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.
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 ...