Ramani Pilla v. Eric Holder, Jr. , 458 F. App'x 518 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0134n.06
No. 09-4577 FILED
Feb 02, 2012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
RAMANI SRI PILLA, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW OF
) AN ORDER OF THE BOARD OF
ERIC H. HOLDER, JR., Attorney General, ) IMMIGRATION APPEALS
)
Respondents. )
)
)
Before: BOGGS and KETHLEDGE, Circuit Judges; and COLLIER, Chief District Judge.*
KETHLEDGE, Circuit Judge. Ramani Pilla, a native and citizen of India, petitions for
review of an order of the Board of Immigration Appeals finding her removable as an alien who has
committed an “aggravated felony,” as defined by 8 U.S.C. § 1227(a)(2)(A)(iii). We deny the
petition.
I.
Pilla was a legal permanent resident of the United States when she pled guilty to lying to the
FBI, in violation of 18 U.S.C. § 1001. The facts of the case have been recounted in detail by the
district court in Pilla’s related criminal proceedings. Suffice it to say that Pilla, then an assistant
professor at Case Western Reserve University, reported to the university and the FBI that she had
*
The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District
of Tennessee, sitting by designation.
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Pilla v. Holder
received four pieces of hate mail in her office. She later admitted to the FBI that she had written and
planted the hate mail herself.
Pilla was ultimately charged with making fraudulent and false statements in violation of 18
U.S.C. §§ 1001-02. The Information against Pilla stated in relevant part:
COUNT 1
...
3. From on or about December 19, 2006 to on or about February 28, 2007 . . .
Defendant perpetrated a hoax on [Case Western] and the FBI by knowingly and
willfully making the following material false statements to agents of the Federal
Bureau of Investigation (“FBI”) alleging that, because of her ethnic origin and her
gender, she had been the victim of a series of hate crimes.
(1) On or about January 23, 2007, Defendant reported to the FBI that on
August 28, 2006, November 16, 2006, and January 16, 2007, she had
received threatening hate mail in her office at [Case Western]. When asked
by an FBI agent who might have sent her the letters, she named three possible
suspects, all of whom were [Case Western] employees. She further stated
that the suspects were motivated in part by her race and gender.
(2) On or about February 24, 2007, Defendant reported to the FBI that earlier
in the day she had discovered a fourth threatening hate letter on the floor of
her office at [Case Western].
(3) On or about February 28, 2007, Defendant, when being interviewed by an
FBI agent about the above letters, stated that she believed the senders of the
hate mail described above were retaliating against her for (1) making a
complaint to a [Case Western] hotline alleging discrimination and (2) filing
a complaint with the Equal Employment Opportunity Commission against
[Case Western] alleging discrimination.
4. At the time Defendant made the statements described above, she knew they were
false in that she had prepared the threatening hate mail herself and had delivered the
letters to herself.
The Information further stated that the hoax described above cost the FBI $5,830 and cost
Case Western approximately $80,000 to investigate.
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Pilla v. Holder
Pilla did not enter into a written plea agreement. Instead, she pled guilty to an orally
modified version of Count 1 that substituted “February 24, 2007” for “December 19, 2006” in
Paragraph 3 and omitted Paragraph 3, Subparagraph (1). Thus, although Pilla did not object to the
government’s factual basis for the plea—which contained detailed information relating to all four
letters—she pled guilty only to the charges relating to the fourth letter. The district court sentenced
Pilla to six months’ incarceration and ordered restitution of about $66,000. In her sentencing
memorandum, Pilla conceded that her actions caused more than $10,000 but less than $30,000 in
losses.
In September 2008, Pilla was charged with being removable as an aggravated felon under 8
U.S.C. § 1227(a)(2)(A)(iii). That subsection provides that “[a]ny alien who is convicted of an
aggravated felony at any time after admission is deportable.” In her immigration proceedings, Pilla
argued that her offense did not constitute an aggravated felony. The immigration judge rejected the
argument because Pilla’s conviction “involve[d] fraud or deceit in which the loss to the victim or
victims exceed[ed] $10,000,” as required for an aggravated felony. See 8 U.S.C.
§ 1101(a)(43)(M)(i). The immigration judge therefore ordered Pilla removed to India. The Board
of Immigration Appeals agreed and dismissed Pilla’s appeal. Pilla then petitioned this court for
review. She has since been removed to India.
II.
Pilla argues that her conduct did not constitute an aggravated felony for immigration
purposes. We review this question of law de novo. See Patel v. Ashcroft, 401 F.3d 400, 407 (6th
Cir. 2005).
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Pilla v. Holder
Pilla pled guilty to violating 18 U.S.C. § 1001, which prohibits, in relevant part, “knowingly
and willfully . . . mak[ing] any materially false, fictitious, or fraudulent statement or representation”
in matters within the jurisdiction of the federal government. See id. § 1001(a)(2). To satisfy the
relevant definition of “aggravated felony,” Pilla’s conviction under § 1001 must be “an offense that
. . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U.S.C.
§ 1101(a)(43)(M)(i). Pilla argues that her conviction does not meet this definition because her
misstatements did not involve fraud and because she did not cause her victims a loss of more than
$10,000. We address each of her arguments in turn.
First, Pilla contends that she was convicted of making false, not fraudulent, statements to the
FBI. But the definition of “aggravated felony” includes offenses involving “fraud or deceit.”
Id. (emphasis added). “Deceit” is not defined in the Immigration and Nationality Act, so circuit
courts apply the term’s common meaning when interpreting § 1101(a)(43)(M)(i): “the act of
intentionally giving a false impression.” See Valansi v. Ashcroft, 278 F.3d 203, 209 (3d Cir. 2002)
(quoting Black’s Law Dictionary 413 (7th ed. 1999)); see also Patel v. Mukasey, 526 F.3d 800, 802
(5th Cir. 2008). Knowingly and willfully making a false statement to the FBI under 18 U.S.C.
§ 1001(a)(2) easily falls within this definition, so Pilla’s argument fails.
Next, Pilla argues that the “only possible victim” of her crime was the FBI, so the relevant
loss is that experienced by the FBI—$5,830. But “victim” likewise is not defined in § 1001; and the
common definitions of the term are much broader than Pilla admits. In tort law, for example, anyone
foreseeably harmed by negligent conduct is generally considered a victim. See generally Palsgraf
v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928). And in criminal law, defendants may be liable
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Pilla v. Holder
for deaths that occur during the commission of inherently dangerous felonies—regardless of whether
the victims were intended or anticipated—under the doctrine of felony murder. See generally Tison
v. Arizona, 481 U.S. 137 (1987).
We need not comprehensively define “victim” to decide this case. For the term surely
includes situations where the defendant actually intends to harm a person or entity. Here, Pilla
intended to harm Case Western, and moreover it was foreseeable that an investigation of her deceit
would cost Case Western substantial time and money. Cf. United States v. Hildebrandt, 961 F.2d
116, 119 (8th Cir. 1992) (holding that third parties were victims for sentencing purposes where the
defendant made false statements about the parties’ income to the IRS, triggering an investigation).
Case Western was a victim of Pilla’s deceit in any legal or moral sense of the term.
Since the FBI and Case Western are both victims, we may consider their combined losses in
determining whether Pilla’s offense caused a loss of more than $10,000. We evaluate “loss” under
§ 1101(a)(43)(M)(i) by looking to “the specific circumstances surrounding an offender’s commission
of a fraud and deceit crime on a specific occasion,” including “sentencing-related material” such as
restitution orders and sentencing stipulations. Nijhawan v. Holder, 129 S. Ct. 2294, 2302-03 (2009).
Here, the sentencing-related material includes a restitution order of more than $66,000 and a
sentencing memorandum in which Pilla admitted that “an appropriate estimate of the total loss
caused by the crime to which [she] has entered her guilty plea exceeds $10,000, but is less than
$30,000.” These documents establish by clear and convincing evidence that Pilla’s victims lost
more than $10,000. See id. at 2303 (finding defendant’s stipulation and sentencing court’s restitution
order established loss by clear and convincing evidence).
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Pilla contends, however, that we cannot consider Case Western’s losses because they were
not sufficiently related to the convicted offense of lying to the FBI. The amount of loss “must be tied
to the specific counts covered by the conviction.” Id. In the absence of a written plea agreement
specifying losses, the Supreme Court has suggested that a restitution order and sentencing stipulation
are adequately tied to the offense of conviction and sufficient to establish losses if there is no
conflicting evidence. Id. We have such an order and stipulation here, and Pilla does not present
conflicting evidence. Instead, she reiterates her belief that the FBI is the only victim of her crime,
so only FBI losses are adequately tied to the conviction. As discussed above, this argument is
meritless.
Pilla also argues that her trial counsel was ineffective for admitting that relevant losses
exceeded $10,000. She did not present this argument to the Board, however, so we lack jurisdiction
to review it. See Lin v. Holder, 565 F.3d 971, 978 (6th Cir. 2009).
The petition for review is denied.
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