U.S. v. Khan

325 F.Supp.2d 218

UNITED STATES of America, v. Ali Sher KHAN, Defendant.

No. 02-CR-1242 JBW.

United States District Court, E.D. New York.

July 20, 2004.

Barry G. Rhodes, Peter Kirschheimer, The Legal Aid Society Federal Defender Division, Brooklyn, NY, for Defendant.

Lee Joshua Freedman, Brooklyn, NY, for Plaintiff.

AMENDED MEMORANDUM ORDER & JUDGMENT

JACK B. WEINSTEIN, Senior District Judge.

TABLE OF CONTENTS

 I.   Introduction ............................................................... 219
II.   Facts ...................................................................... 220
      A. Crime and Original Sentence ............................................. 220
      B. Appeal .................................................................. 220
III.  Defendant's Background ..................................................... 221
      A. Personal ................................................................ 221
      B. Financial ............................................................... 222
IV.   The Guidelines are not Dead ................................................ 223
V.    Jury and Court Cooperation in Sentencing ................................... 225
      A. Rationale of Blakely .................................................... 225
      B. Inherent Difficulty in Determining "Original" Meaning of Jury Trial...... 226
      C. Discretion of Trial Court to Utilize Varying Procedures ................. 226
      D. Historical Discretion of Court .......................................... 227
      E. Historical Discretion of Jury ........................................... 228
      F. Legislatively Recognized Jury Sentencing Power .......................... 231
      G. Modern Decreased Use of Juries .......................................... 231
      H. Summary ................................................................. 232
      I. Waiver by Parties ....................................................... 232
VI.   Sentencing Under Guidelines Section 2S1.3(b)(2)............................. 232
      A. Applicable Guideline and Supporting Facts................................ 232
      B. Conspiracy .............................................................. 233
      C. Non-application of Feeney Amendment ..................................... 233
VII.  Conclusion ................................................................. 234

I. Introduction

This case reflects some of the many sentencing issues raised by the numerous appeals in criminal cases; they arise because of the need to follow mechanical and often harsh sentencing guidelines while taking account of the manifold differences in the human condition. Often, as in the case of this defendant, a recent Pakistani immigrant who prospered as a businessman and was returning to his homeland to share some of the proceeds of his success, the court may not fully understand his milieu.

In Blakely v. Washington, the Supreme Court invalidated the State of Washington's sentencing guidelines under the Sixth Amendment to the extent that they authorized judicial fact-finding of enhancement factors warranting a sentence above the applicable guidelines range. ___ U.S. ___, 124 S.Ct. 2531, ___ L.Ed.2d ___ (2004). Blakely does not — as some have speculated — constitute the death knell of the Federal Sentencing Guidelines. Compare United States v. Croxford, 324 F.Supp.2d 1230, ___, 2004 WL 1521560, *6 (D.Utah July 7, 2004) ("[T]he inescapable conclusion of Blakely is that the federal sentencing guidelines have been rendered unconstitutional in cases such as this one."), with United States v. Pineiro, 377 F.3d 464, 2004 WL 1543170 (5th Cir. July 12, 2004) (declining to extend Blakely to the federal guidelines). See also Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (strongly supporting Guidelines' constitutionality as appropriate delegation of legislative powers and lack of violation of separation of powers, over dissent of one Justice). Blakely does provide Congress, the courts and the Sentencing Commission with an opportunity and obligation to reevaluate and revise the Guidelines. They are presently, in general (but not as applied in the present case), overly rigid, overly complex, overly harsh, and overly expensive to taxpayers and society. Blakely's reintroduction of the jury into the present sentencing process suggests the desirability of making the Guidelines discretionary guideposts — as their name implies — rather than mandatory precepts, inflexible commands.

An appropriate sentence requires an appreciation of the subtle socioeconomic factors defining and explaining the defendant. Yet the judge is often unlikely to possess detailed knowledge or appreciation of the defendant's background with its subtle cultural and linguistic characterizations — usually so different from the court's: high status, relatively large income, assured medical care, well-to-do friends in high places, and the skills to take advantage of the system and to avoid its pitfalls. Cf. Anna Wierzbicka, On Happiness: A cross-linguistic and cross cultural perspective, Daedalus, 34 (Spring 2004).

There are occasions — and this arguably is one of them — where an advisory jury selected from a representative cross section of the community may serve to bridge the lifestyle and empathy gap between judge and criminal, providing the insights and the opportunity for a more humane and effective administration of justice. As indicated in Parts IV and V, infra, reliance on a jury in sentencing is possible for this purpose.

II. Facts

A. Crime and Original Sentence

Defendant and two of his Pakistani countrymen had labored in the chicken restaurant business. They had assembled substantial cash savings. As is apparently the wont of recent immigrants, they were returning to their homeland families with cash gifts wrapped for specific relatives; they also carried cash entrusted to them by co-workers. See, e.g., Elizabeth Becker, Latin Migrants to U.S. Send Billions Home, N.Y. Times, May 18, 2004 at C4 (quoting official at the Inter-American Development Bank: "We want to bring [the $30 billion sent by immigrants to relatives back home] out of the shadows so people understand the critical contribution these hard-working people are making."). The money was in the interstices of the bags of clothing they were taking with them.

As they were about to board their plane, representatives of the United States government asked them to declare any cash they carried in excess of $10,000. Ali Sher Kahn, the defendant, said he had only $12,800. A search of his bags revealed $293,266 — all of it legally earned by himself or the friends for whom he was transporting it. There was no hint that the cash was to be used to fund terrorist activity or for any other illegal purpose. He was arrested, detained, tried criminally, and became a defendant in a civil forfeiture suit for the cash that the government had seized.

After a jury trial, defendant was convicted of cash smuggling (31 U.S.C. § 5332(a) and (b)), making false statements (18 U.S.C. § 1001(a)(2)) and conspiracy (18 U.S.C. § 371). His sentence was three years of supervised release, five months of home confinement, a special assessment of $300 and a fine of $7,500. (The civil forfeiture suit is still pending.) The court departed downward twelve levels because of (1) defendant's family circumstances and (2) the potential negative impact of a prison sentence on the workers in the businesses he operated.

B. Appeal

Upon appeal by the United States from the downward departure — the government's view being that imprisonment of no less than forty-one months was required — the Court of Appeals for the Second Circuit reversed and remanded for resentence. It wrote in an unpublished opinion:

[T]he district court erroneously granted a downward departure based on Ali Khan's family circumstances and on account of his business and employees.

. . . . .

1. Family Circumstances

While it is possible that exceptional family circumstances may exist here, the district court's departure was erroneous based on the current record. The record does not suggest that Ali Khan was the primary — let alone sole — support. The record similarly shows nothing as to how Ali Khan's incarceration would affect those individuals. Curiously, the expense portion of Ali Khan's monthly net cash flow statement, which he submitted prior to sentencing as part of his personal financial statement, omits any mention of funds that he sends to support his extended family.

2. Business and Employees

"[B]usiness ownership alone, or even ownership of a vulnerable small business, does not make downward departure appropriate"; but a "departure may be warranted where ... imprisonment would impose extraordinary hardship on employees." United States v. Milikowsky, 65 F.3d 4, 9 (2d Cir.1995). The Milikowsky Court upheld a downward departure based on extensive documentary and testimonial evidence demonstrating that the defendant was indispensable to his two companies and to the continuing employment of more than 150 individuals. Id. at 8-9.

It is possible, as the district court found, that Ali is "the main spring in the enterprise and that it will not succeed without him;" but the record does not support the district court's decision to depart on this basis. Even though Ali maintains that "[h]e attends to the purchasing and every other detail" of the twelve-employee business, he testified also that one of his partners handles most of the paperwork. Ali concedes that the facts of his case are not as compelling as in Milikowsky. There is nothing in the record, other than Ali's self-serving and somewhat contradictory claims, indicating that Ali has unique skills essential to this enterprise, or that his two partners could not hire a new manager or do the work themselves.

* * * * * *

The current record does not support either basis, family or...