Petition — Singh v. United States

%

Supreme Court, u.s

80-510 - Se

| SGP 80 1980

No.:

IN THE

Supreme Court of the United States

October Term, 1980

MOHINDER SINGH, SHAMSHER WADUD, BENGAL

CABARET, INC., D/B/A NIRVANA RESTAURANT, AND

BANGLADESH HousE, INC., D/B/A NIRVANA BOUTIQUE,

Petitioners,

-against-

UNITED STATES OF AMERICA,

Respondent.

-fnicis-r0o4y, JR., CLE |

JOINT PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Roy R. KULCSAR, ESQ.

Attorney for Joint Petitioners

575 Madison Avenue

New York, New York 10022

(212) 751-5777

BACKAL, KULCSAR & LAMENDOLA

Of Counsel

a

ieee oe

i

Questions Presented

1. (a) Were the petitioners’ Sixth Amendment rights

to meet and confront witnesses destroyed because

the District Court allowed the Government, over

objection of defense counsel, to introduce into evidence

a civil judgment obtained by a key prosecution witness

(Miron) against the defendant Wadud on the very

issue that was critical to the conviction of the defendants

at their criminal trial?

(b) Were the petitioners denied their elemental

right to the presumption of innocence by the admission

into. evidence by the Government, at the outset of the

case and over objection of defense counsel, the fact

that a key prosecution witness (Miron) had obtained

a civil judgment against the defendan’ Wadud on

the very issue that was critical to the conviction of

the defendants at their criminal trial?

2. (a) Were the petitioners’ Fifth Amendment rights

to due process violated by the suppression of exculpatory

material negating the credibility of the other key

Government witness (Franklyn Abrams, Esq.)?

(b) Were the petitioners’ Fifth Amendment rights

to due process violated by the curtailment of cross-

~-@xamination of the other key Governme:t witness

(Franklyn Abrams, Esq.) concerning this witness’

being the target of a Federal investigation concerning

fraudulent labor certifications, unrelated to the defend-

ants’ indictment, which was the very issue that was

the subject of Abrams’ testimony against the defend-

ants?

ii

Table of Contents

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ed ne ci dlys davies dkunbodobs

eM Les dais 6 hang pale bile ere wR Aice

Constitutional and Statutory Provisions Invoked

Co CaS, DSN ae aD | OE Oe alae

A. The Indictment: The Government’s

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lek ees ces

(a) The Prosecution’s Case..........

nS

POINT I - The Trial Court Erred by Allowing

the Government, Over Objection of Defense

Counsel, to Introduce into Evidence a Civil

Judgment Obtained by a Key Prosecution

Witness [Miron] Against the Defendant

Wadud on the Very Issue That Was Critical

to the Conviction of the Defendants at

ED ND on alc oc cbence sess

POINT II - The Petitioners’ Fifth Amendment

Rights to Due Process Were Violated by

the Suppression of Exculpatory Material

Negating the Credibility of the Other Key

Government Witness [Franklyn Abrams,

Esq.] and the Concomitant Curtailment

of Cross-Examination of the Witness

Concerning His Being the Target of a

Federal Investigation Which Was the

Subject Matter of the Suppressed Material. .

Teen hie es

CO ODD &

14

21

iii

Appendix A -- Opinion of United States Court

COR PIN: 555i. eli ae he ae Aa chs

Appendix B - Order of United States Court

of Appeals on Petition for Rehearing and

Suggestion for Rehearing En Banc.........

Appendix C - Constitutional and Statutory

Provisions Involved in the Case............

la

iv

Table of Authorities

Cases:

Brady v. Maryland, 373 U.S. 83 (1963) .8, 15, 17, 18, 20

Chessman v. Teets, 354 U.S. 156 (1957)......... 20

Giglio v. United States, 405 U.S. 150, 31 L.Ed.2d

MG Fer ere: FO CAE ieb sce oreo ew bac baeccs 19

Kyle v. United States, 297 F.2d 507 (2d Cir. 1961) 18

Taylor v. Kentucky, 436 U.S. 478 (1978)......... 12

United States v. Agurs, 427 U.S. 97 (1976) ...... 18, 20

United States v. Consolidated Laundries Corp.,

291 F.2d 663 (2d Cir. 1961) .........cccce. 18

United States v. Konovsky, 202 F.2d 721

eR lair REN a ha Gta SR a 9, 11, 12,13

United States v. Morrell, 524 F.2d 550

RE aon arate cg ean uk 18

United States v. Pacelli, 491 F.2d 1108

ge ee ULE. wk wind bin bp aibere 18

United States v. Zborowski, 271 F.2d 661

RU 8 a Fe ee 18

United States Constitution:

en ed apebaees i, 3, 9, 14

REE OEE St Ee Re i, 3, 9, 12

Statutes:

SE AEE 5s Cow vida Rae bb ocee wawdcecbe ces 3

28 U.S.C. § 1254(1) . 2... cee eee cece eee e eens 3

No.:

IN THE

Supreme Court of the United States

October Term, 1980

MOHINDER SINGH, SHAMSHER WADuD, BENGAL

CABARET, INC., D/B/A NIRVANA RESTAURANT, AND

BANGLADESH HousE, INC., D/B/A NIRVANA BOUTIQUE,

Petitioners,

-against-

UNITED STATES OF AMERICA,

Respondent.

JOINT PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Mohinder Singh, Shamsher Wadud, Bengal

Cabaret, Inc., d/b/a Nirvana Restaurant, and Bang-

ladesh House, Inc., d/b/a Nirvana Boutique, jointly

pray that a Writ of Certiorari issue to review the judg-

ment of the United States Court of Appeals for the

Second Circuit.

7%

2

Opinions Below

Following the entry of the judgments in the District

Court, petitioners appealed to the Court of Appeals.

The as yet unreported opinion of the Court of Appeals

may be found in the joint appendix filed with this

petition (la - 19a).!

Upon. the affirmance by the Court of Appeals of

all judgments of conviction, petitioners jointly peti-

tioned the Panel of the Court of Appeals which affirmed

their convictions for rehearing and suggestion for

rehearing en banc. By order dated August 1, 1980,

all applications were denied (20a - 21a).

The petitioner Mohinder Singh was sentenced to

a term of probation for two years.

The petitioner Shamsher Wadud is presently

incarcerated and serving his sentence of fifteen (15)

months imposed on each of the six counts to run con-

currently with each other.

The petitioner Bengal Cabaret, Inc. was fined

ten thousand ($10,000.00) dollars on the conspiracy

count.

The petitioner Bangladesh House, Inc. was fined

two thousand ($2,000.00) dollars on the conspiracy

count. 7

'The following abbreviations are used in this petition: “a” is

a reference to petitioners’ joint appendix, which is filed with this

petition. The appendix also contains the decision of the United

States Court of Appeals for the Second Circuit dated June 12, 1980;

the order of the United States Court of Appeals for the Second Circuit

dated August 1, 1980 denying rehearing; and the relevant statutory

provisions involved. “A” is a reference to the 2-volume appendix

heretofore submitted to the United States Court of Appeals for

the Second Circuit. These volumes, which contain, inter alia, trial

testimony, will be certified to this Court.

3

Jurisdiction

The date of the judgment of the United States

Court of Appeais for the Second Circuit was June 12,

1980. The judgment of the Court of Appeals for the

Second Circuit was entered on June 16, 1980. A timely

petition for rehearing and suggestion for rehearing

en banc was denied on August 1, 1980. This Court’s

jurisdiction is invoked under Title 28 U.S.C. § 1254(1)

and Rule 20 of the United States Supreme Court Rules.

Constitutional and Statutory Provisions

Invoked in the Case

1. The Fifth Amendment to the Constitution

of the United States.

2. The Sixth Amendment to the Constitution

of the United States.

3. Title 28 U.S.C. § 1254(1).

These constitutional and statutory provisions are

set forth in petitioners’ joint appendix at 22a - 23a.

Statement of the Case

A. The Indictment: The Government’s Theory

of the Case

This prosecution commenced on July 16, 1979

with the filing of Indictment Nos. 79-1439, 79-1440,

79-1484, 79-1485 in the United States District Court

for the Southern District of New York (A. 7-18). In

substance, Count I of the prolix indictment charged

the petitioners and others with conspiring to violate

the Immigration Laws (Title 18, United States Code,

Section 371). The indictment alleged that the con-

spiracy was manifested through a scheme in which

the principal defendant, Shamsher Wadud (hereinafter

referred to as “Wadud”), through the vehicle of his

corporations, Bengal Cabaret, Inc., d/b/a Nirvana

Restaurant and Bangladesh House, Inc., d/b/a Nirvana

4

Boutique, assisted aliens needing “green cards” by

means of the submission of fraudulent labor certifi-

cations to the Immigration and Naturalization Service

(hereinafter referred to as “INS”).

The petitioner Mohinder Singh (hereinafter referred

to as “Singh”) was alleged in the conspiracy count

to have assisted Wadud in locating aliens in need

of this service. In point of fact, Singh’s involvement,

in terms of proof, was concerned with assistance

rendered by Wadud, at the behest of Singh, for Singh’s

brother, Sarbjit Singh. Sarbjit Singh was originally

named as a defendant and charged in the third count

of the indictment (A. 16). During the early course

of the trial, Sarbjit Singh was severed and thereafter

received a nolle prosequi.

It should also be observed in the context of the

indictment that the sixth count of the indictment

charged Ahsan Ullah as a defendant in that “Ahsan

Ullah, aided and abetted by the defendant Bengal

Cabaret, Inc., doing business as the Nirvana Restaurant,

and the defendant Shamsher Wadud” obtained an

“immigrant visa” allowing him “entry into the United

States” by means of a fraudulent labor certification

submitted by Ahsan Ullah and Wadud to INS that

showed Ahsan Ullah to have obtained employment

by Wadud at Nirvana as the manager (A i7). Ahsan

Ullah was found not guilty (A. 2014), although Wadud

and his corporation Bengal Cabaret, Inc., d/b/a

Nirvana Restaurant were found guilty (A. 2015).

Realizing the inconsistency of this verdict, the trial

court, with the consent of the Government, dismissed

the verdict of guilty “as to Count 6 as to Mr. Wadud

and Bengal Cabaret” (A. 2018).

It was the Government’s theory that the petitioner

Wadud, somehow aided and abetted’ by petitioner

Singh and others with whom Wadud had also con-

spired and agreed, assisted aliens, by means of fraud,

in obtaining “green cards” whereby these aliens

would be allowed to remain in the United States. The

5

fraud involved the submission to INS of false labor

certifications wherein Wadud, as the alleged pros-

pective employer and principally as the owner of the

Nirvana Restaurant, represented to INS that he was

hiring these aliens as “specialty cooks.” This alleged

fraudulent representation to INS was contained in

Part B of the labor certification forms submitted in

conjunction with Part A, filled out by the prospective

employee.

The essence of the Government’s case was that

these alleged criminal acts of Wadud were performed

in exchange for the services of the aliens at the restau-

rant with little or no compensation or for payment

of monies.

Crucial to the prosecution’s theory and without

which a conviction could not be rendered against

the petitioners was the testimony of Saleh Nizamud-

dowlah [Miron] (A. 310-471) and Franklyn Abrams,

Esq. (A. 941-1026).

Miron was the first witness called by the Govern-

ment who testified to the charges in the indictment.

The significant aspect to Miron’s testimony was that

Wadud had assisted Miron to enter the United States

from Bangladesh through fraudulent means; that

Wadsud misrepresented to Miron that he would make

Miron manager of the Nirvana Restaurant; that

after Miron came to the United States Wadud sub-

jugated him to the extent of Miron’s being obligated

to work at Nirvana without salary and even to sleep

at the Restaurant.

Abrams was the vehicle whereby evidence not

previously admitted against Singh was introduced

into evidence (A. 967). Moreover, Abrams, as an immi-

gration attorney, testified to the allegedly fraudulent

labor certifications submitted to INS by Wadud through

the unknowing Abrams who was representing the

prospective employees (A. 943-946).

B. The Proof At Trial

(a) The Prosecution’s Case.

Sometime in late August or early September, 1972,

Wadud returned to his native country Bangladesh

where, according to the testimony of Miron, they

met at the home of Wadud’s mother. Miron, according

to his own testimony, had arranged to meet Wadud

through Wadud’s brother-in-law, Huq Rabuil Mani

Sheikh (hereinafter referred to as “Mani”) with the

purpose of obtaining Wadud’s aid to come to the United

States (A. 311).

Miron claimed, on direct testimony, that Wadud

guided him by fraudulent means to obtain the necessary

papers to leave Bangladesh and come to the United

States (A. 311-319). According to Miron, following

his arrival in the United States, he was obligated,

at Wadud’s insistence, to work as a waiter at Nirvana

for almost two years without salary (A. 328) and even

to sleep at the restaurant (A. 328).

Miron further testified that when he asked Wadud

about the “green curd” he needed for permanent resi-

dence, Wadud said he would sponsor Miron as a specialty

cook. Since Miron knew this to be improper he allegedly

refused to do this (A. 322-324).

According to Miron, while he was forced to sleep

at the restaurant by Wadud, Miron spoke with Singh,

who was not a specialty cook as claimed by Singh to

INS, but a dishwasher, and furthermore Singh told

Miron that he, Singh, was paying Wadud to sponsor

him for his “green card” (A. 336, 441, 432).

Finally, at the conclusion of Miron’s direct testi-

mony, the Government elicited the fact that Miron

had obtained a civil judgment against Wadud after

trial as a result of Wadud’s non-payment of wages.

This key testimony was obtained over objection of

defense counsel (A. 336-337).

7

On cross-examination, numerous inconsistencies

in Miron’s testimony were brought out despite cur-

tailment by the trial court (A. 338-453).

In view of the Government’s introduction of the

aforementioned civil judgment, defense counsel moved

for a mistrial, which was denied (A. 665-666).

Following the testimony of Miron, the Govern-

ment called a number of illegal aliens who allegedly

worked for Wadud at Nirvana without pay. These

witnesses, who were “friends” of or “friendly” with

Miron, supported Miron’s hardship tale. On cross-

examination, nearly all these witnesses were shown

to be acting in cooperation with INS against Wadud

which allowed them to remain in the United States.

The second most important prosecution witness

was Franklyn Abrams, Esq., an immigration lawyer

who represented eight aliens who were sponsored

for labor certification by Wadud as specialty cooks

during the period covered by the indictment (A. 943-

944). According to Abrams, he generally received

the requisite employer information from Wadud over

the telephone, although he sometimes copied this

information from previous forms (A. 946). Abrams

further testified on direct examination that Singh

sometimes accompanied these aliens to Abrams’

office (A. 951-952). It was Abrams who provided the

Government with a basis for claiming that Wadud

submitted false information to INS in the labor certi-

fications as part of a scheme (A. 947).

On cross-examination, numerous inconsistencies

in Abrams’ testimony were developed. Of particular

note is that Abrams was surprised to find that he

could only find one form with his notations (A. 1005).

Of most consequence is the fact that defense

counsel learned of an ex parte conference between

the Government and the trial court (A. 399-401) regarding

Abrams’ credibility arising from the fact that Abrams

had been the subject of an investigation by INS which

8

was based on Abrams’ submission of false labor certi-

fications (unrelated to the case on trial). This conference

was not disclosed to defense counsel by either the

prosecution or the trial court but resulted from defense

counsel’s reading of the daily copy of the minutes.

Moreover, on cross-examination the defense was

allowed to ask only two questions regarding Abrams

being the subject of such investigation by order of

the trial court (A. 972-973).

Material relating to Abrams having been the

subject of the aforementioned investigation was sub-

mitted to the trial court in camera by the Government

whereupon the trial court aborted defense counsel’s

argument as to how such material would come within

Brady v. Maryland (A. 843, 852, 853).

Other witnesses called by the Government testi-

fied either directly or indirectly to the charges but

Miron and Abrams were the nucleus about which all

else revolved.

C. The Petitioners’ Case

Various witnesses testified for the defense on

elements that were a necessary part of the Govern-

ment’s burden of proof. Thus, Karim Chand (A. 1237-

1253), an absolutely impartial witness, expressly

contradicted the testimony of Dr. Naik, a Government

witness, whose testimony was needed to establish

proo. of the conspiracy (Count I) and the fraud alleged

in Count II. Moreover, Karim Chand’s testimony

was supported by that of Steven Elias, Esq. (A. 1317-

1320).

Additional witnesses for the defense testified

that Singh had indeed been employed at Nirvana

as a specialty cook, in contradiction to Miron’s testi-

mony (A. 1283, 1288-1289; A. 1663, 1691, 1694) and

had the requisite background for sponsorship by

Wadud (A. 1659-1660).

9

Wadud testified on his own behalf and denied

the accusations (A. 1401-1466) of the indictment.

Wadud’s testimony expressly contradicted that of

Miron and Abrams, the key prosecution witnesses.

A number of character witnesses also testified

on behalf of both Wadud and Singh.

Reasons for Granting the Writ

This petition raises pressing and substantial

questions concerning the denial of petitioners’ Fifth

Amendment Rights highlighted by the holding of

an undisclosed ex parte conference between the Govern-

ment and the trial court following commencement

of trial, the subject matter of which involved the sup-

pression of exculpatory material.

In addition thereto, this case involves petitioners’

being denied their Sixth Amendment Rights by intro-

duction of a civil judgment to establish the truthful-

ness of the key Government witness and presents

a conflict between the decision of the Second Circuit

in affirming petitioners’ conviction and the holding

of the Seventh Circuit in United States v. Konovusky,

202 F.2d 721 (7th Cir. 1953).

ARGUMENT

POINT I

The Trial Court Erred by Allowing the Govern-

ment, Over Objection of Defense Counsel, to

Introduce into Evidence a Civil Judgment

Obtained by a Key Prosecution Witness [Miron]

Against the Defendant Wadud on the Very Issue

That Was Critical to the Conviction of the Defend-

ants at Their Criminal Trial

At the very outset, it is of paramount significance

to note that at a pre-trial conference with Judge Carter

on September 18, 1979 (only six days before the com-

10

mencement of the trial and the introduction of the

civil judgment by the Government), the problem

resulting from the fact that there had been numerous

litigations involving “various key government wit-

nesses and the defendants” (A. 28) was raised and

discussed. Defense counsel stated to the Court that

this was “certainly going to be relevant in terms of

cross-examination” (A. 28). Judge Carter promptly

stated that any excursion into this area would be

narrowly circumscribed. Defense counsel readily

accepted this instruction and noted its acceptance

of the Court’s restriction on the record (A. 28):

THE COURT: ...the point is the fact of their

being on opposite sides of one another and

involved in litigation may be relevant, but

certainly the issues that are involved in the

case and any ... inquiry concerning the case

is not. (Emphasis added.)

MR. KULSCAR (sic): I agree.

(See also continuing colloquy at A. 28-29).

On the very first day of trial the Government called

Miron as a witness. Miron was one of two key wit-

nesses for the prosecution -- the other being Franklyn

Abrams, Esq. (see Point II). Miron was a critical witness

in establishing the theory of the Government’s case

and proving the fundamental legal and factual elements

of the conspiracy count which, as stated by the Govern-

ment in its opening, was that the defendants Wadud,

Singh and others “located aliens in need of green

cards but unable to get them legally and brought

these aliens to... Wadud (A. 66) [who] aided by Mohinder

Singh, manipulated these illegal aliens ... certain

of [whom] were compelled to live in the restaurant ...

[and] forced to work long hours for ... no salary”

(A. 62-63). Miron’s direct testimony was a mirror

image of the Government’s claims in its opening.

Miron stated that he had been introduced in Bang-

ladesh to Wadud who made false promises to him

that he would become a manager of Nirvana, that

11

Wadud assisted him to come to the United States

by illegal means, that Miron was then compelled

by Wadud to work as a waiter in the restaurant without

pay and to sleep there. Miron gained his green card

finally by marrying an American.

Needless to say, Miron’s credibility was essential

to the Government’s efforts to convict Wadud and

with that in mind the Government concluded its direct

examination of Miron by eliciting from Miron the

fact that he had (1) sued Wadud for nonpayment of

wages and (2) that he had won the case. This was

done over objection of defense counsel and in contra-

vention of what defense counsel understood to be

the ground rules established by the Court at the pre-

trial conference (A. 26-51). The very next day (the

second day of trial) defense counsel, realizing that

no instruction could cure the damage done by intro-

duction of the civil judgment obtained by Miron against

Wadud on the key issues in the criminal case, and

that the only purpose such information was elicited

by the prosecution was to buttress Miron’s truthfulness

and credibility by grossly improper means, moved for

a mistrial under United States v. Konousky, supra.

The motion was denied. Despite the many inconsisten-

cies brought out in Miron’s cross-examination, there

was no way to avoid the impact that Miron’s truth-

fulness had already been favorably adjudicated on

the key issues to the criminal case. Finally, the Court’s

instruction did not serve to cure the defect but, if any-

thing, enhanced it.

The result of this case that I have just men-

tioned ... cannot enter into your determination ...

[Ylou may only consider the result of that

case ... in terms of assessing [Miron’s] credi-

bility (A. 2000). (Emphasis added.)

The Government’s contention on appeal that the

introduction of the fact that Miron won a civil case

against Wadud for non-payment of wages at the con-

clusion of its direct case was done “to avoid an inference

12

that the Government was trying to hide the witness’

personal bias and self-interest ...”” (Government brief

on appeal, p. 31) is sheer hypocricy. Clearly, the Govern-

ment could validly elicit from Miron that he sued

Wadud and perhaps even the fact that the matter

was disposed of. This, however, is a far cry from intro-

ducing the fact that the civil action involved non-

payment of wages and that Miron won the case and

that the amount awarded was $10,000. The introduction

of these specific facts by the Government was not

done as a means of showing possible “personal bias”

or “self-interest” but rather to establish for the trial

jury that Miron’s truthfulness had already been proven

in a civil action wherein Miron had obtained a judgment

against Wadud involving the same issues as his testi-

mony at the criminal trial.

The actions of the Government in eliciting the

specific responses it did from Miron over objection

of defense counsel, who immediately expressed to the

Court in a motion for mistrial the irreparable damage

done to the defense case, was violative of the foundation

of the criminal justice system -- the presumption of

innocence and one of its cornerstones -- the Sixth

Amendment right of confrontation.

As stated by the Supreme Court in Taylor v.

Kentucky, 436 U.S. 478 (1978):

This Court has declared that one accused of a

crime is entitled to have his guilt or innocence

determined solely on the basis of the evidence

adduced at trial ... (Emphasis added.)

In recognizing the importance of this basic tenet

as expressed by this Court in Taylor v. Kentucky, id.,

and the Sixth Amendment guarantee, the Seventh

Circuit in United States v. Konousky, supra, con-

demned the very act committed by the Government

at petitioners’ trial when it introduced the result of

the civil judgment obtained by Miron. In Konovusky,

the Government introduced into evidence at the criminal

13

trial of a number of defendants (over the objection

of the defense) a temporary injunction that had pre-

viously been obtained against one of the defendants

which judgment related to issues that were involved

in the criminal prosecution. The Konovusky court

reversed the convictions obtained against the defend-

ants because of the introduction of the evidence of

the prior civil proceeding, stating at 727:

.. though the jury was instructed that the decree

was not received as evidence of guilt we know

from common experience that a jury would

probably be inclined to follow the court’s finding

against the defendants in the civil action and

thus prejudice the criminal trial ... We see no

escape from the conclusion that the inevitable

effect of the introduction of the civil judgment

in evidence was to lead the jury in the trial of

this criminal case to believe that the same issues

had already been determined in the civil action.

In our opinion nothing could be more prejudicial

to a fair trial ... What we have said in this respect

is applicable to all defendants. Error is even

more clearly apparent as to defendants Brani

and Lange. They were not even parties to the

civil suit.”

In the context of the argument herein raised, it

must be stated that the opinion of the Second Circuit

in affirming the conviction of petitioners accepts

without discussion the baseless premise of the Govern-

ment that introduction of the civil judgment was proper

since the judgment was unpaid. Petitioners would

emphasize once more that if the Government had

simply elicited from Miron that he had sued Wadud

on a civil matter as a result of which some money

was due Miron, the gravamen of the error here com-

plainec of would have been mitigated. The Govern-

ment was not content to do this but specifically elicited

2Note, in this context, the fact that the co-petitioner of Wadud,

Mohinder Singh, was not even a defendant in the Miron civil lawsuit.

14

from Miron that (1) Miron sued Wadud for nonpay-

ment of wages, (2) he won the suit, and (3) the judgment

was for $10,000 (obviously demonstrating that Miron

had worked without pay for a considerable period

as he stated on direct testimony ) -- all of which were

essential elements of the criminal charges for which

Wadud was on trial and formed the basis of the Govern-

ment’s case.

The actions of the Government deprived the

petitioners of their constitutional right to a trial unfet-

tered by the predetermination of their guilt resulting

from the impermissible and constitutionally violative

introduction of the issues and outcome of the prior

civil proceeding.

POINT II

The Petitioners’ Fifth Amendment Rights to

Due Process Were Violated by the Suppression

of Exculpatory Material Negating the Credibility

of the Other Key Government Witness [Franklyn

Abrams, Esq.] and the Concomitant Curtailment

of Cross-Examination of the Witness Concerning

His Being the Target of a Federal Investigation

Which Was the Subject Matter of the Suppressed

Material

Franklyn Abrams, Esq., an immigration attorney,

was the other cornerstone necessary for the case which

the prosecution constructed against the petitioners.

Abrams, alone, provided the basis upon which the

trial court allowed into evidence against the petitioner

Singh numerous documents that had prior thereto

only been admitted against the petitioner Wadud

(A. 967). Moreover, the testimony of Abrams was the

keystone upon which the Government relied in respond-

ing to the Rule 29 motion made on behalf of the peti-

tioner Singh at the close of the Government’s case

(A. 1212-1213) and by the trial court in denying the

motion (A. 1230). Abrams was clearly a most important

15

witness against Wadud since Abrams was the attorney

who handled many of the labor certifications that

were contained in and referred to in the indictment.

Abrams’ direct testimony was that he obtained

from Wadud by telephone key information contained

in the labor certifications. This information, the

Government argued, was purposely falsified by Wadud

as the means of attaining the objects of the conspiracy

(A. 947). However, on cross-examination, Abrams

was able to produce only one form that contained

his notations (A. 1005). Since Abrams’ testimony

concerning the fact that the false information on the

labor certification forms he handled could not be

corroborated by the documentary evidence Abrams,

on direct examination, claimed to possess, his believ-

ability as such was of the utmost significance. Realizing

the importance of Abrams to their whole case and

the tenuous position that this key witness was in,

the Government deliberately suppressed critical

exculpatory evidence which would destroy Abrams’

credibility -- the fact that he was the target of an investi-

gation by INS involving fraudulent labor certifications

having nothing to do with Wadud, and that INS had

recommended prosecution to the U.S. Attorney’s

Office in Newark.

The information and material relating to the

nature of the alleged fraud, the basis upon which INS

sought criminal prosecution, the findings of the U.S.

Attorney’s Office and the basis upon which prosecution

was declined, was not revealed to defense counsel

prior to the trial despite a Brady request, nor subse-

quent thereto when the matter was inadvertently

revealed during the trial. To date, it is still unknown

whether this specific material WAS EVERSUBMITTED

IN CAMERA to either the trial court or the Second

Circuit Court of Appeals.

After deliberately suppressing even the fact of the

investigation from defense counsel prior to trial,

the Government, after trial had commenced, obtained

16

an ex parte conference at which the trial court was

told that Abrams had been a target of federal criminal

investigation which the Government cid not intend

to disclose to defense counsel (A. 399-401).

When the trial court expressed concern over the

ex parte nature of this disclosure and that to continue

it further “is going to raise questions which nee" not

be raised” (A. 398), the Government responded art-

fully that “I just didn’t think it was a matter that we

need to take everyone’s time with ...” (A. 398), and

more candidly moments later when A.U.S.A. Groban

said (referring to Abrams being a target of the criminal

investigation) that “[w]e did not intend to disclose

that to the other side. We think it will affect Mr. Abrams’

reputation ...” (A. 401).

The deception practiced on defense counsel con-

tinued the following day when the Government offered

the Abrams files, discussed at the ex parte conference,

in open court to the trial judge for in camera inspection

without either the court or the Government informing

defense counsel of the prior ex parte meeting (A. 842-

843). Moreover, at the time the offer was made, defense

counsel was not even informed what the material

being proffered for in camera inspection referred to.

Finally, defense counsel was not even told of the fact

that Abrams had been a subject of a federal criminal

investigation concerning falsification of labor certifi-

cations -- THE VERY SUBJECT OF HIS TESTIMONY

FOR THE GOVERNMENT AGAINST WADUD AND

SINGH. It was only because defense counsel had

ordered daily copy that disclosure of the investigation

and the ex parte conference came about.

In compounding this constitutionally violative

conduct, defense counsel was allowed by order of

the trial court to ask only two questions concerning

the investigation (A. 972-973). The Government was

then permitted on re-direct to elicit that the investi-

gation had been “terminated” (A. 999). When defense

counsel sought to explain that the reasons that the

17

files turned over to the trial court in camera are Brady

material in the sense of impeachment material (A. 843,

852, 853), the trial court refused to allow the argument

to be made (A. 853):

MR. KULCSAR: Excuse me, your Honor, I

would like to make my record.

THE COURT: You made your record last night.

If I am incorrect that there is 3500 material

there, it is preserved for the Court of Appeals.

MR. KULCSAR: I don’t want to go to the Court

of Appeals, I would like to get a verdict here.

THE COURT: I am weary of all these needless

speeches because your record is protected in

regard to that. If I am in error, your error is

protected.

Now I don’t want to hear any further speeches

about that at all. I really don’t.

That statement of the Second Circuit, at page 12

of its decision (14a) that “the matters contained within

the files were ... unconnected with the matter at hand”

begs the question. Obviously, these Abrams files are

unrelated to the indictment of petitioners but it is

also obvious that they are a source of important impeach-

ment material. Of paramount concern to petitioners

is the fact that other material still has not been sub-

mitted for in’ camera inspection or made known to

defense counsel because of which key questions remain

unanswered: (1) What was the basis for the belief of

INS that a crime had been committed by Abrams?;

(2) Why did INS believe that sufficient evidence had

been developed to refer the matter to the U.S. Attorney

for prosecution?; and (3) Why was prosecution declined?

The investigative files themselves cannot provide

this information.

The statement of the Second Circuit at p. 11 that

“(t]he trial court’s ruling that the files contained

neither Brady nor § 3500 material cannot be over-

turned on appeal absent a clear showing of abuse

18

of discretion” (14a), citing United States v. Pacelli,

491 F.2d 1108, 1118 (2d Cir. 1974), is only partially

accurate. The Pacelli standard only applies to § 3500,

not Brady.

Opinions of the Second Circuit in the area of

governmental suppression of exculpatory material

(including material that defense counsel could use

to attack the credibility of Government witnesses)

have long condemned such conduct. Cases such as

United States v. Zborowski, 271 F.2d 661 (2d Cir.

1961); United States v. Consolidated Laundries Corp.,

291 F.2d 563 (2d Cir. 1961); and Kyle v. United States,

297 F.2d 507 (2d Cir. 1961) were harbingers of this

Court’s landmark decision in Brady v. Maryland,

373 U.S. 83 (1963). This Court’s repudiation and criticism

of governmental suppression of exculpatory material

has most recently found expression in United States

v. Agurs, 427 U.S. 97 (1976), wherein this Court again

emphasized its “overriding concern with the justice

of finding guilt.” Jd. at 311.

In United States v. Morrell, 524 F.2d 550 (2d Cir.

1975), the Second Circuit remanded the matter for

purposes of holding an evidentiary hearing to determine

whether the prosecution’s failure to disclose a con-

fidential file bearing on the credibility of the govern-

ment’s key witness and which-eould have been used

by defense counsel in cross-examination was deliberate

or negligent. In a strongly worded concurring opinion,

Judge Friendly opined that the time had come to take

stronger measures in cases involving the failure of the

Government to disclose Brady material such as

evidence in its possession relating to its key witness;

that rather than expending further “scarce judicial

resources to determining the consequences of failures

to furnish Brady material,” id. at 558, the requirement

imposed upon prosecutors should be strictly adhered

to and in situations such as that before the Court a

new trial should be ordered without the need for an

evidentiary hearing. Jd., at 557.

19

It is high time that United States Attorneys

in this circuit took effective means to heed the

Chief Justice’s admonition in Giglio,’ id., at

558 ... An appellate court is naturally reluctant

to reverse on Brady grounds after long trials

where guilt seems clear and the value of the

withheld material is dubious. But we should

never forget Judge Frank’s famous remarks

about the salutary effect inherent in a reversal

and a direction of a new trial, as distinguished

from repeated admonitions. ibid.

The conduct of the Government in admittedly

(A. 401) deliberately suppressing the fact that a key

witness was the target of a criminal investigation

by INS which specifically involved falsification of

labor certifications, that enough evidence had been

adduced by INS to recommend prosecution to the

U.S. Attorney’s Office, that prosecution was declined

for reasons still unknown, in and of itself mandates

reversal. However, the conduct of the Government

at petitioners’ trial transcended even this degree of

impropriety by its charade in submitting to the trial

court in camera (in open court) files relating to the

aforesaid investigation (without telling defense counsel

the nature of the material being submitted) following

the ex parte conference that had been held. In so doing,

the Government successfully prevented defense counsel

from being able to articulate a position as regards

what it might ask the Court to look for during the

in camera inspection. Then, after the ex parte con-

ference inadvertently came to light, the trial court

foreclosed defense counsel from demonstrating to

the trial court how the material submitted in camera

would be important for cross-examination and finally

curtailed any meaningful cross-examination even

as to the subject of the investigation itself by per-

mitting only two “yes” or “no” questions of Abrams.

3Referring to Giglio v. United States, 405 U.S. 150, 31 L.Ed.2d 104,

92 S.Ct. 763 (1972).

20

It is most significant to emphasize to this Court, based

‘ upon a personal examination of the INS investigative

files of various aliens in the instant case, that exam-

ination of the files submitted to the trial court in camera

without any other information or underlying knowledge

of what could be important precludes the true import

of these files to the defense from being discerned.

In evaluating the conduct of the Government

in its deliberate suppression of material critical to

the defense, the means undertaken to achieve this

result, the compounding of this error by the trial court’s

foreclosure of meaningful cross-examination in this

area, and the unresolved questions as to the Abrams

investigation, the language of Justice Fortas in Brady

v. Maryland, supra at 99-100 is particularly apposite:

A criminal trial is not a game in which the

State’s function is to outwit and entrap its quarry.

The State’s pursuit is justice, not a victim ...

.. In my view, a supportable conviction requires

something more than that the State did not lie.

It implies that the prosecution has been fair

and honest and that the State has disclosed

all information known to it which may have a

crucial or important effect on the outcome.

See, also, United States v. Agurs, supra, at 113.

In conclusion, the individual petitioners, Shamsher

Wadud and Mohinder Singh, who face one of the most

grave consequences that can be faced by anyone con-

victed under our system of criminal justice - deportation

from the United States -- most respectfully implore

this Court to view their petition from the perspective

expressed by Justice Harlan in Chessman uv. Teets,

354 U.S. 156, 165 (1957):

Evidently it also needs to be repeated that the

overriding responsibility of this Court is to the

Constitution of the United States, no matter

how late it may be that a violation of the Con-

stitution is found to exist ... We must be deaf

21

to all suggestions that a valid appeal to the

Constitution ... comes too late, because courts,

including this Court, were not earlier able to

enforce what the Constitution demands. The

proponent before the Court is not the petitioner,

but the Constitution of the United States.

Based upon the foregoing, it is most respectfully

urged that the defendants’ convictions be reversed

or at the minimum that an evidentiary hearing be

held.

Conclusion

For all of the above reasons, it is hereby respect-

fully submitted that a writ of certiorari issue to review

the judgment of the United States Court of Appeals

for the Second Circuit.

Respectfully submitted,

ROY R. KULCSAR, ESQ.

Attorney for Joint Petitioners

575 Madison Avenue

New York, New York 10022

(212) 751-5777

BACKAL, KULCSAR & LAMENDOLA

Of Counsel

Dated: September 26, 1980

3

APPENDICES

la

Appendix A

Opinion of United States Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 1013, 1014, 1015, 1016 - September Term, 1979

(Argued: April 17, 1980 Decided: June 12, 1980)

Docket Nos. 79-1439, 79-1440, 79-1484, 79-1485

79-1439

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V.

MOHINDER SINGH,

Defendant-Appellant.

79-1440

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

-V.-

SHAMSHER WADUD,

Defendant-Appellant.

2a

Appendix A

Opinion of United States Court of Appeals

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

-V.-

BENGAL CABARET, INC., d/b/a Nirvana Restaurant,

Defendant-Appellant.

79-1485

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

-V.-

BANGLADESH HOUSE, INC.,

d/b/a Nirvana Boutique,

Defendant-Appellant.

Before:

MULLIGAN, Circuit Judge,

SPEARS,* and SWEET,** District Judges.

*Honorable Adrian A. Spears, District Judge for the Western

District of Texas, sitting by designation.

**Honorable Robert W. Sweet, District Judge for the Southern

District of New York, sitting by designation.

3a

Appendix A

Opinion of United States Court of Appeals

Appeals of judgments of conviction entered after

jury trial in the United States District Court for the

Southern District of New York, Robert L. Carter,

Judge.

Affirmed.

ROY R. KULCSAR (Backal, Kulcsar,

Labush & Lamendola) New York

City, for appellant Singh

GERALD M. LABUSH (Backal, Kulcsar,

Labush & Lamendola) New York

City, for appellants Wadud, Bengal

Cabaret, Inc., and Bangladesh

House, Inc.

ROBERT S. GROBAN, JR., Spec. Asst.

U.S. Atty., New York City (Pamela

Rogers Chepiga, Mary Jo White,

Asst. U.S. Attys., New York City,

of counsel), for appellee.

SPEARS, District Judge:

This is an appeal by defendants Mohinder Singh,

Shamsher Wadud, Bengal Cabaret, Inc. (d/b/a The

Nirvana Restaurant), and Bangladesh House, Inc.

(d/b/a The Nirvana Boutique) from a judgment of

conviction entered in the United States District Court

for the Southern District of New York.

The indictment, in seven counts, charged Mohinder

Singh, Wadud, and other individuals, as well as the two

corporate defendants, each wholly owned by appellant

Wadud, with developing and maintaining a sophisti-

cated, broad-based scheme to exploit illegal aliens by

4a

Appendix A

Opinion of United States Court of Appeals

manipulating the United States immigration laws.

Count One charged Wadud, the two corporations,

Mohinder Singh, and Hud Rabiul Mani Sheikh with

conspiring to harbor illegal aliens and to violate federal

law by making false statements on various immigration

forms and receiving money, services, and other unauth-

orized benefits from aliens in violation of 18 U.S.C.

§§ 1001, 1015, 1422, 1546, and 8 U.S.C. § 1324. Count Two

charged Wadud and Bangladesh House with making.

false statements in connection with an “Application

for Status as Permanent Resident” filed with the

Immigration and Naturalization Service (“INS”) by

Prema Kumari Muddan in violation of 18 U.S.C.

§§ 1001 and 1002. Count Three charged that Mohinder

Singh, Wadud, and Bengal Cabaret aided and abetted

Sarbjit Singh in obtaining an immigrant visa through

fraud in violation of 18 U.S.C. §§ 1542 and 1546. Counts

Four and Five charged Wadud and Bangladesh House

with aiding and abetting Shyam Sunder and Jagtar

Singh Sehgal in making false statements to INS in con-

nection with their “Applications for Status as Permanent

Residents” in violation of 18 U.S.C. §§ 1001 and 1002.

Count Six charged that Wadud and Bengal Cabaret

aided and abetted Ahsan Ullah in obtaining an immi-

grant visa through fraud in violation of 18 U.S.C. §§ 1542

and 1546. Count Seven charged that Wadud and Bengal

Cabaret aided and abetted Huq Rabiul Mani Sheikh

in making false statements to the United States Depart-

ment of Labor in connection with Sheikh’s “Application

for Alien Employment Certification” in violation of

18 U.S.C. §§ 1001 and 1002.

The jury returned guilty verdicts against each of

the appellants on all counts of the indictment in which

they were named. Ahsan Ullah was acquitted; the case

against Sarbjit Singh was severed during trial with the

Government’s consent. The remaining defendants were

not present for trial, and were believed to have returned

to their homelands.

5a

Appendix A

Opinion of United States Court of Appeals

Testimony of Civil Suit Against Defendant

As the first point of error, Wadud and the corporate

defendants assert that the district court erred when it

allowed the Government to elicit from Miron, one of

the prosecution’s twenty-four witnesses, that he had

brought a civil suit for non-payment of wages which

had resulted in an unpaid money judgment against

Wadud. The appellants argue that the admission of this

testimony destroyed the basic presumption of innocence

on the part of the defendant, as set forth in Taylor v.

Kentucky, 4386 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d

468, (1978), Estelle v. Williams, 425 U.S. 501, 96 S.Ct.

1291, 48 L.Ed.2d 126, (1976), and Coffin v. United

States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481, (1895).

They argue that the effect of the introduction of this

evidence, with no immediate curative instruction

from the court, was that the jury was left with the

impression that what Miron said was more worthy of

belief because another court had found Miron worthy of

belief. The appellants further argue that the introduc-

tion of this evidence was in violation of Rule 404(b) of

the Federal Rules of Evidence, which states

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in

order to show that he acted in conformity

therewith. It may, however, be admissible for other

purposes such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.

Since the judgment in the state civil suit remained

unpaid, Miron had a strong motive to testify in a

manner consistent with his testimony in the civil suit.

In addition, the mere fact that such a suit had been

instituted with the resulting judgment yet unpaid

reflected the possibility that Miron bore considerable

enmity toward Wadud.

6a

Appendix A

Opinion of United States Court of Appeals

While it is universally accepted that the “...

enforcement (of the presumption of innocence) lies at

the foundation of the administration of our criminal

law,” Coffin v. United States, supra, it should not be

implied that the admission of evidence of the bias and

self-interest of a witness would destroy the presump-

tion. If anything, the admission here would serve to

impeach the credibility of the witness rather than make

his testimony more believable. This court has long held

that, although credibility generally may not be

supported until it has first been attacked, an exception

exists which allows the Government to bring out on

direct examination the circumstances surrounding a

witness’ motivation for cooperating with the Govern-

ment or other matters damaging to the witness’

credibility. United States v. Blackwood, 456 F.2d 526

(2d Cir.), cert. denied, 409 U.S. 863 (1972); United

States v. Del Purgatorie, 411 F.2d 84, 87 (2d Cir.

1969); United States v. Rothman, 463 F.2d 488, 489-90

(2d Cir.), cert. denied, 409 U.S. 956 (1972); United

States v. Di Francesco, 604 F.2d 769, 775 (2d Cir.), pet.

for cert. granted on other grounds, SEs ccssmeng OO

S.Ct. 1012 (1980). Admission of this evidence is per-

mitted in order to avoid an inference by the jury that

the Government is attempting to keep from the jury

the witness’ possible bias.

Furthermore, proper curative instructions were

given by the district judge in order to prevent any pos-

sibility that the jury might consider the evidence con-

cerning the civil suit on some“issue other than Miron’s

motive in testifying. Although the appellants now

complain that the district judge erred in not giving the

instructions immediately after the testimony of Miron,

the record reflects that they did not seek such an

instruction at that time. The point has clearly been

waived. See United States v. Rothman, supra, in which

7a

Appendix A

Opinion of United States Court of Appeals

this court held that the complete absence of cautionary

instructions was not such plain error by the trial judge

as to require reversal of the convictions. In the present

case, proper instructions were given along with the

court’s charge to the jury. There is no error on

appellant’s first point of error.

Evidence of “Other Crimes” and “Bad Acts”

As the second point of error, the two corporate

appellants and appellant Wadud contend that the

testimony of several witnesses regarding the nonpay-

ment of wages by the defendant and the conditions of

their employment constituted inadmissible character

evidence of “other crimes” or “bad acts” of Wadud in

violation of Rule 404(b) of the Federal Rules of

Evidence. Numerous witnesses other than Miron

testified concerning the nonpayment of wages to the

employees of the Nirvana Restaurant.

T.M. Nazrul Inslam, testified that he worked six or

seven days a week from 4:00 p.m. until 1:00 to 4:00

a.m. and that he was paid no salary for his labor, but

was allowed to take the tips home. This testimony

proceeded with absolutely no objection on behalf of the

defendants, although opportunity for objection was

obviously present since counsel objected to other

portions of the witness’ testimony on various grounds,

generally as to the form of the questions. At no point

did the defense argue that the testimony being admitted

constituted evidence of “bad acts” or “other crimes” in

violation of Rule 404(b) of the Federal Rules of Evidence.

A.K.M. Omour Faroque Khan testified that he

worked at the Nirvana Restaurant from July, 1973,

until July 1974. He stated that he worked from 5:00 in

the afternoon until 1:00 or 2:00 a.m., but received no

salary. Once again, no objection was lodged with the

court concerning the evidence elicited from the witness,

8a

Appendix A

Opinion of United States Court of Appeals

although there were objections made throughout this

testimony regarding the form of the questions.

Mahboobur Rahman Khan testified that when he

was hired by appellant Wadud, he was told that when he

had learned the job of waiter, he would be paid the

same amount the other waiters received. Although he

worked for Wadud from August or September, 1974,

until April, 1975, and again from October, 1975, until

February, 1977, he testified that he never received any

pay. Again, the only objection lodged was to the form

of the question. No objection was made to the admission

of evidence regarding the nonpayment of wages.

Nur Ahmed testified that he worked at the restaurant

for approximately five months, and that he worked

approximately sixteen hours a day, but was never paid.

This testimony was admitted without any objection of

any kind.

Nazmul Ahsan Khan testified that his shift at the

restaurant began at 4:00 in the afternoon and lasted

until there were no customers left in the restaurant, but

that in nine months’ time, he received no salary.

Although there was a general objection to this line of

testimony as being irrelevant, there was no objection on

the ground that the testimony constituted “bad acts” or

“other crimes” within the meaning of Rule 404(b),

Fed.R.Evid.

Rule 12(f) of the Federal Rules of Criminal Procedure

clearly states that “Failure by a party to raise ...

objections ... shall constitute waiver thereof, but the

court for cause shown may grant relief from the waiver.”

This court has strongly held in United States v. Braunig,

553 F.2d 777, 780 (2d Cir.), cert: denied, 431 U.S. 959

(1977), that

9a

Appendix A

Opinion of United States Court of Appeals

. where a party has shifted his position on

appeal and advances arguments available but not

pressed below, United States v. Schwartz, 535 F.2d

160, 163 (2d Cir. 1976), and where that party has

had ample opportunity to make the point in the

trial court in a timely manner, United States v.

Rollins, 522 F.2d 160, 165 (2d Cir. 1975), cert.

denied, 424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d

325 (1976), waiver will bar raising the issue on

appeal.

See also United States v. Viserto, 596 F.2d 531, 537

(2d Cir.), cert. denied, U.S. __, 100 S.Ct. 80

(1979); United States v. Fuentes, 563 F.2d 527, 531 (2d

Cir.), cert. denied, 434 U.S. 959 (1977); and United

States v. Chiarizio, 525 F.2d 289, 293 (2d Cir. 1975).

But even if timely objections had been made to

questions regarding the nonpayment of wages, such

evidence was clearly admissible to prove overt actions

taken by the defendants in furtherance of one of the

objects of the conspiracy to harbor illegal aliens in

Count One of the indictment. The statute alleged to

have been violated, 8 U.S.C. § 1324, contains a priviso,

“that for the purposes of this section, employment

(including the usual and normal practices incident to

employment) shall not be deemed to constitute har-

boring.” Evidence of extended periods of employment

without the receipt of salary was certainly relevant to

the issue of whether the employment of these aliens

was the usual and normal practice incident to employ-

ment.

The Curtailment of Cross-Examination

Appellant Wadud and the two corporate appellants

next contend that the court committed reversible error

in curtailing their cross-examination of the prose-

cution’s witness.

10a

Appendix A

Opinion of United States Court of Appeals

A trial court is allowed wide discretion in the

management of the cross-examination of witnesses.

‘“(T)n the last analysis the trial court is the governor of

the trial with the duty to assure its proper conduct and

the limits of cross-examination necessarily lie within its

discretion. And we should not overrule the exercise of

that discretion unless we are convinced that the ruling

of the court was prejudicial.” Foster v. United States,

282 F.2d 222, 224 (10th Cir. 1960), quoted with approval

in United States v. Blackwood, 456 F.2d 526 (2d. Cir.),

cert. denied, 409 U.S. 863 (1972). See also United States

v. Cambindo Valencia, 609 F.2d 603, 630 (2d Cir. 1979);

United States v. Girard, 601 F.2d 69, 73 (2d Cir.), cert.

denied, U.S. —__, 100 S.Ct. 148 (1979); United

States v. Glover, 588 F.2d 876, 878 (2d Cir. 1978); United

States v. Corr, 543 F.2d 1042, 1051 (2d Cir. 1976); United

States v. Green, 523 F.2d 229, 237 (2d Cir. 1975), cert.

denied, 423 U.S. 1074 (1976); United States v. Jenkins,

510 F.2d 495, 500 (2d Cir. 1975).

In determining whether a trial judge has abused his

discretion in the curtailment of cross-examination of

government witnesses, the test is whether the jury was

already in possession of sufficient information to make

a discriminating appraisal of the particular witness’

possible motives for testifying falsely in favor of the

government. United States v. James, 609 F.2d 36, 47

(2d Cir. 1979), cert. denied, U.S. __.,, 100 S.Ct.

1082 (1980); United States v. Turcotte, 515 F.2d 145,

151 (2d Cir.), cert. denied, 423 U.S. 1032 (1975); and

United States v. Miles, 480 F.2d 1215, 1217 (2d Cir.

1973) (per curiam). Each of the situations in which the

erroneous curtailment is alleged to have occurred must

be examined in the light of this test.

The first of these instances occurred during the cross-

examination of I.T.M. Nazrul Inslam. Inslam testified

that he had worked as a waiter at the Nirvana

lla

Appendix A

Opinion of United States Court of Appeals

Restaurant and had not been paid; that he had observed

the co-defendant Mohinder Singh sleep in the restau-

rant; and that he had never seen the defendant Sarbjit

Singh work there. Appellant Wadud and the two

corporate appellants contend that the cross-examination

of Inslam was improperly curtailed when the court

sustained the objection of the Government to the

question, “When you were taken into custody, how long

did you remain in custody?”

The defense had been allowed a wide latitude in its

cross-examination of this witness. It was established

that Inslam was living with his friend Mahboobur

Rahman Khan (‘“Mizon”); that Inslam had overstayed

his visa; that he was “illegal”; and that deportation

proceedings were pending against him. In addition, the

INS file of the witness was introduced as a defense

exhibit; it classified the witness as a deportable alien

who was considered a favorable government witness in

this criminal case against Shamsher Wadud. Inslam’s

illegal status and motive to testify for the Government

were amply placed before the jury. The jury had been

presented with “sufficient information to make a

discriminating appraisal of the witness’ possible

motives for testifying falsely in favor of the govern-

ment.” United States v. James, supra, 609 F.2d 36, 47.

The court committed no error in sustaining the objection

of the prosecution to the question propounded.

Mahboobur Rahman Khan (“Mizon’’), who testified

that he had worked at the Nirvana Restaurant without

pay, also testified on cross-examination that he and

Islam were friends and had worked together at the

restaurant. Inslam had previously testified that they

lived together. The defense introduced his alien file,

which contained his most recent address and which

established that Mizon was an illegal alien subject to

deportation. The defense was also allowed to elicit from

12a

Appendix A

Opinion of United States Court of Appeals

Mizon that he had an agreement with the Government

that he would not be criminally prosecuted for being an

illegal alien. The appellants complain that error was

committed when the court refused to allow the defense

to ask Mizon if he had traveled to and from Bangladesh

with Nazrul Inslam. The trial court certainly did not

abuse its discretion in refusing to allow the defense to

delve into the private lives of the witnesses after it had

amply demonstrated the witness’ possible bias and

motive to testify on behalf of the Government. The

name of the person with whom he was living and the

name of the person with whom he had traveled from

Bangladesh clearly were collateral matters with little, if

any, probative value. It was well within the trial judge’s

discretion to terminate the inquiry. In addition, Inslam

had previously testified before the jury that he lived

with Mizon, so that the information which the defense

says it was unable to elicit was actually placed before

the jury.

The reliance of the appellants upon Smith vu Illinois,

390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956, (1968) is

misplaced. That case states that eliciting the name and

address of the witness is essential to cross-examination,

and is the very starting point of effective cross-

examination. Jd. at 131. This court notes that the

appellants, rather than complaining that they were

unable to elicit the name and address of the witness,

complain that they were not allowed to show with

whom the witness lived and traveled, a far different

situation from that in Smith v. Illinois, supra.

Nur Ahmed testified as to the terms and conditions

of his employment at ithe Nirvana Restaurant. Unlike

the two previous witnesses discussed above, Nur

Ahmed had become a citizen, but there was, in his alien

file and naturalization documents which had been

turned over to the defense, an unsubstantiated notation

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Appendix A

Opinion of United States Court of Appeals

of a hearsay allegation that Ahmed had entered into a

sham marriage. On cross-examination, defense counsel

attempted to impeach Ahmed’s credibility with this

hearsay allegation of marriage fraud, but the court

refused to allow this inquiry. Certainly the trial judge

did not abuse his discretion here; indeed, he went well

beyond the requirements of Rule 608(b) of the Federal

Rules of Evidence which provides:

Specific instances of the conduct of a witness, for

the purposes of attacking or supporting his

credibility, other than conviction of crime as

provided in Rule 609, may not be proved by

extrinsic evidence. They may, however, in the-

discretion of the court, if probative of truthfulness

or untruthfulness, be inquired into on cross-

examination of the witness (1) concerning his

character for truthfulness or untruthfulness ...

(emphasis added)

Rule 608(b) clearly permits the trial court to exclude

completely specific instances of a witness’ prior

conduct.

While it is possible that an inquiry into whether the

individual submitted fraudulent documents to the INS

may have, indeed, been probative of the propensity of

the witness for truthfulness, the trial judge, as stated

in Foster v. United States, supra, must set the limits of

cross-examination. Here, again, the jury was given

sufficient information with which to judge the credibil-

ity of the witness. The witness had contradicted himself

in his testimony concerning the time when he first

arrived in New York, and the defense was able to place

before the jury the fact that the witness failed to report

two years’ employment at the Nirvana Restaurant while

in this country as a student in his applications to the

INS.

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Appendix A

Opinion of United States Court of Appeals

The defense next asserts that its cross-examination

was improperly curtailed during the cross-examination

of Franklin S. Abrams, an attorney specializing in

immigration law who represented several of the aliens

who worked at the Nirvana Restaurant. Prior to his

being subpoenaed in this case, Abrams had been the

subject of an investigation conducted by the INS. The

government produced the Abrams files compiled by the

INS, and requested that the district judge review them

in camera, pursuant to 18 U.S.C. § 3500(c). Subse-

quently, the judge notified all counsel that nothing in

the files constituted material which should be turned

over to the defense, either under Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, or the

Jencks Act, 18 U.S.C. § 3500(c). The appellants now

contend that these files should be turned over to them.

The trial court’s ruling that the files contained

neither Brady nor § 3500 material cannot be overturned

on appeal absent a clear showing of abuse of discretion.

United States v. Pacelli, 491 F.2d 1108, 1118 (2d Cir.),

cert. denied, 419 U.S. 826 (1974). This court has

carefully examined the files, and concurs with the

ruling of the judge of the district court. The matters

contained within the files were completely unconnected

with the matter at hand. Furthermore, the defense was

allowed to place before the jury the fact that the

witness had been the subject of investigations by the

INS and U.S. Attorney’s Office concerning the

preparation of labor certifications unrelated to the

present case. With this information, the jury was in

possession of sufficient information to make a dis-

criminating appraisal of the witness’ possible motives

for testifying falsely in favor of the Government. No

error was committed by refusal of the court to allow

examination to extend into the details of collateral

matters not connected with the present case.

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Appendix A

Opinion of United States Court of Appeals

The final point of error raised by the defendants

regarding alleged errors in the control of testimony by

the trial court concerns the direct examination of

Karim Chand. Dr. Nayamand Naik, a physician who

treated Karim Chand, had testified that he had paid the

defendant Wadud one thousand dollars to have Wadud

sponsor his sister-in-law, Prema Kumari Mudden, as a

bilingual secretary so that she would be allowed to

remain in the country; he admitted that he had

supplied false information on the immigration forms

and that, in reality, she had come to the United States

to serve as a house servant in his own home. Dr. Naik

further testified that he had contacted one of his

patients, Karim Chand, to help with Ms. Muddan’s

immigration. The defendants argue that they were not

allowed to elicit from Chand testimony that at a

meeting between Chand, Wadud, and Dr. Naik, Chand

did not see Dr. Naik give Wadud the one thousand

dollars. In actuality, upon a review of the transcript,

the only objections sustained were those as to form.

Furthermore, the allegedly precluded evidence was in

fact in the record, and was argued to the jury by

counsel for Wadud. The jury was in possession of the

same information which defense alleges it was not

allowed to present; there was no error.

In summary, it becomes obvious that the court

committed no error regarding the curtailment of cross-

examination. In each instance, the jury had before it

sufficient facts to weigh and determine the credibility

of the witnesses. It would appear that the court

properly exercised its discretion; certainly, it was not

abused. See United States v. Blackwood, supra, and the

cases cited following it.

-

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Appendix A

Opinion of United States Court of Appeals

Sufficiency of the Evidence Against Mohinder Singh

The final point of error raised is that of the co-

defendant Mohinder Singh, who contends that his guilt

was not proven beyond a reasonable doubt, either as to

the substantive act of aiding and abetting his brother

Sarbjit Singh in the making of false statements in order

to obtain an immigrant visa, or as to the conspiracy

charged in Count One of the indictment.

In an examination of the evidence to determine

whether sufficient proof was adduced for the jury to

find beyond a reasonable doubt that a defendant is

guilty of an offense, the evidence must be viewed in the

light most favorable to the opposing party, crediting all

available inferences in favor of the opposing party.

Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457,

86 L.Ed. 680 (1942); United States v. Callabrass, 607

F.2d 559, 560 (2d Cir. 1979); United States ov.

Sprayragen, 577 F.2d 173 (2d Cir.), cert. denied, 439

U.S. 979 (1978); United States v. Ruffin, 575 F.2d 346,

353 (2d Cir. 1978); United States v. Lamont, 565 F.2d

212, 216 (2d Cir. 1977), cert. denied, 435 U.S. 914

(1978); United States v. Daley, 564 F.2d 645, 650 (2d

Cir. 1977), cert. denied, 435 U.S. 933 (1978). Further-

more, all issues of credibility must be considered

questions solely within the jury’s province. United

States v. Sprayragen, supra, 577 F.2d at 174, United

States v. Lamont, supra, 565 F.2d at 216, United

States v. Taylor, 464 F.2d 240, 245 (2d Cir. 1972).

When judged by these standards, the defendant’s claim

that the jury lacked sufficient evidence to determine his

guilt as to either count beyond a reasonable doubt is

clearly without merit.

As to Count Three, which charged Mohinder Singh

with aiding and abetting the making of false state-

ments in the visa application of his brother Sarbjit

Singh, the evidence established that Mohinder Singh

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Appendix A

Opinion of United States Court of Appeals

prepared the way for and assisted Sarbjit Singh in

obtaining a labor certification as a specialty chef at the

Restaurant. That labor certification as a specialty chef

was completed, filed, and approved by the Labor

Department while Sarbjit Singh was still in India.

Mohinder Singh went to the offices of Franklin

Abrams, the immigration lawyer, where he had the

appropriate forms prepared for his brother and Wadud,

when he knew that his brother was not a specialty chef.

When the labor certification was approved, it was

sent to India where Sarbjit Singh presented it to the

American Consulate, and, based upon the fraudulent

statements therein, Sarbjit Singh was issued an

immigrant visa.

When Sarbjit Singh arrived in the United States, he

did not work as a specialty chef, nor did he have any

job at the Nirvana Restaurant, as represented to the

Labor Department. Instead, Mohinder Singh ap-

proached Victor Khubani, and asked him to employ his

brother Sarbjit as a doorman. Salary checks, bank

records, and the testimony of several of Khubani’s

employees established that Sarbjit Singh was employed

at the Tandoor, Khubani’s restaurant, at hours which

made it impossible for him to have been employed at

the same time as a specialty chef at the Restaurant.

Accordingly, the evidence as to the substantive count

was certainly sufficient to prove that Mohinder Singh

had knowingly and wilfully aided and abetted the

making of false statements in Sarbjit Singh’s visa

application. Needless to say, this same evidence of the

substantive count is admissible and relevant as evidence

of an overt act in furtherance of the conspiracy.

Evidence was offered to prove that Mohinder Singh

had paid Wadud one thousand dollars for his own

fraudulent certification as a specialty chef. Further

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Appendix A

Opinion of United States Court of Appeals

evidence of Mohinder Singh’s participation in the

conspiracy was offered by the testimony of Bachan, the

Restaurant’s dishwasher, who was also sponsored by

Wadud as a specialty chef. When testifying before the

Grand Jury, Bachan stated that he had been introduced

to Wadud by Mohinder Singh, but he changed his

testimony at trial and was impeached by his prior

Grand Jury testimony.

The jury was entitled to find that Mohinder Singh

had played a central role in obtaining his own

fraudulent “specialty chef” labor certification through

the Restaurant, as well as that of his brother and

Bachan. Evidence was presented that Mohinder Singh

visited Franklin Abrams about once a month in

connection with labor certifications being funneled

through Wadud’s various corporations. Because of his

presence at the Restaurant, he could clearly see that the

people to whom the labor certifications were issued as

specialty chefs were actually employed as waiters,

doormen and dishwashers. Thus, the evidence is more

than sufficient for the jury to find that Mohinder Singh

knowingly and wilfully joined the conspiracy, was

aware of its objects, and promoted its goals. United

States v. Callabrass, supra, 607 F.2d at 560; United

States v. Sprayragen, supra, 577 F.2d at 173; United

States v. Ruffin, supra, 575 F.2d at 353.

Mohinder Singh next contends that he was convicted

by “prejudicial spillover” because of the vast amount of

evidence presented against Wadud, and that he was

convicted “not on the basis of the evidence relating to

(him), but by imputing to (him) guilt based on the

activities of the other ... conspirators.” United States

v. Toliver, 541 F.2d 958, 962-3 (2d Cir. 1976). In light

of the preceding discussion of the sufficiency of the

evidence against Mohinder Singh, this argument is

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Appendix A

Opinion of United States Court of Appeals

without merit as is his unsupported assertion raised for

the first time on appeal that the proof showed multiple

conspiracies and that a single-multiple conspiracy

charge was not given.

Accordingly, the judgment of the district court is

affirmed.

20a

Appendix B

Order of United States Court of Appeals

on Petition for Rehearing and Suggestion for

Rehearing En Banc

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the first day of August, one thousand nine hundred

and eighty.

Present: HONORABLE WILLIAM H. MULLIGAN

Circuit Judge

HONORABLE ADRIAN A. SPEARS

HONORABLE ROBERT W. SWEET

District Judges

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

We

MOHINDER SINGH, SHAMSHER WADUD, BENGAL

CABARET, INC., d/b/a NIRVANA RESTAURANT

and BANGLADESH HOUSE, INC., d/b/a NIRVANA

BOUTIQUE,

Defendants-Appellants.

79-1439, 79-1440, 79-1484, 79-1485

A petition for a rehearing having been filed herein

by counsel for the Appellants

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

/3/

A. DANIEL FUSARO

Clerk

2la

Appendix B

Order of United States Court of Appeals

on Petition for Rehearing and Suggestion for

Rehearing En Banc

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the first day of August, one thousand nine hundred

and eighty.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

MOHINDER SINGH, SHAMSHER WADUD, BENGAL

CABARET, INC., d/b/a NIRVANA RESTAURANT

and BANGLADESH HOUSE, INC., d/b/a NIRVANA

BOUTIQUE,

Defendants-Appellants.

79-1439, 79-1440, 79-1484, 79-1485

A petition for rehearing containing a suggestion

that the action be reheard in banc having been filed

herein by counsel for the appellants and no active judge

or judge who was a member of the panel having requested

that a vote be taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is

DENIED.

/s/

WILFRED FEINBERG

Chief Judge

22a

Appendix C

Constitutional and Statutory Provisions

Involved in the Case

CONSTITUTION OF THE UNITED STATES

FIFTH AMENDMENT

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself; nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

SIXTH AMENDMENT

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for

his defence.

23a

Appendix C

Constitutional and Statutory Provisions

Involved in the Case

STATUTORY PROVISIONS

28 U.S.C. § 1254(1)

Courts of appeals; certiorari; appeal; certified questions

Cases in the courts of appeals may be reviewed

by the Supreme Court by the following methods:

(1) By writ of certiorari granted upon a petition

of any party to any civil or criminal case, before or

after rendition of judgment or decree;