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U.S. v. ERDIL

January 11, 2005.

UNITED STATES of AMERICA, Respondent,
v.
NAMIK ERDIL Petitioner.



The opinion of the court was delivered by: ARTHUR SPATT, District Judge

MEMORANDUM OF DECISION AND ORDER

Namik Erdil ("Erdil" or the "petitioner") by petition dated November 2, 2000, sought to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In a prior decision rendered on November 15, 2002 (United States v. Erdil, 230 F.Supp. 2d 292 (E.D.N.Y. 2002)) this court denied all parts of the petition except the issue of cooperation. The Court reserved decision on the petitioner's contention that the Government acted in bad faith when it declined to give him a cooperation 5K1.1 letter. The Court directed the Government to submit an affidavit setting forth, among other things, the following facts with regard to Erdil's cooperation:
(1) the details of Erdil's actual assistance rendered to the Government and the results of such assistance, if any; (2) the status of the investigation before and after Erdil provided his assistance; (3) the dates the investigation began and ended; (4) whether and when any other individuals have rendered assistance of similar nature to that offered by Erdil and have been denied a 5K1.1 letter; and (5) whether any individuals entered into similar cooperation agreements and having similar results have been issued a 5K1.1 letter.
  In response to this Court's direction on April 20, 2004, the Government served and filed the "Government's Supplemental Memorandum of Law In Opposition to Petitioner's 2255 Motion." The Government's memorandum was served on the petitioner at an address in Buhanive, Turkey.

  The Court notes that the petitioner has interposed no opposition to the Government's Supplemental Memorandum.

  I. BACKGROUND

  The facts in this case were set forth in detail in the Court's prior decision. For the purpose of this decision, the Court will relate only the pertinent facts. On February 19, 1999, Erdil, a citizen of Turkey, pled guilty to two counts which charged him with conspiracy to commit bank fraud, credit card fraud, money laundering, and bank fraud. Erdil entered into a cooperation agreement with the Government in which Erdil was promised a 5K1.1 letter in return for his "substantial assistance." On September 29, 1999, the Government notified Erdil that because the information he supplied to the Government did not rise to the level of "substantial assistance," it would not move for a downward departure pursuant to U.S.S.G. § 5K1.1.

  On November 5, 1999, Erdil was sentenced by this Court to 57 months imprisonment, with credit for time already served. The Court further imposed a term of five years of supervised release to commence upon his release from prison. In addition, the Court ordered Erdil, upon release, to pay restitution in the amount of $424,722.31 to be paid at the rate of 10% of Erdil's gross monthly income until the amount of restitution is paid in full.

  Pursuant to 28 U.S.C. § 2255, Erdil filed a petition with this Court to vacate, set aside, or correct his sentence on the grounds that (1) his counsel was unconstitutionally ineffective in failing to (a) inform him of his rights under the consular notification provision of the Vienna Convention on Consular Relations ("Vienna Convention"); (b) challenge the amount of fraudulent money charged against him, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000); and (c) challenge the indictment for money laundering pursuant to 18 U.S.C. § 1956; and (2) the Government acted in bad faith when it declined to make a 5K1.1 downward departure motion at his sentencing. In addition, Erdil claimed that the Court failed to consider his ability to pay before ordering him to pay $424,722.31 in restitution.

  As stated above, in the November 15, 2002 decision, the Court dismissed all the petitioner's contentions except the issue of cooperation and the decision of the Government to decline to issue a 5K1.1 letter to him.

  II. DISCUSSION

  A. The Mootness Issue

  Although not directly raised by the Government, the Court finds that, under the facts and circumstances of this case, the sole remaining question, the cooperation issue, is moot.

  A case becomes moot when it no longer satisfies the "case or controversy" requirement of Article III, Section 2 of the United States Constitution. In Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978, 140 L.Ed.2d 43 (1998), the Supreme Court stated that the case or controversy requirement "subsists through all stages of federal judicial proceedings, trial and appellate. . . . The parties must continue to have a personal stake in the outcome of the lawsuit." Id. at 7. (Quotation and citation omitted). The Supreme Court went on to add that "[t]his means that throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Id. (quotation omitted).

  An incarcerated or parolee's habeas petition would always satisfy the case or controversy requirement because incarceration or being on parole constitutes a concrete injury. However, "[o]nce the convict's sentence has expired . . . some concrete and continuing injury other than the now-ended incarceration or parole — some collateral consequence of the conviction must exist if the suit is to be maintained." Id. (quotation omitted). Referring to the Supreme Court's decision in Spencer, the Second Circuit stated in United States v. Mercurris, 192 F.3d 290 (2d Cir. 1999) that "[i]n that case, the Court expressed a distinct distaste for presuming collateral consequences, going so far as to criticize its own decisions establishing the presumption in the context of criminal convictions." Id. at 293. In fact, the Second Circuit in Mercurris held that "[t]here being no presumption of collateral consequences, Mercurris must bear the burden of demonstrating some `concrete and continuing injury' sufficient to create an Article III case or controversy." Id. at 294. See also United States v. Suleiman, 208 F.3d 32 (2d Cir. 2000); Ramirez v. INS, 86 F. Supp. 2d 301 (S.D.N.Y. 2000).

  In this case, the Government advised the Court that in December 2002, Erdil was released from federal prison and deported to Turkey. He is currently under "inactive supervised release." (Supp. Memo at 5). The Court finds that, as a result of his deportation, Erdil's habeas petition is moot. In Mercurris, the Second Circuit ...


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