# Appendix — Ray v. Florida Bar > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1336%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2002 - **Citation:** 535 U.S. 930 ## Text No. IN THE SUPREME COURT OF THE UNITED STATES GURMEET SINGH DHINSA, Petitioner, V. UNITED STATES OF AMERICA, Respondent. On Petition for a Wnit of Certiorari to the United States Court of Appeals For The Second Circuit (2nd Circuit No. 04-0427) Circuit Court Judges: Cabranes, Straub and Wesley PETITION FOR WRIT OF CERTIORARI APPENDIX BARRY A. KOZYRA, ESQ. Counsel of Record and On the Brief RAJ GADHOK, ESQ. On the Brief KOZYRA & HARTZ, LLC Attorneys for Petitioner 140 Eagle Rock Avenue Roseland, New Jersey 07068 973-403-8344 973-403-9652 (Telefacsimile) Table of Contents Page Order of the U.S. Court of Appeals for the Second Circuit dated August 26, 2004 A-1 Memorandum and Order of Edward R. Korman, U.S.C.D.J dated December 31, 2003 A-3 Judgment dated January 6, 2004 A-8 Order and Judgment of the U.S. District Court Central District of California Filed September 23, 2002 A-9 Petition For Writ of Habeas Corpus Filed September 16, 2002 A-13 Exhibit A to Petition A-22 Certification of Gurmeet Singh Dhinsa dated September 7, 2002 Motion to Vacate Conviction and Sentence and Remand for New Trial Filed November 18, 2002 A-26 Certification of Barry A. Kozyra in support of Motion Filed November 18, 2002 A-29 Exhibit A to Kozyra Certification A-35 Final Judgment and Order Exhibit B to Kozyra Certification Petition for Writ of Habeas Corpus (Omitted Here Reproduced at Pages A-13 to A-21) 1 Exhibit C to Kozyra Certification U.S. District Court Central District of California (Omitted Here Reproduced at Pages A-9 to A-12) Exhibit D to Kozyra Certification Certification of Gurmeet Singh Dhinsa (Omitted Here Reproduced at Pages A-22 to A-25) Exhibit E to Kozyra Certification A-47 Transcript of Telephone Conversation of Margie Jackson dated January 15, 1989 Exhibit F to Kozyra Certification A-53 Memorandum of Defense Counsel dated August 7, 1997 Exhibit G to Kozyra Certification A-57 Affidavit of Walter Johnson dated December 21, 1998 Order to Show Cause dated January 7, 2003 A-60 Order of Honorable Edward R. Korman Filed March 7, 2003 A-62 Order of Honorable Edward R. Korman Filed April 14, 2003 A-64 Letter dated May 16, 2003 from Barry A. Kozyra To Honorable Edward R. Korman A-66 Order of Honorable Edward R. Korman filed July 8, 2003 A-68 ill Order of Honorable Edward R. Korman filed July 16, 2003 A-70 Letter dated August 5, 2003 from Barry A. Kozyra to Honorable Edward R. Korman A-72 United States Memorandum in opposition to Motion dated September 22, 2003 A-75 Exhibit 1 to Memorandum A-94 Decision, United States v. Johnson Exhibit 2 to Memorandum A-101 Letter dated August 6, 1998 From Joseph Mure, Jr. To U.S. Attorney’s Office Exhibit 3 to Memorandum A-103 F.B.I. Statement by Margie Jackson dated November 18, 1997 Memorandum and Order of Honorable Edward R. Korman dated September 30, 2003 A-109 Affidavit of Gerald L. Shargel dated October 7, 2003 A-110 Order of Honorable Edward R. Korman Dated October 28, 2003 : A-112 Letter dated December 8, 2003 From Barry A. Kozyra to Honorable Edward R. Korman A-113 Letter dated December 11, 2003 From Barry A. Kozyra to Honorable Edward R. Korman A-115 Memorandum and Order of Honorable Edward R. Korman dated December 19, 2003 A-122 1V Letter dated December 29, 2003 from Barry A. Kozyra to Honorable Edward R. Korman Juanita Cotto v. Elaine A. Lord (Cite As: 2001 WL21246 (S.D.N.Y.) Edgar Quinones vy. David L. Miller (Cite As: 2003 WL21276429 (S.D.N.Y.)) Andrew Bostic v. T. Williamson (Cite As: 2004 WL2271386 (S.D.N.Y.)) Jamila Diaz vy. Kuma J. Deboo (Cite As: 2004 WL 1244021 (D. Conn.)) - Delinda Vianne Rogers v. Kuma J. Deboo (Cite As: 2004 WL 1497541 (D. Conn.)) A-124 A-133 A-169 A-330 A-340 A-345 A-1l MANDATE E.D.N.Y.(bkny, 02-cv-6156 Korman, J. United States Court of Appeals FOR THE SECOND CIRCUIT At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, Foley Square, in theCity of New York, on the 26" day of August two thousand four, Present: Hon. José A. Cabranes, UNITED STATES Hon. Chester J. Straub, COURT OF APPEALS Hon. Richard C. Wesley, FILED AUG 26 2004 Circuit Judges Roseann B. MacKechnie, Clerk SECOND CIRCUIT Gurmeet Singh Dhinsa, Petitioner-Appellant, 04-0427-pr V. United States of America and Al Herrera, Warden, United States Penitentiary in Lompoc, California, | Respondent-Appellee. A-2 Appellant moves for a certificate of appealability. Upon due consideration, it is ORDERED that the motion is denied and the appeal is dismissed because appellant’s 28 U.S.C. § 2255 motion was time-barred. See 28 U.S.C. § 2255. FOR THE COURT: Roseanu B. MacKechnie, Clerk By:s/Richard Alcantara Richard Alcantara, Deputy Clerk AUG 26 2004 SAO-LFR A TRUE COPY ROSEANN B.MACKECHNIE, CLERK ISSUED AS MANDATE: NOV 3 2004 A-3 NOT FOR PUBLICATON UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK - X GURMEET SINGH DHINSA, MEMORANDUM Petitioner, & ORDER 02-CV-6156(ERK) -against- 97-CR-0672(ERK) UNITED STATES OF AMERICA, Respondent. aaa nnnennnennnasnnnnnnnnnnnnnnnnnnnn nnn a a X Korman, Ch. J. On October 28, 2003, I ordered petitioner to show cause why the petition should not be dismissed because his delay in filing the petition made it impossible to reconstruct the factual circumstances underlying his claim of ineffective assistance of counsel. Petitioner’s response to my inquiry on his delay in filing the petition relied in part on the fact that his petition was filed within the prescribed one-year period of limitations. The petition was filed three years after he was sentenced. The applicability of the doctrine of laches applies precisely to a case in which the action is filed within the statute of limitations. Otherwise the doctrine would serve no purpose. Nevertheless, petitioner's response caused me to examine the history of the case to determine whether the petition was timely filed. The Supreme Court denied the petitioner a writ of certiorari on October 1, 2001. Dhinsav. United States, 534 U.S. 897, 122 S.Ct. 219 (2001). The petitionwas not A-4 filedhere until November 20, 2002. This was more than one year after the petition was denied. While petitioner filed a petition on September 16,2002, in the Central District of California, which was styled as a petition pursuant to 28 U.S.C. § 2241, it was dismissed without prejudice for lack of jurisdiction because it should have been filed in the Eastern District of New York as a petition pursuant to 28 U.S.C. § 2255. | The period of time during which the petition was pending in California did not toll the statute of limitations. Rodriguez v. Bennett, 303 F.3d 435 (2d. Cir. 2003). Nevertheless, the doctrine of equitable tolling may be applied to the period in which the petition was pending and decided in the Central District of California. Even so, the petition is untimely. The petition was filed in California on September 16, 2002, it was dismissed on October 2, 2002, and petitioner received notice of the dismissal on October 7, 2002. See Letter of Barry A. Kozyra, dated December 29, 2003. Because he waited until he had only 14 days left to file his habeas petition in California, petitioner had 14 days from October 7, 2002 to refile his petition here. Instead, without any explanation for the delay, he waited until November 20, 2002 to do so. Under the circumstances, the petition must be dismissed because it was not timely filed. Petitioner’s implicit suggestion that it was somehow improper for me to raise the issue sua ponte is without merit. The Second Circuit has recognized that, while defenses which are required to be raised by Fed. R. Civ. P. 8(c) “are ‘ordinarily’ not to be recognized ‘when not raised in the answer, Davis v. Bryan, 810 F.2d 42, 48 (2d Cir. A-5 1987) (district court ordinarily should not raise statute of limitations sua sponte), no absolute bar to the consideration of such claims exists. See Carbonell v. Louisiana Dep ‘t of Health and Human Resources, 772 F.2d 185, 189 (5th Cir. 1985) (court may dismiss sua sponte on res judicata grounds provided it has before it ‘all relevant data and legal records’ or is in the same district in which the original action was filed).” Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993) (emphasis added). The United States magistrate had held in Salahuddin that the defendants waived the defense of res judicat, by failing to raise it in the pleadings. Nevertheless, citing the need to avoid unnecessary relitigation, he dismissed the claims on res judicata grounds. Id. 449. The Court of Appeals upheld the dismissal. Subsequently, in Pino v. Ryan, 49 F.3d 51 (2d Cir. 1995), then-Chief Judge Newman observed the reason for the rule against dismissing a complaint sua sponte past the point at which the defense is normally required to be raised, is that a sua sponte dismissal may be unfair to the plaintiff by rejecting the suit after considerable time and expense has been invested in it.” Id.at 53. (emphasis in original) Nevertheless, he concluded that, even where the issue is raised sua sponte after an answer has been filed, Salahuddin “explicitly upheld a court’s authority to do so even in that context.” Id.at 54. The statute of limitations defense in this case, while raised sua sponte after the answer was filed, did not involve a rejection of the “suit after considerable time and expenses has been invested in it by plaintiff.” Indeed, plaintiff expended no more time or effort in it, A-6 than if the issue had been raised sua sponte after he filed the petition and before the answer — which clearly would have been appropriate. Acosta v. Artuz, 221 F.3d 117 (2d Cir. 2000). Indeed, having been afforded the opportunity to explain the untimely filing, petitioner can cite no prejudice he suffered because of the timing of sua sponte action. On the other hand, the statute of limitations enacted by Congress reflects compelling considerations of policy. Delay in filing a petition often makes a retrial impossible, if such relief is given, and it may make it difficult to reconstruct circumstances necessary to- resolve the petition. As the Second Circuit has held: The AEDPA statute of limitation promotes judicial efficiency and conservation of judicial resources, safeguards the accuracy of state court judgments by requiring resolution of constitutional questions while, the record is fresh, and lends finality to state court judgments within a reasonable time. Like the other procedural bars to habeas review of state court judgments, the statute of limitation implicates the interests of both the federal and state courts, as well as the interests of society, and therefore “‘it is not inappropriate for the court, on its own motion, to invoke the doctrine.” Acosta v. Artuz, 221 F.3d at 123. Fed. R. Civ. P. 8(a) is applicable here only to the extent that it may be “appropriate,” Federal Rules Governing Section 2254 Cases, Rule 11; it does not warrantundermining these compelling considerations of policy. Nor would it, even it did apply in the same way as it applies to civil cases. het » Because I decide the issue petition on the ground that it was not timely filed, I need not address the merits of petitioner’s claim, whih seem to be wholly lacking, or the defense of laches. The petition is dismissed. .I deny a certificate of appealability. SO ORDERED: S/Edward R. Korman Edward R. Korman United States Chief District Judge Brooklyn, New York December 31, 2003 A-8 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK GURMEET SINGH DHINSA, JUDGMENT 02-CV- 6156 (ERK) Petitioner, -against- UNITED STATES OF AMERICA, Respondent. xX A Memorandum and Order of Honorable Edward R. Konnan, United States District Judge, having been filed on December 31, 2003, dismissing the petition for a writ of habeas corpus; and denying a Certificate of Appealability; it is ORDERED and ADJUDGED that petitioner take nothing of the respondent; that judgment is hereby entered dismissing the petition for a writ of habeas corpus; and that a Certificate of Appealability is denied. Dated: Brooklyn New York Jahuary 06, 2004 S/ROBERT C. HEINEMANN ROBERT C. HEINEMANN Clerk of Court , A-9 FILED CLERK. U S DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA BY DEPUTY ENTERED Priority X OCT 2 2002 Send X CLERK, U.S. DISTRICT COURT Entered X CENTRAL DISTRICT OF CALIFORNIA Closed EASTERN DIVISION JS-5/JS-6 ' BY DEPUTY JS-2/JS-3 Scan Only UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA GURNEET SINGH DHINSA Case No. Cv 02-7211-VAP Petitioner, (SGL) Vs. ORDER RE SUMMARY AL H.ERRERA, DISMISSAL OF ACTION Respondent. On September 16, 2002, petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. It appears from the face of the petition that petitioner currently is a federal prisoner incarcerated at the United States Penitentiary in Lompoc, California, pursuant to a sentence imposed following petitioner’s conviction on October 15, 1999, in the United States District Court for the Eastern District of New York by the Honorable Edward R. Korrnan, United States District Judge, for various racketeering - related offenses. Petitioner is challenging the legality of his conviction and sentence on the grounds that the A-10 ~ conviction was obtained without petitioner being properly instructed of his constitutional right to testify on his own behalf. ENTER ON ICMS OCT - 2 2002 OCT —2-2002 Under 28 U.S.C. § 2255 A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentences, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. As the Supreme Court observed in United States v.Addonizio, 442 U.S. 178, 185 (1979), the statute “was intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in the district of confinement, by providing an equally broad remedy in the more convenient jurisdiction of the sentencing court.” In this regard, Section 2255 specifically provides that “Tajn application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this sectiont [] shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless italso appears that the remedy by motion is inadequate or ineffective to test the SEE ae A-|ft legality of his detention.” See, e.g., Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (affirming the district court’s dismissal of a habeas petition collaterally attacking the validity of a conviction); Troati v. Henm, 843 F.2d 1160, 1162 (9th Cir. 1988). Here, the only reason proffered by petitioner as to why a Section 2255 motion would be. ineffetive is that petitioner is presently incarcerated in the Central District and “the conviction and sentence were not decided by the Califomia District Court.” Petition at 5. Although petitioner’s notes correctly that his conviction and sentence was imposed by the District Court for the Eastern District of New York and not the Central District of California, there is nothing about petitioner’s presence ina federal prison in California which prevents him from bringing a Section 2255 motion in the sentencing court. Accordingly, the Court finds that petitioner has failed to make the requisite showing that Section 2255 is an inadequate or ineffective remedy. IT THEREFORE IS ORDERED that this action be summarily dismissed for lack of jurisdiction. Any other relief being sought by petitioner herein (e.g., the application of a non-resident attorney to appear in a specific case) 1s DENIED as moot. DATED: September 23, 2002 S/Virginia A. Phillips VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE Presented by: s/Stephen G. Larson STEPHEN G. LARSON UNITED STATES MAGISTRATE JUDGE A-12 FILED CLERK, U.S. DISTRICT COURT SEP 23 2002 CENTRAL DISTRICT OF CALIFORNIA BY DEPUTY Priority X Send X Enter X JS-5/JS-6 X JS-2JS-3 Scan Only UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA GURMEET SINGH DHINSA, Case No. CV 02—7211- VAP (SGL) Petitioner, JUDGMENT VS. AL HERRERA Respondent. Pursuant to the Order Re Summary Dismissal of Action, IT IS ADJUDGED that this action is dismissed forlack of jurisdiction DATED:September 23, 2002 ENTER ON ICMS OCT —2 2002 S/Virginia A. Phillips VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE A-13 FILED CLERK U.S. DISTRICT COURT SEP 16 2002 CENTRAL DISTRICT OF CALIFORNIA BY DEPUTY NAME GURMEET SINGH DHINSA PRISON IDENTIEICATION NO. 53546-053 PLACE OF COFIEMENT U.S.P. Lompoc 3901 Klein Blvd. . Lompoc, California 43936 ATTORINEY Barry A. Kozyra, Esa. Kozyra & Hartz. LLC 140 Eagle Rock Avenue _ Roseland. New Jersey 07068 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NUMBER GURMEET SINGH DHINSA CV 02-7211 VAP(SGL) Petitioner, CR 97-CR-672(ERK) (EASTERN DISTRICT v. NEW YORK) AL HERRERA PETITION FOR WRIT OF HABEAS-CORPUS BY A Respondent. PERSON IN FEDERAL CUSTODY (28 U.S.C. §2241) INSTRUCTIONS - READ CAREFULLY This petition shall be legibly handwritten or typewritten, signed by the petitioner, under penalty of perjury. You must set forth CONCISELY the answer to each question in the proper space on the form. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. You must not attach separate pages to this petition except that ONE separate additional page is permitted in answering Question No. 9. Upon receipt of a fee of $5.00 your petition will be filed if it is in proper order. if you are seeking leave to proceed in forma pauperis (without paying the $5.00 filing fee and other court costs), then you must also execute the declaration on the last page, setting forth information which establishes your inabilityto pay the fees and costs of the procbedings or to give security therefor. If you wish to proceed in forma pauperis, you must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to your credit in any account in the institution. If your prison account exceeds $25.00, you must paythe filing fee as required by the rule of the district court. When the petition is completed, the original and 3 copies, must be mailed to the Clerk of the United States District Court for the Central District of California, United -States Courthouse, 312 North Spring Street, Los Angeles, California 90012, ATTENTION: Intake/Docket Section. A-15 m Only one sentence, conviction or parole matter may be challenged in a single petition. If you challenge more than one, you must do so by separate petitions. Petitions which do not conform to these instructions will be returned with a notation as to the deficiency. PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN FEDERAL CUSTODY (28 U.S.C. §2241) A-16 PLEASE COMPLETE THE FOLLOWING: (check appropriate number) This petition concerns: 1. X aconviction 2. X asentence 3. jail or prison conditions 4. _ prison discipline 5. a parole problem 6. other PETITION 1. Place of detention: U.S.P. Lompoc, 3901 Klein Boulevard, Lompoc, California. 2. Name and location of court which imposed sentence: United States District Court, Eastern District Of New York. 3. The indictment number or numbers (if known) vpon which, and the offense or offenses for which, sentence was imposed: Indictment number 97CR-672: a. 18 U.S.C. 1962(c) and 1963 Racketeering; b. 18 U.S.C. 1962(d) and 1963 Racketeering Conspiracy; c. 18 U.S.C. 1959 (a) (5), Conspiracy to Murder (3 counts); d. 18 U.S.C. 1959 (a)(1), Murder (2 counts); e. 18 U.S.C. 1512(a)(1)(C) and 1512 (A)(2)(a), Obstruction of Justice (2 counts); A-17 f. 18 U.S.C. 924(c), Using and Carrying a Firearm in Relation to Crimes of Violence; 18 U.S.C. 1959 (a) (4), Threat to Murder*; gq h. 18 U.S.C. 922(g)(1) and 924(a)(2), Felon in Possession of Firearms; i. 18 U.S.C. 371, Conspiracy to Commit Mail Fraud; j. 18 U.S.C. 1341, Mail Fraud (6 counts); k. 18 US.C. 1201, Conspiracy to Kidnap*; lL 18 U.S.C. 1201, Kidnaping* *On appcal to the Court of Appeals for the Second Circuit, convictions for Threat to Murder, Conspiracy to Kidnap, and Kidnaping were remanded to the district court for a new trial. The government did not reprosecute on said issues. 4. The date upon which sentence was imposed and the terms of the sentence: a. Petitioner was sentenced on October 15, 1999 by the Honorable Edward R. Korman, U.S.D.J., to life sentences on eight counts (including those offenses which were reversed and remanded on appeal to the Second Circuit) and to lesser terms on the remaiuing counts. 5. Check whether a finding of guilty was made: a. After a plea of guilty b. X After a plea of not guilty c. After a plea of nolo contendere A-18 6. If you were found guilty after a plea of not guilty, check whether that finding was made by: a. X Ajury b. Ajudge without ajury 7. Did you appeal from the judgment of conviction of the imposition of sentence? X Yes _No 8. If you did appeal, give the following information for each appeal: CAUTION: Jf you- are attacking a sentence imposed under a federal judgment, you must first file a direct appeal or motion under 28 U.S C.§ 2255 in the federal court which entered the judgment. a. (1) Name of court: U.S. Court of Appeals for the Second Circuit (2) Result: Affirmed in part, Remanded in part (3) Date of result: March 21, 2001 (4) Citation or number of opinion: Docket No. 99-1682 (5) Grounds raised (list each): (a) The district court erred by admitting the hearsay statements of two murder victims pursuant to United States v. Mastrangelo, 693 F.2d 269 (2d Cir. 1982), and its progeny, and Fed. R. Evid. 804(b) (6); (b) There was insufficient evidence to establish that Petitioner acted “for the purpose of maintaining or increasing [his] position” as provided in 18 U.S.C. § 1959(a); BG Gk a, ee A-19 (c) The district court erred by admitting the testimony of the girlfriend of one of the murder victims; (d) Following Petitioner’s motion for judgment of acquittal pursuant to Fed. R. Crim. P. 29 and at the sua sponte suggestion of the district court, the indictment was improperly amended by the Grand Jury to include charges of interstate kidnaping in place of kidnaping in aid of racketeering; (e) There was insufficient evidence to support the jury’s convictions for interstate kidnaping; (f) A new trial was warranted on the racketeering counts because Petitioner’s convictions on a number of the predicate crimes were invalid; (g) There was insufficient evidence to support a conviction for coercion in the first degree, in violation of N.Y. Penal Law § 135.65; (h) There was insufficient evidence to support a conviction on the felon-in-possession of a firearm charge; and (i) The district court erred by admitting the evidence obtained from the search of Petitioner’s car following his July 7, 1997 arrest. 9. State CONCISELY every ground on which you claim that you are being held unlawfully. Summarize briefly the facts supporting each ground. If necessary, attach a SINGLE page only behind this page. CAUTION: Jfyou fail to set forth all grounds in this petition, you may be barred from presenting additional grounds at a later date. You must A-20 state facts, not conclusions in support of your grounds. A rule of thunib to follow is - who did exactly what to violate your rights at what time and place. a. Ground one: Conviction obtained without claimant being properly instructed of constitutional right to testify. b. Supporting Facts: Claimant is a United States resident alien with no true familiarity with the American legal, system. He was tried and convicted on a nunber of counts, including racketeering and murder. Nearly all evidence produced at trial was circumstantial in nature. Claimant was not properly instructed by his attorney or the court of his constitutional right to testify in his own behalf. (See Certification of Gurmeet Singh Dhinsa, attached hereto as Exhibit A). 10. Have you file previous petitions for habeas corpus, motions under Section 2255 of Title 28, United States Code, or any other applications, petitions or motion with respect to this conviction? ___Yes X__ No 11. If your answer to Question No. 10 was yes, give the following information: Not applicable. 12. If you did not fi.e a motion under Section 2255 of Title 28, United States Code, or if you filed such a motion and it was denied, state why your remedy by way of such motion is inadequate or ineffective to test the legality of your detention: A-21 3 Conviction and sentence imposed by the United States District Court, Eastern District of New York. However, petitioner was immediately transferred for detention at the U.S.P. Lompoc, which is located within the Central District of California, where he remains to date. As such, motion under 28 U.S.C. § 2255 would be an ineffective means of remedy as the conviction and sentence were not decided by the California District Court. 13. Are you presently represented by counsel? X Yes No If so, provide name, address and telephone number: Barry A. Kozyra, Esq. Kozyra & Hartz, LLC 140 Eagle Rock Avenue Roseland, New Jersey 07068 Case Name and Court: Present matter only. 14. If you are seeking leave to proceed in forma pauperis, have you completed the declaration setting forth the required information? Yes X No WHEREFORE, petitioner prays that the court grant relief to which he may be entitled in this proceeding, s/Barry A. Kozyra 9/11/02 I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on Date Signature of Petitioner A-22 Gurmeet Singh Dhinsa does hereby certify as follows: 1.)I was born in Punjab, Moron, India on May 4, 1962. I graduated from high school in India. I was not taught English nor did I have any knowledge of the American legal system while in India. 2.)I came to the United States when I was 20 years old I learned English while working starting as a restaurant delivery boy and later as a service station attendant. I had no further education in the United States. 3.)In July 1997 [ was arrested and held at the Metropolitan Detention Center for approximately six (6) months. I was transferred later to the Metropolitan Corrections Center where I remained until the end of my federal trial in March 1999, 4.) From the start of my trial, I was subjected to unsatisfactory procedures and conditions at the Metropolitan Corrections Center. I would be deprived of sleep daily. Many nights I had four hours or less of sleep. I would be awakened at three or four a.m. on trial days and returned to my cell after 9:00 p.m. I would miss meals which conflicted with the travel schedule. I had flu like symptoms and a cough and could not get medication needed by me because I was on trial. 5.) Prior to this case I was involved in only one trial which went to a jury. (On another occasion a plea was struck during trial.) In the case which went to the jury, there was no reason for me to testify because testify because I did not contest the key fact, my possession of a gun. 6.) Following the eight week trial, I was convicted on 20 of 29 counts in the indictment. Two counts were reversed by the Second Circuit on appeal. 7.)I wanted to testify at the trial. I would not have disputed the charges involving mail fraud and weapons possession. A Pek VE Pe eee Le es — nr A-23 ~ _ 8.) However, I would have disputed the testimony of the Government’s witnesses as to conspiracy, racketeering, murder and kidnapping. 9.) At various times during trial, I stressed my desire to testify on my own behalf to my defense counsel. On each occasion, I was told, “hold on” “‘let’s see how it goes” or words to similar effect. 10.) I accepted this direction because I was told by the court that I had to speak through defense counsel. I thr ht I had to listen to what defense counsel told me x must do. 11.) For example, during the trial a question arose as to whether a witness could identify my voice. I was told by my defense counsel that I was not to participate in a voice identification procedure during the trial. I asked to do so and my defense attorney then said he would allow it. I thought that he had to decide such matters, not me. As directed I communicated through defense counsel. 12.) Just before the trial ended, I told my defense counsel that I wanted to testify and to have other evidence presented at trial. I was told, “we'll see tomorrow.” 13.) At the time, I did not realize the decision tu testify or not was my own to make. 14.) The next morning, I was told “we don’t want you to testify.” No other reason was given to me by Gerry Shargel who gave me that decision. As I believed that it was his decision, not mine, I felt I had no choice but to accept it. The trial judge never asked me whether I wanted to testify or told me it was my right to decide, not my attorney’s. I was not asked if I wanted to give up that right. I did not try to ask the trial court any question since I was told to direct communications to my lawyer. 15.) Mr. Shargel also refused to call Walter Johnson, a boyhood friend of one of the Government’s key witnesses, Marvin Dodson. My attorney had secured A-24 an affidavit from Mr. Johnson which stated that Mr. Dodson had lied about my involvement in the crimes he admitted committing (murders of Satinderjit Singh and Manmohan Singh). I could have established that I was never present at the scene of Satinderjit Singh’s killing through one of the witnesses to the killing and others who knew my whereabouts elsewhere at that time. My attorney ignored that evidence and chose not to present those witnesses whom I wanted to testify. 16.) Had I been allowed to testify, I would have stated that I did not know Satinderjit Singh, he did not work for me and I never spoke with him on the telephone or in person. 17.) Similarly, I did not know Manmohan Singh, he did not work for me and I never spoke with him on the telephone or in person. While others may have had a dispute with him, I did not know him or care. 18.) As to Balwant Singh, I did not know him, he did not work for or with me and I never spoke with him on the telephone or in person. I had wanted Surinder Parmar to be called as a witness because he would have corroborated that I never asked him to deliver any message to Balwant Singh and that he never did so. I do not know why my attorney would not call him as a witness. I certainly did drive a car in his neighborhood because I had business nearby but it had nothing to do with him or anyone involved in the case. 19.) As to Sarvjeet Singh, I did not know him, he did not work for me or with me and I never spoke with him on the telephone or in person. The murder he witnessed was committed by my brother, when I was in prison on the weapons charge in 1991. 20.) Mr. Shargel was certain that he had damaged the credibility of Marvin Dodson and JI would be acquitted on the Satinderjit Singh and Manmohn A-25 Singh offenses, including murder. He told me so. He said the same thing as to the Sarvjeet Singh charges. His only worry was on the Muchtir Ghuman kidnapping offenses (which were reversed on appeal). 21.) Had I been allowed the opportunity to testify and to have corroborating witnesses, I would have been able to present my defense that the case against me was the product of Government witnesses who had lied and exaggerated their testimony. If I knew that I could testify and that it was my decision, not that of my attorney, I would have taken the stand and told the truth. I would have been acquitted based on all of the evidence, not the partial evidence the jury heard. I hereby testify and certify that the foregoing statements made by me are true. I am aware that if any statement is willfully false, that I am subject to punishment by law. September 7, 2002 s/Gurmeet Singh Dhinsa Gurmeet Singh Dhinsa Swore to and subscribed before me on September 7, 2002 s/Barry A. Kozyra BARRY A. KOZYRA A-26 - KOZYRA & HARTZ,LLC 140 Eagle Rock Avenue Roseland, New Jersey 07068 973-403-8344 973-403-9652 (Telefacsimile) / Attorneys fot Petitioner, Gurmeet Singh Dhinsa UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK GURMEET SINGH DHINSA Petitioner, CASE NO. 97-CR-672 (ERK) V. MOTION TO VACATE AL HERRERA, CONVICTION AND Respondent. SENTENCE REMAND FOR NEW TRIAL TO: Clerk of the United States District Court Eas.ern District of New York 225 Cadman Plaza East . Brooklyn, New York, NY 11201 PLEASE TAKE NOTICE that the undersigned hereby moves before the above named Court for an Order entitling Petitioner to an evidentiary hearing before this Court in support of this motion to vacate the conviction and sentence imposed by the Final Judgment and Order of the A-27 United States District Court for the Eastern District of New York, entered November 5, 1999, which Order sentenced Petitioner to consecutive life sentences to the United States Bureau of Prisons, and remanding for a new trial. This application is made pursuant to 28 U.S.C. § 2255. In support of this motion, Petitioner shall rely upon the attached Certification of Barry A. Kozyra, Esq., dated November 18, 2002, and the Certification of Gurmeet Singh Dhinsa, dated September 7, 2002. s/Barry A. Kozyra, Esq. BARRY A. KOZYRA, ESQ. Attorney for Petitioner, Gurmeet Singh Dhinsa DATED: November 18, 2002 CERTIFICATION OF SERVICE I certify that three copies of the within motion and moving papers were mailed this day to the Clerk of the IJnited States District Court of the Eastern District of New York. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoin statements made by me are willfully false, I am subject to punishment A-28 DATED: November 18, 2002 s/Barry A. Kozyra. Esa. BARRY A. KOZYRA, ESQ. Attorney for Petitioner, Gurmeet Singh Dhinsa : A-29 KOZYRA & HARTZ, LLC 140 Eagle Rock Avenue Roseland, New Jersey 07068 973-403-8344 973-403-9652 (Telefacsimile) Attorneys for Petitioner, Gurmeet Singh Dhinsa UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK GURMEET SINGH DHINSA Petitioner, CASE NO. 97-CR-672 (ERK) CERTIFICATION OF AL HERRERA BARRY A. KOZYRA, ESQ. V. Respondent. Barry A. Kozyra, Esq., hereby certifies as follows: 1. lam a member with the law firm of Kozyra & Hartz, LLC, and have been engaged to file an application under 28 U.S.C. § 2255 on behalf of Petitioner, Gurmeet Singh Dhinsa, in the above entitled action. 2. Petitioner is currently incarcerated at the United States Penitentiary in Lompoc, California, purauant to sentencing following conviction in the United States District Court for the Eastern Ditrict of New York. 3. This certification is made in support of Petitioner's application to vacate the conviction and. sentence imposed A-30 per the Final Judgment and Qrder entered by the Honorable Edward R. Korman, U.S.D.C., on November 5, 1999. (See Final Judgment and Order, attached hereto as Exhibit A). 4. Petitioner was tried on a 29-count indictment and convicted on twenty counts following an eight week jury trial, including racketeering, kidnapping, and murder. On appeal to the Court of Appeals for the Second Circuit, counts of Threat to Murder, Conspiracy to Kidnap, and Kidnapping were reversed and remaided to the district court for a new trial. The Government has chosen not to re-prosecute on the reversed charges. 5. On September 16, 2002, this office filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on behalf of Petitioner in the United States District Court for the Central District of California. As previously noted, Petitioner is presently incarcerated in Lompoc, California, which is located in the Central District of California. (See Petition for Writ of H»beas Corpus by a Person in Federal Custody, attached hereto as Exhibit B). 6. On September 23, 2002, the Honorable Virginia A. Phillips, U.S.D.J., dismissed Petitioner’s application for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 without prejudice for lack of jurisdiction, and citing that Petitioner should move for § 2255 relief in the sentencing court. (See Order Re Summary Dismisal of Action, attached hereto as Exhibit C). Since that date, we have invetigated further Petitioner’s claims and have found additional evidence to support his application. 7. Petitioner is a United States resident alien with no true familiarity of the American legal system. (See Certification of Gurmeet Singh Dhinsa, attached hereto as Exhibit D). A-31 8 A detailed review of the trial transcripts indicates that subatantiafly all evidence produced at trial was circumstantial in nature. (See Transcript of Criminal Cause for Jury Trial Before the Honorable Edward R. Korman, U.S.D.J.). 9. Throughout trial, Petitioner repeatedly stressed to his defense counsel the desire to testify in his own behalf in order to challenge the testimony of the Government's withesses as to his alleged acts of conspiracy, racketeering, murder, and kidnaping, and also sought to intioduce further evidence of his innocence (See Exhibit D). 10. During the trial, the Government elicited witness testimony which Petitioner could have contradicted if he had been given the opportunity to testify. Several of these witnesses have extensive criminal records and had admitted that they had repeatedly committed perjury in the past. (See Transcript of Criminal Cause for Jury Trial Before the Honorable Edward R. Korman, U.S.D.J.). 11. Defense counsel proceeded through trial and closed the case without calling Petitioner as a witness in his own behalf, nor did he call other witnesses who Petitioner wished to testify on his behalf. (See Exhibit D). — 12. Due to the Court’s instuction to direct all communications through defense counsel, Petitioner did not believe is was his decision and constitutional right to tetify in his own behalf at trial. (See Exhibit D). He further believed that he could not address his desire to the Court unless his defense counsel agreed. 13. Petitioner was never instructed by his attorney or by the Court of his constitutional right to testify in his own behalf. (See Exhibit D). A-32 14. In addition, defense counsel’s failure to call several key witnesses to testify on Petitioner’s behalf, despite Petitioner’s instructions to do so, deprived Petitiotier of his constitutional right to produce witnesses in his favor. 15. Petitioner is currently serving life sentences for conviction on five counts of his indictment and lesser terms on the remaining counts. The life sentences are based on convictions on three counts of conspiracy to commit murder involving Satinderjit Singh, Manmohan Singh, and Sarvjeet Singh, and two counts of murder involving Satinderjit Singh and Manmohan Singh. 16. If he had been given the opportunity, Petitioner would have produced evidence that he was neither involved in the conspiracy to murder Satinderjit Singh, Manmohan Singh, and Sarvjeet Singh nor the murders of Satinderjit Singh and Manmohan Singh. 17. Petitioner would have produced evidence that he did not know any of the victims nor did not have any disputes with any of the victims, in contrast to testimony provided against him at trial. Further, Petitioner would have produced evidence that he was not present at the scene of any of the aforementioned criminal acts, in contrast to the testimony against him at trial. 18. In addition, Petitioner would have called witnesses to testify in his behalf that Petitioner was not involved in nor present at the scene of any of the aforethentioned criminal acts. Specifically, Petitioner would have called Margie Jackson, Surinder Parmar, and Walter Johnon to testify as to Petitioner’s innocence. — 19. Margie Jackson was present at the scene of the murder of Satinderjit Singh. She would have offered testimony that Petitioner was not present at the scene, in contrast to BPRS aS Ss OA a eS a PR A-33 tetimony given by Government witnesses at trial. Jackson had been identified by the Government as a trial witness, but was not produced as a witness by the Government or the defense. (See Transcript of Telephone Conversation of Margie Jackson, dated January 15, 1999, attached hereto as Exhibit E). 20. At trial, it was alleged that Surinder Parmar had been involved in the murder conspiracies of Satinderjit Singh and Sarvjeet Singh. Between July 2 and July 5, 1997, Parmar was abducted and harassed by police officers from the 115" Precinct in Queens, New York, regarding his involvement with Petitioner. Parmar was jailed, threatened, denied food and water, and denied counsel despite his repeated requests, for his failure to cooperate with the Government and to testify against Petititioner. Parmar later indicated that he would testify on behalf of Petitioner, but was not produced as a witness by the Government or the defense. (See Memorandum of Defense Counsel, dated August 7, 1997, attached hereto as Exhibit F). 21. Walter Johnson was incarcerated together with Marvin Dodson in the same unit at the Metropolitan Detention Center (“MDC”) in or about late- 1997. Johnson and Dodson had also been childhood friends. Dodson testifled on behalf of the Government at trial as the main witness against Petitioner. Dodson in fact has admitted to committing the murders of Satinderjit Singh and Manmohan Singh. His testimony at trial implicated Petitioner in the above referenced criminal acts. (See Transcript of Criminal Cause for Jury Trial Before the Honorable Edward R. Korman, U.S.D.J.). 22. On or about December 21, 1998, Walter Johnson provided an affidavit detailing his conversations with Marvin Dodsoh in which Dodson admitted to the murder of Manmohan Singh. Dodson did not implicate Petitioner at that time for any involvement in said criminal act. Further, A-34 Dodson indicated that he wished to kill Petitioner, also incarcerated in the MDC, for “ratting” on him. Dodson also bragged to Johnson that he would be released from prison for cooperating with the Government. Johnson was willing to testify at trial inPetititioner’s behalf, but was not produced as a witness by the Govemtneiit or the defense. (See Affidavit of Walter Johnson, attached hereto as Ethibit G). 23. Petitioner hereby challenges the legality of his conviction and sentence on the grounds that the conviction was obtained without his being properly instructed of his constitutional right to testify in his own behalf and his constitutional right to produce witnesses in his favor. 24. This motion for relief is made pursuant to 28 U.S.C. § 2255. 25. Petitioner hereby requests an evidentiary hearing before the Court in support of this motion to vacate the conviction and sentence imposed by the Final Judgment and Order entered November 5, 1999. 26. In order to properly represent the interests of my client, I would request an appropriate transfer of Petitioner from his current site of incarceration in Lompoc, California, to another facility within the United State Bureau of Prisons within the jurisdiction of the Eastern District of New York no less than sixty days prior to an evidentiary hearing on this matter. I HEREBY CERTIFY that the foregoing statements made by me are true. J am aware that if any of the statements I have made are willfully false, I am subject to punishment. s/Barry A. Kozyra BARRY A. KOZYRA DATED: November 18, 2002 rer A-35 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK UNITED STATES JUDGMENT INCLUDING ] OF AMERICA SENTENCE FOR OFFENSES | VS. COMMITTED ON OR AFTER | NOVEMBER 1, 1987 CASE GURMEET SINGH NO.: CR-97-0672(S-7)--O1 DHINSA | Benton Canrnbell & Catherine Bernadette Infantas | Freisen. Esqs. ESR | Assistant United States Attorney 1585 Broadway, 19th Floor - New York. N.Y. 10036 Defendant’s Attorney Gerald Shargel & David Ruhnke, Esqs. | | The defendant: X was found quilty on counts 1 —5, 7-11, 14-24 Superseding Indictment after a plea of not guilty. Accordingly, the defendant is ADJUDGED guilty of such Count(s), which involve the following offenses: | TITLE AND NATURE AND COUNT | SECTION OFFENSE NUMBERS | T:18, USC, §1962(c) Racketeering ONE(1) | & 1963 | T:18, USC, §1962(d) Racketering TWO(2) & 1963 Conspiracy A-36 T:18, USC, § 1959(a)5) Conspiracy to Murder THREE(3) Satinderjit Singh T:18, USC, §1959(a)(1) Murder of Satinderyit FOUR(4) Singh T:18, USC, §1512(a) Obstruction of Justice FIVE(5) (2)(C) & 1512(a)(2)(A) in the Murder of Satinderjit Singh T:18, USC, §1959(a)(5) ‘Conspiracy to Murder SEVEN(7) Manmohan Singh T:18, USC, §1959(a)(1) Murderof Manmohan EIGHT(8) Singh T:1S, USC, §1512(a)(2) Obstruction of Justice = NINE(9) (C) & 1512(a)(2)(A) in the Murder of Manmohan Singh T:18, USC, §924(c) Using and carrying TEN(10) a firearm in relation to crimes of violence T:18, USC, §1959(a)(4) Treat to murder ELEVEN(11) Balwant Singh T:18, USC, §1959(a)(S5) Conspiracyto FOURTEEN(14) Murder Savett Singh T:18, USC, §922(g)(1) Felon in possession FIFTEEN(15) & 1515 (A)(2)(a) of firearms T:18, USC, §371 Conspiracy to SIXTEEN(16) , commit mail Fraud T:18, USC, §1341 Mail Fraud SEVENTEEN(17) THRU TWENTY -TWO(22) A-37 : T:18, USC, §1201 Conspiracy to TWENTY- kidnap Muchtir THREE(23) Ghuman T:18, USC, §1201 Kidnapping of TWENTY- Muchtir Ghuman FOUR(24) The defendant is sentenced as provided in pages 2 through 5 of the Judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1988. -The defendant is advised of his/her right to appeal within ten (10) days. -The defendant has been found not guilty on counts 6, 12, 13, and 25 through 29 and is discharged as to such counts. -Open counts are dismissed on the motion of the United States. -The mandatory special assessment.is included in the portion of Judgment that imposes a fine. -It is ordered that the defendant shall pay to the United States aspecial assessment of $ 2,000.00 which shall be due immediately. App.1278 Page 2 of 7 DEFENDANT: GURMEET SINGH JUDGMENT DHINSA CASE NUMBER: CR-97-0672(S-7)-01 It is further ORDERED that the defendant shall notify the United States Attorney for this District within 30 days of any change of residence or mailin« address until all fines, restitution, costs and special assessments imposed by this Judgment are fully paid. 53546-053 Defendant’s USM # October 15. 1999. Date of Imposition of sentence 05-04-62 Date of Birth 110 68-2560 s/Edward R. Korman. Defendant’s Soc. EDWARD R. KORMAN, U.S.D.J. Sec. Number In Custody. Defendant’s mailing address Date of signature A TRUE COPY ATTEST 2572 National Drive DEPUTY CLERK Brooklyn. New York 11234 Defendant’s Residence Address: App -1279 : Page 3 of 7 DEFENDANT: GURMEET SINGH JUDGMENT DHINSA CASE NUMBER: CR-97-0672(S-7)-01 IMPRISONMENT The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of Life Imprisonment on counts 1, 2, 4, 5, 8,9, 23 & 24. Defendant shall serve a term of imprisonment for a period of One Hundr ed Twenty (120) months on counts 3, 7, 14 & 15 which shall run concurr ently with sentence imposed on counts 1, 2, 4, 5, 8, 9, 23, 24 and shall_run consecutively with each other. Defendant shall serve a term of imprisonment for a period Sixty(60) months on counts 1] and A-39 16 through 22 wi *ch shall run concurrently with sentence imposed on counts | through 5, 8, 9, 14, 15,23, 24 and shall run consecutively with each other. Defendant shall serve a term of imprisonment for a period of Sixty(60) months on count 10, which shall run consecutively with sentence imposed on all other counts. The Court recommends that the defendant be designated The defendant asks to be housed in a facility The court notes this so that the Bureau of Prisons can accommodate his/her request if space permits. x The defendant is remanded to the custody of the United States Marshal The defendant shall surrender to the United States Marshal forthis District. The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons. -12:00 noon: As notified by the United States Marshal. As notified by the Probation Office. RETURN I have executed this Judgment as follows: Defendant delivered on to at with a certified copy of this Judgment. United States Marshal By: App1280 Page4of 7 DEFENDANT: GURMEET SINGH JUDGMENT DHINSA CASE NUMBER: CR-97-0672(S-7)-0 1 SUPERVISED RELEASE Upon release from Imprisonment, the defendant shall be on supervised release for a term of: Three(3) years on counts 3, 7, 14 & 15 which shall run concurrently with each other. Defendant shall serve a term of Supervised Release for a period of Three(3) years on counts 11 and 16 through 22 which shall run concurrently with each other and with the time of Supervised Release on counts 3, 7, 14 & 15. Defendant shall serve a term of Supervised Release for a period of Three(3) years on count 10, which shall run concurrently with the term of Supervisied Release imposed on all other counts. The defendant shall report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. A-41 While on supervised release, the defendant shall not commit another Federal, State, or Local crime and shall comply with the standard condition that have been adopted by this Court (Seaforth on the following page). The defendant is prohibited from possessing a firearm. The defendant shall not illegally possess a controlled substance. If this Judgment imposes a restitution obligation, it shall be a condition of supervised release that the defendant pay any such restitution that remains unpaid at the commencement of the term of supervised release. The defendant shall comply with the following additional conditions: The defendant shall pay any tines that remain unpaid at the commencement of the term of supervised release. ~ SPECIAL CONDITIONS: App.1281 Page5 of 7 DEFENDANT: GURMEET SINGH JUDGMENT DHINSA CASE NUMBER: CR-97-0672(S-7)-01 STANDARD CONDITIONS OF SUPERVISION While the defendant is on probation or supervised release pursuant to this Judgment: A-42 1) The defendant shall not leave the judicial 2) 3) 4) 5) 6) 7) 8) district without the permission of the court or probation officer; The defendant shall report to the probation officer as directed by the court or probatibn officer and shall submit a truthful and complete written report within the first five days of each month; The defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; The defendant shall support his or her dependents and meet other family responsibilities; The defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training or other acceptable reasons: The defendant shall notify the probaon officer within 10 days prior to any change in residence or employment; The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substances, except as prescribed by a Physician; The defendant shall not frequent places where contr oiled substances are illegally sold, used, distributed, or administered; PO RE CARTES tae TOD start Ys, A EN yA es - A-43 9) The defendant shall not associate with any persons engaged in criminal activity; and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer; 10) The defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer; 11) The defendatit shall notify theprobation officer within 72 hours of being arrested or questioned by a law enforcement officer; 12) The defendant shall not enter into any agreement to act as an informer or special agent of a law enforcement agency without the permission of the court; 13) As directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such notification requirement. App1282 Page 6 of 7 DEFENDANT: GURMEET SINGH JUDGMENT DHINSA CASE NUMBER: CR-97-0672(S-7)-01 CRIMINAL MONETARY PENALTIES X DEFENDANT SHALL PAY A SPECIAL ASSESSMENT IN THE AMOUNT OF ONE HUNDRED DOLLARS(S100.00) ON EACH OF COUNTS 1 THROUGH 5, 7 THROUGH 11, AND 14 THROUGH 22 AND THE DEFENDANT SHALL PAY A SPECLAI ASSESSMENT IN THE AJOUNT OF FfFTY DOLLARS ($50.00) ON EACH OF COUNTS 23 AND 24 FOR A TOTAL ASSESSMENT IN THE AMOUNT OF TWO THOUSAND DOLLARS($2,000.00). X. DEFENDANT SHALL PAY A FINE IN THE AMOUNT OF FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) TO BE PAID IN ACCORDANCE WITH THE TERMS SET OUT IN PARAGRAPH TWO OF THE CONSENT ORDER ATTACHED HERETO. X. DEFENDANT SHALL MAKE RESTITUTION IN ACCORDANCE WITH THE TERMS SET OUT IN PARAGRAPH ONE OF THE CONSENT ORDER ATTACHED HERETO. App 1283 Page 7 of 7 DEFENDANT: GURMEET SINGH JUDGMENT DHINSA CASE NUMBER: CR-97-0672(S-7)-01 4 ee nn bk WL tl at ld re Se Re Oe EN te GL. BAP As IRAN ve ok A-45 STATEMENT OF REASONS X. The Court adopts the factual findings and guideline application in the pre-sentence report. The Court makes the foil dwin findings regarding the guidelines calculation: GUIDELINE RANGE DETERMINATION BY THE COURT Total Offense Level: 51 Criminal History Category: V Imprispnment Range: Life Imprisonment. In addition, count 10 requires a consecutive 60 month custody sentence. Supervised Release Range: Cbunts 1, 2, 4, 8, 23 and 24 3 to 5 YEARS Counts 3, 7, 10, 11 and 14 through 22 2 to 3 YEARS Fine Range: $25.000.00 TO $250,000.00 DEPARTURES FROM THE GUIDELINES RANGE The sentence is within the guideline range, that range DOES NOT EXCEED 24 months, and the court finds no-reason to depart from the sentence called for by the application of the guidelines. OR X__The prison sentence is within the guideline range, that range EXCEEDS 24 months. Upon motion of the government, as a result of " defendant’s substantial assistance. A-46 X_For the following specifle reason(s): The fine exceeds the guideline range pursuant to a stipuation of the parties. App.1284 ejactbcetan wedi es A-47 January 15, 1999 Chris Reese Margie Jackson Chris: But listen - let me ask y’all a question. Margie: What’s up? Chris: What’s been going on with you? Margie: Nothing much - I been working. Chris: You alright? Margie: Chillin’ - hell yeah! Chris: I mean you ain’t — Margie: I’m doing great baby — Chris: Let me ask you a question though wait — Margie: J ain’t no crack (UI) doing no crazy shit — Chris; No no no no no not like that. Not like that. But I’m saying you ain’t in no trouble or nothing? M>rgie: No I’m not in no trouble. Chris: Margie: Chris: Margie: Chris: Margie: Chris: Margie: Chris: Margie: Chris: Margie: Chris: Margie: A-48 You know why- cause you- I heard your name recently. Or I read your - I read your name and I heard it. Read it? Read it and heard it recently. And it and-and unless they talk You read it? Unless they talking about somebody else In a letter? Huh? You read it in newspaper? No I read it in- No it hasn’t been in the newspaper yet. It might end up in the newspaper. But it hasn’t ended up in the newspaper yet. You know a dude named Mary? Yeah. 7 So you know what I’m talking about? Yeah I know what you’re talking about. But I ain’t in no trouble. Oh no- that’s what I’m saying but... Oh, OK. | . ; . : | | Chris: Margie: Chris: Margie: Chris: Margie: Chris: Margie: Chris: Margie: Chris: Margie: Chris: Margie: Chris: Margie: Chris: A-49 Um- 1-I-I heard it and I’m like- wait a minute- that’s my people. Yeah yeah yeah. And-and I know ‘em. Mmm-hmm. I been talking to him. Ok. You do? You haven’t spoke to him? I speak--1 was speaking to him up until- a few weeks ago - everyday. What? Ev- when’s the last time you spoke to him? Since since last year- the year before last actually. You haven’t spoke to him since he been in? No. At all? I can’t. What? I can’t and my number changed and all’a that stuff- you know? Oh they did all that? Margie: Chris: Margie: Chris: Margie: Chris: Margie: Chris: Margie: Chris: A-50 Yeah- no I changed my own number. Oh- That’s what happened... Beause you know what - you know - I don’t know - see. If I understood it correctly you supposed to be - they supposed to be calling on you. They already (UI) to the DA’s and all that stuff. No - I mean they supposed to be call - cause you know the trial is going on. Yeah it’s going on nght now — Yeah. I know all of that. Right. I gotta go to the DA’s Saturday and do um - you know how they prepare you for questioning and stuff like that. They going to prepare you to- for questioning? Yeah. Mmm. Cause-cause I was reading this thing and I was like - what the fuck- how this come about? ely ee ts. Pee i eae 7 2 a eee Margie: Chris: Margie: A-5] Yeah yeabh- it-it’s some shit. I was at the wrong place at the wrong time babe. Yeah- but you know what-you know he-you know from what I understand- Right. From what, from what I heard from yesterday - Uh-huh. That he said he paid you. No he didn’t. This is what I heard. No he didn’t. No he did not. No he did not From what I heard he said he paid you seven hundred dollars. No he didn’t give me no seven hundred That’s my word-this is what I heard. That’s what Marvin told you? This is what I heard. That’s bullshit - well you heard wrong. * K & Chris: Margie: Chris: Margie: Chris: Maigie: Chris: A-52 But he said- he I swear he said he gave you seven hundred dollars. 7 Yeah. He said he gave you seven hundred dollars afterwards. Yup. He said he gave you seven hundred dollars afterwards- I think be said that yesterday. laughing] Mmm-hmm. vt Nt a Tat Cn i ale A PE ipa ) Memo To: GLS From: JL Subject: Singh: Surinder Parmar/Kuldip Singh Date: August 7, 1997 Pannar Les Levine and I met with Parmar at his attorney Joe Mure’s office on July 25, 1997. Parmar recounted the events surrounding his abduction, from July 2 through July 5, by officers from the 115th Precinct in Queens. _On Saturday, July 2, at about 7 am, detectives from the 115th Precinct stopped by Parmar’s bakery and told him they needed to talk to him. Parmar was put in a car and brought to the 115 and locked up. Five detectives began a steady stream of questioning and yelling about Singh. Parmar was accused of being involved in a murder conspiracy with Singh. The intended victim was Balwant Singh, the owner of BK Construction in Queens Village and the apparent unnamed subject of Count 4 of the indictment. Balwant ran into Parmar inside the temple in Queens, and, according to Parmar, the police believe that at the temple Paimar inforined Balwant of the plot to kill him. Balwant’s murder would have been payback for the 10 Avenue murder which Balwant supposedly ordered. During the four day period, Parmar was not allowed to call a lawyer despite his repeated requests. He was denied food and _ A-54 water. He begged to be released and complained that his business was suffering. He was also told by the detectives, repeatedly, that if he did not cooperate with them Singh would kill him. In addition to the abuse, an Indian detective named Rocco threateheu to beat him. Parmar denied being involved in any plot with Singh or having knowledge about any of Singh’s illegal ativities. He also refused to cooperate with the detectives. Finally, on Sunday evening, he was taken to a Flushing precinct. He was never entered into the log in any precinct. He was later brought back to the Northm Blvd precinct He was moved around a lot so that he would not be found by Singh’s lawyers (a la Marvin). GLS Page 2 August 7, 1997 Finally, he ended up in Central booking (on Monday). Marvin, for a short time, shared a cell with him. Marvin didn’t know him. During Marvin’s time in the cell, he called his mother and others-stating that ““The game is over; I can’t do nothing. I did my job.” The charges were dropped against him on Monday. FBI agent Glynn took Parmar and Marvin and Marvin’s cousin (?) Robin or Reuben to 26 Federal Plaza on Tuesday. Pictures and prints were taken. Glynn asked about “Gulzar” Singh (who, apparently, 1s acutally Vipin) Parmar was released Tuesday at 4 pm and given $40 by Glynn. Two days later, the detectives came again to his house (7 pm) and took him to the 105th Precinct. He was kept for two hours and asked about Lucky. He was also asked about the video from the party (the detectives had the video). He was shown pictures of Marvin. He told them that he had seen ee Ce ee ee eee Se ee ee ree eee a a ees ews ee A-55 mn Marvin in jail; the detectives asked what Marvin had said. He was also shown a picture of Balwant. He was threatened with indictment unless he cooperated. The next morning, the detectives came to the bakery. Parmar was not around. Detective Frank Bovino left his card (he conducted the search of 276 North Henry Street re guns). Leslie Caldwell called Mure a few days later and asked if Parmar wanted to cooperate. - She claimed that he had indicated to the detectives that he did. She also informed Mure that Parmar was in danger and that he was not a suspect at this point in any crimes. Parmar informed me that he knew nothing about the murder of the Livery car driver in Queens and never saw the October of 1991 shooting or fight that precipitated it. Kuldip Singh I met with Kuldip Singh on two occasions (July31 and August 2) regarding his treatment by detectives from the 115th Precinct. Kuldip works at the station on 2800 Bruckner Blvd. On July 29, detectives from the 115 visited the station looking for him; however, he had previously gone home due to illness. The detectives left a card (Det. Verrna, also known as “Rocky”) with John who works at the attached convenience store and a number for Kuldip to call. Kuldip called the next day. Verma stated that he wanted to stop by for questioning and Kuldip said he worked from 6 am until 6 pm. Verma came by and parked across the street. He told Kuldip to just walk across the street into Verma’s car so that no one would notice what he was doing. GLS August 7, 1997 Kuldip was taken to the 115" Precinct at 5 pm for 5 hours. He was questioned by 15 detectives over the 5 hour period. Despite repeatedly asking to call his attorney (he showed my name and nunber), Verma refused, claiming that Kuldip didn’t need a lawyer. Kuldip was asked about Singh, his brother, Vipin, Babu and Brother #1. Kuldip claimed that he did not know what happened to Brother #1(Kulwant Singh). Kuldip was also asked how his pumps short customers. Kuldip denied this. Verma told him, screaming at times, “Singh has tried to kill you!!!” Verma offered to put Kuldip and his family in the Wilness Protection Program. After five hours, Kuldip was brought home when he reffised to cooperate. The detectives promised to come back again to Visit him ** MB: Magda spoke with Verma at approximately Spm on July 30; apparently the time Kuldip had been brought back to the 115. Venna denied knowing Kuldip and claimed that he had been in court testifring all day. A-57 AFFIDAVIT OF WALTER JOHNSON STATE OF KANSAS ) ) ss: COUNTY OF LEAVENWORTH ) WALTER JOHNSON. being duly sworn, deposes arid says: 1. Ihave known Marvin Dodson for a number of years. Last fall he and I were incarcerated together in Unit 3 South of the Metropolitan Detention Center. 2. When I asked Dodson the reason he was incarcerated he told me that “they got me for some serious shit. I was at a gas station and two guys were in a van. They were supposed to do it [a murder] but I had to come from behind ad do it myself.” 3. We had learned that an inmate named “Singh” was.also inthe Metroplitan Detention Certer. Initially, Dodson told myselt and Other inmates that he planned on killing “Singh” because Singh was “ratting” on him. 4. Dodson told me that he met Singh after he showed up at Singh’s construction site with a bunch of men. Dodson said to me that he told the person in charge that either his crew better be put on the job, or, Singh could just pay him and he would take care of everyone. If the money wasn’t paid, Dodson claimed there would be a lot of trouble for Singh at the construction sites. 5. Dodson told me that before getting arrested, he was trying to find out where Singh kept his money and then he would rob and kill Singh. Dodson claimed that he followed Singh home a couple of times. In A-58 ° addition, be claimed that he wanted to learn the gasoline business and get close to Singh so that after he killed him he could take over Singh’s business. He said he was “playing Singh real close.” 6. Dodson asked if I would be willing to do some “work” for him on Singh-“work” meaning to murder him. He also asked me to get a keife for him to itse to stab Singh 7. Once, we were on the deck of Unit 3 South. Singh was on the deck of Unit 4 South at the time, which was visible to us Dodson began screaming at Singh and -threatened him. Dodson also called him a rat. Finally Singh just looked at him and said “Marvin, why did you do this to me?” Dodson just kept on ~ screaming trying to cause confusion so that no one would listen to Singh. At ‘this point, I realized that the reason Dodson was doing this was beause he had lied about Singh being a “rat” and did not want us to hear Singh’s comments 8. I confronted Dodson about this and he admitted that he was the one who was “ratting” on Singh. He told me that after be was arrested, he was interrogated for a long time by detectives. Once Singh’s name came up, the detectives just wanted to talk about Singh. Dodson told me that the detectives told him that if he cooperated .against Singh it would be like “Gotti and Sammy the Bull,” meaning that he would not spend much time in prison. Dodson bragged to me that he thought he’d get out of ‘ail “in a minute.” 9. Even after Dodson adimitted that he was “ratting on Singh,” he still asked me for help in killing Singh. I told him that I would not help. A-59 : 10. Dodson never claimed that Singh was involved in the crime for which Dodson was charged. I asked Dodson why he was cooperating against Singh and be told me that be had to blame Singh because he didnt want to spend the rest of his life in prison. He said Singh would “walk” in this case because he had a lot of money. Dodson said that Singh had “so much money, - even if he goes to trial he’ll win.” Dodson claimed that he had no money so he had to tell the “Feds” a story that they wanted to hear. 11. The “Feds” wanted Singh bad, according to Dodson. They told Dodson that Singh “had gotten away with a lot in the past.” In addition, they told Dodson that they wanted Singh’s money. 12. Dodson told me that he hoped that “these mother fuckers”—meaning the Feds— “don’t arrest my girl” He didn’t say if she was involved in his crimes. s/“’alter Johnson WALTER JOHNSON . Sworn to before me the 21* day of December 1998 s/signature A-60 UNITED STATES DISTRICT COURT FILED EASTERN DISTRICT OF NEW YORK. INCLERKS OFFICE U.S. GURMEET SINGH DHINSA, .... Petitiorer ORDER TO SHOW CAUSE - against -. AL HERRERA CV-02-6156 (ERK) Respondent. KORMAN, J. Upon the petition made pursuant to 28 U.S.C. 2255, dated 11/18/02. , a copy of which is annexed, it is hereby ORDERED that: (1) petitioner is granted leave to proceed in forma pauperis; { (2) the United States Attorney for the Eastern District of New York as attorney for the respondent, show cause before this Court by the filing of a return to the petition, why said motion pursuant to 28 U.S.C 2255 should not be granted; (3) within sixty (60) days of receipt of this order, the United States attorney for the Eastern District of New 3 York shall serve a copy of his return upon the petitioner herein and file the original thereof, with proof of such service, with the Clerk Of this Court; (4) Petitioner, within sixty (60) days of receipt of a copy of the return of the United States Attorney, shall file a reply, if any, with the Clerk of this Court; A-61 (5) service of a copy of this Order to Show Cause shall be made by the Clerk of this Court by forwarding a copy thereof together with a copy of the petition, to the United States Attoriey for the E.D.N.Y., attention of BENTON CAMPBEIL, AUSA and by mailing a copy of this order to the petitioner. s/Edward R. Korman EDWARD R KORMN, U.S. D. é. DATED: Brooklyn, New York January 7, 2003 A-62 U.S. Department of Justice United States Attroney Eastern District of New York U.S.One PierrepontPlaza Brooklyn, New York 11201 Mailing Address: 147 Pierrepont Street Brooklyn, New york 11201 March 7, 2003 FILED IN CLERK’S OFFICE U.S. DISTRICT COURT E.D.N.Y. MAR 07 2003 Hon. Edward R. Korman United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201 Re: Gurmeet Singh Dhinsa v. Al Herrera Civil Docket No. 02-6156 (ERIC) Dear Chief Judge Korman: The government submits this letter to request an extension of the date for filing a response to the 2255 petition of Gurmeet Singh Dhinsa from March 10, 2003 to April 14, 2003. This government makes this request because it has proven necessary to order portions of the trial transcript directly from A-63 the transcription service and review a number of documents and records associated with the petitioner’s lengthy criminal trial which are in storage. We have consulted counsel for the petitioner, Barry Kozyra, Esq., and he has advised that he does not oppose the government’s request. Respectfully submitted, ROSIJYNN R. MUSKOPF ED STATES ATTORNEY By: _s/signature Benton J. Campbell Ronald G. White Catherine Friesen Asst. U.S. Attorneys cc: Barry A. Kozyra, Esq. (Via fax 973-403-9652) BCPA peas LE 1 ANON Tak ne ac eins Se ot - A-64 FILED U.S. Department of Justice IN CLERK’S OFFICE U.S. DISTRICT COURT E.D.N.Y. APR 14 2003 United States Attorney Eastern District of New York One Pierrepont Plaza Brooklyn, New York 11201 Mailing Address: 147 Pierrepont Street Brooklyn, New York 11201 April 10, 2003 Re: Gurmeet Singh Dhinsa v. Al Herrera Civil Docket No. 02-6156 (ERK) Dear Chief Judge Korman: The government submits this letter to request an extension of the date for filing a response to the 2255 petition of Gurmeet Singh Dhinsa from April 14, 2003 to May 19, 2003. This government makes this request because it has proven necessary to order portions of the trial transcript directly from the transcription service and review a number of documents and records associated with the petitioner’s lengthy criminal trial which are in storage. According to the court reporter, it has taken an unusually long time to obtain the transcript because the contents of the court’s file had to be catalogued prior to its retrieval, a process that remains ongoing. We have consulted counsel for the petitioner, Barry Kozyra, Esq., and he has advised that he does not oppose the government’ s request. - Respectfully submitted, ROSTYNN R. MTUSKOPF UNITED STATES ATTORNEY A-65 By:s/Catherine Friesen Benton J. Campbell Ronald G. White Catherine Friesen Asst. U.S. Attorneys cc: Barry A Kozyra, Esq. (Via fax 973-403-9652) A-66 KOZYRA & HARTZ, LLC COUNSELLORS AT LAW 140 EAGLE ROCK AVENUE - ROSELAND, NEW JERSEY 07068 973-403-8344 BARRY A, KOZYRA(1) JUDITH A. HARTZ Our File No. 10079-1 Telefacsimile: 973-403-9652 Email BarryKozya @KozyraHartz.com RAJ GADHOK1(1) LYNNE M. GIACHETTI (1)MEMBER OF NJ & NY BARS May 16, 2003 Hon. Edward R. Korman _ United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 a ee ee ee Re: Gurmeet Singh Dhinsa v. Al Herrera Civil Docket No. 02-6156 (ERK) Dear Chief Judge Korman: I am in receipt of a letter dated May 15, 2003, submitted by Assistant United States Attorney Catherine Friesen on behalf of the Government seeking to extend the date for filing a response to the Section 2255 petition on behalf of Gurmeet Singh Dhinsa from May 19, 2003 to July 21, 2003. As noted in the Government’s request, did not oppose the request and extension of time to file responsive papers. However, this is the third time that the Government has requested for an extension of time to file opposition to the Section 2255 petition while Mr. Dhinsa remains in prison A-67 in Lompoc, California. I advised Assistant United States Attomey Friesen that I would oppose any further extension of time to file a responsive position by the Government by reason of its inability to obtain documents. I would repspectfully request that the Court indicate that there will be no further adjournments granted by reason of the Government’s inability to obtain trial transcripts or other documents. Respectfully submitted, s/Barry A. Kozyra, Esq. BARRY A. KOZYRA, ESQ. BAK:phw cc: Catherine Friesen, Asst. U.S. Attorney - : A-68 U.S. Department of Justice FILED ! IN CLERKS OFFICE United States Attorney U.S. DISTRICT JRT E.D.NY Eastern District of New York JUL 08 2003 ! One Pierrepont Plaza Brooklyn, New York 11201 Mailing Address: 147 Pierrepont Street Brooklyn, New York 1120] May 15, 2003 Hon. Edward R. Korman United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 ee er ee ee ee Seen eet ee Re: Gurmeet Singli Dhinsa v. Al Herrera Civil Docket No. 02-6156 (ERK) Dear Chief Judge Korman: The government submits this letter to request an extension of the date for filing a response to the 2255 petition of Gurmeet Singh Dhinsa from May 19, 2003 to July 21, 2003. This government makes this request because it has proven necessary to order portions of the trial transcript directly from the transcription service and review a number of documents and records associated with the petitioner’s lengthy criminal trial which are in storage. According to the court reporter, it has taken an unusually long time to obtain the transcript because the contents of the court’s file had to be catalogued prior to its retrieval, a process that remains : A-69 ongoing. We are hopeful that this will be the government’s final] request for an adjournment. We have consulted counsel for the petitioner, Barry Kozyra, Esq, and he has advised that he does not oppose the government’s request. Respectfully submitted, ROSIYNN R. MAUSKOPF UNITED STATES ATTORNEY By: S/Catherine Friesen Benton J. Campbell Ronald G. White Catherine Friesen Asst. U.S. Attorneys cc: Barry A. Kozyra, Esc. (Via fax 973-403-9652) A-70 U.S. Department of Justice FILED IN CLERKS OFFICE United States Attorney U.S. DISTRICT JRT E.D.NY Eastern District of New York JUL 16 2003 One Pierrepont Plaza Brooklyn, New York 11201 Mailing Address: 147 Pierrepont Street Brooklyn, New York 11201 July 15, 2003 Hon. Edward R. Korman United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 Re: Gurmeet Singh Dhinsa v. Al Herrera Civil Docket No. 02-6156 (ERK) Dear Chief Judge Korman: The government submits this letter to request an extension of the date for filing a response to the 2255 petition of Gurmeet Singh Dhinsa from July 21, 2003 to September 21, 2003. This government makes this request because we have not yet received the transcript of the charging conference held February 18-19, 1999, during which we believe the defendant’s right to testify was addressed. There have been numerous delays in the preparation of the transcript, which we first requested in February, apparently due to the transmission of the court folder to closed files. AUSA Friesen left a message last week with counsel for petitioner, Barry Kozyra, Esq., advising him that we intended ee ee ee, a mn ee A-71 to request another adjournment and asking whether he had a copy of the transcript at issue. We have not yet heard back from him. Respectfully submitted, ROSLYNN R. MAUSKOPF UNITED STATES ATTORNEY By: s/Catherine Friesen Benton J. Campbell Ronald G. White Catherine Friesen Asst. U.S. Attorneys cc: Barry A. Kozyra, Esq. (Via fax 973—403— 9652) A-72 KOZYRA & HARTZ, LLC COUNSELLORS AT LAW 140 EAGLE ROCK AVENUE - ROSELAND, NEW JERSEY 07068 973-403-8344 BARRY A, KOZYRA(1) JUDITH A. HARTZ Our File No. 10079-1 Telefacsimile: 973-403-9652 Email BarryKozya @KozyraHartz.com RAJ GADHOKI(1) LYNNE M. GIACHETTI (1)MEMBER OF NJ & NY BARS August 5, 2003 Hon. Edward R. Korman United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 Re: Gurmeet Singh Dhinsa v. Al Herrera | Civil Docket No. 02-6156 (ERK) Dear Chief Judge Korman: This office represents Gurmeet Singh Dhinsa with respect to a petition for relief from his conviction and sentence pursuant to 28 U.S.C. §2255. On July 15, 2003, Your Honor entered an Order extending the Government’s time to file its brief and responding papers in the above- captioned matter to September21, 2003. This is the Government’s fourth request for an extension of time to file its papers. The Government’s proffered reason for this extension is its need to obtain transcripts of a charging conference held before the Court. It is my understanding A-73 from Assistant United States Attorney Catherine Friesen that the Government contends that one of the issues addressed by the petition, to wit, that Mr. Dhinsa was not advised that it was his constitutional right to testify at his trial, was specifically addressed during the charging conference. It is presumably the Government’s position those rights vere knowingly waived by- Mr. Dhinsa. KOZYRA & HARTZ, LLC Hon. Edward R. Korman August 5, 2003 Page 2 On May 16, 2003, I wrote to Your Honor on behalf of Mr. Dhinsa objecting to any further delays inthe Government’s filing of its response. I renew that objection and ask that the Court grant no further extensions to the Government to file a response based on an alleged lack of documents. I ask the Court to draw an adverse inference to the Government’s failures to promptly respond and the Government’s continued failure to demonstrate that Mr. Dhinsa was aware of his right to testify at the above trial and waived that right knowingly. Mr. Dhinsa remains incarcerated in the federal prison at Lompoc, California and should not be compelled to continue confinement while the Government seeks further extensions of time and delay in responding to the application. At some point- and we submit it is now, or not later than September 21, 2003 -. Mr. Dhinsa’s right to due process of law is violated and redress is appiopriate. By copy of this letter, I am notifying Assistant United States Attorney Catherine Friesen of our position with respect to any further adjournments based on the Government’s inability to find transcripts supporting its position that Mr. A-74 Dhinsa was made aware of his right to testify at this trial and knowingly waived same. Respectfully submitted, s/Barry A. Kozyra BARRY A. KOZYRA BAK:cml cc: Catherine Friesen, Asst. U.S. Attorney A-75 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK . inna, UNITED STATES OF AMERICA+ 02-CV-6156 (ERK) - against - 97-CR-672 (ERK) GURMEET SINGH DHINSA, Defendant-Petitioner. UNITED STATES’ MEMORANDUM IN OPPOSITION TO THE DEFENDANT’S MOTION PURSUANT TO 28 USC. §2255 ROSLYNN R. MAUSKOPF United States Attorney Eastern District of New York 147 Pienepont Sfreet Brooklyn, New York. 11201 Ronald White Catherine Frieen Assistant United States Attorneys (Of Counsel) A-76 INTRODUCTION Defendant-Petitioner Gurmeet Singh Dhinsa has filed a post- conviction motion, pursuant to Title 28, United States Code, Section 2255, challenging his 1999 conviction after trial of racketeering and numerous related offenses including murder, murder conspiracy, kidnapping, mail fraud and firearms violations. Specifically, Dhinsa was convicted of: racketeering and racketeering conspiracy (Counts 1 and 2); three counts of murder consp.racy (Counts 3, 7 and 14), two counts of racketeering murder (Counts 4 and 8), two counts of obstruction of justice murder (Counts 5 and 9), one count of using and carrying a firearm during a crime of violence (Count 10), one count of threatening to commit murder (Count 11), one count of being a felon in possession of firearms (Count /5), one count of mail fraud conspiracy (Count 16), seven counts of mail fraud (Counts 17 through 22), one count of kidnapping conspiracy (Count 23), and one count of kidnapping (Count 24). Dhinsa was acquitted on eight counts (Counts 6, 12, 13, and 25 through 29). Dhinsa was sentenced on October 15, 1999 to multiple life sentences for the racketeering, murder and kidnapping charges.’ He his currently incarcerated. ' 1 Dhinsa was sentenced to terms of life imprisonment on Counts 1, 2, 4, 5, 8, 9, 23 and 24. In addition, he received sentences of 120 months on counts 3, 7, 14 and 15, to be served concurrently with the life terms and consecutive to one another. Dhinsa was also sentenced to sixty months for his convictions on Counts 11 and 16 through 22, also concurrent with the life terms and consecutive to one another. Finally, Dhinsa received a mandatory consecutive term of sixty months for his conviction under 18 U.S.C. § 924(c). ‘A-77 The convictions were affirmed on appeal, except for count 11 (threat to murder) and counts 23 and 24 (interstate kidnapping). United States v. Dhinsa, 243 F.3d 645 (2d Cir. 2 2001). Those counts were vacated and remanded and later dismissed after the government elected not to retry Dhinsa. In his Section 2255 petition, the defendant argues that Gerald Shargel, Esq., Dhinsa’s highly experienced and able trial counsel, forced Dhinsa not to take the stand at trial, thereby depriving him of his right to testify, and prevented him from calling witnesses in his own defense. As set forth more fully below, these claims are without merit and should be summarily dismissed. Alternatively, as discussed more fully below, if the Court wishes to expand the record on the “performance” prong of the ineffectiveness claim, it is requested that a limited hearing be held for the sole purpose of taking testimony on that issue.’ | As discussed below, Mr. Shargel has declined the government’s request that he submit an affidavit to the court. A-78 STATEMENT OF FACTS A. Introduction Dhinsa was convicted of numerous offenses contained in a multi-count racketeering indictment which charged him with controlling a racketeering organization known as the “Singh Enterprise.” The case was extraordinarily complex, in part because of the government’s decision to seek the death penalty against Dhinsa for his involvement in the homicides charged in the indictment. The trial of the case, including jury selection and the penalty phase, spanned nearly four months. The government’s case included nearly one hundred witnesses and hundreds of exhibits. The overwhelming nature of the government’s evidence was confirmed by the jury at the conclusion of the penalty phase of the case when it agreed unanimously, in rejecting a “mitigating factor” advanced by Dhinsa, that it had no lingering, or “residual,” doubt about Dhinsa’s guilt. The jury’s assessment was shared by the trial court, which stated at the conclusion of the case that the evidence, particularly telephone and cell site records introduced at trial, made Dhinsa’s guilt “a certainty.” Dhinsa’s organization was built around a chain of 51 gasoline stations that he owned and operated throughout the New York City metropolitan area under the name “Citygas.” Dhinsa generated miffions of dollars in fraudulent income for himself and other members of the Singh Enterprise by ngging gasoline pumps at his stations to overcharge Citygas customers, a practice commonly known as “short-measuring.” The indictment also ~ charged with Dhinsa the murder of two men, Manmohan A-79 Singh and Satinderjit Singh,' in order to protect this lucrative operation. At the time of his death in March 1997, Mamnohan was attempting to confront members of the Singh Enterprise about their role in the disappearance of his brother Kulwant Singh from a Citygas station in the Brorix in.July 1995. Satinderjit was actively cooperating with a New York City Police Department (“NYPD”) investigation of Dhinsa and his organization. Dhinsa was arrested on July 7, 1997, two weeks after the murder of Satinderjit. At the time of the arrest, officers uncovered evidence that Dhinsa was plotting to kill another witness who was helping law enforcement efforts prosecute members of the Singh Enterprise. Dhinsa was initially indicted on July 19, 1997. Shortly thereafter, the first of a series of superseding indictments was returned by a grand jury in the Eastern District of New York charging Dhinsa and other members of his criminal organization with various crimes including racketeering, murder, fraud, and kidnapping. B. Summary of the Government’s Case Dhinsa’s trial began with jury selection on November 29, 1998. Opening statements were given on January 4, 1999. The government’s case included testimony from several cooperating defendants. One of those accomplice ' Many of the men and women involved in the case were members of the Sikh religion, in which nearly all males adopt the last name “Singh.” For clarity, petitioner will be referred to throughout the government’s memorandum as Dhinsa. _ BEST AVAILABLE COPY 2 A-80 - witnesses was Singh Enterprise hit man Marvin Dodson who testified about his role in the murders of Satinderjit Singh and Manmohan Singh. Dodson carried out, both killings at Dhinsa’s order. Dhinsa’s motive in committing the murders was to prevent the victims from cooperating with an investigation of the Singh Enterprise and its members. Dodson’s friend Evans Alonzo Powell also testified about his participation as the driver in both homicides and his involvement in a separate unsuccessful plot to kill Sarvjeet Singh, a witness in a New York State homicide case pending in 1997 against Dhinsa’s brother Gogi Singh. The government also called a third accomplice witness, Walter (“Jazz”) Samuels, who described his participation in the June 1997 murder of Satinderjit Singh, the plot to kill Sarvjeet Singh, and a third plot he participated in with Dodson and Dhinsa to kidnap Sarvjeet Singh’s friend Balwant Singh. The government also called several other witnesses, including a large number of former Citygas employees. These witnesses, including former office employee Satinderpal Minhas, testified in detail about the operation of the pump-rigging system, describing how Citygas gasoline pumps were electronically rigged to short change customers. The government also called former ‘New York City Department of Consumer Affairs (“DCA”) inspector Lawrence Woods, who testified about how, in exchange for regular bribery payments from Dhinsa, he tipped off the Singh Enterprise about DCA inspections targeting Citygas stations and provided Dhinsa with special DCA seals and stickers and information about DCA enforcement operations. In addition, the government called dozens of victims of the Singh Enterprises’s criminal activities, including Sarvjeet Singh, targeted for death by Dhinsa shortly before his arrest in July 1997, Sarvjeet Singh’s friend A-8] Balwant Singh, victims of the Singh Enterprise’s short- measuring activities, and Muchtir Ghuman, a restaurant owner kidnapped and threatened with death by Dhinsa and other members of the Singh Enterprise in November 1995. Several FBI agents and NYPD officers also testified about evidence discovered during the investigation. The government also called dozens of custodial witnesses to describe documents and important records obtai.ied during-the investigation. Hundreds of physical exhibits were introduced including firearms seized from Dhinsa’s Citygas headquarters at 276 North Henry street, documents found in Dhinsa’s car on the lay of his arrest, tapes and transcripts of prison telephone calls made by Dhinsa, license plates, receipts, and telephone records. Among the most important documents introduced at trial were cell site records for Dhinsa’s car telephone. Those records showed where Dhinsa was located when he placed or received calls on his car phone on June 18, 1997, the day of the murder of Satinderjit Singh. The records demonstrated, among other things, that Dhinsa was at the scene of the murder of Satinderjit Singh and that, later that afternoon, he met with his hit team in East New York. C. Summary of the Defense Case Throughout the trial, Mr. Shargel vigorously cross- examined the government’s witnesses, confronting them with, among other things, tape recordings, documents and other evidence gathered by defense investigators. Marvin Dodson, in particular, was savagely impeached with evidence of his prior inconsistent, false and outright perjurious statements to various law enforcement officials and judges (T. 1312-1388, 1502-1509); his expectation of receiving a lenient sentence because of his testimony A-82 against Dhinsa (T. 1397-1401, 1417-18); and his preparation of an affidavit claiming that he was entitled to receive a 25 million dollar award, again because he testified against Dhinsa (T. 1401-1414). The defense also introduced numerous recorded conversations between Dodson and defense-spy Christopher Reese as evidence of Dodson’s “bias, hostility and motive.” (T. 1421) In those tapes, Dodson discusses, among other things, his belief that he will be released from jail imminently, his system for communicating outside the prison, and his desire to receive a cash reward for his testimony. In one tape, Dodson makes what the defense characterized as veiled death threats against a defense investigator. The other cooperating and civilian witnesses were similarly impeached, with varying degrees of success, with evidefice of their biases, hostility, prior inconsistent and false statements, and motives to fabricate testimony against Dhinsa. Dhinsa, though Mr. Shargel, also called witnesses in his own defense. Kawalajit Chandi testified, among other things, that Ghuman, the victim of the kidnapping, did not invest money in his own business and was not threatened or coerced into giving up his share in the business. (Tr. 5619). D. The Verdict & Appeal The jury returned its verdict in the guilt phase of the trial on March 2, 1999 convicting Dhinsa of, among other things, the murders of Satinderjit and Manmohan Singh. The trial then moved on to the penalty phase proceeding, which took place on March 9, 1999. The jury returned its penalty phase verdict on March 10, rejecting the death penalty and recommending life imprisonment. A-83 On appeal, Dhinsa contended that the district court erred by admitting hearsay statements made by the victims of Dhinsa’ s crimes. He also claimed that: there was insufficient evidence to convict him under 18 U.S.C. § 1959; the court erred by admitting testimony of the girlfriend of one of the murder victims about a telephone threat she received before the victim’s death; the indictment was improperly amended; the evidence was insufficient to convict him of kidnapping; a new trial was warranted on the RICO counts because a number of RICO predicates are invalid; there was insufficient evidence to convict Dhinsa of coercion; the evidence was insufficient to support Dhinsa’s conviction of weapons possession; and that it was error to admit evidence seized from Dhinsa’s automobile on the day of his arrest. The Second Circuit rejected most of Dhinsa’ s. claims, but vacated his conviction on the kidnapping and threat to murder charges and remanded them for a new trial. United States v. Dhinsa, 243 F.3d 635 (2d Cir. 2001). The Supreme Court denied Dhinsa’s petition for a writ of certiorari on October 1, 2001. The government elected not to retry Dhinsa on the open counts, which were subsequently dismissed with prejudice. E. Additional Facts Relevant to This Section 2255 Petition In September of 2002, Dhinsa filed a petition for the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Central District of California, challenging the instant conviction. On September 23, 2002, the court dismissed that petition without prejudice for lack of jurisdiction and directed Dhinsa to re-file in the sentencing court. Dhinsa then filed the instant petition in the Eastern District of New York. A-84 Dhinsa claims ineffective assistance of counsel based upon the alleged deprivation by his counsel of Dhinsa’s right to take the stand. Specifically, Dhinsa claims that he repeatedly told his counsel, Gerald Shargel, that he wished to testify and that he was told “hold on” or “lets see how it goes.” Dhinsa Aff. 9. Dhinsa states that, the night before the trial ended, he repeated his wish to testify and was told “we’ll see tomorrow.” Id. 912. At that time, Dhinsa claimed to be unaware that the decision to testify was his own. According to Dhinsa, “the next morning, I was told ‘we don’t want you to testify,” and he felt “he had no choice but to accept” that decision. Id. § 14. Dhinsa states that, if called to testify on his own behalf, he would have told the jury that he did not know the murder victims, or Balwant Singh or Sarvjeet Singh and that the case against him “was the product of government witnesses who had lied and exaggerated their testimony.” Id. § 21. Dhinsa further claims that defense counsel was ineffective by refusing to call witnesses on his behalf who would ha corroborated his testimony. Dhinsa Aff. Id. 4 15, 18. Specifically, Dhinsa identifies Walter Johnson, who purportedly would have testified about his conversations with cooperating witness Marvin Dodson, and Surander Parmer, who would have testitied that he never delivered threatening messages to Balwant Singh. Dhinsa attaches an affidavit from Walter Johnson, dated December 1998, in which Johnson claims that Dodson told him he identified Dhinsa because the federal agents “just wanted to talk about [him]” and that Dodson saw Dhinsa as his way out of prison. See Johnson Aff. Dhinsa also attaches a memorandum from “JL,” (which may have been authored by Jeffrey Lichtman, one of his lawyers), regarding an interview with Surander Parmer, see Parmer Memo, exhibit F, and a transcript of a phone conversation between Margie Jackson and Christopher A-85 Reese, Exhibit. In his counsel’s affidavit, Dhinsa claims, based on the memorandum and the transcript, that both Parmar and Jackson would have testified favorably to him and that Mr. Shargel was remiss in not calling them to testify. SeeKozyra Aff. J] 19-20. Mr. Shargel declined the government's request that he submit an affidavit to the Court detailing his discussions with Dhinsa regarding his right to testify. ARGUMENT PETITIONER’ S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL IS MERITLESS A. Petitioner’s Claim That He Was Deprived of His Right to Testify Should Be Rejected Because . He Cannot Demonstrate Prejudice The right of a defendant to take the stand in his own defense is of constitutional dimension, and a defendant’s establishment through particularized and credible evidence that his defense counsel unethically deprived him of this right, if prejudice resulted, may support a finding of ineffective assistance of counsel. Brown Vv. Artuz, 124 F.3d 73, 80 (2d. Cir. 1997). Ona collateral attack such as the present one, however, in which a defendant seeks to upset a conviction affirmed on appeal, the burden of proving such a deprivation “lies with the petitioner.” Whitaker v. Meachum, 123 F.3d 714, 714 (2d Cir. 1997); see Triana v. United States,205 F.3d 36, 40 (2d Cir. 2000). Specifically, any claim by a defendant that he either was not informed of his right to testify, or that defense counsel overrode his decision to testify, “must satisfy the A-86 two prong test established in Strickland v. Washinton, 466 U.S. 668 (1984).” Brown v. Artuz, 124 F.3d at 79. As the Second Circuit summarized: Under Strickland, a defendant must establish both that counsel’s performance was so defective that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,”and that counsel’s errors were “so serious as to deprive the defendant of a fair trial. . . .“‘ To satisfy the first, or “performance,” prong, the defendant must show that counsel’s performance was “outside the wide range of professionally competent assistance,”. . . and to satisfy the second, or “prejudice,” prong, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, V the result of the proceeding would have been different.” Id.79-80. Judged by these standardsDhinsa’s claim should be rejected. Dhinsa has satisfied neither the “performance” nor the “prejudice” prong required by Strickland. First, with regard to the “performance” prong, to succeed on a claim that counsel denied a defendant his right to testify, the defendant must establish that counsel coerced that decision or otherwise denied him his right to testify through some deceit or an unprofessional misstatement of the law. See United States v. Aguirre, 912 F.2d 555, 562- 63 (2d Cir. 1990); Campos v. United States, 930 F. Supp. 787,.792-93 (E.D.N.Y. 1996). No ineffective assistance claim lies where defense counsel merely advises a client not to testify and the client takes that advice. Aguirre, 912 F.2d at 562-63; Campos, 930 F. Supp. at 792 n.6. A-87 - In this case, Dhinsa’s sole “proof of his trial counsel’s alleged unethical behavior is his affidavit that he did not understand his right to testify and that his wish to testify was simply disregarded by defense counsel. This self-serving statement is barely sufficient to raise an issue under Strickland. As one Court aptly noted, “‘it is simple enough after being convicted for the defendant to say, ‘My lawyer wouldn’t let me testify.’ Therefore I’m entitled to a new trial.” Underwood v. Clark, 939 F.2d 473, 475 (7th Cir. 1991). The Second Circuit has directed that, when this type of generic claim is made, the trial court should conduct a limited hearing at which letters, documentary evidence or other affidavits can be received in order that the claim’s veracity can be evaluated in light of the entire record. Chan v. United States, 250 F.3d 79, 86 (2d Cir. 2001)(rejecting defendant’s “highly self- serving and improbable assertions” that defense counsel would not let him testify after reviewing defense counsel’s affidavit). The court is not required to hold a testimonial hearing if the expanded record adequately demonstrates that the claim is baseless and is expressly permitted to use its own kntwledge of the case in evaluating the evidence. } (commenting that Judge Glasser “was intimately familiar with the trial proceedings and the events and circumstances surrounding them.’’) Here, given Mr. Shargel’s distinguished reputation, vigorous defense of Dhinsa’ and lengthy history of ' With regard to Mr. Shargel’s overall performance, Judge Korman remarked that “it was the best defense of a criminal case that I’ve seen in my whole time, not only on the bench but since I’ve started watching in 1970 ... It was just brilliant. Brilliant. I don’t think anybody could have done more for him [Dhinsa] than you did.” (Tr. 7035). A-88 representing him on other matters, it is highly unlikely, if not impossible, that Dhinsa’s claims are true. It is far more likely that Dhinsa reasonably and knowingly took his counsel’s advice not to testify — a sound decision in light of Mr. Shargel’s success at impeaching the government’s witnesses and knowledge of the wealth of material which the government had amassed for purposes of impeaching Dhinsa. Nonetheless, because Mr. Shargel refuses to provide an affidavit detailing his conversations with Dhinsa on the matter, the Court may find that a testimonial hearing is required to resolve the issue fully. Nonetheless, even if the record is not sufficient on the “performance” prong to evaluate the credibility of _ defendant’s claim, he has not even attempted to make out the “prejudice” prong, which is required to show ineffective assistance of counsel. A defendant who claims that he was unethically denied his right to testify in his own defense must set forth the facts that he would have testified to, and establish prejudice by showing that had he been allowed to present these facts there was a “reasonable probability that the verdict would have been different.” Brown v. Artuz, 124 F.3d at 80-81. In this case, it is at the very least improbable, and most likely impossible, that Dhinsa could have credibly rebutted the litany of witnesses, including three coconspirators, who described first hand Dhinsa’s multiple murderous endeavors. The cooperating witnesses were corroborated by, among other things: (1) the admission of the hearsay statements of the murder victims, pursuant to United States v. Mastrangelo, 693 F.2d 269 (2d Cir. 1983), which demonstrated that Dhinsa ordered Manmohan killed in order to prevent him from becoming a witness regarding the kidnapping of his A-89 brother and that, similarly, he ordered Satindeijit’s murder because Satinderjit was actively assisting law enforcement to expose Dhinsa’s lucrative pump-rigging scheme and to locate Dhinsa’ s fugitive-brother, Gogi; (2) the evidence of cell phone and cell site records which definitely demonstrated Dhinsa’s whereabouts prior to, during and after the murder and which were entirely consistent with the cooperators’ testimony; and (3) abundant other evidence, including a list of potential victims and the home address of one of those potential victims, recovered during the search of Dhinsa’s car. In the face of the overwhelming evidence presented at trial — evidence that prompted the trial judge to remark that Dhinsa’s guilt of the murders was a “certainty” and left the jury with no lingering “residual doubts” — Dhinsa’ s denials on the stand would have been easily discredited and could, in a death penalty case, been held against him by the jury in the penalty phase. In addition, Dhinsa’s current denial in his affidavit that he “knew” Satinderjit or Manmohan, see Dhinsa Aff. 415-16, is particularly irrelevant in light of the overwhelming trial evidence that he knew of them, and the complete lack of evidence that they were personally acquainted. Furthermore, his claims regarding Balwant Singh, see Dhinsa Aff. { 18, are also irrelevant in light of the Second Circuit’s decision te vacate that count of conviction. Finally, although Dhinsa now claims that his teimony would have shown that the case against him “was the product of government witnesses who had lied and exaggerated their testimony,” that very argument was ably and repeatedly made by Mr. Shargel through his highly effective cross exantinations and was emphatically rejected by the jury. A-90 Accordingly, Dhinsa has not established the “prejudice” prong required by Stnckland requiring the rejection of his claim of ineffective assistance of counsel. B_ Counsel Was Not Ineffective For Failing To Call the Witnesses Identified by Petitioner Next, Dhinsa complaitis that counsel failed to call certain witnesses on his behalf. The Supreme Court has stated that ‘Tcounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary” and that the reasonableness of counsel’s judgment must be evaluated with “a heavy measure of deference.” Strickland, 466 U.S. at 691. Moreover, “[t]he decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial,” and, as a tactical decision, if it is reasonably made it “will not constitute a basis for an ineffective assistance claim.” United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). — In this case, Dhinsa was clearly defended by a team, led by Mr. Shargel, that spared no expense in hiring investigators, finding witnesses, pursuing leads and creating material to use in its case and on cross- examination. The decision to employ Christopher Reese to engage prospective government witnesses in conversations about the case proved to be a particularly effective strategy. Viewed through this’ prism, Dhinsa’s claim that trial counsel was ineffective for failing to call Walter Johnson, Surander Parmer and Margie Jackson should be summarily dismissed. Dhinsa has failed to identify fully the subject matter of their potential testimony and thus cannot show how he was prejudiced by his counsel’s alleged deficiency. .; Alexander v. A-91 McCotter, 775 F.2d 595, 602-03 (Sth Cir. 1985). For example, assuming that Walter Johnson would have testified as he set forth in his affidavit that Dodson told him that he implicated Dhinsa because the “feds” wanted him “bad,” see Johnson Aff. ¥ 11, such testimony would hardly have negated the overwhelming evidence of defendant’s involvement in the murder plots. Rather, such testimony would have been plainly cumulative, given Mr. Shargel’s highly effective cross-examination of Dodson utilizing Dodson’s own taped conversations with Christopher Reese. In those tapes, Dodson makes far more damaging claims than those purportedly made to Johnson. Moreover, Johnson, a convicted felon serving a life sentence for witness tampering, robbery and narcotics distribution, see United States v. Johnson, 181 F.3d 83, 1999WL 357835 (2d Cir. 1999)(attached as Government Exhibit 1), would hardly have been a credible witness. In short, the decision not to call Johnson was clearly a rational’, strategic choice. Similarly, Dhinsa’s claim that Shargel was ineffective for failing to call Surander Parmer or Margie Jackson falls far short. Notably, Dhinsa submits an affidavit from neither potential witness, suggesting the likelihood that they would actually have testified to the facts set forth in the memorandum and telephone call, respectively, was remote. Indeed, Surander Parmer, who invoked his Fifth Amendment rights and refused to testify before the grand jury, (see government exhibit 2), would have been unavailable as a witness. In any event, the fact that the Second Circuit vacated the count of conviction to which his testimony would have pertained — the communication of the threat to murder Balwant Singh — renders his potential testimony completely irrelevant. Finally, as defense counsel knew from receiving the 3500 material, Margie Jackson would have provided testimony extremely damaging to Dhinsa, as she placed his car near A-92 the scene of the Satinderjit murder in a manner consistent with Dodson’s testimony. See Government Exhibit 3. Dhinsa’s affidavit does not identify how, if at all, her testimony would have been helpful to him. While Dhinsa’s current counsel asserts that Jackson “would have offered testimony that [Dhinsa] was not present at the scene,” see Kozyra Aff. J 19, the transcript attached to the motion of the conversation between Jackson and Christopher Reese does not support that assertion. Moreover, had she testified to that effect, she would have been brutally impeached by her prior statements to government investigators — a fact of which Mr. Shargel was well aware. In light of the above, electing not to call Margie Jackson or Surander Parmer was clearly a reasonable, strategic choice. In short, Dhinsa’s trial counsel provided him with effective assistance and the jury’s verdict should not be disturbed. Conclusion For the reasons outlined above, it is respectfully requested that the defendantpetitioper’s petition pursuant to 18 U.S.C. § 2255 should be summarily denied in all respects. Alternatively, if the Court wishes to eSand.the record on the “performance” prong, it is requested that a limited hearing be held for the sole purpose of taking testimony on that issue. Dated: Brooklyn, New York September 22, 2003 Respectfully submitted, ROSLYNN R. MAUSKOPF United States Attorney Eastern District of New York 147 Pierrepont Street Brooklyn, New York 11201 = ____. BEST AVAILABIF PPY a Catherine Friesen Ronald White Assistant U.S. Attorneys (Of Counsel) 181F.3d83 (Table) Unpublished Disposition (Cite as: 181 F.3d 83, 1999 WL 357835 (2nd Cfr.(N.Y.))) H NOTICE: T THIS IS AN UNPUBLISHED OPINION. (The Courts decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. Use Fl CTA2 s 0.23 for rules regarding the citation of unpublished opinions.) — United States Court of Appeals, Second Circuit. UNITED STATES of America, Appellee, Vu Walter JOHNSON, also known as King Tut, also known at Tut, Defendant-Appellant. No. 9 8-1455. May 20, 1999. Appeal from the United States District Court for the Eastern District of New York (Block, J.). Kevin lames Keating, Esq., Garden City, for Appellant. Kelley Anne Moore, Assistant United States Attorney (Zachary W. Carter, United States Attorney for the Eastern District of New York) Brooklyn, for Appellee. A-95° Present: WALKER, Jr., POOLER, CJ., and MOTLEY, [*] D.J. FN* The Honorable Constance Baker Motley, Seoior Judge of the United States District Court for the Southern District of New York, sitting by designation. **] UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED. Defendant-appellant Walter Johnson appeals from th LiJy 3Q 1998 judgment of the district court convicting him, following a jury trial, of one count of conspiracy to obstruct interstate commerce by robbery, in violation of 18 U.S.C. § 795/; one count of attempt to obstruct interstate commerce by robbery, in violation of 18 U.S.C. § 1951; one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846 and § 841(b)(1)(A); one count of attempt to possess.:with intent to distribute cocaine, in violation of 21 U.S.C. § 846 and § 841(b)(1)(A); and one count of witness tampering, in violation of 18 U.S.C. § 1512. The district court sentenced Johnson to mandatory life imprisonment on three of the counts of conviction. pursuant to 18 U.S.C. § 3559(c)(1) (the ‘Three Strikes” statute) and two terms of life imprisonment for the other two convictions. All of Johnson’s life sentences are to run concutrenfly. Johnson contends that there was insufficient evidence to support the jury’s verdict with respect to the witness tampering count; that he was denied a fair trial because the A-96 district court failed to give the jury a multiple conspiracies charge; and that the Three Strikes statute is unconstitutional. We consider each of these arguments in turn. First, we find that there was sufficient evidence to support the jury’s verdict on the witness tampering charge. The jury . found Johnson guilty of witness tampering for his actions on or about February 5, 1996. The evidence at trial shoed that, on that date, Johnson and others robbed Crystal Winslow of a mink coat and earrings. This was the third robbery of Winslow by the same group, the other two robberies having had as their object sotne 30 kilograms of cocaine allegedly in the possession of Winslow’s boyfriend. Winslow testified that, during the February 5 robbery, Johnson gave her “a list of demands of things to do and things not to do ... like get in my vehicle and to drive and don’t look back and don’t call the cops, don’t tell the police, and threatening me and my mother and things like that” The witness tampering statute prohibits the knowing use of “intimidation or physical force” or threats to “influence, delay, cir prevent the testimony of any person in an official proceeding.” 18 U.S.C. § 1512(b)(l). To prove witness tampering, the government need not establish that the defendant expressly stated that he would do harm; it is sufficient if the defendant’s words or conduct were_designed to arouse fear of harm. See United States v. Jol3n, 968 F.2d 208, 211 (2d Cir.1992). Nor must the government prove that the defendant knew of official proceedings or potential proceedings or that official proceedings were pending at the time of the alleged intimidation. See 18 U.S.C. § 1512(e)(1); United States v. Romero, 54 F.3d 56, 61-62 (2d ir.199S). Copr. © West 2003 No Claim to Orig. U.S Govt. Works : A-97 181 F.3d 83 (Table) (Cite as: 181 F.3d 83, 1999 ‘WL 357835, **1 (2nd Cir.(N.Y.))) See also United States v. Gabriel, 125 F.3d 89, 103 (2d Cir.1997). **2 Here, the jury determined that Johjason’s actions were intended to arouse fear of harm. We see no reason to disturb that finding. Although Johnson contends that his remarks during the February 6 robbery “amounted to nothing more than the typical exhortation not to disclose the crime cu77elttly being committed,” the jury reasonably could have inferred. that Johnson’s actions were designed to arouse far bf harm in Winslow should she cooperate with the police regarding the two previous robberies. See United States v. Tocco, 135 F.3d 116, 127 (2d Dir.), cert. denied sub noin. Ferranti v. United States, 523U.S. 1096, 118 S.Ct. 1581, 140 L.Ed.2d 795 (1998) {circumstantial evidence sufficient to support witness tampering conviction). Second, we turn to Johtuon’s argument that he was denied a fair trial on account of the district court’s failure to sua sponte give a multiple conspiracies charge. Johnson failed tO request such a charge at trial and to raise this issue below. Accordingly, he must demonstrate that the district court’s failure to give a multiple conspiracy charge constituted plain error. See Fed.R.Crim.P. 52(b); Gabriel, 125 F.3d at 96-. To establish plain error, a defendant must show “(1) error (2) that is plain [ ](3) that affects substantial rights,” Gabriel, 125 F.3d at 9, and (4) that “seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal brackets omitted). Even if plain rror is established, reversal lies within the discretion of the A-98 app ellata court. See United States v. Gonzalez 110 F.3d936, 945 (2d Cii. 1997). Johnsn has not established error, let alone plain error. A multiple conspiracies chargo is generally appropriate where the government has alleged a single, overarching conspiracy but a reasonable jury could find the existence of smaller, independent conspiracies, some of which the defendant did not participate in. See, e.g., United States v. Johansen, 56 F.3d 347, 350-51 (2d Cir. 1995). Here, the indictment alleged three separate conspiracies, (1) to disturb interstate commerce through robbery; (2) to possess with intent to distribute narcotics; and (3) to commit witness tampering--all of which Johnson was alleged to have been a central player in. We find no basis for a multiple conspiracy charge in this case. Third and finally, we turn to Johnson’s constitutional argument with respect to the Three Strikes statute, which he raises for the first time on appeal. This statute imposes mandatory life imprisonment on a defendant convicted of a serious violent felony, if that defendant has been convicted on separate occasions of two or more “serious violent felonies.” See 18 U.S.C. § 3559(c)(1)(A)(i). The statute both specifies certain federal crimes that qualify as “serious violent felonies” and provides a general definition for other crimes that qualify. **3 Johnson contends that the statute violates the Due Process Clause because it places the burden on a criminal defendant to prove that his crimes do not qualify as “serious violent felonies.” Johnson also argues that he was improperly denied a hearing on whether his crimes in this case constituted serious violent felonies within the meaning of the statute. Johnson raised only the latter argument below. A-99 Because Johnson failed to raise the unconstitutionality argument below, he must demonstrate plain error. This he cannot do. To establish plain error, a defendant must establish, inter alia, that the error was “plain.” See Olano, 507 U.S. at 735. “[E]rror is plain if it is clear or obvious under current law ... [or] so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant’s failure to object.” United ‘tates v. Gores 154 F.3d 34, 42-43 (2d Cir.1998) (intemal quotation marks and citations omitted). We do not find that the district court’s failure to sua sponte find unconstitutional the Three Strikes statute’s burden structure constituted ‘plain” error. There have been no decisions in this circuit on this issue, and other circuits have only begun to consider it See, e.g., United States v. Wicks, 132 F.3d 383, 388-89 (7th Cir.1997) (finding no due process violation in placing burden on defendant); United States v. Kaluna, 152 F.3d 1069 (9th Cii.) (finding due process violation), vacated and rehg in -banc granted 161 F.3d 1225 (9th Cir.1998). Accordingly, we do not find that the alleged error was plain. See Gore, 154 F.3d at 43 (noting diffiauity of proving plain, error where tbis.circuit has not spolcn on an issue and there is a split in other circuits). With respec to the district court’s denial of a hearing on the qualifying offenses, we find that there was no error. While a defendant has a night to be . haard before a district cmirt determines a sentencing fact, that opportunity ntuy be limited to mitten Copr. © West 2003 No Claim to Ong. U.S. Govt. Works * 181 F.3d 83 (Table) (Cite as: 181 F.3d 83, 1999 WL 37835, **3 (2nd Cir.(N.Y.))) submissions if the judge properly views the matters as not reasonably in dispute. See United States v. Garcia, 900 F.2d 571, 574 (2d Cir.1990). See also United States vy. Oberle, 136 F.3d 1414, 1423 (10th Cir.), cart. denied, 525 U.S. 885, 119 A-100 S.Ct. 197, 142 L.Ed.2d 161 (1998)(hearing warranted under Three Strikes Statute only where defendant “tenders &vidence to deny the seriousness of the former convictions or to deny that the prior cSnvictions pertained to him”) Here, Johnson did not dispute that he had committed two prior felonies that constituted “serious violent felonies” under the Three Sirikes statute. He sought a hearing solely to establish that his convictions in this case dict not qualify as violent felonies within the meaning of the statute. To that end, Johnson proposed to call the government’s main witness, Crystal Winslow, to review her testimony regarding the circumstances of the crimes of which the jury convicted him. The district court found that there was nothing to be “accomplished by recalling” this witness to the stand. In these circumstances, we find that there was no error in denying Johnson aheari [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1336%3A2. Public record. Not legal advice.