MAX O. COGBURN, Jr., District Judge.
Petitioner was charged in a Bill of Information with conspiracy to traffic and attempt to traffic in counterfeit goods from 2007 through December 2010, in violation of 18 U.S.C. §§ 371 and 2320(a). In addition, petitioner was charged with making false statements on his 2008 tax return, in violation of 26 U.S.C. § 7206(1).
Honorable David S. Cayer, United States Magistrate Judge, conducted a Rule 11 proceeding and accepted the plea.
After a presentence investigation and the completion of a presentence report,
During sentencing, the Court adopted without objection the facts as provided in the Presentence Report and accepted the advisory guidelines range contained in the PSR. It was determined that petitioner's conduct carried a Total Offense Level of 23 and that he had a Criminal History of I, resulting in an advisory guidelines range of 46 to 57 months. The Court sentenced petitioner at the bottom of the advisory guidelines range to 46 months imprisonment on Count One and 36 months on Count Two, with both sentences running concurrently. Also relevant to the instant petition, the Court imposed restitution in the amount of $623,826.75 in accordance with the Mandatory Victim Restitution Act, which was precisely the amount of restitution determined in the unobjected-to PSR (#20 at pp. 8-9).
After entry of the Judgment (#26), defendant filed a Notice of Appeal (#28). The Court of Appeals for the Fourth Circuit reappointed Mr. Terpening to represent petitioner on appeal. Petitioner filed a motion to voluntarily dismiss the appeal, which was granted by the appellate court.
In this Section 2255 proceeding, petitioner has asserted three claims. First, petitioner contends that his plea was not knowing and voluntary because: (1) it resulted from prosecutorial misconduct; (2) it was based on a misunderstanding of the terms of the plea agreement due to language barriers; and (3) it was attained through threats to his family by the government and his attorney (Mr. Verby) if he refused to sign the agreement. Second, he argues that he received ineffective assistance of trial counsel (Mr. Verby) based on statements made to him by his attorney, including statements regarding the maximum amount of time in prison or on probation that petitioner would face if he signed the proposed plea agreement. Third, petitioner argues that his plea was not knowing and voluntary because he was not afforded the assistance of an Arabic translator during plea negotiations or court proceedings, which is somewhat duplicative of the part two of the first contention.
In their moving papers, the parties have presented the Court with conflicting affidavits. Significantly, petitioner and his former counsel offered competing statements as to: (1) counsel's representations about the maximum sentence petitioner would face if he cooperated with the government and entered a plea in this case; (2) petitioner's abilities to understand the English language; (3) statements regarding potential prosecution of petitioner's family members; and (4) petitioner's understanding of his waiver of appellate rights. Due to factual discrepancies between the competing affidavits, an evidentiary hearing was conducted to aid the Court in determining the merits of petitioner's claims.
In advance of the hearing, the Court advised petitioner that he had the right to retain counsel of his own choosing, but, in an abundance of caution, appointed counsel based on petitioner's request for counsel found on page 13 of AO 243 (Petition (#1) at 12) and earlier affidavit of indigency in the underlying criminal action.
An evidentiary hearing was conducted May 11, 2016, in Charlotte, North Carolina, at which petitioner appeared and was represented by Messrs. Terpening, Moors, and Herrmann. The government was also present and represented by Mr. O'Malley and Ms. Greenough. At the hearing, Mr. Nasrallah was the only witness called to testify on behalf of the petitioner. The government called: (1) defendant's former attorney, Mr. Verby; (2) petitioner's last pretrial services, Mr. Stoltenberg; (3) the case agent on the counterfeit goods trafficking, Homeland Security Special Agent Boze; and (4) the case agent on the tax charge, IRS Special Agent Ripley.
The Court heard the testimony of each witness, observed the demeanor of each witness, and asked clarifying questions when clarification was needed. After the conclusion of the hearing, the Court allowed each side an opportunity to file post-hearing briefs after the official transcript (#21) was made available. Respective counsel fully complied with such post-hearing requirements and filed timely briefs. The issues are now ripe for resolution.
Inasmuch as a number of petitioner's allegations cut across the contentions identified above, the Court will address those concerns first.
Foremost among those concerns is petitioner's claim that his plea was unknowing because neither his attorney nor this Court provided him with an Arabic/English interpreter. The Court notes from the outset that at no point did petitioner raise language concerns with any of the three judges who addressed him in the underlying criminal proceedings. Indeed, no judge, including the undersigned, perceived any difficulty in communicating with petitioner. At the sentencing hearing, petitioner was provided with an opportunity to allocate, and he said the following:
Petitioner explained that his English language skills had improved after going to prison for a year and that he had taken an English language course in prison; however, the overwhelming evidence from everyone else who testified was that he had no problem communicating in English before he went to prison. Perhaps most compelling was the testimony from his former attorney, Mr. Verby, who testified that he perceived no problems in communicating with petitioner and that he would not have hesitated to employ an interpreter if he detected any inability on defendant's part to communicate in English. Mr. Verby testified that practicing law in New York involved clients who spoke a multitude of languages and that hiring interpreters was an everyday occurrence and that if one was needed, he would have hired one. The Court found Mr. Verby's testimony to be highly credible. Petitioner's credibility was further harmed when he testified that he could not understand the Southern accent of Judge Cayer who conducted the Rule 11, but could understand the undersigned's questions as sentencing because the undersigned talked slower. Based on the entirety of petitioner's testimony, the inconsistency of that testimony with the testimony of the other witnesses, the implausibility of his testimony, and his demeanor, the Court concludes that his claims of inability to understand written or spoken English are without merit.
Second, in both his pleadings and his testimony, petitioner painted his former attorney, Mr. Verby, as incompetent and implied that he had abandoned him for months due to treatment for drug or alcohol addiction. In addition, he contended that his plea was involuntary as it was coerced by threats from law enforcement and his own attorney to the effect that if he did not accept the plea, his brother would be charged.
The credible testimony at the hearing revealed that by the time petitioner retained Mr. Verby, petitioner's home and business had already been searched pursuant to a warrant, his inventory of counterfeit goods had been seized, and he had voluntarily confessed — in English — to the agents who conducted a search. Thus, by the time Mr. Verby was retained, petitioner had already compromised his ability to attain a favorable plea agreement. The credible testimony indicated that petitioner sought out the counsel of Mr. Verby, an attorney with 41 years of experience in New York, and insisted that Mr. Verby meet with him and his brother in December 2010. Mr. Verby, recognizing that both petitioner and his brother were at risk, advised petitioner to not speak to agents without counsel as it was likely his arrest was imminent, and that his brother should also seek his own counsel, which he did.
Mr. Verby then successfully negotiated a self-surrender of defendant in Charlotte more than a month later, even though an Arrest Warrant (
As to petitioner's allegation that he received ineffective assistance of counsel due to the incapacity or incompetence of counsel based on drug or alcohol abuse, the credible evidence at the hearing proved those contentions wholly unfounded. Not only did counsel assure that petitioner was represented at critical stages by qualified counsel out of his own pocket, the evidence showed that Mr. Verby's unavailability had nothing to do with substance abuse, but was the result of a serious and chronic medical condition requiring surgery and post-operative recovery.
As to petitioner's allegation that his plea was not knowing because counsel did not go over it with him, Mr. Verby's testimony was completely credible that, as was his practice, he went over and read the plea agreement to petitioner line-by-line, pausing after every couple of sentences to explain what that provision meant and to define difficult legal terms in layman's terms. Mr. Verby testified that based on his observations, he believed petitioner understood the plea agreement.
As to petitioner's allegation that the plea was involuntary or coerced, Mr. Verby testified that he advised petitioner it was up to him whether he wanted to take the plea offer. He testified that in no manner did he threaten petitioner or tell him that if he did not take the plea his brother would be arrested. He testified that at every turn petitioner did not want a trial, that he acknowledged his guilt in the conspiracy to traffic in counterfeit goods and in underreporting his income to the IRS, and that he agreed with terms of the plea agreement. The Court found Mr. Verby's testimony credible and petitioner's contrary allegations and testimony not credible.
As to petitioner's allegations that he was coached to answer the Rule 11 questions in a manner that would assure the Court's acceptance of the plea and disguise his inability to communicate in English, Mr. Verby recalled that they travelled to the plea hearing together and went over the plea agreement while waiting in airports. He also testified that he advised petitioner generally of what he believed the likely questions would be, but in no manner instructed petitioner to give false answers to the court. Mr. Verby's testimony reflected that he advised petitioner in precisely the same manner as would any experienced criminal defense attorney as to the terms of the plea and the possible range of punishment. As to any promises as to what the sentence might be, Mr. Verby testified he never tells a client what the sentence will be, but only tells them that it could be more or less than advisory guidelines range and could be anywhere from no incarceration to the statutory maximum. There is absolutely no credible evidence that Mr. Verby in any manner coerced, threatened, improperly coached, instructed petitioner to lie, obfuscated any purported language barrier, or promised any particular outcome for petitioner or his brother if the plea was accepted.
As to petitioner's allegations that he only met with Mr. Verby in cars or restaurants, Mr. Verby's credible testimony established that they met a number of times at the law office of the attorney representing petitioner's brother inasmuch as their interests were well aligned. Mr. Verby testified that he had an office, but could not recall if he ever met petitioner at that office. As to the meeting in a car, Mr. Verby's testimony was credible that their first meeting was in a car, but that impromptu meeting was at petitioner's insistence due to the urgency of his legal needs. While he did not recall meeting at any particular restaurant, Mr. Verby testified that if there was one, it was for the convenience of petitioner who was by that time working difficult hours driving a cab. In any event, there is nothing inherently wrong with an attorney meeting with a client in any number of places as there is no ethical or even practical requirement that meetings take place in a law office. If by raising such contentions as to the place of meeting petitioner was attempting to call into question Mr. Verby's ability, such attempt was without purchase as it was abundantly clear that Mr. Verby was a seasoned attorney who not only provided petitioner with excellent representation, but continued to represent petitioner even when he was not being paid, associated another experienced attorney out of his own pocket when he was unable to attend the debrief, and only withdrew after the plea was accepted by this Court and insured continuity of representation through a CJA appointment.
With those determinations in mind, the Court turns to petitioner's first contention, which is that his plea was not knowing and voluntary because: (1) it resulted from prosecutorial misconduct; (2) it was based on his misunderstanding of the terms of the plea agreement due to language barriers; and (3) it resulted from threats to his family if he refused to sign the agreement. The above discussion of petitioner's allegations is incorporated by reference.
When considering a claim of prosecutorial misconduct, the court must determine "whether the conduct so infected the [plea process/trial/sentencing hearing] with unfairness as to make the resulting [plea process/trial/sentence] a denial of due process."
As discussed above, there was absolutely no credible evidence that supported petitioner's contention that he did not understand the terms of the plea agreement. To the contrary, the credible evidence presented convinced this Court that petitioner well knew the terms of the plea agreement and that there was no language barrier. Indeed, the evidence showed that petitioner (a naturalized citizen who had engaged in sophisticated business transactions, all be they unlawful, for years that involved complex business documents) was very capable of understanding and in fact well understood the plea.
Finally, there was no credible evidence that any threats were made against petitioner's family if he failed to accept the plea, either by the government or being passed along by Mr. Verby. While Mr. Verby testified that petitioner's brother was at risk of prosecution because he was at the warehouse at the time of the search, he testified that the brother had at all relevant times excellent representation. Indeed, immediately before the Court sentenced petition, Mr. O'Malley stated at the sentencing hearing that "[h]is brother, who we couldn't make a case against, had deposits of. . .. [six] million dollars as well."
The first claim is dismissed as there is a lack of credible evidence supporting any part of such contention.
In his second contention, petitioner contends that he received ineffective assistance of trial counsel (Mr. Verby) based on statements made to him by his attorney, including statements regarding the maximum amount of time in prison that petitioner would face if he signed the proposed plea agreement. Petitioner further contends that counsel promised that he would receive probation and that he would transfer the case to New York, where, according to the testimony, Courts supposedly treat counterfeit goods trafficking less severely.
To establish a claim of ineffective assistance of counsel, a petitioner must show that counsel's performance fell below an objective standard of reasonableness, and that he was prejudiced by such constitutionally deficient representation.
In considering the prejudice prong of the analysis, the court must not grant relief solely because the petitioner can show that, but for counsel's performance, the outcome would have been different.
Recently, the Supreme Court recognized the right to "effective counsel during plea negotiations."
The Court finds no merit in petitioner's second contention as Mr. Verby provided petitioner with highly effective assistance of counsel.
In his final contention, petitioner argues that his plea was not knowing and voluntary because he was not afforded the assistance of an Arabic translator during plea negotiations or court proceedings. While it would not go so far as to characterize petitioner's contention as a "charade" as the government's cross examination of petitioner suggested, the Court does find petitioner's contention that he was improperly denied an Arabic translator unsupported by any credible evidence of record. For the reasons discussed at greater length above, the overwhelming credible evidence was that petitioner was quite capable of communicating with his attorney, agents, and three judges of this Court in English.
The Court has also considered his final contention in light of the Court Interpreters Act, 28 U.S.C. § 1827 (2000). Under such provision, a court must utilize the services of an interpreter if the court "determines [on its own motion] or on the motion of a party that such party speaks only or primarily a language other than the English language" and will be "inhibited" in comprehending the proceedings, or communicating with counsel or the court. 28 U.S.C. § 1827(d)(1). Based on petitioner's contentions in his Petition, this Court prophylactically appointed an interpreter for the evidentiary hearing. However, at no point in the nearly four years between initial appearance and sentencing did petitioner ever request appointment of an interpreter. Indeed, petitioner appeared before three judges of this Court and at no time did his answers to any inquiry (as discussed at greater length above) suggest to any judge, including the undersigned, that an interpreter was needed. Petitioner has now twice appeared before the undersigned and based on this Court's observations of defendant's English language skills, no interpreter was needed.
As discussed above, most telling was Mr. Verby's testimony that at no time in his counseling of defendant did he believe an interpreter was needed. Albeit in an unpublished decision, the Court of Appeals held, as follows:
Petitioner's third contention is without merit.
Review of the petition and pleadings reveals that petitioner also seeks to challenge the amount of restitution included in the Judgment as part of his petition. Petitioner's challenge to the amount of restitution is, as a matter of well-settled law, not cognizable in a § 2255 proceeding because it does not affect his custody. Section 2255 provides that:
28 U.S.C. § 2255(a). "A reduction in restitution is not a release from custody."
While the Court has first addressed the merits of petitioner's claims, the government has also moved to dismiss the claims (with the exception of ineffective assistance of counsel) as procedurally defaulted. As it appears that petitioner failed to pursue those contentions on direct appeal, the Court has considered the government's motion as an additional basis for dismissal.
In order to collaterally attack a conviction or sentence through Section 2255 based upon errors that could have been but were not pursued on direct appeal, the movant must show cause and actual prejudice resulting from the errors of which he complains or he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack.
A Section 2255 motion is not a substitute for a direct appeal.
Finally, the Court has considered the imposition of costs against petitioner for the fees of the court-appointed interpreter. At the conclusion of the evidence, it was clear to the Court that petitioner's allegations of needing a foreign language interpreter were not just fabricated, but fabricated simply to "get a better deal."
In considering imposition of costs, the Court has closely considered the both the chilling effect such imposition would have on other litigants who may have an actual need for an interpreter and the diminishment any such award would have on the potential recovery of the victims in this case. While petitioner's attempted deception is in no manner condoned, the Court finds that the competing concerns predominate and will not impose costs.
Petitioner is, however, cautioned that other judicial officers might not strike the balance so favorably and that simply making things up to get a better deal is unacceptable. Indeed, the greatest harm in the filing the Petition was not the waste of taxpayer resources or even the waste of the Court's time, but the spurious, uncalled for, and in the end unsupported allegations leveled against Mr. Verby, who is owed an apology.
Finally, the Court also notes petitioner's opening argument in which his counsel stated, as follows:
Evid. Tr. (#21) at 18. That relief would have done petitioner no good as this Court was well aware, that despite the language of the plea agreement that the sentence should be within the guidelines range (
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, this court declines to issue a certificate of appealability as petitioner has not made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2);
