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Collateral Issues

Collateral consequences of federal criminal convictions to white collar defendants are of paramount concern because of the possibility that the individual will be barred from working in the same or similar fields in the future. For a fine state by state compilation of collateral consequences go to the National Inventory of Collateral Consequences here. This is a limited review of some common consequences of criminal convictions.

1.     Immigration Issues

Immigration issues must be considered in every criminal case where the accused is not a United States citizen (e.g. Legal Permanent Residents, lawful non-immigrants, refugees, asylees, temporary protected status, undocumented, and out of status).  Separate courts, laws, and standards apply in immigration proceedings as compared to criminal proceedings.  As such, persons charged with immigration crimes should consult with an immigration attorney to fully evaluate the issues and appear in immigration courts.  However, immigration consequences can be devastating, particularly for permanent residents and others with a long history of residing in the U.S.   This section provides a very abbreviated summary of immigration issues concerning white collar defense.

Deportability refers to losing any lawful status already possessed by the accused.  See  8 U.S.C. § 1227(a).  Inadmissibility refers to a barrier to acquiring new lawful status or admission.  8 U.S.C. § 1182(a)(2).   A general list of deportable crimes include: crimes involving moral turpitude, controlled substance offenses, firearms offences, domestic violence offenses, and aggravated felonies.  Inadmissibility crimes include: crimes involving moral turpitude, controlled substance offenses, prostitution offenses, and conviction of multiple offenses.

The primary immigration concerns in white collar cases are aggravated felonies. 8 U.S.C. § 1101(a)(43).  Conviction of an aggravated felony will almost certainly result in deportation, will lead a permanent bar to legally returning, and will bar most forms of relief available.  The general crimes that constitute aggravated felonies in the white collar context include: money laundering or monetary transactions greater than $10,000.00 derived from specified crimes (§ 1101(a)(43)(D)); theft offenses with a term of imprisonment of at least one year (§ 1101(a)(43)(G)); racketeering offenses (§ 1101(a)(43)(J)); crimes relating to national security and classified information (§ 1101(a)(43)(L)); tax-related crimes with a loss of revenue greater than $10,000.00, or fraud or deceit- related crimes with a loss greater than $10,000.00 (§ 1101(a)(43)(M)); commercial bribery, forgery, or trafficking in vehicles with altered VIN numbers with a term of imprisonment greater than one year (§ 1101(a)(43)(R)); or obstruction of justice, perjury or subornation of perjury, bribery of a witness where the term of imprisonment is at least one year (§ 1101(a)(43)(S)).

Crimes involving moral turpitude (“CIMT”) also play a significant role in white collar cases where the accused is not a U.S. citizen.  See Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008).  A single conviction of a CIMT is a deportable offense if committed within five years of admission into the U.S. and received a potential sentence of one year or more, and multiple CIMT are deportable if the do not arise out of a single scheme.  8 U.S.C. § 1227(a)(2)(A).  In the context of white collar defense, a CIMT traditionally includes the intent to commit fraud or the intent to commit theft with the intent to permanently deprive the owner of the property. See United States ex rel. Sollazzo v. Esperdy, 285 F.2d 341 (2d Cir. 1961), cert. denied, 366 U.S. 905 (1961) (bribery); Winestock v. INS, 576 F.2d 234 (9th Cir. 1978) (element of intent to defraud); In re Maxim Dolgosheev, 2010 Immig. Rptr. LEXIS 4367 (Aug. 17, 2010) (copyright infringement and trademark counterfeiting); United States ex rel. Robinson v. Day, 51 F.2d 1022 (2d Cir. 1931) (forgery); United States ex rel. Medich v. Burmaster, 24 F.2d 57 (8th Cir. 1928) (concealing bankruptcy assets); McNaughton v. INS, 612 F.2d 457 (9th Cir. 1980) (conspiracy to alter stock prices by deceit or fraud); Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002) (misprision of felony); Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. 2004) (welfare fraud); Kharana v. Gonzales, 487 F.3d 1280 (9th Cir. 2007) (theft by false pretenses); Sohaib Bin Lateef v. Dep’t of Homeland Sec., 592 F.3d 926 (8th Cir. 2010) (false statement under oath); Tijani v. Holder, 628 F.3d 1071 (9th Cir. 2010) (credit card fraud); United States ex rel. Berlandi v. Reimer, 30 F.Supp. 767 (D.C. NY 1939) (intent to defraud government); In re Alberto Jose Rivas-Marin, 2010 Immig. Rptr. LEXIS 3215 (Mar. 30, 2010) (mail fraud); United States ex rel. Karpay v. Uhl, 70 F.2d 792 (2d Cir. 1934), cert denied, 293 U.S. 573 (1934) (perjury); Costello v. INS, 311 F.2d 343 (2d Cir. 1962), rev’d on other grounds, 376 U.S. 120 (1964) (tax evasion and filing fraudulent return).

2.     Loss of Right to Hold Federal Office 

Persons convicted of bribing a public official or accepting bribes may be disqualified from federal office, or barred for a specified period of time.  See 18 U.S.C. § 201(b)(4) (“and may be disqualified from holding any office of honor, trust, or profit under the United States”).   Removal from federal office is mandated for convictions under 18 U.S.C. § 1901 (collecting/disbursing officer trading in public property); 18 U.S.C. § 1905 (disclosure of confidential information regarding trade secrets or financial disclosures of persons and businesses); 18 U.S.C. § 1907 (disclosure of information by farm credit examiner); 18 U.S.C. § 1912 (unauthorized fees for inspection of vessels); 18 U.S.C. § 1913 (federal employee using federal money to lobby Congress); 18 U.S.C. § 2071 (records custodian concealing/removing/falsifying public documents); 26 U.S.C. § 2713(a)(1), (b) & §2713A (employee of U.S. unlawfully disclosing tax return information to unauthorized persons or unauthorized inspection of tax return); and 26 U.S.C. § 7214(a) (employee of U.S. working with revenue laws that commits extortion, bribery, or conspiracy to defraud the U.S., or other enumerated offenses).

3.     Loss of Eligibility for Professional Licensure; Federal Law Enforcement Officers

Some convictions specifically indicate that revocation or ineligibility for licensure.  See, e.g., 19 U.S.C. § 1641(d)(1)(B) (customs broker’s license); 22 U.S.C. § 2778(g)(4); 49 U.S.C. § 31310 (commercial driver’s license); 50 U.S.C. App. § 2410(h)(1) (export license).  Physicians that use a professional license to facilitate a federal drug offense may forfeit their license.  21 U.S.C. § 853; United States v. Dicter, 198 F.3d 1284 (11th Cir. 1999), reh. en banc, denied, 212 F.3d 602 (11th Cir. 2000), cert. denied, 531 U.S. 828 (2000) (physician sold prescriptions to patient and later submitted fraudulent medical records in response to subpoena duces tecum).  Forfeiture proceedings utilize a preponderance of evidence standard.  United States v. Hasson, 333 F.3d 1264, 1277 (11th Cir. 2003), cert. denied, 543 U.S. 1173 (2005).  Federal drug convictions may render a defendant ineligible to receive grants and loans.  20 U.S.C. § 1091(r).  Moreover, federal benefits can be denied to drug possessors and traffickers.  U.S.S.G. § 5F1.6, cmt. at n. 1 (“any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States”).

Professionals in the banking, commodities, and securities professions face employment restrictions in these fields following convictions for dishonesty, breach of trust, or money laundering.  See 12 U.S.C. §§ 1818(e), (g)(1)(C); 1829(a)(1)(B).  Registration may be refused for persons involved with commodities following convictions for related felonies, embezzlement, false statements, fraud, theft, bribery, tax offenses, and other similar conduct.  7 U.S.C. § 12a.  Similarly, the SEC can suspend or restrict the registration of investment advisors.  15 U.S.C. §§78o(b), 80b-3.  Additionally, 21 U.S.C. § 335a governs debarment from working in the drug industry for certain convictions.

Federal law enforcement officers convicted of felonies must be removed from office without exception.  5 U.S.C. § 7371.  Federal law enforcement officer is defined in 5 U.S.C. § 8331(20).

4.     Debarment from Government Contracting and Programs

Debarment from government contracting can result from a variety of offenses relating to a contract with the Department of Defense, Department of Housing and Urban Development or related contractor or consultant.  10 U.S.C. § 2408(a); 24 C.F.R. § 24.305; 48 C.F.R. Pt. 9, subpt. 9.4.  Similarly, participation in federal health care programs may be subject to debarment.  42 U.S.C. § 1320a.

5.     Ineligibility for Armed Forces Service and Military Benefits

Typically, a felony conviction renders a person ineligible to serve in the Armed Forces.  10 U.S.C. § 504.  However, the “Secretary concerned” can grant exceptions to this rule in “meritorious cases”.  Id.  Some misdemeanor convictions also bar enlistment in the armed forces, including domestic violence convictions, as an internal policy developed by the Department of Defense to the Lautenberg Amendment of the Gun Control Act of 1968.[2]  Military pensions to veterans are suspended during periods of incarceration, although the pension payments can be made to qualifying family members during this time.  38 U.S.C. § 1505.  Benefits may be forfeited by the armed services member or veteran if false claims for benefits are made.  38 U.S.C. § 6103.

6.     Conditions of Supervision

The U.S. Sentencing Guidelines § 5F1.5(a)(1), 18 U.S.C. §§ 3563(b)(5), and 3583(d) list occupational restrictions as a condition of supervision when a “reasonably direct relationship exists” between the conduct of conviction and the occupation.   These provisions are not meant to serve as punishment, and should be limited to the minimum term reasonably necessary to protect the public.  S. Rep. No. 225, 98th Cong., 1st Sess. 96-97.

© 2014 Knut S. Johnson & Emerson Wheat.  May not be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law.

[1] For a more thorough analysis of collateral consequences, see U.S. Department of Justice, Federal Statutes Imposing Collateral Consequences Upon Convictionavailable at: https://www.justice.gov/pardon/collateral_consequences.pdf (last visited Dec. 26, 2014); Internal Exile: Collateral Consequences of Convictions in Federal Law and Regulations, American Bar Association Commission on Effective Criminal Sanctions and the Public Defender Service for the District of Columbia (Jan. 2009), link available at: (last visited Dec. 26, 2014).

[2]See Veronica Rose, Military Service and Misdemeanor Convictions, OLR Research Report (July 7, 2005), link available at: https://www.cga.ct.gov/2005/rpt/2005-R-0556.htm (last visited Dec. 16, 2014).

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