UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Mohammed Reza Enayat

v. Civil No. 07-cv-72-JD

United States of America

O R D E R

Mohammed Reza Enayat has moved pursuant to 28 U.S.C. § 2255

to vacate, set aside, or correct the sentence ordered by the

court following his conviction in United States v. Mohammed Reza

Enayat, No. 03-cr-82-JD. The United States has filed its

response. Enayat has filed a reply.

Background

Enayat owned an oriental rug store in Bedford, New

Hampshire. He is a native of Iran who became a permanent

resident alien in the United States in 1989. In the course of

doing business, Enayat became acquainted with Beruz Jalili, an

oriental rug distributor and store owner in Berkeley, California. 

In July of 2001, Jalili received a check for $113,800 in his

post office box. The check was from QAD, Inc. and was made

payable to Innuendo, LLC, which are both software companies

unrelated to Jalili. The check was mistakenly put into Jalili's

Case 1:07-cv-00072-JD Document 19 Filed 10/19/07 Page 1 of 17
1Mousakhani apparently also used the name Jack Moosa.

2

post office box, apparently because Innuendo's post office box

was next to Jalili's box. 

During that time, Jalili was helping a friend, Monsoor

Javanbakht, to collect proceeds from a liquidation sale of

Javanbakht's business after Javanbakht had returned to Iran. 

Jalili also had hired Javanbakht's former employee, Jalal

Mousakhani, to help with that process.1 Mousakhani found the

$113,800 check in Jalili's box when he picked up the mail, and he

attempted, unsuccessfully, to deposit it in Javanbakht's account. 

Mousakhani then showed the check to Jalili. Mousakhani also told

Enayat about the check.

Enayat discussed the check with Jalili during a telephone

conversation and asked to use it as part of a sales pitch to

impress some of his clients. The check was sent to Enayat, who

received it on July 31, 2001. Several days later, Enayat

delivered the check to Stuart Carpenter, the owner of Copley

Motor Cars in Boston, and asked Carpenter to deposit the check in

his business account. Enayat explained that he had received the

check from a customer in San Francisco who had purchased an

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2The check had been endorsed "DEP M. Javanbakht, Wells Fargo

account 003961351," which was scratched or whited out, and then

endorsed "Innuendo, LLC."

3

expensive rug. Carpenter deposited the check, which was endorsed

"Innuendo, LLC" and then paid debts owed by Enayat's business.2 

In October of 2001, Innuendo called QAD to ask about payment

for software services. QAD investigated and found that the check

had been sent, endorsed, cashed, and returned. QAD also

discovered that the endorsement was forged. The Bank of America,

which had paid on the forged endorsement, reimbursed Innuendo and

then debited that amount from Carpenter's account. Carpenter

contacted Enayat, who began to repay Carpenter.

Following an investigation by the FBI, Enayat was charged in

April of 2003 with receipt, possession, and disposal of a stolen

security. He was represented by Attorney William Christie until

November of 2004. He retained Attorney Robert Jubinville in

December of 2004. Enayat was tried and found guilty on the

charge of receipt, possession, and disposal of a stolen security

in January of 2005. Jubinville moved for judgment of acquittal

at the close of the government's case and filed a motion for a

new trial after the verdict. Both motions were denied. He was

sentenced to eighteen months in prison, three years of supervised

release, a penalty assessment of $100, and restitution to

Carpenter of $93,800. His conviction was affirmed on appeal. 

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The Immigration and Naturalization Service ("INS") began

removal proceedings based on Enayat's conviction. An INS "Notice

to Appear" was served on Enayat in March of 2007. The Notice

informed Enayat that he was subject to removal based on §§

237(a)(2)(A)(I) and (iii) of the Immigration and Naturalization

Act. 

Discussion

In support of his motion for § 2255 relief, Enayat contends

that his trial counsel, Robert Jubinville, provided

constitutionally ineffective representation. Specifically,

Enayat alleges that Jubinville gave him erroneous advice that

caused him to reject an offer of a favorable plea agreement, that

Jubinville failed to request a needed continuance to prepare for

trial, that he did not adequately investigate the case, and that

he did not present an adequate defense at trial. The United

States objects to Enayat's request for relief under § 2255.

When a federal prisoner seeks relief under § 2255, "a

district court must grant an evidentiary hearing on the

prisoner's claims unless 'the motion and the files and records of

the case conclusively show that the prisoner is entitled to no

relief.'" Owens v. United States, 483 F.3d 48, 57 (1st Cir.

2007). If no hearing is held, the prisoner's sworn allegations

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of fact are taken as true, although conclusory statements,

statements that conflict with the record, and statements that are

"inherently incredible" need not be considered. Id.

In this case, the court ordered the government to file a

response to Enayat's motion, which it has done. Enayat has filed

a reply to the government's response. Enayat and the government

agree that a hearing is not necessary to resolve the claims he

raises. 

Constitutionally ineffective assistance of counsel is

demonstrated in two steps. "[A] defendant must show that

'counsel's representation fell below an objective standard of

reasonableness,' and that 'the deficient performance prejudiced

his defense." Owens, 483 F.3d at 57 (quoting Strickland v.

Washington, 466 U.S. 668, 687-88 (1984)). Deficient performance

means "that counsel was not acting within the broad norms of

professional competence." Id. Prejudice occurs when "but for

counsel's deficient performance, there is a reasonable

probability that the outcome would have been different." Id. at

58.

A. Advice to Reject Plea Agreement

Enayat faults Jubinville for advising him to reject the

government's offer of a plea agreement. He contends that the

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offered plea agreement was favorable because he would have served

less time in prison and would have avoided the INS removal

proceedings. Enayat states in his affidavit that Jubinville

advised him to reject that offer because he would be immediately

deportable if he pled guilty based on the offered agreement.

Enayat's former counsel, William Christie, provided his

affidavit about the terms of the plea offer. He states that the

government offered to recommend a five month sentence of

incarceration followed by five months of home confinement and to

amend the indictment to allege that the stolen check was $5,000

or more rather than the actual amount. He also states that the

plea agreement was intended to permit Enayat to defend against

deportation proceedings based on the amount of the check.

The INS cited three grounds for removal proceedings. While

the plea agreement, as described by Christie, might have allowed

Enayat to defend against removal based on the cited parts of §

237(a)(2)(A)(iii) of the Act, the Notice also cited §

237(a)(2)(A)(I). Under subsection (I), as codified at 8 U.S.C. §

1227(a)(2)(A)(I), an alien "who is convicted of a crime involving

moral turpitude committed within five years . . . after the date

of admission and is convicted of a crime for which a sentence of

one year or longer may be imposed, is deportable." (Emphasis

added.)

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Receiving stolen property is a crime of moral turpitude. 

Saleh v. Gonzales, 495 F.3d 17, 19 (2d Cir. 2007). Enayat does

not dispute the INS's charge that his last admission into the

United States was in 2001, within five years of his conviction in

2005. Enayat also does not dispute that he would have been

convicted, based on the proposed guilty plea, on the charge of

violating of 18 U.S.C. § 2315. 

The maximum penalty for conviction on a charge under § 2315

is ten years of imprisonment and a fine. The requirement that a

sentence of one year or longer may be imposed means that

conviction exposed the alien to that sentence not that the

sentence was actually imposed. Aquino-Encarnacion v. I.N.S., 296

F.3d 56, 57 (1st Cir. 2002). Although the plea agreement would

have imposed only five months of imprisonment, § 2315 exposed

Enayat to a potential sentence of up to ten years. Therefore,

because the circumstances of his conviction under the proposed

plea agreement would have met the terms of § 237(a)(2)(A)(I),

Enayat cannot show that Jubinville's advice was unreasonable or

that he was prejudiced by following that advice.

B. Failure to Request a Continuance

Enayat argues that Jubinville's performance was deficient

because he failed to request a continuance to prepare for trial

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after he entered his appearance on December 9, 2004, when the

trial was scheduled to begin on January 19, 2005. He also

contends that Jubinville should have requested a continuance

during trial after Jalili testified that he had given the FBI a

handwriting sample. Because the handwriting sample is also

grounds for the next claim, it will be addressed there.

Enayat states that the six weeks between Jubinville's

appearance in the case and trial did not allow enough time for

Jubinville to prepare, to investigate, to interview witnesses,

"and so forth." Enayat provides no factual basis to show that

those activities were necessary, nor does he show what prejudice

resulted. Instead, the record shows that Attorney Christie

represented Enayat for a year and a half until Enayat decided to

switch to Jubinville just six weeks before trial. The government

provides a detailed summary of the trial to show that Jubinville

was thoroughly prepared. The conclusory statements Enayat

provides are insufficient to show that he suffered prejudice,

even if Jubinville's failure to request a continuance were deemed

to be deficient representation.

C. Failure to Investigate

Enayat criticizes Jubinville for failing to investigate the

FBI's analysis of Jalili's handwriting sample, for failing to

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3See Giglio v. United States, 405 U.S. 150 (1972).

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make a Giglio request about promises made to Jalili, and for

failing to challenge the government's evidence about the usual

markup on Persian rugs. The government contests the importance

of the handwriting sample, mistakenly referring to it as 

"Fingerprint Analysis," dismisses the Giglio issue, and overlooks

the issue of the markup on Persian rugs.3

1. Handwriting analysis.

Enayat contends that if the FBI's handwriting analysis

showed or suggested that Jalili endorsed the check, that evidence

would have supported Enayat's defense that he did not know the

check was stolen. Alternatively, he contends that the evidence

would have undermined Jalili's credibility. In response, the

government states, but without evidentiary corroboration, that no

handwriting sample was ever analyzed and that the law enforcement

reports do not indicate that a handwriting sample was ever taken

from Jalili. The evidence is unresolved as to whether any

handwriting analysis was done.

The government also points out that even if a handwriting

analysis showed that Jalili endorsed the check, that would not

affect the charge that Enayat knowingly received, possessed, and

disposed of a stolen check. The check was on QAD's account and

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was made payable to Innuendo. Jalili testified that Enayat

learned about the check from Mousakhani and that he, Jalili, told

Enayat that the check did not belong to Jalili, Mousakhani, or

Javanbakht. Jalili testified that Enayat told him he wanted to

use the check for a sales pitch. The check was then sent to

Enayat. Several weeks later, Enayat told Jalili that he had

shown the check to a girl in a bar, that the check was torn, and

that he had thrown it away. 

Enayat now acknowledges that he did not throw the check away

but instead had Stuart Carpenter deposit it in Carpenter's

business account to pay debts owed by Enayat's business. 

Carpenter testified that Enayat told him that the check was

payment for a rug. Jalili testified that the check was not sent

to Enayat as payment for a rug, that he had not purchased any

rugs from Enayat during that time, and that the check was not

sent for any other business purpose. 

As such, the evidence at trial was that Enayat knew the

check was stolen. Enayat does not explain why Jalili's

endorsement would suggest that Enayat believed the check was

payment to him for a rug. In addition, even if the results of a

handwriting analysis could have been used to impeach Jalili's

testimony that he did not recognize the endorsement as his

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handwriting, such tangential impeachment evidence would not

likely have changed the outcome of the trial.

2. Giglio request.

The prosecution has a duty to disclose, when requested to do

so, "'evidence favorable to an accused,'" including impeachment

evidence such as immunity granted to a witness for testifying. 

United States v. Duval, 496 F.3d 64, 72-73 (1st Cir. 2007)

(quoting Brady v. Maryland, 373 U.S. 83, 87 (1963), and citing

Giglio, 405 U.S. at 154). Enayat argues that Jubinville should

have made a Giglio request to learn what promises of leniency or

immunity the government had made to Jalili. Enayat, however,

does not provide any evidence that a Giglio request would have

produced impeachment evidence.

Instead, Enayat argues that in the absence of a Giglio

request by Jubinville, he has no means to discover what the

government might have disclosed that could have been used at his

criminal trial. To the contrary, Federal Rule 6 of the Rules

Governing § 2255 Cases provides for discovery. Enayat, who is

represented by counsel in this proceeding, did not move for

discovery on this issue or any other issue raised here.

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In the absence of any evidence that he was prejudiced by

Jubinville's failure to make a Giglio request, Enayat has not

shown ineffective assistance of counsel on this issue.

3. Markup on rugs.

Enayat contends that Jubinville was deficient in failing to

investigate the usual markup on Persian rugs to challenge the

government's evidence that the markup was 10% to 15%. Enayat

claims the markup is ordinarily 600%. He contends that evidence

of a higher markup percent was important to show that a check for

$113,800 could be payment for a rug.

Enayat, however, offers no evidence to support his markup

theory. In the absence of evidence that the usual markup was

600%, his counsel's statement to that effect is not persuasive. 

Although Enayat represents that evidence of a usual 10% to 15%

markup was unchallenged, Jalili testified at trial that he used a

25% to 85% markup at his store. Jalili also testified that some

stores used a 100% markup but that anything higher would not

sell. Even if evidence of higher markups had been submitted,

such evidence would not have provided a probability of a

different result.

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D. Failure to Present an Adequate Defense

Enayat contends that Jubinville failed to present an

adequate defense because he failed to interview potential

witnesses, failed to prepare Enayat to testify in his own

defense, and failed to properly present the request for a new

trial. The government disputes the claims Enayat raises.

1. Potential witnesses.

Enayat states that Jubinville "failed to interview any

potential witnesses in preparation for trial." He does not

elaborate, however, as to what witnesses should have been

interviewed, whether previous counsel interviewed witnesses, or

what testimony could have been presented through the absent

witnesses. Cf. Lema v. United States, 987 F.2d 48, 54 (1st Cir.

1993). Therefore, even if a question were raised as to the

adequacy of Jubinville's preparation, Enayat fails to provide any

grounds for prejudice resulting from a failure to interview

witnesses.

2. Failure to prepare Enayat to testify.

In his affidavit, Enayat states that he wanted to testify at

his trial but that Jubinville advised him that the court would

prefer that he not testify. Enayat's memorandum in support of

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his motion for § 2255 relief, however, changes the focus of that

statement from a suggestion that counsel prevented Enayat from

testifying to a complaint that Jubinville failed to prepare

Enayat to testify. Enayat contends that because he was not

prepared, he had no choice but to forego his right to testify in

his own defense.

A criminal defendant has a right to testify in his own

defense, and defense counsel is obligated to inform a defendant

of his right to testify. Owens, 483 F.3d at 58. Counsel's

failure to consult with his client about the right to testify is

deficient representation. Id. Failure to inform a client of the

right to testify, when the court does not independently inform

the defendant of his right to do so, is prejudicial if the

defendant "would have offered genuinely exculpatory testimony"

but not if the defendant would have testified "only to

demonstrate that the prosecution failed to disprove his defense." 

Id. at 59.

Under the circumstances Enayat describes, it appears that

Jubinville discussed Enayat's right to testify but discouraged

him from doing so. Assuming that Enayat wished to testify and

was prevented from doing so by his counsel, he must show that he

was prejudiced. Enayat provides no evidence or even allegations

of any kind as to what his testimony would have been. As a

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result, no basis exists to assume that his testimony would have

been exculpatory. In the absence of prejudice, Enayat has not

shown ineffective assistance based on his inability to testify at

his trial.

3. Motion for a new trial.

Jubinville moved for a judgment of acquittal at the close of

the government's case and then moved for a new trial after the

jury's verdict. The motion for a new trial consisted of three

sentences that asked the court to "grant this Motion for a new

trial, which is in accordance with Rule 33 of the Fed. R. of

Crim. P. . . . not act on this motion pending completion of the

trial transcripts, . . . [and] grant this motion for a New Trial

at that time." Doc. 40. The court denied the motion, stating: 

"No basis exists for granting this motion." On appeal, the court

concluded that Enayat waived his challenge to the denial of his

motion for a new trial by not raising the argument in the motion. 

Assuming that Jubinville's bare-bones motion for a new trial was

deficient, Enayat must show that had the appellate argument been

raised initially a reasonable probability exists that the outcome

would have been different. 

Under Federal Rule of Criminal Procedure 33, a defendant may

move for a new trial in the interest of justice, which provides a

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broad basis for the motion. United States v. Indelicato, 611

F.2d 376, 387 (1st Cir. 1979). In exercising its discretion

under Rule 33, the court weighs and evaluates the credibility of

the evidence. United States v. Wilkerson, 251 F.3d 273, 278 (1st

Cir. 2001). The remedy of a new trial, however, is reserved for

the unusual case where "the evidence preponderates heavily

against the verdict" and the verdict constitutes a miscarriage of

justice. Id. 

Enayat's appellate argument was that a new trial was

justified because Jalili's testimony about whether or not he

endorsed the check was so uncertain that it provided the kind of

discrepancy or uncertainty that would warrant a new trial. See,

e.g., United States v. Martinez, 763 F.3d 1297, 1313 (11th Cir.

1985) ("[C]ourts have granted new trial motions based on weight

of the evidence only where the credibility of the government's

witnesses had been impeached and the government's case had been

marked by uncertainties and discrepancies."). As is discussed

above, even if Jalili endorsed the check, that is not an issue

that would provide a reasonable probability of a different

outcome in this case. Enayat's conviction is not the unusual

case where a new trial was necessary to avoid a miscarriage of

justice. 

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Conclusion

For the foregoing reasons, the plaintiff's initial pleading

and memorandum for relief under § 2255 (docs. 1, 10, and 11) are

denied. The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 19, 2007

cc: Edward J. Juel, Esquire

Aixa Maldonado-Quinones, Esquire

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