1 10-4683-cr United States v. Thomas Archer

1 2 **UNITED STATES COURT OF APPEALS** 3 4 **FOR THE SECOND CIRCUIT** 5 6 August Term, 2010 7 8 (Argued: May 2, 2011 Decided: September 20, 2011) 9 10 Docket No. 10-4683-cr 11 12 13 14 UNITED STATES, 15 16 Appellee

, 17 18

– v. – 19 20 THOMAS ARCHER, 21 22 Defendant-Appellant. 23 24 25 26 Before: NEWMAN, CALABRESI, and HALL, Circuit Judges

. 27 28 Defendant-Appellant appeals his conviction for visa fraud and conspiracy to commit visa 29 fraud as well as his sentence. He ar gues that the trial court (Johnson, J. ) erred in rejecting his 30 proposed jury instructions and that the evidence was insufficient to demonstrate his knowledge of 31 the fraud. We find these arguments meritless. Wi th respect to his sentence, he challenges the 32 application of three Guidelines enhancements and th e entry of an order of restitution. We reject 33 his challenge to the enhancement for serving as the organizer or leader of criminal activity. As to 34 the enhancements for the number of documents invo lved and obstruction of ju stice, we agree that 35 the evidence is insufficient to support their applic ation in this case. Also, the order of restitution is 36 not supported by sufficient evidence to show that each of the defendant’s former clients was, in 37 fact, a “victim” under the relevant statute. Accordingly, we AFFIRM Archer’s conviction, 38 VACATE his sentence, and REMAND the case for resentencing. 39

40 JONATHAN I. EDELSTEIN, Edelstein & Grossman, New 41 York, N.Y., for Defendant-Appellant

. 422 1 SOUMYA DAYANANDA, Assistant U.S. Attorney, of 2 counsel , (Peter A. Norling, Andrew E. Goldsmith, Assistant 3 U.S. Attorneys, of counsel

, on the brief ), for Loretta E. Lynch, 4 United States Attorney for the Eastern District of New York, 5 Brooklyn, N.Y., for Appellee

. 6 7 8 CALABRESI, Circuit Judge : 9

The Defendant-Appellant, Thomas Archer, requested specific jury instructions with respect 10

to the government’s burden of proof regarding his knowledge of the fraud for which he was 11

indicted. The district court (Johnson, J. ) denied these requests and instead gave a general 12

instruction on acting “knowingly.” Archer challeng es those denials as well as the sufficiency of the 13

evidence presented at trial. We find these challenges meritless. 14

Accordingly, we affirm the defendant’s conviction. 15

In calculating Archer’s Guidelines sentencing range, the district court relied on four 16

enhancements, three of which Archer challenges on appeal. Though the basis of the district court’s 17

application of the leader/organizer enhancement co uld have been more fully elaborated, we find 18

the record supports its application here. Rega rding the obstruction-of-justice and number-of19

document enhancements, however, we agree with Archer that the evidence is insufficient to 20

sustain their use in this case. We, th erefore, vacate Archer’s sentence. 21

Finally, Archer challenges the order of restit ution imposed by the district court under the 22

Mandatory Victim Restitution Act (MVRA), 18 U. S.C. § 3663A. Because we find the record 23

evidence insufficiently specific to demonstrat e that each client to whom the court ordered 24

restitution was a “victim” of the fraud, we vacate the restitution order. 25

We remand the case for resentencing, including reconsideration of the restitution award. 263 **I. BACKGROUND**  1

Defendant-Appellant Thomas Archer was forme rly an immigration lawyer in Jackson 2

Heights and Jamaica, New York. The charges in this case aris e out of Archer’s filing of I-687 3

legalization applications on behalf of his clien ts. The Department of Homeland Security (DHS) 4

created the I-687 program, which operated for a li mited time in 2004 and 2005, as part of a court5

approved settlement of a lawsuit that had alle ged misconduct in the operation of a previous 6

legalization program. Newman v. U.S. Citizenship & Immigration Srvs. , No. 87-4757-cv, at 7–10 (C.D. 7

Cal. Feb. 18, 2004) (order appro ving class settlement). Nationwi de, a total of 79,000 applications 8

were filed and about 3 percent were granted. Between 2004 and 2005, Archer filed between 230 9

and 240 applications, none of which were granted. 10

The government suspected that Archer wa s filing false I-687 applications. After 11

investigation, Archer and his office manager, Rukhsa na Rafique, were indicted on five counts: one 12

count of conspiracy to commit visa fraud, 18 U.S. C. § 371, and four counts of visa fraud (one for 13

each of three specific clients and one for a ma rried couple), 18 U.S.C. § 1546(a). One of the 14

substantive charges was dropped when that client declined to testify. Archer and Rafique were 15

convicted on the indictment’s remaining four counts. 16

Visa fraud, as charged here, has five elemen ts: the defendant (1) knowingly (2) presented 17

(3) an application or “document required by th e immigration laws” (4) that contained a false 18

statement (5) as to a material fact. 18 U.S.C. § 1546(a). 1 All agree that I-687 applications qualify as 19

“document[s] required by the immigration laws,” th at Archer presented them by filing them with 20

DHS, and that some of the applications that Arch er filed did contain false material information. 21

1 The conspiracy charge required (a) an agreement be tween two or more persons to commit visa fraud and (b) an overt act by at least one of the participants in furtherance of that agreement. See 18 U.S.C. § 371. There is no dispute that if an agreement exis ted, the overt-act requirement has been met.4 Therefore, Archer’s key contention was, and contin ues to be, that he was unaware of these falsities 1

and, by implication and extension as to the conspira cy count, that he never agreed to present false 2

information. 3

**A. Trial Evidence**  4

At trial, the government presented the test imony of the three sets of clients—Gulistan, 2 5

Nizar Ahmad, and Iris and Mohammad Ally—whose applications constituted the bases for the 6

substantive fraud counts; a recording of two conv ersations, one between Gulistan, Archer, and 7

Rafique and one between Gulistan and Rafique; and statistical evidence from an immigration 8

officer. 9

To understand the import of all of this testimony, the I-687 program’s details are 10

important. In order to qualify for the program, th e alien-applicant must both be a member of the 11

class of the Newman settlement and have had limited travel outside the United States. In turn, to 12

be a member of the class, the alien must have: (1) been in the country illegally on January 1, 1982; 13

(2) applied for legalization under a prior pro gram between May 1987 and May 1988; and (3) been 14

turned down for that program because of travel outside the United States between 1981 and 1988. 15

Applicants could meet the first of these sub-requir ements in two ways, either (a) by having entered 16

the country illegally or (b) by having entered legall y and overstaying their visas. In addition to being 17

a member of the Newman class, an eligible alien could not ha ve traveled out of the country either 18

(a) on any single trip longer than 30 days be tween 1986 and May 1988 or (b) on any single trip 19

longer than 45 days between 1982 and the date of his or her application to the prior program and 20

no more than 180 total days in all trips during that time. While an alien’s I-687 application was 21

pending, he could receive a temporary work permit to work in the United States. 22

2 Gulistan does not have a last name.5 Gulistan, a native of Pakistan, testified thro ugh a translator that he spoke only limited 1

English and did not know, either at the time of hi s I-687 application or at the time of trial, the 2

requirements of the program. He had gone to Ar cher’s office on multiple occasions and had 3

spoken with both Rafique and Archer. Rafique inst ructed him to sign an I-687 application, which 4

was not translated for him and which he could not read. He paid Archer $1,500, and Archer 5

submitted this application to DHS. 6

Gulistan testified that he arrived in the Un ited States in 2000 on a work visa, but had 7

previously visited for a short time in 1981 with hi s uncle. His I-687 application, however, stated 8

that he had entered the United States illegally in 1981 and stayed until 1988, when he took a one9

month trip to Pakistan. The applic ation claimed that, thereafter, he had taken six trips to Pakistan 10

between 1989 and 1999 (this was needed to accoun t for the birth of Gulistan’s seven children 11

between the late 1980s and 2000). Gulistan also stat ed that Archer and Rafique gave him pre-filled 12

affidavits for two U.S.-citizen friends to sign, falsely asserting that they had known him since 1981 13

and 1986, respectively. No one told him what the affi davits said, only that he needed to have his 14

friends sign them. In a January 23, 2006, letter, DHS instructed Gulistan to attend an interview in 15

connection with his I-687 applicat ion. Archer got the interview postponed until October 2006, at 16

which time Gulistan attended alone. 17

In May and June 2007, after federal agents vi sited his home, Gulistan went to Archer’s 18

office on two occasions wearing a hidden recording device. On the first occasion, he spoke only 19

with Rafique. On the second, he also spoke with Archer and protested that he did not have any 20

proof of the travels his application claimed; Archer responded “so what?” They also discussed his 216 interview with DHS, which Archer had told him to forgo. The government played both recordings 1

at trial. 2

Next, Ahmad, also a native of Pakistan, testif ied, also through a translator, that he, too, 3

spoke little English and could not read. Rafique prepared his I-687 application, which he signed, 4

but she did not read it to him, and he was unaware of what it said. He did not know the 5

requirements of the program and paid Archer $2,000. Ahmad said he arrived in the United States 6

in 1998 as a crewman on a ship. His application, however, stated that he had come to the country 7

in 1981 and stayed until 1987, when he took a one-month trip to Pakistan. The application 8

included employment and residency information that he agreed was false and that he said he had 9

never provided to anyone. Rafique gave him two af fidavits for his acquaintances to sign, both of 10

which had “(1981)” pre-printed next to the blank wh ere the witness should put the date on which 11

he had met Ahmad. DHS sent Ahmad a letter, inst ructing him to appear for an interview, which 12

Archer asked be postponed. When a new interv iew was scheduled, Archer withdrew Ahmad’s 13

application without Ahmad’s permission. 14

The third set of witnesses was Iris and Moha mmad Ally, a previously married couple from 15

Guyana. Iris Ally said she had limited reading skills. She did not know the requirements of the 16

program and had signed an application Rafique gave her without knowing what it said. Mrs. Ally 17

had come to the United States in 2002 by sneaki ng across the Canadian border. Her application, 18

on the other hand, claimed she had arrived in 1981 and stayed until 1987, when she took a one19

month trip to Guyana. Her application also co ntained residency and employment information 20

that was false and that she had never provided. Ra fique gave her two affidavits similar to those 21

described in Ahmad’s testimony; she had her boss’s children sign them and returned them to the 227 office. DHS sent her an interview letter, and Archer got the interview postponed by having her get 1

a note from her doctor falsely saying she was ill. The interview was rescheduled but neither she nor 2

Archer attended it. 3

Mohammed Ally testified that he had met wi th both Archer and Rafique and paid them 4

$2,500. Rafique filled out his I-687 application, whic h he signed. It showed an identical entry and 5

travel pattern to that of Mrs. Ally. In reality, though, he entered the United States in 2000 by 6

illegally crossing the Mexican border. His appl ication also contained false employment and 7

residency information that he had never supplied. When DHS sent him an interview letter, he 8

brought it to Archer’s office wher e Rafique told him they would withdraw his application. Though 9

Mr. Ally protested and asked for a refund, he even tually relented and allo wed Archer to withdraw 10

his application. 11

A DHS officer, Mel Shatzkamer, presented some descriptive statistics about 175 of Archer’s 12

I-687 applications that were provided to him by the prosecutor. All of the applications claimed 13

that the relevant alien entered the country illegall y rather than that he or she overstayed a visa. 14

Shatzkamer found this significant because th e government has no way of verifying whether 15

someone entered the country illegally on a certain date. A falsified I-687 application, he asserted, 16

would be almost certain to claim eligibility throug h this method of entry rather than as a result of 17

overstaying a visa, as overstaying a visa could be verified. Furthermore, 168 (96%) of Archer’s 18

applications stated that the particular alien had arrived in the country in 1981 (rather than 19

earlier)—thereby just barely making the cutoff for the program. Nearly 90 percent claimed travel 20

outside the country in the five-month interval from June to October of 1987, a coincidence 21

Shatzkamer found oddly duplicative given that th e travel window for elig ibility was the 29-month 228 interval from January 1986 to May 1988. Finally, 45 of the 175 applications contained at least one 1

fill-in-the-blank affidavit, mostly of the type described in Ahmad’s testimony. Absent from 2

Shatzkamer’s testimony, as Arch er pointed out on cross examinat ion, was any reference to what 3

the national pool of I-687 applications l ooked like in any of these particulars. 4

**B. Jury Instructions** 5

At the charge conference, Archer requested tw o jury instructions, both of which dealt with 6

how the jury should interpret the evidence going to whether Archer acted “knowingly.” First, he 7

asked for an instruction based on United States v. Phillips , 543 F.3d 1197 (10th Cir. 2008)—the 8

Phillips instruction. Phillips held that the fact that a defendant is a solo practitioner, without more, 9

is an insufficient basis from which to infer his guil t because, even though he is the only lawyer in 10

the office, he may not be aware of everything his staff is doing. 3 See id. at 1209. Second, he sought 11

an instruction based on United States v. Maniego , 710 F.2d 24 (2d Cir. 1983) (per curiam)—the 12

Maniego instruction. In Maniego , we said that attorneys are not held to a higher duty to investigate 13

than non-lawyers and have no special obligation to verify independently information given to them 14

by clients. See id. at 28. The district court denied both requested instructions. 15

On mens rea , the district court gave th e following instruction: 16

To act “knowingly” means to act intentionally and voluntarily, and not because of 17 ignorance, mistake, accident, or carele ssness. In deciding whether a defendant 18 acted knowingly, you should ask yourself whether the defendant knew that the visa 19 application document you are considerin g contained a false statement? And did 20 that defendant, nonetheless, present the document . . . ? 21 22 No evidence exists to indicate that Archer lo dged an objection—as opposed to a request for 23

specific supplemental instructions—t o this instruction in particular or to the district court’s final 24

3 The precise text of the requested instruction was: “The fact that one of the defendants is the sole attorney in a small firm in and of itself is not sufficient to determine that the attorney was aware of each and every act that took place in the office or that he approved or encouraged such actions.”9 instructions as a whole, either at the charge conference or duri ng trial. One further development 1

on this point bears noting, though. During her rebuttal summation, the prosecutor argued that 2

Archer knew of the scheme to falsify information because “it’s his law firm. This isn’t some huge 3

midtown Manhattan law firm building where the la w firm takes up a half a building of employees. 4

It’s two rooms. It’s smaller than this courtroom .” Archer objected, and the court instructed the 5

jury that “whatever the lawyers say is not evidence in this case.” Significantly, Archer did not, at 6

that point, renew his request for a Phillips instruction or make any other objection. 7

**C. Sentencing** 8

After Archer’s conviction, his pre-sentence report (PSR) recommended that the court 9

impose four separate enhancements to his base of fense level of eleven: a nine-level enhancement 10

for conduct involving more than 100 fraudulent documents; a four-level enhancement for being 11

the leader or organizer of criminal activity; a tw o-level enhancement for obstruction of justice; and 12

a two-level enhancement for abusing a position of trust. The specific facts underlying each of the 13

first three enhancements—A rcher has not challenged the fourth— are set forth in the discussion of 14

the sentence. The district court accepted a ll four enhancements and calculated Archer’s 15

Guidelines range to be 78 to 97 months. It then imposed a below-Guidelines sentence of 60 16

months’ imprisonment, three years’ superv ised release, and a special assessment. 17

The court also entered an order of restitutio n in the amount of $309,500, payable to 234 18

of Archer’s former clients. This amount represent s a refund of $1,500 per client, roughly the full 19

fee the clients usually paid Archer in connection with their I-687 cases. 20

The district court entered the final judgment of conviction and sentence on November 1, 21

2010. Archer timely appealed. 2210 **II. DISCUSSION**  1

Archer raises four issues on appeal: whethe r (1) the district court properly denied his 2

requested Phillips and Maniego jury instructions, (2) the eviden ce is sufficient to sustain his 3

convictions, (3) the first three sentencing enhancem ents listed above properly apply to him, (4) the 4

district court erred in ordering restitution. We address each issue in turn. 5

A. **Jury Instructions** 6

A defendant challenging the district court’s rejection of his proposed jury instructions 7

“must show that his proposed charge accurately re presented the law in every respect, and that the 8

charge actually given, viewed as a whole, prejudiced him.” United States v. Feliciano , 223 F.3d 102, 9

116 (2d Cir. 2000) (internal quotation marks omi tted). More specifically, the defendant can 10

prevail by showing that his requested “instruction is legally correct, represents a theory of defense 11

with basis in the record that would lead to ac quittal, and the theory is not effectively presented 12

elsewhere in the charge.” United States v. Quattrone , 441 F. 3d 153, 177 (2d Cir. 2006) (internal 13

quotation marks omitted). We address each challenged instruction in turn. 14

1. The Phillips Instruction 15

Though Phillips is a Tenth Circuit case dealing with the sufficiency of the evidence rather 16

than jury instructions, the government does not di spute that it correctly states the law, and we 17

agree. Furthermore, because the proposed instructio n focused directly on Archer’s defense (that he 18

was unaware of the false statements) and because, had the jury believed that defense, it would have 19

been required to acquit him, the only issue before us is whether the charge the court actually gave 20

adequately represented the requirements of “knowledge” as an element of the crime. See Quattrone , 21

441 F.3d at 179–80 (vacating and remanding for failur e to instruct regarding lack of knowledge); 2211 United States v. Dove , 916 F.2d 41, 45 (2d Cir. 1990) (holding that “unbalanced” instructions, 1

which explain how certain evidence may be incu lpatory but not exculpat ory, are insufficient, 2

especially when the defendant’s theory of defense is that the government failed to prove an 3

element of the crime). Put another way, for Archer to show that the substance of his requested 4

charge was not effectively presented elsewhere, he must show that the jury could have convicted 5

him under the instructions given by the court even if it believed his defense of lack of knowledge. 6

Quatrrone , 441 F.3d at 180. 7

To resolve this issue, we compare the requested charge with the one given. Phillips involved 8

a solo practitioner charged with immigration fraud. The defendant and his assistant, who was also 9

his wife, were convicted of forging documents. On appeal, the defendant challenged the 10

sufficiency of the evidence establishing his know ledge of the forgeries. The court said that without 11

some evidence showing how the attorney supervised his office, the mere fact that he was a solo 12

practitioner was insufficient to support the inferen ce that he was aware of the fraud. To find 13

otherwise, it said, would be to ho ld such lawyers to “something appro aching strict criminal liability 14

for the acts of their employees,” co ntrary to what the law requires. 4 543 F.3d at 1209. The Phillips 15

court, however, found sufficient evidence to sust ain the conviction in the case before it for two 16

reasons: (a) the employee in questi on was also the attorney’s wife, which enabled the jury to infer 17

that a closer-than-typical office relationship ex isted between them, and (b) the government had 18

direct proof that he had forged on e of the many documents involved. Id. at 1209–10. 19

4 In general, the law does not impute criminal liabil ity to those who are unaware of the criminal activity. See,

e.g. , United States v. Applins , 637 F.3d 59, 75 (2d Cir. 2011) (holding that to be liable for a criminal conspiracy’s acts, one must have knowingly joined the conspiracy and been aware of its basic contours). We find it troubling, th erefore, that the pre-sentence report prepar ed by the Probation O ffice seemed to apply tort-like respondeat superior liability of the type rejected by the Phillips court to Archer as an employer. PSR ¶ 39 (“As a sole practitioner, Archer was responsible fo r the actions, both legitimate and criminal, of those he employed and supervised . . . .”).12 Relying on Phillips , Archer asked that the court instruct the jury that “[t]he fact that one of 1

the defendants is the sole attorney in a small firm in and of itself is not sufficient to determine that 2

the attorney was aware of each an d every act that took place in th e office or that he approved or 3

encouraged such actions.” The court declined, opting instead to give the following instruction with 4

respect to mens rea : 5

To act “knowingly” means to act intentionally and voluntarily, and not because of 6 ignorance, mistake, accident, or carele ssness. In deciding whether a defendant 7 acted knowingly, you should ask yourself whether the defendant knew that the visa 8 application document you are considerin g contained a false statement? And did 9 that defendant, nonetheless, present the document . . . ? 10 11 On its face, the district court’s instruction accurately describes the “knowingly” element of 12

the charged offense. See, e.g. , United States v. Doyle , 130 F.3d 523, 540 (2d Cir. 1997); United States 13

v. Hopkins , 53 F.3d 533, 541 (2d Cir. 1995). And that inst ruction leaves no room for the jury to 14

convict Archer if it believed that he merely ra n an office from which fraudulent documents were 15

filed. 16

Resisting this conclusion, however, Archer claims that the court’s refusal to give the Phillips 17

instruction prejudiced him because the governme nt, in its rebuttal summation, asserted that 18

Archer had to have known about the fraud becaus e the office was small and “it’s his law firm.” 19

This, he says, is precisely the ty pe of reasoning against which the Phillips instruction would have 20

cautioned the jury. Archer’s argume nt, however, goes too far: the Phillips instruction, properly 21

construed, does not prohibit the jury from cons idering the fact that an attorney is a solo 22

practitioner as one piece of circumstantial evidence from which, along with other evidence, it can 23

infer the attorney’s knowledge. What it does do is prohibit the jury from relying on that fact in 24

isolation. Here, the prosecutor did not ask the jury to rely only on Archer’s status as a solo 2513 practitioner. Rather, immediately thereafter, she recounted the contents of the audio tapes and the 1

testimony of the trial witnesses; that is, she pointe d to other evidence that, together with his being 2

a solo practitioner, might lead the jury to find that Archer did have actual knowledge. 5 In this 3

respect, the government’s case has much in common with that upheld in Phillips , where the 4

attorney’s status as a solo practitioner was also just one piece of the evidentiary pie. 543 F.3d at 5

1210. 6

2. The Maniego Instruction 7

Maniego involved two attorneys who operated a sham-marriage scheme to secure lawful 8

permanent resident (LPR) status for aliens. At tria l, their defense was that they were unaware that 9

their clients’ marriages were fraudulent. A client testified that she told them about her prior 10

marriage, which made her LPR-qualifying marriage in valid. The trial court instructed the jury that 11

“an attorney is not held to a higher standard of conduct, or legal obligation, to verify 12

independently the truth of the information given by a client.” 710 F.2d at 28. This court found 13

that instruction “proper” and affirmed the convictions. Id. Archer requested, nearly verbatim, the 14

same charge as given in Maniego . Def.’s Am. Req. to Charge 3–4, United States v. Archer , No. 08-cr15

288 (E.D.N.Y. Mar. 21 , 2010), ECF No. 147. 16

As with the Phillips instruction, there is no dispute that Maniego accurately states the law or 17

that, if the jury had believed th at Archer’s clients provided him wi th false information and Archer 18

was unaware of its falsity, it would have had to acqu it him. Thus, as above, the only issue before us 19

is whether the mens rea instruction given by the district court adequately represented the 20

requirements of “knowledge” as an element of the crim e. As we said above, it did. The jury could 21

5 Whether such other testimony by itself would be sufficient to support a conviction or whether it becomes sufficient only when combined with Archer’s status as a solo practitioner is a question we advert to infra

.14 not have convicted Archer if it both believed hi s defense and followed this instruction. Therefore, 1

Archer has failed to sh ow reversible error. 2

B. **Sufficiency of the Evidence** 3

Archer argues that the evidence before the ju ry was insufficient to demonstrate beyond a 4

reasonable doubt that he had knowledge of the fr aud. A defendant challenging the sufficiency of 5

the evidence underlying a criminal conviction bears a “heavy burden” because this court “must 6

review the evidence in the light most favora ble to the government, drawing all reasonable 7

inferences in its favor.” United States v. Gaskin , 364 F.3d 438, 459 (2d Cir. 2004). We also “resolve 8

all inferences from the eviden ce and issues of credibility in favor of the verdict.” United States v. 9

Howard , 214 F.3d 361, 363 (2d Cir. 2000). In short, “[ r]eversal is warranted only if no rational 10

factfinder could have found the crimes ch arged proved beyond a reasonable doubt.” Gaskin , 364 11

F.3d at 459–60. Moreover, “the jury’s verdic t may be based on circumstantial evidence,” United 12

States v. D’Amato , 39 F.3d 1249, 1256 (2d Cir. 1994), and th e government is not “required to 13

preclude every reasonable hypothesis [t hat] is consistent with innocence,” United States v. Chang An14

Lo , 851 F.2d 547, 554 (2d Cir. 1988). The government must, however, show “more than evidence 15

of a general cognizance of criminal activity, suspicious circumstances, or mere association with 16

others engaged in criminal activity.” United States v. Samaria , 239 F.3d 228, 233 (2d Cir. 2001), 17

abrogated in part on other grounds by United States v. Huezo , 546 F.3d 174, 180 n.2 (2d Cir. 2008). 18

All four client-witnesses testified that they sp oke little English and did not read well in any 19

language. They all said they did not know the requirements of the program when they came to 20

Archer’s office. They also all test ified that their I-687 applications contained false information and 21

that they did not provide this information to anyone at the office. A “reasonable inference” to 2215 draw from this combined testimony is, as the government argued, that they could not have 1

fabricated the dates and other information on their applications in such a wa y that the fabrications 2

would match up with the program’s requirements. 3

Accepting this inference, Archer protests that the evidence sh ows only that someone in his 4

office, not he himself, fabricated their informati on. He contends that Rafique, who spoke the 5

clients’ languages and who met with them in the office while Archer was in court, is a more logical 6

candidate. Yet, three of the client- witnesses said they spoke with Archer about their applications. 7

And one of the two taped conversation with Guli stan also could well be interpreted as Archer 8

responding “so what?” when confronted with accusations of false information in Gulistan’s 9

application. 10

In all four clients’ cases, Archer requested adjournments of the DHS hearings that were 11

scheduled for his clients—apparently attempting to postpone them indefinitely—and in two cases, 12

Archer withdrew the applications when DHS insisted on the inte rviews. From these actions, it 13

could reasonably be inferred that Archer was a ttempting to avoid having clients answer DHS’s 14

questions about the applications in ways that would uncover their falsity. 15

The jury was entitled to credit this testimon y and was not required to see it as Archer 16

urged. See Chang An-Lo , 851 F.2d at 554. Together, this eviden ce was enough for a reasonable jury 17

to conclude beyond a reasonable doubt that Archer was aware that the visa applications contained 18

false statements and that he filed them anyway . This is so, moreover , apart from whatever 19

additional weight Phillips permits giving to the fact that Archer was a solo practitioner. We, 20

therefore, reject Archer’s challenge to his conviction on this ground. 2116 C. **Sentencing** 1

We review a sentence for both procedu ral and substantive reasonableness. United States v. 2

Friedberg , 558 F.3d 131, 133 (2d Cir. 2009). Among othe r things, the district court commits 3

procedural error when it “makes a mist ake in its Guidelines calculation.” United States v. Cavera

, 4

550 F.3d 180, 190 (2d Cir. 2008) (en banc). The dist rict court’s interpretation of the Guidelines is 5

a question of law, which we review de novo

. United States v. Zagari , 111 F.3d 307, 323 (2d Cir. 6

1997). As to the facts that support the application of a Guideline, the burden of proving such facts 7

is on the government, the standard for proving su ch facts is a preponderance of the evidence, and 8

we review the district court’s factual conclusions for clear error. Id . Clear error exists when “we 9

[are] ‘left with the definite and firm conv iction that a mistake has been committed.’” Cavera , 550 10

F.3d at 204 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)). On this point, we 11

note that a conclusion that factual findings are not clearly erroneous is more easily reached when 12

the district court makes those findings explicitly and on the record. 13

Archer contends that the district court committed procedural error in calculating his 14

Guidelines range by inappropriately applying thre e enhancements to that calculation. First, he 15

argues that the government presented insufficient evidence to sustain a nine-level enhancement for 16

conduct that involved more than 100 fraudulent documents. Second, he claims that the district 17

court erred in imposing a four-level enhancement for being the leader or organizer of criminal 18

activity, because the government presented insufficien t evidence to show either that five or more 19

people joined the conspiracy or that the crimin al scheme was “otherwise extensive.” Third, he 20

challenges a two-level enhancement for obstructio n of justice, imposed for threatening a witness, 2117 because his conduct toward the potential witness was, he asserts, not threatening. We address 1

these arguments in this order. 2

1. 100 or More Documents 3

Archer received a nine-level enhancement for an offense involving 100 or more fraudulent 4

documents. See U.S. Sentencing Guidelines Manual (U.S .S.G.) § 2L2.1(b)(2)(C). At sentencing, 5

the government proffered nothing beyond what it offer ed at trial. And there, the only evidence as 6

to the number of false documents involved was immigration officer Shatzkamer’s statistical 7

summary of 175 of Archer’s cases. See PSR ¶ 6. 8

To sustain quantity-based enhancements for relevant conduct, the court must base its 9

findings on “specific evidence” that the offense involved the requ isite quantity of items. This 10

evidence can, however, be circumstantial. United States v. Shonubi (“Shonubi II”) , 103 F.3d 1085, 11

1090 (2d Cir. 1997). This requirement has two parts: (a) there must be evidence regarding the 12

quantity of illicit or fraudulent goods and (b ) it has to be specific to the defendant. See id. ; United 13

States v. Shonubi (“Shonubi I”) , 998 F.2d 84, 89 (2d Cir. 1993). Shonubi I and Shonubi II each dealt 14

with one of these two prongs, respectively. Ov er a number of years, the defendant in the Shonubi 15

cases made eight trips to Nigeria. On returning to the United States from the last of these trips, he 16

was arrested because officials found 427.4 grams of heroin in him. Shonubi I , 998 F.2d at 86, 89. 17

The district court, multiplying th e amount found in the defendant on this one trip by the total 18

number of trips he had made, sentenced him base d on eight times that quantity. This court 19

vacated and remanded. We explained that “specific evidence— e.g., drug records, admissions or live 20

testimony—[is required] to calculate . . . quantities for sentencing purposes,” and we concluded that 21

the government instead provided “only speculation.” Id. at 89–90. 2218 On remand, the district court held “an elab orate hearing,” collecting a great deal of 1

statistical evidence about the amount of heroin carried by other Nigerian smugglers in similar 2

circumstances. Shonubi II , 103 F.3d at 1088. It then re-imposed the same sentence. Id. This court 3

again vacated the sentence. Id. at 1093. This time, we faulted the district court for not evaluating 4

evidence specific to the individual defendant. Id. at 1090 (“By mentioning ‘drug records’ and 5

‘admissions’ as examples of specific evidence we th ought it reasonably clear that we were referring 6

to the defendant — his admissions and records of his drug transactions. And by ‘live testimony’ we 7

were referring to testimony about his drug transactions.”). In so va cating, our court was careful to 8

point out that “specific” evidence need not be “direct” and, when correctly considered, 9

circumstantial evidence could be sufficient. Id. For example, the court approved of statistical 10

extrapolation to arrive at an estimate of drug quantity when the sample was randomly selected 11

from a known population. Id. at 1092 (approving of the method of testing four randomly selected 12

heroin balloons to estimate the quantity of heroin contained in 103 balloons found inside the 13

defendant’s body). 14

Unlike most of the cases that follow the Shonubi decisions, the case before us does not 15

involve the second prong of the test; there is no doub t that the evidence presented is specific to the 16

defendant. Cf., e.g. , United States v. Jones , 531 F.3d 163, 175–77 (2d Cir. 2008); United States v. 17

Moreno , 181 F.3d 206, 214 n.3 (2d Cir. 1999). No on e disputes that Archer filed all 175 I-687 18

applications at issue. Any analysis of those appl ications is, therefore, sufficiently “specific” to 19

Archer. 20

What is at issue here is whether the statisti cs the government relied on satisfy the first 21

prong—the “specific evidence” requirement. The go vernment contends that Shatzkamer’s report, 2219 which demonstrates striking simi larities between the four applicat ions presented at trial, all of 1

which the jury, in convicting Arch er on the substantive counts, must have found to be false, and 2

the remaining 171, constitutes adequate specific ev idence. These statistics, the government asserts, 3

permit a sentencing judge to find by a preponderan ce of the evidence (the relevant standard under 4

Zagari ) that at least 96 of those applications were fraudulent, thus supporting the nine-level 5

enhancement under § 2L2.1(b)(2)(C) for an offense involving 100 or more fraudulent documents. 6

The contention fails for two reasons. 7

The first and most obvious flaw in the governme nt’s reasoning is that it has presented no 8

evidence that the four applications proven false at trial were, in Shonubi ’s relevant way, a 9

representative slice of the 175 applications on which the government relies. Unlike the 10

representative sampling of heroin balloons in Shonubi , the four applications presented at trial were 11

not randomly selected from the population. If th ey had been, Shatzkamer’s report might well be 12

sufficient. If fewer than 100 of the 175 applicatio ns were false, the likelihood of randomly 13

selecting four applications that were all false would be, at most, 10 percent. 6 It follows then that if 14

four randomly selected applications were all found to be false, this finding could form the basis of 15

a reasonable conclusion that, more likely than no t, at least 100 of the applications from which the 16

four were drawn were false. Cf. United States v. Duong-Cam Tran , 519 F.3d 98, 106–07 (2d Cir. 17

2008) (affirming random representative sampling as a valid method of estimating drug quantity). 18

6 The likelihood of randomly drawing four false applications is determined by multiplying the likelihood of drawing a false application on each of four successive selections. In this example, the likelihood of drawing the first false application would be 56.6 percent (99 false applications out of 175 total applications). The likelihood of drawing a second false application wo uld be 56.3 percent (98/174); the third, 56.1 percent (97/173); and the fourth, 55.8 percent (96/172). The total likelihood of drawing four false applications in a row, then, would be 10.0 percent (.566 x .563 x .561 x .558).20 There is, instead, good reason to think that the applications presented at trial were not 1

random, but were instead the most egregious cases. They look like the easiest ones for agents to 2

identify as fraudulent, both because the clients who were most badly misrepresented were most 3

likely to complain and because those applications involved assertions that were easiest to prove 4

false. In this respect, what happened here would be as if the chemist mentioned in Shonubi had 5

selected the four balloons with the most pungent vi negar smell, which indicates heroin, tested the 6

chemical composition of those four and then ex trapolated the result to the population of 103 7

balloons whose odor was less pungent. 8

The second flaw is that the government’s statis tics, without more, tell us very little that is 9

helpful to determining whether any of the other 171 applications were false. The government 10

notes that 100 percent of the applications involved aliens who claimed to have entered the country 11

illegally, that 96 percent of these aliens allegedly did so in 1981, that 90 percent of the applications 12

claimed travel outside the country between June and October 1987, and that 26 percent involved 13

one or more fill-in-the-blank affidavits. That informa tion is interesting, but without a baseline as to 14

what the national pool of I-687 applications (filed by, we must assume, honest lawyers) looked like 15

to compare it to—and Shatzkamer admitted he ha d no such baseline—the data tell us nothing 16

about the truth or falsity of the applications. It is like saying that Dr. Jones’s patients died, on 17

average, a year after their initial visit with her: if most of her patients were healthy people coming 18

for a check-up, this information suggests a finding that Dr. Jones is a terrible physician; if, on the 19

other hand, Dr. Jones is an oncologist, all of whose patients had terminal cancer of a sort that had 20

a national average life expectancy of two months, the same information makes her look very good 2121 indeed. Context is essential; but the government did not take the time and make the effort to 1

provide any. 2

This deficiency might, nonetheless, have b een cured if the government had explained why 3

the similarities in the applications are, in th emselves, incriminating. And we certainly do not 4

foreclose the possibility that, in some circumstance s, the incriminating character of similarities is 5

sufficiently obvious that no further explanation is needed. For example, in an immigration fraud 6

case in which the government offered an INS agen t’s summary of “regular patterns” contained in 7

1365 applications filed by the defendants, the si milarities—namely repeated stories of allegedly 8

personal persecution, given in great, often “word- for-word” detail—were deemed too unlikely to be 9

accidental, and the incriminating character of th ose similarities was held to be obvious. United 10

States v. Walker , 191 F.3d 326, 331, 333 (2d Cir. 1999). 7 But the facts here—dates of entry and of 11

travel—are not so peculiar. Without some further ex planation or context, the conclusion that many 12

of the applications must be false is no more than supposition. 13

In the end, this case is unlike those in wh ich we have upheld this enhancement and more 14

like those in which we have not. In all of these, some evidence was required to show that the court 15

was sentencing the defendant not based on his charac ter—in this case, his guilt with respect to four 16

false applications—but on his actions—in this case , his filing of more than a hundred applications 17

that were in fact false. Thus, we have held that a court may not assume that because the defendant 18

was convicted of dealing drugs, all the money that he has is drug money, see Jones , 531 F.3d at 177 19

(finding the money to be drug money only, in part, because the defendant had “no other means of 20

employment that could be a legitimate source of the money”), and we have held that simply 21

7 Even there, however, the court ultimately rested it s conclusion that more than 100 false documents were involved on direct testimony regarding the number of documents: the lawyer-defenda nt’s clerk said at trial that “he processed thousands of fals e applications” for the defendant. Walker , 191 F.3d at 339.22 because a defendant was convicted of cashing forged checks, it was error to conclude that every 1

check he cashed was fraudulent, United States v. Spitsyn , 403 F. App’x 572 (2d Cir. 2010) (summary 2

order) (remanding for resentencing because no evidence existed that 545 of the 578 checks 3

defendant cashed were forged). Conversely, where the defendant’s assistant testified that he had 4

personally “processed thousands of false appl ications” for the defendant, we upheld an 5

enhancement. See Walker , 191 F.3d at 339. 6

When the Guidelines allow for punishment of relevant conduct as though it were 7

convicted conduct, we have a special obligation to ensure that the evidence of relevant conduct is 8

solid. See Shonubi II , 103 F.3d at 1089. The abse nce of such evidence here renders the district 9

court’s factual findings clearly erroneous. 10

2. Leader or Organizer 11

Archer received a four-level enhancement for be ing an organizer or leader of the criminal 12

operation. See U.S.S.G. § 3B1.1(a). This enhancement applies when the criminal activity “involved 13

five or more participants or was otherwise extensive.” Id. The government argued, and the district 14

court agreed, that Archer qualified for this enhancement on both grounds. 15

Before we examine Archer’s contention about th e sufficiency of the government’s evidence 16

on either ground, we pause to note that before ap plying this enhancement, the district court is 17

required to make specific factual findings regardin g either the number of participants or the extent 18

of the criminal activity. United States v. Skys , 637 F.3d 146, 156 (2d Cir. 2011); United States v. 19

Espinoza , 514 F.3d 209, 212 (2d Cir. 2008) (per curiam). We have repeatedly said that it is not 20

enough for the court to make implicit findings or “‘merely to repeat or paraphrase the language of 2123 the guideline and say conclusorily that the defendant meets those criteria.’” Skys , 637 F.3d at 157 1

(quoting United States v. Ware , 577 F.3d 442, 452 (2d Cir. 2009) , and collecting cases). 2

Here, the district court simply said, “I find that there was a conspiracy involving five 3

people, and even if there were not five people, that this activity was otherwise extensive.” It did, 4

however, adopt the PSR, which provided some factual support. See PSR ¶ 39 (noting that the fraud 5

“involved not just [Archer, Ra fique, and Sarvjit Singh, but also] the knowing and unknowing 6

services of many outsiders (including a number of victim applicants who were aware of the 7

fraudulent nature of the applications but signed them anyway, and a number of individuals who 8

fraudulently attested to the truth of those applications in signed a ffidavits)”). We will review this 9

enhancement in light of the PSR’s finding. 10

For a defendant to qualify for the enhanc ement on the five-or-more ground, the 11

government must show four people other than th e defendant who were “criminally responsible for 12

the commission of the offense.” U.S.S.G. § 3B1.1 cmt. n.1. Because the PSR mentions only 13

Archer, Rafique, and Sarvjit Singh, a former em ployee of Archer’s who solicited clients for him 14

and who was convicted on one count of visa fraud, the evidence is insufficient to sustain the 15

enhancement on this ground. 16

To qualify on the “otherwise extensive” grou nd, however, the government can include “the 17

unknowing services of many outsiders” in tallyin g the scope of the fraud. U.S.S.G. § 3B1.1 cmt. 18

n.3; see also United States v. Carrozzella , 105 F.3d 796, 803–04 (2d Cir. 1997), abrogated in part on 19

other grounds by United States v. Kennedy , 233 F.3d 157, 160-61 (2d Cir. 2000). Three factors weigh 20

in determining the extensiveness of the fraud: “( i) the number of knowing participants; (ii) the 21

number of unknowing participants whose activities were organized or led by the defendant with 2224 specific criminal intent; (iii) th e extent to which the services of the unknowing participants were 1

peculiar and necessary to the criminal scheme.” Carrozzella , 105 F.3d at 803–04; accord United 2

States v. Rubenstein , 403 F.3d 93, 99 (2d Cir. 2005). 3

Here, the uncontested number of knowing participan ts is at least three. This number is on 4

a par with prior cases where we have sustained application of the enhancement. E.g. , Rubenstein

, 5

403 F.3d at 99 (two knowing participants). Next , we count as unknowing participants in the 6

overarching conspiracy a fair nu mber though probably not all of Archer’s clients—the precise 7

number being impossible to determine from th e record before us for the reasons stated supra —who 8

signed the I-687 applications and who sought affi davits from third parties in support of those 9

applications. The same evidence that was sufficient to convict Archer, as discussed supra Part II.B, 10

is sufficient to show that “[t]he organization of, and direction given to, [at least some of the clients 11

was] done with the specific intent of” filing false visa applications. 8 Carrozzella , 105 F.3d at 804. 12

Finally, though it is logically po ssible that Archer could have file d false applications simply by 13

pulling information from thin air, that wa s not what the evidence indicated he did. Cf. Rubenstein

, 14

403 F.3d at 96–97 (describing defendants’ conviction for violating the work-practice standards of 15

the Clean Air Act, a violation that can occur only if one has actual workers). Under his scheme, 16

Archer needed real clients to provide some of th eir own information and to secure the supporting 17

affidavits that his office prepared. In the actual scheme before us, these clients were “peculiar and 18

necessary to the criminal scheme.” Carrozzella , 105 F.3d at 804; cf. id. (explaining that “the taxi 19

8 This is so without regard to the statistical evidence discussed supra in Part II.C.1. The trial testimony established that four clients and eight other individuals (two affidavit-signers for each client) could be counted as unknowing partic ipants in the conspiracy. See Rubenstein , 403 F.3d at 99 (approving the “otherwise extensive” finding where the scheme invo lved two knowing particip ants and seven unknowing participants whose work was necessary to the scheme).25 driver who brought a leader of th e fraudulent scheme to work on a single occasion” would not 1

count). 2

All this is sufficient to su pport the PSR’s finding, and we, accordingly, affirm the 3

application of the four-level en hancement under § 3B1.1(a). 4

3. Obstruction of Justice 5

Archer received a two-level enhancement for obstruction of justice for sending two text 6

messages to Sarvjit Si ngh. U.S.S.G. § 3C1.1. 9 In early 2009, Archer called Singh repeatedly, and 7

Singh did not answer. On April 17, 2009, Archer texted Singh, “Sarvjit. If u r a government 8

witness signal me by not responding to this messa ge. But if ur a friend call me.” PSR ¶ 42. Singh 9

did not respond. Ten days later, Ar cher texted him again, “Pussy.” Id. 10 Singh was, apparently, 10

“very threatened” by these messages. Id. 11

An obstruction-of-justice enhancement is warranted, inter alia , when the defendant 12

threatens, intimidates, or otherwise unlawfully in fluences a potential witness with the intent to 13

obstruct justice. U.S.S.G. § 3C1.1 cmt. n.4 (a). An intent to deter cooperation with the 14

government is sufficient. United States v. Shoulberg , 895 F.2d 882, 885 (2d Cir. 1990). 15

Most cases where we have upheld the applic ation of this enhancement involve clear and 16

direct threats against cooperating witnesses or government agents. E.g. , United States v. Hertular

, 17

562 F.3d 433, 443 (2d Cir. 2009) (upholding the enhancement wher e the defendant told agents 18

“it was in their ‘best interest to back down’ from their investigation and warned them that ‘hit 19

9 This section provides: “If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecutio n, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a clos ely related offense, increase the offense level by **2** levels.”

10 Note that the PSR calls this second message an “ema il.” The photograph in the record, however, clearly shows it to be a text message. **[A 1272]**26 men from Colombia or Mexico’ would be hired to ‘take [them] out’”) (alteration in original); 1

United States v. Agudelo , 414 F.3d 345, 348, 351 (2d Cir. 2005) (affirming the district court’s 2

interpretation of the defendant’s statement to a witn ess that if the witness were to testify against 3

him in a drug case, he would “make a case agai nst [the witness] for ki dnapping” as a threat 4

designed to intimidate the witness). But the dist rict court may draw inferences from context and 5

must determine what the defendant “meant by hi s words, and how a listener would reasonably 6

interpret those words.” Shoulberg , 895 F.2d at 883–84 (sustaining the enhancement where a drug 7

dealer with a violent history known to all parties asked for a potential witness’s address saying, “If 8

he is fucking[,] I got a trick for his ass”). 9

Where the defendant’s statements are ambigu ous, “we generally defer to a sentencing 10

court’s findings” on the speaker’s meaning and intent. United States v. Gaskin , 364 F.3d 438, 466 11

(2d Cir. 2004) (upholding a § 3C1.1 enhancement where the defendant threatened the life of one 12

witness in front of a second witness and the dist rict court found that he did so in order to 13

intimidate that second witness). Here, however, the district court made no findings with respect to 14

the meaning of Archer’s messages. And we are, in any event, unpersuaded that a reasonable 15

reading of these messages evidences sufficient intent to support an obstruction-of-justice 16

enhancement. 17

The most obvious reading of Archer’s texts is (1) that he wished to know whether Singh 18

would testify for the government and (2) that he was displeased that Singh would do so. The 19

district court made no attempt to explain wh y these interpretations were incorrect under the 20

circumstances or in what way Archer’s words mani fested any intent to obstruct justice. With no 21

explicit threat of violence and no history between the two men to suggest that the insult was code 2227 for a threat, see Shoulberg , 895 F.2d at 885–86 (finding that an ambiguous statement could be 1

interpreted against the defendant where his violent history indicated that his statement would be 2

understood as a threat), this case seems very similar to United States v. Hernandez , 83 F.3d 582, 3

585–86 (2d Cir. 1996). In Hernandez , the defendant had spoken to the cooperating witness before 4

trial, called her “the devil,” and said she would “stare [the witness] down” at trial. Id. at 585. The 5

Hernandez court found the district court’s finding of obstructive intent clearly erroneous, even 6

though the witness was “scared”; th e statement was not a threat but was merely an expression of an 7

understandable feeling of betrayal. 11 Id. at 586 (“Fury may be exceedin gly unpleasant, but alone, it 8

bespeaks no intent to obstruct justice.”). 9

As in Hernandez , the defendant called the witness an un pleasant name upon learning that 10

the witness would cooperate with the government, an d the witness was subjectively afraid. But also 11

as in Hernandez , and unlike Shoulberg , no evidence exists from which one could conclude that the 12

defendant’s statement was a threat. Therefore, like the Hernandez court, we find clearly erroneous 13

the district court’s conclusion that Archer’s te xts were threats and hence find the enhancement 14

improper. 15

11 Though the Hernandez court took the defendant’s words in the li ght most favorable to her, as it was required to do by a now-repealed Guideline note then in effect, see U.S.S.G. § 3C1. 1 cmt. n.1 (1995) (requiring the court to take the defendant’s st atements “in a light most favorable to” her), repealed by U.S.S.G. App’x C, amd. 566 (1997), it s conclusion was largely based on the total lack of evidence showing any intent to obstruct justice. Hernandez , 83 F.3d at 585 (“[T]here is no evidence that Hernandez made the statements with the requisite intent to obstruct justice.”); id. at 586 (“Without some showing of evil intent as to that attempted contact, however, this fact cannot co nstitute any evidence at all of obstruction.”). So too here: our conclusion is based not on reading Archer’s statement in the light mo st favorable to him, but rather on the lack of evidence in the record—either on the face of the statements or in their context— demonstrating any intent to keep Si ngh from helping the government.28 4. Remand 1

For the reasons given in Parts II.C.1 and II. C.3, we vacate the sentence imposed and 2

remand the case for resentencing. This raises th e question of whether the government should, or 3

can, be allowed to present additional evidence on remand as to one or more of the matters as to 4

which we found the current record evidence to be inadequate. 12 This is an open question in our 5

circuit. But see Shonubi II , 103 F.3d at 1092 (“Since th e Government has now had two 6

opportunities to present the required ‘specific evidence’ to the sentencing court, no further 7

opportunity is warranted.” (emphasis added)). 8

The consensus among our sister circuits is th at generally where the government knew of its 9

obligation to present evidence and failed to do so, it may not enter new evidence on remand. 10

Nonetheless, there are cases (a) where the govern ment’s burden was unclear, (b) where the trial 11

court prohibited discussion of the issue, or (c ) where the evidence was, for a good reason, 12

unavailable, in which the district court was permi tted, in its discretion, to hear new evidence. To 13

put it more broadly, where special circumstance s make the prohibition on new evidence unfair, 14

the district court may admit it. United States v. Noble, 367 F.3d 681, 682 (7th Cir. 2004) (holding 15

that the “the government is not permitted on re mand to try again and submit new evidence in a 16

belated effort to carry its burden” where the “g overnment knew what it was required to 17

introduce”); United States v. Matthews, 278 F.3d 880, 885–86 (9th Cir. 2002) (adopting a policy of 18

remand “without limitation on the evidence that the district court may consider” unless, inter alia

, 19

“there was a failure of proof after a full inquir y into the factual question at issue”); United States v. 20

Hudson, 129 F.3d 994, 995 (8th Cir. 1997) (“Becaus e we have clearly stated the governing 21

12 Of course, if the government is allowed to introd uce new evidence on remand, the defendant must be allowed to answer it by presenting new evidence of his own.29 principles as to when and how disputed senten cing facts must be proved, we direct that 1

resentencing on remand be conducted on the exis ting sentencing record, with no opportunity for 2

either party to reopen or add to that record.”); United States v. Leonzo, 50 F.3d 1086, 1088 (D.C. 3

Cir. 1995) (“see[ing] no reason why [the government ] should get a second bite at the apple [where 4

n]o special circumstances justified, or even explained, the governme nt’s failure to sustain [its well5

established] burdens”); United States v. Dickler, 64 F.3d 818, 832 (3d Cir. 1995) (“perceiv[ing] no 6

constitutional or statutory impediment to the di strict court’s providing the government with an 7

additional opportunity to present evidence on rema nd if it has tendered a persuasive reason why 8

fairness so requires”); United States v. Parker, 30 F.3d 542, 553–54 (4th Cir. 1994) (holding that 9

double jeopardy prevents the government from offering new evidence when it “has already been 10

given one full and fair opportunity to offer what ever proof about [the disputed issue] it could 11

assemble”). 12

We now join that consensus. We leave to the di strict court to consider in the first instance 13

whether the justifications outlined above for allowing the government to present new evidence on 14

remand exist in this case. Therea fter, if it has admitted no new ev idence, the district court should 15

recalculate Archer’s Guidelines range without using the enhancements in §§ 2L2.1(b)(2)(C) and 16

3C1.1. If it chooses to consider new evidence, it should calculate Archer’s Guidelines range based 17

on its findings with respect to that evidence. In either case, it should then, of course, impose the 18

sentence it finds warranted by the sent encing factors set forth in § 3553(a). 19

D. **Restitution** 20

Under the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A , the district 21

court ordered Archer to pay $309,500 in restitut ion to 234 clients, representing a refund of the 2230 estimated fees paid by those clients to Archer for their I-687 cases. We review restitution orders for 1

abuse of discretion. United States v. Ojeikere , 545 F.3d 220, 222 (2d Cir. 2008). A court abuses its 2

discretion when it rests its decision on an error of law. United States v. Fernandez , 443 F.3d 19, 27 3

(2d Cir. 2006). 4

The MVRA requires restitutio n where (a) the offense was “committed by fraud or deceit” 5

and (b) “an identifiable victim or victims has su ffered a physical injury or pecuniary loss.” 18 6

U.S.C. §§ 3663A(a)(1), (c)(1)(A)(ii), (c)(1)(B). There is no dispute that Archer’s crime qualifies as to 7

the first element. With respect to the second, th e government contends that Archer’s clients are 8

victims of the fraud and that they suffered the pe cuniary loss of paying him “for a service—helping 9

them obtain legal status—that he did not provide.” Appellee’s Br. 56. Archer resists the 10

classification of his clients as victims and argues that , in any event, not all of them are victims. 11

A “‘victim’ means a person directly and proxi mately harmed as a result of the commission 12

of an offense . . . including, in the case of an offense that involves as an element a scheme, 13

conspiracy, or pattern of criminal activity, any pe rson directly harmed by the defendant’s criminal 14

conduct in the course of the scheme, conspiracy, or pattern.” § 3663A(a)(2). 13 Determining 15

whether Archer’s clients qualify as “victims,” ther efore, is in large part about whether their losses 16

13 Our court recently decided United States v. Aumais , No. 10-3160-cr, 2011 U.S. A pp. LEXIS 18620 (2d Cir. Sept. 8, 2011). In Aumais , restitution arose under § 2259; the current case is under § 3663A. As noted above, § 3663A defines a victim as “a person directly and proximately harmed as a result of the commission of an offense,” and it is that statutory definition of victim, requiring proximity of causation, that we apply in this case. Aumais was decided in the absence of the same definition of victim. Nevertheless, Aumais held that proximate cause was needed for re stitution. It did this by reading § 2259 as mandating that the victim’s claimed losses be proximately caused by the defendant’s action. There is nothing, of course, inconsistent with the requirement of proximate cause that Aumais reads into § 2259, and that which we find to be statutorily required under § 3663A. The two ca ses, therefore, can exist in ha rmony. But, notably, even had Aumais not read into § 2259 a requirement of proximate cause with respect to the loss, § 3663A by its language, would require proximate cause in its definition of victim in the case before us.31 were caused by Archer’s offense, namely his conspiracy to commit visa fraud. 14 Critically, “the 1

district court’s statutory authorit y to award restitution under the MVRA is limited to awards to 2

victims of the offense of conviction.” In re Local #46 Metallic Lathers Union , 568 F.3d 81, 85 (2d 3

Cir. 2009) (per curiam) (citing Hughey v. United States , 495 U.S. 411, 416–19 (1990)). 4

The government’s argument—that Archer took his clients’ money “for a service . . . he did 5

not provide”—might be taken as referring to an enti rely separate consumer fraud rather than to the 6

immigration fraud it charged. This raises the poss ibility that the government is seeking restitution 7

for losses caused by an unprosecuted offense rather than by the offense of conviction, something it 8

may not do. Id. (holding that a victim of a fraud count in the indictment to which the defendant 9

did not plead guilty was properly denied restitutio n). For a number of years, our court determined 10

whether a loss was part of the offense of conviction by reference to the elements of the crime: 11

restitution was proper only if the conduct that caused the loss was an element of the crime. Id. at 12

86; id. at 84 (rejecting the plaintiff’s argument that the district court erred by “defining a victim 13

according to the elements of the crime or offen se of conviction” (int ernal quotation marks 14

omitted)). 15 15

For example, in the Local 46 case, the defendant, a business owner, developed a scheme in 16

which he issued business checks to fictitious vendors, forged endorsements on those checks, 17

cashed them, and then used the proceeds to pay his employees in cash, thereby avoiding 18

14 The substantive counts of visa fraud could only have victimized the four clients whose applications were covered by those charges. For the over whelming majority of the alleged victims, therefore, their losses must be tied to the conspiracy count.

15 A slightly different rule applies in cases where the conviction is for an inchoate crime like possession of an illicit item with intent to defraud. See United States v. Oladimeji , 463 F.3d 152, 159 (2d Cir. 2006). In those cases, we have held that carrying out the frau dulent scheme is sufficiently encompassed within the “intent to defraud” element of the crime so as to allo w for restitution caused by the defendant’s use of the prohibited item even though he was convicted only for its possession. Id. Even in these cases, however, the critical point of reference remains the el ements of the crime of conviction.32 obligations to the IRS and the employees’ union. Id. at 82. He was charged with conspiracy to 1

launder money and defrauding the union, but pleade d guilty to the former charge as part of a plea 2

agreement in which the government agreed to drop the latter charge. Id. at 83. The union sought 3

restitution, claiming that it was a victim of th e money laundering scheme because paying the 4

employees with cash, and thus avoiding paying the union as required under the collective 5

bargaining agreement, was the purpo se of the money laundering scheme. Id. at 83–84. The court 6

affirmed the magistrate judge’s determination th at the money laundering scheme was complete 7

when the defendant received the cash and so what he intended to do (or did) with it after that 8

moment was irrelevant to the crime of conviction. Id. at 86–87. As a result, the court held that the 9

union was not a victim under the MVRA. Id. at 88. 10

Our recent decision in United States v. Paul , 634 F.3d 668, 670 (2d Cir. 2011), however, 11

expands this test somewhat. In that case, the defendant committed securities fraud by trading a 12

stock between multiple accounts he controlled, called “nominee accounts,” thereby artificially 13

increasing the liquidity of the stock and, hence, its price. In the process, he secured margin loans 14

from several banks based on his holdings of this stock. These loans were how he profited from the 15

scheme—simultaneously inflating the stock price whil e continuing to hold the shares, something he 16

could do only because of the loans he had secured. Id. Eventually, the scheme was uncovered, the 17

stock price fell dramatically, and given the worthle ssness of the shares, he was unable to repay the 18

loans. Id. He pleaded guilty to securities fraud but contended that the court could not order 19

restitution to the banks because their losses were caused by his fraudulent creation of the nominee 20

accounts, which he argued was bank fraud, and no t the securities fraud of which he was convicted. 21

Id. at 676–77. We rejected this argument and found th at the loans were part of the larger securities 2233 fraud for two reasons. First, be cause Paul “explicitly admitted th at . . . [he] concealed from the 1

investing public that [he] was leveraging and, in effect, liquidating a substa ntial part of [his stock] 2

holdings” through the use of the margin loans, th at conduct itself was an element of securities 3

fraud. Id. at 677. Second, and more broadly, becaus e the loans were part of the scheme Paul 4

actually devised for profiting from his crime and because “[t]he brokerage houses would not have 5

made the loans to [the defendant] had they known that the collateral for the loans was the stock he 6

manipulated through the nominee accounts,” their losses were caused by his overall scheme. Id. at 7

677. 8

Paul ’s reasoning echoes the statute, which pro vides that “in the case of an offense that 9

involves as an element a scheme, conspiracy, or pattern of criminal activity, any person [who is] 10

directly harmed by the defendant’s criminal cond uct in the course of the scheme, conspiracy, or 11

pattern [is a victim].” § 3663A(a)(2). This same re asoning—that victims are those who “would not 12

have made the [payments to the defendant] had they known [about the fraudulent scheme],” Paul

, 13

634 F.3d at 677—also explains the well-established rule that co-con spirators, who, by definition, 14

know of the scheme, are not victims and may not receive restitution, see United States v. Reifler , 446 15

F.3d 65, 127 (2d Cir. 2006) (disallowing restitut ion for those individuals whose stock lost value 16

but who bought it knowing the defendant inte nded to inflate the price artificially). 17

The government is correct that this rule is not about denying benefits to those with 18

unclean hands. See Ojeikere , 545 F.3d at 223 (allowing restit ution to those whose money the 19

defendant had stolen despite the fact that they had conspired wi th him to commit a different fraud 20

on third parties). It is a rule about causation in the fundamental and not simply “but for” meaning 21

of the word: if a person gives the defendant his mo ney to bet, knowing that the bet might lose, his 2234 later loss, for purposes of restitution, is, in this fundamental sense, caused not by the defendant 1

accepting his money but by the outcome of the bet. 16 2

In the instant case, the first question is whet her the clients’ payments to Archer were part 3

of the visa fraud conspiracy or, instead, were on ly part of an entirely separate consumer fraud 4

scheme for which he was not prosecuted. It is certainly possible for one to commit visa fraud 5

without accepting any money from the visa applic ants—the crime is “complete” with the knowing 6

presentation of a false document to the government. 17 See In re Local #46 , 568 F.3d at 86. Archer’s 7

receipt of money from his clients was, therefore, not an element of the crime. But, in this case, the 8

fraud was not by any means entirely separate; henc e, restitution might nonetheless be available. 9

Here, the clients’ payments, like the margin loans in Paul , were the mechanism through which 10

Archer profited from his conspiracy and, thus, we re an integral part of the single scheme he 11

devised. Under Paul , such payments could qualify as part of the offense for which he was 12

convicted—and hence his clients could be victims under the MVRA—if, but only if, “[the clients] 13

would not have made the [payments] had they know n that [Archer would file false applications].” 14

See Paul , 634 F.3d at 677. That is, if Archer’s clients thought they were buying his honest legal 15

services, they may well have been victims of his vi sa fraud conspiracy. On the other hand, if they 16

thought (and a fortiori if they in fact knew) that they were buying the cover that his law practice 17

gave to their false visa applications—either becaus e they wanted the tempor ary work permits issued 18

16 The requirement of causation here is akin to th e well-established requirem ent that there be “loss causation” in securities-fraud cases and not merely transaction (“but for”) causation. See Lentell v. Merrill Lynch & Co. , 396 F.3d 161, 172 (2d Cir. 2005).

17 Unlikely though it may seem, a defendant might aid an alien in preparing a false visa application out of friendship to a particular alien or beneficence to alie ns in general. Under the statute, that defendant would be just as guilty of visa fraud as Archer. See 18 U.S.C. § 1546(a).35 to I-687 applicants or because they thought th e government might be duped and grant their 1

applications—then they suffered no loss that was proximately caused by Archer’s visa fraud. 2

The showing required to satisfy the government ’s burden on this point varies depending 3

on the circumstances of the fraud. In some cases, it will be clear that no reasonable person would 4

have given the defendant her money if she had known of his plan—as in the fraud in Ojeikere 5

where the defendant’s plan was to abscond with his co-conspirators’ funds as soon as he got hold 6

of their money. 545 F.3d at 223. See also United States v. Marino , No. 09-1965-cr, 2011 U.S. App. 7

LEXIS 17202 (2d Cir. Aug. 18, 2011). In those case s, a generalized description of the fraudulent 8

scheme is enough to support restitution. But wh ere it is plausible that some individuals would 9

have paid the defendant even if they had b een informed of his fraudulent plan, then the 10

government must proffer some individualized evid ence to meet its burden of showing that each 11

alleged “victim” was actually a victim. Cf. United States v. Gonzalez , 647 F.3d 41, 65-67 (2d Cir. 12

2011) (vacating a restitution award where the district court failed to calculate individualized and 13

actual losses). 14

Two facts lead us to conclude th at the case before us is of the latter kind. First, the record 15

reflects that in several instances, applicants did in fact know that their papers contained 16

falsehoods. For example, Mr. Ally admitted that he knew one of th e affidavits for his application 17

was false but that he “begged” his co-worker to sign it anyway. Rahul Gu pte, a client who was 18

deposed but did not testify, said that he signed his I-687 application knowing it contained false 19

statements, including a false address he provided. Another client, Manzoor Ahmad, had previously 20

submitted a similar application for legalization with the same false information that was later 21

included on his I-687 form. 2236 Second, filing a false but plausible I-687 applic ation was anything but a sure loser. While 1

the alien’s application was pending, the alien co uld obtain a temporary work permit, and all four 2

clients who testified at trial said they in fact did receive such a permit. There also remained the 3

possibility, however small, that DHS would be fool ed by their false applications and grant them 4

visas. Of course, a knowing applicant might well real ize that the application would likely have to be 5

withdrawn eventually or would be denied and that he or she could face the possibility of future 6

sanctions. But it is an unfortunate fact that criminals take that kind of risk every day. 7

The upshot is that, in the instant case, the government bore the burden of demonstrating 8

by a preponderance of the evidence, 18 U.S.C. § 3664(e) , that each individual it claims is entitled 9

to restitution was actually a “victim.” The govern ment undertook to satisfy that burden only by 10

showing that 234 clients paid Arch er a fee. Although Archer’s re ceipt of these fees was part of his 11

scheme, such receipt created at most only a prima facie case that each client was a victim entitled to 12

restitution. As we have pointed out, a client woul d not have been entitled to restitution if the 13

client paid a fee with knowledge of the fraud (and th ereby became a co-conspirator) or if the client 14

would have paid a fee had the client known of Archer’s plan to submit a fraudulent visa 15

application. To show that a fee-paying client was a victim, the government’s burden, therefore, was 16

to show that a fee-paying client did not know of the fraud and would not have paid a fee had the 17

client known of the fraud. 18

These further aspects of the government’s burd en obliged it to prove two negatives, a 19

circumstance that requires some refinement in the proper allocation of the parties’ evidentiary 20

obligations. It is familiar grou nd that where the prosecution’s bu rden of proof would require it to 21

prove a negative and the facts at issue are mo re readily ascertainable by the defendant, the 2237 defendant is often obliged to assume a burden of production of evidence that presents at least a 1

triable issue as to the fact at issue, at which point the burden of persuasion must be assumed by 2

the prosecution. See Model Penal Code § 112 (Proposed Official Draft 1962); Weinstein’s Federal 3

Evidence § 303.06[2] (2011). That is how burdens are allocated, for example, when a defendant 4

accused of crime asserts the affirmat ive defenses of duress or coercion. See United States v. Bakhtiari

, 5

913 F.2d 1053, 1057-58 (2d Cir. 1990) (defendant’s evid ence insufficient to raise a triable issue of 6

duress or coercion); see also Mullaney v. Wilbur , 421 U.S. 684, 701 n.28 (1975) (noting that many 7

states require defendant to show that there is some evidence that he acted in heat of passion 8

before requiring prosecution to negate this elem ent by proving the absence of passion beyond a 9

reasonable doubt); Grey v. Heckler , 721 F.2d 41, 45 (2d Cir. 1983) (rel ying on Illinois law that party 10

alleging that divorce was not obtained must pre sent evidence sufficient to afford reasonable 11

ground for presuming allegation is true, at wh ich point “onus probandi will be thrown on his 12

adversary”); United States v. Vardine , 305 F.2d 60, 63 (2d Cir. 1962) (assigning to defendant in tax 13

fraud prosecution burden of production to furnish leads to explain net worth bulge with burden 14

of proof of tax evasion on government). 15

That allocation of burdens is appropriate in th is case. Archer, having been found guilty of 16

conspiracy to submit fraudulent visa applicat ions for his clients, is more likely than the 17

government to ascertain whether a client knew of the fraud or would have paid a fee even if the 18

client had known of the fraud. A client’s knowledge would have come from Archer or someone in 19

his firm, and the client’s willingness to pay a fee had the client known of the fraud would likely 20

have come to light in conversations between the client and Archer or someone in his firm. 2138 In this case, Archer’s burden of production was fully discharged as to some alleged victims, 1

such as Mr. Ally and Rahul Gupte, by some evidence that they knew of the fraud. The government 2

then had to persuade the trier by a preponderance of all the evidence that these clients did not 3

know of the fraud. The present record does not indi cate that Archer has yet satisfied his burden of 4

production on the issue of knowledge of the fraud with respect to other clients. 5

Archer endeavored to satisfy his burden of production on the issue of whether a client 6

would have paid a fee had he known of the fraud by evidence of attorney-shopping on the part of 7

some of the clients. That evidence, however, does not suffice to raise a triable issue of whether 8

such clients would have paid a fee had they known of the fraud. Attorney-sho pping is explicable by 9

many reasons, the most likely of which is attemp ting to find an attorney who charges a more 10

reasonable fee. With respect to a client like Ma nzoor Ahmad, however, Archer’s evidence that 11

Ahmad had previously submitted a similar application for legalization with the same false 12

information later included on his I-687 form satisfie d Archer’s burden of production with respect 13

to this client. The burden was therefore on th e government to prove by a preponderance that 14

Ahmad would not have paid a fee had he known of the fraud. With respect to other clients, 15

Archer has not yet satisfied his burden of productio n to raise a triable issu e as to whether they 16

would have paid a fee had they known of the fraud. 18 17

Because the determination of victim status was not made with the evidentiary burdens 18

allocated as set forth above, we will remand to afford the district court an opportunity to 19

reconsider which of Archer’s clients are entitled to restitution. And because restitution is a matter 20

18 With regard to fees paid to Ar cher by clients who participated in the efforts to obtain visas with knowledge that those efforts were fraudulent, while those clients may not be entitled to restitution, that is not to say that the funds themselves would not be fo rfeitable. We offer no opinion in that regard, and whether to proceed down that track is, of course , up to the government in the first instance.39 of sentencing, 18 U.S.C. Pt. II, Ch. 232 (conta ining the MVRA and entitled “Miscellaneous 1

Sentencing Provisions”), the analysis articulated supra in Part II.C.4 regarding new evidence applies 2

here as well, although the lack of clarity as to the parties’ respective burdens on the restitution 3

issue, in the circumstances of this case, would seem to favor allowing additional evidence on this 4

issue. Regardless of whether the district court deci des to admit new evidence on this point, the 5

parties are, of course, free to make new argume nts based on the evidence already in the record. 6

**III. CONCLUSION**  7

We hereby AFFIRM the defendant’s convicti on. We VACATE his sentence, including the 8

restitution order, and REMAND for furt her proceedings as outlined above. 9