UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10454 Plaintiff-Appellee, D.C. No. v. 3:18-cr-00368- CRB-1 ABHIJIT PRASAD, Defendant-Appellant. OPINION

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted February 9, 2021 San Francisco, California

Filed November 8, 2021

Before: Marsha S. Berzon, Morgan Christen, and Bridget S. Bade, Circuit Judges.

Opinion by Judge Bade; Concurrence by Judge Christen 2 UNITED STATES V. PRASAD

SUMMARY *

Criminal

The panel affirmed the district court’s forfeiture order under 18 U.S.C. § 982(a)(6)(A)(ii) in the amount of $1,193,440.87, in a case in which a jury convicted Abhijit Prasad of twenty-one counts of visa fraud, in violation of 18 U.S.C. § 1546(a), and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).

Prasad owned and operated Maremarks, a company through which Prasad filed petitions seeking H-1B status for nonimmigrant, foreign workers in specialty occupations to come to the United States as Maremarks’ employees performing work for Maremarks’ end-clients. Engaging in a scheme that created a “bench” of unemployed H-1B beneficiaries, Prasad violated § 1546(a) 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.

Challenging the district court’s interpretation of 18 U.S.C. § 982(a)(6)(A)(ii)(I)(7), Prasad argued that the district court erred in calculating the amount he was required to forfeit for his commission of visa fraud.

Prasad contended that he did not “obtain” the entire $1,193,440.87, as that term is used in § 982(a)(6)(A)(ii)(I), because he eventually paid portions of the money to the H- 1B beneficiaries. The panel rejected this contention because * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. PRASAD 3 Prasad possessed the full $1,193,440.87 paid by the end- clients and had control over the money before he paid a percentage of it to employees.

Prasad argued that even if he “obtained” the $1,193,440.87, the “proceeds” are limited to his profit, which excludes the amount he paid to the H-1B beneficiaries for their work for end-clients. The panel rejected this argument. Because the term “proceeds” in § 982(a)(6)(A)(ii)(I)(7) is ambiguous, the panel looked to other sources to determine its meaning. Considering the term “proceeds” in the context of the forfeiture statute, the statute’s punitive purpose, and this court’s prior construction of virtually identical criminal forfeiture provisions, the panel concluded that the term “proceeds” extends to receipts and is not limited to profit.

Prasad argued 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. Prasad appeared to argue 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. The panel rejected this argument because it does not adequately explain how these portions are not proceeds obtained “directly or indirectly” from his visa fraud, as provided in § 982(a)(6)(A)(ii