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Ozsusmamlar v. United States

September 28, 2012


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.



On April 26, 2010, Osman Ozsusamlar ("petitioner" or "Osman") filed this pro se motion to vacate, set aside or correct his sentence pursuant to section 2255 of Title 28 of the United States Code ("section 2255"). Osman challenges his judgment of conviction on the following grounds: (1) lack of subject matter jurisdiction; (2) improper venue; (3) ineffective assistance of trial counsel; and (4) ineffective assistance of appellate counsel.*fn1 For the following reasons, the Petition is denied.


A. Indictment and Trial

On January 4, 2006, a federal grand jury indicted Osman and his father, Mustafa Ozsusamlar ("Mustafa"), on three counts for attempting to hire a hit man to kill two persons who owed them money. Specifically, defendants were charged with one count of conspiracy to commit murder for hire, in violation of 18 U.S.C. § 1958; one count of murder for hire, in violation of 18 U.S.C. § 1958; and one count of conspiracy to commit extortion, in violation of 18 U.S.C. § 1951.*fn2

The Government first learned of the murder for hire plan in August 2005 by Mohamed Mabrouk ("Mabrouk"), an inmate at the Metropolitan Correctional Center (the "MCC").*fn3 Mabrouk was approached by a fellow inmate, Mustafa, who sought to arrange a "hit" on two individuals who owed him approximately $283,000.*fn4 Mustafa said he was willing to pay the killer ten percent of the money owed to him when collected. Although acting interested, Mabrouk reported the incident to law enforcement.*fn5

In recorded telephone conversations at the MCC, Mustafa spoke about the plan with his son, Osman. The two discussed how Osman would attempt to locate Murat and Dilek Batca, the intended victims. In several different conversations, they discussed obtaining the Batcas' address and how Osman found their business address but was unable to find their home address.*fn6 This information was then passed on to Mabrouk with the hope that he would find someone on the outside to commit the murders.*fn7 The Government arranged for an undercover Federal Bureau of Investigation ("FBI") agent to pose as the person hired to recover the money and murder the Batcas.*fn8 The undercover agent ("Joe") went to the Batcas' home and spoke to them about the debt.*fn9 They acknowledged that money was owed but said that the original debt had been closer to $150,000, and that only $50,000 remained outstanding.*fn10 Meanwhile, the FBI gave Mabrouk Joe's telephone number to which Mabrouk then gave to Mustafa.*fn11

On September 16, 2005, Mustafa and Osman spoke on a recorded line at the MCC. Mustafa informed Osman that he had found someone to solve "that problem" and gave Osman the name and phone number provided by Mabrouk.*fn12

Mustafa told Osman to use a phone other than his own to make the call. In a conversation taking place later that same day, Osman told his father that he had attempted to reach Joe twice with no luck.*fn13 The following day, Osman reached Joe by phone and the two arranged to meet in person.*fn14 Osman and Joe met and discussed how Joe's "people" would conduct reconnaissance on the intended targets, collect the money owed, and then murder the Batcas.*fn15

On October 6, 2005, Joe called Osman to tell him that he had the money, and the two made plans to meet that evening. When Osman arrived at the designated location, he was placed under arrest.*fn16 After being read his Miranda rights, Osman waived these rights and made certain inculpatory and false exculpatory statements about his involvement in the scheme.*fn17

The Government's evidence at trial included the testimony of the cooperating witness, Mabrouk; "the testimony of (and conversations recorded by) an undercover [FBI] agent, whom the Ozsusamlars hired to carry out the plot; recorded telephone conversations between Mustafa and the Petitioner discussing the plot; and handwritten instructions about the plot that Mustafa gave to the cooperating witness."*fn18 The Ozsusamlars' trial commenced April 10, 2006 and lasted ten days. On April 20, 2006, they were each convicted on all counts.

B. Post-Trial Motions

On May 16, 2006, Robert Osuna, Petitioner's trial attorney, filed a post-trial motion seeking a judgment of acquittal or, in the alternative, a new trial pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. The motion asserted: (1) insufficiency of the evidence that Osman knowingly and unlawfully joined the conspiracy to commit murder for hire; and (2) the admission of certain evidence against Mustafa unfairly prejudiced Osman. The motion was denied in an Opinion and Order dated July 20, 2006.*fn19

On July 31, 2007, Osman, proceeding pro se, filed additional motions claiming: (1) newly discovered evidence; (2) a miscarriage of justice occurred because he was innocent; (3) prosecutorial misconduct because the Government's witnesses lied; (4) his conviction was obtained using false evidence; (5) "the weight of the evidence and the credibility of witnesses"; (6) ineffective assistance of his trial counsel; and (7) complaints of missing witnesses. The Court denied these motions on September 12, 2007.*fn20

C. Sentencing

On July 31, 2007, a Fatico hearing was held in which the Government introduced evidence that Osman had engaged in obstructive acts from the time he was convicted. The Court issued an Opinion and Order on August 28, 2007, finding that the Government had proven, by a preponderance of the evidence, that: over the past four months, (1) Osman solicited another inmate at the [Metropolitan Detention Center ("MDC")] (where he is currently incarcerated awaiting sentencing) -- who Osman believed was soon to be released -- to collect an extortionate loan from the Batcas [the intended victims of the original offense]; (2) Osman solicited the same MDC inmate to find and kill several people who had participated in the investigation of Osman and Mustafa, including several FBI agents, Assistant United States Attorneys ("AUSAs"), and certain Court personnel; (3) Osman took steps to have individuals outside of jail investigate the targets noted above -- namely various FBI agents and AUSAs -- and to gather personal information about these targets, including home addresses, family members, and photographs; and (4) Osman communicated threats against the Court and the Government in writing directly to this Court and to others.*fn21

Based on these findings, the Court gave defendant a two-level enhancement for obstruction of justice, pursuant to section 3C1.1 of the United States Sentencing Guidelines. On September 18, 2007, Osman was sentenced to 188 months imprisonment (120 months on Counts One and Two, to run concurrently, and 68 months on Count Three, to run consecutively).*fn22

D. Appeal

Osman, through appellate counsel Malvina Nathanson, appealed to the Second Circuit. Petitioner argued that "(1) there was insufficient evidence to convict him for conspiracy to commit extortion, and (2) prosecutorial misconduct in the State's rebuttal summation deprived him of a fair trial."*fn23 On April 29, 2009, with the permission of the Second Circuit, Osman filed a supplemental appellate brief pro se. Specifically, Osman argued: (1) that he was entitled to a new trial because certain physical evidence was inauthentic or inaccurate; (2) his trial counsel was ineffective because he failed to object to the admissibility of certain evidence, failed to call exculpatory witnesses, and had entered into an illicit deal with the Government; (3) the Presentence Report contained inaccuracies; and (4) Government prosecutors and agents engaged in misconduct.*fn24 On October 20, 2009, Osman's appeal was summarily denied.*fn25 The instant Petition was timely filed on April 26, 2010.


A. Section ...

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