United States v. Jiten Nanda, 2017 U.S. App. LEXIS 14814

Background

Atul and Jiten "Jay" Nanda owned Dibon Solutions, an IT staffing company that sponsored H-1B visas and placed consultants at third-party clients from ~2005–2011.
Dibon represented to DOL and CIS that visa applicants would work for Dibon, be paid certain wages, and that Dibon would pay visa fees; in practice Dibon "benched" workers, required them to pay fees, and took a cut of client billings.
Several former Dibon employees cooperated; the Nandas were indicted (2014), tried jointly, convicted of conspiracy to commit visa fraud, conspiracy to harbor illegal aliens, and wire fraud, and each sentenced to 87 months' imprisonment plus supervised release and restitution.
On appeal the Nandas raised multiple challenges: Bruton/Confrontation issue over Jay's post-employment letter, wire fraud charging theory, unanimity instructions, alleged constructive amendment of the indictment, sentencing guideline enhancements (sophisticated means / extraterritorial conduct), loss-amount calculation, and sentencing disparity.
The Fifth Circuit affirmed across the board, finding no reversible error and treating several unpreserved issues under plain-error review.

Issues

Issue	Nandas' Argument	Government's Argument	Held
Admission of Jay's letter (Bruton)	Letter inculpates Atul; admission violated Atul's confrontation rights	Letter did not directly reference Atul; limiting instruction cures risk	Admission proper: letter did not directly allude to Atul; any error harmless given overwhelming evidence
Wire fraud charging theory	Visas are not "money or property"; indictment ambiguous about source of money	Indictment charged scheme to obtain money and was not plainly erroneous	Rejected: ambiguity forecloses plain-error relief; no clear/obvious error in charging
Jury unanimity instruction	Court should have given special unanimity instructions as to overt acts / specific false statements	General unanimity instruction was sufficient; unanimity as to particular wire (not particular phrase) not required	Rejected: general unanimity instruction adequate; jury need not agree on particular false phrase within a wire
Constructive amendment of indictment	Government introduced many visa petitions and insurance evidence beyond indictment scope, broadening charges	Evidence was within scope of scheme; any error would be harmless	Rejected under plain-error test: even if error, excluded evidence would not likely change verdict
Sentencing enhancement (2-level) for extraterritorial conduct & sophisticated means	“From outside the United States” requires substantive conduct abroad; enhancement improper	Alternately supported by sophisticated-means ground; record shows concealment and laundering	Affirmed: district court's application supported by sophisticated-means findings in PSR
Loss amount calculation (>$550k threshold)	Court miscalculated loss	Record supports $600k; district court stated same sentence would be imposed even if loss lower	Any error harmless because court would have imposed same sentence regardless
Sentencing disparity consideration	Court failed to consider §3553(a) disparity	Court heard and rejected disparity argument	Rejected as meritless; court considered disparity and found it unpersuasive

Key Cases Cited

Bruton v. United States, 391 U.S. 123 (confession of codefendant at joint trial may violate confrontation clause)
Richardson v. Marsh, 481 U.S. 200 (Bruton is narrow; limiting instructions can cure non-direct references)
Cleveland v. United States, 531 U.S. 12 (addresses whether certain intangible benefits constitute "property" for federal fraud statutes)
Puckett v. United States, 556 U.S. 129 (plain-error review requires error be clear or obvious and affect substantial rights)
Stirone v. United States, 361 U.S. 212 (indictment may not be broadened by constructive amendment)
United States v. Restrepo, 994 F.2d 173 (Bruton not violated absent direct allusion to defendant)