United States District Court, S.D. New York
Raymond Gabriel Lahoud, Baurkot & Baurkot, Easton, PA, for Petitioner.
Jessica Rose Lonergan, U.S. Attorney's Office, New York, NY, for Respondent.
OPINION AND ORDER
HAIGHT, Senior District Judge.
Petitioner Adnan Asan was convicted of a narcotics offense in this Court on his plea of guilty in 1984. In 2007 the United States Department of Homeland Security, acting through the Immigration and Customs Enforcement agency (" ICE" ), deported Asan to his native country of Macedonia, where Asan currently resides. In 2011 Asan filed this coram nobis petition. He alleges that the assistance rendered to him by his attorney at the time of his guilty plea was ineffective to a degree that violated the United States Constitution. By this petition, Asan prays the Court to vacate his guilty plea, thereby paving the way for a return to the United States. The Government resists Asan's petition in all respects.
In a series of prior opinions and rulings, familiarity with which is assumed, the Court held that an evidentiary hearing was required. That hearing took place in the Courthouse on May 14 and May 15, 2012. Counsel for the Petitioner were Raymond G. Lahoud and Daniel Baurkot. Counsel for the Government were Assistant United States Attorneys (" AUSAs" ) Jessica Lonergan and Michael Levy. Thereafter, counsel for the parties filed main and reply post-hearing briefs, which principally addressed the question of whether the assistance given Asan by his attorney at the time of his plea had been ineffective within the constitutional context. After careful consideration, the Court sets forth in this opinion its Findings of Fact and Conclusions of Law.
A. The Witnesses at the Hearing
Four individuals testified at the May hearing. The first witness was the petitioner, Adnan Asan, who testified by closed television hookup from the United States Embassy in Macedonia. The second witness was Petitioner's wife, Fluturije Asan, who resides in the United States. Petitioner and his wife were called as witnesses by counsel for the Petitioner, who conducted the direct examinations, with cross-examination by counsel for the Government.
The Government then called the third witness, Jed S. Rakoff, who at the times pertinent to the petition was an attorney in private practice and a member of the Court's Criminal Justice Act panel, assigned in 1983 to represent Adnan Asan in connection with the charges brought against him by the United States Attorney for this District. The fourth and last witness, also called by the Government,
was Alan M. Cohen, an attorney who is presently chief compliance officer for the Goldman Sachs Group, and at the pertinent times was an AUSA in this District, in charge of the Government's case against Mr. Asan. Government counsel conducted the direct examinations of Messrs. Rakoff and Cohen; counsel for Mr. Asan cross-examined them.
In addition to the testimony of these witnesses, a number of documents generated by earlier events were received in evidence.
B. The Present Petition for a Writ of Error Coram Nobis
This proceeding was initiated on August 2, 2011, when counsel for Mr. Asan filed on his behalf in this Court a petition for a writ of error coram nobis. The petition was assigned to me because, in 1983 and 1984, I had presided over the original criminal case against Mr. Asan, United States v. Adnan Asan, No. 84 Cr. 006(CSH) (S.D.N.Y.) (the " underlying case" ). The manner of the underlying case's disposition forms the subject matter of the relief Mr. Asan seeks in this petition.
The Government's underlying case against Mr. Asan was one of several prosecutions of individuals engaged in a major conspiracy involving the shipment of narcotics from eastern Europe into the United States. Mr. Asan was arrested as a participant in that conspiracy. He entered into a cooperation agreement with the United States Attorney for this District, pleaded guilty to a lesser charge, testified against a number of major participants in the conspiracy at trials resulting in their convictions, and was sentenced by this Court to three years' probation after the Government advised the Court of the extent and value of Mr. Asan's cooperation. Mr. Asan, a legal immigrant and holder of a green card, resumed his life in the United States with Mrs. Asan and their children.
In 2007, the Department of Homeland Security, acting through ICE, ordered the deportation of Mr. Asan from the United States to Macedonia. In an opinion rejecting Mr. Asan's unsuccessful coram nobis proceeding at that time, I noted the parties' agreement that Mr. Asan's narcotics conviction in the underlying case " forms the basis for ICE's order of deportation." 2007 WL 2746898, at *1 (S.D.N.Y. Sept. 17, 2007). Mr. Asan's present coram nobis petition is accordingly his second.
The present petition, filed in August 2011, received case number 11 Civ. 5370(CSH). The petition [Doc. 1] is dated July 25, 2011 and was filed on August 2, 2011. It took the form of a factual recital signed by Mr. Lahoud, counsel for Mr. Asan, accompanied by legal argument with citations to authority, and attached several pertinent documents. The petition's conclusion prayed for an order of the Court vacating Asan's conviction in the underlying case, or in the alternative, an evidentiary hearing.
The petition did not contain or include an affidavit or declaration executed by Mr. Asan himself. It became apparent that the petition's factual assertions were based upon statements Mr. Asan made to his attorney, who then paraphrased or summarized those statements for inclusion in the petition. The Government took the unsurprising position that in those circumstances the petition's factual assertions had to be disregarded entirely, so that the petition merited no response and should be dismissed out of hand. In the alternative, the Government contented itself with a broad and general denial of the accuracy of the petition's factual recitations.
The Court decided to consider the contents of the petition for the limited purpose of determining whether Mr. Asan was
entitled to an evidentiary hearing. I did so because I accepted as plausible Mr. Lahoud's representations that Mr. Asan's safety and life were imperiled by the close proximity to him in Macedonia of kingpins in the underlying drug conspiracy, now released from their prison terms in the United States and deported to Macedonia. It is undisputed in this coram nobis proceeding that Mr. Asan's testimony against those individuals in this Court, pursuant to his cooperation agreement, played an important role in their convictions, so that they might reasonably be expected to harbor a certain animosity against Mr. Asan. However, I stressed that if an evidentiary hearing was ordered on the basis of the assertions of fact attributed to Mr. Asan in his petition, arrangements would have to be made to take his testimony under oath and subject to cross-examination by the Government. The Court's direction that an evidentiary hearing take place is included in an opinion reported at 2011 U.S. Dist. LEXIS 135989, at *27-32 (S.D.N.Y. Nov. 23, 2011), to which I adhered in several subsequent orders rebuffing governmental efforts to bar a hearing. See also the opinion reported at 2011 WL 6880737 (S.D.N.Y. Dec. 30, 2011).
Mr. Asan's petition contained a number of factual assertions, attributed by counsel to him, whose cumulative effect made it plain that the justice of the cause required an evidentiary hearing. I will quote some of those assertions.
Page 4 of the petition recites the undisputed fact that Mr. Asan and the United States Attorney for this District " entered into a cooperation agreement dated November 22, 1983." The petition then asserts at page 4:
Prior to signing the agreement, Petitioner asked his attorneys about whether or not he could be deported. After consulting with others, including members of the United States Attorney's Office, Petitioner was told that he would not be deported if he pled guilty pursuant to the terms of the agreement. Petitioner asked his then-counsel several times and each time, Petitioner was told " not to worry" and that he will remain in the United States.... Relying on the advice of his attorneys with respect to deportation, Petitioner signed the cooperation agreement and began working with the Government.
The petition asserts at page 5:
In 1984, Petitioner entered a plea of guilty and, given his cooperation, he was sentenced to only three years probation, with no prison term on September 5, 1984. Prior to entering his plea, Petitioner again asked his attorneys at the time about any potential deportation consequences and he was reassured that he would not be deported. Never did his attorneys inform him that he would face deportation. Had he been informed, Petitioner would not have entered into a cooperation agreement that would have caused him to be deported back to the country that he would be killed [ sic ], given that very same cooperation.
The petition concludes its factual recitations by asserting at page 6:
Petitioner's plea was involuntary, unknowing and unintelligent. He was either misled by his own attorneys or his attorneys had no idea that a plea of guilty to the charged crime could render Petitioner deportable. Whatever the case, his attorneys provided him with incorrect information. Petitioner relied on this information, much to his disadvantage.
That " disadvantage" manifested itself when in 2007 ICE deported Mr. Asan from the United States to Macedonia, an adverse action taken as the result of Mr. Asan's guilty plea to the narcotics charge
in 1984. Mr. Asan's constitutional claim, pressed in this coram nobis proceeding, is that at the time of his plea, he was denied the effective assistance of counsel.
In the Court's November 23, 2011 opinion, I declined " to decide the merits of the case at bar as a matter of law, in an evidentiary vacuum," and concluded that " there must be an evidentiary hearing to fully develop the facts, to the extent possible." 2011 U.S. Dist. LEXIS 135989, at *31-32. It had become apparent that the key witnesses were Mr. Asan; Mr. Rakoff, the attorney assigned to represent him; and Mr. Cohen, the AUSA in charge of the prosecution. In the December 30, 2011 opinion, I had occasion to reflect upon the relevance of those witnesses' testimony to the decisive issues of fact:
In the case at bar, the principal facts that are both of consequence and in dispute are what Asan asked his trial attorneys with respect to whether his cooperation and plea would have any adverse deportation effects upon him, and what his attorneys said to Asan in response to whatever inquiries he made on that subject. Asan's petition describes those oral exchanges in a narrative recounted to his present attorney, who then summarized them in the petition. The government responds that no such conversations took place. Asan's trial attorneys and the government prosecutors handling the case have personal and direct knowledge of what was said or not said on the subject of deportation consequences. Their testimony will be relevant and necessary to the just resolution of the case.
According to the present record, Jed S. Rakoff was Asan's principal trial counsel; none other is mentioned.... Mr. Rakoff's testimony is necessary for resolution of the core facts in dispute: the existence and substance of any discussion about adverse deportation consequences if Asan cooperated and pleaded.
Former AUSA Alan M. Cohen was the prosecutor. Cohen signed the November 22, 1983 cooperation agreement on behalf of the government as an " Assistant United States Attorney." There seems no reason to doubt that Cohen negotiated the plea agreement on behalf of the government, and discussed its terms with Asan and Asan's counsel....
Cohen's testimony is clearly necessary with respect to those core facts in dispute.
2011 WL 6880737, at *1-2.
Messrs. Asan, Rakoff and Cohen all testified and were cross-examined during the May 2012 hearing. The case turns upon the findings of fact the Court must make upon the basis of that testimony and the accompanying exhibits. I turn to that subject.
II. FINDINGS OF FACT
1. A time came, during the Government's prosecution of drug charges against Adnan Asan and others, when Jed S. Rakoff was appointed to represent Mr. Asan as his defense counsel. The record contains a cooperation agreement letter dated November 22, 1983 which is Petitioner's Exhibit 1 (P. Ex. 1) in this hearing. P. Ex. 1, on the letterhead of the United States Attorney, was signed by AUSA Cohen, who was in charge of the case for the Government; signed under the notation " APPROVED:" by Lawrence B. Pedowitz, the Chief of the United States Attorney's Criminal Division; signed under the notation
" AGREED AND CONSENTED TO:" by Mr. Asan; and signed under the notation " APPROVED:" by Mr. Rakoff as " Attorney for Adnan Asan."
2. P. Ex. 1 was signed by these individuals in the manners described during a meeting in the offices of the United States Attorney on the date recited on the letter: November 22, 1983.
3. Mr. Rakoff had served as an Assistant United States Attorney for this District from 1973 to 1980. He worked as a prosecutor in the criminal division of that office, and had experience in signing up defendants or those charged with crime as cooperating witnesses. In 1980, Mr. Rakoff left Government service and joined the private law firm of Mudge Rose Guthrie Alexander & Ferdon. From 1980 and continuously thereafter, Mr. Rakoff, a Mudge Rose partner, practiced as a criminal defense attorney, until his appointment in 1996 as a United States District Judge in this Court.
4. In or about 1981, Mr. Rakoff became a member of this Court's Criminal Justice Act (" CJA" ) panel of defense lawyers. CJA lawyers represent indigent defendants in criminal cases when for any reason the Federal Defenders Service is unable to do so. CJA panel members are assigned particular days to be on call, in the event a need for CJA representation arises. In the case at bar, it came to pass in 1983 that Mr. Asan required legal representation in connection with his proposed cooperation with the Government in the underlying narcotics conspiracy case. This need was made known by a Magistrate Judge of the Court, to whom the Government had applied for an appointment from the CJA panel. Mr. Rakoff had the CJA duty that day, and so he became Mr. Asan's attorney: appointed, in Mr. Rakoff's description, " to represent him in negotiating an agreement and for all other purposes." Tr. 152.
5. The circumstances resulting in Mr. Rakoff's retention described in ¶ 4 of these Findings are agreed upon in principle by all the individuals concerned. Mr. Rakoff described his understanding that Mr. Asan " had already been meeting for some time with the Assistant United States Attorney, and they were of the view that he was ready to sign a cooperation agreement, so they asked the Magistrate to appoint whoever was the CJA attorney for that day to represent him in negotiating an agreement and for all other purposes. And I was the CJA counsel that day, so I got a call telling me that I was appointed to represent him." Tr. 152. Former AUSA Cohen, testifying on cross-examination by counsel for Asan, expressed " a dim recollection" that " Mr. Asan was arrested following some, both conversations around and some narcotics transactions with an undercover agent of the DEA or the DEA task force.... At the time of his arrest he was brought in for a conversation with agents and with me about whether he would actively cooperate with what was then an ongoing investigation." Tr. 220-221. While Mr. Cohen lacked specific recollection of events occurring " 28 years ago," he acknowledged to Asan's counsel that " it's entirely possible that the meeting I just described to you after he was arrested, at which point we approached him to actively go back out on the street and cooperate working with the Drug Enforcement Administration was without counsel." Tr. 221-222. Counsel then asked: " At some point in time CJA counsel was appointed, correct?" to which Cohen responded: " That is correct." Tr. 222.
6. There is some uncertainty as to how often Mr. Rakoff met with Mr. Asan prior to the November 22, 1983 meeting in the United States Attorney's office described in ¶ 1, when the cooperation agreement was executed. Mr. Asan, asked on direct examination by his counsel to clarify the times that he " met with Mr. Rakoff with respect to the cooperation agreement," recalled that " I was working more with, actually more than more with [ sic ] Mr. Rakoff's assistants, and I believe to my belief that the first time I met with Mr. Rakoff was when the agreement was signed." Tr. 59. Mr. Rakoff testified on direct examination by the Government that in accordance with his practice, " I would discuss it [the cooperation agreement] with Mr. Asan. I know I discussed it with Mr. Asan, and I know discussed the substance of this agreement with him in private on more than one occasion," without specifying the dates or places of such discussions. Tr. 161. On cross-examination by counsel for Mr. Asan, Mr. Rakoff, asked to recall " the first meeting you had with Asan," gave this testimony:
I am not sure I can say I recall the first meeting. I can recall early meetings, meetings before— my practice, my uniform practice in CJA cases was to first meet with the client and then go meet with the prosecutor and I can't remember a case when I didn't do that.
Q. Do you recall where your meetings with Mr. Asan took place early on, your representation of him?
A. Well, we only met in two places that I can recall, three places. We met in my offices at 20 Broad Street. We met at the MCC. That's the jail, the Metropolitan Correctional.
A. Yes. And we met in the U.S. Attorney's Office. Those are the three places that I can recall. But which meeting occurred when at where, that I can't tell you.
7. The evidence reviewed in ¶ 6 does not allow a finding of when and where Mr. Rakoff's first meeting with Mr. Asan took place. However, the record clearly establishes facts of greater import: how the cooperation agreement, P. Ex. 1, came into existence in the form it took; and the manner of the agreement's execution by its signatories.
8. The cooperation agreement in this case follows a form familiar to anyone with experience in criminal prosecutions in this District, including trial judges. I would suppose that a template of the standard cooperation agreement dwells in the bowels of every word processor used by AUSAs in the Criminal Division, such as Mr. Cohen. When the United States Attorney's Office decides to present a cooperation agreement on its stationery to an individual in the hope that he or she will sign it, the AUSA adopts the form to reflect the facts of the case, and includes a number of provisions attendant upon the plea of guilty which cooperation agreements routinely contain. And so it came to pass, and I find, that shortly after Mr. Rakoff' s retention under CJA procedures as the attorney for Mr. Asan, Mr. Rakoff conferred with the AUSA, Mr. Cohen, and received from Mr. Cohen two drafts of a proposed cooperation agreement for execution by Mr. Asan. The second draft was eventually executed after the Government made certain changes requested by Mr. Rakoff to the initial draft. With respect to these particular facts, I accept the testimony of Mr. Cohen at Tr. 218, and there is really no dispute on the points.
9. Mr. Rakoff was not satisfied with Mr. Cohen's first draft of a cooperation agreement. Concealing any irritation that he might have felt, Mr. Cohen testified
that his initial draft " came back to me looking like a high school student's marked-up draft [a simile casting Mr. Rakoff as the teacher and Mr. Cohen as the student], which we then proceeded to discuss his proposed comments." Tr. 218. In point of fact, these were not " proposed comments " on the part of Mr. Rakoff; he had made his comments previously. What Mr. Rakoff and Mr. Cohen proceeded to discuss were Mr. Rakoff's proposed changes to the standard form agreement, to which Mr. Cohen agreed. It is necessary to examine those changes with care because they relate to Mr. Asan's immigration status.
10. At the time of his arrest, Mr. Asan's immigration status was that of a permanent resident alien: he held a coveted " green card" issued by the United States immigration authorities. For reasons that the record does not reveal, Mr. Cohen had formed the impression and related to Mr. Rakoff " the fact that Mr. Asan had probably lied in the obtaining of his green card, and that was of concern to me." Rakoff, Tr. 158. The source of Mr. Rakoff's concern was his responsibility as Mr. Asan's attorney to protect his interests. Mr. Rakoff sought to deal with this particular concern by proposing that the Government's promises and undertakings set forth in page 1 of P. Ex. 1 be expanded to include this language:
In addition, if he fully complies with these understandings, Adnan Asan will not be prosecuted by this Office for any criminal violations of the immigration laws which he may have committed during the ...