A blog of the Philadelphia Bar Association’s Criminal Justice Section

Burt Rose

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UNITED STATES of America v. Temitope AKINSADE, Appellant,No. 09–7554, 2012 WL 3024723 (July 25, 2012):

Akinsade is a Nigerian citizen who legally came to America in July 1988 at the age of seven and became a lawful permanent resident in May 2000. In 1999, at the age of nineteen, Akinsade was employed as a teller at a Chevy Chase bank in Maryland. During his employment, Akinsade cashed checks for several neighborhood acquaintances, who were not listed as payees on the checks, and deposited a portion of the proceeds from those checks into his own account. Eventually, Akinsade reported the transactions to his supervisor, who then contacted the FBI. When interviewed by the FBI several months later, Akinsade agreed to cooperate against the individuals for whom he cashed the checks.

On March 1, 2000, Akinsade was charged with embezzlement by a bank employee in the amount of $16,400. 18 U.S.C. § 656 . As he considered the Government’s plea agreement, Akinsade asked his attorney on at least two different occasions about the potential immigration consequences of this guilty plea. Both times his attorney misadvised him that he could not be deported based on this single offense; his attorney told him that he could only be deported if he had two felony convictions. This advice was contrary to the law at that time. Relying on his attorney’s advice that one count of embezzlement was not a deportable offense,Akinsade pleaded guilty to an offense that involved fraud or deceit in which the loss to the victim or victims exceeded $10,000 .” 8 U.S.C. § 1101(a)(43)(M)(i) (1952)8 U.S.C. § 1227(a)(2)(A)(iii) (1952). The plea agreement made no mention that deportation was mandatory or even possible due to the offense. On June 5, 2000, the district court sentenced Akinsade to one month of imprisonment to be served in community confinement, a three-year term of supervised release, and a special assessment of $100.

Almost nine years after Akinsade’s conviction, immigration authorities arrested him at home and placed him in detention. After seventeen months in detention, the immigration authorities released Akinsade and charged him with removability as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii) based on his 2000 embezzlement conviction. Under threat of deportation,Akinsade filed a petition for writ of error coram nobis in federal court alleging a violation of his Sixth Amendment rights due to his counsel’s misadvice but the district court denied the petition.

Although the district court had warned Akinsade during the colloquy that his guilty plea could lead to deportation, a general and equivocal admonishment is insufficient to correct counsel’s affirmative misadvice that Akinsade’s crime was not categorically a deportable offense, especially where the consequence he faced by pleading guilty was mandatory deportation. Under Lafler v. Cooper, 556 U.S. –––– (2012) and Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the Appellant was entitled to relief. Therefore, the court granted the petition for writ of error coram nobis and vacated Akinsade’s conviction.

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