Adnan Asan v. United States of America

Opinion and Order on Adnan Asan's Attempt to Vacate His Guilty Plea

by Baurkot & Baurkot: The Immigration Law Group

In a surprising Opinion released by Senior Federal District Court Judge for the Southern District of New York, Charles J. Haight, Jr., a Petition for the issuance of a Writ of Error Coram Nobis, permitting Adnan Asan to withdraw a 1983 guilty plea to a minor federal “telephone” charge. Asan’s Petition alleged ineffective representation by his then-defense Counsel, Jed Rakoff, who now sits as a Federal Judge for the Southern District of New York. Asan argued that Judge Rakoff failed to adequately advise him of his certain deportation from the United States as a result of his plea. In addition to Asan, Judge Rakoff and Alan Cohen, who was the Assistant United States Attorney for the Southern District of New York at the time Asan pled guilty, testified at an evidentiary hearing in early-2012. Alan Cohen is now an Executive Vice President at Goldman Sachs and leads its Global Compliance Division.

The plea was entered after Asan was arrested in connection with a large scale, international drug operation, directed by then-US Attorney Rudolph Giuliani. Asan provided substantial assistance to the federal government, who granted his wife status in the United States and put Asan into the Federal Witness Protection Program for years. After leaving the Federal Witness Protection Program, the federal governmeDepartment of Homeland Security, in 2007, arrested Asan and ordered him deported to Macedonia—the very place that those he cooperated against were also deported. While Asan's Petition was dismissed, the Court sent a strong message to the Secretary of the DHS:

I have been the District Judge presiding over the underlying criminal case since its inception, and am familiar with the entire record. The case has passed through the stages of indictment, plea, sentencing, and two coram nobis petitions, of which this is the second. It began when the United States Attorneys Office for this District conducted an investigation into a major drug conspiracy whose objective was the importation of heroin and other narcotics from [E]astern Europe into the United States. Mr. Asan, resident in this country, was one of numerous facilitators of that conspiracy, not an architect. Having agreed to cooperate with the Government and plead to a lesser charge, and at considerable personal risk, Mr. Asan gave trial testimony material to the conviction of a number of principal conspirators. When this Court sentenced Mr. Asan on his guilty plea in 1984, the Government spoke with such force and eloquence about the nature, extent and importance of his cooperation that I sentenced him to three years’ probation.

Mr. Asan completed his probation without adverse incident. He continued to live in the United States with his wife and children, leading from all indications a law-abiding and honorable life. In 2007, the Secretary decided to deport Mr. Asan to Macedonia, where a number of drug traffickers against whom he had testified, having served their sentences in this country, were now residing. That decision to deport was based solely upon Mr. Asan’s guilty plea to the lesser narcotics charge in 1983, in compliance with his cooperation agreement.

The Secretary decided to deport Mr. Asan after (and notwithstanding) his crucial cooperation with Government prosecutors in a major narcotics case, and after 23 years of law-abiding and productive life in this country as the head of a family. The United States Attorney, in fulfillment of the Government’s promise in the cooperation agreement, wrote to officers in ICE, again describing, praising and emphasizing the value of Mr. Asan’s cooperation with the Government in the underlying case.

The Secretary, or those acting in her behalf, replied in substance to the United States Attorney: “We have your letter. It doesn’t make any difference.” This Court, rejecting the first coram nobis petition, held that the decision to deport rested with the Secretary and was not subject to judicial review. Mr. Asan was deported.

The Secretary has never sought to justify the agency’s decision to deport Mr. Asan. That is not surprising, since no justification is discernible, given the circumstances of this not surprising, since no justification is discernible, given the circumstances of the case. However, the Secretary retains the power she can exercise now . . . . With all due respect, this Court hopes that these words may come to the attention of the Secretary or other responsible officers in the Executive Branch, who will act upon them and thereby fulfill the hallowed maxim “Fiat Justitia Ruat Coelum”: “Let justice be done, though the heavens fall.” If in the name of justice Mr. Asan is now permitted to return to this country and his familfamily, there is no reason to suppose that the heavens would then fall, or (to focus upon the Secretary’s particular responsibility) that the security of the Nation would be compromised.

Raymond Lahoud, Esquire acted for Asan. An appeal is expected to the Second Circuit.

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Reference Info: Decision | Federal, 2nd Circuit, New York | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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