Sometimes I don’t even recognize the Fourth Circuit anymore. They granted a coram nobis writ in a case based on bad immigration advice in United States v. Akinsade.
The Embezzlement at the Bank
Mr. Akinsade worked at a Chevy Chase bank in 1999. He was nineteen years old and was a lawful permanent resident in the United States – he had come here legally from Nigeria.
Mr. Akinsade cashed checks for friends in his neighborhood. He pocketed some of the money.
He then felt guilty and told his boss, who called the FBI. He cooperated with the FBI against his friends.
He was charged with embezzlement by a bank employee.
The Lawyer and the Plea
Mr. Akinsade really did not want to be deported. His lawyer worked out a plea for him, and told him that if he plead guilty, he couldn’t be deported.
His lawyer said that since he was only pleading guilty to one offense, he would be unable to be deported. Just like the rule that a husband and a wife can’t be arrested for the same crime, that’s not the law.
He went to court to plead guilty. The district court judge had the following exchange with him:
The Court: [P]eople who are found guilty of felonies, often lose their right to vote, certain professional licenses may be denied them, may not be able to serve on a jury. And I know felons can’t possess firearms.
Certain jobs may be denied you. If you are on parole or probation with another system, that can be affected. Or if you are not a citizen, you could be deported. All of these things could be triggered by being found guilty of a felony. Do you understand that?
Akinsade: Yes, Your Honor.
He was sentenced to one month of community confinement, three years of supervision, a Special Assessment of $100 and restitution of $8,000.
Mr. Akinsade Makes Good
As the Fourth Circuit said,
After serving his sentence, Akinsade attended the University of Maryland where he received a bachelor’s degree in computer science. He later earned a master’s degree from the university, graduating with a 3.9 GPA, and received a fellowship from the National Science Foundation. Akinsade then entered into a leadership program at General Electric Company and moved to upstate New York.
The United States Government Doesn’t Care If Mr. Akinsade Made Good
Nine years after his conviction, Mr. Akinsade was arrested and placed in immigration detention. He was detained for nine months, then charged as a removable alien.
He filed a coram nobis petition based on his lawyer’s Very Bad Advice.
A coram nobis petition is authorized under 28 U.S.C. § 1651. Basically, it lets a court set aside a conviction if the person seeking to set it aside is no longer locked up and is suffering an ill effect of the conviction.
Though, of course, the person still has to have a really good reason to set it aside. The Fourth Circuit explained that,
As a remedy of last resort, the writ of error coram nobis is granted only where an error is “of the most fundamental character” and there exists no other available remedy. United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988). The writ is narrowly limited to “‘extraordinary’ cases presenting circumstances compelling its use ‘to achieve justice.'” United States v. Denedo, 129 S. Ct. 2213, 2220 (2009) (quoting United States v. Morgan, 346 U.S. 502, 511 (1954)). Thus, the writ provides relief in cases where the error “rendered the proceeding itself irregular and invalid.” United States v.
Addonizio, 442 U.S. 178, 186 (1979) (internal quotation marks and citation omitted) (superseded by statute on other grounds). A petitioner seeking this relief must show that “(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character.” Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987).
The District Court Also Doesn’t Care That Mr. Akinsade Made Good
The government fought the petition every step, and the district court rejected the petition.
Mr. Akinsade argued that if his lawyer had advised him on what the law is, rather than on what he imagined the law to be, but was too lazy to look up or find out, he wouldn’t be getting deported.
The district court said that its questions during the plea colloquy were enough to mean that Mr. Arkinsale knew he could have been deported, regardless of the lawyer’s advice.
The Fourth Circuit disagreed,
in light of the equivocal nature of the admonishment, counsel’s affirmative misadvice that is clearly contrary to law, and the severity of the consequence itself.
Because the district court only told Mr. Arkinsale that he could be deported, but not that he would be, the Fourth Circuit held that the plea colloquy was not sufficiently definite as to override his prior lawyers faulty advice.
The Lawyer Also Didn’t Really Investigate the Facts
Finally, to win, Mr. Arkinsale had to prove that if it weren’t for his lawyer’s advice he would be in a different position.
Mr. Arkinsale’s deportation proceedings were under a provision that applies to folks who were involved in a fraud of more than $10,000. In his criminal case, his lawyer said that if he’d gone to trial, he could have argued that he was only involved in two checks that totaled $8,000, and would have disputed a third check that put him over the $10,000 threshold.
Indeed, his restitution amount was a mere $8,000.
The Fourth Circuit found that was good enough to show that if the lawyer’s advice hadn’t been wrong, things would have been different. The court of appeals granted the coram nobis.
While his lawyer’s bad advice did mean that Mr. Arkinsale spent months in prison when he shouldn’t have, at least he isn’t going to be deported.