UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIR E

Mohammed Reza Enavat

V .

United States of America

Civil No . 07-cv-72-JD

O R D E R

Mohammed Reza Enayat was convicted of receiving a stolen

security, specifically a check in the amount of $113,800 . He

moved for relief under 28 U .S .C . § 2255 on the ground that his

trial counsel provided constitutionally ineffectiv e

representation . Enayat argued that his attorney erroneously

advised him to reject an advantageous plea agreement, failed to

request a continuance to allow more time to prepare for trial,

failed to request a handwriting analysis and impeachment

materials about a government witness, Beruz Jalili, failed to

introduce evidence about the markup taken on Persian rugs, and

otherwise failed to present an adequate defense . The court

denied Enayat's motion on all grounds .

Enayat moved for reconsideration on his claims that his

attorney provided constitutionally ineffective assistance by

advising him to reject the plea agreement and by failing to

request the government's analysis of Jalili's handwriting .

Enayat agreed with the government that a hearing was not

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necessary . In his motion for reconsideration, however, he

requested a hearing to address the two claims . The government

did not respond to the motion for reconsideration .

A hearing was held on March 13, 2008 . Enayat and his wife

testified in support of his claims . The prosecutor in the

criminal case, Terry Ollila ; Enayat's former counsel, Robert

Jubinville ; Bureau of Immigration and Customs Enforcement

("BICE") Special Agent Bleezarde, and Federal Bureau of

Investigation ("FBI") Special Agent Mulvaney testified . '

Discussion

To prevail on an ineffective assistance of counsel claim ,

Enayat "must show both that counsel's representation fell below

an objective standard of reasonableness and that there exists a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different ."

United States v . De La Cruz , 514 F .3d 121, 140 (lst Cir . 2008) .

A reasonable probability of a different outcome is the prejudice

component of the analysis . Id . In considering an ineffective

assistance of counsel claim, the court may address only th e

'The activities now performed by BICE were formerly the

responsibility of the Immigration and Naturalization Service, as

provided by the Homeland Security Act of 2002 . See Clark v .

Martinez , 543 U .S . 371, 374 n .1 (2005) .

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prejudice component if that is dispositive . Id .

A . Plea Agreemen t

Enayat is a resident alien, whose native country is Iran .

Because of that status, his original counsel in the criminal

proceeding, William Christie and Steven Gordon, were concerned

about the effect of a conviction on his eligibility for removal .

They retained an immigration attorney, Desmond Fitzgerald, to

advise them about the removal implications in the case .

8 U .S .C . § 1227(a)(2)(A)(iii) provides grounds for removal

of an alien who is convicted of an aggravated felony . The

definition of aggravated felony includes a conviction for "a

theft offense (including receipt of stolen property) or burglary

offense for which the term of imprisonment [is] at least one

year" and "an offense that - - involves fraud or deceit in which

the loss to the victim or victims exceeds $10,000 ." 8 U .S .C . ~

1101(a)(43)(G) & (M) .

Christie and Gordon negotiated a plea agreement with the

government that was intended to address issues which would affect

Enayat's eligibility for removal if he were convicted of the

crime charged . Under the agreement, the government would have

recommended that Enayat be sentenced to five months of

imprisonment and five months of home confinement (a sentence o f

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less than one year), to avoid having the crime qualify as an

aggravated felony pursuant to § 1101(a)(43)(G) . In addition,

counsel discussed with the prosecutor, Terry Ollila, whether the

indictment could be amended to delete any reference to the amount

of the stolen check, which was $113,800, because an amount in

excess of $10,000 would make the offense an aggravated felony

under § 1101(a)(M) .

Before seeking approval for an offer to amend the charge

against Enayat, Ollila talked to BICE Special Agent Bleezarde and

to a government immigration attorney in Boston about whether the

proposed amendment would avoid having Enayat's offense qualify as

an aggravated felony under § 1101(a)(M) . Ollila was told that

because other documents in the case revealed the amount of the

stolen check and because the amount would be disclosed during

sentencing, an amendment of the indictment would not prevent the

crime from being an aggravated felony under § 1101(a)(43)(M) . As

a result, Ollila did not propose that provision .

Enayat had previously been represented in another matter by

Attorney Robert Jubinville and had remained friendly with him .

While he was represented by Christie and Gordon, Enayat discussed

his case with Jubinville, who recommended that he not accept the

plea offer because any prison term would result in his being

eligible for removal . Fitzgerald, who was working with Christi e

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and Gordon, advised that the offered plea agreement gave Enayat

the best defense against removal but could not guarantee that he

would not be subject to removal proceedings based on th e

conviction . After weighing the advice he was getting, Enayat

decided not to accept the plea, concluding that his best chance

of avoiding removal was to be acquitted on the crime charged . He

discharged Christie and Gordon and hired Jubinville to represent

him for trial .

Enayat was convicted following a guilty verdict in January

of 2005 . He was sentenced to eighteen months of imprisonment and

was required to make restitution in the amount of $93,800 . On

appeal, Enayat argued that the district court improperly denied

his motion for judgment of acquittal and his motion for a new

trial . The First Circuit affirmed in a mandate issued on

February 23, 2007 .

BICE Special Agent Bleezarde was notified that Enayat's

criminal case was complete after the conclusion of his appeal .

In a notice of removal proceedings, he charged that Enayat,

having been convicted of an aggravated felony under §

1127(a)(2)(A)(iii), was subject to removal because his sentence

of imprisonment was longer than a year and because his crime

involved fraud or deceit and the loss to the victim exceeded

$10,000 . See Plaintiff's Ex . H . Bleezarde also charged tha t

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Enayat was subject to removal because he was convicted of a crime

of moral turpitude within five years of the date of his last

admission to this county, under 8 U .S .C . § 1127(a)(2)(A)(I) .

Enayat was served with notice of the removal proceedings on March

29, 2007 . The immigration judge found that Enayat was subject to

removal on both grounds under § 1127(a)(2)(A)(iii), but not under

§ 1127(a)(2)(A)(I), because his admission had not been within

five years of his conviction .

Enayat argues that Jubinville provided constitutionally

ineffective representation by advising him to reject the plea

agreement on the mistaken belief that a conviction wit h

imprisonment of any length would subject him to removal

proceedings . He contends that he was prejudiced by that advice

because he rejected a plea offer that would have allowed him to

serve only five months in prison, instead of his sentence of

eighteen months, and would have avoided the removal charges based

on a sentence of more than one year under § 1101(a)(43)(G), and

the amount of the check, under § 1101(a)(43)(M) . The evidence

does not support Enayat's position with respect to the amount of

the check .

The testimony at the hearing showed that Christie, Gordon,

and Ollila discussed the possibility of changing the charging

document to an information that would charge Enayat wit h

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receiving a stolen security in an amount greater than $5,000 in

violation of 18 U .S .C . § 2315 . Ollila would have needed approval

to actually offer that part of the agreement, however . When she

researched the issue and found that the proposed change would not

have avoided the removal consequences, however, she did not seek

approval and did not offer that as part of the plea agreement .

In addition, the proposed change in the charging document

would not have avoided removal based on an aggravated felony,

defined in § 1101(a)(43)(M) as a crime of fraud or deceit

involving more than $10,000, because the amount of the stolen

check was readily available to BICE and would have been obtained

by that agency from the record in the case, FBI reports, the

pressentence investigation report, the sentencing proceeding, and

the judgment which required restitution .2 Because Enayat would

have been subject to removal under § 1227(a)(2)(A)(iii) even if

he had been offered and had accepted the plea agreement with a

recommended sentence of five months imprisonment and five months

home confinement and an amended charging document, Jubinville's

advice to reject the offer did not result in any prejudice .

The bottom line is that all of Enayat's attorneys told hi m

2 Because the immigration judge found that receiving th e

check in violation of § 2315 was a crime of fraud or deceit under

§ 1101(a)(43)(M), that issue is not considered here .

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that a conviction, whether by guilty plea or by jury, carried

with it removal consequences . He considered all of the advice he

had received, weighed his options, and voluntarily made a

strategic decision to go to trial with the hope of gaining an

acquittal, thereby avoiding removal . He was convicted and now

faces the same removal consequences as he would have faced had he

entered a guilty plea under the plea agreement that was being

proposed .

B . Handwriting Analysi s

The stolen check was mistakenly put into Beruz Jalili's

business post office box . Jalili discussed the check with his

friend, Enayat, and then sent the check to him . Enayat delivered

the check to his friend, Stuart Carpenter, who owned a car

dealership, and asked Carpenter to deposit the check in his

business account, which he did .

The check was made payable to Innuendo, LLC, from QAD, Inc .

and had been endorsed "Innuendo, LLC" when it was deposited by

Carpenter . When the check was returned to QAD with a forged

endorsement and QAD contacted the bank, the FBI began an

investigation that led to Enayat .

Jalili testified as a government witness at trial . During

his testimony, Jalili stated that the FBI had taken a sample of

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his handwriting for analysis . Enayat contends that Jubinville

should have requested the handwriting analysis to determine

whether it supported a theory that Jalili endorsed the check,

which would undermine Jalili's credibility as a witness against

him .

In opposition to Enayat's motion for § 2255 relief, the

government contended that Enayat was not prejudiced by

Jubinville's failure to request the handwriting analysis because

no handwriting analysis was ever done and because evidence that

Jalili endorsed the check would not be sufficient to show a

reasonable probability that the outcome of the criminal case

would have been different . The government, however, failed to

provide any evidence to show that no handwriting analysis was

ever done . The court agreed that evidence that Jalili forged the

endorsement was not sufficient to support the ineffective

assistance claim . However, the court ordered the government to

produce evidence at the hearing concerning whether any

handwriting was ever taken .

At the hearing, FBI Special Agent Mulvaney, who investigated

the case, testified that no handwriting sample was ever taken

from Jalili and no analysis was ever done of his handwriting . He

testified that neither he nor the other FBI agent who was briefly

involved with Jalili in California asked for or obtained a

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handwriting sample . He also explained the process of obtaining a

handwriting sample and a handwriting analysis and the documents

that are generated during that process, none of which exist in

this case . Therefore, Enayat was not prejudiced by Jubinville's

failure to request an analysis that did not exist .

Conclusion

For the foregoing reasons, the plaintiff's motion fo r

reconsideration (document no . 21) is denied .

SO ORDERED .

/s/ Joseph A . DiClerico, Jr .

Joseph A . DiClerico, Jr .

United States District Judge

March 14, 200 8

cc : Edward Juel, Esq .

Aixa Maldonado-Quinones, Esq .

Robert Veiga, Esq .

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