United States v. Sahabir

• Decision Date: 26 July 2012
• Docket Number: No. 1:09–CR–507.,1:09–CR–507.
• Parties: UNITED STATES of America, v. Baldeo SAHABIR and Kamla Sahabir, Petitioner–Defendants.
• Court: U.S. District Court — Northern District of New York

880 F.Supp.2d 377

UNITED STATES of America,

v.Baldeo SAHABIR and Kamla Sahabir, Petitioner–Defendants.

No. 1:09–CR–507.

United States District Court,

N.D. New York.

July 26, 2012.

Baldeo Sahabir, Folkston, GA, pro se.

Kamla Sahabir, Alderson, WV, pro se.

Richard S. Hartunian, United States Attorney, Of Counsel: Edward R. Broton, Esq., Gwendolyn E. Carroll, Esq., Asst. United States Attorneys, Syracuse, NY, for Plaintiff.

MEMORANDUM–DECISION and ORDER

DAVID N. HURD, District Judge.

I. INTRODUCTION

Petitioners Baldeo Sahabir (“Baldeo”) and Kamla Sahabir (“Kamla”) (collectively “petitioners”), move pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct the imposed sentences. They also move for discovery, an evidentiary hearing, and appointment of counsel. The United States of America (“the Government”) opposes. Petitioners reply with permission. The motions were considered without oral argument.

II. BACKGROUND

On September 23, 2009, the Government filed an indictment charging the petitioners with conspiracy to commit money laundering ( Count One ) with each other and other persons, including Lal Singh (“Singh”), to defraud the Bank of New York by transferring unclaimed funds to outside accounts for distribution. They were also charged with substantive money laundering ( Count Two,) and eight counts ( Counts Three through Ten ) of aiding and abetting a scheme to defraud a federally insured bank. These activities took place from 2001 until 2007.

Trial began on August 16, 2010, and on August 19, 2010, the jury returned verdicts convicting Baldeo of Counts One through Ten and Kamla of Counts One, Two, Six, Seven, Eight, Nine, and Ten. On December 20, 2010, judgment was entered. Baldeo was sentenced principally to a term of imprisonment of 60 months and Kamla was sentenced to 36 months. Both were ordered to pay restitution.

Among their other posttrial filings, on December 28, 2010, the petitioners filed notices of appeal with the Second Circuit, which they later voluntarily withdrew. Additionally, on January 20, 2011, Baldeo filed an emergency motion seeking an order to show cause requesting a new trial and stay of incarceration. Kamla joined the motion that same day. The motion was premised on two affidavits, containing testimony from Urmella Ramotar and Shareeza Alli, stating that Singh had said he had framed the petitioners, they were not a part of the money laundering scam, and that he had lied to save himself and his family. Mot. Ex. A., Ramotar Aff. at 1:7–22; Mot. Ex. B., Alli Aff. at 1:9–15. The motion was denied.

III. DISCUSSIONA. Motions to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255

A prisoner may challenge his sentence on the grounds that it “was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack....” 28 U.S.C.A. § 2255(a) (West 2006).

The petitioners assert that they were denied the effective assistance of counsel, that there has been a new or intervening change in the law that renders their confinement unconstitutional, and that new evidence has surfaced which merits a reduction in their sentences.

1. Ineffective Assistance of Counsel

Petitioners argue that they were denied the effective assistance of counsel in violation of the Sixth Amendment.¹ In order to establish ineffective assistance of counsel, they must show that: (1) their attorneys' performances were objectively unreasonable and (2) they were prejudiced by their attorneys' sub-standard representations; that is, they “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); see also Brown v. Greene, 577 F.3d 107, 110 (2d Cir.2009) (citing Carrion v. Smith, 549 F.3d 583, 588 (2d Cir.2008)). In considering the first prong, there is “ ‘a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance....’ ” Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir.2001) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). With respect to the prejudice prong, “a ‘reasonable probability’ of a different result is a ‘probability sufficient to undermine confidence in the outcome.’ ” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir.2009) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).

Addressing the first prong of the Strickland test, petitioners assert that counsels' performances were objectively unreasonable because they failed to argue United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). Petitioners maintain that had their attorneys argued Santos, they would have received a lesser sentence or been acquitted.²

The federal money laundering statute applicable in this case made it illegal to conduct a financial transaction, knowing that the property involved represented the proceeds of illegal activity, while intending to promote the “carrying on” of that activity. 18 U.S.C.A. § 1956(a)(1)(A)(i) (West 2006). The term “proceeds” in the statute had been left undefined by Congress, but had been interpreted broadly to include gross receipts and not simply profits. Santos, 553 U.S. at 511–13, 128 S.Ct. at 2024–25.

In Santos, the defendant ran an illegal gambling operation and paid its expenses, making payments to runners, collectors, and winners. Id. at 509, 128 S.Ct. at 2023. Each payment of an expense invoked illegal gambling laws, and under the expansive definition of proceeds, also invoked the federal money laundering statute. Id. at 509–10, 128 S.Ct. at 2023. Thus, Santos was convicted on charges relating to running an illegal gambling business, and also of conspiracy to launder money and substantive money laundering, based upon the same acts. Id. at 509–10, 128 S.Ct. at 2023.

A plurality of the Supreme Court determined that this created a merger issue, in that if the term proceeds were interpreted to include receipts, any defendant who operated an illegal gambling operation and paid its expenses would invariably also commit money laundering. Id. at 515, 128 S.Ct. at 2026. To prevent this merger issue, the plurality determined that proceeds, as used in the federal money laundering statute, should be interpreted to mean profits. See id. at 523, 128 S.Ct. at 2031.

However, because there was no majority opinion from the Court, Santos is limited by Justice Stevens' concurrence, which applied the new definition of proceeds only to situations involving illegal gambling operations. See id. at 525–28, 128 S.Ct. at 2032–33 (Stevens, J., concurring). Thus, Santos has been applied narrowly. See United States v. Quinones, 635 F.3d 590, 600 (2d Cir.2011) (holding that the narrow definition of proceeds as profits does not apply where the underlying offense is the sale of controlled substances), cert. denied,––– U.S. ––––, 132 S.Ct. 830, 181 L.Ed.2d 527 (2011); Gotti v. United States, No. 08–CV–2664 (FB), 2009 WL 197132, at *2 (E.D.N.Y. Jan. 28, 2009) (“Santos is limited to its facts....”).

Petitioners were convicted of conspiracy to commit money laundering of bank fraud proceeds, money laundering, and numerous counts of aiding and abetting a scheme to defraud a federally insured bank. Because none of these charges involved illegal gambling, Santos did not apply and it would have been futile to make a Santos argument. Therefore, it was reasonable and proper that petitioners' experienced trial counsel did not argue Santos.

Moving on to the second prong of the Strickland test, had Santos been argued at trial, there is no reasonable probability that the result would have been different because the rule it announced does not apply to the charges against the petitioners—money laundering involving bank fraud. Because confidence in the outcome of the proceedings has not been undermined, no prejudice has been shown.³

As the counsel received was neither objectively unreasonable nor prejudicial, the petitioners' ineffective assistance of counsel argument is without merit. For the same reasons as above, their argument that Santos established a new or intervening rule of law which renders their confinement unconstitutional is also without merit.

2. New Evidence to Mitigate the Sentences

Petitioners argue that new evidence has come to light which merits a reduction in their sentences. New evidence that warrants relief “ ‘is evidence that is discovered after the original hearing, and which could not, with due diligence of counsel, have been discovered sooner.’ ” Moreno–Ortiz v. United States, 983 F.2d 15, 16 (2d Cir.1993) (quoting Giacalone v. United States, 739 F.2d 40, 43 (2d Cir.1984)). Further, “the evidence must be ‘material, not cumulative, and ... probably lead to an acquittal.’ ” Id. at 16–17 (quoting United States v. Alessi, 638 F.2d 466, 479 (2d Cir.1980)). New impeachment evidence is immaterial if it “ ‘merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable.’ ” United States v. Wong, 78 F.3d 73, 79 (2d Cir.1996) (quoting United States v. Payne, 63 F.3d 1200, 1210 (2d Cir.1995)).

The new evidence must also have been admissible at trial. Dalli v. United States, 491 F.2d 758, 760 (2d Cir.1974) (collecting cases). Hearsay statements will not suffice. Id. Hearsay is any out-of-court statement “offer[ed] in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). Affidavits containing hearsay are consistently rejected as insufficient to support a § 2255 motion. See Dalli, 491 F.2d at 761 (a police officers' affidavit stating that he had learned of a common practice that contradictedhis trial testimony was hearsay); LoCascio v. United States, 395 F.3d 51, 57 (2d Cir.2005) (an affidavit...