losses “particularly tethered to convicted counts alone.”). See also Khalayleh v. INS, 287 F.3d 978, 979-80 (10th Cir. 2002) (conviction constituted aggravated felony where although defendant pled guilty to only one count in indictment, that count incorporated by reference a scheme to defraud that admittedly caused losses in excess of $10,000); Chang v. INS, 307 F.3d 1185, 1191 (9th Cir. 2002) (vacating removal order based on restitution award in excess of $10,000 where amount of loss admitted in the plea agreement was less than the requisite amount); Munroe v. Ashcroft, 353 F.3d 225, 227 (3d Cir. 2003) (conviction constituted aggravated felony where defendant pled guilty to fraud charges that alleged loss in excess of $10,000, even though sentencing court later reduced restitution amount to $9,999); Ferreira v. Ashcroft, 390 F.3d 1091, 1099 (9th Cir. 2004) (conviction constituted aggravated felony where charging document alleged loss, and plea agreement set restitution at $22,305 for fraud conviction); Conteh v. Gonzales, 461 F.3d 45, 55-56 (1st Cir. 2006) (conviction constituted aggravated felony where defendant was convicted of a conspiracy charge which also alleged overt acts in furtherance of the conspiracy that caused losses in excess of $10,000).

[771] Id. at 791. (“Because the sentencing court was entitled to base its restiution order on factual findings made by a lower standard of proof, it was error for the IJ to conclude that the order, standing alone, constituted ‘clear, unequivocal and convincing’ proof of the loss . . .”).

[772] Ibid.

[773] See § § 16.15-16.33, supra.

[774] Alaka v. Attorney General, 456 F.3d 88 (3d Cir. Jul. 18, 2006) (statute defining fraud offense aggravated felony, INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), by referring to the amount of the loss to the victim, invites inquiry beyond the elements of the offense to determine the amount of loss).  See also § 16.7, supra, for a discussion of the Third Circuit’s “extra element” method of analysis.

[775] Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006) (BIA may look to restitution amount to determine loss to the victim).  See also § 16.7, supra.

[776] 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 scheme, for which defendant 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)).