Argued: January 26, 2012
Appeal from a judgment of the United States District Court for the Southern District of New York, Loretta A. Preska, Chief Judge, denying as untimely and without merit a petition for a writ of error coram nobis based on alleged ineffective assistance of counsel in advice given as to the immigration consequences of petitioner's guilty plea. See 2010 WL 4455822 (Nov. 3, 2010).
THOMAS E. MOSELEY, Newark, New Jersey, for Petitioner-appellant.
JASON A. MASIMORE, Assistant United States Attorney, New York, New York (Preet Bharara, United States Attorney for the Southern District of New York, Jesse M. Furman, Assistant United States Attorney, New York, New York, on the brief), for Respondent-Appellee.
IMMIGRANT DEFENSE PROJECT, New York, New York (Manuel D. Vargas, New York, New York; Dani R. James, Craig L. Siegel, Jennifer Diana, Kramer Levin Naftalis & Frankel, New York, New York, of counsel), filed a brief as Amicus Curiae in support of Appellant.
Before: KEARSE, CABRANES, and SACK, Circuit Judges.
KEARSE, Circuit Judge:
Petitioner Vijay Chhabra, a lawful permanent resident of the United States who was convicted, following his plea of guilty, of one count of receiving Medicare kickbacks in violation of 42 U.S.C. § 1320a-7b(b)(1) and one count of income tax evasion in violation of 26 U.S.C. § 7201, appeals from a judgment of the United States District Court for the Southern District of New York, Loretta A. Preska, Chief Judge, denying his petition for a writ of error coram nobis to vacate his tax evasion conviction on the ground that he received ineffective assistance of counsel in connection with his criminal defense attorney's advice as to the deportation consequences of pleading guilty to that count. The district court, after conducting an evidentiary hearing, ruled that Chhabra's petition was untimely and that Chhabra failed to demonstrate either deficient performance of counsel or prejudice from the alleged advice, see Strickland v. Washington, 466 U.S. 668 (1984). On appeal, Chhabra contends principally that the district court erred (1) in finding his petition untimely, and (2) in failing to find that Chhabra's criminal defense attorney made affirmative misrepresentations to him that prejudiced him in connection with his decision to plead guilty to the tax evasion count. For the reasons that follow, we affirm the district court's denial of the petition for coram nobis.
Most of the facts are not in dispute. Chhabra, a national of India, has been a lawful permanent resident of the United States since April 1979 and has been licensed to practice medicine in the State of New York since 1983. In June 1998, he was arrested pursuant to a criminal complaint charging him with one count of receiving and one count of conspiring to receive cash kickbacks from certain providers of medical services and equipment in exchange for referring Medicare patients to those providers, in violation of 42 U.S.C. § 1320a-7b(b)(1) and 18 U.S.C. § 371. In October 1998, Chhabra was indicted on six counts: five counts of receiving Medicare kickbacks and one count of conspiring to do so. Chhabra retained Jeffrey C. Hoffman (or "defense counsel") to represent him and commenced cooperating with the government.
A. Chhabra's Plea of Guilty and the Specter of Deportation
In June 1999, Chhabra and the United States Attorney's Office for the Southern District of New York ("USAO") entered into a formal agreement ("Plea Agreement" or "Agreement") contemplating that the indictment would be superseded by an information (the "Superseding Information") that would charge Chhabra with one count of receiving Medicare kickbacks from 1988 through 1998, in violation of 42 U.S.C. § 1320a-7b(b)(1), and one count of income tax evasion for the calendar years 1994 through 1997, in violation of 26 U.S.C. § 7201. The government agreed to accept Chhabra's plea of guilty to those charges; Chhabra agreed to file amended tax returns for the years 1994-1997, to pay any past due taxes and penalties, and to cooperate with the government in ongoing investigations. The Agreement stated that as to each count the maximum possible sentence included five years' imprisonment.
The government also agreed that, with respect to the relevant years (1) the USAO would not prosecute Chhabra further in connection with the alleged kickbacks, and (2) subject to the approval of the Tax Division of the United States Department of Justice, neither the USAO nor the Tax Division would prosecute him further for tax evasion. The government further agreed that if Chhabra provided satisfactory cooperation the government would make a motion pursuant to § 5K1.1 of the Sentencing Guidelines ("Guidelines") and ask the court to sentence Chhabra with lenience. The government disclaimed any assurance that Chhabra would receive a particular sentence, and the Agreement repeatedly stated that the sentence to be imposed on him would be "within the sole discretion of the Court." (Plea Agreement at 3.)
The government filed the two-count Superseding Information on July 6, 1999. Count One alleged that from 1989 through 1998, both dates approximate, Chhabra had solicited and received more than $100, 000 in illegal cash kickbacks. Count Two alleged that Chhabra had failed to report those kickbacks on his income tax returns for 1994-1997 and had evaded taxes for those years, including $11, 650.22 for 1996 and $12, 500 for 1997.
On July 6, 1999, Chhabra pleaded guilty to both counts of the Superseding Information before a magistrate judge. During the plea allocution, the magistrate judge reminded Chhabra as to each count that the penalties included a maximum term of "five years imprisonment." (Plea Hearing Transcript, July 6, 1999 ("1999 Plea Tr."), at 4, 5.) Chhabra stated that he understood those potential penalties. (See id. at 5-7.) With respect to Count Two, Chhabra stated, inter alia, that he had failed to pay the correct amount of taxes for each of the years 1994 through 1997, and that he admitted the facts as alleged by the government. (See id. at 9-12.)
The magistrate judge stated that he was satisfied that Chhabra understood the nature of the charges against him and the consequences of pleading guilty and was satisfied that there was a factual basis for the plea; the magistrate judge stated that he would recommend that then-District Judge Denny Chin, to whom the case was assigned, accept Chhabra's plea of guilty. (See 1999 Plea Tr. 12.) As it turned out, the actual acceptance of Chhabra's plea of guilty did not occur until 2003.
In the meantime, Chhabra cooperated with the government pursuant to the Plea Agreement, and the Probation Department prepared a presentence report ("PSR"). In October 2002, Chhabra and Hoffman met with a probation officer; at that meeting, the probation officer stated that Chhabra could be deported because the tax evasion count against him involved a loss of more than $10, 000 and thus was an aggravated felony, see generally 8 U.S.C. § 1101(a)(43)(M)(ii). Shortly after that meeting, Hoffman recommended that Chhabra consult David S. Glassman, an attorney specializing in immigration law.
Chhabra consulted Glassman in late 2002 or early 2003. Glassman confirmed that the tax offense to which Chhabra was pleading guilty was an aggravated felony that carried deportation consequences. In connection with the present coram nobis petition, as discussed in Part I.D. below, Chhabra and Glassman have given differing accounts of what additional advice Glassman provided.
B. The PSR and the Acceptance of Chhabra's Guilty Plea
A draft PSR prepared shortly after Chhabra's October 2002 meeting with the probation officer stated, inter alia, that it was possible that the charges of conviction would render Chhabra a deportable alien and that Chhabra was fearful of that possibility and of the possibility that he would lose his medical license. In a version of the PSR dated January 28, 2003, the Probation Department recommended that the sentence to be imposed on Chhabra include a term of imprisonment. That PSR noted the Probation Department's belief that Chhabra, upon release from prison, could make a positive contribution to society; but the PSR stated that "that may not occur in the United States as the charges of conviction render Chhabra a deportable alien" (emphasis added). An amended PSR dated February 14, 2003, stated that the government planned to make a § 5K1.1 motion on Chhabra's behalf and that the Probation Department thus no longer recommended Chhabra's imprisonment. The amended PSR reiterated, however, that "the charges of conviction render Chhabra a deportable alien."
The proceeding at which Chhabra's guilty plea was accepted, and at which he was sentenced, was eventually held on February 18, 2003. That hearing had been scheduled for January 2003 but had been postponed after a request by Hoffman for an adjournment, stating in part as follows:
[T]here is an issue of potential deportation for Dr. Chhabra which is not desired either by the United States Attorney's Office or the defendant. Toward that end an immigration specialist has been retained who is preparing a memorandum outlining specific findings the Court might make at the time of sentencing which would be helpful to Dr. Chhabra in deportation proceedings.
(Letter from Jeffrey Hoffman to Judge Chin dated January 29, 2003, ("Hoffman January 2003 Letter"), at 1-2 (emphases added).) No such memorandum was filed; and so far as the record shows, Chhabra and Hoffman made no further mention of any deportation concerns to the district court until 2009.
The amended PSR, reiterating that "the charges of conviction render Chhabra a deportable alien, " was received by Chhabra and the court prior to the February 18, 2003 hearing. At the hearing, Chhabra did not raise any concerns with respect to the prospect of deportation. The district judge accepted Chhabra's plea of guilty, finding that it had an adequate factual basis, and was "made knowingly and voluntarily." (Plea and Sentencing Hearing Transcript, February 18, 2003 ("2003 Plea/Sent'g Tr."), at 3.)
The amended PSR stated that the taxes evaded by Chhabra for the four years in question, based on the figures stated in the Superseding Information, totaled $42, 074. As a matter of simple arithmetic, therefore, there must have been at least one year when the evaded taxes exceeded $10, 000. When queried by the court, Hoffman stated that the defense had no objections to the PSR. (See id. at 7.)
The district court noted that the Guidelines range for Chhabra's offenses was 15 to 21 months' imprisonment. However, in light of the government's § 5K1.1 motion and representation that Chhabra had provided substantial assistance to the government, the court granted a downward departure and sentenced him principally to five years' probation and a $30, 000 fine.
C. The Immigration Proceedings
In 2006, Chhabra traveled to South America, and upon his return to the United States he was detained by immigration officials who discovered his conviction in their database. In July 2007, Chhabra received a notice to appear for removal proceedings ("Notice"). It stated that he had been convicted of taking Medicare kickbacks and of income tax evasion, and that, having been convicted of a crime involving moral turpitude, he was removable pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I).
In February 2008, Chhabra, through his current attorney, Thomas E. Moseley, applied for cancellation of removal. Chhabra admitted the Notice's factual allegations but argued that a specific amount of tax loss was not an element of tax evasion and that neither his Plea Agreement nor his plea allocution had specified the amount of tax loss. The government moved to pretermit Chhabra's application because Chhabra had pleaded guilty to an information charging him with evading more than $10, 000 in federal income taxes; such a crime is defined as an aggravated felony, see 8 U.S.C. § 1101(a)(43)(M)(ii); and an alien convicted of an aggravated felony is ineligible for cancellation of removal, see 8 U.S.C. § 1229b(a)(3). In August 2008, an Immigration Judge ("IJ") found that the record in Chhabra's criminal case showed that his tax evasion offense was an aggravated felony and ruled ...