Nijhawan v. Holder – Oral Argument – April 27, 2009

Media for Nijhawan v. Holder

Audio Transcription for Opinion Announcement – June 15, 2009 in Nijhawan v. Holder

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John G. Roberts, Jr.:

We will hear argument first this morning in Nijhawan v. Holder.

Mr. Moseley.

Thomas E. Moseley:

Mr. Chief Justice, and may it please the Court: At issue in this case is an aggravated felony definition, 8 U.S.C. 1101(a)(43)(M)(i), one that serves both as a ground of deportation and as an integral part of a Federal criminal statute.

For the Court’s convenient reference, because I suspect we will return to this and the other definitions, I would refer the Court to the statutory appendix in the government’s brief: 3a gives (M)(i); 6a gives the conviction requirement; and 7a to 8a gives the underlying criminal statute in which this aggravated felony definition forms an integral part.

Now, Congress has required — for deportation, Congress has required conviction of this defined offense, in a definition that says absolutely nothing about the word “tether” utilized by the Third Circuit below, and the definition begins with a restrictive clause, “that”, to require conviction of both the fraud and deceit element and also the loss amount as an integral part of this definition.

Since Congress required conviction, the time-honored categorical approach really should be the governing standard, and I submit that there’s nothing in the plain language of the statute, the underlying statute enacted by Congress, to oust that time-honored approach, which I submit is perhaps on a par as being presumptively applicable, similarly to the — to the stay standards that this Court discussed very recently in the Nken case.

David H. Souter:

Another–

Anthony M. Kennedy:

Under the time-honored–

David H. Souter:

–No, please.

Anthony M. Kennedy:

–Under the time-honored approach, if the jury verdict necessarily — or not necessarily, but did in fact refer to the amount involved and it was over $10,000, would that be part of the time-honored approach and then the statute would be fulfilled?

Thomas E. Moseley:

I — under those circumstances, Justice Kennedy, yes.

But here the jury was specifically instructed that they did not have to make any finding with respect to loss in this case.

Anthony M. Kennedy:

Well, in that connection, at some point in the argument — and you may be a little early because you’re talking about the statute — I’d like to know either anecdotally from your experience or — or because it’s written somewhere, how often do juries give special verdicts?

It actually applies in the second case we’re to hear as well.

And has that changed in the light of — of Apprendi?

In — in my experience, we just didn’t know many of the features of the crime from — from the jury verdict, and I just would like to know if that’s changed in this day and age.

Thomas E. Moseley:

Well, I — I–

Anthony M. Kennedy:

But you may reach that after you’ve talked about the statute.

Thomas E. Moseley:

–Yes, but let me — certainly among the State statutes that we cite, the State statutes where it’s clear that a loss amount is an element, the jury is going to be instructed they have to return that, and they do.

The — the special verdict opportunity here is in effect, I would submit, a kind of lifeline, if you will, that we’re giving to the government in these — in these more general fraud statutes, where the government has that — certainly has that opportunity or that option to do.

But there certainly have been — and I know we cite them in our brief — cases–

Samuel A. Alito, Jr.:

And if you — if you do extend that lifeline to the government, aren’t you conceding that the amount of the loss is not an element of the offense, and aren’t you conceding that it is not necessary for the loss amount to be an element of the offense?

Thomas E. Moseley:

–No, Justice Alito.

What I am saying is that this statute — and again, (M)(i) was enacted as part of a number of criminal statutes — excuse me — as a number of provisions that were addressed to white collar offenses, of which this is just one, and it also encompasses the State — it also encompasses the State statutes where this clearly is–

Samuel A. Alito, Jr.:

Well, let me give you a concrete example.

Let’s say it’s a Federal mail fraud case.

Let’s say there are two Federal mail fraud cases, and you don’t have to prove the amount of loss in order to convict under the mail fraud statute.

In the first case, after the jury returns a guilty verdict they also return — or together with that they answer a special interrogatory and they say the loss exceeded $10,000.

In the second case, the defendant pleads guilty and admits during the plea colloquy that the amount is more than $10,000.

Would there be a problem in those cases?

Thomas E. Moseley:

–In those cases, no.

In those cases, that would have satisfied the traditional categorical approach.

Ruth Bader Ginsburg:

In this–

Samuel A. Alito, Jr.:

And then–

Ruth Bader Ginsburg:

–In this case, how many of the defendants were alien?

You’re — the jury is given a charge that covers all of the defendants.

They’re all charged with the same crime.

How many of them were aliens?

Thomas E. Moseley:

I believe two in addition to Mr. Nijhawan, Justice Ginsburg.

I believe two or three more were.

This case — this case involved roughly 15 defendants.

There are only five who went to trial.

The number who — the number who are aliens, in addition to Mr. Nijhawan, I believe were two.

Ruth Bader Ginsburg:

Then the judge wouldn’t distinguish — it would not be relevant for the — for the defendants who were not aliens because it would have no consequences for them.

So why should the judge — even if the question could be asked, why should the judge — the judge takes a position: It’s not an element of the crime.

Therefore, I’m not going to charge it, and I’m not going to confuse the jury by saying as to the defendants who are aliens, you have to find the amount.

Thomas E. Moseley:

Well, under — under those — under those circumstances, Justice Ginsburg, Mr. Nijhawan actually himself had asked for a charge with — with respect to loss.

I don’t think — I don’t think there’s an issue of jury confusion here, and indeed under — under — ironically under this Court’s — well, this would have been a situation in which a request was — could have been made.

I don’t think there would have been — there certainly wouldn’t have been jury confusion to have requested it here.

But I think you have to put this in — in the larger picture of a statute of a set of aggravated felony definitions that were enacted.

Ruth Bader Ginsburg:

But before you go on to that, we’re talking about (M)(i).

It’s coupled with another provision that’s an offense that is described in section 21 — 7201 of Title 26 — that’s tax evasion — in which the revenue loss to the government exceeds 10,000.

So it’s the same “in which” construction, and there’s no requirement — to convict someone of tax evasion, the jury does not have to find the deficiency.

Thomas E. Moseley:

Well, actually, Justice Ginsburg, under this Court’s decision in Boulware, a deficiency is indeed a necessary element of that–

Ruth Bader Ginsburg:

A deficiency, but not the amount of the deficiency.

Thomas E. Moseley:

–But — no.

A — a deficiency is a necessary element of that offense.

That’s — that’s where, for example, the Babaisakov decision got that point flatly wrong.

And this is, I think, the classic–

Ruth Bader Ginsburg:

But is the amount — there’s a deficiency.

Ruth Bader Ginsburg:

The jury has to find in order to find tax evasion there is a deficiency.

Does it have to find that the revenue loss to the government exceeds $10,000?

Thomas E. Moseley:

–No, it doesn’t have to find that, but it may.

And this is a classic example of the application of the modified categorical approach, where this statute sweeps broadly to include both loss amounts or, in this case, revenue loss amounts that would exceed $10,000 and those that would be less than $10,000.

Most of these cases, most of the tax cases, as the government’s own materials that we cite indicate, are resolved by guilty pleas with respect to where those amounts are designated.

And I think it’s important here to realize that by pairing these two statutes, by pairing these two provisions, (M)(i) and (M)(ii), Congress in effect I submit sent the signal with that language in (M)(ii) that we’re talking about the kind — we’re talking about the application of the modified categorical–

Samuel A. Alito, Jr.:

–What is the — What is the difference between a defendant’s saying during a guilty plea colloquy, the loss was — I admit the loss was more than $10,000; and the defendant’s agreeing for sentencing purposes that the loss was more than $10,000?

Thomas E. Moseley:

–Because, Justice Alito, in the sentencing context we’re truly dealing with a post-verdict situation where the government in terms of having to prove loss is up against a far lesser amount — a far more liberal standard, a preponderance of the evidence standard.

And the defendant under those circumstances–

David H. Souter:

Well, if he’s admitting it, what does the standard of the evidence matter?

Thomas E. Moseley:

–He’s admitting it here, Justice Souter, under these circumstances.

He’s admitting it here only in the context of a resolution of the sentencing issue.

If you go back to the–

David H. Souter:

Well, he’s not saying, I admit to a degree of preponderance of the evidence that it was over 10,000.

He’s saying, period, over 10,000.

The burden of proof, the standard of proof doesn’t matter.

Thomas E. Moseley:

–No, but he’s — but he’s doing this in the context of resolving, of resolving a disputed issue with respect to–

David H. Souter:

And he definitively resolves it by admission.

Thomas E. Moseley:

–But he does so certainly in the context here of reserving, of reserving his right to contest that and to make the arguments that we’re making here.

David H. Souter:

No, I understand the facts of this case.

I was commenting on your answer to Justice Alito’s question, and it would seem to me that the answer to the question is there is no difference.

Thomas E. Moseley:

No, I submit — I submit that there — there really is a — a profound difference under the circumstances of someone being in a situation before, before conviction, and then someone being in a postconviction situation.

And then I think we should come back in terms — we should come back to the underlying, to the underlying requirement that the person had been — the person under the statute be convicted of the loss.

David H. Souter:

All right, that really gets to the question that I was going to ask, and that is, I don’t see how the modified categorical approach is something that you could admit would be sufficient because, as I understand your argument — and it is in part an argument based on sort of standard grammatical construction — you’re saying that in the definition

“The term “aggravated felony” means an offense that. “

–and you emphasize the “that”, the restrictive nature of the “that” clause —

“involves fraud or deceit in which the loss exceeds $10,000. “

if I understand your restrictive clause argument, the definition of the offense has got to include the element of exceeding $10,000 or it does not satisfy your, the — it does not satisfy the standard that you were arguing for based on the restrictive clause.

So it seems to me that you’ve got to go the whole hog or you get nothing, and the whole hog is that it’s got to be an element of the offense that the loss exceed $10,000.

Am I wrong?

Thomas E. Moseley:

I don’t think necessarily.

Well, under these circumstances, Justice Souter, what I would say is that there may be statutes, there may be statutes in which, there are statutes, there are State statutes, where you have a range of conduct that may include $10,000, may not include $10,000, and the modified categorical approach would apply under those.

David H. Souter:

Okay, how about this one.

You were arguing based on this statute and you make an argument based on the restrictive nature of a $10,000.

Thomas E. Moseley:

Certainly if it does, then under the statutes involved here we would prevail.

David H. Souter:

Well, yeah, you would prevail, but you would prevail, it seems to me, at the expense of this objection, and the government makes it.

There are very, very few fraud and deceit statutes that define the offense by reference to a loss in excess of $10,000.

My recollection from the government’s brief is that they come up with three.

The fact is also that this provision, the $10,000 figure, was placed into the statute at a time when Congress was trying to expand the category of deportable, removable offenses, and it would be passing strange in that context to define the offense by reference to a $10,000 figure as an element of the offense which would cut it down, which would cut the compass of the statute down to three offenses.

What is your response to that?

Thomas E. Moseley:

Well, I think the government vastly understates the statutory provisions that were involved here.

Even if you look at the State statutes, a majority of the State statutes, as I think we make clear in our reply brief, a majority of States have statutes, generally the theft by deception statutes and others which have loss thresholds that will get you over–

David H. Souter:

Well, once you get into the State statutes you get into the further problem of an utter and I would suppose unjust patchwork of statutory reference to which this would apply.

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.

Thomas E. Moseley:

–But what Congress has done here is to provide for a uniform test, in effect.

David H. Souter:

A uniform test that produces both unjust results and I would suppose strangely unsatisfying results to a Congress that wanted to expand the concept of deportable offense.

Thomas E. Moseley:

But what — but what — if I can just go back for a moment, Justice Souter, to the original premise that it under all circumstances has to be an element.

There are certainly statutes, even Federal statutes, for example, the theft from Federal — federally funded programs, which give specific loss amounts of 5,000 or more, which would — which — excuse me.

Ruth Bader Ginsburg:

But the problem is that there’s no pattern to it, The point that Justice Souter made.

If we take your position that there are a number of statutes that mention amount, some as an element, some by this, there seems to be no rhyme or reason to when the amount is there and when it isn’t, and then you have these unequal results within the Federal system and in the States, so when you think — would it make any sense for Congress to have drawn the line that way if the State happens to make — to have the “in which” or if it just has fraud and deceit with no amount?

Thomas E. Moseley:

What — Justice Ginsburg, I think what Congress did here was to create a uniform test, a uniform test in the sense you look to see if — if someone has been convicted of both these requirements, fraud or deceit or the loss.

That certainly produces far more uniformity than had–

Ruth Bader Ginsburg:

But it’s treating people who do the identical thing differently.

Thomas E. Moseley:

–But Congress chose under these circumstances, Congress chose under these circumstances to — swept broadly to, swept broadly to State statutes in addition, in addition, in addition to, in addition to encompassing the Federal statute.

Ruth Bader Ginsburg:

But what you’re saying is you’re not denying that people who commit the identical theft or deceit or fraud will be treated differently depending on whether the statute under which they’re convicted has this “in which” clause?

Thomas E. Moseley:

What I believe, what I believe that I am conceding is that it will determine — as with any of the criminal cases that lead to deportation, it will determine — it will be determined on the basis of how the prosecution chooses — excuse me — chooses to charge.

Antonin Scalia:

Mr. Moseley–

John Paul Stevens:

Mr. Moseley, can I get your help on a question I really have difficulty with.

John Paul Stevens:

It seems to me as I read the text, it is easy to read it in one of two ways: It involves fraud or deceit in which the loss to the victim in fact exceeded $10,000.

In that case you would lose.

Or it could be read to say involves fraud or deceit in which an element of the crime is that the victim or victims exceeded a loss of $10,000.

You would lose under that also because it is not an element of the crime.

So you are relying on a modified approach, and under your modified approach what does the statute say?

Thomas E. Moseley:

The — the statute — the statute says that someone has to be convicted of — of both these aspects, both of–

John Paul Stevens:

But the statute doesn’t say anything about conviction.

Thomas E. Moseley:

–If, Justice Stevens, if you read it in conjunction with the conviction requirement — in other words, to — to be deportable, to be deportable, that’s in — in 6a.

Someone who has been convicted of an aggravated felony is deportable; and also someone who has been convicted of an aggravated felony is subject to, under — under–

Antonin Scalia:

–I don’t — I don’t understand how you squeeze your — your modified categorical approach, which seems to be a deus ex machina which is intended to blunt the government’s argument that very few statutes would be covered by this.

I don’t see how you get that out of the word “convicted”.

Are you convicted of an offense involving more than $10,000 if in a separate interrogatory the jury, though it has no obligation in order to find you guilty to say how much you stole, in an interrogatory the jury says, oh, yes, the amount was more than $10,000?

Does that cause you to have been convicted of that?

You are convicted of what you are charged with.

You are convicted of the elements of the offense, not — not of whatever, whatever the judge chooses to allow the jury to be questioned about.

Thomas E. Moseley:

–I think under those circumstances, though, particularly if you look at the statutes which make gradations of sentencing on the basis of loss amounts, you clearly would be convicted of that.

It is — because that’s a necessary element that’s going to — that’s a necessary fact that’s going to have to be found to put you in a particular sentencing range.

So you — so you definitely would be — you would be under those circumstances convicted of that amount.

But I think it’s important to — to recognize what — that Congress — that Congress in enacting the statute and in predicating removal upon conviction used language that sharply distinguishes — that is sharply distinguished from the position that the government advocates here that loss should be something to be determined in separate — in — in separate removal proceedings.

Ruth Bader Ginsburg:

Can we go back to my question, which I don’t think you’ve fully answered?

And that’s the tax evasion situation.

For any tax — a person who is charged with tax evasion who goes to trial and is convicted, that person would not be deportable, as I understand it under your reading, because the jury is not asked to determine the amount of the deficiency.

Thomas E. Moseley:

Well, the jury — under those circumstances, it will depend upon how the government chooses, Justice Ginsburg, to prosecute the case.

And if the government chooses to prosecute the case by seeking a determination of the deficiency amount in a jury charge, then — then, yes — then, yes, indeed, they would.

But again, the vast majority of these cases are resolved.

Ruth Bader Ginsburg:

I know.

You told me that most of them admit it at the plea stage.

But going to trial, these are parallel provisions, and it seems to me they are meant to operate the same way.

Thomas E. Moseley:

Well, they — they are — they are meant to operate the same way.

But I think that what we have here is a situation where the fact that deficiency is a requirement and that deficiency in most cases will be established by a plea, and that this is a statute that sweeps broadly; that this is a statute that sweeps — excuse me — sweeps broadly to encompass both a loss in excess of 10,000 — a deficiency in excess of $10,000 or a deficiency under $10,000.

Samuel A. Alito, Jr.:

Did you have any authority for the — the idea that a trial judge in a criminal case should ask the jury to answer a special interrogatory regarding a question that has no bearing on the conviction, but may have a bearing on the future immigration status of the defendant, which is what you’re suggesting should be done in these tax cases?

Thomas E. Moseley:

What — what I am suggesting in the tax case is that it would be perfectly appropriate for the government to seek such a special interrogatory if they wish to establish the tax loss, which is an element of the — which is a necessary component of the offense, if they wanted to establish it — if they wanted to establish it for — for purposes — for whatever purpose they wanted to establish it.

Anthony M. Kennedy:

But I can see that if there are multiple defendants in the case, some of the defendants might say that this is unnecessary, it’s inflammatory.

Thomas E. Moseley:

That’s — that’s — that — again, that is going to depend on — that’s going to depend upon how the government chooses to — to prosecute under these particular–

Anthony M. Kennedy:

But all that just underscores the fact that–

Antonin Scalia:

–your earlier — your earlier assertion that it was necessary to — that — that it would be necessary to get that — that amount specified for sentencing purposes is simply not true.

I mean, we didn’t — we didn’t hold that the guidelines are mandatory, and you — that you need a — a jury determination.

We’ve said they are discretionary.

Thomas E. Moseley:

–No, I–

Antonin Scalia:

So if you don’t have a jury determination, you can still sentence on the basis of the amount taken, even though that was not found by the jury.

Thomas E. Moseley:

–I — I understand.

But my — my point, Justice Scalia, on this one is that — on (M)(ii) is that it is — it is a statute in which — in which loss can or is required to be shown, some deficiency is required to be shown, and this may — and this may well be done by the modified — the modified categorical approach, particularly in — in — particularly in situations in which, as in most cases, it’s resolved by a plea.

Now, if — if — but — and also, this statute was enacted against the backdrop of — of the categorical approach, and the act was amended — has been amended roughly four times during this period with no indication that Congress certainly intended to jettison this.

And I think it’s also important here to note the structure of the act in terms of how Congress sharply distinguished between what would happen with conviction and — and what would happen with sentence.

They did enact specific provisions, 101(a)(43), subpart (F) at 2a of the statutory appendix and (G) at 2a of the statutory appendix, which talk about — which — which talk about sentencing and make that sharp distinction.

But I think we should not also lose sight of the overarching fact here that this provision is an integral part of a Federal criminal statute, 1326(b), so that any ambiguity in the — so that an ambiguity in the construction and application of this statute should as — similarly to — to what this Court held in Leocal, should be resolved in favor of the — in favor of the alien, because it’s the classic multiple or dual use statute that has both civil and criminal applications, and very severe criminal applications as well.

I see I have 5 minutes.

If there are no further questions, I would like to reserve the time for rebuttal.

Antonin Scalia:

I hope in rebuttal you’ll address the argument about deferring to the agency’s finding about what it means.

We usually do that.

Thomas E. Moseley:

The — I will — I will–

Antonin Scalia:

You can save it for rebuttal.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Gannon.

Curtis E. Gannon:

Mr. Chief Justice, and may it please the Court: Petitioner’s reading of subparagraph (M)(i) implausibly excludes the mainstays of Federal fraud prosecutions and applies at best to a tiny handful of outlying offenses: Thefts of major works of art, extreme cases of government contract fraud, and some frauds obtaining confidential phone records and–

Antonin Scalia:

Well, except — except for his modified hangout.

His modified — his modified categorical does — does expand; doesn’t it?

Curtis E. Gannon:

–Well, I — I think, Justice Scalia, that he does offer this — this variation on a so-called modified categorical approach by saying that we could use extraneous facts in guilty pleas in order to satisfy the categorical approach.

But we think that that doesn’t work for both practical reasons and for the types of reasons that — that several of the questions raised in the first half of the argument–

Antonin Scalia:

And also interrogatories to the jury.

Curtis E. Gannon:

–He does seem to contemplate that interrogatories for the jury might also achieve the same purpose.

But as Justice Alito was pointing out, there — there is little reason to believe that a judge is going to permit such extraneous questions to be put to a jury that are — that are not necessary for the criminal proceeding that is actually being held at that point.

It’s unlikely that the government wants to make the entire — wants to imply that the conviction needs to turn on that.

And obviously, both with the — the special interrogatories and the guilty pleas, there are practical problems, because this could only apply prospectively, even though Congress’s definition of aggravated felonies is intended to apply to convictions that predated the enactment of IIRIRA.

It — I just mean that it would not be until we knew that this was the rule, that we could implement such — such a rule.

And it’s not clear why any alien who would be contesting his removability in the civil removal proceedings would concede in the — in a guilty plea or to a fact that is extraneous to that conviction that would ultimately–

Ruth Bader Ginsburg:

But this — but this defendant did ask, didn’t — he asked the judge.

Curtis E. Gannon:

–Well, he did not ask the judge for a finding of loss.

He — he asked for an instruction — for a special interrogatory as to

“the amount of money my client is responsible for. “

That’s on page 14a of his opening brief.

And that’s not the relevant question for purposes of the loss threshold in subparagraph (M)(i), which is actually about the — the loss to the victims from the offense involving fraud or deceit, not how much any individual defendant might have been responsible for.

And even now–

John G. Roberts, Jr.:

Well, but then you just — you, the government, says — you know, you’ll have a little debate about what the special interrogatory, how it is phrased, and your objection there could be dealt with on — during that negotiation.

Curtis E. Gannon:

–Well, and at that point he — he — we — we presumably wouldn’t want to have to prove up a loss at that point that’s irrelevant for purposes of the criminal guilt proceeding, although it may well become relevant for the sentencing proceeding, as it did become relevant here, and there was a sentencing stipulation.

Anthony M. Kennedy:

And — and why would you be reluctant to do that?

Would you just spell that out a little bit?

Curtis E. Gannon:

Well, I — I think that it could confuse the jury.

Even if it were clear that it had nothing to do with a determination of guilt, that would be a particularly odd sort of bifurcation to thrust upon the original criminal proceeding, to require the jury to make findings about facts that are truly extraneous to the purposes of the criminal proceeding that is being held there, and for — at least for guilt purposes, there is no reason for the jury to have to find that.

And as — as the questions before were making clear, the reason this Court has applied the modified categorical approach is to determine what is necessary for the underlying conviction.

That’s why it’s tied to an investigation into what really were the elements of the underlying offense.

And interrogatories about facts that were not, in fact, necessary for the conviction or — or extraneous facts that are introduced into guilty pleas do not change the fact that that particular attribute was not necessary for the conviction.

And so, we think that it makes sense, in context of the other definitions in paragraph 43 of the definition of aggravated felonies, where it is indisputable that there are multiple provisions that include both an element that needs to be evaluated as an element of the offense and some other limiting factor that need not be an element of the offense; that it makes sense to construe the loss threshold in subparagraph (M)(i) as something that need not be an element, because the consequences of Petitioner’s approach would be to read out virtually all Federal fraud prosecutions, including such mainstays as mail fraud, wire fraud, conspiracy to defraud the government, bank fraud, the offenses that were at issue here.

And he does offer a patchwork of some State offenses that could be satisfied.

But even there, there — there’s not any particular consistency to it.

He invokes the Model Penal Code, which has a gradation scheme for theft by deception offenses.

And although the BIA has — has acknowledged that theft by deception offenses may in certain circumstances constitute fraud offenses, the Model Penal Code does not in the next chapter dealing with forgery and fraudulent practices have a consistent gradation scheme.

So even in the States that Petitioner cites in his reply brief, Delaware doesn’t have monetary thresholds for insurance fraud, even though it does for health care fraud; and New Jersey doesn’t have monetary thresholds for credit card fraud or payment card fraud, and so a million-dollar fraud would not be — would not be treated consistently, depending upon which State it was committed in and even which type of fraud it was in an individual State, if the State–

Samuel A. Alito, Jr.:

Could I ask you this, does this — which is not exactly on point to the issue here, but does the government have a theory about how the loss is measured for purposes of this statute?

Under the sentencing guidelines, the loss was a very complicated calculation, lots of rules about relevant conduct and lots of cases and different ways of proving loss, and here we just have the statute.

Curtis E. Gannon:

–Yes, we think that it is not necessarily the same as the loss determination that would be made for sentencing.

And so, the board has made it very clear that even though a restitution order, for example, can be sufficient evidence of loss to the victim, that it needs to be assessed with an eye to exactly what losses were determined in the underlying restitution order and with regard to the burden of proof there.

And so–

Samuel A. Alito, Jr.:

What if you have somebody who participates in a — in a scheme involving $100 million, the total loss is $10,000, but this person had no way of reasonably anticipating that this would be the — the total amount of the loss, this was a minor participant, and — where would the — how would that come out?

Curtis E. Gannon:

–Well, I think that the text of the statute here in subparagraph (M)(i) talks about an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.

And so, we think 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 $10,000 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.

And so we think–

Ruth Bader Ginsburg:

Does the judge, when he arrives at the restitution amount, have discretion to say, as to this particular defendant, he was just an accountant with the company that was committing the fraud, he didn’t put anything into his own pocket except the salary they paid him, so I’m going to exclude him from the restitution order?

Curtis E. Gannon:

–Yes, Justice Ginsburg, in general the — the judge does have discretion to — to adjust aspects of the restitution order on the basis of the facts of the underlying offense.

And that’s — that’s one of the reasons why I think the board has been sensitive to the idea that the restitution order does not necessarily determine what the amount of loss is going to be for purposes of–

Antonin Scalia:

You — you wouldn’t allow that exclusion to have any effect on deportation, would you?

Curtis E. Gannon:

–It would depend upon the facts of the underlying case.

If the underlying fraud was one in which the victims lost nor than $10,000 and we could prove that by clear and convincing evidence in the removal proceeding, then — then we think that we would not be bound by the judge’s discretionary refusal to impose a restitution requirement on the particular defendant.

Ruth Bader Ginsburg:

So in — in my very hypothetical–

Curtis E. Gannon:

Depending upon the facts of the case, yes, Justice Ginsburg, in your hypothetical if we can prove by clear and convincing evidence that the amount of loss associated with a fraud offense was more than $10,000, we think that would satisfy.

Ruth Bader Ginsburg:

–Even — even though this defendant did not pocket any gain?

Curtis E. Gannon:

Yes.

Yes, Justice Ginsburg.

It’s not a pecuniary gain threshold.

It’s a loss to the victim threshold.

And — and although the judge may well take that into account for purposes of restitution, it doesn’t change the metric that Congress chose to determine which types of frauds are serious enough to be considered aggravated felonies.

In 1994, they — they picked a threshold of $200,000.

In 1996, they dropped that to 5 percent of that value, to $10,000.

I think Congress’s judgment here is that if the fraud is so severe that it — that — that somebody — that the victims lost $10,000, then — then that is a qualifying offense for purposes of subparagraph (M)(i), even if the original criminal sentencing judge, on the basis of all sorts of factors associated with the case and under the restitution standards, decided that the defendant was not necessarily liable to pay restitution in that amount.

Ruth Bader Ginsburg:

What about the defendant’s argument that at least as far as his admission for sentencing purposes, he did that only because otherwise the government wouldn’t ask for a downward departure?

Curtis E. Gannon:

Well, I — I think that we are not taking the position that the — the stipulation for sentencing purposes, which was pursuant to (6)(B)of the guidelines and was for stipulation purposes — we’re not arguing that that is — is dispositive in the — in the civil removal proceeding.

We’re arguing that it’s persuasive evidence of the amount of loss here.

And so, he’s — he is certainly able to say before the board or before the immigration judge that — that for some reason the amount that he admitted to isn’t really the — the actual amount of loss associated with the case.

That’s not what he has done here.

Curtis E. Gannon:

He has — he has consistently tried to establish that — that this — these — this gargantuan loss amount was — was not one that was found by the jury, not that it was not in fact the loss that actually accrued in association with the–

John Paul Stevens:

But your position — I want to be sure I understand it — is that if the record in this case had been — let’s say it’s a mail fraud case, they proved one mailing and one victim lost $30, and that’s all the trial established, but as a matter of fact you could establish this was part of a scheme, just like the one we’ve got here, in which millions of dollars were lost, you could prove that independently and he would still be required to be deported?

Curtis E. Gannon:

–Not necessarily, Justice Stevens.

If the conviction was for the entire scheme, then we could bring in the amounts that were relevant to the scheme.

But if–

John Paul Stevens:

But the scheme — the evidence of the scheme consisted of just two mailings, say.

They allege a scheme and say it’s a broad — a broad scheme, but they don’t describe the amount.

They merely prove two mailings that involved $25 apiece.

But the scheme itself, because you proved it in other cases, you have the facts, actually was a big scheme like we have here.

Could they rely on that for — for immigration purposes in a proceeding like this?

Curtis E. Gannon:

–It’s possible.

I think it would depend upon exactly what we could determine had actually been associated with the original–

John Paul Stevens:

You can determine exactly what you proved in this case.

Curtis E. Gannon:

–Well, I — if we had that amount of evidence in this case, we had sentencing stipulations and all sorts of determinations at the time of the sentencing where the defendant did not even try to argue that this wasn’t actually the amount of loss associated with his offense and conviction, then we probably would be able to establish by clear and convincing that the–

Antonin Scalia:

I’m not — I — I’m losing you.

I would — I would have thought that you have to have convicted him of the larger scheme.

Curtis E. Gannon:

–I — I thought, Justice Scalia, that that was the premise of Justice Stevens’ question.

That that–

John Paul Stevens:

Yes, it was.

Antonin Scalia:

Oh, I didn’t–

John Paul Stevens:

But it didn’t describe the dimensions of the scheme.

As far as the record shows, it only affected — it was one scheme that was as large as this one, but the evidence to prove the scheme only required you to prove two or three mailings involving small amounts of money.

But then later on you proved before the immigration judge there really was a big scheme, and that’s the one he was convicted of.

Isn’t that enough?

Curtis E. Gannon:

–Well — I think that it’s unlikely if we didn’t have the evidence contemporaneous with the trial.

John Paul Stevens:

You had the evidence, but you didn’t need it.

Curtis E. Gannon:

Well, I — if it were like this, we had the evidence contemporaneous with sentencing, with $100 million stipulations and things like that, and that makes it obviously much easier for us to prove the extent of the underlying fraud.

John Paul Stevens:

I know it’s easy; I’m wondering if it’s necessary.

I — I think under your theory, it would not be necessary.

As long as the evidence is out there, you can use it in a de novo proceeding before the immigration judge.

Curtis E. Gannon:

If — if that were, in fact, the scope of the conviction, because it was for — for the entire fraudulent scheme, then that may well be so.

Obviously, that — the cases that have applied the — the tethered approach, to use the word that Petitioners invoked here, are cases in which the — the courts and the BIA have recognized that sometimes it is necessary to recognize that there’s a distinction between what the defendant actually pleaded guilty to.

If the defendant pleads guilty to only an individual account, that’s involved in the scheme–

John Paul Stevens:

No, my — he pleads guilty to the mammoth scheme proved, the evidence before the court or on the plea colloquy, whatever is described is enough to show that he was guilty.

Curtis E. Gannon:

–Well I–

John Paul Stevens:

But then as I understand it, you can prove the size of the scheme later on.

Curtis E. Gannon:

–I — in those circumstances I — I think that we may well be able to prove that in the second proceeding.

Antonin Scalia:

–Well, I would — I thought that was the whole case we had before us, Where you haven’t proved either as an element or — or by a separate jury finding how much money was involved.

Your point is you don’t have to.

Curtis E. Gannon:

Well–

Antonin Scalia:

You can establish that later.

Curtis E. Gannon:

–Yes, that’s right, Justice Scalia, and as long as it is the scope of the scheme that — that he was convicted–

Anthony M. Kennedy:

I suppose your answer, it’s your first argument, it’s the — it’s the offense.

Curtis E. Gannon:

–Yes, yes, Justice Kennedy.

Anthony M. Kennedy:

And if for Blockburger purposes or for double jeopardy purposes, you couldn’t retry him for those other — for that additional loss, then that’s — I assume your argument is that that’s included within the offense for which he was convicted.

Curtis E. Gannon:

As long as the offense were in fact the scheme rather than an individual instance of a mailing, that’s correct; and so I think that that — that that is consistent with Justice Stevens’ hypothetical and that we would in those circumstances be able to — attempts to prove by clear and convincing evidence in the civil removal proceedings that the loss associated with the offense, which was the scheme rather than just an individual mailing, then — then we would be able to prove that.

Given–

Anthony M. Kennedy:

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?

Curtis E. Gannon:

–Well, with — here it’s — we’re not trying to prove a separate criminal offense.

We’re trying to prove that the offense–

Anthony M. Kennedy:

That’s my point.

Curtis E. Gannon:

–Yes.

Anthony M. Kennedy:

I take it that that’s your whole argument.

Curtis E. Gannon:

Yes, that it — this is the offense of conviction.

This is just like the domestic relationship prong of the misdemeanor crime of domestic violence that the Court decided in its recent decision in United States v Hayes, that — that there is a prior conviction, some aspects of which were elements of the underlying offense, and in order to establish whether the prior conviction needs the statutory definition in the subsequent proceeding, the government will need to bear the appropriate burden of proof for that proceeding.

Whether it’s–

Ruth Bader Ginsburg:

But the appropriate burden of proof was beyond a reasonable doubt.

That is in the second proceeding, the recidivist, the multiple offender proceeding–

Curtis E. Gannon:

–Yes.

Ruth Bader Ginsburg:

–the relationship, domestic relationship had to be proved beyond a reasonable doubt, which is not the standard that the BIA used.

Curtis E. Gannon:

I — I think it was beyond the reasonable doubt in the context of the 922(g)(9) prosecution–

Ruth Bader Ginsburg:

Yes.

Curtis E. Gannon:

–because that was itself a criminal proceeding, and that’s right, Justice Ginsburg.

Ruth Bader Ginsburg:

Yes, yes.

Curtis E. Gannon:

We think that if this definition were — were to be applied in the criminal context, then we would need to prove this aspect, the loss threshold.

Ruth Bader Ginsburg:

That’s what you’re talking about, the alien who is convicted of a qualifying crime, an aggravating felony, then tries — then comes back illegally.

The difference between two years and 20 years, you admit there you would have to prove beyond a reasonable doubt?

Curtis E. Gannon:

Yes, Justice Ginsburg, just to be clear it’s — there’s already a 10-year statutory maximum that applies under 1326(b)(1) for the prior conviction for a felony.

I think that’s something that can easily be established through the categorical approach and we would not need to have a 1326 to determine it’s a felony.

But in order to determine that it is an aggravated felony, as long as we could not satisfy through a categorical approach to demonstrate that it was an element of the offense in the original proceeding, then, yes, I agree; we would need to meet the relevant burden of proof in the 1326(b)(2) proceeding.

Now, as it happens, this — the extra 10-year statutory maximum at issue in 1326(b)(2) effectively never gets litigated because the sentencing guidelines arrange for aggravated felony enhancements in that context for crimes like subparagraph (M)(1), ranges from 21 months on the low end with no criminal history to 57 months on the high end with criminal history of 6.

And so this effectively — the extra 10 years of statutory range is never employed by — by judges for these types of crimes.

In the last three years, according to sentencing commission data, there isn’t a single defendant in the 1326 proceeding who received a sentence of more than 10 years and had an increase on the basis of an aggravated felony that would include the category that we’re dealing with here in subparagraph (M)(1).

John G. Roberts, Jr.:

Mr. Gannon, we’re dealing with the definition of a particular term, aggravated felony.

And yet you say the only thing that you have to prove under the protections of criminal law to prove that this is an aggravated felony is that it involved fraud or deceit.

Now, the other elements — the other provisions here talk about firearms offenses, child pornography offenses, national security offenses, but here it’s fraud or deceit.

I mean, it’s a felony, but there’s nothing that strikes — strikes me that it’s particularly an aggravated felony.

Curtis E. Gannon:

Well–

John G. Roberts, Jr.:

And yet that’s all you have to prove with the protections of the criminal law as opposed to the civil.

Curtis E. Gannon:

–Well, I think we have to prove for purposes of the relevant proceeding in which we’re trying to establish that it is an aggravated felony that it also exceeded the $10,000 threshold.

John G. Roberts, Jr.:

But not subject to the protections of criminal law that you have to show.

Curtis E. Gannon:

No more–

John G. Roberts, Jr.:

Beyond the reasonable doubt, with the jury protections.

Curtis E. Gannon:

–Well, we would need to prove that if it were relevant to a criminal proceeding, but in the civil removal proceeding those protections aren’t there.

And so we–

John G. Roberts, Jr.:

Yes, I guess what I’m saying, the only thing that makes this aggravated, the $10,000, in contrast to the other things, which are aggravated by virtue of elements that you have to approve — you have to prove beyond a reasonable doubt — is that it’s fraud ir deceit.

And as I said, there’s nothing about that that — it’s bad, but it doesn’t strike me as particularly aggravated.

Curtis E. Gannon:

–Well, Mr. Chief Justice, there are several other statutes here that have extra limiting factors that are necessary to make the crime an aggravated one for purposes of the aggravated felony, but don’t have to be proved as an element of the original offense.

Congress has established–

John G. Roberts, Jr.:

Well, that’s just — I think that’s kind of begging the question.

John G. Roberts, Jr.:

You assume that those elements, those provisions also don’t have to be proved as elements.

And what I’m suggesting, I guess, is that if the only thing that makes it aggravated is — is something you don’t have to prove beyond a reasonable doubt, it seems that we ought to look, well, is that really aggravated?

Curtis E. Gannon:

–Well–

John G. Roberts, Jr.:

And when you’re talking about firearm offenses, or child pornography, yes, that’s aggravated; but fraud and deceit is kind of a run of the mine felony.

Curtis E. Gannon:

–Well, but for many of the offenses it’s things that as Petitioner acknowledges, would never be proved as elements of the offense.

It’s the notion that a crime of violence is one in which the term of imprisonment is at least one year.

There are other ones that depend on the actual sentence that was imposed.

There is a second or subsequent offense that’s referred to in subparagraph (J); there is an exception for purely political offenses from the definition of — of crime of violence.

There are affirmative defenses–

John G. Roberts, Jr.:

Well, I guess I don’t understand how that’s responsive.

It’s — it’s–

Curtis E. Gannon:

–Well–

John G. Roberts, Jr.:

–crime of violence.

In other words it seems to me you’re already in the aggravated area, so it makes sense to say that’s what you have to prove.

Curtis E. Gannon:

–But not according to Congress.

It is only in the area, if it is not a purely political offense, and if the term of imprisonment is at least one year.

And so by definition, it already can’t be an aggravated felony according to Congress if it doesn’t meet other factors that we would not have expected the original jury to determine as an element of the original crime of violence.

John G. Roberts, Jr.:

I — I guess I don’t understand the answer, and I’m sorry if it’s–

Curtis E. Gannon:

Well, I’m the one that’s sorry.

John G. Roberts, Jr.:

–I’m hard to get through.

[Laughter]

It just — you’re saying is that there are exceptions, but I don’t see that that detracts from the point that “crime of violence” — you think right away, well, that’s aggravated; national security crimes, that’s aggravated; firearms offenses, that’s aggravated.

They’re sort of on their own without respect to these other things that you say you only have to prove by the civil — pursuant to the civil burden requirements.

Fraud or deceit — as I guess I’ve already said, that doesn’t strike me as particularly aggravated.

Curtis E. Gannon:

Well — and I think that’s–

John G. Roberts, Jr.:

What makes it aggravated is something as to which you have a much lighter burden.

Curtis E. Gannon:

–Well, it’s — it’s not a much lighter burden in the sense that we do, for purposes of the civil removal proceeding, need to establish it by clear and convincing evidence, and — and it is, in — in a subsequent criminal proceeding, there will be all the constitutional protections that you’re talking about, just like the domestic relationship prong of the — of the crime that the Court considered in Hayes.

Antonin Scalia:

I — I would have thought you would not accept the Chief Justice’s premise, that a crime of violence is an aggravated felony.

Curtis E. Gannon:

Well, I–

Antonin Scalia:

It isn’t.

Curtis E. Gannon:

–I tried to explain that it is not as long as there isn’t a sentence that is imposed of at least 1 year according to Congress’s way of determining what is an aggravated felony, and Congress has determined that–

John Paul Stevens:

But the — but the Chief Justice points out that the facts that make the fraud aggravated are facts that you do not have to prove beyond a reasonable doubt, which takes back to your opponent’s argument.

Therefore, you were not convicted by proof beyond a reasonable doubt of the aggravated felony that’s the basis for the immigration order.

Curtis E. Gannon:

–Well, that’s correct, Justice Stevens, but in — in that regard–

John Paul Stevens:

So you were not convicted of the aggravated offense that — the issue in this case.

Curtis E. Gannon:

–Well, no, we think that you were convicted of the offense, which is an offense that involves fraud or deceit, and then there is the further limitation that Congress has imposed, not as an element–

John Paul Stevens:

But the — but you hadn’t been convicted of the aggravated offense until you established its aggravation by proof of less — not under a reasonable doubt.

So the word “convicted” really is pretty important.

Curtis E. Gannon:

–But it — it can’t have that same meaning with regard to all of these other things in all of these other offenses in which Congress has determined they’re not an aggravated felony until those other criteria are also satisfied.

I mean — so we think that in a statute that indisputably involves individual offenses that have both elements of the offense and nonelement limiting factors in order to limit the category to those that Congress would have deemed to be aggravated, that it makes sense to not have to find as an element of the offense those extra factors that generally wouldn’t be for most of the other provisions.

And here we know if that reading is imposed on this statute, that it reads out all the mainstays of Federal fraud prosecutions and brings in a haphazard patchwork of–

Antonin Scalia:

It depends on how you read the language.

I guess — I guess grammatically it could be read either way.

You can read it: an offense that involves fraud or deceit in which — in which the loss to the victim exceeds $10,000.

Or you could read it: convicted of an offense that involves fraud or deceit, in which the loss to the victim exceeds $10,000.

I mean, “convicted” doesn’t necessarily apply to the last — to the last phrase.

Curtis E. Gannon:

–And we–

Antonin Scalia:

–and that’s basically what we’re arguing about.

Curtis E. Gannon:

–And we think–

John Paul Stevens:

No, but the word “convicted” — the question is whether the word “convicted” applies to the word “aggravated”.

That’s the point, as I understand the Chief Justice’s questioning, which goes to the burden of proof.

So you would win even under that approach if you said you had a proof beyond a reasonable doubt of the other factors.

But the thing that creates the — the missing link is that to convert it from ordinary fraud to aggravated fraud, you have to prove X under one view by a reasonable — beyond a reasonable doubt, but, under your view, by only clear and convincing evidence.

Curtis E. Gannon:

–Well, for purposes of a civil removal proceeding, that’s true, and that’s no different from the limiting factors in several of the other provisions, like the sentence that was imposed — the potential sentence — whether there was an exception for a first offense that involved family members, for the alien smuggling and document fraud, crimes in (N) and (P).

And the — this also is a reading that we can’t impose on subparagraph (M)(ii), where we know that there is no loss requirement there, that the government have a revenue loss of more than $10,000 for a crime in which the loss to the government is $10,000.

The “in whiches” here are parallel to the “for whiches” elsewhere in — in the statute.

And although Petitioner invokes the guilty plea practice in the context of tax evasion offenses for purposes of section 7201, this — this doesn’t help his argument for the same reason that he cannot use extraneous elements and guilty pleas generally to establish that something was necessary for a conviction.

But if you look at the criminal tax manual that he invokes, it makes clear by referring to relevant conduct and the need for the loss amount there to include all of the losses for all of the years in the indictment, even if the defendant has pleaded guilty to only an individual count for a single year of tax evasion, that the loss amounts that is typically included in guilty pleas in 7201 cases is not the loss amount that is relevant here.

It is in fact directly parallel to the sentencing stipulation that — that the Petitioner entered into here.

If the Court has no further questions–

John G. Roberts, Jr.:

Thank you, Mr. Gannon.

Curtis E. Gannon:

–The court of appeals should be affirmed.

John G. Roberts, Jr.:

Mr. Moseley, you have 4 minutes remaining.

Thomas E. Moseley:

With respect to the issue of deference, the fact that this is part of a Federal criminal statute I believe doesn’t get us — cuts off the inquiry, and we don’t get to Chevron deference here.

We deal with a dual use statute which has both civil and criminal applications, so that under these circumstances, certainly as this Court held in Leocal and in Lopez-Gonzalez, Chevron deference with respect to Babaisakov would not — for example — would not be triggered.

I think, moreover, it’s important to note that the Babaisakov got (M)(ii) wrong — got the — the requirement of a deficiency wrong, and also got wrong the fact that there were no statutes involved where fraud — where a loss amount in excess of $10,000 would be an element.

Finally, I think the government’s reading of this statute might make sense if Congress had said that — convicted of a crime in — a crime in which fraud or deceit is an element, with loss to be found at removal proceedings in excess of $10,000.

But that’s not the language that Congress employed here, and under these circumstances, even if the statute is perceived to be ambiguous, that ambiguity should be resolved in the Petitioner’s favor.

Antonin Scalia:

To come back to the deference point, you say — is this relevant to the criminal conviction?

He’s convicted criminally regardless of how you read that.

You acknowledge it doesn’t — it isn’t an element of the crime, and so to be convicted criminally you acknowledge you don’t have to show the amount–

Thomas E. Moseley:

But–

Antonin Scalia:

–right?

Thomas E. Moseley:

–But what the government has said, if they’re going to do a prosecution under 8 U.S.C. 1326(b), that they would seek to prove this amount de novo in the underlying criminal proceeding.

So it will form — it would form part of a — it would form part of a criminal prosecution–

Antonin Scalia:

Well, in that later criminal proceeding, they would have to prove it undoubtedly–

Thomas E. Moseley:

–Right, and that–

Antonin Scalia:

–But this is not a later criminal proceeding; this is an administrative proceeding.

And why shouldn’t it be up to the BIA initially to determine how to interpret this language for purposes of the deportation laws?

Thomas E. Moseley:

–It shouldn’t, Justice Scalia, because we deal with a dual use statute, as this Court said in Leocal, which indeed was also a civil removal proceeding, or Lopez-Gonzalez, which was a civil removal proceedings.

Leocal involved 18 U.S.C. 16 — 16(b), and–

Antonin Scalia:

But there — was it not true that there the interpretation placed upon the statute by BIA would also be the interpretation necessary to secure the criminal conviction?

And that’s not the case here.

Thomas E. Moseley:

–But it was — but in Lopez-Gonzalez, there was a — there was a Board of Immigration Appeals decision, Matter of Yanez, which was directly opposite to what this Court held and ultimately rejected in that decision.

There — this clearly is a statute, I submit, that implicates — that implicates a Federal criminal prosecution later.

And indeed if the government, as the government’s brief, says that they’re going to prove this amount in some subsequent illegal reentry prosecution, that I submit raises more far more concerns with respect to practicality.

Anthony M. Kennedy:

I frankly couldn’t understand the government’s concession on that point.

I thought the — the offense on illegal entry was to enter illegally after you’ve been deported.

It’s a — there’s a defense if the original deportation was flawed?

Thomas E. Moseley:

No–

Anthony M. Kennedy:

I don’t understand that.

Thomas E. Moseley:

–Well, that may be a separate issue, Justice Kennedy.

There is the sentencing enhancement if it’s after — if someone enters or reenters illegally after a conviction of an aggravated felony.

And what the government apparently has said is that they would prove for a person whose aggravated felony arguably falls within (i)–

Anthony M. Kennedy:

I see.

Thomas E. Moseley:

–they would prove that loss de novo in Federal Court.

I see my time is up.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.