Ramon Williams v. Attorney General United States
Opinion
OPINION
In this consolidated proceeding, Ramon Williams asks us to consider whether a prior conviction under Georgia’s forgery statute,
I.
Williams, a citizen of Guyana and. a lawful permanent resident of the United States, immigrated to this country in 1970, when he was thirteen months old. He has no family in Guyana; his parents, grandparents, siblings, and children are all United States citizens. In 2006, he pleaded guilty in Georgia state court to five counts of first degree forgery pursuant to section 16-9-1 (a) of the Georgia Code. He initially received a sentence of two years in prison, which later was reduced to one year.
In 2013, Williams received a notice to appear charging him as removable as a result of having been convicted of an aggravated felony.
See
Williams timely filed a petition for review, and also sought reconsideration before the BIA in light of the Supreme Court’s decision in
Mathis v. United States,
— U.S. -,
The petitions have been consolidated. We have jurisdiction over them pursuant to
II.
The issue of whether Williams’s conviction under the Georgia forgery statute qualifies as an aggravated felony is a question of law over which we have jurisdiction.
Id,
§ 1252(a)(2)(D), We conduct a
de novo
review of the BIA’s determination;
Denis v. Atty. Gen,,
III.
The INA provides for the deportation of an alien “who is convicted of an aggravated felony.”
A.
At the time of Williams’s conviction, Georgia’s forgery statute provided:
A person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.
Under the categorical approach, we look to the substance of the statute of conviction to determine whether it categorically fits within the “generic” federal definition of the corresponding aggravated felony, without considering the facts of the particular case.
Id.; see also Mathis,
Before we may conduct this comparison, we must consider what constitutes the “generic federal offense” of forgery.
See
Here, however, the definition of the term “forgery” is not enough, on its own, to answer the question of whether the crime defined in section 16-9-1 of the Georgia Code is “an offense
relating to
forgery” within the meaning of the INA. Accordingly, in comparing the generic federal offense to the Georgia statute, we employ a “looser categorical approach.”
Flores v. Atty. Gen.,
B.
Williams’s primary claim is that the Georgia forgery statute is broader than the federal common law definition of forgery because it punishes the possession of certain “genuine” docqments, namely, documents that “purport[ ] to have been made ... by authority of one who did not give such authority.”
As a threshold matter, the Government argues that, although false agency endorsement may technically fall within the Georgia' statute’s language, Georgia does not actually prosecute false agency endorsement as forgery. Accordingly, the Government claims, Williams has established no more than a “theoretical possibility” that Georgia would apply its statute to conduct falling outside the federal definition of forgery. See Singh, 839 F.3d at 278.
Williams responds that there is Georgia case law demonstrating that the State actually prosecutes false agency endorsement as forgery, citing
Warren v. State,
In a supplemental appendix, -Williams provided a copy of the
Warren
indictment as further support for his position that the Georgia forgery statute is employed to prosecute false agency endorsement.
See
S.A. 1-18. The indictment indicates that the defendant was charged with first degree forgery for signing her own name to a check, "purportedly on behalf of [the medical practice] as an authorized signatory of [the medical practice], but having not been written and signed with the authority of [the medical practice and the doctor], and did utter said check.” S.A. 2, Count 5. In other words, the
Warren
defendant’s signature was her own but was made without authorization of. the principal, and therefore was a false agency endorsement. Inasmuch as both the
Warren
indictment and the opinion.of the Court of Appeals of Georgia support Williams’ view, and the Government has not offered anything to rebut that evidence, we .conclude that Williams has established a sufficiently “realistic probability” that Georgia would apply its forgery statute to false agency endorsement.
See Singh,
839 F.3d at 278 (quoting
Moncrieffe,
Next, Williams contends that, in contrast to the Georgia statute, the federal common law definition of forgery does not extend to false agency endorsement, making the Georgia statute broader than the federal version of the crime. But whatever the scope of forgery under federal law, Congress, expressly extended its coverage to offenses “relating to” forgery. We must therefore resolve the question of whether the Georgia statute’s inclusion of false agency endorsement extends so far beyond the traditional common law definition that it criminalizes conduct that is unrelated to forgery. Employing the looser categorical approach, we conclude it does not.
See Flores,
Williams argues that false agency endorsements do not relate to forgery because they do not involve a “false instrument,” and a false instrument, he contends," is at the core of -the federal common law crime.
See
Pet. Br. at 29. Although a false instrument is an integral aspect of common law forgery, we ■cannot agree with Williams’s argument that the falsity of the instrument must appear on - the face of the document in order for an offense to “relate to” forgery. Even if facial falsity is viewed as an essential element of common law forgery that is missing from the provision of Georgia’s statute prohibiting false agency endorsement, the omission of an essential element simply does not resolve whether the conduct is “related” for purposes of the INA.
See Bobb,
In conducting the necessary survey of the interrelationship between common law forgery and false agency endorsement, we are satisfied that, although their elements do not line up with precision, the crimes share a logical connection.
See Flores,
First, we consider the most straightforward scenario: if the defendant in
Warren
had signed her employer’s name rather than her own name on the business checks, then we may uncontroversially conclude that her act would fall within the quintessential common law definition of forgery. The forged instrument would, on its face, reflect the. sort of falsity in execution that
*107
Williams proposes is integral to the definition of the common law crime—the use of a false name. Next, we consider a slightly different but related scenario, in which the defendant signs her true name to the employer’s checks under the handwritten phrase “by authority of’ her employer-authority that was never granted. Much like the signing of a false name, the falsity of the authorization would appear on the face of the document, and we therefore presume that Williams would agree that the defendant’s hypothetical act would be related to forgery.
3
Finally, consider the conduct for which the
Warren
defendant actually was prosecuted: she signed her true name to a check, implicitly under the authority of her employer, but without writing the phrase “by authority of.” By Williams’s logic, this third example would not be a “false instrument” because there is no falsity on the document’s face, and the defendant’s act therefore would no longer relate to forgery. But, in our view, each of these incrementally different acts is logically related to the same underlying core, conduct.
See Flores,
The Government also points us to the Model Penal Code and a number of state statutes employing the Model Penal Code’s provisions as a source for a “broad minority definition”. of forgery that extends to false agency endorsement.
See
Model Penal -Code § 224.1(l)(b) (Am. Law Inst. 1985) (“A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor ... makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act .... ”);
see also
Iowa Code § 715A.2(l)(b) (1996); ■ N.J. Stat. Ann. § 2C:21-l(a)(2) (West 2002); 18 Pa- Cons. Stat. § 4101(a)(2) (2003);
To our knowledge, only one other Court of Appeals has published a decision interpreting § 1101(a)(43)(R) in the context of a state statute that, like the Georgia statute, defines forgery in a manner that encompasses false' agency endorsement. In
Vizearra-Ayala v. Mukasey,
Up to this point, we concur with the Ninth Circuit’s analysis. But, we diverge from its ultimate conclusion: that the California statute’s application to “genuine instrumentes],” including false agency endorsements, means that it extends to conduct that does not “relate to” forgery.
Another important distinction is the degree to which the “relating to” language of § 1101(a)(43)(R) affects the analysis. While in this Circuit it triggers the application of the “looser categorical approach” and its “logical or causal connection” test,
Flores,
C.
Williams presents a secondary argument as to the purported overbreadth of the Georgia forgery statute, contending that the Georgia statute is missing a necessary element of federal common law forgery: a requirement that the forged instrument be “capable of effecting a fraud” or have “legal efficacy.” Relatedly, Williams argues that the absence of the “legal efficacy” element extends Georgia’s statute beyond the commercial realm into merely “personal” acts and such personal acts do not relate to forgery for purposes of the INA. 4
The Government retorts that Williams waived this argument because he did not present it to the BIA. Williams disagrees, *109 pointing out that he argued before the BIA that the Georgia statute “lacked a prejudice requirement,” an argument that the BIA considered and rejected. See J.A. 43-44. While acknowledging that he used different terminology, Williams contends that his argument to the BIA—that the Georgia statute lacks an element of “prejudice [to] another”—is sufficiently similar to his argument to this Court—that the Georgia statute lacks an element of being “capable of prejudicing another’s rights.” Reply Br. at 19. He argues that precision is not required and that his prejudice argument below was sufficient to put the BIA on notice of the issue.
We accept that the claim presented on appeal is sufficiently similar to the argument presented to the BIA to satisfy the exhaustion requirement. Nonetheless, we are not persuaded that it has merit. In
Bobb,
we observed that, “[a]t their core, all common law forgery offenses contain as an element an intent to deceive.”
To the extent Williams contends that the common law definition goes a step further by looking to the potential effect of the forged instrument on its victim rather than the intent of the forger alone, such a minute distinction does not carry the day. Even apart from our skepticism about this claim, in
Bobb,
we observed that a state criminal statute can relate to forgery even where it “encompasses conduct beyond the traditional definition of forgery, and includes criminal conduct that is causally connected to forgery, but may lack as an essential element an intent to defraud or deceive.”
Moreover, there is no basis for concluding that the Georgia statute lacks this element and therefore extends to conduct that is purely “personal” or “non-commercial” in nature. Notably, Williams offers no evidence to support his contention that there is a “personal” version of forgery that would be subject to prosecution in Georgia and yet be exempted from the federal common law conception of fraud. We see no “realistic probability” that the State would apply its forgery statute in this manner.
Singh,
839 F.3d at 278 (quoting
Moncrieffe,
IV.
For the foregoing reasons, these consolidated petitions for review will be denied. 5
. Williams also sought asylum, withholding of removal, and relief under the Convention Against Torture. The IJ denied these forms of relief and the Board of Immigration Appeals ("BIA”) affirmed. Williams does not challenge the denial of those claims in his petitions before this Court.
. While this is the general rule, certain dis-junctively-worded statutes that set forth a number of separate crimes warrant a departure from the categorical approach known as the "modified categorical approach.”
Mathis v. United
States, - U.S. -,
. We note that Williams has never contended that use of a false name is the only manner in which a document can qualify-as a "false instrument” for puiposes of common law forgery. At oral argument, Williams contended that, for instance, mimicking a company’s logo to create a false check' would qualify as the false making of a document and. therefore is a form of forgery. ■ ,
. Upon being questioned about the contours of this claim at oral argument, Williams all but abandoned it, candidly acknowledging that this was not his “primary argument” and that the false agency endorsement claim presented a "much closer question.” Oral Argument at 5:49-8:58, Williams v. Atty. Gen., Nos. 16-3816, 17-1705 (3d Cir. Nov. 8, 2017). Williams's response was sufficiently equivocal to leave us with some doubt as to whether this argument has been waived, so we proceed to address its merits.
. In his brief, Williams offers a final argument, contending that he should not be subject to removal because removal is a punishment disproportionate to his crime and should be set aside as unconstitutional under the Fifth or Eighth Amendments of the United States Constitution. He stated, however, that he offered the argument solely for the purpose of preserving the issue for future review, acknowledging that we are bound by our prece
*110
dent holding that removal is not a punishment and is therefore not subject to challenge as a disproportionate punishment under the Fifth or Eighth Amendment.
Sunday v. Atty. Gen.,
Reference
- Full Case Name
- Ramon Andrew WILLIAMS A/K/A Andrew Denton Williamson A/K/A Ramon Williams, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent
- Cited By
- 6 cases
- Status
- Published