APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF RHODE ISLAND [Hon. William E. Smith, U.S.
T. Ouderkirk, Jr., for appellant.
C. Lockhart, Assistant United States Attorney, with whom
Stephen G. Dambruch, United States Attorney, was on brief,
Howard, Chief Judge, Selya and Thompson, Circuit Judges.
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.
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.
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.
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
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).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
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.
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
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.
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. The appellant filed a second notice of
appeal - but he did so before the district court entered its
final judgment on the docket.