U.S. v. Walker and Khan

• Decision Date: 06 April 1999
• Docket Number: Docket Nos. 98-1552
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. SHELDON WALKER and MOHAMMED RASHEED KHAN, also known as Rashid Uddin Khan, Defendants-Appellants, SHAIKH SAEED, Defendant. (L), 98-1564 August Term 1998 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 326

191 F.3d 326 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. SHELDON WALKER and MOHAMMED RASHEED KHAN, also known as Rashid Uddin Khan, Defendants-Appellants, SHAIKH SAEED, Defendant.

Docket Nos. 98-1552(L), 98-1564

August Term 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: April 6, 1999

Decided: September 07, 1999

Appeal from judgments in the United States District Court for the Southern District of New York (Baer, D. J.), convicting defendants-appellants of conspiracy, false statements, and mail fraud, in violation of 18 U.S.C. §§ 371, 1001 & 1341.

Affirmed in part, reversed in part, and remanded.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] ROGER BENNET ADLER, Esq., New York, N.Y., for Defendant-Appellant Walker.

MARANDA E. FRITZ, Esq., Fritz & Miller, New York, N.Y., for Defendant-Appellant Khan.

RICHARD SULLIVAN, Assistant United States Attorney (Mary Jo White, United States Attorney for the Southern District of New York; Christine H. Chung and George S. Canellos, Assistant United States Attorneys, of counsel), New York, N.Y., for Appellee.

Before: NEWMAN, WALKER, and SOTOMAYOR, Circuit Judges.

WALKER, Circuit Judge:

Defendants-appellants Sheldon Walker, an immigration attorney, and Mohammed Rasheed Khan, an interpreter in Walker's office, were convicted after a jury trial on counts of conspiracy, mail fraud, and making false statements to the Immigration and Naturalization Service ("INS"). The charges arose from an extensive pattern of fraudulent asylum applications submitted to the INS. Walker and Khan appeal from the October 2, 1998 judgments of conviction entered in the United States District Court for the Southern District of New York (Harold Baer, Jr., District Judge).

Walker and Khan challenge the sufficiency of the evidence supporting their convictions, the government's conduct during its summation, a jury instruction, and various evidentiary and sentencing rulings of the district court. For the reasons that follow, we reverse one of Khan's false statement convictions for insufficient evidence, affirm the balance of both defendants' convictions, and remand the case for resentencing of Khan.

BACKGROUND

Walker operated a small law office at Penn Plaza in New York City that specialized in immigration work. Walker's practice attracted a large number of alien clients, many of whom spoke little or no English, who came seeking assistance in procuring work permits or asylum in the United States. Walker used interpreters in many languages to service his clients. The interpreters met with prospective clients and assisted them in presenting their stories on applications to the INS. Khan, an attorney in Bangladesh before coming to the United States, began work as an interpreter for Walker in 1992.

After examining and comparing the numerous applications it received from Walker's practice, the INS discovered that many were substantially identical. On September 11, 1996, the government filed an indictment charging Walker, Khan, and Shaikh Saeed (another of Walker's employees) with mail fraud, false statements, and conspiracy. In early 1997, Saeed pled guilty to one count of conspiracy to make false statements and to commit mail fraud.

On October 8, 1997, the government filed a twenty-eight count superseding indictment. The indictment charged Walker and Khan in count one with conspiracy to submit false statements to the INS and to commit mail fraud, in violation of 18 U.S.C. §371; charged Walker with thirteen counts of false statements in violation of 18 U.S.C. §§ 1001 and 2, and fourteen substantive mail fraud counts in violation of 18 U.S.C. §§ 1341 and 2; and charged Khan in three false application and three mail fraud counts. Walker and Khan were tried jointly before a jury in May, 1998.

The government's case consisted of testimony from INS officials, former employees in Walker's office, and Walker's former clients, as well as a large amount of documentary evidence. Catrin Lea, an INS official, testified about asylum procedures and policies, explaining how applicants for asylum in the early 1990s were routinely given work authorizations that allowed them to work temporarily in the United States while their applications were under review. Special Agent Craig Vanderhoff of the INS described the initiation of the INS investigation into Walker's office. David Cartier, an INS "intelligence research specialist" who regularly reviewed applications for patterns of abuse, testified that in August of 1995, after examining 1365 applications submitted by Walker's office, he found that the applications from immigrants from different countries fell into regular patterns. For example, on Bangladeshi applications, a series of nineteen stories were repeatedly employed almost word-for-word, with certain phrases appearing in identical fashion.

Seven of Walker's former clients testified, many pursuant to cooperation agreements. They recounted that when they engaged Walker's services, Walker or his employees took their photograph and fingerprints, asked them to sign blank immigration forms, and collected a fee, and that they later learned that Walker's office had submitted false asylum applications on their behalf.

For example, Vindhya Vilasini, a native of India, testified that in early 1993 she asked Walker for assistance in her effort to remain in the United States to work. Walker told her he could help her obtain some kind of visa. She then gave her name, date of birth, and country of origin to Khan, who took her photograph and fingerprints. Vilasini returned to Walker's office to pay her fee, and Khan gave her a blank application to sign. The application was later completed with fabricated information that she had not provided. When she asked Khan about the false story on the application, Khan reassured her that it was necessary for an asylum application. At her INS interview, Vilasini lied in conformity with the false story on her application.

Other former clients provided similar accounts. Erdem Akcali, who left Turkey for the United States in 1989, testified that he went to Walker's office in 1992 and told Walker he was seeking political asylum. Akcali provided one of Walker's employees with a statement about the oppression he had experienced in Turkey due to his political beliefs. In 1995, when he was due to report to the INS for an interview, Akcali reviewed his application and discovered that it contained a completely different story from the one he had provided. When he confronted Walker with this discrepancy, Walker told Akcali that he had to stand by his application as it was written, or he would have to withdraw the application. When Akcali refused to support the application and resisted signing a withdrawal letter, Walker threatened to call the police and arrange for his deportation. Akcali then signed the withdrawal letter and pursued his asylum claim through another attorney.

Floria Perlleshi, a Yugoslavian national, testified that after working illegally for a short time in the United States she and her husband sought Walker's assistance in procuring green cards. Walker advised them to pursue asylum and she and her husband told him of the difficulties they had experienced as Albanians in Yugoslavia. Walker collected a fee and instructed them to sign some blank forms. Several months later, after hearing nothing, they returned to Walker's office, where they signed more papers and paid an additional fee. They then received work authorizations in the mail and renewed them annually, each time paying Walker additional fees. Tired of waiting, Perlleshi eventually requested her asylum application directly from the INS and discovered that it contained a false story of political persecution.

The last client to testify was Mehmet Ozdemir. He met with Walker at a Turkish coffeehouse in Hempstead, New York, where Walker told a group of immigrants, including Ozdemir, how to obtain work permits. Ozdemir paid a fee, was photographed and fingerprinted and signed blank forms. Later Ozdemir learned that an asylum application had been submitted in his name and that it contained a false story of political persecution.

Two of Walker's former employees also testified for the government. Shureen Mohamed, originally from Guyana, worked as a receptionist and paralegal for Walker from December of 1987 until 1994. Mohamed described the roles that different employees played in Walker's office and testified that Khan and another interpreter, Nazrul Islam Shapon, were responsible for assisting Bangladeshi clients. Walker's fee for obtaining a work authorization was generally $600, with $300 payable in advance. Walker instructed his employees to write an incorrect client address on clients' applications for work permits, so that the work authorization cards would be returned to the INS and then be forwarded to Walker's office. This assisted the office in collecting fee balances from clients who had to go to the office to retrieve their permits.

Another employee, Syed Anwar Rizvi, testified that he worked for Walker as a filing clerk from 1992 until 1993. Rizvi testified about office operations and about how he had helped to fill in the details on a backlog of over a thousand asylum applications, selecting accounts of persecution from a collection of stories that the office kept in a drawer. Walker would sometimes review the completed applications prepared by his staff. Walker usually handled clients from Turkey and Albania himself.

The defense case was brief. Khan called his son, who testified that his father had been hospitalized after being hit by a car on February 28, 1993; that his father returned home from the hospital on March 16, 1993, but was not able to leave his apartment for three or four months; and that his father did not return to work until September of 1993. Khan also briefly recalled Special Agent Craig Vanderhoff....