Opinion
CASE NO. 20-62392-CIV-ALTONAGA
2021-04-15
UNITED STATES of America, Plaintiff, v. Christian COLOMA, Defendant.
Troy D. Liggett, U.S. Department of Justice, Steven R. Petri, United States Attorney's Office, Fort Lauderdale, FL, for Plaintiff. Paul Domenic Petruzzi, Miami, FL, for Defendant.
Troy D. Liggett, U.S. Department of Justice, Steven R. Petri, United States Attorney's Office, Fort Lauderdale, FL, for Plaintiff.
Paul Domenic Petruzzi, Miami, FL, for Defendant.
ORDER
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on Plaintiff, United States of America's Motion for Judgment on the Pleadings [ECF No. 17], filed on March 23, 2021. Defendant, Christian Coloma, filed a Response [ECF No. 23]. The Court has carefully considered the Complaint to Revoke Naturalization [ECF No. 1] and supporting exhibits (see [ECF Nos. 1-3–1-9]), the parties’ written submissions, the record, and applicable law. For the following reasons, the Motion is granted.
Background . This action is based on Defendant's criminal scheme to defraud Medicare before he became a naturalized citizen, but for which he was not convicted until after he procured citizenship. (See Compl. 1–2; see also generally Mot.). Defendant, originally from Chile, became a naturalized citizen of the United States of America on May 29, 2008. (See Compl. ¶ 28; id. , Ex. E [ECF No. 1-7] 2). Presently, the Government seeks to revoke Defendant's naturalized citizenship under 8 U.S.C. section 1451(a). (See generally Compl.).
The Court relies on the pagination generated by the electronic CM/ECF database, which appears in the headers of all court filings.
Indictment and federal conviction. On October 2, 2012, a grand jury returned an Indictment charging Defendant with one count of conspiracy to defraud the United States, in violation of 18 U.S.C. section 371 (Count 9); and five counts of payment of kickbacks in connection with a federal health-care benefit program, in violation of 42 U.S.C. section 1320a-7b(b)(2)(A) (Counts 10–14). (See Compl., Ex. B [ECF No. 1-4] 15–20; Compl. ¶ 8). The Indictment charged that "from at least April 2003 until September 2012, Defendant did knowingly and willfully conspire and agree with his co-conspirators to defraud the United States by knowingly and willfully soliciting and receiving kickbacks and bribes to induce referrals for services that would be paid for by Medicare[;]" and that "on or about February 5, March 4, March 25, April 22, and May 20, 2008, Defendant did knowingly and willfully offer and pay kickbacks and bribes in the form of checks to induce individuals to refer patients for services rendered under Medicare." (Compl. ¶¶ 9–10 (alteration added); see also Ex. B 15, 19–20; Answer to Compl. [ECF No. 16] ¶¶ 9–10).
On June 28, 2013, a jury returned a guilty verdict as to all six counts of the Indictment against Defendant. (See Compl. ¶ 11; id. , Ex. C [ECF No. 1-5]; Answer ¶ 11). The court entered judgment against Defendant on the guilty jury verdict, sentenced him to 144 months’ imprisonment and three years of supervised release, and ordered him to pay $20,141,344.00 in restitution. (See Compl. ¶ 12; id. , Ex. D [ECF No. 1-6] 1–5; Answer ¶ 12).
Naturalization. On April 16, 2007, Defendant, before his arrest, signed his Form N-400, Application for Naturalization, under penalty of perjury. (See Compl. ¶ 16; Answer ¶ 16). In his application, Defendant checked "No" in response to part 10, question 15, which asked: "Have you ever committed a crime or offense for which you were not arrested?" (Compl. ¶ 14 (original emphasis; quotation marks omitted); see also Answer ¶ 14). On April 25, 2007, Defendant filed his naturalization application with U.S. Citizenship and Immigration Services ("USCIS"). (See Compl. ¶ 14; Answer ¶ 14).
On April 3, 2008, Defendant was interviewed by the USCIS to determine his eligibility for naturalization. (See Compl. ¶ 17; Answer ¶ 17). Defendant was placed under oath at the beginning of the interview. (See Compl. ¶ 18; Answer ¶ 18). When asked about part 10, question 15 — "whether he had ever committed a crime or offense for which he was not arrested" — Defendant "verbally confirmed ... that he had never committed a crime or offense for which he was not arrested." (Compl. ¶¶ 19–20 (alteration added); see also Answer ¶¶ 19–20). Defendant signed his application under penalty of perjury at the conclusion of the interview. (See Compl. ¶ 22; Answer ¶ 22). The USCIS approved Defendant's application based on the sworn responses in his application and his testimony at the interview. (See Compl. ¶ 24; Answer ¶ 24).
On May 29, 2008, Defendant appeared at the Miami Beach Convention Center for his naturalization ceremony. (See generally Compl., Ex. F [ECF No. 1-8] 1; Compl. ¶ 25; Answer ¶ 25). Defendant presented his completed Form N–445, Notice of Naturalization Oath Ceremony, in which he answered "No" to question three: "AFTER the date you were first interviewed on your Application for Naturalization[ :] ... [h]ave you knowingly committed any crime or offense, for which you have not been arrested?" (Ex. F 2 (alterations added; original emphasis and capitalization); see also Compl. ¶¶ 25–27; Answer ¶¶ 25–27). Thereafter, Defendant was administered the oath of allegiance and was naturalized. (See Compl. ¶ 28; Answer ¶ 28).
The Complaint . On November 23, 2020, the Government commenced this action against Defendant, seeking to revoke his naturalization. (See generally Compl.). The Complaint contains four counts: (I) illegal procurement of naturalization: lack of good moral character (crimes involving moral turpitude); (II) illegal procurement of naturalization: lack of good moral character (unlawful acts); (III) illegal procurement of naturalization: lack of good moral character (false testimony); and (IV) procurement of U.S. citizenship by concealment of a material fact or willful misrepresentation. (See generally id. ).
The Motion . The Government moves for judgment on the pleadings on Counts I and II, insisting "[t]he Court ... revoke Defendant's naturalization because he was not qualified for naturalization and illegally procured his U.S. citizenship." (Mot. 2 (alterations added)). More specifically, the Government contends that because Defendant committed criminal acts — namely "conspiracy to defraud the United States[ ] and for the payment of kickbacks" — "during the statutory period in which he was required to establish the good moral character to naturalize[,]" Defendant's procurement of naturalization was illegal and must be revoked under 8 U.S.C. section 1451(a). (Id. 5–6, 1 (alterations added)).
Standard . Under Federal Rule of Civil Procedure 12(c), "[a]fter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." Id. (alteration added). "Judgment on the pleadings is proper when no issues of material fact exist, and the moving party is entitled to judgment as a matter of law based on the substance of the pleadings and any judicially noticed facts." Interline Brands, Inc. v. Chartis Specialty Ins. Co. , 749 F.3d 962, 965 (11th Cir. 2014) (quotation marks and citation omitted). In ruling on the motion, "[a]ll facts alleged in the complaint must be accepted as true and viewed in the light most favorable to the nonmoving party." Scott v. Taylor , 405 F.3d 1251, 1253 (11th Cir. 2005) (alteration added; citation omitted).
Analysis . "[T]he Government carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship" because "the ... loss [of American citizenship] can have severe and unsettling consequences." Fedorenko v. United States , 449 U.S. 490, 505, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981) (alterations added; quotation marks and citations omitted). "The evidence justifying revocation of citizenship must be clear, unequivocal, and convincing and not leave the issue in doubt." Id. (quotation marks and citations omitted). "This burden is substantially identical with that required in criminal cases-proof beyond a reasonable doubt." Klapprott v. United States , 335 U.S. 601, 612, 69 S.Ct. 384, 93 L.Ed. 266, 93 L.Ed. 1099 (1949).
"At the same time, ... there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship." Fedorenko , 449 U.S. at 506, 101 S.Ct. 737 (alteration added; citations omitted). "Failure to comply with any of [the congressionally imposed] conditions renders the certificate of citizenship ‘illegally procured,’ and naturalization that is unlawfully procured can be set aside." Id. (alteration added; citations omitted). One prerequisite for citizenship is " ‘good moral character’ during the ‘statutory period,’ which spans from five years before a prospective citizen files his or her application for naturalization until the prospective citizen takes the oath of citizenship." United States v. Hamed , 358 F. Supp. 3d 865, 869 (W.D. Mo. 2018) (citations omitted); see also United States v. Campos , No. 1:16-cv-20777, 2016 WL 8678885, at *3 (S.D. Fla. Nov. 3, 2016) (discussing the congressionally-mandated requirements an applicant must strictly comply with prior to taking the oath of allegiance (citation omitted)).
The Immigration and Nationality Act "enumerates several specific classes of persons who are precluded from establishing ‘good moral character’ for purposes of naturalization because of conduct ranging from the merely unsavory to the outright criminal." United States v. Eguilos , 383 F. Supp. 3d 1014, 1024 (E.D. Cal. 2019) (citing 8 U.S.C. §§ 1101(f)(1)–(8) ); see also 8 C.F.R. § 316.10(b)(1)–(3)(ii). "[T]he statutory scheme also includes a ‘catch all’ provision precluding a showing of good moral character by non-enumerated acts or characteristics, absent extenuating circumstances." United States v. Okoro , No. cv 19-4837, 2020 WL 7382103, at *2 (S.D. Tex. Oct. 9, 2020) (alteration added; citation omitted); see also 8 U.S.C. § 1101(f) ("The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.").
By its present Motion, the Government offers two reasons to revoke Defendant's citizenship: (1) the commission of crimes involving moral turpitude (Count I); and (2) the performance of unlawful acts adversely reflecting on moral character (Count II). (See Mot. 6–18). The Court addresses both counts.
Defendant contends "[t]he Government is barred by laches from asserting its denaturalization claims[,]" citing the Government's 13-year "delay in bringing suit." (Resp. 3 (alterations added; bold omitted)). To invoke laches, Defendant must prove "(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." Costello v. United States , 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961) (citations omitted). Quite simply, Defendant's invocation of laches fails to persuade. Indeed, "the government routinely brings denaturalization proceedings long after the time when the certificate of citizenship was granted, even if the citizen has meanwhile met his obligations and has committed no act of lawlessness." United States v. Donkor , No. 19-cv-07120, 2020 WL 7381948, at *3 (E.D.N.Y. Dec. 15, 2020) (quotation marks and citations omitted); see also id. (collecting denaturalization cases initiated 12, 13, 20, 25, 27, 28, and 41 years after naturalization); United States v. Tall , No. 5:19-cv-549, 2021 WL 640691, at *7 (E.D.N.C. Feb. 18, 2021) (collecting denaturalization cases initiated 12, 25, 27, 28, and 41 years after naturalization).
Count I. "[A]n applicant lacks good moral character if he or she (1) commits a crime involving moral turpitude; (2) during the statutory period; and (3) later is convicted of the crime or admits the crimes or the criminal acts." United States v. Salem , No. 19-cv-2729, 496 F.Supp.3d 1167, 1175 (N.D. Ill. Oct. 26, 2020) (alteration added; citing 8 U.S.C. § 1101(f)(3) ; 8 U.S.C. § 1182(a)(2)(A) ; 8 C.F.R. § 316.10(b)(2)(i) ); see also United States v. Martinez , No. 7:19-cv-345, 507 F.Supp.3d 793, 804 (S.D. Tex. Dec. 15, 2020) ("It is enough to show that the commission of a crime of moral turpitude took place during the statutory period." (original emphasis)); United States v. Javier , No. 2:15-cv-14205, 2016 WL 7540585, at *4 (S.D. Fla. Aug. 25, 2016) ("Congress specifically bars a person from showing good moral character if, during the time period in which he was required to show good moral character, the person is convicted of a crime involving moral turpitude or admits to having committed a crime involving moral turpitude and the maximum possible penalty for the crime exceeds one-year imprisonment." (citations omitted)).
The Court finds Defendant's citizenship was illegally procured based on acts involving crimes of moral turpitude during the statutory period. It is undisputed Defendant was indicted and convicted of conspiring to defraud the United States and of paying kickbacks in connection with a federal health-care benefit program — acts he committed before he was granted citizenship. , (Compare Compl. ¶¶ 8–12, 28, and Exs. B, C, with Answer ¶¶ 8–12, 28). Stated differently, Defendant committed crimes involving moral turpitude during the statutory period, as evidenced by his convictions and judgment. See Jordan v. De George , 341 U.S. 223, 229, 71 S.Ct. 703, 95 L.Ed. 886 (1951) ("It is therefore clear, under an unbroken course of judicial decisions, that the crime of conspiring to defraud the United States is a ‘crime involving moral turpitude.’ "); Itani v. Ashcroft , 298 F.3d 1213, 1215 (11th Cir. 2002) ("Generally, a crime involving dishonesty or false statement is considered to be one involving moral turpitude." (citations omitted)).
The Court agrees with the Government that "Defendant's criminal conviction collaterally estops him from denying that he committed the crimes for which he was convicted and that the crimes occurred during the statutory period." (Mot. 13; see also id. 6–9). The issue of whether Defendant defrauded the United States and made illegal kickback payments during the statutory period was litigated in his criminal case; a jury found Defendant guilty on those counts; Defendant had the opportunity to litigate the issue; and the Eleventh Circuit affirmed. See generally United States v. Kallen-Zury , 629 F. App'x 894 (11th Cir. 2015) (affirming conviction); see also United States v. Jean-Baptiste , 395 F.3d 1190, 1195–96 (11th Cir. 2005) (discussing doctrine of collateral estoppel in a civil denaturalization proceeding).
Defendant's statutory period to demonstrate good moral character ran from April 25, 2002 (five years before he filed his naturalization application) through May 29, 2008 (the date he became a naturalized U.S. citizen). (See Compl. ¶¶ 14, 28; Answer ¶¶ 14, 28; compare Compl. ¶¶ 9–11 (alleging Defendant was indicted and convicted for conspiracy to defraud the United States from at least April 2003 until September 2012, and for making kickback payments on five specific dates in 2008), with Answer ¶¶ 9–11 (admitting allegations)).
In short, because it is undisputed Defendant committed crimes involving moral turpitude during the statutory period, and was convicted of those offenses, he lacked the requisite good moral character to naturalize and thus was statutorily ineligible at the time he became a U.S. citizen. The Government has met its heavy burden and is entitled to judgment on Count I.
Count II. Alternatively, the Government contends "Defendant should be denaturalized [ ] because he committed unlawful acts that adversely reflected on his moral character during the statutory period of his naturalization." (Mot. 14 (alteration added)). The Government can revoke an applicant's citizenship if he or she has "committed unlawful acts [during the statutory period] that adversely reflect upon the applicant's moral character[,]" unless the individual "establishes extenuating circumstances[.]" United States v. Dor , No. 16-17191, 2017 WL 11538010, at *2 (11th Cir. May 17, 2017) (alterations added; other alteration adopted; quotation marks omitted; quoting 8 C.F.R. § 316.10(b)(3)(iii) ).
The Government demonstrates — and Defendant does not dispute — that (1) the Indictment charged Defendant with knowingly and willfully conspiring to defraud the United States and to pay kickbacks in connection with the Medicare program for acts that occurred during the statutory period; (2) a jury returned a guilty verdict on all six counts of the Indictment against Defendant; and (3) the court sentenced Defendant to 144 months’ imprisonment and three years of supervised release, and ordered him to pay $20,141,344.00 in restitution. (Compare Compl. ¶¶ 8–12, 28, and Exs. B, C, D with Answer ¶¶ 8–12, 28); see also Dor , 2017 WL 11538010, at *3 ("Any crime involving fraud as an ingredient involves moral turpitude and adversely reflects on moral character." (citation omitted)). These undisputed facts — and Defendant's admissions — show Defendant committed unlawful acts that adversely reflect upon his moral character during the statutory period.
Defendant contends — but did not allege in his Answer — "[t]here are sufficient extenuating circumstances to preclude denaturalization for lack of good moral character." (Resp. 4 (alteration added; bold omitted)). He cites (1) his refusal to "admit[ ] any wrongdoing both during trial and during any postconviction proceedings[;]" (2) his good behavior while he was incarcerated; (3) his release to home confinement; and (4) the fact he is a "law-abiding citizen." (Id. 5 (alterations added)).
"Extenuating circumstances are those which render a crime less reprehensible than it otherwise would be, or tend to palliate or lessen its guilt." United States v. Dor , No. 9:15-cv-81701, 2016 WL 11083335, at *12 (S.D. Fla. Oct. 25, 2016) (quotation marks and citations omitted). "The defendant, not the government, has the burden of showing whether he faced extenuating circumstances at the time of the crime." Id. at *12 n.8 (citations omitted). Quite simply, Defendant's attorney's arguments do not show extenuating circumstances to mitigate the severity of Defendant's unlawful acts. These offenses involved stealing Medicare funds reserved for health care for the most vulnerable in our society. That Defendant has been an "exemplary prisoner" who is now currently confined at home does not palliate his guilt. (Resp. 5).
In short, the Government "establishe[s] by clear, unequivocal, and convincing evidence that [Defendant] participated in a conspiracy to [defraud the United States and made illegal kickback payments], so he was precluded under 8 C.F.R. [section] 316.10(b)(3)(iii) from establishing the good moral character necessary to be naturalized as a U.S. citizen." United States v. Dor , 729 F. App'x 793, 797 (11th Cir. 2018) (alterations added; citation omitted). As a result, the Court "must " revoke Defendant's citizenship. Jean-Baptiste , 395 F.3d at 1192 (original emphasis). The Government is entitled to judgment on Count II.
Conclusion . Accordingly, it is ORDERED AND ADJUDGED that Plaintiff, United States of America's Motion for Judgment on the Pleadings [ECF No. 17] is GRANTED . Final judgment will issue by separate order. DONE AND ORDERED in Miami, Florida, this 15th day of April, 2021.
The Court denies Plaintiff's perfunctory request to stay the Order pending an appeal. (See Resp. 5). A stay may be granted upon the showing of the following four factors: "1) that the movant is likely to prevail on the merits on appeal; 2) that absent a stay the movant will suffer irreparable damage; 3) that the adverse party will suffer no substantial harm from the issuance of the stay; and 4) that the public interest will be served by issuing the stay." Garcia-Mir v. Meese , 781 F.2d 1450, 1453 (11th Cir. 1986) (citations omitted). Plaintiff does not address, much less satisfy, these factors.