U.S. v. Mir

• Citation: 525 F.3d 351
• Decision Date: 06 May 2008
• Docket Number: No. 05-4989.,No. 05-4985.,05-4985.,05-4989.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maqsood Hamid MIR, Defendant-Appellant, v. Hot And Cold Corporation, Movant. United States of America, Plaintiff-Appellee, v. Mir Law Associates, LLC, Defendant-Appellant, v. Hot and Cold Corporation, Movant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

525 F.3d 351

UNITED STATES of America, Plaintiff-Appellee, v. Maqsood Hamid MIR, Defendant-Appellant, v. Hot And Cold Corporation, Movant.

United States of America, Plaintiff-Appellee, v. Mir Law Associates, LLC, Defendant-Appellant, v. Hot and Cold Corporation, Movant.

No. 05-4985.

No. 05-4989.

United States Court of Appeals, Fourth Circuit.

Argued: February 1, 2008.

Decided: May 6, 2008.

ARGUED: Robert Charles Bonsib, Marcus & Bonsib, Greenbelt, Maryland, for Appellants. David Ira Salem, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Chan Park, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and PATRICK MICHAEL DUFFY, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Chief Judge WILLIAMS and JUDGE Duffy joined.

OPINION

WILKINSON, Circuit Judge:

Maqsood Hamid Mir and his law firm, Mir Law Associates, LLC, were convicted on various counts of immigration fraud. Mir's principal claim is that conversations two witnesses initiated with him at the government's behest violated his Sixth Amendment right to counsel, because those conversations occurred after Mir had been indicted on the immigration fraud counts. But the retention of counsel for certain indicted offenses cannot give a defendant license to engage in new, unindicted criminal activity. See Texas v. Cobb, 532 U.S. 162, 171, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). Here the challenged conversations pertained to Mir's alleged commission of the additional crime of witness tampering. To bar their admission into evidence would downgrade society's interest in the integrity and proper functioning of the criminal justice process. We therefore reject Mir's contention and affirm the judgment of the district court.

I.

Maqsood Hamid Mir is an attorney who specialized in immigration law and owned and operated his own law firm, Mir Law Associates ("MLA"). As part of his immigration practice, Mir assisted employers in completing various immigration forms. First, Mir assisted them in completing Labor Certifications (also known as ETA Form 750s), which are required whenever an employer wishes to sponsor an alien for work in the United States. Employers must certify that they intend to hire the specific alien for a currently available position, and pay him the prevailing wage. Second, Mir assisted employers in executing Petitions for Alien Workers, known as Form I-140s, on behalf of employees who wished to obtain permanent resident alien status in the United States.

Between January 1, 1998 and December 31, 2002, Mir filed close to 2,000 Labor Certifications and numerous Form I-140s. Concerned that some of these submissions contained falsehoods, the government initiated an investigation of Mir and MLA. On January 15, 2003, Mir's attorney sent a letter to the government confirming that he was representing Mir with respect to the government's ongoing investigation of possible immigration fraud.

On March 31, 2003, a grand jury in the District of Maryland returned a thirteen-count indictment charging Mir and one of the employers for whom he worked with conspiracy to commit labor certification fraud and with labor certification fraud, in violation of 18 U.S.C. §§ 371 and 1546 (2000). On January 14, 2004, the grand jury returned a sealed Superseding Indictment against Mir, adding eight additional defendants, including MLA, and adding racketeering charges. Id. § 1961.

After the issuance of the original indictment, government agents received information that Mir might be tampering with witnesses. As part of its investigation of possible witness tampering, the government obtained the cooperation of two of the aliens, Chaudhary and Raja, sponsored in Labor Certifications filed by Mir.

At the government's direction, Chaudhary recorded three conversations with Mir. During the first conversation, on December 22, 2003, Mir told Chaudhary to underreport to the government the amount of fees Chaudhary had paid to Mir. During the second, on January 5, 2004, Mir told Chaudhary to withhold information from the grand jury regarding Labor Certification fees, to lie about his work experience, and not to tell the government about his lack of direct contact with the "sponsoring employer" Mir had listed on his Labor Certification. During the third, on February 20, 2004, Mir offered to refund fees Chaudhary had paid him if Chaudhary fled the country before being discovered by government agents.

Raja initiated an unrecorded conversation with Mir at the government's behest in November 2003. During that conversation, Mir instructed Raja to lie to the grand jury about Mir's intended legal fees. In exchange for doing so, Mir said he would return fees Raja had already paid.

As a result of this investigation, on December 15, 2004, the grand jury returned a Third Superseding Indictment, which added a witness tampering charge against Mir. Prior to trial, Mir moved to suppress the conversations with Chaudhray and Raja. Mir contended that they had been obtained in violation of the Sixth Amendment, which prohibits the government from eliciting incriminating information after a defendant has been indicted and in the absence of counsel. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

After a hearing, the district court denied Mir's motion, on the grounds that the statements did not pertain to the fraud offenses for which Mir was charged in 2003, when his attorney was retained, but rather to the "separate and distinct" crime of witness tampering, which was not charged at the time the challenged conversations took place. In so doing, the district court noted that the transcripts of the conversations with Chaudhary could be redacted to ensure that the jury only considered them in relation to the witness tampering charge. The government agreed to redact the transcripts. Further, the district court ordered the government to limit Raja's testimony regarding the November 2003 conversation to the witness tampering count.

Mir then requested severance of the witness tampering charge, which the district court denied, stating that "the Court's limitation and [the] order that we limit the discussion solely to the separate and distinct charge cures any issues associated with severance and Massiah." Nevertheless, regarding the Chaudhary transcripts, Mir refused to accept the offer of redaction—and insisted that "for the jury to have the context, we've got to have . . . the remainder of most of the conversations." Mir then asked the district court to let the unredacted transcripts in, and the district court agreed. The district court then offered Mir the opportunity to craft a limiting instruction with regard to the transcripts. Mir, however, insisted that he could come up with no appropriate limiting instruction.

During a five-week jury trial, the government called approximately thirty witnesses, including two co-defendant employers, five other employers, numerous aliens, and Mir's former employees. One of those witnesses, an employer by the name of Zulfiqar Ali, testified that Mir had filed Labor Certifications and I-140s on behalf of aliens whom Ali did not know and for whom he had no employment position. Ali also testified that Mir told him to stockpile Labor Certifications for future use, and to sell approved Labor Certifications to "substitute aliens" for up to $40,000.00 so that he and Mir could "make money."

Other employers testified that they had worked in conjunction with Mir to list their businesses on Labor Certifications and I-140s when they did not actually need or otherwise qualify to hire the alien named on those documents. One particular employer, Raghib Shourbaji, testified that he and Mir agreed to make up names for false labor certifications. Yet another employer, Abdul Javaid, testified that Mir had filed Labor Certifications on behalf of him and Potomac Automotive, a company he did not own at the time the certifications were filed. Javaid also testified that Mir forged his signature on Labor Certifications, and that Mir filed false tax documents that overstated Potomac Automotive's gross income in order to support future hiring. Finally, numerous aliens testified that Mir had filed false documents on their behalf. Through the testimony of these witnesses, the government established that Mir had filed over one hundred false Labor Certifications and Form I-140s.

The jury convicted Mir of sixteen counts of labor certification fraud (Counts 7-22) and convicted MLA of twenty-one counts of labor certification fraud and conspiracy (Count 1 and Counts 3-22). Mir was acquitted on various other counts, including count twenty-three, charging racketeering; and count twenty-four, charging witness tampering. MLA was acquitted on count two, charging conspiracy to harbor aliens, and on count twenty-four, charging witness tampering. On September 22, 2005, the district court sentenced Mir to 78 months imprisonment and fined him $25,000.00. The district court fined MLA $200,000.00.

Mir and MLA timely appealed.

II.

Mir's principal claim is that the admission of his post-indictment statements to Chaudhary and Raja violated his Sixth Amendment right to counsel. Mir argues that the statements either should have been suppressed or that the district court should have severed the witness tampering count from the labor certification counts. We address these arguments in turn.

A.

Mir first claims that the transcripts of his recorded conversations with Chaudhary and the testimony about his November 2003 conversation with Raja should have been suppressed, because those conversations were intertwined with the indicted offenses of labor certification fraud to which Mir's Sixth Amendment...