United States v. Baig

UNITED STATES OF AMERICA, Plaintiff, v. SHANNAWAZ¹ BAIG, Defendant.

Case No. 13-cr-0351 (SFJ)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 11, 2020

Order Denying Petition for Writ of Coram Nobis

FEUERSTEIN, S., Senior District Judge:

I. Introduction

Defendant Shannawaz Baig (hereafter, "Shannawaz") petitions this Court for a writ of coram nobis seeking to vacate his conviction on the grounds that the restitution order imposed was unsupported by law and that the Government withheld exculpatory evidence by failing to disclose a lack of proof that Shannawaz participated in the charged conspiracy during the applicable limitations period. (See ECF No. 334; hereafter, the "Petition".) The Government opposes Shannawaz's Petition (see ECF No. 339; hereafter, the "Opposition" or "Opp'n") stating his "argument concerning restitution amounts to a belated attempt to reargue what he already raised on appeal," and "[h]is Brady claim constitutes an attempt to repackage his decision to plead guilty and forgo further discovery as a constitutional violation" which "is wholly without legal or factual support." (Id. at 6.) For the reasons that follow, the Petition is denied.II. Relevant Background

A. Factual Background²

Between January 2000 and June 2013, Shannawaz participated in a scheme, organized and led by his brother Farrukh Baig ("Farrukh"), to employ more than one hundred undocumented workers at various 7-Eleven franchise stores (hereafter, the "Farrukh-Led Scheme") that were owned or controlled by Farrukh and that were located in New York and Virginia (hereafter, the "Farrukh Stores"³). Shannawaz was fully aware of the scope of the scheme. For his part, Shannawaz, managed the Farrukh Store located in Greenport, Long Island until November 2007, as well as co-owned property with Farrukh were some of the workers were harbored. In November 2007, Shannawaz moved to Virginia Beach, Virginia, where he bought a 7-Eleven franchise store with a loan guaranteed by Farrukh (hereafter, the "Virginia Beach Store").

B. Procedural Background

1. The Indictment

On June 12, 2013, a grand jury indicted Shannawaz, Farrukh, Farrukh's wife, Zahid Baig (Shannawaz's and Farrukh's brother), as well as Malik Yosaf, Ramon Nanas and Tariz Rana, on various charges related to the Farrukh-Led Scheme and carried out at the Farrukh Stores, including, inter alia, "Conspiracy to Conceal and Harbor Illegal Aliens for Financial Gain" (Count II). (See Indictment, ECF No. 1.) Based upon the Indictment, on June 17, 2013, Shannawaz and the other defendants were arrested.

2. The Plea Agreement and Plea Allocution

On September 22, 2014, Shannawaz entered into a plea agreement with the Government. Among other things, Shannawaz agreed to plead guilty to Count II of the Indictment (see Presentence Report "PSR" (ECF No. 184) at 1) and that any restitution was "[t]o be determined by the Court (18 U.S.C. §§ 3663 and 3663A)." (See Plea Agreement, ¶1(e).) Shannawaz further agreed to waive certain rights, including, inter alia, his right to challenge his conviction or sentence, pursuant to 28 U.S.C. § 2255 or any other provision, if the Court imposed a term of imprisonment of 24 months or less," and his right to "additional disclosure from the government in connection with the guilty plea." (Plea Agreement, ¶4 (emphasis added).)

On the same day, Shannawaz consented to the Magistrate Judge accepting his plea. (See Sept. 22, 2014 Plea Hr'g Tr. (ECF No. 159; hereafter, "Plea Tr.") 3:19-4:1.) During the plea hearing, Magistrate Judge Locke asked Shannawaz, inter alia, whether he had read the Plea Agreement and discussed it with his attorney, to which Shannawaz affirmatively replied (see id. at 9:1-4). Thereafter, the Government stated that, as part of the Plea Agreement, Shannawaz was agreeing to restitution in an amount to be determined by the Court (see id. at 9:15-16). When asked if he was aware of the elements of the crime to which he was pleading guilty, Shannawaz confirmed that he was. (See id. at 9:21-10:1; see also id. at 10:8-15.) Shannawaz further confirmed that he did not have any questions he wished to raise regarding "the charges, [his] rights, or anything else related to this matter[.]" (Id. at 12:25-13:3.) Thereafter, of his free will, Shannawaz voluntarily plead guilty to Count II of the Indictment (see id. at 13:15-14:5), specifically confessing:

[SHANNAWAZ]: From January 1, 2000 to November 1, 2007, I agreed with others to employ and harbor undocumented aliens at the 7-Eleven franchise store located in the Town of Greenport, Suffolk County, New York, and that my role in this agreement wasas the manager of this 7-Eleven franchise store that was owned by Farrukh Baig during this time period. This agreement was also made to profit from the labor and services provided by these aliens.

(Id. at 14:9-16.) Of import, Magistrate Judge Locke followed this allocution with a colloquy with the Government:

THE COURT: Okay. Thank you. I just have one question for my own clarification. I'm noticing in the allocution the date comes up as November 1, 2007. What's the statute of limitations?

[THE GOVERNMENT]: Your Honor, the statute of limitations is five years. However, the conspiracy continue[d] on until 2013 including - - if you need a further colloquy, just let me know. However, in broad strokes Mr. Baig went to work and manage[d] another store in Virginia along with other of his brothers and some of the misappropriated identities went down to Virginia as well and were being used there certainly as recently as 2012.

THE COURT: The idea being that the conspiracy is ongoing to the point within the statute of limitations but the conduct discussed here happened up until 2007. Is that correct?

[THE GOVERNMENT]: That's what he's allocuting to here today.

(Id. at 15:4-20 (emphasis added).) Thereafter, the Magistrate Judge recommended that the undersigned accept Shannawaz's guilty plea. (See id. at 15:20-25; see also ECF No. 143.) Significantly, before concluding the plea hearing, Magistrate Judge Locke asked the parties four times whether they had any further issues to address. (See id. at 15:25 ("Anything else?"); 16:8 ("Anything else, [defense counsel]?"); 16:11 ("Anything else from either side?"); and 16:14 ("[Defense counsel], anything else?").) Other than addressing the tentative sentencing date, no issues were raised.

3. Presentencing and Sentencing

Thereafter, the Probation Department prepared a presentencing report ("PSR")(see ECF No. 184) stating, inter alia, that Shannawaz "agreed to pay restitution in an amount determinedby the Court." (PSR, ¶25.) It further reported that Shannawaz: "did not supervise other criminal participants," but his "involvement in the instant offense was significant, as he managed a number of the 7-Eleven stores" (id. at ¶28); had purchased the Virginia Beach Store, which "was financed by a bank loan . . . (for $249,000), guaranteed by [Shannawaz]'s brother Farrukh Baig"⁴ (id. at ¶87); and, owned real property in Sag Harbor, New York, with Farrukh (see id. at ¶93; see also id. at ¶56). The PSR was amended three times, with each addendum addressing various arguments Shannawaz raised regarding the imposition of restitution. (See ECF No. 219 (PSR Addendum) (including updated restitution amount of approximately $1,250,000; noting Shannawaz's claim of minimal involvement in conspiracy and complaint that the Probation Department did not adequately investigate victims' alleged losses); ECF No. 249 (PSR Second Addendum)(noting Shannawaz's: continued attempt to minimize his conduct; unadorned complaint that he is not accountable for restitution; repeated complaint about the Probation Department's lack of contact with victims); and ECF No. 251 (PSR Third Addendum)(suggesting that Shannawaz's relentless reiteration of minimal involvement in the conspiracy is tantamount to denial of acceptance of responsibility and highlighting Shannawaz's attempt to evade the restitution provision in his Plea Agreement that he would pay restitution in the amount determined by the Court).)

In its Sentencing Memorandum (see ECF No. 208), the Government's overarching position was that "[i]t appears that Shannawaz does not accept responsibility for the crimes of the entire conspiracy. Also, unlike all of the other conspirators, Shannawaz Baig does not agree that he owes any restitution to the employee victims of the scheme." (ECF No. 208 at 1-2; seealso id. at 6 (Part VIII) ("Shannawaz Baig argues that he is only responsible for restitution for the specific conduct to which he allocated during his guilty plea.").) However, since Shannawaz's "role [wa]s very different from some of his codefendants" as he "did not have broad supervisory authority over several stores" and "did not earn millions of dollars from this fraud" (id. at 1; see also id. at 4 (Part II(A))), the Government requested the "Court issue a restitution order of $1,253,343.48" (id. at 6 (Part VIII)), which request was supported by the same sealed appendix submitted in support of the restitution amount that was imposed upon his brother, Zahid, and incorporated into Zahid's Judgment Order. (Cf., ECF No. 208-1 (sealed) (hereafter, "Appendix A") (identifying the victims of the charged conspiracy and the amounts due to them), with ECF No. 197-1 (sealed) (Appendix A, attached to Government's Sentencing Memorandum regarding Zahid); see also ECF No. 214-2 (sealed) (Appendix A, attached to Zahid's Judgment).)

Indeed, in his Sentencing Memorandum, Shannawaz argued, inter alia, that: unlike Farrukh, he did not gain any financial reward from the conspiracy, which was "precisely why" he "moved to Virginia Beach, Virginia to acquire his own 7-Eleven franchise store," albeit with a loan guaranteed by Farrukh (ECF No. 247 at 2); and, he should not be subjected to the same restitution as his co-conspirators, because of his de minimus role in the conspiracy, i.e., restitution imposed upon him should be limited to...