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Reddy v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


May 19, 2005

LAKIREDDY BALI REDDY, MOVANT,
v.
UNITED STATES OF AMERICA, RESPONDENT.

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.

BACKGROUND

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).

I. Plea Agreement

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

II. Presentence Report

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.

III. Sentencing Hearing

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.

RT at 33-35.

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.

RT at 35-36.

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.

RT at 37-38.

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 his plea agreement to add the four points that the Court had identified and to accept a sentence of ninety-seven months in prison. Id.

IV. Translator's Alleged Obstruction of Justice

On June 22, 2001, shortly after Movant's sentencing, Victim #5 told the government that Uma Rao, the government contract interpreter, had told her "that when [Victim #5] describes her victimization by [Movant] and his family, that she is to 'take small things and make them bigger.'" Movant's Errata Ex. F. Victim #5 said that Rao told her that if she told the government investigators that Rao told her to embellish her story, Rao would say she was lying. Id. The government immediately informed Movant's attorneys of this information. The government then re-interviewed all the victims.

A. Re-interviews

In her re-interview, Victim #1 said that Rao told her to exaggerate by making little things into bigger ones when she was being interviewed by government investigators. Movant's Ex. G, FBI 224*fn2 (Government Agents' Reports of Re-interviews of Victims). Rao also told Victim #1 that if she told anyone that Rao had told her to exaggerate, Rao would tell the investigators that it was Victim #1's "brain idea." Id. Victim #1 said that, despite what Rao told her, she did not exaggerate anything she told the investigators in this matter. Id. Victim #1 said that the allegations concerning herself in the superceding indictment and plea agreement for Movant were accurate. Id.

In her re-interview, Victim #2 said that Rao never told her to exaggerate or lie about the events that occurred between herself and Movant. Movant's Ex. G, FBI 245. Victim #2 said that, except for one minor detail, the allegations concerning herself in the superceding indictment and plea agreement for Movant were accurate. Movant's Ex. G, FBI 238.

In her re-interview, Victim #4 said that Rao never told her to exaggerate about the events that occurred between herself and Movant. Movant's Ex. G, FBI 228. Victim #4 said that the information about herself in the superceding indictment and plea agreement for Movant was accurate. Id.

In addition to her allegations above, Victim #5 also said that Rao did not want her talking to other Telugu speakers. Id. Victim #5 said it was her opinion that Rao wanted her and the other victims to depend solely on Rao. Id. Victim #5 said that Rao encouraged another victim to fake a heart incident and to inform the government about it. Id. Victim #5 said that she told Rao she did not need to embellish what happened to her because the things that really happened were already bad. Movant's Ex. G, FBI 234.

Victim #5 was read the report from her previous interview and asked to point out the embellishments she made in it. Movant's Ex. G, FBI 229. Victim #5 pointed out two changes regarding Movant: (1) she did not know for a fact that all of the girls Movant brought to the United States had sex with him, but she believed the girls were required to have sex with him before coming to America; and (2) she did not know for certain whether another girl*fn3 had sex with Movant in order to go to America. Id. Victim #5 made four other clarifications which did not involve Movant.

Regarding Movant's telephone call to her when she was in India, Victim #5 said that Movant told her that American investigators were going to ask a lot of questions and that Movant told her not to show up for the interview and not to be home. Movant's Ex. G, FBI 235. Victim #5 said that Victims #4 and #7 also talked individually to Movant and that afterwards they talked to each other about the phone call. Id. She believes that Movant essentially said the same thing to each girl, that they should not be available to be interviewed by American investigators. Id.

In her re-interview, Victim #6 said that Rao told her to exaggerate to government investigators what Movant and his family did to her. Movant's Ex. G, FBI 226. Rao warned Victim #6 that if she told the investigators that Rao had told her to exaggerate, they would not believe her because she was uneducated and from a village. Id.

Victim #6 was read the report from her previous interview and asked to point out the embellishments she made in it. Id. Victim #6 made four clarification including that she had not been truthful about her age and her salary. The other three clarifications did not concern Movant. Id.

In her re-interview, Victim #7 said that Rao had told her to exaggerate the events that occurred between herself and Movant and his family. Movant's Ex. G, FBI 231. Victim #7 was told by Rao that if she told the American investigators that Rao told her to exaggerate, Rao would say that Victim #7 could not be trusted because she was a village girl. Id.

Victim #7 was read the reports from her previous interviews and asked to point out the embellishments she had made in them. Id. Victim #7 made eight clarifications. The clarifications concerning Movant were: (1) Movant never told her to have sex with Vijay Lakireddy or any of Movant's relatives; she willingly had sex with Vijay because she liked him; (2) she was not afraid of Movant: and (3) she never said that Movant had gone to the apartment building where Victim #3 died and said, "These girls are out of my life;" although another Reddy family member wanted her dead, Movant would not have wanted her dead. Id. at FBI 232. Victim #7 also said that she believes Movant is a good man and is concerned that Rao made his prison sentence worse than he should have gotten. Id. at FBI 225. Victim #7 said that Movant never sent her to other men because she is related to him and they are from the same caste; however, she did hear Movant instruct other girls to go to his sons and other relatives to have sex with them. Id.

In regard to Movant's telephone call to India, Victim #7 stated that Movant told her, Victim #4 and Victim #5 what to say if they were interviewed by American investigators. Movant's Errata Ex. I, FBI 214-15. Victim #7 stated that Movant told her that if she were interviewed, she should say that Movant was like a god, that he gave her a place to live, food to eat and paid her $1,000 a month to work for him in America. Id.

B. Rao's Role in the Investigation

Beginning in February, 2000, Rao commenced performing translation services for government agents in their interviews of Victims #1 and #2.*fn4 Over the next fourteen months, through April, 2001, Rao served as the government's primary translator for Victims #1 and #2 and later for each of the four other victims. From February, 2000 through November, 2000, Rao had ninety-eight contacts with Victim #1 totaling 284 hours. From February, 2000 through November, 2000, Rao had seventy-nine contacts with Victim #2 totaling 165 hours. From December, 2000 through April, 2001, Rao had at least forty-seven contacts with Victim #1 totaling at least twenty-nine hours, thirty-four contacts with Victim #2 totaling at least thirty-eight hours, seventeen contacts with Victim #4 totaling at least nine hours, one contact with Victim #6 and four contacts with Victim #7.

Rao also translated for the victims' interviews by the Immigration and Naturalization Service and the Berkeley Police Department and she translated for discussions between the victims and their civil and immigration attorneys.

V. Evidence Submitted in Supplemental Memo

In the months after Movant's § 2255 motion was briefed, Movant's counsel obtained the victims' depositions from their civil lawsuit against Movant and also obtained the victims' therapist and doctor records. In brief, the evidence corroborates Movant's belief that the victims may have been exaggerating the emotional and psychological trauma they suffered as a result of Movant's conduct or Rao, who translated during psychotherapy sessions for Victims #1 and #2, may have mistranslated to make it appear that the victims were suffering more. As a result, the PSR upon which Judge Armstrong relied during sentencing may have contained incorrect information. Furthermore, after Victims #4, #5 and #7 withdrew from the civil lawsuit, Movant's counsel interviewed them regarding the telephone call that was the basis for Judge Armstrong's upward adjustment for obstruction of justice. Each of these girls stated that Movant never told her to avoid or to lie to United States investigators or to delay her return to the United States until after the end of Movant's criminal case.

LEGAL STANDARD

Under 28 U.S.C. § 2255, the federal sentencing court is authorized to grant relief if it concludes 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." If the court finds that relief is warranted under § 2255, it must "'vacate and set the judgment aside'" and then do one of four things: "'discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.'" United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999) (quoting 28 U.S.C. § 2255).

DISCUSSION

In his original and supplemental motions, Movant argues that his conviction and sentence must be vacated on the grounds that: (1) the government's misrepresentations rendered the modified plea agreement involuntary and unintelligent; (2) the misconduct constituted a fraud on the Court; (3) the modification of the plea agreement violated Movant's right to due process; (4) Rao's bias and distortions of the victims' statements violated Movant's rights to due process and to confront witnesses; and (5) the mistake of fact regarding the plea agreement's evidentiary basis requires rescission of the agreement. In its original and supplemental responses, Respondent contends that the motion to vacate the conviction must be denied on the following grounds: (1) Movant entered his plea agreement voluntarily and intelligently;

(2) Movant waived his right to a collateral attack on his plea agreement; and (3) there is no evidence that Movant is actually innocent of the crimes to which he plead guilty. Respondent does not oppose Movant receiving sentencing relief with a reduction of his sentence to a term of seventy-eight months.

I. Motion to Vacate Sentence

Because Respondent agrees with Movant that the factual basis for Judge Armstrong's upward adjustments cannot be relied upon because of the malfeasance of the interpreter, the Court GRANTS Movant's motion to vacate his sentence and will resentence him.

II. Motion to Set Aside Conviction

A. Voluntary and Intelligent Plea

Movant argues that his plea was not voluntary or intelligent because he "acquiesced to the modified and more onerous plea agreement on the basis of material and critical, if unknowing, factual mis-statements by the government."

Due process requires that a guilty plea be both knowing and voluntary because it constitutes the waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 242-43 (1969).

The long-standing test for determining the validity of a guilty plea is "'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Parke v. Raley, 506 U.S. 20, 29 (1992). This requires a review of the circumstances surrounding the plea and the likely consequences. Brady v. United States, 397 U.S. 742, 749 (1970). However, "the Constitution, in respect to a defendant's awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor." United States v. Ruiz, 536 U.S. 622, 630 (2002). A habeas petitioner bears the burden of establishing that his guilty plea was not knowing and voluntary. Parke, 506 U.S. at 31-34.

"A plea is 'involuntary' if it is the product of threats, improper promises, or other forms of wrongful coercion and is 'unintelligent' if the defendant is without the information necessary to assess intelligently 'the advantages and disadvantages of trial as compared with those attending a plea of guilty." United States v. Hernandez, 203 F.3d 614, 619 (9th Cir. 2000) (citations omitted). The voluntariness of a plea focuses on the extent to which a defendant is permitted to make a free choice among the alternatives available at the plea stage, the intelligence of a plea focuses on whether the defendant's choice among those alternatives is made with the information necessary to choose between them. Id. at 619 n.5.

1. Voluntariness

Citing Brady, 397 U.S. at 755, Movant argues that his plea cannot be deemed voluntary because it was induced by misrepresentations. Respondent contends that misrepresentations sufficient to render a plea involuntary do not include those regarding the weight or the quality of the government's evidence.

The citation in Brady to which Movant refers is a quotation from Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957) (en banc), rev'd on other grounds, 356 U.S. 26 (1958):

[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).

Shelton addressed a § 2255 motion in which the movant alleged that the government had made misrepresentations in negotiating the plea agreement that it would dismiss an additional count in the indictment, seek the dismissal of an indictment pending in another district and recommend a sentence of one year. Id. at 572. Brady addressed a § 2255 motion in which the movant alleged that his plea was involuntary because the government made misrepresentations regarding the reduction of sentence and clemency. Brady 397 U.S. at 744. The same is true for two other cases cited by Movant. See Santobello v. New York, 404 U.S. 257, 260-61 (1971) (addressing prosecution's failure to keep promise regarding sentencing recommendation made in negotiating plea bargain); Correale v. United States, 479 F.2d 944, 947 (1st Cir. 1973) (addressing government's misrepresentation of sentencing recommendation it promised to make as part of plea bargain).

The cases submitted by Movant indicate that the type of government misrepresentations that would render a guilty plea involuntary are government misrepresentations in negotiating a plea bargain affecting the length of the defendant's sentence. The type of alleged misrepresentations that caused the Court to reject the sentence recommended in the plea agreement are not the sort of misrepresentations addressed in Brady and its progeny. At Movant's sentencing hearing and again in response to this § 2255 motion, the government argued and continues to argue that Movant's sentence should be the sentence that was negotiated between the government and Movant in the original plea agreement. Movant has submitted no evidence to show that the government misrepresented or failed to support the sentence in the original plea agreement. The misrepresentations were made by the victims or the contract interpreter or both. There is no evidence that the government was aware of them before it disclosed them.

As pointed out by Respondent, Movant provides no evidence to contradict his in-court statements admitting guilt. Movant does not provide evidence that he was persuaded to plead guilty by threats or that he did not understand the consequences of his decision to enter his guilty plea. The revised plea agreement provided that Movant would be sentenced to ninety-seven months and that is the sentence he received. Therefore, he cannot say that the government misrepresented or he was deceived about the consequences of his plea of guilty. Therefore, the Court concludes that Movant's plea of guilty pursuant to the plea agreement was voluntary.

2. Intelligence

Movant argues that he did not enter into the revised plea agreement intelligently because he acquiesced on the basis of material factual mis-statements. According to Movant, the evidence suggests that the effects of Rao's influence were more pervasive than is currently known and that the credibility of Victims #1, #2 and #4 is also at issue, even though they say they did not embellish their stories, because they all benefitted financially from the restitution portion of Movant's sentence and they knew Rao longer, spent more time with her and were much closer to her than the witnesses who admit they followed Rao's suggestions to exaggerate their stories.

A recent Supreme Court decision, United States v. Ruiz, 536 U.S. 622 (2002) is instructive regarding the type of information a defendant must have to enter intelligently into a plea agreement with the government. In Ruiz, the Court held that the "Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant." Id. at 633. The Court reasoned that, although the Fifth and Sixth Amendments provide that defendants have the right to receive exculpatory impeachment material from prosecutors in order to guarantee they have a fair trial, a defendant who pleads guilty forgoes a fair trial as well as other accompanying constitutional guarantees; in other words, impeachment information is important to the fairness of a trial, not to whether a plea is voluntary and intelligent. Id. at 629. The Court noted that although the more information the defendant has, the more aware he is of the likely consequences of his plea and the wiser his decision will be, the "Constitution does not require the prosecutor to share all useful information with the defendant. And the law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances ---even though the defendant may not know the specific detailed consequences of invoking it." Id. The Court explained that "the Constitution, in respect to a defendant's awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor." Id. at 630.

Movant does not claim that the government failed to disclose any exculpatory information, much less any information regarding his factual innocence, nor does he argue that he is innocent of the crimes to which he plead guilty. He has no evidence that the government knew of the translator's misconduct before he entered his plea. Movant does not argue that, but for the alleged misstatements, he would not have plead guilty. Therefore, as in Ruiz, Movant's plea was entered into intelligently.

Movant's claim for vacating his conviction on the ground that his plea was not voluntary or intelligent must be denied.

B. Fraud on the Court

Movant argues that his plea must be vacated because it is the product of a fraud on the Court. Citing Alexander v. Robertson, 882 F2d. 421, 424 (9th Cir. 1989), which provides criteria for invalidating a judgment for fraud on the court, Movant argues that Rao's behavior meets any of the criteria and thus his plea must be set aside.

In Alexander, the Ninth Circuit suggested that misconduct constituting fraud on the court is the type that harms the integrity of the judicial process and that it may arise in situations where injury to the public is primarily and extraordinarily involved. Id. The Ninth Circuit quoted with approval the definition from Moore's Federal Practice:

'Fraud upon the court' should . . . embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.

Id. (quoting 7 J. Moore & J. Lucas, Moore's Federal Practice, ¶ 60.33 at 515 (2d ed. 1978).

Fraud on the court is an adequate ground for setting aside a guilty plea accepted by the court. United States v. PartidaParra, 859 F.2d 629, 632 (9th Cir. 1988).

Movant argues that Rao functioned as the prosecution's indirect agent for purposes of presenting the sentencing allegations to the Probation Department and to the Court. According to Movant, Rao's misconduct subverted the integrity of the court process so that the judicial machinery could not perform its usual impartial adjudication of the issues in the plea and sentencing proceedings, and undermined the administration of justice and caused injury to the public interest, insofar as that interest is implicated by any criminal action brought by the government.

Movant's argument is based on the fact that, to reject the original plea agreement, the Court relied upon mis-statements engendered by Rao's direction to certain victims to embellish or lie and that Movant relied upon the same mis-statements in deciding to agree to the revised plea agreement. Movant presents no evidence that the mis-statements lead to his plea of guilty. Again, there is no evidence that anyone other than the contract interpreter and some of the victims made any misrepresentations or concealed any evidence.

Therefore, Movant's motion to vacate his conviction on the ground of fraud on the Court is DENIED.

C. Court's Reliance on Unreliable Information

Movant argues that his due process rights were violated because the Court relied upon materially false or unreliable information when sentencing him. In support of this argument, Movant cites several cases which held that the defendant's due process rights were violated where the trial court made false assumptions about a defendant's criminal record, see Townsend v. Burke, 334 U.S. 736, 741 (1948) (State habeas case), the trial court considered invalid prior convictions in sentencing, see United States v. Tucker, 404 U.S. 443 (1972) or the trial court based its sentence on unreliable information from a witness see United States v. Hanna, 49 F.3d 572, 577 (9th Cir. 1995).

As discussed above, the Court grants Movant's motion to be re-sentenced. However, vacating Movant's conviction is not required on this ground.

D. Biased Interpreter Violated Due Process and Confrontation

Rights Movant argues that his constitutional rights to due process and to confront witnesses against him were violated by the use of a biased interpreter. Respondent does not respond to this argument.

Again, although the Court has agreed to vacate Movant's sentence based upon the alleged malfeasance of a biased interpreter, this does not require granting Movant's request to vacate his conviction.

E. Mistake of Fact

Movant argues that because a plea agreement is a contract, applicable contract principles compel the recision of the revised plea agreement because it was founded on a mutual, excusable mistake of fact.

No mistake of fact has been implicated in Movant's decision to plead guilty. Therefore, the motion to vacate the conviction on this basis is denied.

CONCLUSION

For the foregoing reasons, Movant's motion (Docket # 441) is GRANTED in part and DENIED in part; Movant's motion to vacate his sentence is granted and the motion to vacate his conviction is denied. Movant's request for discovery and for an evidentiary hearing is DENIED.

In the light of this order, this matter is referred to the Probation Office for the preparation of a revised pre-sentence report. The Probation Office shall attempt to determine the truth about the psychological effects of Defendant's conduct on the victims, and about any obstruction of justice. The assigned probation officer shall interview each victim, if possible in person, with a reliable interpreter. The probation officer shall discuss with each victim each of the prior statements that victim has made, be it to agents, attorneys, in deposition or to psychologists, and attempt to ascertain the truth, and the reasons for any inconsistencies. The probation officer may also interview the persons to whom the victims made their statements. After the report has been disclosed to the parties, they may file sentencing memoranda according to a schedule they may agree upon, which shall address the appropriate sentence, as well as the law to be applied on re-sentencing. The United States shall prepare a writ of habeas corpus ad prosequendum to ensure Defendant's appearance at the re-sentencing date.

IT IS SO ORDERED.


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