The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER GRANTING § 2255 MOTION IN PART AND DENYING REQUEST FOR EVIDENTIARY HEARING
On August 2, 2002, Lakireddy Bali Reddy, a federal prisoner incarcerated at Lompoc FCI, filed a motion under 28 U.S.C. § 2255 to have his conviction set aside or his sentence corrected from ninety-seven months to seventy-eight months on the grounds that his conviction and sentence were based on false and unreliable information. In his reply, Movant requested that the Court hold an evidentiary hearing preceded by depositions and full discovery so that the Court may evaluate the impact of the false information. Respondent opposed the motion to vacate Movant's conviction but did not oppose Movant's motion to receive a discretionary adjustment of his sentence to a term of seventy-eight months. On August 25, 2003, Movant asked the Court to stay ruling on his motion so that his counsel would have time to investigate developments in the victims' civil action against him. On December 11, 2003, Movant's counsel informed the Court that they had received transcripts of the complaining witnesses in the civil action and were beginning an analysis of those transcripts. On October 20, 2004, Movant filed a supplemental memorandum regarding his § 2255 motion. Respondent filed a supplemental reply. Having considered all of the papers filed by the parties, the Court GRANTS Movant's motion to be re-sentenced and DENIES the motion to set aside the conviction and DENIES the requests for discovery and for an evidentiary hearing.
On February 1, 2000, Respondent filed an indictment against Movant and his youngest son, Vijay Kumar Lakireddy. October 25, 2000, Respondent filed a superceding indictment against Movant, Vijay Kumar Lakireddy, Prasad Lakireddy, Jayaprakash Lakireddy and Annapurna Lakireddy alleging the following four counts against Movant: (Count 1) conspiracy to bring aliens into the United States illegally in violation of 18 U.S.C. § 371; (Counts 2 and 3) transportation of minor in foreign commerce for illegal sexual activity in violation of 18 U.S.C. §§ 2 and 2423(a); and (Count 5) false statement on a tax return in violation of 26 U.S.C. § 7206(1).
On March 7, 2001, Movant plead guilty to Counts 1, 2, 3 and 5 of the superceding indictment pursuant to a negotiated plea agreement under Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure. In his plea agreement, Movant admitted, in relevant part, to the following:
(1) Between 1986 and January 2000, I agreed with my co-defendants and others to bring Indian nationals into the United States on the basis of fraudulent visas. As part of this conspiracy, I arranged and directed others to make arrangements to encourage aliens to sign and submit false visa petitions, to obtain fraudulent Indian passports, and to enter the United States under false identities. I also transported, harbored, and employed and directed others to transport, harbor, and employ the aliens who came into the United States on the basis of fraudulent visas.
(2) Prior to August 19, 1999, I made arrangements to have Venkateswara Vemireddy enter the United States on a fraudulent visa, to bring his sister into the United States posing as his wife, and to bring two minor girls (Victims #2 and Victim #3) into the United States as their daughters. When I arranged for Victim #2 and Victim #3 to be brought from India to the United States, I intended to engage in sexual intercourse with Victim #2 and Victim #3, both of whom were minors when they were transported into the United States at my direction. I know that, in California, an adult who has sexual intercourse with a minor can be charged with a criminal offense. . . .
As part of the conspiracy charged in Count 1, the defendants arranged for the entry into the United States of between 25 and 99 Indian nationals on the basis of fraudulent visas. At least some of these aliens were vulnerable victims because they were young women and girls who came from extremely poor families of a low caste in India, were desperate to come to the United States, and were dependent upon defendant Lakireddy Bali Reddy for employment, house sustenance, and income both in India and in the United States. Defendant Lakireddy Bali Reddy played a leadership role in this offense because he was the primary organizer, leader, and decision-maker in the conspiracy to bring these aliens into the United States illegally; he directed others who assisted him in carrying out this conspiracy; and he determined where the aliens would work when they arrived in the United States, where they would live, and how much, if any, they would be paid for their work. This immigration fraud conspiracy involved more than five participants and was otherwise extensive.
As part of this conspiracy, on October 24, 1991, defendant Lakireddy Bali Reddy prepared a Petition for Alien Relative seeking permission to bring Victim #4, whose reported age was 11 years old, into the United States under a fraudulent identity. On October 28, 1993, Victim #4, whose reported age was then 13 years old, entered the United States on this fraudulent visa. When the defendant arranged to bring Victim #4 into the United States, he intended to engage in sexual intercourse with Victim #4, who he knew was a minor. Movant Ex. D at 3-6 (Plea Agreement).
The Plea Agreement called for a sentencing range of sixty-three to seventy-eight months and for Movant to pay $2,000,000 in restitution to Victims #1, #2, #4 and to the family of victim #3.*fn1
A presentence report (PSR) was submitted to the Court prior to Movant's sentencing hearing. The PSR noted that, because the victims only spoke Telugu, every contact or interview with them necessitated the assistance of a Telugu interpreter. PSR ¶ 77. The PSR recommended that the Court reject the Rule 11(e)(1)(c) plea agreement and recommended a two-point upward adjustment of the offense level for obstruction of justice and a two-point upward adjustment for extreme psychological injury allegedly caused to the victims. PSR ¶¶ 83, 173.
On June 19, 2001, at Movant's sentencing hearing, the Court, the Honorable Saundra Brown Armstrong then presiding, concluded that the sentence contemplated by the parties was insufficient to address the findings in the PSR of obstruction of justice and extreme psychological injury to the victims. The Court concluded that she would adjust the offense level upward two points for obstruction of justice and upward two points for extreme psychological injury. This resulted in a combined adjusted offense level of 30, criminal history category I, with a guideline range of ninety-seven to 121 months.
The Court focused on the obstruction allegation in the PSR that indicated that some time after Movant's arrest and Victims #4, #5 and #7 had been sent back to India, they were called to Movant's estate in India and were required to speak to Movant individually on the telephone. RT 13, 16-19; PSR ¶ 56. In this telephone conversation, Movant instructed each girl to remain in India until he deemed it appropriate for her to return to the United States. Id. Each girl confirmed that this is what Movant said to her. Id. The Court interpreted Movant's instructions to Victims #4, #5 and #7 "to amount to concealing evidence that is material to this investigation, that is the evidence that these witnesses possess with respect to the investigation that is ongoing." RT at 19. Movant's version of the telephone call was that he had a conversation over the telephone with Victim #5, that the two other Victims may or may not have been present and that at one point Movant said to Victim #5, "If the damn thing goes away, everything will be okay. There is no hurry --- there is no rush." RT at 23. Movant was also willing to stipulate to saying that "an immigrant visa is good for up to one year, that 'the case would soon be over. It will be finishing up, and then I'll find you a husband.'" Id. The Court concluded that it was presented with a dispute of fact that had to be resolved before it could determine whether the obstruction enhancement applied. Counsel for the government, in an effort to resolve the dispute of fact, stated that Movant was prepared to stipulate to the fact that he knew that his statements, even if he said them only to Victim #5, would be communicated to Victims #4 and #7 and that it was his hope and his desire to convince the girls not to come back to the United States immediately. RT at 25. The Assistant United States Attorney added that the girls' interpretation of Movant's words to mean, "don't come back until I say you can," was a reasonable inference for them to make. RT at 26-27.
In regard to the finding in the PSR of extreme psychological injury to the victims, the Court focused primarily on the allegations attributable to Victims #1 and #2. The Court quoted ¶ 78 of the PSR:
The agents interviewing victim one have observed the effects of emotional physical and sexual abuse she has suffered at the hands of LB Reddy for over seven years. Victim number one convinced that she could not escape her domination by Reddy once attempted suicide in India. Since Reddy's arrest, victim number one has suffered severe headaches with no physical reason for them according to medical practices, bouts of depression, sleep disorders that include a recurring nightmare that Reddy or someone in his control will find her, enter her apartment and take her back to Reddy, and relentless fear for her safety and that of her family. Because Mr. Reddy is such a powerful man with a vast amount of resources, he is perceived by victim one as having the power to threaten and intimidate her and her family, and she is very frightened of retaliation. She is plagued by thoughts intentionally planted by LB Reddy that she deserved the abuse imposed on her. During interviews, victim number one's descriptions of the traumas she suffered are punctuated by deep sobs of anguish. She also suffers from panic attacks during the middle of the night where her heart beats rapidly, and, again, doctors cannot attribute it to any physical cause. She experiences episodes reliving his physical, sexual and verbal abuse and exacerbates her depression and caused her to be listless and afraid to leave the confines of her apartment. . . . Both her therapist and a neuropsychologist estimate that because of the magnitude of what she has endured, the therapeutic process may take years. They also believe that future family counseling may be necessary.
The Court quoted from ¶¶ 79 of the PSR: The agents see a 16-year-old girl regressing to childhood when she has to describe what was done to her by Reddy and others. Like victim number one, victim number two suffers anguish and trauma when speaking of her abuse at the hand of L.B. Reddy and his family and his associates. She suffers from bouts of depression and listlessness, a relentless fear of --- for the safety of herself and her family and the possibility of retaliation because Reddy is such a powerful man. Mental health professionals believe that the psychological damage from her mistreatment will play itself out over the rest of her life. Victim number two, like victim number one, suffered substantial emotional trauma from the extended duration of Reddy's sexual exploitation. As a result, she continues to manifest those physical and psychological symptoms ---anxiety, depression and sleeplessness. In addition, victim number two had to watch her younger sister, victim number three, suffer pain, embarrassment, and the indignities of physical, verbal and psychological abuse by Reddy. Helpless to protect herself, much less her sister, victim number two bears the emotional scars of both of their suffering.
The Court stated that it was inclined to find that these victims, and particularly victim number one and victim number two, based upon the information as detailed in the report have suffered extreme psychological injury well far and above and beyond that normally attended to persons who are victims of these crimes, not only because of the severity of it but because of the -- duration of the abuse . . . as well as other matters . . . Not only because of their age but because of the fact that they're here, isolated from their family and their support system, and unable to speak English, unable to communicate with anyone, unable to extricate themselves from their circumstances and wholly dependent upon him for their care.
And in the context of all of that, and over the extended period of time all this occurred and given the professional -- the neuropsychologists and the therapists concluding that these victims are going to be experiencing these psychological traumas probably for the rest of their life, I think that -- that there's certainly ample evidence in the presentence report for the Court to conclude that, in fact, at least with respect to victims number one and number two, that they have indeed suffered extreme psychological injury. And my inclination would be to depart upwardly not just one level as the probation department has suggested, but one level for each one of them, which will be two levels upward.
With regard to the factual allegations of psychological injury to the victims, Movant's counsel stated that he was not in a position to comment on their accuracy because he did not have access to those reports and psychologists. RT at 37.
The Court recessed to allow Movant to meet with his counsel and opposing counsel to meet with each other to address the Court's concerns. According to Movant's counsel, in negotiating the original plea agreement, Movant had agreed to the government's condition that he would not demand an evidentiary hearing that would require testimony from the complaining witnesses. Cassman Dec. ¶ 5. Therefore, given the Court's position, Movant's alternatives were to proceed to trial or to accept the Court's guideline calculation. Cassman Dec. ¶ 5.
During the recess, Movant's counsel asked the government's counsel to check with the complaining witnesses to see whether their version of the telephone call to India could be reconciled with Movant's version. Cassman Dec. ¶ 6. Government counsel informed Movant's counsel that the three witnesses confirmed their version of the telephone call as set forth in the PSR and that the witnesses corroborated each other. Id. With this information, Movant's counsel advised Movant of his options and Movant decided to agree to modify ...