U.S. v. Abdelhadi, 1:03CR610.

• Decision Date: 26 July 2004
• Docket Number: No. 1:03CR610.,1:03CR610.
• Citation: 327 F.Supp.2d 587
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES v. Ihsan M. ABDELHADI, Defendant.

327 F.Supp.2d 587

UNITED STATES v. Ihsan M. ABDELHADI, Defendant.

No. 1:03CR610.

United States District Court, E.D. Virginia, Alexandria Division.

July 26, 2004.

COPYRIGHT MATERIAL OMITTED

Raymond E. Patricco, Jr., United States Attorney's Office, Alexandria, VA, for Plaintiff.

Michael M. Hadeed, Jr., Becker Hadeed Kellogg & Berry PC, Springfield, VA, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

In this criminal prosecution for wire fraud and naturalization fraud, the defendant first pled guilty to the offenses, then sought unsuccessfully to withdraw his plea and finally absconded prior to sentencing. The novel post-sentencing question presented is whether it was proper to enter an order pursuant to the All-Writs Act, 28 U.S.C. § 1651, (i) restraining the absconding defendant and others acting in concert with him from transferring, selling or engaging in any other action that would decrease the value of defendant's property and (ii) authorizing the government to file a notice of lis pendens on defendant's real property. This order issued and recitation of the facts and proceedings to date helps illustrate the compelling need for this extraordinary remedy in the instant circumstances.

I.¹

On December 23, 2003, defendant Ihsan M. Abdelhadi, a Jordanian national, was indicted on ten counts of wire fraud in violation of 18 U.S.C. §§ 1343 and 2 based on defendant's scheme to defraud his employer, Olympic Imported Auto Parts, of approximately $108,000 over approximately a four year period from 1998 and 2002. Pursuant to this scheme, defendant, an employee and assistant manager at Olympic's Fairfax store since July 1991, authorized over 800 transactions in which he fraudulently indicated that an Olympic customer had returned a defective automobile part for a refund. In fact, no such customers or defective parts existed. So, instead of refunding the purchase price to a non-existent customer, defendant prepared false documentation purporting to authorize a refund and then misappropriated that refund (i) by retrieving for himself the amount of the refund in cash from his cash drawer or Olympic's accounting department or (ii) by crediting the amount of the refund to his personal credit card or the credit card of a family member. Following his arraignment on these charges on January 5, 2004, defendant was released on an unsecured $25,000 personal recognizance bond with pretrial supervision.

In addition to the charges in the Indictment, defendant was also charged in a criminal information with one count of naturalization fraud in violation of 18 U.S.C. § 1425(a). This charge was based on the allegation that defendant had falsely indicated on his Application for Naturalization — Immigration and Naturalization Service ("INS") Form N-400 — submitted to the INS service center in St. Albans, Vermont in June 2000, that he had never previously claimed to be a United States citizen, when in fact he had indicated on an INS Employment Eligibility Verification Form I-9 submitted to Olympic on two occasions, July 9, 1991 and June 25, 1997, that he was a United States citizen. Not only had defendant signed the Form N-400 under oath, but he later, also under oath, confirmed the accuracy of the information included on that form during an interview with a naturalization examiner in Arlington, Virginia. Thereafter, pursuant to that fraudulent application, defendant became a naturalized citizen on May 17, 2001.

On March 10, 2004, five days prior to the scheduled trial on these charges, defendant, pursuant to a plea agreement, pled guilty to (i) one count of wire fraud and (ii) one count of naturalization fraud. See United States v. Abdelhadi, Criminal Action No. 03-610-A (E.D.Va. Mar. 10, 2004) (Plea Agreement). Following a plea colloquy conducted in accordance with Rule 11, Fed.R.Crim.P., defendant's guilty plea was accepted as knowingly and voluntarily made and as supported by an independent basis in fact. By separate orders that same day, the remaining nine counts of the Indictment were dismissed, the final order admitting defendant to United States citizenship was revoked, set aside, and declared void, and defendant's certificate of naturalization was cancelled. See United States v. Abdelhadi, Criminal Action No. 03-610-A (E.D.Va. Mar. 10, 2004) (Orders). Defendant was also ordered to surrender his United States passport. Although he thereafter surrendered his United States passport, he told the supervising pre-trial services officer that his Jordanian passport had been lost in the mail and thus never surrendered that passport.

On July 2, 2004, prior to sentencing, defendant, by counsel,² moved to withdraw his guilty plea pursuant to Rule 11, Fed.R.Crim.P., on the grounds (i) that defendant had received ineffective assistance of counsel in preparing a defense to the charged offenses, (ii) that defendant was innocent of the charged offenses, and (iii) that defendant's guilty plea was unknowing and involuntary because defendant was not aware that his plea would affect his immigration status, namely that he would be classified as an aggravated felon, deported without available relief or waiver, and not permitted release on bond were he charged as an alien subject to removal by the Department of Homeland Security. Oral argument on this motion was heard on July 9, 2004 at which time defendant's motion to withdraw was denied for the reasons set forth in Part II below. At that hearing, the government proffered evidence that pointed convincingly to defendant's guilt on both charges. This evidence included:

(i) testimony of an Olympic customer that he, the customer, never returned an automobile part that defendant had indicated had been returned and indeed that the original part remained on the customer's car;

(ii) testimony of an Olympic supervisor concerning Olympic's extensive investigation of the fraudulent transactions, which included extensive review of documents and computer records relating to returned parts, including an inventory of returned parts that confirmed that none of the parts defendant processed as returned were in fact returned;

(iii) testimony of an Olympic supervisor that defendant was one of only two managers with signature authority to authorize cash refunds on returned parts and that the return of non-existent parts was typically processed at defendant's assigned computer terminal and did not occur when defendant was absent from work or on vacation;

(iv) testimony of an Olympic employee who claimed that he witnessed the defendant process a return when no customer was present; and

(v) evidence that many fraudulent return transactions were credited to defendant's personal credit card.

Defendant was not, however, sentenced at the July 9 hearing. Instead, sentencing was continued to July 15, 2004 to allow defendant a further opportunity to address the government's motion for a two-level enhancement based on defendant's alleged abuse of a position of trust pursuant to § 3B1.3. See U.S. Sentencing Guidelines Manual § 3B1.3 (2003). Because defendant's motion had failed and defendant now faced a substantial term of imprisonment, the government moved on July 9 to revoke defendant's release on conditions and a bond. This motion was denied after it was confirmed that defendant had consistently complied with all the conditions of release and owns a home in Maryland where he was residing with his wife and two children, all of whom are American citizens. Defendant, however, was directed to contact his pre-trial services officer twice a day prior to the sentencing hearing and reminded that he would be responsible for $25,000 bail in the event he absconded.

Despite this, it became clear on the morning of July 15, prior to the scheduled sentencing hearing, that defendant had absconded. Specifically, when defendant failed to contact the pre-trial services officer that morning, the officer contacted defendant's wife who, in tears, stated that defendant had departed that morning, that she was unaware of defendant's whereabouts, and that he had left her several notes indicating that he intended to flee the country. When defendant failed to appear at the scheduled sentencing hearing, a bench warrant issued for his arrest, and sentencing was continued until July 19, 2004. During the course of the July 15 hearing, the government repeated its proffer of evidence regarding defendant's guilt.

When defendant again did not appear for sentencing on July 19, he was sentenced in absentia³ to (i) twenty-seven (27) months imprisonment, (ii) three years supervised release, and (iii) restitution payments to Olympic in the amount of $108,535.31.⁴ This sentence was based on an offense level of seventeen (17) and a criminal history category of I.⁵

In addition to the sentence imposed, upon motion by the government, an Order was entered pursuant to the All-Writs Act, 28 U.S.C. § 1651, (i) enjoining and restraining defendant, his representatives, attorneys, agents, family members, and assigns from transferring, selling, encumbering, hypothecating, spending or attempting or completing any action that would affect or diminish the marketability or value of defendant's property subject to restitution pursuant to defendant's plea agreement and the Mandatory Victim Restitution Act ("MVRA"), 18 U.S.C. § 3663, and (ii) authorizing the government to file a notice of lis pendens on defendant's real property. See United States v. Abdelhadi, Criminal Action No. 03-610-A (E.D.Va. July 19, 2004) (Restraining Order). This Order was intended to ensure that defendant's property would be available for restitution in the event defendant continued to be a fugitive and failed to pay the restitution. At issue here is the propriety of this Order. Before proceeding to an analysis of this question, it is useful to review the reasons for the denial of defendant's motion to withdraw his guilty plea.

II.

Rule 11(d), Fed.R.Crim.P., makes clear that...