United States v. Abhijit Prasad
18 F.4th 313
| 9th Cir. | 2021Background
- Prasad owned Maremarks, a staffing/supplier company, and filed H‑1B petitions claiming specific, bona fide positions at Cisco and Ingenuus that did not exist.
- After USCIS approved the petitions, Maremarks assigned the H‑1B beneficiaries to other end‑clients; end‑clients paid Maremarks $1,193,440.87, and Prasad paid the workers after taking a cut.
- The government charged and convicted Prasad of 21 counts of visa fraud (18 U.S.C. § 1546(a)) and 2 counts of aggravated identity theft; the district court entered a forfeiture money judgment for $1,193,440.87 under 18 U.S.C. § 982(a)(6)(A)(ii).
- On appeal Prasad challenged only the forfeiture calculation, arguing the portions he paid to employees were not forfeitable proceeds.
- The Ninth Circuit reviewed statutory interpretation de novo and affirmed the district court, holding the full $1,193,440.87 was forfeitable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Prasad “obtained” the full $1,193,440.87 | Government: forfeiture reaches property the defendant obtained directly or indirectly from the offense | Prasad: he did not “obtain” amounts he later paid to employees | Court: Prasad controlled/possessed the full receipts before paying employees, so he “obtained” them |
| Whether “proceeds” means receipts or only profits | Government: “proceeds” includes receipts (gross amounts obtained) | Prasad: “proceeds” should be limited to profit (net gain), excluding amounts passed through to employees | Court: in forfeiture context, “proceeds” means receipts; limiting to profit would frustrate punitive/ deterrent purpose |
| Whether amounts paid to beneficiaries were “derived from” the fraud | Government: end‑client payments were obtained as a result of the fraudulent petitions authorizing the workers to work for Maremarks | Prasad: payments reflected legitimate work by beneficiaries and thus were not derived from visa fraud | Court: the payments were obtained directly or indirectly from the fraud because the H‑1B authorization (fraudulently acquired) enabled the payments; thus they are proceeds |
| Whether facilitation provision (§ 982(a)(6)(A)(ii)(II)) was required to support forfeiture | Government sought forfeiture under both the “proceeds” and “facilitation” subsections | Prasad did not meaningfully contest facilitation on appeal | Court: did not resolve facilitation issue but concurrence would affirm under subsection (II); majority affirms under the “proceeds” subsection |
Key Cases Cited
- Honeycutt v. United States, 137 S. Ct. 1626 (2017) (construing “obtained” as “come into possession of” in the forfeiture context)
- United States v. Newman, 659 F.3d 1235 (9th Cir. 2011) (criminal forfeiture may include receipts already spent; supports disgorgement of ill‑gotten receipts)
- United States v. Casey, 444 F.3d 1071 (9th Cir. 2006) (forfeiture of drug transaction receipts; “proceeds” = amount received)
- United States v. Christensen, 828 F.3d 763 (9th Cir. 2015) (RICO forfeiture “proceeds” = gross receipts, not net profits)
- United States v. Peters, 732 F.3d 93 (2d Cir. 2013) (refusing to apply Santos to limit forfeiture “proceeds” to profits)
- United States v. Santos, 553 U.S. 507 (2008) (plurality) (held “proceeds” ambiguous in the money‑laundering statute; not controlling for forfeiture statutes)
- United States v. Bradley, 969 F.3d 585 (6th Cir. 2020) (forfeiture of money obtained by a defendant includes sums paid to coconspirators; focuses on whether defendant obtained the funds)
- United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) (forfeiture reaches proceeds obtained indirectly, including money generated through legitimate sales that result from the offense)
- United States v. Nanda, 867 F.3d 522 (5th Cir. 2017) (describing “bench and switch” H‑1B schemes and relevance to employer control/authorization)