United States v. Prasad, 19-10454
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | BADE, Circuit Judge: |
| Parties | United States of America, Plaintiff-Appellee, v. Abhijit Prasad, Defendant-Appellant. |
| Decision Date | 08 November 2021 |
| Docket Number | 19-10454 |
United States of America, Plaintiff-Appellee,
v.
Abhijit Prasad, Defendant-Appellant.
No. 19-10454
United States Court of Appeals, Ninth Circuit
November 8, 2021
Argued and Submitted February 9, 2021 San Francisco, California
Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding DC. No. 3:18-cr-00368-CRB-1
Juliana Drous (argued), San Francisco, California, for Defendant-Appellant.
Audrey B. Hemesath (argued), Special Assistant United States Attorney; Michael A. Rodriguez, Assistant United States Attorney; Merry Jean Chan, Chief, Appellate Section, Criminal Division; David L. Anderson, United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.
Before: Marsha S. Berzon, Morgan Christen, and Bridget S. Bade, Circuit Judges.
SUMMARY[*]
Criminal
The panel affirmed the district court's forfeiture order under 18 U.S.C. § 982(a)(6)(A)(ii) in the amount of $1, 193, 440.87, in a case in which a jury convicted Abhijit Prasad of twenty-one counts of visa fraud, in violation of 18 U.S.C. § 1546(a), and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).
Prasad owned and operated Maremarks, a company through which Prasad filed petitions seeking H-1B status for nonimmigrant, foreign workers in specialty occupations to come to the United States as Maremarks' employees performing work for Maremarks' end-clients. Engaging in a scheme that created a "bench" of unemployed H-1B beneficiaries, Prasad violated § 1546(a) by falsely representing in the H-1B petitions that there were specific, bona fide positions available for the H-1B beneficiaries when those positions did not exist.
Challenging the district court's interpretation of 18 U.S.C. § 982(a)(6)(A)(ii)(I)(7), Prasad argued that the district court erred in calculating the amount he was required to forfeit for his commission of visa fraud.
Prasad contended that he did not "obtain" the entire $1, 193, 440.87, as that term is used in § 982(a)(6)(A)(ii)(I), because he eventually paid portions of the money to the H-1B beneficiaries. The panel rejected this contention because
Prasad possessed the full $1, 193, 440.87 paid by the end-clients and had control over the money before he paid a percentage of it to employees.
Prasad argued that even if he "obtained" the $1, 193, 440.87, the "proceeds" are limited to his profit, which excludes the amount he paid to the H-1B beneficiaries for their work for end-clients. The panel rejected this argument. Because the term "proceeds" in § 982(a)(6)(A)(ii)(I)(7) is ambiguous, the panel looked to other sources to determine its meaning. Considering the term "proceeds" in the context of the forfeiture statute, the statute's punitive purpose, and this court's prior construction of virtually identical criminal forfeiture provisions, the panel concluded that the term "proceeds" extends to receipts and is not limited to profit.
Prasad argued that the amounts he paid to the H-1B beneficiaries were "legitimate" and not "derived from unlawful activity," even if the visa applications he submitted were fraudulent. Prasad appeared to argue that because the H-1B beneficiary employees performed legitimate work for end-clients, the portions of the money that Maremarks received for that work and subsequently paid to the beneficiary employees should not be considered proceeds derived from his criminal conduct. The panel rejected this argument because it does not adequately explain how these portions are not proceeds obtained "directly or indirectly" from his visa fraud, as provided in § 982(a)(6)(A)(ii)(I). The panel wrote that the money the end-clients paid for the work beneficiaries performed was "obtained directly or indirectly from" Prasad's unlawful conduct, and concluded that the full $1, 193, 440.87 therefore constitutes "proceeds obtained . . . from the commission of visa fraud.
Judge Christen concurred in the judgment. In her view, this case is the wrong vehicle for parsing the ambiguity of "proceeds" in 18 U.S.C. § 982(a)(6)(A)(ii)(I). She would affirm solely based on § 982(a)(6)(A)(ii)(II), under which Prasad's particular scheme easily warranted forfeiture of his gross receipts as "property used to facilitate ... the commission" of his crimes.
The panel resolved remaining issues and affirmed Prasad's convictions in a concurrently filed memorandum disposition.
OPINION
BADE, Circuit Judge:
Defendant-Appellant Abhijit Prasad was convicted following a jury trial on twenty-one counts of visa fraud, in violation of 18 U.S.C. § 1546(a), and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). The district court sentenced Prasad to a total of thirty-six months' imprisonment on all counts and three years' supervised release. The district court also entered a forfeiture order, under 18 U.S.C. § 982(a)(6)(A)(ii), in the amount of $1, 193, 440.87. Prasad argues that the district court erred in calculating the amount he was required to forfeit for his commission of visa fraud. He asks us to vacate the forfeiture order and remand to the district court to redetermine the forfeiture amount. We conclude that the district court did not err in determining the amount subject to forfeiture and affirm.[1]
I.
A.
Prasad owned and operated Maremarks, which he describes as a "visa services company" and the government describes as a "workforce supply company" or "supplier." Through Maremarks, Prasad filed petitions seeking H-1B status for nonimmigrant, foreign workers in specialty occupations-here software engineers-to come to the
United States as Maremarks' employees performing work for Maremarks' end-clients.[2]
In these petitions, Prasad was required to establish that the H-1B beneficiary employees would fill specific, bona fide positions that were available at the time he filed the petitions, and that there was, or would be, a legitimate employer-employee relationship between Maremarks and the H-1B beneficiaries. See 8 C.F.R. § 214.2(h)(1)(i), (h)(4)(i)(A)(1); id. § 214.2(h)(4)(ii) (defining "employer"); United States v. Nanda, 867 F.3d 522, 525-26 (5th Cir. 2017).
At the time Prasad operated Maremarks, the employer had to maintain the "right to control" the H-1B beneficiary's employment through the employment term specified in the petition. Donald Neufeld, U.S. Citizenship & Immigr. Servs., HQ 70/6.2.8 (AD 10-24), Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements 4 (2010) (2010 USCIS Memo)[3]
When Prasad filed the petitions, he represented to USCIS that there were existing positions available to the prospective H-1B beneficiary employees at Cisco Systems and Ingenuus Software. In fact, there were no positions available for these workers at Cisco or Ingenuus. Instead, after the petitions were approved, Maremarks assigned the H-1B beneficiary employees to work for other end-clients. The end-clients paid Maremarks as the employer of the H-1B beneficiaries, and Prasad paid the H-1B beneficiaries after taking a percentage for himself.
As the government acknowledges, "supplier companies can file visa petitions with [USCIS] for qualified beneficiaries who seek to come to the United States on nonimmigrant work visas." But Prasad violated the law by falsely representing in the H-1B petitions that there were specific, bona fide positions available for the H-1B beneficiaries when those positions did not exist. Thus, Prasad engaged in a "bench and switch" scheme. This scheme involves filing a petition for H-1B status to recruit a foreign worker, despite lacking a specific position for that
worker at the time the petition is filed, so that the employer can create a "bench" of unemployed H-1B beneficiaries. Nanda, 867 F.3d at 526; 2010 USCIS Memo, supra, at 10. This "bench" allows the employer to contract with end-clients to fulfill their immediate labor needs without the uncertainty and potential delay inherent in filing legitimate petitions seeking H-1B status.[4] Carrying out this scheme required Prasad to make false representations to USCIS, which led to his conviction on twenty-one counts of visa fraud in violation of 18 U.S.C. § 1546(a).
B.
Based on Prasad's visa fraud convictions, the government sought criminal forfeiture, under 18 U.S.C. § 982(a)(6)(A)(ii)(I), in the form of a personal money judgment against Prasad for $1, 193, 440.87. The government argued that $1, 193, 440.87 "represents] the amount of proceeds Prasad obtained as a result of the criminal conduct for which he was convicted." Prasad opposed the government's motion but did not dispute that Maremarks received $1, 193, 440.87 from the end-clients for the work the H-1B beneficiaries performed. Instead, Prasad argued that the most the court could order him to forfeit was $238, 688.17, which was the estimated amount he kept after paying the beneficiary employees for the work they
performed for the end-clients.[5] The district court disagreed and ordered forfeiture in the full amount the government requested. Prasad filed a timely notice of appeal, see Fed. R. App. P. 4(b)(1), and we have jurisdiction pursuant to 28U.S.C. § 1291.
II.
We review de novo the district court's interpretation of federal forfeiture statutes. United States v. Casey, 444 F.3d 1071, 1073 (9th Cir. 2006).
III.
Prasad argues that the district court erred by ordering him to forfeit the entire $1, 193, 440.87 that Maremarks received from the end-clients in payment for the H-1B beneficiaries' work. Prasad does not assert any error in the district court's factual findings; rather, he contends that the portion of the $1, 193, 440.87 that he paid the H-1B beneficiaries for their work for the end-clients is not subject to forfeiture because it is not "property . . ....
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