The opinion of the court was delivered by: Steven J. McAuliffe United States District Judge
Petitioner was convicted, based on his guilty pleas, of four offenses involving racketeering and fraud.*fn1 He was sentenced to 168 months of imprisonment on each conviction, to run concurrently, and was ordered to pay special assessments and restitution. Petitioner seeks relief from his convictions and sentences under 28 U.S.C. § 2255.
Section 2255 provides relief "only when the petitioner has demonstrated that his sentence (1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack." Moreno-Morales v. United States, 334 F.3d 140, 148 (1st Cir. 2003) (internal quotation marks omitted). The fourth category "includes only assignments of error that reveal fundamental defects which, if uncorrected, will result in a complete miscarriage of justice, or irregularities that are inconsistent with the rudimentary demands of fair procedure." Id. The petitioner bears the burden of showing that he is entitled to relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998).
On October 7, 2002, petitioner, along with fifteen others, was indicted on charges of RICO violations and conspiracy to commit wire and mail fraud, related to an organized and widespread telemarketing scheme operated out of Canada and aimed at defrauding gullible and vulnerable people, including United States citizens. United States v. Taillon, 02-cr-153-SM (D.N.H. Oct. 7, 2002). A superseding indictment was filed on September 8, 2004. Most of petitioner's co-defendants had already pled guilty by the end of 2008.
The government also brought a civil forfeiture proceeding against funds linked to the telemarketing scheme - funds that had been seized from the accounts of certain banks, including the Union Bank for Savings and Investment of Jordan. United States v. Bank of New York 7173, 02-cv-472-PB (D.N.H. Oct. 18, 2002). Union Bank was represented in that forfeiture proceeding by attorneys associated with the firm of Orr & Reno, P.A. That fact is noteworthy, because later on petitioner was also represented by an attorney associated with Orr & Reno.
The government initially seized $2,343,905.33 from Union Bank's U.S. interbank account, held at the Bank of New York. Approximately a year later, it seized an additional $501,228.18 from the same account. United States v. Union Bank for Savings & Investment (Jordan), 487 F.3d 8, 11 (1st Cir. 2007). After $30,000.00 was released, the total seizure amounted to more than $2.8 million. Id. The government alleged in the civil forfeiture action that the funds seized consisted of "proceeds of a Canadian telemarketing fraud scheme that victimized American citizens." Id. The perpetrators of the fraud, alleged to be petitioner and his co-defendants, told their victims that they had won large Canadian sweepstakes or lottery prizes, but that they had to send cashier's checks in varying amounts to post office boxes in Montreal to cover expenses associated with delivering those prizes. Id.
The perpetrators of the fraud then sold the cashier's checks obtained from victims, and those checks eventually were resold to a money exchange business in East Jerusalem, Israel, operated by the Esseileh family. Id. at 11-12. The checks were then deposited into accounts held by an Esseileh family member at Union Bank. Id. at 12. Union Bank transmitted the checks to its U.S. interbank account at the Bank of New York, and the Bank of New York presented the checks to the issuing banks for payment, crediting Union Bank's account with the funds obtained. Id.
When the issuing banks did not attempt to reverse payment on any of the checks, the credit in the Union Bank account became final. Id.
Union Bank appeared in the forfeiture action and filed a claim to the funds seized from its U.S. interbank account at the Bank of New York. Id. at 13. In support of its claim, Union Bank argued that it was "an innocent owner of the [seized] funds," and so was entitled to recover. Id. The government countered that Union Bank was not an owner of the funds at all, and lacked both standing and any statutory basis upon which to challenge the forfeiture. Id. The district court concluded that Union Bank was not the owner, for purposes of forfeiture, of $2.1 million of the seized funds, which left approximately $660,000 in dispute. Id. at 14. After the parties settled some disputed issues, Union Bank appealed the ruling that it was not the owner of $2.1 million of the seized funds, and the government cross- appealed the disposition of $80,000, which the parties agreed depended on whether Union Bank was the owner of those funds. Id.
The Court of Appeals for the First Circuit concluded that the Esseilehs, not Union Bank, owned the funds at the time of the seizure. Id. at 18-22. Therefore, Union Bank was not the owner of any of the seized funds, and did "not have the statutory right to assert an innocent owner defense to the forfeiture." Id. at 22. Judgment was entered in the civil forfeiture case on July 25, 2007.
Much earlier, petitioner had been arrested in Canada, but he was released pending extradition proceedings. He failed to appear at an extradition hearing on October 26, 2003, and fled from Canada. He was eventually found and arrested in France, on November 4, 2007. And, he was finally extradited to the United States in December of 2009 to face the described criminal charges. On December 14, 2009, Attorney Robert S. Carey, of Orr & Reno, P.A., was appointed to represent petitioner, and he was arraigned on the superseding indictment.
On October 7, 2010, petitioner pled guilty to Counts 1, 2, 3, and 8 of the indictment, pursuant to a written plea agreement with the government. He was sentenced to 168 months of imprisonment as to each count, to be served concurrently, and three years of supervised release. He was ordered to pay a ...