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U.S. v. KHAN

July 20, 2004.

UNITED STATES OF AMERICA,
v.
ALI SHER KHAN, Defendant.



The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge

AMENDED MEMORANDUM ORDER & JUDGMENT

I. Introduction

This case reflects some of the many sentencing issues raised by the numerous appeals in criminal cases; they arise because of the need to follow mechanical and often harsh sentencing guidelines while taking account of the manifold differences in the human condition. Often, as in the case of this defendant, a recent Pakistani immigrant who prospered as a businessman and was returning to his homeland to share some of the proceeds of his success, the court may not fully understand his milieu.

  In Blakely v. Washington, the Supreme Court invalidated the State of Washington's sentencing guidelines under the Sixth Amendment to the extent that they authorized judicial fact-finding of enchantments factors warranting a sentence above the applicable guidelines range. 2004 WL 1402697 (U.S. June 24, 2004). Blakely does not — as some have speculated — constitute the death knell of the Federal Sentencing Guidelines. Compare United States v. Croxford, 2004 WL 1521560, *6 (D. Utah July 7, 2004) ("[T]he inescapable conclusion of Blakely is that the federal sentencing guidelines have been rendered unconstitutional in cases such as this one."), with United States v. Pineiro, 2004 WL 1543170 (5th Cir. July 12, 2004) (declining to extend Blakely to the federal guidelines). See also Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647 (1988) (strongly supporting Guidelines' constitutionality as appropriate delegation of legislative powers and lack of violation of separation of powers, over dissent of one Justice). Blakely does provide Congress, the courts and the Sentencing Commission with an opportunity and obligation to reevaluate and revise the Guidelines. They are presently, in general (but not as applied in the present case), overly rigid, overly complex, overly harsh, and overly expensive to taxpayers and society. Blakely's reintroduction of the jury into the present sentencing process suggests the desirability of making the Guidelines discretionary guideposts — as their name implies — rather than mandatory precepts, inflexible commands.

  An appropriate sentence requires an appreciation of the subtle socioeconomic factors defining and explaining the defendant. Yet the judge is often unlikely to possess detailed knowledge or appreciation of the defendant's background with its subtle cultural and linguistic characterizations — usually so different from the court's: high status, relatively large income, assured medical care, well-todo friends in high places, and the skills to take advantage of the system and to avoid its pitfalls. Cf. Anna Wierzbicka, On Happiness: A cross-linguistic and cross cultural perspective, Daedalus, 34 (Spring 2004).

  There are occasions — and this arguably is one of them — where an advisory jury selected from a representative cross section of the community may serve to bridge the lifestyle and empathy gap between judge and criminal, providing the insights and the opportunity for a more humane and effective administration of justice. As indicated in Parts IV and V, infra, reliance on a jury in sentencing is possible for this purpose.

  II. Facts

  A. Crime and Original Sentence

  Defendant and two of his Pakistani countrymen had labored in the chicken restaurant business. They had assembled substantial cash savings. As is apparently the wont of recent immigrants, they were returning to their homeland families with cash gifts wrapped for specific relatives; they also carried cash entrusted to them by co-workers. See, e.g., Elizabeth Becker, Latin Migrants to U.S. Send Billions Home, N.Y. Times, May 18, 2004 at C4 (quoting official at the Inter-American Development Bank: "We want to bring [the $30 billion sent by immigrants to relatives back home] out of the shadows so people understand the critical contribution these hard-working people are making."). The money was in the interstices of the bags of clothing they were taking with them.

  As they were about to board their plane, representatives of the United States government asked them to declare any cash they carried in excess of $10,000. Ali Sher Kahn, the defendant, said he had only $12,800. A search of his bags revealed $293,266 — all of it legally earned by himself or the friends for whom he was transporting it. There was no hint that the cash was to be used to fund terrorist activity or for any other illegal purpose. He was arrested, detained, tried criminally, and became a defendant in a civil forfeiture suit for the cash that the government had seized.

  After a jury trial, defendant was convicted of cash smuggling (31 U.S.C. § 5332(a) and (b)), making false statements (18 U.S.C. § 1001(a)(2)) and conspiracy (18 U.S.C. § 371). His sentence was three years of supervised release, five months of home confinement, a special assessment of $300 and a fine of $7,500. (The civil forfeiture suit is still pending.) The court departed downward twelve levels because of (1) defendant's family circumstances and (2) the potential negative impact of a prison sentence on the workers in the businesses he operated.

  B. Appeal

  Upon appeal by the United States from the downward departure — the government's view being that imprisonment of no less than forty-one months was required — the Court of Appeals for the Second Circuit reversed and remanded for resentence. It wrote in an unpublished opinion:
[T]he district court erroneously granted a downward departure based on Ali Khan's family circumstances and on account of his business and employees.
. . .
1. Family Circumstances
While it is possible that exceptional family circumstances may exist here, the district court's departure was erroneous based on the current record. The record does not suggest that Ali Khan was the primary — let alone sole — support. The record similarly shows nothing as to how Ali Khan's incarceration would affect those individuals. Curiously, the expense portion of Ali Khan's monthly net cash flow statement, which he submitted prior to sentencing as part of his personal financial statement, omits any mention of funds that he sends to support his extended family.
2. Business and Employees
"[B]usiness ownership alone, or even ownership of a vulnerable small business, does not make downward departure appropriate"; but a "departure may be warranted where . . . imprisonment would impose extraordinary hardship on employees." United States v. Milikowsky, 65 F.3d 4, 9 (2d Cir. 1995). The Milikowsky Court upheld a downward departure based on extensive documentary and testimonial evidence demonstrating that the defendant was indispensable to his two companies and to the continuing employment of more than 150 individuals. Id. at 8-9.
It is possible, as the district court found, that Ali is "the main spring in the enterprise and that it will not succeed without him;" but the record does not support the district court's decision to depart on this basis. Even though Ali maintains that "[h]e attends to the purchasing and every other detail" of the twelve-employee business, he testified also that one of his partners handles most of the paperwork. Ali concedes that the facts of his case are not as compelling as in Milikowsky. There is nothing in the record, other than Ali's self-serving and somewhat contradictory claims, indicating that Ali has unique skills essential to this enterprise, or that his two partners could not hire a new manager or do the work themselves.
* * *
The current record does not support either basis, family or business circumstances, on which the district court granted Ali Khan a downward departure. On remand, therefore, the court should conduct further fact-finding necessary to reassess whether a downward departure is appropriate and then should re-sentence Ali Khan consistent with this order and any additional findings that the court makes.
United States v. Khan, No. 03-1227, slip op. at 6-8 (2d Cir. Apr. 16, 2004).

  The Court of Appeals generously added that the order of remand "does not foreclose application of [USSG § 2S1.3(b)(2) (eff. Nov. 1, 2001)], assuming appropriate showings and findings." Id. at 8. As indicated in Part V, infra, that provision of the Guidelines permits probation without a prison term.

  III. Defendant's Background

  A. Personal

  The original presentence report and the original sentencing hearing revealed the following background:

  Defendant, now thirty-five, was born in Swat, Pakistan. He is one of six children of the marital union of Bacht Zamal and Mehina Bibi. Raised under lower-income economic conditions, he reported an uneventful childhood, free from drug, alcohol, and physical abuse. Because he could not read well enough to be promoted, defendant attended school only until the sixth grade.

  His father died in 1998 of a heart attack at the age of fifty-six. His mother lives in Pakistan, is unemployed, and suffers from diabetes. She is supported by defendant and his brother.

  Defendant has four living siblings. His one brother resides in the United States. He is John Sher, age thirty-four, living in Camden, New Jersey, with his wife and six children. He is in good health and is employed as a cook in a fast food restaurant. There are three sisters. All are housewives living in Pakistan: Begun Bibi is married with seven children; Maleeka Bibi is married with five children; and Shagoupta Bibi is married with four children. Defendant had another brother, Akbar Zada, who was beaten to death in Pakistan following a dispute over the use of water from a river; he is survived by his wife and six children, whom the defendant helps support.

  Defendant's wife, Flora Drake, is healthy and is employed part-time in daycare, earning between $300 and $500 per week. The marriage — his only one — has not resulted in any children, although Mrs. Khan's son from a prior marriage, Lidel Drake, age twenty-one, resides with defendant. They live in a modest two bedroom, walk-up apartment. Lidel has two daughters, Monat, age six, and Aliza, age eighteen months, who live with their mother. Since Lidel is unemployed, defendant and his wife assist in supporting his children.

  Until he was twenty-one, defendant resided in Pakistan. In 1990, he traveled to the United States by ship. He lived in Brooklyn for six months before moving to Middletown, New York, where he has since resided.

  In 1992, defendant applied for political asylum because of the religious strife between the Shiites and Muslims in Pakistan; the status of that application is not known. Immigration and Naturalization Service records indicate that defendant is a lawful permanent resident of the United States. Defendant reported no history of mental or emotional health problems or of gambling. In 1993 he injured his right knee playing soccer; surgery partially repaired the damage. He is otherwise healthy. Until his arrest, defendant smoked one or two marijuana cigarettes and drank two "shots" of brandy or cognac two or three times a week. He has never used any other narcotic.

  B. Financial

  Prior to 1990 defendant was a laborer on a farm or a railroad in Pakistan earning ten to fifteen rupees a day (equivalent to a few dollars). For a few months he was a deck hand on a ship based in Karachi, Pakistan, earning a total of $450 ...


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