The Third Circuit has determined that convictions for violating the CAN-SPAM Act’s prohibitions on false header and domain name spamming necessary involve deceit. “[T]he Act targets senders who falsify email headers and domain name registration entries, both contexts where consumers expect accuracy.” “Any deviation from that norm risks giving readers ‘a false impression’ as to a message’s origin.” “Because the Act targets false statements made in contexts where internet users expect accuracy, even the least culpable violations entail deceit.”
The court also explored in detail the different ways in which a loss to the victim is calculated for federal sentencing purposes and for immigration purposes. “Rather than codifying similar standards for calculating losses, the Guidelines and INA prescribe frameworks that differ in almost every respect: They require that losses be connected to different types of conduct, elaborate different tests for deciding when an offender’s gains serve as a proxy for victims’ losses, and hold the government to different burdens of proof.”
“For sentencing purposes, a district court may review losses resulting from any ‘relevant conduct,’ which ‘need not be admitted, charged in the indictment, or proven to a jury.’ For immigration purposes, however, the agency must ‘focus narrowly on the loss amounts that are particularly tethered to convicted counts.’ And even then, in contrast to the Guidelines, the amounts must reflect actual and not merely intended losses, at least in the case of substantive offenses.”
“Another difference between sentencing hearings and immigration proceedings is the role an offender’s gains play in the loss determination. The Guidelines make clear that when ‘there is a loss but it reasonably cannot be determined,’ a district court may increase the offense level based on ‘the gain that resulted from the offense.’ The relevant INA section, by contrast, trains on ‘loss to the victim or victims,’ and makes no provision for the agency to treat gains and losses as interchangeable.”
“A third distinction between the Guidelines and the INA is that they articulate different burdens of proof. While a preponderance-of-the-evidence standard applies at sentencing, a clear-and-convincing evidence standard governs removal proceedings. Given that the District Court analyzed the loss issue under a different and less demanding burden of proof, the agency would have needed to perform an independent review of the evidence to confirm that Rad’s crimes inflicted harm.”
Finally, the court joined the Second Circuit, Ninth Circuit, and Board in recognizing that a conspiracy or attempt to commit fraud or deceit involving over $10,000 in intended losses qualifies as an aggravated felony. “On remand, the Board must decide whether, in conspiring to violate §§ 1037(a)(3) and (a)(4), Rad intended to cause over $10,000 in investor losses. Perhaps Rad agreed to use false headers and domain names to evade spam filters, reach a larger audience, and induce more investors to purchase stocks he expected to plummet in value. Perhaps Rad meant for the false headers and domain names to confuse investors, prompting them to launch costly investigations. Or perhaps not.“
The full text of Rad v. Attorney General can be found here: