United States v. Roger Nepal
Opinion
Following a plea agreement, Defendant Roger Nepal, who was born in Nepal but later became a naturalized U.S. citizen, pleaded guilty to and was convicted of a single count of violating
While the appeal was pending, the Supreme Court announced its decision in
Maslenjak v. United States
, 582 U.S. ----,
Both contentions lack merit. We affirm.
I
In 2015, a grand jury issued a three-count
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indictment against Nepal.
1
He was charged with conspiracy to commit fraud in connection with immigration documents, in violation of
The case went to trial in September 2016. After three days, Nepal agreed to plead guilty to Count Three, and the Government agreed to dismiss the other two counts. The parties prepared a plea agreement. In the factual resume accompanying that agreement, Nepal admitted that he lied by failing to list his son, Ashwin Dahal, on his N-400 application and that he lied during his naturalization interview by denying that he had any children. He further admitted that "the production of truthful information" about his son "would have led to the discovery of facts relevant to the Application for Naturalization and his statutory ineligibility due to lacking the good moral character during the statutory time period for naturalization." Specifically on that point, Nepal admitted that "it would have led to the discovery of the fact that he had not been properly and completely providing financial support for Ashwin Dahal." He admitted that this course of conduct violated Section 1425(a).
At the change of plea hearing, Nepal acknowledged that he understood the factual resume's contents and that he signed the factual resume. He did not object to the factual basis of his plea. The district court found that Nepal was competent and capable of entering into an informed plea, and that his plea was knowing and voluntary. The court accepted the plea agreement, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) ; convicted him of violating Section 1425(a) ; sentenced him to the agreed-upon term of 366 days' imprisonment; ordered him to pay $200,000 restitution; and, pursuant to
*208 II
"We review guilty pleas for compliance with Rule 11,"
United States v. Garcia-Paulin
,
To determine whether a factual basis for a plea exists, we must compare "(1) the conduct to which the defendant admits with (2) the elements of the offense charged in the indictment or information."
United States v. Marek
,
When the defendant does not object to the sufficiency of the factual basis of his plea before the district court-instead raising for the first time on appeal the question whether the undisputed factual basis is sufficient as a matter of law to sustain his plea (as Nepal does here)-our review is restricted to plain error.
United States v. Broussard
,
III
A
The Supreme Court decided
Maslenjak v. United States
, 582 U.S. ----,
Section 1425(a) provides that "[w]hoever knowingly procures or attempts to procure, contrary to law, the naturalization of any person" commits an offense.
The Government can satisfy that causal inquiry using one of two theories. The first theory is fairly straightforward: "[i]f the facts the defendant misrepresented are themselves disqualifying"-for example, if the defendant misrepresented her travel history to circumvent the requirement that an applicant be physically present in the United States for more than half of the five-year period preceding her application, or falsely denies being convicted of an aggravated felony to circumvent the good moral character requirement-then "there is an obvious causal link between the defendant's lie and her procurement of citizenship."
The Supreme Court characterizes the second theory as an "investigation-based
*210
theory," reasoning that "even if the true facts lying behind a false statement would not 'in and of themselves justify denial of citizenship,' they could have 'led to the discovery of other facts which would' do so."
But whichever the theory, if the available evidence indicates that the defendant actually was qualified for the citizenship he obtained, that "qualification for citizenship is a complete defense to a prosecution brought under § 1425(a)." Id. at 1929-30. In other words, despite the Government's success under either the first or second causal theories, if the applicant shows that he was qualified to become a U.S. citizen, notwithstanding the false statement, no conviction can obtain. Id. at 1931.
The false statement we concern ourselves with here is Nepal's statement that he had no children. Having children does not facially disqualify Nepal from citizenship,
see
United States v. Haroon
,
We look initially at whether Nepal's misrepresentations concealing his fatherhood are "sufficiently relevant to one or another naturalization criterion."
Id.
at 1929. They are. The Immigration and Nationality Act provides that "[n]o person ... shall be naturalized unless such applicant ... has been and still is a person of good moral character" during the statutorily prescribed period.
Having identified the relevant criterion, we proceed. To determine whether the Government would satisfy its burden under the investigatory theory's first prong,
Maslenjak
instructs us to ask whether a reasonable official, seeking only evidence concerning citizenship qualifications, would undertake further investigation were she to learn that an applicant had children. Considering
Turning to the second prong, though
Maslenjak
rejected application of a strict causal requirement that would "demand[ ] proof positive that a disqualifying fact would have been found," the Court nonetheless adopted a "demanding but still practical causal standard" under which the Government must offer sufficient proof to "establish that the investigation 'would predictably have disclosed' some legal disqualification."
We therefore conclude that, even post- Maslenjak , the indictment and factual resume provide a sufficient factual basis for Nepal's plea and for all statutory elements of Section 1425(a), the offense of conviction.
B
Alternatively, Nepal argues that he should be entitled to invoke the defense to a Section 1425(a) prosecution announced in
Maslenjak
.
9
The Supreme Court explained
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that because it has "never read a statute to strip citizenship from someone who met the legal criteria for acquiring it," the statute should not be used as "a tool for denaturalizing people who, the available evidence indicates, were actually qualified for the citizenship they obtained."
Maslenjak
,
Even if we assume that the district court's acceptance of the plea-without permitting Nepal the opportunity to assert the affirmative defense-was error, and that the error was plain, Nepal has not shown that error affected his substantial rights. To satisfy this third prong, a defendant "must 'show a reasonable probability that, but for the error,' the outcome of the proceeding would have been different."
Molina-Martinez v. United States
, 578 U.S. ----, ----,
Nepal argues that his substantial rights were affected because
Maslenjak
's establishment of the new defense made the acceptance of his guilty plea a structural error. "The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial."
Weaver v. Massachusetts
, 582 U.S. ----, ----,
The announcement of a new defense, though, does not fall into any of these categories, nor is the error in Nepal's case on the same level as the errors targeted in the Court's structural error jurisprudence. Indeed, announcement of a new defense is a far cry from deprivation of counsel, deprivation of the right to self-representation, or unlawful exclusion of
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grand jurors of the defendant's race. Furthermore, and perhaps more importantly, none of the Supreme Court's structural error cases are direct appeals from judgments of conviction within the federal system like this case; they are either appeals from state courts which had considered the error under their own rules or federal habeas challenges to state convictions.
See
Johnson v. United States
,
Unfortunately for Nepal, he puts nearly all his substantial-rights eggs in the structural-error basket. The only other possible argument we could generously glean from his briefing-a passing analogy to our decision in
United States v. Knowles
,
There was a direct correlation between the decision in
Lopez
and the potential change in outcome in
Knowles
: the statute under which Knowles was convicted was later declared unconstitutional. But there is no similar correlation between the decision in
Maslenjak
and the potential change in outcome here. The mere creation of a defense that a defendant may or may not be able to satisfy under certain circumstances is not comparable to a declaration that a statute of conviction is unconstitutional. Beyond that, we are unconvinced that the outcome in Nepal's case would have been any different because, though
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the affirmative defense did not exist in this Circuit prior to
Maslenjak
, the critical disqualifying regulation,
We conclude that Nepal has not shown a reasonable probability, based on the evidence and testimony in the record, that had he known of the defense, he would not have pleaded guilty.
See
London
,
* * *
The Defendant's conviction and sentence are AFFIRMED .
Some charges were brought against two other defendants, as well, detailing a scheme to fraudulently obtain citizenship on behalf of others. Those defendants entered guilty pleas prior to trial and are irrelevant to this appeal.
"When a person shall be convicted under section 1425 of Title 18 of knowingly procuring naturalization in violation of law, the court in which such conviction is had shall thereupon revoke, set aside, and declare void the final order admitting such person to citizenship, and shall declare the certificate of naturalization of such person to be canceled."
Nepal originally raised as a threshold issue the question whether we should enforce the appeal waiver contained in his plea agreement to bar his appeal. But the Government concedes, correctly, that the waiver does not bar Nepal from challenging the factual basis of his plea.
See
United States v. Baymon
,
Nepal contends that our review should be
de novo
. But the principal case he cites to support that contention,
United States v. Humphrey
,
Our sole precedential Section 1425(a) decision,
United States v. Colwell
,
See
United States v. Munyenyezi
,
We are cognizant that we are looking backward at a forward-looking analysis. We must obscure the hindsight granted to us by Nepal's plea in order to put ourselves in the position of a reasonable immigration official learning of this information for the first time. This exercise prevents us from reaching the results-based conclusion that because officials did discover a disqualification then the Government has necessarily proven that a truthful disclosure (1) was relevant to a naturalization criterion, (2) would have prompted a reasonable official to investigate, and (3) would predictably have led to disclosure of a disqualification.
When an applicant's good moral character is in question, the statutorily prescribed period is practically boundless.
See
The Government contends that, despite its concession that Nepal's appeal waiver did not bar him from challenging the factual basis of his plea, see supra note 3, it should still be able to enforce the waiver against Nepal's assertion of entitlement to the affirmative defense. We decline to address the issue whether a waiver bars our consideration of an appeal brought under these circumstances. Instead, we assume, without deciding, that it does not.
That decision would later be affirmed by the Supreme Court after
Knowles
was decided.
See
United States v. Lopez
,
See, e.g.
,
Hodel v. Va. Surface Min. & Reclamation Ass'n
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Roger NEPAL, Defendant-Appellant.
- Cited By
- 14 cases
- Status
- Published