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United States v. Naphaeng

United States Court of Appeals, First Circuit

October 12, 2018

NIMON NAPHAENG, Defendant, Appellant.


          John T. Ouderkirk, Jr., for appellant.

          Donald C. Lockhart, Assistant United States Attorney, with whom Stephen G. Dambruch, United States Attorney, was on brief, for appellee.

          Before Howard, Chief Judge, Selya and Thompson, Circuit Judges.

          SELYA, Circuit Judge.

         In these sentencing appeals, defendant-appellant Nimon Naphaeng, a convicted fraudster, challenges a restitution order entered pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, in the amount of $581, 880. After pausing to smooth out two jurisdictional wrinkles, we reach the merits and conclude that the appellant's challenge is futile. Accordingly, we affirm.

         I. BACKGROUND

         We briefly rehearse the relevant facts and travel of the case. The appellant concocted a fraudulent scheme to obtain work permits for Thai nationals living in the United States. Specifically, he advertised through flyers and the internet that he could obtain employment-authorization documents (EADs) in exchange for fees ranging from $1, 500 to $2, 500 per person. He was, in fact, able to obtain EADs for the applicants - but he did so by filing asylum petitions on the applicants' behalf. These petitions, filed without the applicants' knowledge, were apocryphal. As the appellant admitted to the district court, concealing the asylum applications from his clientele was "at the heart" of the scheme.

         The appellant perpetrated his fraud over a period of sixteen months - but the chickens eventually came home to roost. In January of 2015, an immigration officer noticed that around sixty-four Thai asylum applications were filed from two Rhode Island addresses. This spike in filings was extraordinary; typically, an average of twenty Thai asylum applications were filed each year. Nor were common addresses the only feature shared by these suspicious applications: they also contained exactly the same typographical errors, identical explanations for seeking asylum, matching supplemental forms, and the same coterie of supporting documents.

         In due season, a federal grand jury sitting in the District of Rhode Island returned a twenty-six count indictment against the appellant. In addition, the government "froze" hundreds of thousands of dollars that had been accumulated by the appellant.

         After some preliminary skirmishing (not relevant here), the appellant pleaded guilty to seven counts of mail fraud, see 18 U.S.C. § 1341, and two counts of visa fraud, see id. § 1546(a).[1]As part of the plea agreement, the parties agreed that the per-application fee charged by the appellant ranged from $1, 500 to $2, 500. Although the change-of-plea colloquy specifically identified only ten victims, the parties did not purport to make a definitive head count. Instead, identification of those victims who might be owed restitution was deferred to the sentencing phase.

         On May 3, 2017, the district court held the first of two sentencing hearings. By then, the court had the benefit of certain additional filings: a presentence investigation report (PSI Report) and sentencing memoranda prepared by both the appellant and the government. The government's memorandum included a spreadsheet listing the total number of victims, specifying whether each such victim had been contacted by either a government investigator or the probation office, and indicating the amount of restitution arguably due.

         At the first sentencing hearing, a Department of Homeland Security (DHS) agent verified the information contained in the spreadsheet. The appellant's counsel cross-examined the agent, attempting to undermine the reliability of the government's spreadsheet, questioning the number of victims, and suggesting that some victims may have had knowledge that asylum applications were being filed on their behalf.

         Two months later, the district court convened a second sentencing hearing. The appellant's counsel resumed her questioning of the DHS agent. This time, however, the questioning zeroed in on the appropriate amount of loss for restitution purposes (a finding separate and apart from the amount of loss needed to construct the guideline sentencing range, see USSG §2B1.1 cmt. n.3(A)). The district court eventually interrupted this line of questioning and proceeded to sentence the appellant. To allow the government more time to collect victim-related information, though, the court entered a provisional restitution order of $400, 000, "subject to amendment." Judgment entered on July 27, 2017, and the appellant promptly filed a notice of appeal.

         Having completed its information-gathering, the government filed two supplemental memoranda and sought a total of $581, 880 in restitution on behalf of 368 victims. Its supplemental memoranda identified four categories of victims: 87 victims who had contact with both the probation office and the DHS; 46 victims who had contact only with the DHS; 16 victims who were identified through material submitted to the grand jury; 219 victims who were identified only by their asylum applications. According to the government, the first group of victims was due $168, 620 in restitution, the second group of victims was due $72, 100 in restitution, the third group of victims was due $17, 160 in restitution, and the fourth group of victims was due $324, 000 in restitution. The appellant countered that the government's recommended restitution over-counted the number of victims and rested on insufficient evidence. As a fallback, the appellant contended that the district court had denied him a full and fair opportunity to test the government's proffer. The court rejected the appellant's arguments, adopted the government's calculations, and ordered restitution accordingly.[2] The appellant filed a second notice of appeal - but he did so before the district court entered its final judgment on the docket.

         II. ...

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