525 F.3d 351 (4th Cir. 2008), 05-4985, United States v. Mir

Docket Nº:05-4985, 05-4989
Citation:525 F.3d 351
Party Name: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.
Case Date:May 06, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 351

525 F.3d 351 (4th Cir. 2008)

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.

Nos. 05-4985, 05-4989

United States Court of Appeals, Fourth Circuit

May 6, 2008

Argued: Feb. 1, 2008.

Appeals from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (CR-03-156-AW)

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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.

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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

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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...

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