United States v. Noorzai

953 F. Supp. 2d 499, 2013 WL 3581926
CourtDistrict Court, S.D. New York
DecidedJuly 12, 2013
DocketNo. 12 Civ. 7039(DC); No. 05 Cr. 19(DC)
StatusPublished
Cited by2 cases

This text of 953 F. Supp. 2d 499 (United States v. Noorzai) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Noorzai, 953 F. Supp. 2d 499, 2013 WL 3581926 (S.D.N.Y. 2013).

Opinion

OPINION

CHIN, Circuit Judge.

On September 23, 2008, a jury convicted defendant Bashir Noorzai of narcotics violations, including conspiracy to import heroin into the United States. On April 30, 2009,1 sentenced him to life imprisonment. Noorzai now moves, through counsel, to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that his trial counsel, Ivan Fisher, Esq., provided ineffective assistance. For the reasons set forth below, the motion is denied.

BACKGROUND

A. The Facts

The following facts are derived from the transcripts of the trial and sentencing, the presentence investigation report, and other submissions to the Court, including sworn statements from Noorzai and his trial counsel.1

1. Noorzai’s Offense Conduct

Noorzai was an Afghan tribal leader and mujahideen warlord who owned hundreds of acres of land in the Afghan province of Kandahar. PSR ¶¶ 10, 49, 58; Trial Tr. at 75-76. At Noorzai’s direction, laborers cultivated his land and grew crops, including opium. Trial Tr. at 79, 682-83; 9/17/2012 Noorzai Aff. ¶ 12. Noorzai’s [503]*503subordinates then converted the opium into morphine and heroin, which was subsequently sold to heroin brokers at great profit and smuggled out of Afghanistan. PSR ¶¶ 10, 59; Trial Tr. at 86-92,114,118, 387, 682, 685; 9/17/2012 Noorzai Aff. ¶ 12.

Noorzai knew that some of the heroin from his land was ultimately smuggled into the United States in clothing and suitcases. PSR ¶¶ 10,15-19; Trial Tr. at 92,102, 114, 389-90, 552-53, 688, 702, 713-14; 9/17/2012 Noorzai Aff. ¶ 12. Between 1990 and his arrest in 2005, Noorzai was responsible for the importation and distribution of at least thirty kilograms of heroin. PSR ¶¶25, 31. The Taliban permitted Noorzai to continue his drug cultivation and trafficking activities with impunity, in exchange for Noorzai’s financial support. PSR ¶¶ 11-12; Trial Tr. at 91-97,173, 687, 692-93, 696.

2. Noorzai’s Arrest in the United States

In 2004, Noorzai met in Dubai and Pakistan with two Americans, “Mike” and “Brian,” who identified themselves as officials of the Department of Defense and Federal Bureau of Investigation, respectively. 8/7/2007 Noorzai Aff. ¶¶ 61, 62, 128; 9/17/2012 Noorzai Aff. ¶¶ 5, 6. Mike and Brian purportedly informed Noorzai that they were studying the financial support of terrorist organizations in Afghanistan and denied that their project was a counter-narcotics operation. 8/7/2007 Noorzai Aff. ¶ 63; 9/17/2012 Noorzai Aff. ¶ 5. According to Noorzai, Mike and Brian invited him to cooperate and meet with representatives of the U.S. Government and advised him that he would be granted safe passage to and from the United States. 8/7/2007 Noorzai Aff. ¶¶ 69-70, 73, 124, 134-35; 9/17/2012 Noorzai Aff. ¶¶ 5-6.

Unbeknownst to Noorzai, on January 6, 2005, a grand jury returned a sealed indictment charging him with violations of the federal drug laws and a warrant was issued for his arrest. Gov’t Opp. at 5-6.

On April 13, 2005, Noorzai traveled to New York to meet with law enforcement agents. 8/7/2007 Noorzai Aff. ¶ 136; 9/17/2012 Noorzai Aff. ¶ 8; PSR ¶ 21; Trial Tr. at 63. When Noorzai arrived in New York, he was read his Miranda rights and escorted to a hotel, where he was interviewed by law enforcement agents over an eleven-day period. Each day, Noorzai was read his Miranda rights before the interview began, and each day he waived those rights and continued talking to the law enforcement agents. 9/17/2012 Noorzai Aff. ¶ 10; PSR ¶ 21; Trial Tr. at 64-65, 68-69. Noorzai was questioned on a variety of issues, including his knowledge of, and participation in, narcotics trafficking. 9/17/2012 Noorzai Aff. ¶ 12; PSR ¶ 21; Trial Tr. at 67, 73.

On April 23, 2005, Noorzai was advised for the first time about the indictment and warrant for his arrest, and he was placed under arrest. On April 14, 2008, a Second Superseding Indictment was filed, charging Noorzai with one count of conspiracy to import one kilogram or more of heroin into the United States and to distribute one kilogram or more of heroin knowing or intending that it would be imported into the United States, in violation of 21 U.S.C. §§ 952(a), 959, 960(a)(3), 960(b)(1)(A) and 963; and one count of conspiracy to distribute and to possess with intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. Ind’t ¶¶ 1-7.

B. Prior Proceedings

1. Pretrial Motions

Prior to trial, Noorzai moved to dismiss the Indictment and to suppress the statements he made to law enforcement agents [504]*504after entering the United States. See Omnibus Pretrial Mot.; 8/7/2007 Noorzai Aff.; 1/28/2008 Fisher Letter; Pretrial Mot. Tr. His motions primarily argued that (1) the government should be bound to its promise that he would not be arrested, which it used to lure Noorzai to the United States, and (2) Noorzai could not have knowingly and voluntarily waived his rights, as he was unaware that he had been charged, and because he had believed the promises of safe passage made to him by government officials. Omnibus Pretrial Mot. at 13-23, 28-35. In support of Noorzai’s motions, Fisher asserted that he had in his possession “voluminous documentation including and not limited to emails between the participants” demonstrating that the promises of safe passage were authorized by the U.S. Attorney’s Office. 1/28/2008 Fisher Aff. ¶ 1.

By opinion dated April 9, 2008, U.S. District Judge Laura Taylor Swain denied Noorzai’s motions. See United States v. Noorzai, 545 F.Supp.2d 346 (S.D.N.Y.2008). The case was reassigned from Judge Swain to me on June 25, 2008. On September 9, 2008, I denied Noorzai’s motion for reconsideration.

2. Trial, Verdict, and Sentencing

Trial commenced on September 11, 2008. The government presented testimony from six witnesses. Defense counsel offered testimony from one witness, and Noorzai did not testify.

On September 23, 2008, the jury returned a verdict of guilty on both counts. On April 30, 2009, I sentenced Noorzai to terms of life imprisonment on each count, to be served concurrently.

3. Appeal

Noorzai appealed his conviction, arguing, inter alia,

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Related

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111 F. Supp. 3d 207 (N.D. New York, 2015)

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953 F. Supp. 2d 499, 2013 WL 3581926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-noorzai-nysd-2013.