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Date: 12-14-2021
Case Style:
United States of America v. Abhijit Prasad
Case Number: 19-10454
Judge: Bridget Anne Shelton Bade
Court:
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
On appeal from The United States District Court
for the Northern District of California
Plaintiff's Attorney: 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
Defendant's Attorney:
Description:
San Francisco, CA - Criminal defense lawyer represented defendant with twenty-one counts of visa fraud, and two counts of aggravated identity theft charges.
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
1 Prasad also appeals his convictions, asserting evidentiary errors
and challenging the sufficiency of the evidence. This opinion addresses
only Prasad’s arguments challenging the forfeiture order. A
concurrently filed memorandum disposition resolves the remaining
issues on appeal and affirms Prasad’s convictions.
6 UNITED STATES V. PRASAD
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.
2 The Immigration and Nationality Act allows employers in the
United States, like Maremarks, to request H-1B status for nonimmigrant
foreign workers in specialty occupations. See 8 U.S.C. § 1184(c);
8 U.S.C. § 1101(a)(15)(H)(i)(b); 8 C.F.R. § 214.2(h)(2)(i). The
prospective employer must first file a Labor Condition Application
(LCA) with the Department of Labor (DOL) that identifies the specialty
occupation it seeks to fill and attests to certain employment terms and
conditions. 8 U.S.C. § 1182(n)(1); see also 8 C.F.R. § 214.2(h)(4)(i)(B);
20 C.F.R. §§ 655.700(b), 655.730(c)–(d). If the Secretary of Labor
certifies the LCA, the employer must then submit a Petition for a
Nonimmigrant Worker (Form I-129) that requests H-1B nonimmigrant
worker classification for the foreign worker. 8 C.F.R. § 214.2(h)(1)(i),
(h)(2)(i); 20 C.F.R. § 655.700(b)(2). The employer files these
documents with the Department of Homeland Security, and the United
States Citizenship and Immigration Services (USCIS) processes them.
See 8 C.F.R. § 214.2(h)(1)–(2); 20 C.F.R. § 655.700(a), (b)(3). If USCIS
approves the employer’s H-1B petition, the beneficiary employees are
admissible as temporary nonimmigrant workers and can obtain an H-1B
nonimmigrant visa. 8 C.F.R. § 214.2(h)(1)–(2); see 20 C.F.R.
§ 655.700(b)(3). H-1B beneficiaries are authorized to work in the United
States only for the petitioning employer for the employment term
specified in the petition. 8 C.F.R. § 214.2(h)(1)(i), (h)(2)(i)(D)–(E). For
an H-1B beneficiary to work for an employer other than the petitioneremployer, the prospective new employer must go through the same
application process as the original petitioner-employer, “and the alien is
not authorized to begin the employment with the new petitioner until the
petition is approved.” 8 C.F.R. § 214.2(h)(2)(i)(D).
UNITED STATES V. PRASAD 7
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
3 This guidance was effective during the period that Prasad filed the
petitions at issue in this case. See U.S. Citizenship & Immigr. Servs.,
U.S. Dep’t of Homeland Sec., PM-602-0114, Rescission of Policy
Memoranda 1 (2020).
8 UNITED STATES V. PRASAD
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 endclients 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
4 The number of H-1B petitions that USCIS can grant each year is
capped by statute, see 8 U.S.C. § 1184(g)(1)(A)(vii), (g)(5), and USCIS
reviews the petitions it receives based on a random selection process if
there are sufficient petitions to meet the cap. 8 C.F.R.
§ 214.2(h)(8)(iii)(A)(5)(ii); Rubman v. U.S. Citizenship & Immigr.
Servs., 800 F.3d 381, 384 (7th Cir. 2015). USCIS denies the petitions
that are not selected in this process without review. Rubman, 800 F.3d
at 384.
UNITED STATES V. PRASAD 9
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
5 Prasad estimates that the H-1B beneficiaries received
approximately eighty percent of the $1,193,440.87.
6 When a defendant is convicted of visa fraud, § 982(a)(6)(A)(ii)
mandates that a district court
shall order that the person forfeit to the United
States . . . any property real or personal—
(I) that constitutes, or is derived from or is
traceable to the proceeds obtained directly or
10 UNITED STATES V. PRASAD
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:
indirectly from the commission of the offense of
which the person is convicted; or
(II) that is used to facilitate, or is intended to be
used to facilitate, the commission of the offense
of which the person is convicted.
18 U.S.C. § 982(a)(6)(A)(ii).
7 As noted in the concurrence, another subsection of
§ 982(a)(6)(A)(ii) also requires forfeiture of property “that is used to
facilitate, or is intended to be used to facilitate, the commission of the
offense,” 18 U.S.C. § 982(a)(6)(A)(ii)(II) (the “facilitation” provision).
We do not address whether the district court’s order can stand under that
provision, however, as the parties did not brief that issue before us or the
district court. The government sought forfeiture under subsection (I) (the
“proceeds” provision) by tracking the language of subsection (I) and
requesting “a forfeiture money judgment of $1,193,440.87, representing
the amount of proceeds Prasad obtained as a result of the criminal
conduct for which he was convicted.” And although the district court
cited subsections (I) and (II) in its order, it did not discuss or apply the
facilitation provision, and instead ordered forfeiture for “the amount of
illegal proceeds obtained directly or indirectly from the commission of
the offense of conviction,” language nearly identical to the proceeds
provision. “In our adversarial system of adjudication, we follow the
principle of party presentation,” and thus, “we rely on the parties to frame
the issues for decision and assign to courts the role of neutral arbiter of
matters the parties present.” United States v. Sineneng-Smith, 140 S. Ct.
1575, 1579 (2020) (citation omitted). Accordingly, because the parties
have developed neither arguments as to whether a facilitation theory
could support the forfeiture order under § 982(a)(6)(A)(ii)(II), nor an
evidentiary record on the point, we do not consider it. See id.; A-1
Ambulance Serv., Inc. v. County of Monterey, 90 F.3d 333, 338–39 (9th
Cir. 1996).
UNITED STATES V. PRASAD 11
(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, 137 S. Ct. 1626, 1632
(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
12 UNITED STATES V. PRASAD
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, 137 S. Ct. 1626.
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)(6)(A)(ii)(I) only
8 Prasad asserts that his payment of portions of the $1,193,440.87 to
the H-1B beneficiaries indicates he did not possess the entire
$1,193,440.87, but the very act of payment establishes that he did
control, and thus possess, the money.
UNITED STATES V. PRASAD 13
requires that the government show that the defendant had
possession of the property at some point to establish that the
defendant “obtained” it. See id.
In sum, because Prasad controlled the $1,193,440.87, he
possessed it and so necessarily had obtained it. We therefore
conclude that Prasad “obtained” the $1,193,440.87 that the
end-clients paid to Maremarks.
B.
Prasad argues that even if he “obtained” the
$1,193,440.87, the “proceeds” that he “obtained” are limited
to his profit, which excludes the amount he paid to the H-1B
beneficiaries for their work for end-clients. As Prasad
correctly notes, “‘[p]roceeds’ can mean either ‘receipts’ or
‘profits’ . . . in ordinary usage.” United States v. Santos, 553
U.S. 507, 511 (2008) (plurality opinion) (citations omitted)
(construing the term “proceeds” in the federal moneylaundering statute, 18 U.S.C. § 1956);9 see also United
9 Santos, a plurality decision, construed the term “proceeds” within
the elements of the money laundering statute and, because the term was
ambiguous, it applied the rule of lenity to conclude that “proceeds” was
limited to profits. 553 U.S. at 514–15. Justice Stevens concurred with
the plurality decision, but only on the scope of the money laundering
statute as applied to the specific facts before the Court, and he stated
concerns that, under the facts presented, interpreting “proceeds” as
receipts could lead to a merger problem by allowing two crimes to arise
from the same conduct. See id. at 525–28 & n.7 (Stevens, J., concurring).
United States v. Christensen rejected the argument that Santos compelled
us to construe the term “proceeds” in the RICO forfeiture statute to mean
“profits.” 828 F.3d 763, 823 (9th Cir. 2015) (“The issue in Santos was
quite different, however. The interpretation of ‘proceeds’ in Santos
affected the scope of criminal liability for money laundering, not the
amount of forfeiture.”). Here, we are, as in Christensen, asked to
construe the term “proceeds” in the criminal forfeiture statute; once
14 UNITED STATES V. PRASAD
States v. Peters, 732 F.3d 93, 99 (2d Cir. 2013) (concluding
that the term “proceeds” in 18 U.S.C. § 982(a)(2) could
mean either “profits” or “receipts” in “ordinary usage,” and
rejecting argument that Santos compelled construing
“proceeds” as profit (citation omitted)).
But a statutory term may not be read in isolation and
must instead be construed in its proper context within the
statute. See Mont v. United States, 139 S. Ct. 1826, 1833–
34 (2019); Antonin Scalia & Bryan A. Garner, Reading Law
167 (2012). And because the term “proceeds” is ambiguous,
we must look to “other sources” to determine its
meaning. See Nader, 542 F.3d at 717 (citation omitted).
Considering the term “proceeds” in the context of the
forfeiture statute, the statute’s punitive purpose, and our
prior construction of virtually identical criminal forfeiture
provisions, we conclude that the term “proceeds” extends to
receipts and is not limited to profit.
1.
We first consider the term “proceeds” in the context of
the forfeiture statute. Section 982(a)(6)(A)(ii)(I) provides
for forfeiture of the “proceeds obtained . . . from the
commission of the offense.” 18 U.S.C. § 982(a)(6)(A)(ii)(I)
(emphasis added). Prasad argues that we should construe
this statute as limiting forfeiture to “profits obtained” from
the commission of the offense. “[O]btain” means “to come
again the holding in Santos does not affect the issue before us because
“[f]orfeiture is an aspect of the sentence, not an element of the underlying
crime,” and thus there is no possibility of a merger problem. Id. at 822–
23 (citing Libretti v. United States, 516 U.S. 29, 38–39 (1991)); see also
id. at 824 (stating “[o]nly the desire to avoid a merger problem united
the plurality and Justice Stevens in Santos” (internal quotation marks and
citation omitted)).
UNITED STATES V. PRASAD 15
into possession of” or to “get or acquire.” Honeycutt, 137 S.
Ct. at 1632 (citations omitted). “Profit” is “[t]he pecuniary
gain in any transaction; the amount by which value acquired
exceeds value expended.” Profit, Oxford English
Dictionary, supra. Thus, Prasad argues that we should
construe the statute to limit forfeiture to “the pecuniary gain
in any transaction, or the value acquired less the value
expended” (i.e., profit) “that is acquired or which the
defendant comes into possession of” (i.e., obtained).
But when, as here, a defendant possesses and controls the
receipts of his criminal conduct but ultimately retains only a
portion of those receipts for his own profit, Prasad’s
construction of “proceeds obtained” cannot be reconciled
with the common meaning of “obtain”—to “come into
possession of” or “acquire.” See Honeycutt, 137 S. Ct. at
1632. Instead, Prasad’s construction of “proceeds” as profit
would require us to construe “proceeds obtained . . . from the
commission of the offense,” see 18 U.S.C.
§ 982(a)(6)(A)(ii)(I), to mean “proceeds that are part of what
the defendant obtained from the commission of the offense.”
Nothing in the statute supports this convoluted construction
of “proceeds obtained.”
Rather, in common English usage, we say that a person
obtains, or gets, or acquires revenue or income (i.e.,
receipts), which may ultimately result in profit after
accounting for costs. See Profit, Black’s Law Dictionary,
supra. Indeed, “receipts” means “the amount, sum, or
quantity received,” such as “money.” See Receipts, Oxford
English Dictionary, supra; Receipt, Black’s Law Dictionary,
supra (defining “receipt” as “income”); see also Proceeds,
Black’s Law Dictionary, supra (defining “proceeds” as “the
amount of money received from a sale” (emphasis added)),
quoted in Casey, 444 F.3d at 1076 n.4. Thus, the district
16 UNITED STATES V. PRASAD
court’s construction of “proceeds” as “receipts” is supported
by the common meaning of the relevant statutory language.
The Sixth Circuit recently reached the same conclusion
based on similar reasoning. See United States v. Bradley,
969 F.3d 585, 588–89 (6th Cir. 2020). In Bradley, the court
rejected the defendant’s argument that “forfeiture of a
crime’s ‘proceeds,’” under 21 U.S.C. § 853(a)(1),10 “does
not include money received by the defendant from the crime
but paid to coconspirators.” Id. at 588. Instead, it held that
the term “proceeds” in 21 U.S.C. § 853(a)(1) means receipts
because the statute “holds defendants responsible for the
‘proceeds’ they ‘obtained’ through the conspiracy,” id. at
588–89, and “it is beside the point whether the money stayed
in [the defendant’s] pocket (e.g., kept as profits) or went
toward the costs of running the conspiracy (e.g., used to pay
coconspirators),” id. at 589. Thus, the court concluded that
“[§] 853(a)(1) asks only whether the defendant obtained the
money,” not what he did with it. Id. (citing Newman, 659
F.3d at 1243).
We conclude that Congress’s use of the phrase “proceeds
obtained” demonstrates that the focus of forfeiture is
whether the defendant obtained the property from the
commission of the crime, not whether the defendant made a
profit based on what he later chose to do with that property.
See id. at 588–89; see also Newman, 659 F.3d at 1243
(stating property is forfeitable regardless of whether the
defendant “saves his stolen loot,” “spends [it] on wine,
10 21 U.S.C. 853(a)(1), which is materially similar to 18 U.S.C.
§ 982(a)(6)(A)(ii)(I), requires forfeiture of “any property constituting, or
derived from, any proceeds the person obtained, directly or indirectly, as
the result of such violation.” 21 U.S.C. § 853(a)(1).
UNITED STATES V. PRASAD 17
women, and song,” or even reinvests it “as part of the
criminal enterprise” (citation omitted)).
Moreover, it would make little sense to construe
“proceeds” as profit, as Prasad urges, because that
construction would allow a defendant to defeat the United
States’ vested claim to property obtained from the
commission of the crime by reinvesting that property into the
criminal enterprise before his conviction, rather than
pocketing it as profit. See 21 U.S.C. § 853(c) (“All right,
title, and interest in property . . . vests in the United States
upon the commission of the act giving rise to
forfeiture . . . .”); United States v. Lazarenko, 476 F.3d 642,
647–48 (9th Cir. 2007).
In sum, while the term “proceeds” is ambiguous on its
own, we must look to the entire text of a statutory provision
when interpreting the meaning of a particular term. Here,
placing “proceeds” in its proper context by interpreting it in
light of the term “obtained” and 21 U.S.C. § 853(c) (as
incorporated by 18 U.S.C. § 982(b)) supports that
“proceeds” under 18 U.S.C. § 982(a)(6)(A)(ii)(I) denotes
receipts.
2.
We also apply 18 U.S.C. § 982(a)(6)(A)(ii)(I) in light of
its statutory purpose and conclude that construing
“proceeds” to include receipts advances that purpose, while
limiting “proceeds” to profit hinders it. We favor an
interpretation of a statute that furthers and does not obstruct
the statute’s purpose. Burns v. Stone Forest Indus., 147 F.3d
1182, 1184 (9th Cir. 1998) (citation omitted); Scalia &
Garner, supra, at 63–64; see also The Emily & The Caroline,
22 U.S. (9 Wheat.) 381, 389 (1824) (rejecting construction
of statute offered by claimants because that construction
18 UNITED STATES V. PRASAD
would “render[] the law in a great measure nugatory[] and
enable offenders to elude its provisions in the most easy
manner,” thereby frustrating the law’s purpose).
Section 982 provides for “criminal forfeiture,” which “is
designed to punish the offender.” United States v.
Bajakajian, 524 U.S. 321, 332 (1998); United States v.
Beecroft, 825 F.3d 991, 999 (9th Cir. 2016) (“[A] general
hallmark of criminal forfeiture orders—distinguishing them
from orders of restitution—is that they indeed serve to
punish the defendant.” (citations omitted)), abrogated on
other grounds by Honeycutt, 137 S. Ct. 1632, 1635.
“Forfeitures help to ensure that crime does not pay: They at
once punish wrongdoing, deter future illegality, and ‘lessen
the economic power’ of criminal enterprises.” Kaley v.
United States, 571 U.S. 320, 323 (2014) (citations omitted).
A criminal forfeiture that simply divests a defendant of
the profits from his crime has little deterrent value.
Construing “proceeds” as profits would allow a defendant to
avoid forfeiture of certain property obtained from his
criminal activity by reinvesting it in the criminal enterprise
or using sophisticated accounting practices to conceal
profits. See Peters, 732 F.3d at 101. Therefore, limiting
“proceeds” solely to profits would hinder 18 U.S.C. § 982’s
punitive purpose and so is a construction that should be
avoided. See The Emily & The Caroline, 22 U.S. (9 Wheat.)
at 388–89 (rejecting interpretation that would undermine the
statute’s purpose). On the other hand, construing “proceeds”
to include receipts advances 18 U.S.C. § 982’s purpose, and
thus is the preferred construction. See Burns, 147 F.3d at
1184–85.
UNITED STATES V. PRASAD 19
3.
Defining the term “proceeds” in 18 U.S.C.
§ 982(a)(6)(A)(ii)(I) to include receipts is consistent with
our past interpretation of the term “proceeds” as used in
similarly worded criminal forfeiture provisions, including:
18 U.S.C. § 982(a)(2), 18 U.S.C. § 1963(a)(3), and
21 U.S.C. § 853(a)(1). A court’s prior construction of
statutory language is relevant to the meaning of a similarly
worded provision. See United States v. Durcan, 539 F.2d
29, 31 (9th Cir. 1976) (concluding that prior construction of
similar statutory language from a different statutory
provision controlled); Scalia & Garner, supra, at 322 (stating
that the prior construction canon applies “to interpretations
of the same wording in related statutes”).
First, we have held that “proceeds” means receipts for
purposes of 18 U.S.C. § 982(a)(2).11 See Newman, 659 F.3d
at 1243. The forfeiture provision in 18 U.S.C. § 982(a)(2) is
materially identical to the forfeiture provision here.12 In
Newman, we reasoned that “proceeds” goes beyond the
money in the defendant’s possession when apprehended and
includes amounts that “the criminal spent . . . as part of the
criminal enterprise.” 659 F.3d at 1243. “Congress intended
[that criminal defendants] disgorge their ill-gotten gains,
11 The Second Circuit has also concluded that “proceeds” means
receipts under 18 U.S.C. § 982(a)(2). See Peters, 732 F.3d at 101–02.
12 Section 982(a)(2) mandates forfeiture of “any property
constituting, or derived from, proceeds the person obtained directly or
indirectly, as the result of” certain specified crimes. 18 U.S.C.
§ 982(a)(2). Our construction of § 982(a)(2) is particularly noteworthy
because materially similar provisions within the same statute should be
construed in the same way. See Mertens v. Hewitt Assocs., 508 U.S. 248,
260 (1993).
20 UNITED STATES V. PRASAD
even those already spent.” Id. (quoting Casey, 444 F.3d at
1074). Thus, it did not matter that one of the defendants,
who participated in a mortgage fraud conspiracy,
“personally profited very little” or that the banks had
recovered part of the loan amounts. Id. at 1238, 1244
(citation omitted). The “proceeds” of the offense equaled
the entire amount of the loans the defendant fraudulently
obtained, i.e., his receipts. Id. at 1244.
Second, we have held that RICO’s criminal forfeiture
provision, 18 U.S.C. § 1963(a)(3), also extends beyond
profits to receipts.13 Christensen, 828 F.3d at 822 (holding
that “‘proceeds’ in the RICO forfeiture statute refers to gross
receipts rather than net profits”). In Christensen, we
explained that construing the term “proceeds” broadly to
include receipts frees the government from “the
unreasonable burden . . . of proving net profits” by
demonstrating “what the defendant’s overhead expenses
were.” Id. (quoting United States v. Simmons, 154 F.3d 765,
771 (8th Cir. 1998)); see also Peters, 732 F.3d at 101 (stating
that construing “proceeds” under 18 U.S.C. § 982(a)(2) to
mean profits would incentivize “criminals to employ
complicated accounting measures to shelter the profits of
their illegal enterprises” (citation omitted)). Additionally, in
Christensen, we considered the punitive purpose of RICO’s
forfeiture provision and concluded that construing
“proceeds” to encompass receipts effectuates that purpose,
while limiting it to profits would not. 828 F.3d at 822–24.
13 Section 1963(a)(3), which is very similar to § 982(a)(6)(A)(ii)(I),
requires forfeiture of “any property constituting, or derived from, any
proceeds which the person obtained, directly or indirectly, from
racketeering activity or unlawful debt collection in violation of section
1962.” 18 U.S.C. § 1963(a)(3).
UNITED STATES V. PRASAD 21
Accordingly, we held that “proceeds” under RICO’s
criminal forfeiture provision means receipts. Id. at 822.
Third, we construed the forfeiture provision of the
Controlled Substances Act, 21 U.S.C. § 853(a)(1), to require
forfeiture of the receipts of illegal drug transactions.14
Casey, 444 F.3d at 1076 & n.4 (defining the term “proceeds”
in the forfeiture provision as “the amount of money received
from a sale” (quoting Black’s Law Dictionary 1242 (8th ed.
1999))). In Casey, the defendant was convicted of
distribution of ecstasy where his only role was serving as a
“middleman” who “transferred the [$7,000] he received to a
third party who actually shipped the drugs.” 444 F.3d at
1072–73. The defendant argued that the “proceeds” he
obtained were limited to the $200 he made as profit—not the
$7,000 he received and transferred (i.e., the receipts). Id. at
1072, 1076 n.4. We disagreed. Id. at 1073–74. “Even
though [the defendant] no longer ha[d] the drug proceeds,”
we reasoned that the defendant “received funds that should
never have been available for him to spend.” Id. at 1073–
74.
We again emphasized the punitive nature of criminal
forfeiture in Casey. Id. Construing “proceeds” to
encompass the entirety of the defendant’s receipts “negates
any benefit [the defendant] may have received from the
money, ensuring that, in the end, he does not profit from his
criminal activity.” Id. at 1074. Ultimately, we held that the
“proceeds” were “the $7,000 [the defendant] received in the
illegal drug transaction.” Id. at 1076. In other words,
14 Under § 853(a)(1), the court must order forfeiture of “any
property constituting, or derived from, any proceeds the person obtained,
directly or indirectly, as the result of” certain drug offenses. 21 U.S.C.
§ 853(a)(1).
22 UNITED STATES V. PRASAD
21 U.S.C. § 853(a)(1) mandated forfeiture of the receipts of
the defendant’s crime. See id.
In sum, we have consistently held that “proceeds” means
receipts when used in criminal forfeiture provisions that are
materially similar to 18 U.S.C. § 982(a)(6)(A)(ii)(I),
specifically 18 U.S.C. § 982(a)(2), 18 U.S.C. § 1963(a)(3),
and 21 U.S.C. § 853(a)(1). We see no reason to make
§ 982(a)(6)(A)(ii)(I) an outlier, especially considering the
statutes’ nearly identical language and shared punitive
purpose. United States v. Novak, 476 F.3d 1041, 1051 (9th
Cir. 2007) (en banc) (“[C]ourts generally interpret similar
language in different statutes in a like manner when the two
statutes address a similar subject matter.” (citations
omitted)).
4.
Finally, we recognize that Congress referred to “gross
proceeds,” “gross receipts,” and “proceeds” within the
various forfeiture provisions under 18 U.S.C. § 982(a).
Typically, under the presumption of consistent usage and
material variation, a material change in terminology within
the same statute denotes a change in meaning. Sosa v.
Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004) (“[W]hen
the legislature uses certain language in one part of the statute
and different language in another, the court assumes
different meanings were intended.” (citation omitted));
Scalia & Garner, supra, at 170. Applying this presumption
here could suggest that “proceeds” is limited to profits, given
that “gross proceeds” and “gross receipts” more readily
invoke the concept of receipts than the term “proceeds”
alone.
But this presumption “is not rigid and readily yields” to
context “to meet the purposes of the law.” Sun v. Ashcroft,
UNITED STATES V. PRASAD 23
370 F.3d 932, 939–40 (9th Cir. 2004) (quoting Atl. Cleaners
& Dyers v. United States, 286 U.S. 427, 433 (1932)).
Additionally, the presumption of consistent usage and
material variation loses force when the relevant terms were
added on different occasions, as is the case here.15 See
Kniess v. United States, 413 F.2d 752, 754 (9th Cir. 1969)
(stating that “phrases employed by one legislative draftsman
are an unreliable clue as to that which another writer, at a
different point in time, . . . may have intended by the use of
slightly different terms”); Scalia & Garner, supra, at 172–
73. Because, as we have discussed in detail, the purpose of
18 U.S.C. § 982 reveals that “proceeds” means receipts, and
the relevant terms were added at different times, the
presumption is overcome here.
* * *
The term “proceeds” under 18 U.S.C.
§ 982(a)(6)(A)(ii)(I) could mean either profits or receipts.
However, in the context of the entire text of the provision,
the punitive purpose of 18 U.S.C. § 982, and our prior
construction of substantially similar criminal forfeiture
15 Congress individually added each of 18 U.S.C. § 982(a)’s
forfeiture provisions. See Anti-Drug Abuse Act of 1988, Pub. L. No.
100-690, § 6463(c), 102 Stat. 4374, 4375 (codified at 18 U.S.C.
§ 982(a)(1)); Act of Aug. 9, 1989, Pub. L. No. 101-73, § 963(c), 103 Stat.
183, 504 (1989) (codified at 18 U.S.C. § 982(a)(2)); Crime Control Act
of 1990, Pub. L. No. 101-647, § 2525(b), 104 Stat. 4789, 4835, 4874
(codified at 18 U.S.C. § 982(a)(3)); Anti Car Theft Act of 1992, Pub. L.
No. 102-519, § 104(b), 106 Stat. 3384, 3385 (codified at 18 U.S.C.
§ 982(a)(5)); Health Insurance Portability and Accountability Act of
1996, Pub. L. No. 104-191, § 249(a), 110 Stat. 1936, 2020 (codified at
18 U.S.C. § 982(a)(7)); Act of Sept. 30, 1996, Pub. L. No. 104-208,
§ 217, 110 Stat. 3009, 3009–573 (codified at 18 U.S.C. § 982(a)(6));
Telemarketing Fraud Prevention Act of 1998, Pub. L. No. 105-184, § 2,
112 Stat. 520, 520 (codified at 18 U.S.C. § 982(a)(8)).
24 UNITED STATES V. PRASAD
provisions, we conclude that the better construction is that
“proceeds” means receipts. The term “proceeds” is not
limited to Prasad’s profits. Rather, Prasad must forfeit the
receipts he “obtained directly or indirectly from” his
commission of visa fraud. 18 U.S.C. § 982(a)(6)(A)(ii)(I).
Thus, the district court did not err by including the portions
of the $1,193,440.87 that Prasad received from the endclients and paid the H-1B beneficiaries as wages in its
calculation of the “proceeds” subject to forfeiture.
C.
Prasad also asserts 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. It appears Prasad is arguing 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.
But § 982(a)(6)(A)(ii)(I) requires forfeiture of “the
proceeds obtained directly or indirectly from” Prasad’s
commission of visa fraud. 18 U.S.C. § 982(a)(6)(A)(ii)(I)
(emphasis added). “From” means a “ground, reason, cause,
or motive: because of, on account of, owing to, as a result
of, through.” From, Oxford English Dictionary, supra.
“Direct” means “stemming immediately from a source.”
Direct, Merriam-Webster’s Collegiate Dictionary (11th ed.
2004); see also Direct, Oxford English Dictionary, supra
(defining “direct” as “effected or existing without
intermediation or intervening agency; immediate”); Direct,
Black’s Law Dictionary, supra (defining “direct” as
“immediate”). And “indirect” means “not direct.” Indirect,
Oxford English Dictionary, supra.
UNITED STATES V. PRASAD 25
Congress’s inclusion of the phrase “directly or
indirectly” before “from” indicates that the unambiguous
and plain meaning of the statute reaches broadly, extending
beyond proceeds that stem directly or immediately from the
criminal offense. See Ass’n of Priv. Sector Colleges &
Univs. v. Duncan, 681 F.3d 427, 444 (D.C. Cir. 2012)
(noting “directly or indirectly” is “extremely broad
language” (quoting Roma v. United States, 344 F.3d 352,
360 (3d Cir. 2003))); United States v. Gharbi, 510 F.3d 550,
556 (5th Cir. 2007) (stating that the phrase “all property . . .
obtained directly or indirectly” is “expansive”). Section
§ 982(a)(6)(A)(ii)(I) is therefore expansive, reaching all
proceeds that a defendant obtained as a result of the crime.
Here, Prasad obtained the amounts he paid the H-1B
beneficiaries that he employed to work for the end-clients as
a result of his commission of visa fraud. Maremarks—acting
through Prasad—entered contracts to provide the H-1B
beneficiaries as workers for end-clients. The end-clients
paid Maremarks $1,193,440.87 in exchange for the work the
beneficiary employees performed under Maremarks’ H-1B
petitions. But Prasad fraudulently obtained H-1B status for
these foreign workers; this status provided the only
authorization for them to work in the United States, and it
required that they work as Maremarks’ employees. See
8 C.F.R. § 214.2(h)(1)(i), (h)(2)(i)(D)–(E). Consequently,
the entire $1,193,440.87 that the end-clients paid Maremarks
for work the H-1B beneficiaries performed was derived from
Prasad’s unlawful acquisition of each beneficiary’s H-1B
status through visa fraud.
Moreover, it was not happenstance that the end-clients
paid Maremarks for the H-1B beneficiaries’ work, rather
than paying the beneficiaries directly. The H-1B
beneficiaries could only work in the United States as
26 UNITED STATES V. PRASAD
Maremarks’ employees because Maremarks, through
Prasad, served as the petitioner-employer filing the petitions
seeking H-1B status on their behalf. See 8 C.F.R.
§ 214.2(h)(1)(i), (h)(2)(i)(D)–(E); United States v. Kalu, 791
F.3d 1194, 1198 (10th Cir. 2015). To maintain the H-1B
beneficiaries’ authorization to work in the United States
under Maremarks’ approved H-1B petitions, Maremarks had
to exercise the right to control the H-1B beneficiaries’
employment as their employer for the duration of the
employment term specified in the petition. 2010 USCIS
Memo, supra, at 3–4.
At the time Prasad committed his acts of visa fraud, a
workforce supplier, like Maremarks, had to pay the H-1B
beneficiary’s wages to establish that it had the right to
control the H-1B beneficiary’s employment. Thus,
obtaining the money from the end-clients as payment for the
services provided by Maremarks employees before paying
portions of it to those H-1B beneficiary employees was a
necessary part of Prasad’s visa fraud scheme, and it
ultimately facilitated his ability to obtain money from his
commission of visa fraud. See Nanda, 867 F.3d at 526.
Thus, Prasad obtained the $1,193,440.87 as the result of his
criminal conduct.
We reject Prasad’s argument that the portions he paid the
H-1B beneficiaries “derived from” their legitimate work, not
his commission of visa fraud, because it does not adequately
explain how these portions are not “proceeds obtained
directly or indirectly from” his visa fraud. 18 U.S.C.
§ 982(a)(6)(A)(ii)(I) (emphasis added). While Prasad’s
argument is unclear, he could be arguing that the work the
beneficiaries performed was an additional link in the causal
chain demonstrating that he did not obtain those amounts
“directly” from his criminal activity. But
§ 982(a)(6)(A)(ii)(I) reaches beyond “proceeds obtained
UNITED STATES V. PRASAD 27
directly” or immediately from the commission of the crime
to “proceeds obtained,” even indirectly, from the crime.
Here, the beneficiary employees’ fraudulently obtained
H-1B status authorized these employees to work for
Maremarks’ end-clients and earn the $1,193,440.87 Prasad
obtained. We conclude that the money the end-clients paid
for the work the beneficiaries performed was “obtained
directly or indirectly from” Prasad’s unlawful conduct. See
United States v. Warshak, 631 F.3d 266, 332–33 (6th Cir.
2010) (holding that 18 U.S.C. § 982(a)(2) forfeiture
provision reached “proceeds obtained” from money
generated through “legitimate” sales because they “resulted
‘directly or indirectly’” from the criminal offense).
Consequently, the full $1,193,440.87 constitutes
“proceeds obtained . . . from the commission of” visa fraud.
18 U.S.C. § 982(a)(6)(A)(ii)(I).
Outcome: We affirm the district court’s forfeiture order in the
amount of $1,193,440.87 because that amount constitutes
the “proceeds” Prasad “obtained directly or indirectly from”
his commission of visa fraud. See 18 U.S.C.
§ 982(a)(6)(A)(ii)(I). Accordingly, § 982(a)(6)(A)(ii)(I)
mandates forfeiture of these funds.
AFFIRMED
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