Noriega-Perez v. US

• Citation: 179 F.3d 1166
• Decision Date: 09 June 1999
• Docket Number: No. 96-70513.,96-70513.
• Parties: Alberto NORIEGA-PEREZ, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

179 F.3d 1166

Alberto NORIEGA-PEREZ, Petitioner, v. UNITED STATES of America, Respondent.

No. 96-70513.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 9, 1998.

Filed June 9, 1999.

COPYRIGHT MATERIAL OMITTED

Rehman H. Bashey and Michael B. King, Lane, Powell, Spears & Lubersky, Seattle, Washington, for the petitioner.

Francis W. Fraser and Jennifer H. Zawid, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.

Before: FERGUSON and REINHARDT, Circuit Judges, and ROLL, District Judge.^*

ROLL, District Judge:

Petitioner Alberto Noriega-Perez appeals from a summary decision of an Administrative Law Judge (ALJ) imposing a monetary fine for civil document fraud. The civil action was commenced after Noriega-Perez had entered a plea of guilty to conspiracy to possess forged, counterfeit, and false documents. The summary decision is affirmed.

I. Background

On December 2, 1992, Noriega-Perez was indicted in the District Court for the Southern District of California for conspiracy to possess forged, counterfeit, and false immigration documents. Thereafter, Noriega-Perez entered a plea of guilty to one count of "Conspiracy to Possess Forged, Counterfeit, and False Documents" in violation of 18 U.S.C. §§ 371 and 1546. The district court accepted the guilty plea, fined Noriega-Perez $20,000, and sentenced him to 18 months of imprisonment, followed by three years of supervised release. Noriega-Perez did not file an appeal, but his sentence was reduced in June 1994 to time served and the fine reduced to $5,000 pursuant to a petition for a writ of habeas corpus.

Two months after Noriega-Perez's guilty plea, the Immigration and Naturalization Service (INS) issued a Notice of Intent to Fine (Notice) him for civil document fraud in violation of 8 U.S.C. § 1324c. The conduct alleged in the Notice-forging temporary immigration documents and possessing fraudulent immigration forms and social security cards-was related to the conduct that underlaid Noriega-Perez's guilty plea for conspiracy to commit document fraud. The INS sought to order Noriega-Perez to cease and desist from his unlawful action and to pay a "civil money penalty" of $176,000. Noriega-Perez filed a pro se response to the INS asserting that he had already been sentenced for the wrongful acts alleged in the Notice.

On January 23, 1995, the INS filed a two-count complaint with the Executive Office for Immigration Review (EOIR), Office of the Chief Administrative Hearing Officer (OCAHO), charging Noriega-Perez with document fraud pursuant to 8 U.S.C. § 1324c. The complaint alleged the same violations contained in the Notice and requested $96,000 in civil money penalties. Specifically, the United States charged that Noriega-Perez violated the Immigration and Nationality Act, 8 U.S.C. § 1324c, by (1) forging eight temporary immigration documents, (2) possessing 298 fraudulent INS Forms 1-94, (3) possessing 21 fraudulent U.S. Social Security cards, and (4) possessing one fraudulent INS Form I-151. In his pro se response to the complaint, Noriega-Perez denied the allegations and affirmatively asserted, as one of multiple grounds for relief, that the fine constituted a second punishment for the same crime.

After a series of discovery motions and rulings, on October 27, 1995, the ALJ granted the INS's motion for summary decision on the merits. The ALJ then ordered the parties to submit briefs recommending appropriate penalties and addressing Noriega-Perez's claim that imposition of the fine would constitute double jeopardy.

In its brief to the ALJ, the INS sought a $96,000 fine. The INS based the fine amount on a memorandum prepared by special agent Alejandro Kastner of the Investigation Unit of the San Diego INS district office. Agent Kastner reported that the investigation of Noriega-Perez and his alleged coconspirators involved many hours of investigation by numerous units. The total cost of the investigation was approximately $48,000. The INS also denied that the imposition of a civil fine after the government had already imposed criminal punishment implicated the double jeopardy clause.

On November 15, 1995, Noriega-Perez filed a motion in response to the ALJ's request for additional briefing. He raised several arguments against the judgment including his previously-raised double jeopardy claim and further asserted that the ALJ lacked subject-matter jurisdiction because ALJs are not Article III judges. Noriega-Perez also indicated that he could not recommend an appropriate penalty pursuant to the ALJ's order because he did not have sufficient information.

The ALJ issued his Final Decision and Order on March 2, 1996. The ALJ considered a number of factors before imposing a fine of $96,000. He considered Noriega-Perez's monetary motivation, failure to offer mitigating factors, and prior conviction for transferring counterfeit Federal Reserve notes. He also ordered Noriega-Perez to cease and desist from engaging in future document fraud.

In response to Noriega-Perez's legal arguments, the ALJ noted that the jurisdictional argument was not properly before him because the enabling statute did not give him the power to dismiss actions based on constitutional infirmities. Additionally, the ALJ found that under United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), the fine was remedial in nature and therefore did not violate the double jeopardy clause.

Noriega-Perez now appeals from the ALJ's final order. Although he raises many issues, only the double jeopardy claim and the Article III claim merit discussion.¹

II. Statutory Scheme

In an attempt to reduce the flow of illegal immigration into the United States, Congress enacted the Immigration Reform and Control Act of 1986 (IRCA). The purpose of IRCA was to "close the back door on illegal immigration so that the front door on legal immigration may remain open." See H.R.Rep. No. 101-723(i), at 46 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5649-5650. Because it believed that "employment is the magnet that attracts aliens here illegally," id., Congress made it unlawful for an employer knowingly to hire an unauthorized alien to work in the United States. See 8 U.S.C. § 1324a. IRCA also established an employment verification system which required employers to examine various documents establishing eligibility of employment, and to retain a verification form establishing the employee's eligibility. See 8 U.S.C. §§ 1324a(b)(1), (2), and (3).

In 1990, Congress strengthened IRCA by enacting 8 U.S.C. § 1324c. Section 1324c establishes a monetary penalty for those who knowingly forge an employment eligibility document, or use or possess such a falsely made document, in order to meet, or enable another person to meet, the employment eligibility requirements of chapter 12, Title 8 of the United States Code. See 8 U.S.C. §§ 1324c(a), (c)(3). Section 1324c grants the adjudication of cases arising under it to ALJs. See 8 U.S.C. §§ 1324c(d)(2), (5).

III. Double Jeopardy

The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Noriega-Perez asserts that his conviction followed by his civil fine violated the double jeopardy clause. We disagree.

The facts are undisputed. On May 10, 1993, Noriega-Perez entered a guilty plea to conspiracy to commit document fraud under the general conspiracy statute, 18 U.S.C. § 371. Thereafter, on May 2, 1996, Noriega-Perez was fined for document fraud pursuant to 8 U.S.C. § 1324c(a)(1)(2). Noriega-Perez claims that under the standard announced in Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), the civil fine actually constituted a form of criminal punishment. Accordingly, he maintains, he could not be fined after having been convicted for the same acts.

Whether the civil penalty should be denominated criminal under Hudson is irrelevant, however, to resolving Noriega-Perez's double-jeopardy claim if the previous criminal conviction was for a different offense. See id. at 493 ("The Double Jeopardy Clause protects only against the imposition of multiple criminal punishments for the same offense." (emphasis omitted)). That is the case here; Noriega-Perez was first convicted of conspiracy to commit document fraud, not document fraud itself. Subsequently, his civil penalty was assessed for document fraud, not conspiracy to commit document fraud. It is clear that no double jeopardy violation occurred because conspiracy to commit an offense and the offense itself are separate offenses that can be tried separately. See United States v. Felix, 503 U.S. 378, 390-91, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992); Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985); United States v. Saccoccia, 18 F.3d 795, 798 (9th Cir. 1994); United States v. Hoelker, 765 F.2d 1422, 1427 (9th Cir.1985); United States v. Brooklier, 637 F.2d 620 (9th Cir.1981).²

Double jeopardy protections guarantee that the United States may not criminally punish Noriega-Perez twice for the same offense. The threshold question for double jeopardy purposes is whether the two offenses for which Noriega-Perez was punished are the same. They are not. Even if Noriega-Perez's fine imposed pursuant to section 1324c constituted a criminal penalty under Hudson, the double jeopardy clause is not violated.

IV. Separation of Powers

Congress entrusted the adjudication of document fraud cases under section 1324c to ALJs. See 8 U.S.C. § 1324c(d)(2). See also 28 C.F.R. § 68 et seq. Noriega-Perez claims that this grant of jurisdiction violates the separation of powers because an Article III judge did not preside over his case. The issue of whether section 1324c's grant of jurisdiction to an ALJ violates the separation of powers involves a two-part inquiry into ...