Ninth Circuit Holds that Loss to Victim is Loss Associated with Conspiracy

The Ninth Circuit has determined that the loss to the victim as the result of a fraud-related conspiracy is the loss attributable to the entire conspiracy. That is because “all coconspirators are criminally liable for reasonably foreseeable overt acts committed by others in furtherance of the conspiracy they have joined, whether they were aware of them or not.” The court also determined that a sentencing enhancement based on loss to the victim was sufficient to prove the amount of loss, even in the absence of a restitution order.

The full text of Khalulyan v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/30/21-70909.pdf

Sixth Circuit Finds Restitution Order Insufficient to Demonstrate Loss to Victim

In a very unusual circumstance, the Sixth Circuit has found a restitution order - based on an itemized “loss” list that contained internal inconsistencies, as well charges not covered by the criminal statute - was insufficient to demonstrate a greater than $10,000 loss to the victim.

The full text of Al-Adily v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0058p-06.pdf

BIA Finds Order of Forfeiture can be Relied on to Determine Loss to Victim

The Board of Immigration Appeals has determined that an immigration judge may look at the order of forfeiture to determine the loss to victims in a fraud-related aggravated felony analysis “if the proceeds received are sufficiently tethered and traceable to the conduct of conviction.” “Additionally, in conspiracy convictions, only the proceeds personally acquired by an individual conspirator may be subject to forfeiture—there is no joint and several liability. Therefore, in application, only specific proceeds received by the defendant can be subject to forfeiture, rather than the amount that was received by the entire criminal enterprise.”

The BIA further determined that the conviction was a particularly serious crime, barring withholding of removal. “The nature of the respondent’s conviction, which involves attempting or conspiring to obtain money or property through fraud, brings it within the ambit of a particularly serious crime.”

The full text of Matter of F-R-A can be found here:

https://www.justice.gov/file/1468491/download

Third Circuit Addresses Circumstance Specific Approach for Fraud Aggravated Felony

The petitioner pled guilty to a single count of wire fraud in the amount of $2290.53. However, the total loss in the dismissed counts, as reflected in the restitution order, was $950,000. The court found that this was sufficient to show a loss to the victim in excess of $10,000 that was sufficiently tethered to the conviction.

The full text of Ku v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/173001p.pdf