Immigrant’s win could lead to deportation

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What looked like the second win in three months for a Nigerian immigrant might yet open the door to his deportation.

In May, the 2nd U.S. Circuit Court of Appeals overturned a deportation order against Temitope Akinsade, who pleaded guilty 12 years ago to embezzlement while working as a teller at a Chevy Chase Bank in Aspen Hill.

The New York-based court found that Akinsade’s crime was not an aggravated felony — a deportable offense — because his guilty plea did not specifically admit that he had an intent to deceive.

Last week, the 4th U.S. Circuit Court of Appeals found a different problem with the plea and vacated the embezzlement conviction.

The 4th Circuit’s decision enables federal prosecutors to retry Akinsade for embezzlement, if they wish to do so, his appellate attorney said. If tried and convicted of an aggravated felony, Akinsade could again face deportation, added attorney Thomas K. Ragland.

“We knew that risk,” Ragland said of the decision to challenge the conviction. “My client and I agreed that his constitutional rights [to counsel and due process] were violated and his conviction was unsound.”

Ragland said trying Akinsade would be “vindictive” because of his legal travails and all he has personally accomplished since 2000, when he pleaded guilty at age 19 after his trial attorney assured him he would not face deportation.

That advice was erroneous, the 4th Circuit held last week in overturning the conviction.

In his plea, Akinsade admitted to cashing $16,400 worth of checks for neighborhood acquaintances, even though they were not listed as the payees, and depositing part of the proceeds into his own account.

Akinsade was sentenced to one month in community confinement, three years of supervised release and a special assessment of $100. Before sentencing, Akinsade had paid $8,000 in restitution, according to the 4th Circuit’s opinion.

He subsequently earned a master’s degree from the University of Maryland, a fellowship from the National Science Foundation and a job with General Electric Co. in upstate New York.

But in January 2009 — nearly nine years after his plea — immigration officials arrested Akinsade and charged him with removability as an aggravated felon based on his embezzlement conviction. He spent 17 months in detention, according to the 4th Circuit’s opinion.

“No doubt he screwed up when he was 19 years old, but he has paid the price for that,” said Ragland, of Benach Ragland LLP in Washington. “What would be the purpose of a reprosecution? He did his time.”

‘No reason why we wouldn’t retry him’

But Maryland U.S. Attorney Rod J. Rosenstein said a retrial of Akinsade may be in the offing.

“I see no reason why we wouldn’t” retry him, Rosenstein said. “The ruling in the 4th Circuit is that he is entitled to withdraw his plea and proceed to trial. There is absolutely no finding that the prosecution was unjustified.”

“If a defendant asserts a right to withdraw his guilty plea and proceed to trial, it cannot be vindictive to grant his request,” Rosenstein added.

In its 2-1 decision, the 4th Circuit said Akinsade would have gone to trial had his then-attorney, Adigun S. Bakare, accurately informed him that deportation proceedings could ensue rather than assure him they would not.

Before accepting Akinsade’s plea, the trial judge told him he “could” face deportation for embezzlement, the court noted.

But this “equivocal” statement from the judge did not outweigh the “affirmative misadvice” Akinsade received from counsel, 4th Circuit Judge Roger L. Gregory wrote for the majority.

“The severity of the consequence at issue and the clear error made by counsel in rendering the advice warrants a curative admonishment [from the judge] that is specific and unequivocal as to the deportation consequences of Akinsade’s conviction,” Gregory wrote in an opinion Judge James A. Wynn Jr. joined.

“Here, the district court’s admonishment touches upon the consequences of deportation but does not correct the particular misadvice given by counsel.”

Chief Judge William B. Traxler Jr., in dissent, cited the 2nd Circuit’s decision in the immigration case as showing that Bakare ultimately was right about the consequences of the plea.

“[W]hether by sheer good fortune or something else, Akinsade’s lawyer correctly told Akinsade that he was not pleading guilty to a deportable offense and that he was not being deported,” Traxler wrote. “Now that it has been established that Akinsade did not plead guilty to an aggravated felony and will not be removed, I cannot comprehend how one can still conclude that Akinsade is entitled to relief based on his lawyer’s correct advice that Akinsade would not be deported as the result of his guilty plea.”

Akinsade’s 4th Circuit appeal was argued on Dec. 9, several months before the 2nd Circuit ruled that his crime was not a deportable offense.

Bakare, Akinsade’s trial attorney, was disbarred by consent in August 2006 for misappropriation of trust funds, according to the Maryland Attorney Grievance Commission.

But Akinsade’s appellate attorney hailed the 4th Circuit’s ruling.

“My feeling is that the conviction was based on a violation of his constitutional rights and shouldn’t stand,” Ragland said. “If they reprosecute, we will just have to vigorously defend him.”

WHAT THE COURT HELD

Case: United States v. Temitope Akinsade, 4USCA, No. 09-7554. Reported. Opinion by Gregory, J.. Dissent by Traxler, C.J. Argued Dec. 9, 2011. Filed July 25, 2012.

Issue: Was the defendant denied effective assistance of counsel when he was erroneously assured that embezzlement was not a deportable offense before pleading guilty?

Holding: Yes; the attorney’s erroneous assurances outweighed the judge’s pre-plea general admonition that the defendant could face deportation.

Counsel: Thomas K. Ragland for defendant-appellant; Christen Anne Sproule for plaintiff-appellee

RecordFax # 12-0725-60 (30 pages).