United States v. Prasad

• Decision Date: 08 November 2021
• Docket Number: No. 19-10454,19-10454
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Abhijit PRASAD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

18 F.4th 313

UNITED STATES of America, Plaintiff-Appellee,

v.Abhijit PRASAD, Defendant-Appellant.

No. 19-10454

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2021 San Francisco, California

Filed November 8, 2021

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.

Opinion by Judge Bade

; Concurrence by Judge Christen

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 "represent[s] 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 28 U.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 ... that constitutes, or is derived from or is traceable to the proceeds obtained directly or indirectly from the commission of the offense."⁶ 18 U.S.C. § 982(a)(6)(A)(ii)(I). Thus, Prasad challenges the district court's interpretation of § 982(a)(6)(A)(ii)(I).⁷

To support his assertion that the district court erred in its interpretation of § 982(a)(6)(A)(ii)(I), Prasad argues that: (1) he did not "obtain" the amounts he paid the H-1B beneficiaries; (2) those amounts do not constitute "proceeds" because the term "proceeds" is limited to his profits and thus does not extend to the receipts from his criminal activity; and (3) the amounts he paid the H-1B beneficiaries were not "derived from" his commission of visa fraud because they resulted from the H-1B beneficiaries' legitimate work for the end-clients. For the reasons set forth below, we reject these arguments and affirm the district court's forfeiture order.

A.

Prasad contends that he did not "obtain" the entire $1,193,440.87, as that term is used in the criminal forfeiture statute, because he eventually paid portions of that money to the H-1B beneficiaries. Section 982(a)(6)(A)(ii)(I) mandates forfeiture of the property a defendant "obtained directly or indirectly from" the criminal offense. 18 U.S.C. § 982(a)(6)(A)(ii)(I). To construe the term "obtain," we start with its plain meaning. United States v. Nader , 542 F.3d 713, 717 (9th Cir. 2008). The plain meaning of the term "obtain" is "to come into possession of" or to "get or acquire." Obtain, Oxford English Dictionary (2d ed. 1989); see also Honeycutt v. United States , ––– U.S. ––––, 137 S. Ct. 1626, 1632, 198 L.Ed.2d 73 (2017) (construing "obtained" as used in 21 U.S.C. § 853(a)(1)'s virtually identical criminal forfeiture provision according to its plain meaning, i.e., "to come into possession of" or to "get or acquire" (citations omitted)). Because the term "obtained" can be interpreted according to its plain meaning, that reading controls. See United States v. Harrell , 637 F.3d 1008, 1012 (9th Cir. 2011).

Here, Prasad possessed the full $1,193,440.87, including the portions he paid to the H-1B beneficiaries, because he received and had control over the money before he paid a percentage of it to employees. Control over property connotes possession of it. See Possession, Black's Law Dictionary (11th ed. 2019) ("In common speech a man is said to possess or to be in possession of anything of which he has the apparent control ...." (quoting Frederick Pollock & Robert Samuel Wright, An Essay on Possession in the Common Law 1–2 (1888))). The end-clients paid $1,193,440.87 to Maremarks for the H-1B beneficiaries' work. The government traced those payments to Maremarks' bank account and established that Prasad was the sole signatory on that account. Thus, Prasad had control over the $1,193,440.87 that went through the account.⁸ See Signatory Authority, Black's Law Dictionary, supra (defining "signatory authority" as "[l]icense to make a decision, esp. to withdraw money from an account").

Under our precedent, it does not matter that Prasad paid portions of the $1,193,440.87 to the H-1B beneficiaries and at that point no longer possessed those portions. See United States v. Newman , 659 F.3d 1235, 1243 (9th Cir. 2011), abrogated on other grounds by Honeycutt , ––– U.S. ––––, 137 S. Ct. 1626, 198 L.Ed.2d 73. We have explained that "[r]equiring imposition of a money judgment on a defendant who currently possesses no assets furthers the remedial purposes of the forfeiture statute by ensuring that all eligible criminal defendants receive the mandatory forfeiture sanction Congress intended and disgorge their ill-gotten gains, even those already spent." Id. at 1243 (citation omitted) (construing 18 U.S.C. § 982(a)(2)'s materially similar criminal forfeiture provision). Thus, 18 U.S.C. § 982(a...