Yushuvayev v. U.S., 07-CV-1338.
Decision Date | 18 January 2008 |
Docket Number | No. 07-CV-1338.,07-CV-1338. |
Citation | 532 F.Supp.2d 455 |
Parties | Nisim YUSHUVAYEV, Petitioner, v. UNITED STATES of America, Defendant. |
Court | U.S. District Court — Eastern District of New York |
Albert Y. Dayan, Law Office of Mr. Albert Y. Dayan, Queens, NY, for the Petitioner.
Lee Joshua Freedman, United States Attorney's Office, Brooklyn, NY, for the Defendant.
Petitioner Nisim Yushuvayev seeks an order pursuant to 28 U.S.C. § 2255 ("Section 2255") vacating his conviction and sentence in the underlying criminal action, United States v. Kang, 04-CR-87. Mr. Yushuvayev alleges that he was ineffectively assisted by his attorney, Barry Zone, in several ways, most prominently by Mr. Zone's advising Mr. Yushuvayev to accept a plea agreement which included a stipulation that Mr. Yushuvayev's crime involved kidnapping and conspiracy to kidnap, and by failing to move to `dismiss the indictment, which allegedly, violated Mr. Yushuvayev's rights under the Sixth Amendment to the federal Constitution, to confront his accusers and to know the nature of the charges against him. For the reasons stated below, Mr. Yushuvayev's Section 2255 petition is dismissed.
The story of Mr. Yushuvayev's offense begins with Wun Hee Kang and Kyongja Kang, a married couple of South Korean origin who owned several nail salons on Long Island and a bar known as Renaissance in Queens, New York. In April 2003, Kyongja Kang traveled to South Korea for the purpose of recruiting young women to work at Renaissance. Mrs. Kang allegedly promised the women that they would be paid $40 per day, plus tips, and would not be required to have sexual relations with the customers while working at the bar. Relying on these representations, two young women who are now cooperating witnesses, known to the Court only as Jane Doe 1 and Jane Doe 2, agreed to accompany Mrs. Kang back to New York, arriving on May 30, 2003.
Upon arriving in the United States, however, the cooperating witnesses quickly learned that Mrs. Kang's representations were untrue. Mr. Kang met the cooperating witnesses when they arrived at John F. Kennedy International Airport and drove the young women to a house in Flushing, Queens, where they were thereafter required to live. Mr. Kang also forced the women to surrender their passports and their return airline tickets. The women began work at Renaissance the next day, working 6% hour shifts for six days per week. Rather than the $40 per day they were initially promised, the women were paid only $30 per day, plus tips; moreover, the women were informed that they each owed the Kangs approximately $20,000 for various travel-related expenses, and were forced to sign promissory notes in the amount of $20,000. They were not permitted to keep their wages or tips while working at Renaissance; rather, all of their income was taken by the Kangs and credited toward their "debt." In addition, the women were not permitted to leave the house in which they were staying without the Kangs' permission, and, because all of their income was confiscated by the Kangs, were forced to borrow money from the Kangs when they wished to make any purchases outside the bar, thereby increasing their indebtedness.
According to statements by Jane Does 1 and 2, sometime in mid-June 2003, an employee of Renaissance approached several "hostesses," including both of the cooperating witnesses, and told them that they could earn more money by having sexual relations with some of the customers. The women refused to engage in prostitution, and a few weeks later, in July 2003, Wun Hee Kang informed Jane Does 1 and 2 that they were not paying off their debt quickly enough and that they could earn more money by having sex with customers, as other employees did.2 When the women again refused, Mr. Kang threatened to "crack their skulls," and thereafter was verbally abusive and threatening when the women refused to' engage in prostitution. The cooperating witnesses also alleged that Mr. Kang sexually assaulted them on several occasions in 2003,3 though. Mr. Kang denied this at his sentencing hearing and the government chose not to press that allegation. As the summer of 2008 continued, the abuse of the cooperating witnesses became more violent. The PSR alleges various instances in which Wun Hee Kang and Hyun Goo Kang, the manager of the Renaissance,4 slapped or hit the cooperating witnesses, or left them locked in the Kangs' house in Port Jefferson, New York, and unable to leave. In August 2003, Wun Hee Kang took Jane Doe 1 to the basement of his house in basement for most of the next two days; eventually, Kyongja King told Jane Doe 1 to apologize to Wun Hee Kang, after which Jane Doe 1 was permitted to leave the basement and to resume working at Renaissance.5 On September 1, 2003, both cooperating witnesses left the house without permission; about three days later, Mr. Kang left a threatening voice mail message for Jane Doe 1 on the mobile telephone he had provided her. The cooperating witnesses then contacted Hyun Goo Kang, who delivered them to Mr. and Mrs. Kang. Mrs. Kang forced both women to kneel in front of her as she screamed obscenities at them; Mr. Kang then came into the room and kicked Jane Doe 1 in the head until she lost consciousness. The next day, the cooperating witnesses overheard Mr. Kang discussing selling them to a brothel in Chinatown, and on the following day, Mr. Kang received a telephone call, which was again overheard by the cooperating witnesses, in which he was advised that the sale of the two women might take another day or two to negotiate.
On September 9, 2003, Jane Doe 2 left the Kangs' house and went to the 109th Precinct of the New York City Police Department, where she was interviewed by a police officer fluent in Korean. She told the officer that Mr. Kang had sexually assaulted her and attempted to force her into prostitution. The police officer then went to the Renaissance, located Jane Doe 1, and interviewed her at the precinct station. Mr. Kang was arrested later that day, charged with unlawful imprisonment and assault, and released. The next day, police interviewed Kyongja Kang, asking about the cooperating witnesses' missing passports. Mrs. Kang replied that she had not confiscated the passports, but merely taken them for safekeeping. The following day, Mr. Kang delivered Jane Doe 2's passport to the police; when asked about Jane Doe 1's passport, Mr. Kang replied that he did not have it and he believed it had been seized by officers during his arrest. The police informed him that Jane Doe 1's passport had not been seized and directed him to find and deliver the passport.
In fall 2003, petitioner Nisim Yushuvayev was employed as an Inspector for United States Customs and Border Protection, a division of the Department of Homeland Security, and assigned to the Marine Unit at John F. Kennedy International Airport. Prior to obtaining that position in March 2003, Mr. Yushuvayev had been an Inspector for Immigration and Naturalization Services ("INS") from June 2001 through March 2003. Between October and November 2003, Mr. Yushuvayev met with Mr. Kang and Byungki Koo, a federal air marshal, in the Renaissance on at least two occasions. Knowing that Yushuvayev and Koo were federal agents, Mr. Kang approached them with a scheme to have Jane Doe 1. and 2 forcibly removed from the United States to prevent their testifying against him in the state proceeding. Mr. Yushuvayev initially asked for a price of $5,000 for each "deportation," but ultimately settled with Mr. Kang on a price of $4,000 per person. After the price had been agreed upon, Koo withdrew from the conspiracy, but Mr. Yushuvayev was nevertheless determined to complete the task.
In preparation for the forcible removal of the cooperating witnesses from the United States, Mr. Kang and Mr. Yushuvayev obtained four airline tickets — one each for Jane Doe 1 and 2, Mr. Yushuvayev, and Mr. Kang — from New York to South Korea. On November 22, 2003, Mr. Kang drove Mr. Yushuvayev and Ester Kim, an employee of the Renaissance who was fluent in. Korean, to several locations in New Jersey at which they believed Jane Doe 2 might be staying; they were, however, unable to locate Jane Doe 2.6 Mr. Kang then drove Yushuvayev and Kim to a residence in New York at which they believed Jane Doe 1 to be staying. Mr. Kang then drove away, leaving Yushuvayev and Kim to enter the residence in search of Jane Doe 1. Upon discovering Jane Doe 1 at that residence, Mr. Yushuvayev stated, using Ms. Kim as a translator, that he was an agent of the INS and was there to remove Jane Doe 1 from the United States because she was working in violation of her visa.7 He then displayed his badge and Jane Doe 1's passport — the same one which had been taken from her by the Kangs upon her arrival in the United States and which Mr. Kang had denied possessing. In actuality, Mr. Yushuvayev was not on duty that day, was not authorized to contact Jane Doe 1 or initiate deportation proceedings against her, and the government in fact had no open case involving her as of that date. Jane Doe 1 became suspicious and called an acquaintance who is an attorney, who told Jane Doe 1 that if Mr. Yushuvayev was an agent of Homeland Security, she should follow his instructions. The attorney then asked to speak to Mr. Yushuvayev, and asked him what papers he had prepared, to which Mr. Yushuvayev responded that he did not need any papers. The attorney also asked if Mr. Yushuvayev was taking Jane Doe 1 to an INS facility, to which Mr. Yushuvayev replied that he was taking her directly to the airport. Mr. Yushuvayev then terminated the telephone call. Jane Doe 1...
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