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United States v. Asaifi

May 3, 2007


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Thaer Omran Asaifi, a/k/a Abu Harp, a/k/a Tam, entered a guilty plea to six counts of a superseding indictment on December 12, 2005. Mr. Asaifi thereby admitted, through his plea and his execution of the associated Factual Proffer, that he had conspired to and/or attempted to and/or smuggled aliens into the United States. When he reviewed his Presentence Investigation Report in April 2006, however, Mr. Asaifi had a change of heart and told his lawyer that he wanted to withdraw his plea. Through new counsel,*fn1 Mr. Asaifi moved to withdraw his plea, asserting that he has a legally cognizable defense and there were imperfections in the Rule 11 colloquy. The Court held a hearing on the motion on February 23, 2007, and took the matter under advisement. The Court now renders its ruling.

Mr. Asaifi is a citizen of Jordan who is in this country involuntarily. His new counsel argues that his overwhelming fear of the power and authority of the United States Government caused him to enter a guilty plea to avoid trial, because he thought a trial against a Muslim could not be fair.

Mr. Asaifi's plea was taken with great care, recognizing that he is a stranger to this country and its laws. The Court can find no material error in the Rule 11 colloquy. Further, the defense now offered - that Mr. Asaifi did not know that the migrants he assisted would be coming to the United States and not just to Equador or Peru -- may be "legally cognizable" under other circumstances but here is belied by Mr. Asaifi's own statements and the entire record. The motion to withdraw the plea fails to present "a fair and just reason" for withdrawal under Federal Rule of Criminal Procedure 11(d), and will be denied.


A. Alleged Criminal

Activities In September 2004, a Grand Jury in the District of Columbia issued a multi-count Indictment charging Neeran Zaia, Thaer Asaifi,*fn2 and others with Conspiracy to Smuggle Aliens Into the United States, in violation of 18 U.S.C. § 371; Bringing Unauthorized Aliens to the United States for Commercial Advantage or Private Financial Gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii); Aiding and Abetting Certain Aliens to Enter the United States, in violation of 8 U.S.C. § 1327; Tampering with a Witness by Misleading Conduct, in violation of 18 U.S.C. §1512(b)(1); and Aiding and Abetting, Causing an Act to be Done, in violation of 18 U.S.C. §§ 2(a) and 2(b). Arrest warrants were issued based on the Indictment.

Mr. Asaifi was in Peru on an expired tourist's visa in 2004, which became known to the United States pursuant to an investigation conducted by the Bureau of Immigration Control and Enforcement ("ICE") (formerly the Immigration and Naturalization Service ("INS")). Def.'s Mot. to Withdraw Guilty Plea & Mem. of P. & A. ("Def.'s Mem.") at 1. Peruvian authorities informed Mr. Asaifi that they were expelling him from Peru and, on September 9, 2004, they put Mr. Asaifi on a Delta Airlines flight supposedly going to Jordan. Id. Instead of Jordan, the flight landed in Atlanta, Georgia. Id. Federal agents arrested Mr. Asaifi and transferred him to Washington, D.C. Id.

"A significant amount of discovery was provided to [Mr. Asaifi and his lawyer, Elise Haldane], including audio tapes of conversations between a cooperating individual and the defendants." Id. at 2. Mr. Asaifi reviewed some of the tapes and the corresponding transcripts with an Arabic interpreter at the D.C. Jail in August 2005. Id. On October 6, 2005, the Grand Jury issued a 32-count Superceding Indictment against Ms. Zaia, Mr. Asaifi, and the other defendants, charging Conspiracy to Smuggle Aliens into the United States, in violation of 18 U.S.C. § 371; Bringing Unauthorized Aliens to the United States for Commercial Advantage or Private Financial Gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii); Alien Smuggling of a Deported Aggravated Felon, in violation of 8 U.S.C. § 1327; and Witness Tampering, in violation of 18 U.S.C. § 1512(b)(1).

B. Plea Negotiations

With Mr. Asaifi's case scheduled to go to trial on January 9, 2006, Ms. Haldane, sought plea negotiations with the Government in the Fall of 2005. Decl. of Assistant U.S. Attorney Bruce R. Hegyi ("Hegyi Decl.") ¶ 4. Mr. Asaifi was debriefed by the Government on several occasions. Id. ¶ 5. After numerous discussions, Ms. Haldane and Mr. Hegyi agreed on a tentative framework for a Rule 11(c)(1)(C) plea for Mr. Asaifi. Id. ¶ 6.

Mr. Asaifi was very concerned that he might be called as a witness in Ms. Zaia's trial. After much discussion, the Government agreed that he would not be called by the Government unless his role in the conspiracy were misrepresented by others. Id. ¶ 7.

With the terms of a plea agreement tentatively framed between counsel, Ms. Haldane advised that Mr. Asaifi wished to discuss candidly with his mother in Jordan the facts of the case, his role, and the options available to him. However, Ms. Haldane further advised, Mr. Asaifi worried that any admissions in his conversation with his mother might later be used against him. Because, in the Government's view, Mr. Asaifi's desire to speak candidly with his mother was reasonable and important and because his concerns about self-incrimination were understandable, the Government: (a) supported Mr. Asaifi's counsel in arranging for the extended, overseas, telephone call, and (b) voluntarily stipulated that it "would not use anything said by Mr. Asaifi to his mother during this telephone conversation against Mr. Asaifi."

Id. ¶ 8. Thereafter, Mr. Asaifi expressed his desire to talk directly to the prosecutors about the tentative plea agreement. Id. ¶ 9. The parties came into Court to seek approval to transfer Mr. Asaifi temporarily from the custody of the U.S. Marshals to the Department of Homeland Security ("DHS"), of which ICE is a constituent agency, so that he could talk without the pain of the shackles used by the Marshals around his large wrists. See id. ¶¶ 9-10. The Court agreed and Mr. Asaifi was temporarily transferred to agents of DHS "so that Mr. Asaifi could be removed to the Commonwealth of Virginia to meet at length (accompanied by counsel) directly with the prosecutors with modified restraints." Id. ¶ 10.

Those discussions, which occurred on November 29, 2005, included, inter alia, the precise Counts of the superseding Indictment to which Mr. Asaifi would plead guilty together with some of the evidence the Government expected to introduce at trial to sustain its burden of proving beyond a reasonable doubt those Counts, and other Counts, in the superseding Indictment.

Because a proper factual basis is required to support a guilty plea, at this meeting, Mr. Asaifi was shown, among other things, a photograph of L-1 [a migrant] together with then-INS documentation establishing that L-1 had previously been deported from the United States for an aggravated felony. This was necessary, because Count 31 of the superseding Indictment charges Mr. Asaifi (and others) with attempting to smuggle L-1 into the United States after L-1's deportation from the United States for an aggravated felony.

Id. ¶¶ 11-12. Mr. Asaifi then asked for, and received, time to pray privately. Id. ¶ 13.

On November 30, 2005, the Government sent a proposed Plea and Factual Proffer to Ms. Haldane. Id. ¶¶ 14-15. This plea offer "had to be accepted by 6:00 p.m. on that date or it would have expired." Def.'s Mem. at 2. Ms. Haldane responded with certain detailed revisions, all of which were accepted by the Government. Hegyi Decl. ¶ 16. Under the 11(c)(1)(C) plea, Mr. Asaifi would plead guilty to conspiracy, four counts of alien smuggling, and one count of alien smuggling (deported aggravated felon). Def.'s Mem. at 3. In exchange, the Government would dismiss the remaining counts, agree to a sentencing range of 72 to 96 months, and agree to a testimonial restriction by which Mr. Asaifi would not be called as a witness in the case against co-conspirators unless a co-defendant portrayed Mr. Asaifi's role in a false or misleading light. Id. Mr. Asaifi signed the revised Plea and Factual Proffer. See Plea Agreement and Proffer, executed Nov. 30, 2005 [Dkt. #98].

The plea hearing was scheduled for December 5, 2005. Mr. Asaifi asked the Court for more time to consider his options. Dec. 5, 2005 Tr. at 2. The Court, his counsel, and Government counsel all commented on the gravity of his decision, and the Government agreed to hold the plea offer open for an additional week.*fn3 Id. at 2-4.

MS. HALDANE: Your Honor, we appreciate your scheduling this matter for today. The government and the defense have made what I can only call extraordinary efforts to make sure that Mr. Asaifi was aware of every detail of the plea offer. He had indicated that he was, ...

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