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United States v. Pascual

January 5, 2007


The opinion of the court was delivered by: Honorable David H. Coar


Before this Court is Petitioner Rudolfo R. Pascual's ("Pascual" or "Petitioner") petition for a writ of coram nobis. For the reasons discussed below, this court grants the petition.

I. Facts

Rudolfo Pascual was born in September 1941 in the Philippines. He immigrated to the United States in September 1970, and because a lawful permanent resident in 1974. Pascual has a bachelors degree from Harry Truman College, and currently works in his brother's company in California. Pascual lived and worked in Chicago from approximately 1978 through 2003.

On December 28, 2004, Pascual was charged in a two-count information with filing fraudulent income tax returns on behalf of himself and three co-workers. On March 17, 1995, Rudolfo R. Pascual pled guilty to two counts of filing fraudulent tax returns. This Court, pursuant to a written plea agreement, sentenced Pascual to two years of probation, which he completed without incident.

During the criminal case, one of Pascual's concerns was that the criminal charges might affect his immigration status. He was fearful of being deported. Pascual's attorney, David Platek, informed him that pleading guilty to his criminal charges would not have an impact on his immigration status. Pascual agreed to plead guilty to the two charges contained in the information. In the plea agreement, Pascual admitted that he knowingly caused to be filed fraudulent tax forms for himself and his co-workers by understating the amount of tax owed and overstating the refunds due.

At the change of plea hearing, this Court questioned Pascual to determine whether he was competent to plead. Pascual claimed he had never been under the care of a doctor or hospital for a mental condition, and neither Platek nor prosecuting attorney expressed doubts as to Pascual's competence.

Pascual was sentenced on June 9, 1995. At the sentencing hearing, Platek commented that Pascual seemed to have an "inability to tell the's not a criminal intent to be dishonest, but it really is a psychological problem that I don't think is addressed...[there is] something going on inside his head that makes it exceedingly difficult for him to be forthright with the truth." Transcript, June 9, 1995, at 3-4. Platek further asked the court to make it a condition of probation that Pascual receive psychological counseling. Platek states, "I really think that Mr. Pascual is psychologically incapable of formulating the responses that this Court would normally expect to hear from an admitted felon who is now accepting responsibility...if we're not very careful, we might actually be holding something against Mr. Pascual that he is psychologically incapable of doing." Id. at 12. Platek states, "I have no report...I have not had him tested. I did not realize in my dealings with him that this problem was so severe." Id. Pascual was sentenced to two years probation, with four months in home confinement.

On September 9, 2004, Pascual was detained by the INS at the Los Angeles airport upon returning from the Philippines. Pascual was notified that he was ineligible for admission into the United States because of his 1995 conviction of a crime involving "moral turpitude." Pascual was denied official admission but was paroled into the country pending formal removal proceedings. On March 21, 2005, Pascual was served with a Notice to Appear before an immigration judge to show why he should not be removed from the United States based on his prior criminal record. That proceeding has been continued and remains pending at the time of filing of this writ.

Pascual retained an immigration lawyer in California, Judith Foster, to handle the removal proceedings. Foster became concerned about Pascual's mental competency, and retained Marc Sadoff, a Board Certified Diplomate in Clinical Social Work and a Licensed Social Worker, to perform a psychological evaluation on Pascual.

On December 27, 2004, Sadoff conducted an eight hour evaluation of Pascual, which included two psychological tests and a private interview with Pascual's brother, Silvestre. Sadoff offered a definitive diagnosis that Pascual suffered from a severe psychological condition known as Dissociative Identity Disorder ("DID). DID is described as "a disruption in the usually integrated functions of consciousness, memory, identity, or perception of the environment." Psychological Evaluation by Sadoff, Pascual's Exhibit H, at 6 (citing the Diagnostic and Statistical Manual of the American Psychiatric Association). Specifically, Pascual hears voices and experiences hallucinations. Pascual admitted to being sexually abused as a child, and Sadoff states that there is a correlation between a history of sexual abuse and dissociative symptoms, and recognizes that Pascual has suffered mental impairment throughout his life. Sadoff suspects that Pascual may have several other Axis I mental disorders, but has not made definitive diagnoses.

On December 5, 2005, Pascual filed a petition for writ of coram nobis with this court on the basis of ineffective assistance of counsel.

II. Legal Standard

The writ of coram nobis allows for the reopening of litigation after final judgment, and exhaustion or waiver of any statutory right of review, under circumstances compelling such action to achieve justice. United States v. Morgan, 346 U.S. 502, 511 (U.S. 1954). This extraordinary legal remedy is used to correct errors of fact or law "of the most fundamental ...

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