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Al Alim v. United States of America

November 9, 2012

AL ALIM BARRIE, PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.

OPINION & ORDER

Pursuant to 28 U.S.C. § 2255, Al Alim Barrie (the "Petitioner") brings a motion to vacate the sentence imposed following his July 8, 2009 conviction for conspiracy to commit bank fraud, substantive bank fraud, and aggravated identity theft. See United States v. Magassouba et al., No. 07 CR 158-2 (S.D.N.Y. July 15, 2009). Petitioner argues that he is entitled to relief because appellate counsel provided ineffective assistance by failing to challenge the sufficiency of the evidence as to Petitioner's conviction for aggravated identity theft under 18 U.S.C. § 1028A and because trial counsel provided ineffective assistance by failing: to inform Petitioner as to the knowledge element required for a conviction under § 1028A; to object to testimony offered by a Government expert witness; to object to violations of the Speedy Trial Act; and to object to the constitutionality of the enhancement scheme embodied in the Sentencing Guidelines and applied by this Court. (See Mot. to Vacate, Set Aside, or Correct Sentence ("Pet'r Mem.."), No. 11 CIV 8913, ECF No. 1.) For the reasons discussed below, Petitioner's § 2255 motion to vacate is DENIED.

I. BACKGROUND

A. Underlying Facts

On October 27, 2008, a federal grand jury issued an eight-count Indictment against Petitioner charging him with one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349; six counts of substantive bank fraud in violation of 18 U.S.C. §§ 2, 1344; and one count of aggravated identity theft in violation of 18 U.S.C. §§ 2, 1028A. (See Fourth Superseding Indictment, No. 07 CR 158, Oct. 27, 2008, ECF No. 37.) A jury trial commenced before this Court on February 24, 2009. At trial, the Government presented evidence that Petitioner conspired with two other persons, Moussa Magassouba ("Magassouba") and Ahmed Conde ("Conde"), to obtain money from banks by altering, counterfeiting, and stealing checks, and by fraudulently transferring funds from a credit card account to one of their own personal accounts. See United States v. Magassouba et al., 619 F.3d 202, 203 (2d Cir. 2010).

At trial, the Government's case first addressed acts undertaken by Petitioner between January 2003 and September 2005, during which time Petitioner worked as a mail room messenger at Cleary, Gottlieb, Steen & Hamilton LLP ("Cleary"), an international law firm located in Manhattan. (Trial H'rg Tr. ("Tr.") 168-75.) The evidence presented showed that, while at Cleary, Petitioner stole at least four checks mailed to the firm by clients in payment for legal services rendered. (See Tr. 146-58, 396-97, 400-07, 490-97, 528-40, 568-80.) The four checks totaled approximately $110,000. (See id.) The evidence further showed that the stolen checks were altered and deposited into personal bank accounts by Petitioner, Magassouba, and Conde and that funds were withdrawn soon after the stolen checks cleared. (See id.) At trial, the Government also presented evidence that the co-conspirators participated in numerous calls to one another during the period when each of the checks were received in the Cleary mail room and just after each deposit and withdrawal event. (See Gov't Ex. 1060.)

Secondly, the Government presented evidence that, on May 2, 2005, an unauthorized check for $9,200 from the account of Patricia Rehn ("Rehn") was deposited into Petitioner's personal Citibank account and, on that same day, an unauthorized check for $4,500, also from Rehn's account, was deposited into Magassouba's personal JP Morgan Chase bank account. (Tr. 413-14, 474.) On May 6, 2005, Citibank reversed the check deposited into Petitioner's personal bank account. (Tr. 416, 471-84, 502, 511-19.) Before the check deposited into Magassouba's personal bank account could be reversed, however, $2,500 was withdrawn from the account on May 9, 2005. (Id.) As with the deposits of the four checks from the Cleary mail room, the Government presented evidence that Petitioner, Conde, and Magassouba each made many phone calls to one another in the week leading up to the deposit of the Rehn checks. (See Gov't Ex. 1060.)

Next, the jury heard evidence that Petitioner, along with Conde and Magassouba, attempted to arrange for the cashing of several stolen checks, and in particular a check for $191,000 from TriZetto Group, Inc., by soliciting the help of undercover FBI agent Bempsey Co ("Agent Co"), who was posing as a bank manager that was corrupt. (Tr. 205-06, 209-11, 281-97, 314-22; see also Gov't Ex. 99-3-T at 19.) Agent Co recorded his conversations with Petitioner and Magassouba and the jury heard these tapes at trial. (Tr. 209-11, 296-97; see also Gov't Ex. 99-2-T to -7-T.) In one discussion,

The jury also heard evidence that, during the period the three co-conspirators were working with Agent Co to cash stolen checks, Petitioner, Conde, and Magassouba accomplished the takeover of a Bank of America credit card account held by Brooklyn-based businessman Moise Mizrahi ("Mizrahi"). (Tr. 25-26.) Evidence showed that, on November 7, 2006, a caller, claiming to be Mizrahi, provided a Bank of America customer service representative with Mizrahi's means of identity and Social Security number, added a new password to the account, and requested that the account's line of credit be increased to the maximum limit of $12,600. (Tr. 96-100; Gov't Ex. 806.) Later that day, Bank of America received another call from someone using the new password and claiming to be Mizrahi, who requested that $8,200 be transferred from Mizrahi's credit card account to Petitioner's personal Chase account. (Tr. 105-09; Gov't Ex. 806.) The funds were transferred to Petitioner's account, and that same day at a branch in the Bronx, Petitioner withdrew $4,200 in cash from his Chase account. (Tr. 118, 120, 480-81; Gov't Ex. 806, 812.) On November 13, Petitioner withdrew another $3,800 in cash from a second Chase branch in the Bronx. (Id. 45-49.) Several hours after this second withdrawal, Petitioner was arrested while meeting with Magassouba and Agent Co. (Tr. 543-44.) At the time of his arrest, Petitioner had approximately $1,010, primarily in $100 bills, in his pocket. (Tr. 341-44, 545.)

C. Jury Verdict

On March 3, 2009, the jury issued a verdict finding Petitioner guilty on all eight counts charged in the Indictment. (See J. in a Criminal Case, July 8, 2009, ECF No. 62.) On July 8, 2009, Petitioner was sentenced to serve concurrent terms of 41 months' imprisonment on the conspiracy count and on each of the bank fraud counts. (Id.) Petitioner was also sentenced to serve a consecutive term of 24 months' imprisonment on the aggravated identity theft count. (Id.) The Court ordered that the term of imprisonment be followed by concurrent terms of three years' supervised release and imposed a mandatory $800 special assessment. (Id.) The Court further ordered Petitioner to pay restitution in the amount of $50,409.02. (Id.)

D. The Appeal

Counsel for Petitioner filed a notice of appeal on July 9, 2009. (Notice of Appeal, July 9, 2009, ECF No. 63.) Appellate counsel argued that (1) venue in the Southern District of New York was not proven by a preponderance of the evidence with respect to the aggravated identity theft count charged in Count Eight of the Indictment; and (2) the district court had erred in determining the applicable losses for sentencing enhancement purposes under the United States Sentencing Guidelines (the "Sentencing Guidelines"). See Magassouba, 619 F.3d at 202; United States v. Magassouba, 391 F. App'x. 905, 906-07 (2d Cir. 2010). On August 31, 2010, the Second Circuit published an opinion affirming Petitioner's conviction and holding that, because venue for the underlying predicate felony offense was appropriate, venue for the aggravated identity theft charge was also appropriate. Magassouba, 619 F.3d at 202. In a separate unpublished disposition, the Second Circuit concluded that this Court did not err in ...


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