United States of America v. Abhijit Prasad

San Francisco, CA - Criminal defense lawyer represented defendant with twenty-one counts of visa fraud, and two counts of aggravated identity theft charges.

Prasad owned and operated Maremarks, which he

describes as a "visa services company” and the government

describes as a "workforce supply company” or "supplier.”

Through Maremarks, Prasad filed petitions seeking H-1B

status for nonimmigrant, foreign workers in specialty

occupations—here software engineers—to come to the

1 Prasad also appeals his convictions, asserting evidentiary errors

and challenging the sufficiency of the evidence. This opinion addresses

only Prasad's arguments challenging the forfeiture order. A

concurrently filed memorandum disposition resolves the remaining

issues on appeal and affirms Prasad's convictions.

6 UNITED STATES V. PRASAD

United States as Maremarks' employees performing work

for Maremarks' end-clients.2

In these petitions, Prasad was required to establish that

the H-1B beneficiary employees would fill specific, bona

fide positions that were available at the time he filed the

petitions, and that there was, or would be, a legitimate

employer-employee relationship between Maremarks and

the H-1B beneficiaries. See 8 C.F.R. § 214.2(h)(1)(i),

(h)(4)(i)(A)(1); id. § 214.2(h)(4)(ii) (defining "employer”);

United States v. Nanda, 867 F.3d 522, 525–26 (5th Cir.

2 The Immigration and Nationality Act allows employers in the

United States, like Maremarks, to request H-1B status for nonimmigrant

foreign workers in specialty occupations. See 8 U.S.C. § 1184(c);

8 U.S.C. § 1101(a)(15)(H)(i)(b); 8 C.F.R. § 214.2(h)(2)(i). The

prospective employer must first file a Labor Condition Application

(LCA) with the Department of Labor (DOL) that identifies the specialty

occupation it seeks to fill and attests to certain employment terms and

conditions. 8 U.S.C. § 1182(n)(1); see also 8 C.F.R. § 214.2(h)(4)(i)(B);

20 C.F.R. §§ 655.700(b), 655.730(c)–(d). If the Secretary of Labor

certifies the LCA, the employer must then submit a Petition for a

Nonimmigrant Worker (Form I-129) that requests H-1B nonimmigrant

worker classification for the foreign worker. 8 C.F.R. § 214.2(h)(1)(i),

(h)(2)(i); 20 C.F.R. § 655.700(b)(2). The employer files these

documents with the Department of Homeland Security, and the United

States Citizenship and Immigration Services (USCIS) processes them.

See 8 C.F.R. § 214.2(h)(1)–(2); 20 C.F.R. § 655.700(a), (b)(3). If USCIS

approves the employer's H-1B petition, the beneficiary employees are

admissible as temporary nonimmigrant workers and can obtain an H-1B

nonimmigrant visa. 8 C.F.R. § 214.2(h)(1)–(2); see 20 C.F.R.

§ 655.700(b)(3). H-1B beneficiaries are authorized to work in the United

States only for the petitioning employer for the employment term

specified in the petition. 8 C.F.R. § 214.2(h)(1)(i), (h)(2)(i)(D)–(E). For

an H-1B beneficiary to work for an employer other than the petitioneremployer, the prospective new employer must go through the same

application process as the original petitioner-employer, "and the alien is

not authorized to begin the employment with the new petitioner until the

petition is approved.” 8 C.F.R. § 214.2(h)(2)(i)(D).

UNITED STATES V. PRASAD 7

2017). At the time Prasad operated Maremarks, the

employer had to maintain the "right to control” the H-1B

beneficiary's employment through the employment term

specified in the petition. Donald Neufeld, U.S. Citizenship

& Immigr. Servs., HQ 70/6.2.8 (AD 10-24), Determining

Employer-Employee Relationship for Adjudication of H-1B

Petitions, Including Third-Party Site Placements 4 (2010)

(2010 USCIS Memo).3

When Prasad filed the petitions, he represented to USCIS

that there were existing positions available to the prospective

H-1B beneficiary employees at Cisco Systems and Ingenuus

Software. In fact, there were no positions available for these

workers at Cisco or Ingenuus. Instead, after the petitions

were approved, Maremarks assigned the H-1B beneficiary

employees to work for other end-clients. The end-clients

paid Maremarks as the employer of the H-1B beneficiaries,

and Prasad paid the H-1B beneficiaries after taking a

percentage for himself.

As the government acknowledges, "supplier companies

can file visa petitions with [USCIS] for qualified

beneficiaries who seek to come to the United States on

nonimmigrant work visas.” But Prasad violated the law by

falsely representing in the H-1B petitions that there were

specific, bona fide positions available for the H-1B

beneficiaries when those positions did not exist. Thus,

Prasad engaged in a "bench and switch” scheme. This

scheme involves filing a petition for H-1B status to recruit a

foreign worker, despite lacking a specific position for that

3 This guidance was effective during the period that Prasad filed the

petitions at issue in this case. See U.S. Citizenship & Immigr. Servs.,

U.S. Dep't of Homeland Sec., PM-602-0114, Rescission of Policy

Memoranda 1 (2020).

8 UNITED STATES V. PRASAD

worker at the time the petition is filed, so that the employer

can create a "bench” of unemployed H-1B beneficiaries.

Nanda, 867 F.3d at 526; 2010 USCIS Memo, supra, at 10.

This "bench” allows the employer to contract with endclients to fulfill their immediate labor needs without the

uncertainty and potential delay inherent in filing legitimate

petitions seeking H-1B status.4 Carrying out this scheme

required Prasad to make false representations to USCIS,

which led to his conviction on twenty-one counts of visa

fraud in violation of 18 U.S.C. § 1546(a).

B.

Based on Prasad's visa fraud convictions, the

government sought criminal forfeiture, under 18 U.S.C.

§ 982(a)(6)(A)(ii)(I), in the form of a personal money

judgment against Prasad for $1,193,440.87. The

government argued that $1,193,440.87 "represent[s] the

amount of proceeds Prasad obtained as a result of the

criminal conduct for which he was convicted.” Prasad

opposed the government's motion but did not dispute that

Maremarks received $1,193,440.87 from the end-clients for

the work the H-1B beneficiaries performed. Instead, Prasad

argued that the most the court could order him to forfeit was

$238,688.17, which was the estimated amount he kept after

paying the beneficiary employees for the work they

4 The number of H-1B petitions that USCIS can grant each year is

capped by statute, see 8 U.S.C. § 1184(g)(1)(A)(vii), (g)(5), and USCIS

reviews the petitions it receives based on a random selection process if

there are sufficient petitions to meet the cap. 8 C.F.R.

§ 214.2(h)(8)(iii)(A)(5)(ii); Rubman v. U.S. Citizenship & Immigr.

Servs., 800 F.3d 381, 384 (7th Cir. 2015). USCIS denies the petitions

that are not selected in this process without review. Rubman, 800 F.3d

at 384.

UNITED STATES V. PRASAD 9

performed for the end-clients.5

The district court disagreed

and ordered forfeiture in the full amount the government

requested. Prasad filed a timely notice of appeal, see Fed. R.

App. P. 4(b)(1), and we have jurisdiction pursuant to

28 U.S.C. § 1291.

II.

We review de novo the district court's interpretation of

federal forfeiture statutes. United States v. Casey, 444 F.3d

1071, 1073 (9th Cir. 2006).

III.

Prasad argues that the district court erred by ordering

him to forfeit the entire $1,193,440.87 that Maremarks

received from the end-clients in payment for the H-1B

beneficiaries' work. Prasad does not assert any error in the

district court's factual findings; rather, he contends that the

portion of the $1,193,440.87 that he paid the H-1B

beneficiaries for their work for the end-clients is not subject

to forfeiture because it is not "property . . . that constitutes,

or is derived from or is traceable to the proceeds obtained

directly or indirectly from the commission of the offense.”6

5 Prasad estimates that the H-1B beneficiaries received

approximately eighty percent of the $1,193,440.87.

6 When a defendant is convicted of visa fraud, § 982(a)(6)(A)(ii)

mandates that a district court

shall order that the person forfeit to the United

States . . . any property real or personal—

(I) that constitutes, or is derived from or is

traceable to the proceeds obtained directly or

10 UNITED STATES V. PRASAD

18 U.S.C. § 982(a)(6)(A)(ii)(I). Thus, Prasad challenges the

district court's interpretation of § 982(a)(6)(A)(ii)(I).7

To support his assertion that the district court erred in its

interpretation of § 982(a)(6)(A)(ii)(I), Prasad argues that:

indirectly from the commission of the offense of

which the person is convicted; or

(II) that is used to facilitate, or is intended to be

used to facilitate, the commission of the offense

of which the person is convicted.

18 U.S.C. § 982(a)(6)(A)(ii).

7 As noted in the concurrence, another subsection of

§ 982(a)(6)(A)(ii) also requires forfeiture of property "that is used to

facilitate, or is intended to be used to facilitate, the commission of the

offense,” 18 U.S.C. § 982(a)(6)(A)(ii)(II) (the "facilitation” provision).

We do not address whether the district court's order can stand under that

provision, however, as the parties did not brief that issue before us or the

district court. The government sought forfeiture under subsection (I) (the

"proceeds” provision) by tracking the language of subsection (I) and

requesting "a forfeiture money judgment of $1,193,440.87, representing

the amount of proceeds Prasad obtained as a result of the criminal

conduct for which he was convicted.” And although the district court

cited subsections (I) and (II) in its order, it did not discuss or apply the

facilitation provision, and instead ordered forfeiture for "the amount of

illegal proceeds obtained directly or indirectly from the commission of

the offense of conviction,” language nearly identical to the proceeds

provision. "In our adversarial system of adjudication, we follow the

principle of party presentation,” and thus, "we rely on the parties to frame

the issues for decision and assign to courts the role of neutral arbiter of

matters the parties present.” United States v. Sineneng-Smith, 140 S. Ct.

1575, 1579 (2020) (citation omitted). Accordingly, because the parties

have developed neither arguments as to whether a facilitation theory

could support the forfeiture order under § 982(a)(6)(A)(ii)(II), nor an

evidentiary record on the point, we do not consider it. See id.; A-1

Ambulance Serv., Inc. v. County of Monterey, 90 F.3d 333, 338–39 (9th

Cir. 1996).

UNITED STATES V. PRASAD 11

(1) he did not "obtain” the amounts he paid the H-1B

beneficiaries; (2) those amounts do not constitute

"proceeds” because the term "proceeds” is limited to his

profits and thus does not extend to the receipts from his

criminal activity; and (3) the amounts he paid the H-1B

beneficiaries were not "derived from” his commission of

visa fraud because they resulted from the H-1B

beneficiaries' legitimate work for the end-clients. For the

reasons set forth below, we reject these arguments and affirm

the district court's forfeiture order.

A.

Prasad contends that he did not "obtain” the entire

$1,193,440.87, as that term is used in the criminal forfeiture

statute, because he eventually paid portions of that money to

the H-1B beneficiaries. Section 982(a)(6)(A)(ii)(I)

mandates forfeiture of the property a defendant "obtained

directly or indirectly from” the criminal offense. 18 U.S.C.

§ 982(a)(6)(A)(ii)(I). To construe the term "obtain,” we start

with its plain meaning. United States v. Nader, 542 F.3d

713, 717 (9th Cir. 2008). The plain meaning of the term

"obtain” is "to come into possession of” or to "get or

acquire.” Obtain, Oxford English Dictionary (2d ed. 1989);

see also Honeycutt v. United States, 137 S. Ct. 1626, 1632

(2017) (construing "obtained” as used in 21 U.S.C.

§ 853(a)(1)'s virtually identical criminal forfeiture provision

according to its plain meaning, i.e., "to come into possession

of” or to "get or acquire” (citations omitted)). Because the

term "obtained” can be interpreted according to its plain

meaning, that reading controls. See United States v. Harrell,

637 F.3d 1008, 1012 (9th Cir. 2011).

Here, Prasad possessed the full $1,193,440.87, including

the portions he paid to the H-1B beneficiaries, because he

received and had control over the money before he paid a

12 UNITED STATES V. PRASAD

percentage of it to employees. Control over property

connotes possession of it. See Possession, Black's Law

Dictionary (11th ed. 2019) ("In common speech a man is

said to possess or to be in possession of anything of which

he has the apparent control . . . .” (quoting Frederick Pollock

& Robert Samuel Wright, An Essay on Possession in the

Common Law 1–2 (1888))). The end-clients paid

$1,193,440.87 to Maremarks for the H-1B beneficiaries'

work. The government traced those payments to

Maremarks' bank account and established that Prasad was

the sole signatory on that account. Thus, Prasad had control

over the $1,193,440.87 that went through the account.8

See

Signatory Authority, Black's Law Dictionary, supra

(defining "signatory authority” as "[l]icense to make a

decision, esp. to withdraw money from an account”).

Under our precedent, it does not matter that Prasad paid

portions of the $1,193,440.87 to the H-1B beneficiaries and

at that point no longer possessed those portions. See United

States v. Newman, 659 F.3d 1235, 1243 (9th Cir. 2011),

abrogated on other grounds by Honeycutt, 137 S. Ct. 1626.

We have explained that "[r]equiring imposition of a money

judgment on a defendant who currently possesses no assets

furthers the remedial purposes of the forfeiture statute by

ensuring that all eligible criminal defendants receive the

mandatory forfeiture sanction Congress intended and

disgorge their ill-gotten gains, even those already spent.” Id.

at 1243 (citation omitted) (construing 18 U.S.C.

§ 982(a)(2)'s materially similar criminal forfeiture

provision). Thus, 18 U.S.C. § 982(a)(6)(A)(ii)(I) only

8 Prasad asserts that his payment of portions of the $1,193,440.87 to

the H-1B beneficiaries indicates he did not possess the entire

$1,193,440.87, but the very act of payment establishes that he did

control, and thus possess, the money.

UNITED STATES V. PRASAD 13

requires that the government show that the defendant had

possession of the property at some point to establish that the

defendant "obtained” it. See id.

In sum, because Prasad controlled the $1,193,440.87, he

possessed it and so necessarily had obtained it. We therefore

conclude that Prasad "obtained” the $1,193,440.87 that the

end-clients paid to Maremarks.

B.

Prasad argues that even if he "obtained” the

$1,193,440.87, the "proceeds” that he "obtained” are limited

to his profit, which excludes the amount he paid to the H-1B

beneficiaries for their work for end-clients. As Prasad

correctly notes, "'[p]roceeds' can mean either 'receipts' or

'profits' . . . in ordinary usage.” United States v. Santos, 553

U.S. 507, 511 (2008) (plurality opinion) (citations omitted)

(construing the term "proceeds” in the federal moneylaundering statute, 18 U.S.C. § 1956);9 see also United

9 Santos, a plurality decision, construed the term "proceeds” within

the elements of the money laundering statute and, because the term was

ambiguous, it applied the rule of lenity to conclude that "proceeds” was

limited to profits. 553 U.S. at 514–15. Justice Stevens concurred with

the plurality decision, but only on the scope of the money laundering

statute as applied to the specific facts before the Court, and he stated

concerns that, under the facts presented, interpreting "proceeds” as

receipts could lead to a merger problem by allowing two crimes to arise

from the same conduct. See id. at 525–28 & n.7 (Stevens, J., concurring).

United States v. Christensen rejected the argument that Santos compelled

us to construe the term "proceeds” in the RICO forfeiture statute to mean

"profits.” 828 F.3d 763, 823 (9th Cir. 2015) ("The issue in Santos was

quite different, however. The interpretation of 'proceeds' in Santos

affected the scope of criminal liability for money laundering, not the

amount of forfeiture.”). Here, we are, as in Christensen, asked to

construe the term "proceeds” in the criminal forfeiture statute; once

14 UNITED STATES V. PRASAD

States v. Peters, 732 F.3d 93, 99 (2d Cir. 2013) (concluding

that the term "proceeds” in 18 U.S.C. § 982(a)(2) could

mean either "profits” or "receipts” in "ordinary usage,” and

rejecting argument that Santos compelled construing

"proceeds” as profit (citation omitted)).

But a statutory term may not be read in isolation and

must instead be construed in its proper context within the

statute. See Mont v. United States, 139 S. Ct. 1826, 1833–

34 (2019); Antonin Scalia & Bryan A. Garner, Reading Law

167 (2012). And because the term "proceeds” is ambiguous,

we must look to "other sources” to determine its

meaning. See Nader, 542 F.3d at 717 (citation omitted).

Considering the term "proceeds” in the context of the

forfeiture statute, the statute's punitive purpose, and our

prior construction of virtually identical criminal forfeiture

provisions, we conclude that the term "proceeds” extends to

receipts and is not limited to profit.

1.

We first consider the term "proceeds” in the context of

the forfeiture statute. Section 982(a)(6)(A)(ii)(I) provides

for forfeiture of the "proceeds obtained . . . from the

commission of the offense.” 18 U.S.C. § 982(a)(6)(A)(ii)(I)

(emphasis added). Prasad argues that we should construe

this statute as limiting forfeiture to "profits obtained” from

the commission of the offense. "[O]btain” means "to come

again the holding in Santos does not affect the issue before us because

"[f]orfeiture is an aspect of the sentence, not an element of the underlying

crime,” and thus there is no possibility of a merger problem. Id. at 822–

23 (citing Libretti v. United States, 516 U.S. 29, 38–39 (1991)); see also

id. at 824 (stating "[o]nly the desire to avoid a merger problem united

the plurality and Justice Stevens in Santos” (internal quotation marks and

citation omitted)).

UNITED STATES V. PRASAD 15

into possession of” or to "get or acquire.” Honeycutt, 137 S.

Ct. at 1632 (citations omitted). "Profit” is "[t]he pecuniary

gain in any transaction; the amount by which value acquired

exceeds value expended.” Profit, Oxford English

Dictionary, supra. Thus, Prasad argues that we should

construe the statute to limit forfeiture to "the pecuniary gain

in any transaction, or the value acquired less the value

expended” (i.e., profit) "that is acquired or which the

defendant comes into possession of” (i.e., obtained).

But when, as here, a defendant possesses and controls the

receipts of his criminal conduct but ultimately retains only a

portion of those receipts for his own profit, Prasad's

construction of "proceeds obtained” cannot be reconciled

with the common meaning of "obtain”—to "come into

possession of” or "acquire.” See Honeycutt, 137 S. Ct. at

1632. Instead, Prasad's construction of "proceeds” as profit

would require us to construe "proceeds obtained . . . from the

commission of the offense,” see 18 U.S.C.

§ 982(a)(6)(A)(ii)(I), to mean "proceeds that are part of what

the defendant obtained from the commission of the offense.”

Nothing in the statute supports this convoluted construction

of "proceeds obtained.”

Rather, in common English usage, we say that a person

obtains, or gets, or acquires revenue or income (i.e.,

receipts), which may ultimately result in profit after

accounting for costs. See Profit, Black's Law Dictionary,

supra. Indeed, "receipts” means "the amount, sum, or

quantity received,” such as "money.” See Receipts, Oxford

English Dictionary, supra; Receipt, Black's Law Dictionary,

supra (defining "receipt” as "income”); see also Proceeds,

Black's Law Dictionary, supra (defining "proceeds” as "the

amount of money received from a sale” (emphasis added)),

quoted in Casey, 444 F.3d at 1076 n.4. Thus, the district

16 UNITED STATES V. PRASAD

court's construction of "proceeds” as "receipts” is supported

by the common meaning of the relevant statutory language.

The Sixth Circuit recently reached the same conclusion

based on similar reasoning. See United States v. Bradley,

969 F.3d 585, 588–89 (6th Cir. 2020). In Bradley, the court

rejected the defendant's argument that "forfeiture of a

crime's 'proceeds,'” under 21 U.S.C. § 853(a)(1),10 "does

not include money received by the defendant from the crime

but paid to coconspirators.” Id. at 588. Instead, it held that

the term "proceeds” in 21 U.S.C. § 853(a)(1) means receipts

because the statute "holds defendants responsible for the

'proceeds' they 'obtained' through the conspiracy,” id. at

588–89, and "it is beside the point whether the money stayed

in [the defendant's] pocket (e.g., kept as profits) or went

toward the costs of running the conspiracy (e.g., used to pay

coconspirators),” id. at 589. Thus, the court concluded that

"[§] 853(a)(1) asks only whether the defendant obtained the

money,” not what he did with it. Id. (citing Newman, 659

F.3d at 1243).

We conclude that Congress's use of the phrase "proceeds

obtained” demonstrates that the focus of forfeiture is

whether the defendant obtained the property from the

commission of the crime, not whether the defendant made a

profit based on what he later chose to do with that property.

See id. at 588–89; see also Newman, 659 F.3d at 1243

(stating property is forfeitable regardless of whether the

defendant "saves his stolen loot,” "spends [it] on wine,

10 21 U.S.C. 853(a)(1), which is materially similar to 18 U.S.C.

§ 982(a)(6)(A)(ii)(I), requires forfeiture of "any property constituting, or

derived from, any proceeds the person obtained, directly or indirectly, as

the result of such violation.” 21 U.S.C. § 853(a)(1).

UNITED STATES V. PRASAD 17

women, and song,” or even reinvests it "as part of the

criminal enterprise” (citation omitted)).

Moreover, it would make little sense to construe

"proceeds” as profit, as Prasad urges, because that

construction would allow a defendant to defeat the United

States' vested claim to property obtained from the

commission of the crime by reinvesting that property into the

criminal enterprise before his conviction, rather than

pocketing it as profit. See 21 U.S.C. § 853(c) ("All right,

title, and interest in property . . . vests in the United States

upon the commission of the act giving rise to

forfeiture . . . .”); United States v. Lazarenko, 476 F.3d 642,

647–48 (9th Cir. 2007).

In sum, while the term "proceeds” is ambiguous on its

own, we must look to the entire text of a statutory provision

when interpreting the meaning of a particular term. Here,

placing "proceeds” in its proper context by interpreting it in

light of the term "obtained” and 21 U.S.C. § 853(c) (as

incorporated by 18 U.S.C. § 982(b)) supports that

"proceeds” under 18 U.S.C. § 982(a)(6)(A)(ii)(I) denotes

receipts.

2.

We also apply 18 U.S.C. § 982(a)(6)(A)(ii)(I) in light of

its statutory purpose and conclude that construing

"proceeds” to include receipts advances that purpose, while

limiting "proceeds” to profit hinders it. We favor an

interpretation of a statute that furthers and does not obstruct

the statute's purpose. Burns v. Stone Forest Indus., 147 F.3d

1182, 1184 (9th Cir. 1998) (citation omitted); Scalia &

Garner, supra, at 63–64; see also The Emily & The Caroline,

22 U.S. (9 Wheat.) 381, 389 (1824) (rejecting construction

of statute offered by claimants because that construction

18 UNITED STATES V. PRASAD

would "render[] the law in a great measure nugatory[] and

enable offenders to elude its provisions in the most easy

manner,” thereby frustrating the law's purpose).

Section 982 provides for "criminal forfeiture,” which "is

designed to punish the offender.” United States v.

Bajakajian, 524 U.S. 321, 332 (1998); United States v.

Beecroft, 825 F.3d 991, 999 (9th Cir. 2016) ("[A] general

hallmark of criminal forfeiture orders—distinguishing them

from orders of restitution—is that they indeed serve to

punish the defendant.” (citations omitted)), abrogated on

other grounds by Honeycutt, 137 S. Ct. 1632, 1635.

"Forfeitures help to ensure that crime does not pay: They at

once punish wrongdoing, deter future illegality, and 'lessen

the economic power' of criminal enterprises.” Kaley v.

United States, 571 U.S. 320, 323 (2014) (citations omitted).

A criminal forfeiture that simply divests a defendant of

the profits from his crime has little deterrent value.

Construing "proceeds” as profits would allow a defendant to

avoid forfeiture of certain property obtained from his

criminal activity by reinvesting it in the criminal enterprise

or using sophisticated accounting practices to conceal

profits. See Peters, 732 F.3d at 101. Therefore, limiting

"proceeds” solely to profits would hinder 18 U.S.C. § 982's

punitive purpose and so is a construction that should be

avoided. See The Emily & The Caroline, 22 U.S. (9 Wheat.)

at 388–89 (rejecting interpretation that would undermine the

statute's purpose). On the other hand, construing "proceeds”

to include receipts advances 18 U.S.C. § 982's purpose, and

thus is the preferred construction. See Burns, 147 F.3d at

1184–85.

UNITED STATES V. PRASAD 19

3.

Defining the term "proceeds” in 18 U.S.C.

§ 982(a)(6)(A)(ii)(I) to include receipts is consistent with

our past interpretation of the term "proceeds” as used in

similarly worded criminal forfeiture provisions, including:

18 U.S.C. § 982(a)(2), 18 U.S.C. § 1963(a)(3), and

21 U.S.C. § 853(a)(1). A court's prior construction of

statutory language is relevant to the meaning of a similarly

worded provision. See United States v. Durcan, 539 F.2d

29, 31 (9th Cir. 1976) (concluding that prior construction of

similar statutory language from a different statutory

provision controlled); Scalia & Garner, supra, at 322 (stating

that the prior construction canon applies "to interpretations

of the same wording in related statutes”).

First, we have held that "proceeds” means receipts for

purposes of 18 U.S.C. § 982(a)(2).11 See Newman, 659 F.3d

at 1243. The forfeiture provision in 18 U.S.C. § 982(a)(2) is

materially identical to the forfeiture provision here.12 In

Newman, we reasoned that "proceeds” goes beyond the

money in the defendant's possession when apprehended and

includes amounts that "the criminal spent . . . as part of the

criminal enterprise.” 659 F.3d at 1243. "Congress intended

[that criminal defendants] disgorge their ill-gotten gains,

11 The Second Circuit has also concluded that "proceeds” means

receipts under 18 U.S.C. § 982(a)(2). See Peters, 732 F.3d at 101–02.

12 Section 982(a)(2) mandates forfeiture of "any property

constituting, or derived from, proceeds the person obtained directly or

indirectly, as the result of” certain specified crimes. 18 U.S.C.

§ 982(a)(2). Our construction of § 982(a)(2) is particularly noteworthy

because materially similar provisions within the same statute should be

construed in the same way. See Mertens v. Hewitt Assocs., 508 U.S. 248,

260 (1993).

20 UNITED STATES V. PRASAD

even those already spent.” Id. (quoting Casey, 444 F.3d at

1074). Thus, it did not matter that one of the defendants,

who participated in a mortgage fraud conspiracy,

"personally profited very little” or that the banks had

recovered part of the loan amounts. Id. at 1238, 1244

(citation omitted). The "proceeds” of the offense equaled

the entire amount of the loans the defendant fraudulently

obtained, i.e., his receipts. Id. at 1244.

Second, we have held that RICO's criminal forfeiture

provision, 18 U.S.C. § 1963(a)(3), also extends beyond

profits to receipts.13 Christensen, 828 F.3d at 822 (holding

that "'proceeds' in the RICO forfeiture statute refers to gross

receipts rather than net profits”). In Christensen, we

explained that construing the term "proceeds” broadly to

include receipts frees the government from "the

unreasonable burden . . . of proving net profits” by

demonstrating "what the defendant's overhead expenses

were.” Id. (quoting United States v. Simmons, 154 F.3d 765,

771 (8th Cir. 1998)); see also Peters, 732 F.3d at 101 (stating

that construing "proceeds” under 18 U.S.C. § 982(a)(2) to

mean profits would incentivize "criminals to employ

complicated accounting measures to shelter the profits of

their illegal enterprises” (citation omitted)). Additionally, in

Christensen, we considered the punitive purpose of RICO's

forfeiture provision and concluded that construing

"proceeds” to encompass receipts effectuates that purpose,

while limiting it to profits would not. 828 F.3d at 822–24.

13 Section 1963(a)(3), which is very similar to § 982(a)(6)(A)(ii)(I),

requires forfeiture of "any property constituting, or derived from, any

proceeds which the person obtained, directly or indirectly, from

racketeering activity or unlawful debt collection in violation of section

1962.” 18 U.S.C. § 1963(a)(3).

UNITED STATES V. PRASAD 21

Accordingly, we held that "proceeds” under RICO's

criminal forfeiture provision means receipts. Id. at 822.

Third, we construed the forfeiture provision of the

Controlled Substances Act, 21 U.S.C. § 853(a)(1), to require

forfeiture of the receipts of illegal drug transactions.14

Casey, 444 F.3d at 1076 & n.4 (defining the term "proceeds”

in the forfeiture provision as "the amount of money received

from a sale” (quoting Black's Law Dictionary 1242 (8th ed.

1999))). In Casey, the defendant was convicted of

distribution of ecstasy where his only role was serving as a

"middleman” who "transferred the [$7,000] he received to a

third party who actually shipped the drugs.” 444 F.3d at

1072–73. The defendant argued that the "proceeds” he

obtained were limited to the $200 he made as profit—not the

$7,000 he received and transferred (i.e., the receipts). Id. at

1072, 1076 n.4. We disagreed. Id. at 1073–74. "Even

though [the defendant] no longer ha[d] the drug proceeds,”

we reasoned that the defendant "received funds that should

never have been available for him to spend.” Id. at 1073–

74.

We again emphasized the punitive nature of criminal

forfeiture in Casey. Id. Construing "proceeds” to

encompass the entirety of the defendant's receipts "negates

any benefit [the defendant] may have received from the

money, ensuring that, in the end, he does not profit from his

criminal activity.” Id. at 1074. Ultimately, we held that the

"proceeds” were "the $7,000 [the defendant] received in the

illegal drug transaction.” Id. at 1076. In other words,

14 Under § 853(a)(1), the court must order forfeiture of "any

property constituting, or derived from, any proceeds the person obtained,

directly or indirectly, as the result of” certain drug offenses. 21 U.S.C.

§ 853(a)(1).

22 UNITED STATES V. PRASAD

21 U.S.C. § 853(a)(1) mandated forfeiture of the receipts of

the defendant's crime. See id.

In sum, we have consistently held that "proceeds” means

receipts when used in criminal forfeiture provisions that are

materially similar to 18 U.S.C. § 982(a)(6)(A)(ii)(I),

specifically 18 U.S.C. § 982(a)(2), 18 U.S.C. § 1963(a)(3),

and 21 U.S.C. § 853(a)(1). We see no reason to make

§ 982(a)(6)(A)(ii)(I) an outlier, especially considering the

statutes' nearly identical language and shared punitive

purpose. United States v. Novak, 476 F.3d 1041, 1051 (9th

Cir. 2007) (en banc) ("[C]ourts generally interpret similar

language in different statutes in a like manner when the two

statutes address a similar subject matter.” (citations

omitted)).

4.

Finally, we recognize that Congress referred to "gross

proceeds,” "gross receipts,” and "proceeds” within the

various forfeiture provisions under 18 U.S.C. § 982(a).

Typically, under the presumption of consistent usage and

material variation, a material change in terminology within

the same statute denotes a change in meaning. Sosa v.

Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004) ("[W]hen

the legislature uses certain language in one part of the statute

and different language in another, the court assumes

different meanings were intended.” (citation omitted));

Scalia & Garner, supra, at 170. Applying this presumption

here could suggest that "proceeds” is limited to profits, given

that "gross proceeds” and "gross receipts” more readily

invoke the concept of receipts than the term "proceeds”

alone.

But this presumption "is not rigid and readily yields” to

context "to meet the purposes of the law.” Sun v. Ashcroft,

UNITED STATES V. PRASAD 23

370 F.3d 932, 939–40 (9th Cir. 2004) (quoting Atl. Cleaners

& Dyers v. United States, 286 U.S. 427, 433 (1932)).

Additionally, the presumption of consistent usage and

material variation loses force when the relevant terms were

added on different occasions, as is the case here.15 See

Kniess v. United States, 413 F.2d 752, 754 (9th Cir. 1969)

(stating that "phrases employed by one legislative draftsman

are an unreliable clue as to that which another writer, at a

different point in time, . . . may have intended by the use of

slightly different terms”); Scalia & Garner, supra, at 172–

73. Because, as we have discussed in detail, the purpose of

18 U.S.C. § 982 reveals that "proceeds” means receipts, and

the relevant terms were added at different times, the

presumption is overcome here.

* * *

The term "proceeds” under 18 U.S.C.

§ 982(a)(6)(A)(ii)(I) could mean either profits or receipts.

However, in the context of the entire text of the provision,

the punitive purpose of 18 U.S.C. § 982, and our prior

construction of substantially similar criminal forfeiture

15 Congress individually added each of 18 U.S.C. § 982(a)'s

forfeiture provisions. See Anti-Drug Abuse Act of 1988, Pub. L. No.

100-690, § 6463(c), 102 Stat. 4374, 4375 (codified at 18 U.S.C.

§ 982(a)(1)); Act of Aug. 9, 1989, Pub. L. No. 101-73, § 963(c), 103 Stat.

183, 504 (1989) (codified at 18 U.S.C. § 982(a)(2)); Crime Control Act

of 1990, Pub. L. No. 101-647, § 2525(b), 104 Stat. 4789, 4835, 4874

(codified at 18 U.S.C. § 982(a)(3)); Anti Car Theft Act of 1992, Pub. L.

No. 102-519, § 104(b), 106 Stat. 3384, 3385 (codified at 18 U.S.C.

§ 982(a)(5)); Health Insurance Portability and Accountability Act of

1996, Pub. L. No. 104-191, § 249(a), 110 Stat. 1936, 2020 (codified at

18 U.S.C. § 982(a)(7)); Act of Sept. 30, 1996, Pub. L. No. 104-208,

§ 217, 110 Stat. 3009, 3009–573 (codified at 18 U.S.C. § 982(a)(6));

Telemarketing Fraud Prevention Act of 1998, Pub. L. No. 105-184, § 2,

112 Stat. 520, 520 (codified at 18 U.S.C. § 982(a)(8)).

24 UNITED STATES V. PRASAD

provisions, we conclude that the better construction is that

"proceeds” means receipts. The term "proceeds” is not

limited to Prasad's profits. Rather, Prasad must forfeit the

receipts he "obtained directly or indirectly from” his

commission of visa fraud. 18 U.S.C. § 982(a)(6)(A)(ii)(I).

Thus, the district court did not err by including the portions

of the $1,193,440.87 that Prasad received from the endclients and paid the H-1B beneficiaries as wages in its

calculation of the "proceeds” subject to forfeiture.

C.

Prasad also asserts that the amounts he paid to the H-1B

beneficiaries were "legitimate” and not "derived from

unlawful activity,” even if the "visa applications” he

submitted were fraudulent. It appears Prasad is arguing that

because the H-1B beneficiary employees performed

legitimate work for end-clients, the portions of the money

that Maremarks received for that work and subsequently

paid to the beneficiary employees should not be considered

proceeds derived from his criminal conduct.

But § 982(a)(6)(A)(ii)(I) requires forfeiture of "the

proceeds obtained directly or indirectly from” Prasad's

commission of visa fraud. 18 U.S.C. § 982(a)(6)(A)(ii)(I)

(emphasis added). "From” means a "ground, reason, cause,

or motive: because of, on account of, owing to, as a result

of, through.” From, Oxford English Dictionary, supra.

"Direct” means "stemming immediately from a source.”

Direct, Merriam-Webster's Collegiate Dictionary (11th ed.

2004); see also Direct, Oxford English Dictionary, supra

(defining "direct” as "effected or existing without

intermediation or intervening agency; immediate”); Direct,

Black's Law Dictionary, supra (defining "direct” as

"immediate”). And "indirect” means "not direct.” Indirect,

Oxford English Dictionary, supra.

UNITED STATES V. PRASAD 25

Congress's inclusion of the phrase "directly or

indirectly” before "from” indicates that the unambiguous

and plain meaning of the statute reaches broadly, extending

beyond proceeds that stem directly or immediately from the

criminal offense. See Ass'n of Priv. Sector Colleges &

Univs. v. Duncan, 681 F.3d 427, 444 (D.C. Cir. 2012)

(noting "directly or indirectly” is "extremely broad

language” (quoting Roma v. United States, 344 F.3d 352,

360 (3d Cir. 2003))); United States v. Gharbi, 510 F.3d 550,

556 (5th Cir. 2007) (stating that the phrase "all property . . .

obtained directly or indirectly” is "expansive”). Section

§ 982(a)(6)(A)(ii)(I) is therefore expansive, reaching all

proceeds that a defendant obtained as a result of the crime.

Here, Prasad obtained the amounts he paid the H-1B

beneficiaries that he employed to work for the end-clients as

a result of his commission of visa fraud. Maremarks—acting

through Prasad—entered contracts to provide the H-1B

beneficiaries as workers for end-clients. The end-clients

paid Maremarks $1,193,440.87 in exchange for the work the

beneficiary employees performed under Maremarks' H-1B

petitions. But Prasad fraudulently obtained H-1B status for

these foreign workers; this status provided the only

authorization for them to work in the United States, and it

required that they work as Maremarks' employees. See

8 C.F.R. § 214.2(h)(1)(i), (h)(2)(i)(D)–(E). Consequently,

the entire $1,193,440.87 that the end-clients paid Maremarks

for work the H-1B beneficiaries performed was derived from

Prasad's unlawful acquisition of each beneficiary's H-1B

status through visa fraud.

Moreover, it was not happenstance that the end-clients

paid Maremarks for the H-1B beneficiaries' work, rather

than paying the beneficiaries directly. The H-1B

beneficiaries could only work in the United States as

26 UNITED STATES V. PRASAD

Maremarks' employees because Maremarks, through

Prasad, served as the petitioner-employer filing the petitions

seeking H-1B status on their behalf. See 8 C.F.R.

§ 214.2(h)(1)(i), (h)(2)(i)(D)–(E); United States v. Kalu, 791

F.3d 1194, 1198 (10th Cir. 2015). To maintain the H-1B

beneficiaries' authorization to work in the United States

under Maremarks' approved H-1B petitions, Maremarks had

to exercise the right to control the H-1B beneficiaries'

employment as their employer for the duration of the

employment term specified in the petition. 2010 USCIS

Memo, supra, at 3–4.

At the time Prasad committed his acts of visa fraud, a

workforce supplier, like Maremarks, had to pay the H-1B

beneficiary's wages to establish that it had the right to

control the H-1B beneficiary's employment. Thus,

obtaining the money from the end-clients as payment for the

services provided by Maremarks employees before paying

portions of it to those H-1B beneficiary employees was a

necessary part of Prasad's visa fraud scheme, and it

ultimately facilitated his ability to obtain money from his

commission of visa fraud. See Nanda, 867 F.3d at 526.

Thus, Prasad obtained the $1,193,440.87 as the result of his

criminal conduct.

We reject Prasad's argument that the portions he paid the

H-1B beneficiaries "derived from” their legitimate work, not

his commission of visa fraud, because it does not adequately

explain how these portions are not "proceeds obtained

directly or indirectly from” his visa fraud. 18 U.S.C.

§ 982(a)(6)(A)(ii)(I) (emphasis added). While Prasad's

argument is unclear, he could be arguing that the work the

beneficiaries performed was an additional link in the causal

chain demonstrating that he did not obtain those amounts

"directly” from his criminal activity. But

§ 982(a)(6)(A)(ii)(I) reaches beyond "proceeds obtained

UNITED STATES V. PRASAD 27

directly” or immediately from the commission of the crime

to "proceeds obtained,” even indirectly, from the crime.

Here, the beneficiary employees' fraudulently obtained

H-1B status authorized these employees to work for

Maremarks' end-clients and earn the $1,193,440.87 Prasad

obtained. We conclude that the money the end-clients paid

for the work the beneficiaries performed was "obtained

directly or indirectly from” Prasad's unlawful conduct. See

United States v. Warshak, 631 F.3d 266, 332–33 (6th Cir.

2010) (holding that 18 U.S.C. § 982(a)(2) forfeiture

provision reached "proceeds obtained” from money

generated through "legitimate” sales because they "resulted

'directly or indirectly'” from the criminal offense).

Consequently, the full $1,193,440.87 constitutes

"proceeds obtained . . . from the commission of” visa fraud.

18 U.S.C. § 982(a)(6)(A)(ii)(I).

We affirm the district court’s forfeiture order in the

amount of $1,193,440.87 because that amount constitutes

the “proceeds” Prasad “obtained directly or indirectly from”

his commission of visa fraud. See 18 U.S.C.

§ 982(a)(6)(A)(ii)(I). Accordingly, § 982(a)(6)(A)(ii)(I)

mandates forfeiture of these funds.



AFFIRMED