United States District Court for the District of Columbia
February 24, 2004.
UNITED STATES OF AMERICA
PHILIP SINGH, Defendant
The opinion of the court was delivered by: REGGIE B. WALTON, District Judge
*fn1 This action was assigned a civil case number, No. 03-178, however,
the pleadings have all been designated for filing in this criminal case
Currently before the Court is the defendant's Motion to Vacate, Set
Aside or Correct Sentence. For the reasons below, the Court concludes
that defendant's guilty plea was not voluntary and his guilty plea and
sentence are vacated.
I. Factual Background
Philip Singh, who is 40 years old, has legally resided in the United
States for 30 years, although he has remained a citizen of Guyana.
Defendant's Motion to Set Aside or Correct Sentence ("Def.'s Mot.") ¶
3. He is married to Janet Campbell Singh, a United States citizen, and
has two small children who are also United States citizens. Id.
¶ 4. On June 7, 2001, Singh was charged in an information with mail
fraud and aiding and abetting, in violation of 18 U.S.C. § 1341 and
1342, along with a "[f]orfeiture [a]llegation" pursuant to
18 U.S.C. § 982. The information accused Singh of engaging in a fraudulent
scheme between March 1999 and February 2001, while he was a materials
buyer for Providence Hospital. While
employed there, defendant allegedly embezzled monies from the hospital
by creating false purchase orders for materials or services from
Allstarts, Inc., a shell company he formed, that were never actually
received by the hospital. The creation of the purchase orders caused the
hospital to send a number of checks to a post office box that Singh had
established in Allstarts' name as payment for the non-existent materials
and services. The checks were subsequently endorsed in Singh's wife's
maiden name and deposited into his and his wife's joint bank account. As
a result of the scheme to defraud the hospital, defendant received funds
totaling approximately $349,027.
According to the government, this was not Singh's first occasion when
he defrauded one of his employers. Prior to working at Providence
Hospital, Singh was employed at Arlington Hospital where, again using the
Allstarts company he established, he misappropriated approximately
$167,800.43 of that hospital's funds. Defendant used the money from these
schemes to purchase real estate, a Lexus automobile, and to otherwise
enhance the quality of his and his wife's lifestyles.
On July 23, 2001, defendant entered into an agreement to plead guilty
to the mail fraud charge and also agreed to forfeit $110,880.76 in cash,
the Lexus automobile, and the equity in his two Virginia residences. On
the same date, defendant entered his plea of guilty before another judge
of this Court. During the plea hearing, the judge, once informed that
defendant was a citizen of Guyana, advised defendant that because he was
"not a United States citizen, if I accept your plea of guilty, this
could result in your deportation from the United States."
Transcript of Guilty Plea to Information dated July 23, 2001 ("Plea
Tr.") at 5 (emphasis added). However, because defendant pled guilty to
mail fraud involving more than $10,000, which is categorized as an
"aggravated felony"*fn2 under the immigration laws, he faces absolute,
The Parties' Arguments
Defendant argues that his sentence should be vacated for several
reasons. First, he argues that the Rule 11 colloquy was defective because
"it fail[ed] to inform [him] about the automatic deportation
consequences of his plea to an `aggravated felony'. . . ." Memorandum of
Facts and Law in Support of Defendant's Motion to Vacate, Set Aside or
Correct Sentence ("Def.'s Mem.") at 4. Although acknowledging that the
District of Columbia "Circuit has held that the immigration consequences
of a criminal conviction are `collateral,'" and therefore, a defendant
does not need to be informed of such consequences, see United States
v. Russell, 686 F.2d 35, 38-39 (D.C. Cir. 1982), defendant argues
that "this holding should be re-examined because the 1990 and 1996
amendments to the Immigration and Nationality Act make deportation
`essentially certain, automatic and unavoidable' where a defendant is
convicted of an aggravated felony." Def.'s Mem. at 4 (quoting United
States v. Couto, 311 F.3d 179, 190 (2d Cir. 2002)). Second,
defendant argues that his sentence should be vacated because he was
misinformed by the prosecutor and the judge as to the immigration
consequences of his guilty plea. Id. at 9. Third,
defendant argues that for different reasons his guilty plea and
sentence should be vacated because he received ineffective assistance of
counsel. Id. at 13.
In opposition, the government argues that Russell is binding
precedent on this Court and furthermore "several other circuits have been
asked to reconsider prior rulings on the issue of whether immigration
consequences of a guilty plea are direct or collateral consequences of a
plea in light of the changes in the immigration laws[,] [and] have
uniformly found those consequences to be collateral. . . . ."
Government's Opposition to Defendant's Motion to Vacate, Set Aside or
Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Gov.'s Opp'n") at 8-9
n.2 (citations omitted). Regarding the defendant's second argument, the
government argues that he was informed that there was a potential he
could be deported and thus he was not prejudiced by any misinformation he
received. Id. at 7. Finally, the government takes exception
with the defendant's claim that his counsel's performance was
constitutionally ineffective. Id. at 6-7.
Defendant's challenge to his guilty plea and sentence is made pursuant
to 28 U.S.C. § 2255, which permits him to "move the court which
imposed the sentence to vacate, set aside, or correct the sentence[,]" on
the grounds that
the sentence was imposed in violation of the
Constitution or laws of the United States, or that
the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise
subject to collateral attack. . . .
28 U.S.C. § 2255. Under § 2255, the reviewing court, if it
finds that the judgment was rendered without
jurisdiction, or that the sentence imposed was not
authorized by law or [is] otherwise open to
collateral attack, or that there has been such a
denial or infringement of constitutional rights of
the prisoner as to render the judgment vulnerable
to collateral attack . . . shall vacate and set
the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or
correct the sentence as may appear appropriate.
Id. Here, defendant's collateral attack on his guilty
plea and sentence is predicated on two theories: (1) his guilty plea was
involuntary because he was not properly informed that he would be
absolutely subject to deportation and (2) he received ineffective
assistance of counsel.*fn3
The Rule 11 Colloquy*fn4
A guilty plea "shall not be accepted unless made voluntarily after
proper advice and with full understanding of the consequences."
Kercheval v. United States, 274 U.S. 220, 223 (1927) (emphasis
added); see also United States v. Russell, 686 F.2d 35 (D.C.
Cir. 1982) ("A plea cannot be considered voluntary if . . .
the defendant is not `fully aware of the direct consequences' of
the plea.")*fn5 (quoting Brady v. United States. 397 U.S. 742,
755 (1970)); see also Fed.R.Crim.P. 11(d).*fn6 Defendant's
first challenge to the Rule 11 colloquy implores the Court to adopt the
sweeping proposition that the current immigration consequence of pleading
guilty to an aggravated felony, which is certain deportation, is a
direct, rather than a collateral consequence of a guilty plea and
therefore a defendant must be informed of the deportation consequences in
the Rule 11 colloquy. Def.'s Mem. at 4.
In Russell, the Court of Appeals noted that "[c]ertain
consequences of a guilty plea are `collateral' rather than direct," and
such "collateral consequences," the court held, "need not be explained to
the defendant in order to ensure that the plea is voluntary." 686 F.2d at
38. The Court noted that "like many of the lines drawn in legal analysis
[,]" distinguishing a collateral versus a direct consequence of a
criminal conviction "is obvious at the extremes and often subtle at the
margin." Id. Notably, the Court stated that "[p]erhaps the most
difficult case concerns the alien whose criminal conviction leads often,
and sometimes automatically, to deportation." Id. (footnote
omitted). Although acknowledging that "deportation may result `in
loss . . . of all that makes life worth living," the Court stated that
is well settled that deportation, while it may be burdensome and
severe for the alien, is not a punishment." Id. (citations
omitted). In light of this reality, the Court held that "[i]t has become
well settled . . . that Rule 11 does not require informing a defendant of
the possibility of deportation." Id. at 39 (citations omitted).
The Court went on to state that, "[a]s a result, it has frequently been
held that defendants are not entitled to withdraw pleas under Rule 32(d)
merely because they misunderstood the possible consequences for
deportation." Id. (citations omitted).
However, in Russell, the Court held that the district court
had "abused its discretion in denying Russell's Rule 32(d) motion. . . .
[because] although deportation is not a `direct' consequence of a plea
for purposes of Rule 11, it is difficult to imagine a collateral
consequence that would be more compelling for purposes of showing the
`manifest injustice' required by Rule 32(d)." Id. Manifest
injustice was found to exist in Russell because the defendant
there had entered an Alford plea,*fn7 had moved "[a]lmost
immediately" after deportation proceedings began to vacate his sentence
and withdraw his Alford plea contending that "he had not
understood the consequences of the plea because he did not realize that
he was subject to deportation based on [his] misdemeanor convictions."
Id. at 37.
The Russell Court identified three factors that should guide
courts when assessing whether to permit a defendant to withdraw a plea
after the sentence has
been imposed. First, the court should consider "the strength of the
defendant's reason for withdrawing the plea, including whether the
defendant asserts his innocence of the charge." Id. at 39
(citations omitted). Second, the court should determine "the possible
existence of prejudice to the government's case as a result of the
defendant's untimely request to stand trial." Id. (citations
omitted). Third, the court "must consider whether the defendant's
misunderstanding of the collateral consequences of the plea is the result
of misleading statements by governmental authorities or the defendant's
own ignorance." Id. The government does not specifically
address the Russell factors. Rather, the government's
opposition to all of the defendant's positions is directed solely to the
two factors evaluated when assessing whether a criminal defendant was
constitutionally denied effective assistance of counsel. In so doing,
however, the government does indirectly address, at least in part, the
defendant's Rule 11 challenge.
While the first Russell factor does not weigh heavily in the
defendant's favor, as he does not proclaim his innocence of the offense
to which he pled guilty, the second and third factors support permitting
the defendant to withdraw his guilty plea and have his sentence vacated.
As to the second factor, the government does not allege that it would be
prejudiced by the defendant's withdrawal of his guilty plea. In fact, the
government's opposition does not even address this factor. Regarding the
third factor, the defendant argues that his "misunderstanding of the
collateral consequences of [his] plea" is the result of misleading
statements made to him by the prosecutor and the Court. According to the
defendant's declaration that
accompanied his motion, he was informed by the Assistant United
States Attorney ("AUSA") before he entered his guilty plea that mail
fraud was not a deportable offense and, at the sentencing hearing, the
AUSA stated that defendant would be entitled to a "meaningful hearing"
before he could be deported. Def.'s Mem. at 10. And when the defendant
informed the Court that he was not a United States citizen, the following
exchange occurred at the defendant's sentencing'
The Court: Oh, you're not a citizen. Actually, you
face deportation, then, also, don't you? Is that
Mr. Ambrosino: I think that that is something
he'll face. He'll be entitled to a hearing.
The Court: Right. There's a chance of deportation.
You're aware of that, aren't you?
Mr. Singh: I didn't know that, your honor.
The Court: Well, I don't know if I had mentioned
that during the plea colloquy or not. I mean, I do
in cases in which I'm aware that someone is not a
citizen of this country. If I did not mention
that, then I will tell you now that, as a result
of your plea of guilty, there's a chance 1
don't know whether they will that the
immigration department will deport you. There's
that chance that you could face. There is that
chance that you face deportation. So, you know, I
just, I have an obligation to inform you of that.
Do you understand that?
Mr. Singh: Yes, Your Honor.
The Court: All right, do you still want to proceed
with your guilty plea?
Mr. Singh: Your Honor, I did, but it's in front of
you and it would be hypocritical for me to say
that I didn't.
Transcript of Sentencing dated December 14, 2001 ("Sent. Tr.") at
17-18. Thus, it is clear that both the presiding Judge and the AUSA
misinformed the defendant that
there was only a probability of deportation, when in fact it was an
The government counters that the defendant was not "completely
uninformed about the possible immigration consequences of his
plea. . . . ." Gov.'s Opp'n at 7 (emphasis added). Specifically, the
government points to the representations made by the AUSA in his
Upon learning Mr. Singh's immigration status, I
informed him that it was my understanding that
anyone who pleaded guilty to a felony punishable
by over one year in prison was eligible for
deportation. We explained that the immigration
issues were exclusively within the jurisdiction of
the Immigration and Naturalization Service ("INS")
and the U.S. Attorney's Office had no part in
INS's decision or action. . . . At no time did I
make any promise to Mr. Singh or his attorney
concerning the immigration implication of Mr.
Singh's plea deal. Furthermore, I never told Mr.
Singh or his attorney that he would not be
deported if he pled guilty to a mail fraud charge.
AUSA's Affidavit ¶¶ 5, 7. These representations did not reflect
the reality that deportation was certain, and the mis-impression that it
was not was solidified by the AUSA's subsequent statement that there
would be a meaningful hearing before deportation would occur.
In Russell, the prosecutor told the defendant and the court
that if Russell "were convicted under the felony count . . . he might be
subject to deportation, which would not be the case if he took the
misdemeanor. . . ." 686 F.2d at 41. The
Circuit Court concluded that
the comments of the [AUSA] during Russell's plea
proceedings were a clear misstatement of the law;
accordingly, Russell's plea cannot be considered
voluntary under Rule 11. The serious consequences
of involuntary deportation . . . clearly
demonstrate how the threat of deportation could be
abused during plea negotiations. It can readily be
imagined that some resident aliens might prefer to
avoid even the risk of deportation rather than
stand trial for crimes of which they believed
themselves innocent. Although it may be
permissible for prosecutors to discuss deportation
consequences with defendants when their
understanding of the law is accurate . . . the
practice cannot be tolerated when the
prosecution's advice is erroneous, no matter how
well intended. The government may not be required
to inform defendants of collateral plea
consequences such as deportation, but it does have
an obligation not to mislead them. Because the
taking of Russell's plea was so clearly tainted by
the possibility that he had been confused by the
government about the consequences of pleading to a
misdemeanor rather than felony charges, Russell's
guilty plea must be vacated. The government
remains free, of course, to bring Russell to trial
for the offenses for which he was originally
Id.; see also United States v. Briscoe, 432 F.2d 1351,
1354 (D.C. Cir. 1970) ("Calculations of the likelihood of deportation may
thus rightly be included in the judgment as to whether an accused should
plead guilty, and any actions by Government counsel that create a
misapprehension as to that likelihood may undercut the voluntariness of
Here, it is clear there was a misunderstanding by the AUSA, the
defendant's attorney who remained silent when the defendant was being
misinformed, and the presiding judge, as to the deportation consequences
of defendant's guilty plea. Although it appears that the government is
correct that the defendant knew there was a possibility of deportation,
he was clearly misled into believing that it was a mere possibility, as
compared to an absolute certainty. Cf. Briscoe, 432 F.2d at
(denying defendant's motion to vacate his sentence where he
contended that he desired to be deported and had stated that he had been
told that a third conviction would result in deportation. The court
concluded that "the prosecutor's advice [as to the INS' policy, which,
the court noted, was not inaccurate] did not significantly affect the
defendant's decision to plead guilty."). Accordingly, the Court will
vacate the defendant's guilty plea and sentence, which the Court
concludes is mandated by Russell.*fn9
For the reasons set forth above, the Court concludes that defendant's
motion to vacate his guilty plea and sentence must be granted. Having
concluded that defendant's motion must be granted on the ground that his
plea was not knowingly and voluntarily entered, the Court need not
address defendant's ineffective
assistance of counsel claims.
*fn2 8 U.S.C. § 1101(a)(43)(M)(1) defines an aggravated felony as
including "an offense that involves fraud or deceit in which the loss to
the victim exceeds $10,000."
*fn3 Although neither party addresses the consequences of defendant
having failed to "raise [his Rule 11] objection before the court at
sentencing, or on appeal," such a challenge can only be reviewed "on its
merits . . . if [defendant] can establish (1) `cause' excusing his double
procedural default, and (2) `actual prejudice' resulting from the errors
of which he complains.'" King v. United States. 214 F. Supp.2d 669
(E.D Va. 2002) (citing United States v. Frody,
456 U.S. 152, 168 (1982)). Nonetheless, defendant "can still prevail if he can
demonstrate that `a miscarriage of justice would result from the refusal
of the court to entertain the collateral attack' due to his `actual
innocence.'" Id. (citation omitted); see also United
States v. Davis, 954 F.2d 182, 184 (4th Cir. 1992) (to prevail on
a motion to withdraw a guilty plea after sentencing, a defendant "must
prove that failure to allow withdrawal of the guilty plea would result in
a `miscarriage of justice'") (citation omitted). Because defendant here
does not make a claim of actual innocence, he must show that he has
suffered actual prejudice as a result of the errors he complains about.
As further discussed infra, defendant has shown that he was
prejudiced by the judge's and Assistant United States Attorney's
misinformation concerning his prospects for deportation once he pleaded
*fn4 In its opposition, the government does not address defendant's
Rule 11 challenges. Rather, it analyzes all of defendant's challenges
pursuant to the ineffective assistance of counsel standard of
Strickland v. Washington, 466 U.S. 668 (1984).
*fn5 The Russell Court's analysis was made in response to a
Rule 32(d) challenge, which at that time "permit[ted] district courts to
allow plea withdrawals either before or after sentencing."
Russell, 686 F.2d at 38.
*fn6 Pursuant to Rule 11, "[a] defendant may withdraw a plea of
guilty . . . (1) before the court accepts the plea, for any or no
reason; or (2) after the court accepts the plea, but before it
imposes sentence. . . ." if the court rejects the plea agreement or
if "the defendant can show a fair and just reason for requesting the
withdrawal." Fed.R.Crim.P. 11(d) (emphasis added).
*fn7 Pursuant to North Carolina v. Alford, 400 U.S. 25
(1970), a defendant is not required to acknowledge actual culpability to
enter a guilty plea.
*fn8 Furthermore, defendant notes that the court also erroneously
stated that it would recommend to the Bureau of Prisons that the
defendant serve time in a boot camp, because participation in such a
program would eliminate a significant amount of time from the defendant's
sentence, although in reality defendant was not eligible for such a
program due to his immigration status because he is subject to immediate
deportation. Sent. Tr. at 12; Declaration of Philip Singh ("Singh Decl.")
*fn9 Because the Court concludes that it must afford the defendant the
relief he requests because of the factual circumstances present in this
case under existing Circuit authority, it declines his counsel's effort
to obtain a ruling that certainty of deportation is a direct, rather than
a collateral consequence of pleading guilty. Furthermore, the case
principally relied on by defendant, United States v. Couto,
311 F.3d 179 (2d Cir. 2002), for the proposition that deportation should be
considered a direct consequence of a guilty plea does not support that
proposition. Rather, the Couto Court concluded that because
Couto's attorney had affirmatively misled her into believing there were
things that could be done to avoid deportation, despite the fact that
amendments to the Antiterrorism and Effective Death Penalty Act and the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 now
mandate that "an alien convicted of an aggravated felony is automatically
subject to removal and no one not the judge, INS, or even the
United States Attorney General has any discretion to stop the
deportation" defense counsel's performance was ineffective and thus Ms.
Couto's plea was not voluntarily entered. Id. at 190. In fact,
although the Cuoto Court said that "[o]n its face,
[d]efendant's argument is persuasive, and . . . deserves careful
consideration," the Court explicitly declined to address whether such
deportation consequences are a direct consequence of a plea and must be
included in the court's Rule 11 colloquy. Id. at 190-91
("[B]ecause the circumstances of this case allow its resolution without
taking up this difficult question, we need not, and hence do not, address
it further."). Moreover, the Couto Court recognized that the
Fifth, Sixth, and Ninth Circuits have expressly "declined to reconsider
their prior holdings on this point." Id. at 190 (citing
El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002),
cert. denied 537 U.S. 1024 (2002); United States v.
Amador-Leal, 276 F.3d 511, 516-17 (9th Cir. 2002), cert.
denied 535 U.S. 1070 (2002); United States v. Gonzalez,
202 F.3d 20, 28 (1st Cir. 2000)).
In accordance with the Court's ruling as expressed in the Memorandum
Opinion that accompanies this Order, it is hereby
ORDERED that the defendant's Motion to Vacate, Set Aside or
Correct Sentence is granted. It is further
ORDERED that the defendant's guilty plea and sentence shall
be vacated. It is further
ORDERED that case number 03-178 is dismissed.*fn11 It is
ORDERED that the defendant shall be detained until further
order of the Court.
*fn11 The Court has dismissed defendant's civil case.
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