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Awan v. United States

United States District Court, E.D. New York

March 31, 2014

KHALID AWAN, Petitioner,


ALLYNE R. ROSS, District Judge.

Petitioner, Khalid Awan ("petitioner" or "Awan"), acting pro se, moves pursuant to 28 U.S.C. § 2255 to vacate his conviction after a jury trial for providing material support and resources to terrorists in violation of 18 U.S.C. § 2339A; conspiring to provide material support and resources to terrorists in violation of 18 U.S.C. § 2339A, and money laundering in violation of 18 U.S.C. § 1956(a)(2)(A). Awan's petition may be construed as raising two principal arguments. First, he appears to argue that the Neutrality Act of 1794 somehow renders unlawful his conviction for providing and conspiring to provide material support to terrorists. Second, he argues that his counsel, who represented him at trial and on appeal, were ineffective. For the reasons stated below, the petition is denied.


I. Pre-Trial Proceedings

On October 25, 2001, FBI agents arrested Pakistani-Canadian Khalid Awan at his house in Garden City, New York, on a charge of credit card fraud. Unites Stated v. Awan, No. 06-CR-0154 (CPS), Mem. Op. & Order, DE# 155, at 2. He pleaded guilty to one count of credit card fraud in violation of 18 U.S.C. § 1029 and, in October 2004, was sentenced to sixty months incarceration. Id . On March 8, 2006, just prior to his scheduled release, Awan was again indicted, this time in the Eastern District of New York on charges of providing material support to terrorism and money laundering. Awan, No. 06-CR-0154 (CPS), Indictment, DE #1. In his initial appearance before Magistrate Judge Bloom, petitioner was represented by appointed defense counsel, Robert Beecher, and pleaded not guilty to both counts. Awan, No. 06-CR-0454 (CPS), DE #2.

On the recommendation of a fellow inmate at the Metropolitan Detention Center (MDC), petitioner contacted Khurrum B. Wahid, Esq. Pet., DE #1, at 69. Petitioner retained Wahid and his partner, Sean M. Maher, Esq., to represent him. Petitioner was interested in hiring Wahid's firm because Wahid, like petitioner, was of Pakistani background and spoke Urdu. Id . According to both Wahid and Maher, petitioner's other main reason for hiring their firm was his concern that his appointed counsel, Beecher, was bringing him to proffer sessions with the government and encouraging him to plead guilty. Deel. of Sean M. Maher, Esq. ("Maher Deel."), DE #17-1, ¶ 5; Deel. of Khurrum B. Wahid, Esq. ("Wahid Deel."), DE #28, ¶ 3. Petitioner did not wish to cooperate with the government or plead guilty, and his express purpose in retaining Maher and Wahid was to proceed to trial. Maher Deel. ¶ 6; Wahid Deel. ¶ 3. Petitioner's account of his reasons for hiring them differs, however, in that he states that he told him that he wanted to "go through with the government offer." Pet. 69.

After petitioner retained Maher and Wahid as counsel, a superseding indictment was filed on August 1, 2006, and a second superseding indictment was filed on October 23, 2006. The second superseding indictment charged petitioner with three counts: (1) in and between approximately 1998 and 2005, conspiring to provide material support and resources to be used in a conspiracy prohibited by 18 U.S.C. § 956(a), to wit, a conspiracy to commit murder, kidnapping, or maiming outside the United States, in violation of 18 U.S.C. § 2339A; (2) in and between approximately 1998 and 2001, providing material support and resources to be used in such a conspiracy, also in violation of 18 U.S.C. §2339A; and (3) in and between approximately 1998 and 2001, engaging in the international transfer of money with the intent to promote specific unlawful activity, to wit, murder and the destruction of property by means of explosive or fire as prohibited by India Penal Code §§ 300 and 435, in violation of 18 U.S.C. § 1956(a)(2)(A). Awan, No. 06-CR-0454 (CPS), Superseding Indictment, DE #86. The charges related to petitioner's alleged involvement with the Khalistan Commando Force ("KCF"), a Sikh separatist organization known for carrying out bombings and murders in India with the intent to force India to permit the creation of a separate Sikh state in the Punjab.[1]

II. Preparations for Trial and Plea Negotiations

According to petitioner, Maher and Wahid continued advising him not to cooperate with the government but to go to trial, despite his own wish to cooperate. Pet. 71; Reply 20. Petitioner insists that his attorneys misled him as to the strength of his case and told him, "we are 100% going to win." Reply 20. According to Awan, at some point prior to his trial, Maher and Wahid informed him that the government had offered him a 12-year plea deal. Pet. 74. Petitioner contends that he told his attorneys, "if [I] need[] to accept the plea, then why are you people pressuring [me] to proceed to the trial." Id . He indicates that he told them that, if there was evidence that made his defense case weak, they should go ahead and negotiate the plea deal. Id . Petitioner indicates that his attorneys informed him that they had already told the government "NO" and that they would proceed to trial in his case. Id .; Deel. of Khalid Awan ("Awan Deel."), ¶ 14.

In their affidavits, Maher and Wahid indicate a different version of events. According to Maher, he spoke with petitioner "numerous times about the advantages and disadvantages of going to trial" and, in light of the government's evidence against petitioner, how difficult it would be for petitioner to mount a successful defense at trial. Maher Deel. ¶¶ 7-9, 11. Wahid confirms that they always advised Awan of the strengths and weaknesses of his case based upon the evidence and never told him that the government's case was weak. Wahid Deel. ¶ 12. Nonetheless, petitioner "clearly and emphatically" insisted on going to trial. Maher Deel. ¶ 6. In light of their client's wishes in the face of the risks of proceeding to trial, Maher states that he "advised Mr. Awan that he should keep the door open with the government in the event some type of mutually acceptable resolution could be reached" and that Maher "kept an open posture with the government to try to resolve the case without a trial." Id . if 14; see also Wahid Deel. ¶ 10 ("We... encouraged [Awan] to keep an open mind as to alternative resolutions other than trial."). Maher acknowledges that "[s]hortly before trial, negotiations with the government reached the stage where the government appeared to be open to the idea of permitting Mr. Awan to plead guilty to charges that would carry... around twelve year's [sic] imprisonment." Maher Deel. ¶ 15. However, according to Maher, petitioner "flatly rejected" the government's proposition. Id .; see also Wahid Deel. ¶ 12 ("Mr. Awan rejected the 12 year offer prior to trial."). In his affidavit, Wahid confirms that he at no time advised petitioner to reject a plea deal or suggested petitioner would "absolutely win at trial." Wahid Deel. ¶ 5.

III. Petitioner's Trial and Appeal

At trial, the government relied heavily on petitioner's own statements as well as the testimony of cooperating witnesses. Among the witnesses at trial, law enforcement investigator John Ross testified that, during two days of interviews in 2006, petitioner confided, inter alia, that he had met with Paramjit Singh Panjwar ("Panjwar"), that Panjwar was the leader of the KCF, that the KCF was involved in killing people in India, that petitioner had had meetings and calls with KCF sympathizers, and that he had transferred $60, 000 to $70, 000, which he knew would be used for killing people, to Panjwar. While in the MDC, petitioner made wiretapped calls to Panjwar, including calls in which he introduced a fellow MDC inmate, Harjit Singh ("Harjit"), to Panjwar and discussed Harjit going to Pakistan for military training. According to Harjit's testimony, he had a number of recorded and unrecorded conversations with petitioner between 2003 and 2004 in which petitioner discussed his knowledge of Panjwar and the KCF, including its involvement in hundreds of bombings and attacks on Indian security forces, and petitioner attempted to recruit Harjit to travel to Pakistan for training with the KCF. According to Harjit, petitioner also told him that he had transferred money to Panjwar on several prior occasions. Gurbax Singh and Baljinder Singh, two admitted KCF supporters, also testified that they had provided money intended for KCF to Awan for transfer to Panjwar. The government also introduced into evidence documents recovered from petitioner listing contact information for known KCF members and bank records for wire transfers of money to Pakistan that corroborated petitioner's prior statements to law enforcement.

Following a three-week trial, a jury convicted petitioner on all three counts on December 20, 2006. Petitioner brought a motion for judgment of acquittal or, alternatively, a new trial pursuant to Federal Rules of Criminal Procedure 29 and 33, which the late Judge Charles P. Sifton denied. Awan, No. 06-CR-0454 (CPS), DE #155. Judge Sifton subsequently sentenced petitioner to 168 months imprisonment. Petitioner, still represented by Maher and Wahid, appealed his conviction and sentence on the grounds that: (1) there was insufficient evidence to support his conviction; (2) the district court erred in denying petitioner's motion to suppress his admissions to investigators; (3) the district court erred in denying petitioner's motion to suppress evidence seized from his residence and suitcases; and (4) 18 U.S.C. § 2339A is unconstitutionally vague as applied and on its face.[2]The government cross-appealed and argued that the district court had erred in failing to apply the terrorism enhancement in U.S.S.G. § 3Al.4 in calculating petitioner's sentence. In separate opinions issued on the same day, the Second Circuit rejected petitioner's arguments, United States v. Awan, 384 F.Appx. 9 (2d Cir. 2010) (summary order), and agreed with the government that the petitioner's case should be remanded for resentencing taking into account U.S.S.G. § 3Al.4, United States v. Awan, 607 F.3d 306 (2d Cir. 2010). On remand, petitioner received substantially the same sentence.

According to petitioner, during the six months he spent in the MDC awaiting resentencing, he informed his defense counsel of three potential crimes that he had learned information about while in the MDC, but counsel refused petitioner's requests to pass the information along to government agencies. Pet. 79. The information that petitioner wanted to pass along to government authorities related to (1) a photograph in a Pakistani-language newspaper showing the leader of a radical Islamist group attending an event in New York; (2) a plan by his cellmate to kill an FBI informant in Pakistan; (3) a scheme in which fellow inmates claimed to be able to bribe prosecutors and judges to get lower sentences for inmates who paid them; and (4) the existence of a Sikh FBI agent who was in fact a KCF supporter sabotaging FBI investigations. Id. at 79-82.

In response, Awan's defense counsel states that "for various reasons [he] was reluctant to advise Mr. Awan to make further direct statements to the government that could potentially be used against him." Maher Deel., ¶ 18. Maher was concerned that there was a possibility that his client would be untruthful and potentially open himself up to prosecution for obstruction of justice. Id . His concerns were heightened by the fact that Awan had previously made admissions ...

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