United States District Court, E.D. New York
January 11, 2005.
UNITED STATES of AMERICA, Respondent,
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.
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.
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.
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 commented on the status of a defendant who
completed his prison term and was deported.
Mercurris acknowledges that he cannot rely upon the
presumption of collateral consequences arising from a
criminal conviction he contests only a sentencing
enhancement. Nevertheless, Mercurris urges us to
presume the existence of collateral consequences
sufficient to satisfy Article III's
case-or-controversy requirement. We decline to do so.
Mercurris' argument is foreclosed by the Supreme
Court's recent decision in Spencer. In 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. Spencer,
523 U.S. at 8-12, 118 S. Ct. 987.
. . . . .
Thus, since Mercurris has only a quixotic chance of
legally returning to the United States, the
possibility that his aggravated felon status could
make a difference to him under the immigration
statutes is too speculative to create an Article III
case or controversy. See Spencer,
523 U.S. at 14-16, 118 S. Ct. 978.
See also United States v. Suleiman, 208 F.3d 32
, 37 (2d Cir.
2000) ("We recently ruled that a defendant's completion of his
prison term and his subsequent deportation mooted his appeal of
Deportation may only render a petition moot if "there is no
possibility that any collateral legal consequences will be
imposed on the basis of the challenged conviction." Perez v.
Greiner, 296 F.3d 123, 125 (2d Cir. 2002) quoting Sibron v. New
York, 392 U.S. 40, 47, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968)).
Collateral consequences include being "permanently barred from
re-entry to the United States." Soto v. Parrotti, 2004 U.S.
Dist. LEXIS 8080 (s.d.n.y. 2004). "Such a barrier to reentry
clearly would suffice to prevent Perez's habeas petition from
being mooted." Perez, 296 F.3d at 126.
Here, the petitioner is only challenging his sentence, and not
his conviction. The petitioner is barred from this country on the
basis of his conviction and not the length of his sentence. Thus,
the petitioner's current challenge has no affect on his
admissibility and cannot be consider to have a collateral
consequence. Accordingly, with regard to a deported convicted
alien felon, the sentencing cooperation issue raised by him is
moot. However, to complete the record, the Court will determine
the cooperation and the "fugitive" issues on the merits.
B. The "Fugitive" Issue
The Government contends that the petitioner's failure to make
any payments toward the restitution order in the sum of
$424,722.31 "is equitably analogous to that of a fugitive and . . .
the fugitive dismissal rule would apply." Supp. Memo at 6.
The "fugitive" rule, insofar as it has been raised by the
Government, was set forth by the United States Supreme Court in
Ortega-Rodriguez v. United States, 507 U.S. 234, 239, 240,
113 S. Ct. 1199, 1203, 122 L.Ed.2d 581 (1993), as follows:
It has been settled for well over a century that an
appellate court may dismiss the appeal of a defendant
who is a fugitive from justice during the pendency of
his appeal. The Supreme Court applied this rule for
the first time in Smith v. United States,
94 U.S. 97, 24 L.Ed. 32 (1876), to an escaped defendant who
remained at large when his petition arose before the
Court. Under these circumstances, the Court
explained, there could be no assurance that any
judgment it issued would prove enforceable. The Court
concluded that it is "clearly within our discretion
to refuse to hear a criminal case in error, unless
the convicted party, suing out the writ, is where he
can be made to respond to any judgment we may
render." Ibid. On two subsequent occasions, we gave
the same rationale for dismissals based on the
fugitive status of defendants while their cases were
pending before our Court. Bohanan v. Nebraska,
125 U.S. 692, S. Ct. 1390, 31 L.Ed. 854 (1887); Eisler
v. United States, 338 U.S. 189, 69 S. Ct. 1453,
93 L.Ed. 1897 (1949).
The Court has not found any case in which a convicted alien
felon who is deported and fails to pay restitution is a
"fugitive" and it declines to so rule. The two cases presented by
the Government concern a convicted felon who fails to surrender
for incarceration and absconds (United States v. Awadalla,
357 F.3d 243
(2d Cir. 2004)) and a defendant who jumped bail and
remained a true fugitive for seven years (United States v.
Persico, 853 F.2d 134
, 138 (2d Cir. 1988)). These situations are
a far cry from that of a deported alien felon who fails to pay
restitution. The Government's contention that, because Erdil was
deported and failed to pay restitution he does not have the right
to use the judicial process, is rejected.
C. The Cooperation Issue
The Court now addresses the merits of the petitioner's
contention that the Government acted in bad faith when it
declined to issue a 5K1.1 letter to him for use in a downward
departure motion at sentencing. In his petition, Erdil asserted
that "there was a very specific `promise' made to me, that in
return for my substantial assistance, the Government would make a
5K1.1 motion to the Court to permit the Judge to depart below my
guideline level." (Pet. at 10). Further, Erdil contended that the
Government denied this right to him based on its "bad faith" in
that the Government "had an ulterior motive to deny the promised
"Cooperation agreements, like plea bargains, are interpreted
according to the principles of contract law." United States v.
Khan, 920 F.2d 1100, 1105 (2d Cir. 1990), cert. denied,
499 U.S. 969, 111 S. Ct. 1606 (1991). Because there is an implied
obligation of good faith and fair dealing in every contract, the
prosecution's determination that it is dissatisfied with the
defendant's performance under the cooperation agreement may not
be reached dishonestly or in bad faith. Id. Thus, where the
explicit terms of a cooperation agreement leave the acceptance of
the defendant's performance to the sole discretion of the
prosecutor, that discretion is limited by the requirement that it
be exercised fairly and in good faith. Id.
In its prior decision, the Court found that the Government
provided no details to dispute the veracity of Erdil's claim of
cooperation. Therefore, the Court was unable to conclude, at that
time, whether the Government acted in good faith in declining to
issue the 5K1.1 letter. The Government was directed to expand the
reasons, by way of an affidavit, for its decision to decline to
issue a 5K1.1 letter. The Government has now done so.
In an affidavit by the former Assistant to the Special Agent in
charge of the New York Field Office for the United States Secret
Service, it was set forth in detail, that:
1. On April 30, 1998, Horea Opran and Namik Erdil were
2. Opran was arrested and pled guilty on October 30, 19998. He
agreed to cooperate; gave information already obtained from
co-defendants; received no 5K1.1 letter; and was sentenced to 78
months with a direction to pay restitution of 2.6 million.
3. Meanwhile, Erdil fled to Turkey; returned on October 16,
1998; and was arrested.
4. On January 12, 1999, Erdil agreed to proffer to the
Government and admitted his criminal activity and his
participation in Opran's check kiting scheme. At that time, Erdil
identified two individuals, Kucuk and Gumustas. However, both of
these persons had already been prosecuted.
5. On February 19, 1999, Erdil pled guilty pursuant to a
6. After his plea, in response to a request by the Government,
Erdil's counsel indicated that he did not have additional
information to proffer.
7. As a result of this failure to provide any further
information, on September 29, 1999, the Government notified Erdil
in writing that the Government could not move for a downward
departure as Erdil had not been able to offer "substantial
assistance" in the investigation or prosecution of other persons.
At that time, no objection was made to this letter. Nor was there
any request for a hearing to challenge the Government's
assessment of Erdil's cooperation.
According to the affidavit of the Special Agent, "Erdil's
assistance, provided late in the investigation, after he had
originally fled to Turkey, was of no value to the Government. He
only provided information on co-conspirators who had already been
prosecuted." The Special Agent concluded that "Erdil did not
provide any actual assistance in the furtherance of this
investigation," and his cooperation "provided no new information
that led to any further arrests or developments in this
Erdil's assertion that the decision by the Government not to
issue a § 5K1.1 letter to him was done in bad faith, is without
merit. The cooperation agreement provided that "the officer's
good faith assessment of the value, truthfulness, completeness
and accuracy of the cooperation shall be binding on him."
(Cooperation Agreement at 5). The terms of the agreement make it
clear that the Government had considerable discretion as to
whether to issue a 5K1.1 letter, based on whether it considered
Erdil to have rendered "substantial assistance" to law
The Second Circuit has reviewed such alleged "bad faith" claims
as to cooperation agreements and determined that prosecutors have
broad latitude under such circumstances. See, e.g., United
States v. Resto, 74 F.3d 22 (2d Cir. 1996); United States v.
Knights, 968 F.3d 1483, 1487 (2d Cir. 1992); United States v.
Rexach, 896 F.2d 710, 713 (2d Cir.) cert. denied, 498 U.S. 969
(1990). As stated in Knights:
Because the prosecution often is in the best position
to evaluate the quality of a defendant's cooperation
and to decide whether to make a
substantial-assistance motion, this decision, like
other prosecutorial determinations, may be subject to
only limited review. Knights, 968 F.2d at 1487.
In this case, the Court finds that the Government's decision
not to move for a downward departure was fair and was made in
good faith. While Erdil did provide some help to the Government,
it consisted of information already known and failed to assist
the prosecutors with regard to any other person. As stated in
[W]here the explicit terms of a cooperation agreement
leave the acceptance of the defendant's performance
to the judgment of the prosecutor, the prosecutor may
reject the defendant's performance provided he or she
is honestly dissatisfied.
Rexach, 896 F.2d at 713. Here, there is no doubt that the
prosecutors had ample, good faith grounds to decline to move for
a downward departure based on Erdil's cooperation.
Based on the foregoing, it is hereby ORDERED that the
petition for Section 2255 relief on the basis of the alleged bad
faith of the Government in failing to issue a 5K1.1 letter, is
denied; and it is further
ORDERED that Erdil's Section 2255 petition is dismissed in
The Clerk of the Court is directed to close this case.
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