Gire v. United States
| Decision Date | 29 March 2022 |
| Docket Number | 19-cv-3079 |
| Parties | EDWIN J. GIRE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Central District of Illinois |
Before the Court is Petitioner Edwin J. Gire's Motion to Vacate Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (d/e 1). Petitioner alleges he received ineffective assistance of counsel throughout his criminal proceedings which led to his guilty plea for unlawfully employing illegal aliens and his guilty verdict after a bench trial for visa fraud and harboring illegal aliens. Petitioner also alleges the Government withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). For the reasons below, the Court DENIES Petitioner's § 2255 Motion (d/e 1) and DECLINES to issue a certificate of appealability.
The criminal investigation into Petitioner's roofing business's H-2B immigration visa petitions became clear when a search warrant was executed on a building owned by Petitioner's roofing company on May 28, 2014. Petitioner and his girlfriend, Kimberly Young, decided they needed legal counsel. They found Andrew DeVooght and began working with him to hopefully avoid a criminal indictment. See, e, g., Transcript (d/e 51) at 170. Once that effort failed, DeVooght continued defending Petitioner against the criminal charges until after Petitioner pled guilty to three counts of unlawful employment of aliens and was found guilty after a bench trial on January 31, 2018 of four counts of visa fraud and three counts of harboring illegal aliens. See United States v. Gire, 16-cr-20044-001 (C.D. Ill.) (hereinafter, “Crim.”), Judgment (d/e 133). Petitioner has now filed this § 2255 Motion, alleging DeVooght's representation and advice was constitutionally deficient in numerous regards and argues his convictions and sentence should be vacated.
Petitioner has been in the roofing business for many years. He was the owner of his company Gire Construction Inc., (d/b/a Gire Roofing) until 2011. Crim., Plea Transcript (d/e 69) at 21. In 2011, he declared bankruptcy and the company dissolved. However, his girlfriend, Kimberly Young, provided the start-up capital and credit to open another company under the name Grayson Enterprises (d/b/a Gire Roofing). Id.; Crim., Transcript (d/e 75) at 985, (d/e 76) at 1091. Petitioner was responsible for managing the new company's day-to-day operations, but Young was listed as the CEO and President. Id.
In March 2011, August 2011, March 2013, and April 2014, Gire Roofing submitted H-2B visa petitions to receive temporary workers. The H-2B temporary worker visa program allows U.S. employers, or their agent, who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. Individuals or entities seeking to hire H-2B visa workers are required by immigration laws or regulations to submit I-129 petitions to the Department of Homeland Security (DHS).
Petitioner submitted these petitions through attorney Saman Movassaghi on behalf of either Gire Construction, Inc. (Gire Construction) or Grayson Enterprises. Attached to each of the four I-129 petitions were numerous fabricated roofing contracts. For example, the first I-129 petition at issue (from March 2011) sought visas for 95 workers and justified the need for these workers by claiming that Gire Construction had two valuable contracts for roofing work in Central Illinois: (1) a $1, 252, 000 contract for work at a mall near Tuscola, Illinois and (2) a $375, 000 contract for work at a cap-and gown company in Arcola, Illinois. See Crim., Transcript (d/e 70) 76, 83-84, 86-90; Gov.Ex. 100. The petition and the contracts both were signed with the Petitioner's name. These projects, however, never existed. Crim., Transcript (d/e 72) at 374-76, (d/e 74) at 660-64, 670-73. And, while 93 visas were issued and 93 foreign workers entered the country, the Government presented evidence that none of these workers worked for Gire Construction. Crim., Transcript (d/e 70) at 93, (d/e 74) 791-92.
The scheme was similar for the other three petitions that were filed. The August 2011 Petition requested an extension for the visas of 20 workers who were already in the country, but they worked for a different employer (M&M Industrial Services, which is owned by Terry Metreyeon). Crim., Transcript (d/e 70) at 93-105, Gov. Ex. 200; Memo (d/e 2) at 11. None of these workers ever worked for Gire Construction.
The March 2013 Petition justified the need for 43 visas by attaching multiple fabricated contracts that had been signed by Petitioner, four of which were over $100, 000. Crim., Transcript (d/e 70) at 118-19, 120-23; Gov.Ex.300. The evidence at trial also showed that Young was aware that Petitioner was seeking workers to help with Grayson's roofing business in March 2013. Both Young and Petitioner corresponded with Movassaghi about the March 2013 Petition, sometimes using the same Gire Roofing email address. Crim., Transcript (d/e 72) at 413-14, 426-27, (d/e 75) at 982-84, 1009, 1011, 1051-52, 1072, (d/e 76) at 1096-1100; Gov.Ex. 302 at 149-50. Petitioner at times gave Young supporting documents to email to Movassaghi. Id. (d/e 76) at 1097-1100.
However, this time one of the individuals who obtained a visa as a result of the March 2013 Petition, Cresencio Garcia-Cruz, did do work for Grayson beginning in July 2013. Crim., Transcript (d/e 73) at 553. Garcia-Cruz continued to work for Grayson until September 2014 even though his visa expired in November 2013. Crim., Plea Transcript (d/e 69) at 22; Crim., Transcript (d/e 70) at 127, (d/e 73) at 557. None of the other individuals who obtained a visa as a result of the March 2013 petition performed any work for Grayson.
Finally, the April 2014 Petition justified the need for 71 visas based on more fabricated contracts, one of which was for $2.895 million. Transcript (d/e 70) at 144-45; Gov. Ex. 400. The trial evidence also showed that these contracts were signed by Petitioner and that Young sent them to Movassaghi via email. Crim., Transcript (d/e 73) at 540-42, 699-703, (d/e 76) at 1123; Gov.Ex. 402 at 22-36.
For the 2011 petitions, Petitioner retained Michael Lombardi of U.S. Opportunities to help him obtain foreign workers for his visas, as well as Lombardi's associate, Kevin Daley. Memo (d/e 2) at 7. Notably, Lombardi was convicted and sentenced for conspiracy to commit visa fraud related to another company's visa petition and was in prison during the time the 2013 and 2014 petitions were filed. See Crim., Transcript (d/e 74) at 808. With Lombardi in prison, Petitioner worked with Daley to obtain workers for the 2013 and 2014 visas. The Government presented evidence that Daley had re-sold visas on the black market to foreign nationals. See Crim., Transcript (d/e 73) at 566. The Government also presented evidence that after the March 2011 and March 2013 I-129 petitions were submitted, Petitioner and Young received at least two payments from Kevin Daley. Crim., Transcript at 254, 302-03, 553-54, 617. Specifically, in June 2011, the petitioner received $2, 000 from Daley via a wire transfer to Gire Construction's bank account. Id. at 722. In September 2013, Young received $4, 000 from Daley via a wire transfer to her personal account. Id. at 269-71, 773.
Nonetheless, Petitioner has consistently maintained his innocence, claiming instead that it must have been Lombardi, Daley, and/or Movassaghi who perpetrated the fraud. At trial, Petitioner presented evidence of other businesses that had had fraudulent petitions submitted on their behalf while working with Lombardi and Movassaghi. See, e.g., Crim., Transcript (d/e 74) at 743-51 (testimony of Teri Borowski who worked for the Polo Club of Boca Raton and alleged that Lombardi charged his workers illegal fees and that his signature was forged on a visa related document). He also presented evidence at trial through Young and others that a woman working for Daley named “Fatima” was the one emailing Movassaghi fabricated paperwork for the visas in March 2013, rather than Petitioner and/or Young. See, e.g., Crim., Transcript (d/e 75) at 979-989.
The criminal investigation began when the Department of State discovered that workers who been granted H-2B visas to work for Gire Roofing had not actually worked for Gire Roofing. Law enforcement executed a search warrant on May 28, 2014, that allowed them to search the Gire warehouse in Champaign, Illinois. In addition to evidence of visa fraud, this search revealed evidence that illegal aliens were working for Petitioner and being housed in this warehouse. Crim., Plea Transcript (d/e 69) at 22-23; Crim., Transcript (d/e 73) at 555, 564, 621-22, 631-32, (d/e 74) at 724-25. These individuals included Garcia-Cruz who entered the United States with a H-2B visa as a result of the March 2013 petition, as well as Lopez-Constantino and Torres-Hernandez, who both entered the United States without documentation. Id. Notably, Petitioner encouraged Torres-Hernandez to apply for an H-2B visa, but his application was denied. Crim., Plea Transcript (d/e 69) at 23. Torres-Hernandez continued to work for Grayson after his application was denied. Id.; Crim., Transcript (d/e 73) at 589-90.
After the search, Petitioner and Young sought legal counsel with the apparent hopes of avoiding an indictment. See e, g., Transcript (d/e 51) at 170. They found DeVooght. With DeVooght, they approached the U.S. Attorney's Office and attempted to explain how Petitioner did not have the motive to commit the crime. They also attempted to direct the...
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