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United States of America v. Iftikhar Ali Rizvi

January 5, 2012

UNITED STATES OF AMERICA,
v.
IFTIKHAR ALI RIZVI, A/K/A "BILLA BRONX", DEFENDANT.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION AND ORDER

Iftikhar Ali Rizvi ("Rizvi") has moved to withdraw his plea of guilty. The application is denied.

BACKGROUND

On June 22, 2010, Rizvi was arrested on federal fraud charges. Steven Frankel was appointed to represent him. Rizvi retained Bernard Alan Seidler as his attorney; Mr. Seidler filed a notice of appearance on July 16. On October 20, Rizvi was indicted with three others in a four-count indictment. A superseding indictment filed on October 27 added a fifth defendant. Rizvi was charged in three counts with conspiring to commit bank fraud, access device fraud and identity theft, and in one count with committing aggravated identity theft.

At a conference held on November 9, trial was scheduled for June 20, 2011. On February 10, 2011, Rizvi's bail was revoked. On March 28, Robert Soloway was appointed as counsel for Rizvi, replacing Mr. Seidler.

On May 6, Rizvi entered a plea of guilty to the substantive count of committing aggravated identity theft. Between May 9 and May 24, three of Rizvi's four co-defendants pleaded guilty. The trial date for Rizvi's remaining co-defendant, Shahid Bhatti ("Bhatti"), was adjourned on June 2 to a new date of June 27, and again on June 21 to a new date of July 5. On July 1, Bhatti also pleaded guilty. The only co-defendant besides Rizvi to enter a plea to aggravated identity theft was Abdul Nadeem Khan.

Rizvi subsequently submitted a letter, dated July 17, seeking to withdraw his plea of guilty. In his letter, Rizvi contends that Mr. Soloway told him that he had to state that he knew "the purpose of the false identity was to commit 'Bank Fraud' or 'Financial Fraud'," or the Court would not accept the plea. Rizvi adds that he is "actually innocent of the crime of 'Aggravated identity Theft'," since he did not know that the stolen identities would be used for the purpose of committing bank fraud.

At a conference on July 28, Mr. Soloway was relieved as counsel and John Burke was appointed to represent Rizvi. On August 19, Mr. Burke submitted a memorandum in support of the motion. The Government opposed the motion on September 2.

DISCUSSION

Rizvi contends that he is not guilty of the crime of aggravated identity theft since he did not know that stolen identities would be used to commit bank fraud. In support of his contention, he points to a single passage in his plea allocution, which is as follows:

THE COURT: "So you knew when you received this identity information, that it had been stolen from people?"

RIZVI: "I didn't know that, but I know that something is wrong. They never told me about this, but something they tell me to make, and I did it and they do things wrong. I know that."

Pursuant to Rule 11(d)(2)(B), Fed. R. Crim. P., a defendant may withdraw his plea of guilty if he can show "a fair and just reason" for the withdrawal. In considering such a request, a court generally considers

(1) whether the defendant has asserted his or her legal innocence in the motion to withdraw the guilty plea; (2) the amount of time that has elapsed between the plea and the motion .; and (3) whether the ...


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