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PHAM v. U.S.

December 7, 2005.

JOHNEY PHAM, Petitioner,

The opinion of the court was delivered by: WILLIAM PAULEY III, District Judge


This action comes before this Court on remand following an appeal by Petitioner Johney Pham ("Pham") of a decision from this District denying him a writ of habeas corpus. See Pham v. United States, 317 F.3d 178 (2d Cir. 2003). Heeding the Second Circuit's mandate, this Court held an evidentiary hearing to develop the record on each of the issues that the Court of Appeals found unresolved in the earlier decision. For the reasons set forth below, the evidence confirms that Pham is not entitled to relief and his Petition must be denied.


  In an indictment unsealed in December 1994, the Government charged Pham and twelve others with smuggling undocumented Chinese immigrants into the United States and holding them for ransom at various locations, including Pham's house in New Jersey. On October 20, 1995, a jury convicted Pham of conspiracy to engage in alien smuggling and hostage taking, conspiracy to receive ransom money, conspiracy to commit kidnapping, receipt of ransom money in connection with kidnapping, transportation of illegal aliens and concealment and harboring of illegal aliens. Having presided over Pham's criminal case from its inception, on November 12, 1997 District Judge Louis L. Stanton sentenced Pham principally to 210 months of incarceration. By summary order dated October 1, 1998, the Second Circuit affirmed Pham's conviction and sentence. See United States v. Wei, 164 F.3d 620 (2d Cir. 1998).

  On November 29, 1999, Pham filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Pham advanced nine separate theories why his conviction and sentence should be vacated. Among other arguments, Pham claimed that his court-appointed trial counsel, Martin J. Siegel, Esq. ("Siegel"), provided ineffective assistance by failing to seek a plea agreement with the Government or apprise him of the progress of such negotiations. In a Memorandum and Order dated April 12, 2000, Judge Stanton addressed each of Pham's claims seriatim and concluded that they "clearly lack[ed] merit." United States v. Pham, Nos. 99 Civ. 11613 (LLS), 94 Cr. 241 (LLS), 2000 WL 375245, at *1 (S.D.N.Y. Apr. 12, 2000). Pursuant to § 2255, Judge Stanton dismissed the Petition without inviting a submission from the Government or conducting an evidentiary hearing.

  Of pertinence to these continued proceedings, Judge Stanton specifically considered and rejected Pham's claim that Siegel did not adequately honor his request to pursue a plea agreement. Judge Stanton held: "Assuming that Pham's counsel did not pursue the alleged request (of which there is no evidence beyond Pham's own claims) Pham has not demonstrated that his counsel's performance was outside the wide range of reasonable professional judgment." Pham, 2000 WL 375245, at *2. Judge Stanton further concluded that Pham failed to demonstrate that he was prejudiced by Siegel's alleged ineffectiveness. Judge Stanton reasoned that Pham undermined his claim that he would have accepted a plea offer by "steadfastly maintain[ing] his innocence," and asserting in his Petition "that he `did not participate in any of those activities' for which he was indicted [and] . . . `never personally committed an act of kidnapping.'" Pham, 2000 WL 375245, at *3. Judge Stanton declined to issue a certificate of appealability. See Pham, 2000 WL 375245, at *7. On May 1, 2000, Pham filed a Notice of Appeal, which the Court of Appeals construed as a motion for a certificate of appealability. Pham asserted, for the first time, that "the government may have indeed offered a plea, but Johney Pham's lawyer failed to report the offer to Pham." Thereafter, in an undated "Supplement to Motion" mailed on August 31, 2000, Pham again sought a certificate of appealability from the district court. Pham asserted that he had just learned through a Freedom of Information Act ("FOIA") request that the Government had made a plea offer (the "Global Plea Offer") to all defendants in his case and that Siegel failed to relay this offer to him. Pham attached a June 14, 1995 letter (the "Global Plea Letter") from then-Assistant United States Attorney Allen D. Applbaum ("Applbaum") to all defense counsel in Pham's criminal case. The Global Plea Letter offered Pham a sentence of 78-97 months if each defendant pleaded guilty. Pham asserts that had he known of the Government's offer, he would have pleaded guilty.

  In a letter to the district judge dated October 7, 2000, the Government acknowledged the Global Plea Offer and included an affirmation by Siegel attesting that he communicated this and other plea offers to Pham, as evidenced by his June 16, 1995 letter to Pham at the federal correctional facility in Otisville, New York ("Otisville"). Siegel further attested that Pham consistently maintained "that he was innocent of the charges and would rather go to trial and lose than plead guilty to something he didn't do." (Affirmation of Martin J. Siegel, Esq., dated Oct. 6, 2000, at 1.) By Order dated October 12, 2000, Judge Stanton denied Pham's motion for a certificate of appealability.

  Presumably unaware of the October 12th Order, Pham wrote to the district court on October 17, 2000. In that letter, Pham disputed the representations in Siegel's affirmation, maintained that he never received the Government's Global Plea Letter at Otisville and claimed that Siegel never visited him there. Pham contended that he could produce evidence to support these representations and requested a hearing or, if not, a certificate of appealability. By Memorandum Endorsement dated November 2, 2000, Judge Stanton denied Pham's request for a hearing and his renewed request for a certificate of appealability, referencing the discussion in his April 12th Memorandum and Order that Pham's persistent claim of innocence belied any assertion of prejudice. In the meantime, Pham made a third request for a certificate of appealability to the district court on October 30, 2000. By Memorandum Endorsement dated November 21, 2000, Judge Stanton denied that request as well.

  On March 15, 2001, the Second Circuit granted Pham a certificate of appealability solely on the issue of "whether his counsel failed to advise him of a plea offer made by the government." In an Opinion dated January 15, 2003, the Court of Appeals reversed the district court. The Second Circuit disagreed with Judge Stanton's ruling with respect to prejudice, holding that "a significant sentencing disparity [between a plea of guilty and conviction after trial] in combination with defendant's statement of his intention [to plead guilty] is sufficient to support a prejudice finding," notwithstanding a protestation of innocence. Pham, 317 F.3d at 182. Applying that holding to the facts, the Second Circuit discerned that the disparity between the 78-97 month sentence offered in the Global Plea Offer and the 210 month sentence Pham received, in conjunction with Pham's claim that he would have pleaded guilty, necessitated "[a]dditional evidence . . . before the district court could find that Pham would not have pleaded guilty even if he knew of the government's plea offer." Pham, 317 F.3d at 183. The Court of Appeals also suggested that Pham's protestations of innocence may deserve diminished probative weight if Siegel failed to advise him of the nature of vicarious liability in the context of conspiracy, a claim Judge Stanton did not address expressly in his decision. Pham, 317 F.3d at 184. The Court of Appeals also concluded that Judge Stanton's findings concerning whether Siegel relayed the Global Plea Offer to Pham were "not fully developed." Pham, 317 F.3d at 184. Professing "confusion . . . due to the piecemeal development of the record and the evolution of Pham's assertions," the Court of Appeals faulted the district court for deciding Pham's Petition summarily without conducting a hearing or at least inviting written submissions. Pham, 317 F.3d at 184. The Second Circuit remanded the action for further consideration in accord with its Opinion. See Pham, 317 F.3d at 185. Thereafter, Judge Stanton appointed counsel for Pham pursuant to the Criminal Justice Act. On December 8, 2003, the matter was reassigned randomly to this Court by the Clerk.


  This Court conducted a two-day evidentiary hearing. In light of the Second Circuit's decision, this Court sets forth the facts of Siegel's representation of Pham in some detail, drawing them from the testimony and documentary evidence adduced at the hearing and from the parties' submissions both before and after remand.

  Pham was arrested on December 19, 1994 and indicted on similar charges in both the Southern District of New York and the District of New Jersey. (Transcript of Hearing on Mar. 23-25, 2004 ("Tr.") at 9.) Pham was initially incarcerated at the Metropolitan Correctional Center ("MCC") in Manhattan. (Tr. at 9.) He was transferred to Otisville on June 5, 1995 but was frequently housed at MCC on a temporary basis. (Government Exhibit ("GX") 4; Tr. at 9.) Siegel met with Pham often between the time of his arrest and his trial in September and October 1995. (GXs 5, 17, 20, 22-26; Tr. at 9, 131, 135, 140, 142.) However, Siegel visited Pham only at MCC and never at Otisville. (Tr. at 9-10, 186.) Because Siegel does not speak Pham's native language of Vietnamese and Pham has difficulty communicating in English, Siegel utilized a Vietnamese interpreter, Kien Tran, nearly every time they met. (GX 5, 17, 20, 22-26; Tr. at 127, 155.) According to Siegel, Pham "had a high comfort level with" Kien Tran and her English translation of Pham's comments were responsive to his, which suggested to Siegel that she was accurately translating his comments into Vietnamese. (Tr. at 128, 157.)

  I. Initial Plea Negotiations

  Assistant United States Attorney Applbaum and Siegel began discussing the possibility of a guilty plea in January 1995. (Tr. at 95.) Early the next month, Siegel visited Pham and explained that he could receive a reduced sentence either by cooperating with the Government or pleading guilty pursuant to an agreement. (Tr. at 12, 129-31, 158-59.) Siegel's notes corroborate this testimony. (GX 17.) Pham attests that he told Siegel that he would be "willing to plead guilty if the government would be willing to give [him] a plea for a sentence within the brackets of 5 to 8 years." (Affidavit of Johney Pham, dated Oct. 28, 1999 ¶ 7.) However, Pham also testified that he could not remember whether they ever discussed the option of pleading guilty. (Tr. at 24-25, 79-80.)

  On February 9 and 16, 1995, Pham and Siegel participated in proffer sessions with Applbaum to enable the Government to evaluate Pham's utility as a cooperating witness. (GXs 18, 19; Tr. at 31, 48-51, 97, 132.) A Vietnamese interpreter was present at both sessions. (GX 18; Tr. at 31, 97, 119-20.) In Applbaum's estimation, Pham admitted to facts that would support a guilty conviction on all counts and Applbaum relayed this to Pham. (Tr. at 51, 84-85, 109-11, 116-18, 132-33.) Pham indicated that he would be willing to plead guilty to alien smuggling but maintained that he was not guilty of kidnapping and would not plead guilty to such a charge. (Tr. at 50-51, 110-11, 116-17.) Applbaum ultimately decided not to use Pham as a cooperating witness. (Tr. at 99-100.) Nonetheless, Applbaum contacted Siegel to explore the possibility of negotiating a non-cooperator plea agreement. (Tr. at 100.)

  Siegel testified that he met with Pham in March and May 1995 and again discussed the option of pleading guilty. (Tr. at 131, 135, 158-59.) Siegel's notes from their March conference state, "Discuss possible trial, plea or cooperate. [Pham] will let me know." (GX 20.) According to Siegel, Pham insisted at their May meeting that he would not plead guilty. (Tr. at 135.) Siegel's notes corroborate this testimony: "[Pham] says he did nothing wrong and therefore will not plea." (GX 22.) At a May 31, 1995 Court conference with Pham present, the ...

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