The U.S. Supreme Court heard arguments in Nijhawan v. Holder, No. 08-495, yesterday, a case that is expected to shed light on what constitutes a conviction under INA § 101(a)(43)(M)(i), the fraud or deceit aggravated felonies.
Thomas Moseley, representing Nijhawan, placed enormous emphasis on the grammatical construction of the statute. According to Moseley, the “that” in § 101(a)(43)(M)(i)–“an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000”–means that the jury or, in a bench trial, the judge must find that the loss amount exceeded $10,000. This may be done using the categorical approach—for example, where a state statute specifies a loss amount. Or, it may be done using the modified categorical approach—for example, where there is sufficient evidence in the record to find, beyond a reasonable doubt, that the loss exceeded $10,000.
Justice Alito asked whether there is a significant distinction between a defendant who admits, during a plea colloquy, that the loss was in excess of $10,000 and a defendant who admits as much for sentencing purposes. Moseley argued that there is an important distinction because, for sentencing purposes, the government is held to a preponderance of the evidence standard—much lower than the reasonable doubt standart at the guilt stage. Justice Souter seemed unconvinced. “Well, if he’s admitting it, what does the standard of the evidence matter,” Souter asked.
Souter was also skeptical of Moseley’s argument that most states have theft statutes that specify a loss amount, thus leaving no doubt whether the loss exceeded $10,000. “If you — if you steal the $11,000 in State A, you get booted out of the country. If you steal it across the State line in State B, you stay home. I mean, I can’t imagine that Congress would have enacted that kind of scheme,” Souter said.
Justice Ginsburg was similarly troubled. “It’s treating people who do the identical thing differently,” Ginsburg said to Moseley.
Several justices were troubled by the fact that a reading of the statute as requiring a finding as to the loss amount during the sentencing stage would effectively result in very few deportations under this section of the INA. Throughout a significant portion of Moseley’s presentation, Justices Scalia, Ginsburg, Alito, Kennedy, and Souter challenged Moseley’s assertion that the loss amount must be found at the guilt stage.
Lastly, Moseley argued that the rule of lenity requires that any ambiguity in the statute be resolved in favor of the non-citizen.
Curtis E. Gannon, representing the United States, argued that Moseley’s reading of § 101(a)(43)(M)(i) would limit its application to a very small number of federal crimes. Prodded by Justices Roberts and Kennedy to consider Moseley’s argument that the prosecutors could seek a finding of the actual loss amount at the guilt stage, Gannon responded that it would be impractical to do so. “I think it would confuse the jury,” Gannon said, explaining that a loss amount is “irrelevant” to convictions for most theft or fraud offenses.
Justice Alito then asked Gannon how the government proposes to calculate the loss amount. While acknowledging that the loss amount “is not necessarily the same as the loss determination that would be made for sentencing,” Gannon went on to argue that “the loss threshold is tied to the offense that involves fraud or deceit, not to the individual defendant’s role. If he’s convicted of a $100 million fraud or in this case what may well have been a $683 million fraud, he is — that — that is the offense of which he was convicted, and it is an offense in which the loss to the victims exceeded $10,000.”
Responding to Justice Ginsburg’s hypothetical in which a judge determines that a particular criminal defendant was not heavily involved in a larger scheme and therefore excludes that individual from the restitution order that is in excess of $10,000, Gannon argued that DHS could still use that restitution order against the individual in a later removal proceeding as long as they could prove that the loss by clear and convincing evidence. Gannon also argued that an individual who is convicted of one theft for an amount significantly under the $10,000 threshold—in Justice Steven’s example it was $50—can be deported so long as the individual admits to being part of a larger scheme that, as a whole, involved more than $10,000 in loss.
As Justice Kennedy explained, “Your position is that in ancillary, subsequent proceedings anything you prove that’s within the offense convicted — say, as measured by double jeopardy purposes, as protection against multiple prosecutions, that you can make that showing?” To which Gannon responded “Yes.”
Chief Justice Roberts went back and forth with Gannon for a while discussing Roberts’ difficulty with classifying a fraud or deceit offense as “aggravated.” Since, from the government’s perspective, the only element that they need to prove beyond a reasonable doubt under § 101(a)(43)(M)(i) is that the offense was a fraud or deceit Roberts said that perhaps the Court “ought to look, well, is that really aggravated?” After listing several crimes which he considers aggravated “on their own,” Roberts said “Fraud or deceit—as I guess I’ve already said, that doesn’t strike me as particularly aggravated.” Roberts seemed especially concerned that the loss amount could be shown in the civil removal proceeding by a clear and convincing evidence standard, “a much lighter burden” in Roberts’ words.
A decision is expected this summer.