Criminal Defense of Immigrants

 

(B)  Multiple Counts of Conviction.  In Chang v. INS,[778] the Ninth Circuit held that even where the total loss to all victims was, in fact, over $10,000, a conviction of one count of bank fraud for passing a $605.30 bad check did not involve a loss over $10,000, where the plea agreement specified the loss to be the amount of the check.  The court also rejected the argument that the amount of the restitution order, in excess of $10,000, was sufficient to show that the offense was an aggravated felony, because the restitution order was based on other offenses than the single count of conviction.[779] 

 

The Third Circuit has agreed with this analysis,[780] finding that the immigration authorities could not rely upon a restitution order in excess of $10,000 where the offense of conviction explicitly involved a loss of less than $10,000, and the restitution order incorporated loss amounts from other counts that were dismissed.[781]

                                   

In finding that a federal bank fraud[782] conviction with a loss to the victim(s) in excess of $10,000 was an aggravated felony fraud offense, the Tenth Circuit similarly suggested that a conviction of multiple counts, in which each count “alleged a discrete fraud involving a single check,” would not trigger deportation as an aggravated felony offense, “even if a plea agreement gave the district court authority to order restitution with respect to all four checks in the indictment,” since “perhaps only the check in the count to which the defendant pleaded could properly be considered in determining the amount of the loss for purposes of the definition of aggravated felony.”[783]  Unfortunately, the court found in that case that the court could consider the loss reflected in dismissed counts, given that those counts were part of the same fraudulent scheme as the count of conviction, and thus included within it.  The Fifth Circuit reached the same conclusion, based on similar facts.[784]

 

The Eleventh Circuit suggested that, in the case of a general conspiracy charge, the loss attributable to dismissed counts may be considered part of the loss to the victim only (if at all) when it is possible to show by clear and convincing evidence that each of those dismissed counts was specifically included in the general conspiracy charge.[785]

 

The Seventh Circuit, declining to state whether it agreed with the Tenth Circuit’s analysis, found that losses reflected in a dismissed count, where there was no overarching scheme, could not be added to the losses from the count to which the guilty plea was entered because neither that count nor the plea agreement alleged a single scheme.[786]  The court noted that to count loss reflected in dismissed counts fails the “the basic and sensible proposition that courts should strive to honor the contractual agreement reached between a defendant and the government.”[787]

 

And there are good policy reasons for this.  For instance, as the Chang court noted, allowing the government to circumvent the plain terms of a plea agreement “would surely lead to sandbagging of many non-citizen criminal defendants.”  Id. at 1192.  Indeed, uncertainty on whether the loss amounts specified in a plea agreement will control in subsequent removal proceedings does not benefit either party.  Defendants may be less willing to enter into plea agreements in light of the uncertainty of their effect in any future immigration proceedings.  As a result, the government may be forced to expend unnecessary time and resources litigating and appealing cases that otherwise could have been resolved through a plea agreement.  The better result here, and one consistent with the statute, is that the court should focus narrowly on the loss amounts that are particularly tethered to convicted counts alone.[788]

[778] Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (conviction of bank fraud for knowingly passing a $605.30 bad check held not to constitute an aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) as a conviction of an offense involving fraud for which the loss to the victim(s) exceeded $10,000, even though losses resulting from the entire scheme described in the PSR exceeded $30,000, since plea agreement specified loss from the count of conviction as $605.30).  Cf. Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. Dec. 1, 2004) (California conviction of welfare fraud, in violation of Welf. & Inst. Code § 10980(c)(2), constitutes an offense involving fraud or deceit with a loss to the victim in excess of $10,000, for purposes of qualifying as an aggravated felony as defined under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) triggering deportation, where the plea agreement — part of the record of conviction — sets the amount of restitution at $22,305 and where the California courts are required under California Penal Code § 1202.04(f) to set restitution based on the loss to the victim).

[779] Ibid.

[780] Alaka v. Attorney General, 456 F.3d 88 (3d Cir. Jul. 18, 2006) (federal conviction of one count of aiding and abetting bank fraud, in violation of 18 U.S.C. § § 1344 and 2, for which the actual loss from the single check was $4,716.68, did not constitute aggravated felony bank fraud conviction; in determining whether conviction constituted fraud offense aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), the immigration court erred in considering amount of intended loss for all of the charges – including dismissed counts – rather than limiting loss to victim analysis to the loss for the single count of conviction).

[781] See § 16.30, supra.

[782] 18 U.S.C. § 1344(1).

[783] Khalayleh v. INS, 287 F.3d 978, 980 (10th Cir. Apr. 23, 2002).

[784] James v. Gonzales, 464 F.3d 505 (5th Cir. Sept. 5, 2006) (although federal conviction for aiding and abetting bank fraud, in violation of 18 U.S.C. § § 2, 1344, involved a transaction with a credit union in the amount of $9,500, the BIA correctly evaluated the loss to the victim in the amount of the court-ordered restitution of $129,066.60, since the indictment charged a scheme to defraud that resulted in this amount of restitution, and the plea agreement and indictment did not specify a different loss).

[785] Obashohan v. United States Att’y Gen., 479 F.3d 785, 790 (11th Cir. Feb. 23, 2007) (here “[t]here was no basis in this record from which the IJ could have found by ‘clear, unequivocal and convincing evidnece’ that the restitution order was based on convicted or admitted conduct.”), citing Khalayleh, supra.

[786] Knutsen v. Gonzales, 429 F.3d 733 (7th Cir. Nov. 22, 2005).

[787] Id. at 739.

[788] Id. at 739-740.