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Kang v. United States

September 16, 2008

KYONG JA KANG, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Glasser, United States District Judge

MEMORANDUM AND ORDER

On November 18, 2005, the petitioner pleaded guilty to violating 18 U.S.C. § 1598 and on September 29, 2006, she was sentenced to a term of imprisonment for ten years. The crime to which she pleaded guilty and for which she was sentenced was obtaining the labor and services of named persons by threats of serious physical harm and physical restraint.

Proceeding pro se, nearly two years later, she filed a petition pursuant to 28 U.S.C. § 2255, seeking to withdraw her plea alleging her attorney misrepresented that the government would file a motion pursuant to U.S.S.G. § 5K1.1 and cap her sentence to imprisonment for five years thus inducing her to plead guilty.

A review of the salient portions of her plea agreement with the government and her sworn responses given when pleading guilty drives the Court to conclude that her petition must be dismissed.

At the proceeding during which she pleaded guilty, the petitioner was attended by her lawyers Anthony Iacullo, Esq. and Jin Han, Esq. An interpreter was also present notwithstanding that Mr. Han spoke the petitioner's language. The relevant portions of the transcript of that proceeding reflect the following after the petitioner was sworn:

THE COURT: Ms. Kang, you just swore to tell the truth so everything you're going to say to me today should be truthful if you don't want to commit a crime called perjury which means to tell a lie after you swore to tell the truth, do you understand that?

THE DEFENDANT: Yes.

Tr. at 2.

THE COURT: Do you understand why you're here, Ms. Kang?

THE DEFENDANT: Yes.

THE COURT: Do you understand everything I've told you or said to you so far?

THE DEFENDANT: Yes.

THE COURT: Mr. Iacullo, do you have any questions about Ms. Kang's competence to participate here today?

MR. IACULLO: No, sir, I don't.

THE COURT: Then I'll make a finding to that effect.

Tr. at 3.

After reading the Count of the indictment to which she agreed to plead guilty:

THE COURT: You discussed all that with Mr. Iacullo?

THE DEFENDANT: Yes.

THE COURT: Before I can accept your plea of guilty, Ms. Kang, I want to make sure that you understand a number of rights that you have as you stand here this afternoon.

Tr. at 4.

The petitioner was then advised of her rights in accordance with Fed. R. Cr. P. Rule 11(b)(1)(A-N), (2), which she stated she understood and then:

THE COURT: Did Mr. Iacullo tell you the maximum sentence the law that your accused of violating provides for is imprisonment up to 20 years?

THE DEFENDANT: Yes.

THE COURT: And did he also explain that the Court could also add a period of supervised release of up to five years.

THE DEFENDANT: Yes.

THE COURT: And Mr. Iacullo explained what that means?

THE DEFENDANT: Yes.

THE COURT: And you believe you understand it?

THE DEFENDANT: Yes.

THE COURT: And did he also tell you that you could be fined up to $250,000?

THE DEFENDANT: Yes.

THE COURT: And did he also tell you that you would be required to make restitution, that is to pay the persons who had been harmed by the conduct you're accused of, pay them back in an amount which is at least $75,000 but the exact amount will be fixed by the court at a later date?

THE DEFENDANT: Yes.

THE COURT: And did Mr. Iacullo also explain that regardless of what the sentence is, you'll be required to pay $100 which is mandatory, it is called a special assessment?

THE DEFENDANT: Yes.

THE COURT: You signed an agreement with the government, it is called a plea agreement, Ms. Iacullo -- Ms. Kang, I'm sorry?

THE DEFENDANT: Yes.

THE COURT: And you went over that agreement ...


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