United States v. Solomon
| Decision Date | 06 March 2020 |
| Docket Number | Criminal No. 3:12cr044 (DJN) |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | UNITED STATES OF AMERICA, v. DAVID ISAAC SOLOMON, Petitioner. |
On March 20, 2012, a grand jury returned an indictment against Petitioner David Isaac Solomon, also known as David Chityal ("Petitioner"), charging him with one count of conspiracy to commit mail and wire fraud, one count of conspiracy to commit money laundering, one count of obstructing a pending proceeding and two counts of making false statements. On November 30, 2015, pursuant to a plea agreement, Petitioner pled guilty to conspiracy to commit mail and wire fraud. Subsequently, on February 8, 2016, Senior United States District Judge Robert E. Payne sentenced Petitioner to sixty months' imprisonment with three years of supervised release and a $100 special assessment, dismissing the remaining counts in the Indictment upon motion of the Government. This matter comes before the Court on Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by Person in Federal Custody ("§ 2255 Motion") (ECF No. 93), seeking to vacate his sentence for ineffective assistance of counsel. For the reasons set forth below, the Court DENIES Petitioner's § 2255 Motion (ECF No. 93).
When resolving a § 2255 motion without an evidentiary hearing, the Court must view the facts in the light most favorable to Petitioner. United States v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007). With this principle in mind, the Court accepts the following facts.
On November 30, 2015, as part of his plea agreement, Petitioner stipulated to the following facts. (Statement of Facts ("SOF") (ECF No. 36).) At the time of his indictment, Petitioner was a citizen of Canada and a resident of Hungary. (SOF ¶ 3.) From October 7, 2009 until March 8, 2010, the Government imprisoned Petitioner at the Federal Correctional Complex in Beaumont, Texas ("FCC Beaumont"). (SOF ¶ 4.)
While incarcerated, Petitioner met "Conspirator 1," a fellow inmate. (SOF ¶¶ 5, 18.) Conspirator 1 was serving a 100-year sentence for his role in a $126 million fraudulent scheme using qualified intermediary companies. (SOF ¶¶ 6-8.) As part of his sentence, Conspirator 1's sentencing judge ordered him to pay $128,892,575.97 in restitution to the victims of the fraudulent scheme. (SOF ¶ 8.) To pay back this court-ordered restitution, in October 2007, Conspirator 1 agreed to convey certain assets to the bankruptcy estate of the intermediary companies that he had used as part of the fraudulent scheme (the "Bankruptcy Estate"), including any federal, state or local income tax refunds owed to him. (SOF ¶¶ 10-12.) To effectuate this conveyance, Conspirator 1 granted the power of attorney to the Bankruptcy Estate's accountant and trustee to receive Conspirator 1's tax information and file tax returns on his behalf. (SOF ¶ 13.) In October 2008, the Bankruptcy Estate's accountant filed amended tax returns for 2004 and 2005 on Conspirator 1's behalf, with an anticipated combined refund of over $2,000,000. (SOF ¶ 13.)
In July 2009, Conspirator 1 met with "Attorney A" regarding Attorney A's representation of Conspirator 1 in his criminal appeal. (SOF ¶ 14.) During this meeting, Attorney A informed Conspirator 1 that he would charge $500,000 for his services. (SOF ¶ 14.) Conspirator 1 told Attorney A that he expected large tax refunds and, on December 19, 2009, Conspirator 1 signed a new power of attorney form with the Internal Revenue Service ("IRS") naming Attorney A as his representative in lieu of the Bankruptcy Estate accountant. (SOF ¶¶ 15-16.) On May 19, 2010, Attorney A sent the IRS two forms executed by Conspirator 1 that authorized Attorney A to receive the anticipated refund checks. (SOF ¶ 16.) On July 30, 2010, Conspirator 1 revoked an additional power of attorney that he had granted to the trustee of the Bankruptcy Estate. (SOF ¶ 16.)
On March 8, 2010, Petitioner finished his sentence at FCC Beaumont and the Government moved him to a separate facility pending his deportation to Canada on June 10, 2010. (SOF ¶ 19.) Following Petitioner's deportation, Conspirator 1 spoke with Petitioner by telephone about his criminal appeal and retention of Attorney A, informing Petitioner that he had revoked the power of attorney granted to the Bankruptcy Estate in favor of Attorney A. (SOF ¶¶ 21-25.) During some of these calls, Petitioner and Conspirator 1 discussed how to prevent the Government from seizing the tax refunds and devised a plan to use the refunds as collateral for a loan that they would use to pay Attorney A's retainer, thereby distancing themselves from the refunds. (SOF ¶¶ 24-25.) Both Petitioner and Conspirator 1 communicated with Attorney A by telephone, U.S. mail and electronic mail to inquire about the status of the refund checks. (SOF ¶¶ 26-27.)
On June 17, 2010, Petitioner informed Conspirator 1 that he had contacted "Attorney B," a Canadian lawyer. (SOF ¶ 28.) Pursuant to Petitioner's agreement with Attorney B,Conspirator 1 instructed Attorney A to mail his refund checks to Attorney B, who would then travel to FCC Beaumont with the checks so that Conspirator 1 could endorse them. (SOF ¶ 29.) On June 19, 2010, Petitioner and Conspirator 1 discussed plans to then place the refunds in an off-shore account to reduce suspicion as to the origins of those funds when Conspirator 1 paid Attorney A's retainer. (SOF ¶ 30.)
On September 8, 2010, Attorney A received the refund checks totaling $2,317,078.70, and, as requested by Conspirator 1, Attorney A sent the checks by Federal Express to Attorney B in Canada. (SOF ¶¶ 31-32.) Some time thereafter, Attorney B met with Conspirator 1 at FCC Beaumont and Conspirator 1 endorsed the refund checks. (SOF ¶ 33.) Conspirator 1 directed Attorney B to disburse the refunds as follows: $550,000 to Attorney A for legal fees; $138,000 to Attorney B; $4,000 to Conspirator 1's wife; and, $10,000 to Conspirator 1. (SOF ¶ 33.) Conspirator 1 further directed Attorney B to deposit the checks in a trust account maintained in the Turks and Caicos Islands. (SOF ¶ 33.) After one year, Conspirator 1 would replace Attorney B as the sole signatory on the trust account. (SOF ¶ 33.) As directed, Attorney B left FCC Beaumont and flew to the Turks and Caicos Islands to deposit the refund checks and distribute the payments. (SOF ¶ 33.)
Several days later, on September 21, 2010, an attorney for the Bankruptcy Estate learned that the Estate's accountant and trustee no longer held a valid power of attorney to represent Conspirator 1 before the IRS. (SOF ¶ 35.) The Bankruptcy Estate attorney tracked down Attorney A and Attorney B, and Attorney B agreed to send the refund checks to the trustee of the Bankruptcy Estate. (SOF ¶ 36.) The trustee received the checks on September 23, 2010. (SOF ¶ 37.)
On March 20, 2012, a grand jury returned an indictment against Petitioner, charging Petitioner with five offenses based on the above facts and additional allegations. (Indictment (ECF No. 3) at 3-14.) In Count One, the Indictment alleged that Petitioner conspired to commit mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343 by conspiring with Conspirator 1 to secretly obtain the tax refunds that Conspirator 1 owed to the Bankruptcy Estate so that Conspirator 1 could pay for Attorney A to represent him in his criminal appeal. (Indictment ¶¶ 12-46.) Similarly, Count Two charged Petitioner with conspiring to launder money in violation of 18 U.S.C. § 1956(a)(2)(B)(i) by conspiring with Conspirator 1 to transport, transmit and transfer the tax refunds to off-shore accounts in order to conceal the illicit origins of the funds. (Indictment ¶¶ 47-48.)
In Count Three, the Indictment alleged that Petitioner unlawfully obstructed a pending proceeding — namely, Conspirator 1's criminal appeal before the United State Court of Appeals for the Fourth Circuit — in violation of 18 U.S.C. § 1505 by making false representations to the Fourth Circuit to obtain a delay in Conspirator 1's appeal until Conspirator 1 could use the tax refunds to hire Attorney A. (Indictment ¶¶ 49-51.) And, in Counts Four and Five, the Indictment charged Petitioner with violating 18 U.S.C. § 1001 by making materially false statements to an IRS criminal investigator regarding Petitioner's relationship with Conspirator 1 and his involvement in the tax refund scheme. (Indictment ¶¶ 52-54.)
Following the filing of the Indictment under seal, on March 20, 2012, then-United States Magistrate Judge M. Hannah Lauck issued a warrant for Petitioner's arrest. (Arrest Warrant (ECF No. 5).) The Government initially sought to extradite Petitioner from Canada but laterlearned that Petitioner was traveling internationally. (Mot. to Partially Unseal Indictment & Mem. in Supp. ("Mot. to Unseal") (ECF No. 8) at 1.) The Government then moved to partially unseal the Indictment so that it could obtain a red notice against Petitioner with INTERPOL. (Mot. to Unseal at 1.) After obtaining the red notice, on February 15, 2014, the Government learned that Hungarian officials had arrested Petitioner in Budapest. (Mot. to Unseal at 1.) The Government requested to partially unseal the Indictment to obtain Petitioner's extradition to the United States. (Mot. to Unseal at 2.)
On October 23, 2015, Hungary surrendered Petitioner to the custody of the Government pursuant to Hungary's extradition treaty with the United States. (Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss the Indictment for Lack of Jurisdiction ("Def.'s MTD") (ECF No. 30) at 2.) Because the extradition treaty between the United States and Hungary (the "Extradition Treaty") provides for extradition only for felony offenses recognized under the laws of both countries, Hungary did not authorize Petitioner's extradition on Counts Four and Five of the Indictment. (Mem....
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