United States v. Nanda, 16-11135

• Citation: 867 F.3d 522
• Decision Date: 10 August 2017
• Docket Number: No. 16-11135,16-11135
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Jiten Jay NANDA; Atul Nanda, Defendants–Appellants
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

867 F.3d 522

UNITED STATES of America, Plaintiff–Appellee

v.Jiten Jay NANDA; Atul Nanda, Defendants–Appellants

No. 16-11135

United States Court of Appeals, Fifth Circuit.

FILED August 10, 2017

Leigha Amy Simonton, James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney's Office, Dallas, TX, for Plaintiff–Appellee.

James Robert Wyrsch, Wyrsch Hobbs & Mirakian, P.C., Kansas City, MO, F. Clinton Broden, Broden & Mickelsen, William John Garrison, Garrison, P.C., Dallas, TX, for Defendants–Appellants.

Before STEWART, Chief Judge, and JONES and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Two brothers, Atul and Jiten "Jay" Nanda (together, "the Nandas"), were indicted, tried jointly by jury, and convicted of various charges stemming from a conspiracy to fraudulently procure H–1B visas. The Nandas jointly appeal their convictions and sentences, raising a number of issues. Because we conclude that the Nandas have not established any reversible error, we AFFIRM their respective convictions and sentences.

I

The Nandas owned and operated Dibon Solutions ("Dibon"), an information technology consulting company based in Texas. Dibon was essentially a staffing company that recruited primarily Indian nationals with computer expertise to come to the United States and work for Dibon to fulfill the computer needs of Dibon's clients. Dibon employed about 200 consultants, most of whom were in the United States on H–1B visas.

The H–1B visa program is designed to allow businesses in the United States to temporarily employ foreign workers with specialized expertise on American soil in order to fulfill specific needs of the employer. To obtain an H–1B visa, an employer must first obtain approval from the U.S. Department of Labor ("DoL") by filing a Labor Condition Application ("LCA"). The LCA requires an employer to represent that it intends to employ a particular foreign worker for a specific position for a given period of time. The employer must also state the rate of pay, the work location, and whether the given position is full-time. The employer further promises to pay all fees arising out of the visa application process, and to pay workers for any non-productive time once they have procured a visa. After approval from the DoL, the employer must then file a Petition for a Nonimmigrant Worker ("I–129") with U.S. Citizenship and Immigration Services ("CIS"). The I–129 requires much of the same information as the LCA, as well as further biographical information regarding the specific prospective visa applicant.

After CIS approves the petition, the worker can apply for an H–1B visa at a U.S. consulate or embassy in her home country. Once she obtains the visa, the worker possesses lawful nonimmigrant status and may reside in the United States and work for the sponsoring employer until either the visa expires or her employment with the sponsoring employer is terminated. The employer is required to begin paying the visa holder once she enters into employment or within 30 days of her admission to the United States, whichever is sooner. If the worker's employment is terminated before her visa expires, the employer must notify CIS and pay for her return to her home country.

The representations that the sponsoring employer makes on the LCA and I–129—that it already has a specific open position for the visa applicant, that it will pay all visa fees, that it will pay the employee within 30 days of admission to the U.S. regardless of employment, etc.—are designed in part to prevent employers from fraudulently taking advantage of the H–1B system by engaging in a scheme called "benching." Benching occurs when an unscrupulous employer uses H–1B visas to recruit foreign workers not to fill a specific position at the company itself, but rather to create a pool of relatively inexpensive skilled labor that can then be used on an as-needed basis to fulfill the needs of third-party clients. When the visa holder is not working—i.e. "on the bench"—the employer requires her to pay her own way in contravention of the express visa requirements. The employer is thus able to procure skilled labor on the cheap with little overhead, but takes a cut of the standard rates its visa-holding employees bill out to third-party clients.

The Nandas' fraudulent scheme was a quintessential case of benching. Dibon regularly sponsored H–1B applicants and represented to the DoL and CIS that the applicants would work directly for Dibon at its headquarters in Carrollton, Texas. Dibon further represented that it would pay all visa fees and pay the applicants for all non-productive time 30 days after their arrival. Contrary to those representations, however, Dibon in fact benched the workers and required them to pay their own way until they could be placed at a third-party client to provide technology consulting services—with Dibon taking a cut of any money earned. The fraudulent scheme, which continued from 2005–2011, netted Dibon at least hundreds of thousands of dollars.

In 2014, the Nandas and others were indicted on charges stemming from their benching scheme. Several Dibon employees pleaded guilty and cooperated with the Government's prosecution of the Nandas. The Nandas were tried by jury and found guilty of: one count of conspiracy to commit visa fraud in violation 18 U.S.C. § 371 and 18 U.S.C. § 1546 (a) ; one count of conspiracy to harbor illegal aliens in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I) and 1324(a)(1)(B)(i) ; and two counts of wire fraud in violation of 18 U.S.C. § 1343 and 18 U.S.C. § 2. The district court sentenced each brother to 87 months' imprisonment, three years of supervised release, and restitution.

II

The Nandas raise myriad issues on appeal, challenging aspects of the trial's procedure and substance as well as their respective sentences. We address each issue in turn.

A. Bruton Challenge

During the Nandas' trial, the Government entered into evidence a letter Jay wrote to the DoL after he had left Dibon. In the letter, Jay confessed that "Dibon has submitted incomplete and false documentation ... [and] continues to violate all the wage and hour conditions of the H–1B visa program including benching, no pay, LCAs, taking monies for visa[s] and running payroll for H–1B immigrants." Jay further wrote that Dibon had "not paid back wages to the tune of millions to non immigrant H–1B workers."

Atul's counsel vigorously objected to the letter's entry into evidence, arguing that its admission would violate Atul's Sixth Amendment right of confrontation under Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton , the Supreme Court held that admission of a codefendant's confession at a joint trial where that codefendant does not take the stand violates the other defendant's Sixth Amendment right of confrontation. Id. at 127–28, 88 S.Ct. 1620. The Court later qualified Bruton 's scope in Richardson v. Marsh , 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Richardson explained that Bruton created a "narrow exception," and held that admission of a confession did not violate the Sixth Amendment where "the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial." Id . at 207, 208, 107 S.Ct. 1702. The Court further explained that, where the codefendant's confession does not directly reference the defendant, a limiting instruction to the jury will further help mitigate against any confrontation issues. See id . at 208, 107 S.Ct. 1702 ; see also United States v. Jobe , 101 F.3d 1046, 1067 (5th Cir. 1996) ("[T]he admission of a nontestifying defendant's confession is permissible if the trial court gives a proper limiting instruction."). Thus, under Richardson , "an indirect reference to a co-defendant is not enough to bring a statement within the proscription of Bruton ." United States v. Restrepo , 994 F.2d 173, 187 (5th Cir. 1993). " Bruton is not violated unless [the codefendant's] statement directly alludes to [the defendant]...." Id. at 186 ; see also United States v. Webster , 734 F.2d 1048, 1054 n.6 (5th Cir. 1984) ("[T]his Court has held consistently that the Bruton rule is not violated unless a co-defendant's statement directly alludes to the complaining defendant.... This is true, even if the evidence makes it apparent that the defendant was implicated by some indirect references.").

The district court conducted an extensive hearing on the letter's admissibility. It ultimately concluded that, because the reference to "Dibon" in the letter could have referred to a number of different Dibon employees and not to Atul specifically, a limiting instruction would be satisfactory to avoid any Sixth Amendment concerns. Accordingly, the district court admitted the letter and expressly instructed the jury three times not to consider any of its contents in regard to Atul. There is no allegation that the Government attempted to use the letter against Atul at any point during the trial.

Because Atul preserved his Bruton objection below, we review the admission of the letter for abuse of discretion, subject also to harmless error analysis. See United States v. Powell , 732 F.3d 361, 376 (5th Cir. 2013) ; United States v. Walker , 148 F.3d 518, 522 (5th Cir. 1998), abrogated on other grounds by Texas v. Cobb , 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001).

We agree with the district court: the letter did not "directly allude" to Atul, and so admitting it did not violate his Sixth Amendment right of confrontation. Restrepo , 994 F.2d at 187. Atul contends that the reference to "Dibon" was in effect a direct allusion to him personally, because the Government repeatedly stressed that Jay and Atul were the central figures in Dibon's operation. But there were a number of other Dibon employees involved in the benching scheme; "Dibon" in the letter could have referred to any of them. Atul's argument would require us to "link" the letter "with evidence...