U.S. v. Qadeer
| Decision Date | 29 January 1997 |
| Docket Number | No. CR496-146.,CR496-146. |
| Citation | 953 F.Supp. 1570 |
| Parties | UNITED STATES of America, v. Shahid QADEER a/k/a Shahid Qadeer Bhatti, Defendant. |
| Court | U.S. District Court — Southern District of Georgia |
Roland B. Williams of Hunter, Maclean, Exley & Dunn, Savannah, GA, for defendant.
Currently before this Court is the question of whether it should, pursuant to 18 U.S.C. § 3583(d), deport Defendant Qadeer as a condition of supervised release. For the reasons stated below, this Court will not itself order the deportation of Defendant. However, it will AMEND its December 13, 1996, sentencing judgment (Doc. 27) to include the following directive:
As a condition of supervised release, upon completion of his term of imprisonment, Defendant is to be surrendered to a duly authorized immigration official who will determine whether Defendant should be deported in accordance with the established procedures provided by the Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq. As a further condition of supervised release, if he is ordered deported, Defendant shall remain outside the United States in accordance with any directive issued by the Immigration and Naturalization Service.
During the deportation proceedings, Defendant may, with his own resources, obtain the assistance of counsel but he will not be entitled to the Government-sponsored assistance of counsel appointed for this criminal case.
On August 14, 1996, the Grand Jury for the Southern District of Georgia returned a True Bill of Indictment against Defendant and his co-Defendant, Ansar Masood Butt (Doe. 1). The one-count Indictment charged that both Defendants worked together in stealing cellular phone air time for the purposes of relaying telephone calls from southeast Georgia to foreign countries including Kuwait, Egypt, and Israel, in violation of 18 U.S.C. § 1029(a)(5). On August 19, Magistrate Judge G.R. Smith appointed counsel for both Defendants pursuant to the Criminal Justice Act of 1964 ("CJA") (Docs. 3 and 4). 18 U.S.C. § 3006A; FED.R.CRIM.P. 44.
As both Defendants were of Pakistani national origin and reportedly had difficulty understanding and communicating in English, Magistrate Judge Smith appointed Dr. R. Khondker, an associate professor of Economics at Armstrong State College (now Armstrong Atlantic State University), to interpret for both men (Doc. 11). To the Court's satisfaction, Dr. Khondker interpreted several times after his August 20 appointment and was of invaluable assistance to the Court and Defendant.
On October 10, both Defendants pled guilty to the one count in the Indictment (Docs. 20 and 21). In return for the Defendants' guilty pleas, the Government agreed to recommend that the Court employ a two-level reduction for acceptance of responsibility when determining the applicable sentences under the United States Sentencing Guidelines and also agreed to take no position with respect to sentencing. See Paragraph One of both Plea Agreements (Docs. 24 and 25).
At the sentencing hearing, this Court sentenced Defendant Butt to twelve months imprisonment and further ordered, that as a condition of supervised release, Defendant Butt would be deported pursuant to 18 U.S.C. § 3583(d) (Doc. 26). With a sentencing range of six to twelve months, the Court sentenced Defendant Qadeer to eight months imprisonment and issued the following statement regarding the conditions of supervised release:
As an additional condition, defendant might be deported. In early 1997, this Court will hold a hearing pertaining to the question of defendant's deportation at which time this judgment will be amended by the Court to reflect defendant's deportation status. Counsel will be given 30 days notice prior to the aforementioned hearing.
(Doc. 27).
In contrast to Defendant Butt (who undisputedly was an illegal alien), this Court expressed that it had some concerns pertaining to the question of whether Defendant Qadeer could be deported due to his being in the country under a grant of political asylum from the Immigration and Naturalization Service ("I.N.S."). At the same time, this Court told the Defendants that it was extremely disturbing that they could come to this country seeking its protection and riches and then show their lack of appreciation by choosing to commit crimes for profit almost immediately after their entry into the United States. Both men were ordered to contribute equally to the total amount of restitution which was to be paid to the victim of their crimes: Alltel Communication of Georgia. The aggregate restitution ordered by the Court amounted to $30,631.16.
On December 20, the Clerk of Court issued a Notice to Defendant Qadeer indicating that the deportation hearing would be held on January 23, 1997. The Court conducted the hearing at 2:30 on the afternoon of January 23 and the hearing lasted until approximately 4:15.
At the Court's request, the Government represented the Court's interest and called Agent Pedro Padilla, Jr., of the I.N.S.1 During his testimony, Agent Padilla reviewed Defendant's I.N.S. file and noted that the I.N.S. had granted him political asylum in 1995. The grant of asylum was contained in a May 10, 1995, letter to Defendant. Specifically, the paragraph pertaining to the grant states: Over no objection, the Court admitted the letter as Exhibit 1.
Agent Padilla testified that Defendant had violated a condition of his asylum status by not keeping the I.N.S. informed of changes in address despite being directed to in the May 1995 letter. The portion of the letter addressing this requirement reads: Agent Padilla stated that the I.N.S. discovered that Defendant had not complied with this request because, when arrested, Defendant gave a Flushing, New York address rather than the Brooklyn, New York address which he had supplied to the I.N.S. The I.N.S. generally considers the failure to notify it of an address change a deportable offense. The Government did not call any witness other than Agent Padilla.
Defendant called Dr. Khondker, not in his capacity as interpreter but, rather, as an expert witness, to discuss the socio-political situation in Pakistan. As mentioned previously, Dr. Khondker is an economist at Armstrong Atlantic State University; he holds a doctorate of philosophy in that field from West Virginia University. He possesses a notable understanding of the political situation and appears to be an expert on the politico-economic history of the Indian subcontinent. Currently, he is authoring works on the politico-economic histories of that region. It appears that he has remained abreast of the developing situations throughout Pakistan.
Though this Court found Dr. Khondker affable and extremely intelligent, it declined to accept him as an expert witness on any matter other than a politico-economic discussion of Pakistani affairs. It did, however, agree to hear his narrative of the general political history of Pakistan as well as the current political situation in that country. At the same time, the Court indicated that it would not regard that testimony as anything other than observations from a lay observer.
Despite this technical limitation, this Court considers it somewhat valuable to include the discussion of Pakistan's history for purposes of context. Dr. Khondker told the Court that, shortly after India gained its independence from the British Empire, a rift developed between the Hindu majority in the south and the Muslim minority in the north. In two of the northern Indian states, there existed Muslim majorities: in the northeast, Bengal; in the northwest, Punjab. In 1947, after a period of civil war, the eastern portion of Bengal and the western portion of Punjab broke free of Indian rule and formed Pakistan. During this time, a mass exodus of Muslim refugees from India crossed the border into the new country. Dr. Khondker described this relocation as, perhaps, the defining moment in Pakistani history. The western Punjabi territory formed what is now Pakistan proper while the eastern Bengali territory formed what Dr. Khondker referred to as East Pakistan. The two territories, though part of one sovereign entity, were separated by approximately one thousand miles of Indian land.
Dr. Khondker told the Court that the majority of the new Pakistani republic spoke a Bengali language but that the minority in the west spoke a different language and held on to the power structure of the state.2 The western minority attempted to impose its language as the official language over the entirety of the bifurcated state. This stance, among others, led to increased tensions between the Bengali and Punjabi Pakistanis and the eventual persecution of the Bengalis by the Punjabi minority.
The tension between East Pakistan and Pakistan eventually led to another civil war. In 1971, Bengali Pakistan, with the aid of the Indian military, defeated the Pakistani forces, divorced itself from Pakistan, and formed what is now Bangladesh. Dr. Khondker is a Bengali Pakistani; he left the Indian subcontinent in September 1977 and came to the United States. Defendant, apparently, is also a Bengali Pakistani who lived in Karachi in Pakistan proper until he left for North America.
Despite the formal schism of the old Pakistan, many ethnic Bengalis remain in Pakistan but now constitute an ethnic minority in that state due to...
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Aquino-Encarnacion v. I.N.S., 02-1362.
...new subclause II: is convicted of a crime for which a sentence of one year or longer may be imposed.... Accord, United States v. Qadeer, 953 F.Supp. 1570, 1580 (S.D.Ga.1997). The decision of the Board of Immigration Appeals is ...