The opinion of the court was delivered by: Frederic Block Senior United States District Judge
BLOCK, Senior District Judge
Tin Yat Chin ("Chin") moves, pursuant to 28 U.S.C. § 2255, to vacate the judgment of conviction and sentence entered by the Court on February 16, 2006.*fn1 He argues that evidence not presented at trial establishes (1) that he is actually innocent of the crimes of conviction and (2) that his trial counsel was ineffective in failing to discover and present the evidence. Chin also moves to amend his § 2255 motion to include a claim that his Fifth Amendment rights were violated by the government's delay in indicting him. For the reasons that follow, both motions are denied.
On March 10, 2005, Chin was found guilty on one count of impersonating a federal employee in violation of 18 U.S.C. § 912, and three counts of income tax evasion in violation of 26 U.S.C. § 7201.*fn2 He was sentenced to 135 months' incarceration, to be followed by three years of supervised release, and ordered to pay restitution of $989,567. The Second Circuit affirmed on January 30, 2007, see United States v. Chin, 476 F.3d 144 (2d Cir. 2007); Chin did not seek review in the United States Supreme Court. He timely filed his § 2255 motion on April 29, 2008.
The jury was presented with overwhelming evidence that Chin, using the aliases "Mok Wah" and "Tan C. Dau," extracted large fees from Chinese nationals in New York City and China between 1997 and 1999 on the false promise that he could obtain United States visas for their relatives living in China; at various times, Chin posed as an agent of the Immigration and Naturalization Service, an immigration attorney, and a former Chinese consulate employee. Defense counsel sought to cast doubt on the reliability of the government's identification testimony. In addition, Chin presented alibi evidence that conflicted with the government's evidence regarding his whereabouts in July 1999.
1. The Government's Case-In-Chief
At trial, no less than 8 victims of "Mok Wah" and 6 victims of "Tan C. Dau" identified Chin as the person who had swindled them; the landlords and secretaries of "Mok Wah" and "Tan C. Dau" also identified Chin. In addition, the government presented evidence that money orders for the payment of rent for the "Tan C. Dau" office were bought at post offices in Chin's neighborhood where Chin lived, that a phone card used at the "Tan C. Dau" office was also used at pay phones near Chin's home, and that several of the calls made with the phone card were to victims of the scheme.
Some of the victims testified that the person they paid to obtain visas had spoken to them in Mandarin, while others testified that he spoke to them in Cantonese with a Mandarin accent. Chin's former co-workers at the Immigration and Naturalization Service ("INS") testified that he spoke fluent Mandarin. Some victims testified that the swindler held papers in an unusual manner, clamping them between the knuckles of his first and second fingers; the government argued during summation that Chin did this to keep his fingerprints off the documents. Government witnesses also testified that the swindler sold jewelry.
Of the 14 victims who identified Chin, 12 had dealings with him exclusively in the United States. See, e.g, Trial Tr. at 770-74 (Hui Chang Situ testifying that she met with "Mok Wah" in Chinatown in March 1997); id. at 582-87 (Jian Xie testifying that she met with "Tan C. Dau" in Brooklyn in June 1998). Two victims of "Tan C. Dau," however, testified that they met with Chin in China on specific dates in July 1999.
First, Cha Hoang Dang ("Dang") testified that she met with Chin at the Dong Fong Hotel in Guangzhou, China, on July 8, 1999, where they argued about how much money she owed him. She then flew to Hangzhou, China on July 22, 1999, and met Chin there to pay him $50,000.
Second, Jin Quan Xian ("Xian"), testified that he met with Chin in Hangzhou late at night on July 25, 1999; at the meeting, Xian gave Chin more than $32,000. Xian also met with Chin early the next day (i.e., July 26, 1999) to deliver photographs for the visas Chin was ostensibly obtaining for him.
In addition to those two victims, Wan Yi Li ("Li"), the secretary of "Tan C. Dau," also placed Chin in China in July 1999. Li testified that she met with Chin at the Dong Fong Hotel at approximately 6:30 a.m. on July 7, 1999. On July 8th, Li met Chin at the Lau Fau Hotel -- also in Guangzhou -- where he asked her to make a phone call to someone named "Mrs. Huang." Later that day, Li and Chin met with a "Mrs. Dang" at the Lau Fau Hotel, where the three discussed immigration matters.*fn3 On July 10th, Li met Chin at the Dong Fong Hotel to give him $10,000 that "Mrs. Dang" had paid her; Li met Chin at the same place on July 12th to give him another $1,000 from "Mrs. Dang." On July 31st, Li flew from Guangzhou to Shanghai at Chin's request. Li met Chin at the Shanghai Airport and gave him $15,000 in cash from "Mrs. Dang." Chin then paid Li her salary and transportation costs. Li returned to Guangzhou the same day.
In his effort to cast doubt on the reliability of the government's identification witnesses, Chin presented evidence from a linguistics expert to show that as a native Cantonese speaker, he would not be able to speak Cantonese with a Mandarin accent. As for his alibi defense, Chin presented evidence that he was in Queens, New York, during July 1999, when -- according to Dang, Xian and Li -- the swindler was in China. Although Chin did not testify, his wife, Sui Ngan Cho, testified that she saw Chin everyday in July and August of 1999, while his brother, Tin Sak Chin, testified that he saw Chin "almost every week" during the same period. Trial Tr. at 1266. Both testified that Chin had not traveled to China in many years.
In addition, Chin's neighbor, Lorna Drew Monteroso ("Monteroso"), testified that her son and Chin's daughter attended the same summer school during July and August of 1999, and that she saw Chin "every day that [her son] went to school" because they would alternate driving the children to and from school. See id. at 1191. The children attended school Monday to Thursday only. Monteroso could not remember precisely when she and Chin began their car-pool arrangement, although she thought that summer school started on July 6, that she talked to Chin the next day, and that they started their car pool the following day. See id. at 1198-99 (Monteroso stating that she "would say" that summer school started on July 6, but that she did not "know for sure").
The alibi evidence also included numerous credit card receipts from transactions in Queens, including (1) a receipt from K-Mart dated July 7, 1999; (2) a receipt from P.C. Richard dated July 8, 1999; and (3) six receipts from Key Foods dated, respectively, July 2, 8, 10, 18, 20, and 26, 1999. A handwriting expert retained by the defense testified that all of the receipts were signed by Chin.*fn4 In addition, P.C. Richard and Key Foods employees testified that the policy of both stores required identification for credit card transactions; however, on cross-examination, the witnesses could not confirm that Chin was the one who had made the purchases.
3. The Government's Rebuttal Case
In rebuttal, the government presented its own handwriting expert; he testified that the K-Mart and P.C. Richard receipts were "probably not" signed by Chin, and that the July 8th Key Foods receipt was "clearly not" signed by Chin. With respect to the remaining Key Foods receipts, the government's expert could not say whether the signatures were Chin's.
B. Submissions Accompanying Chin's § 2255 Motion
In support of his claim of actual innocence, Chin submitted with his § 2255 motion four affidavits and two documents. One of the affidavits casts the blame for the swindler's scheme on someone else; the remaining submissions were offered in further support of Chin's unsuccessful alibi defense.
1. The Chiu Kuen Wong Affidavit
An affidavit from Chin's friend, Chiu Kuen Wong, identifies a man named Frank Kan. Wong states that Kan has "lost half of one of his fingers, either . . . the index or middle finger," has made "several trips to China," and was trained in watch repair; he further attests that he "ha[s] been told that [Kan] sold jewelry." Chiu Kuen Wong Aff. at 1-2. Chin reasons that Kan is "likely the real culprit" because the swindler sold jewelry and traveled to ...