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United States v. Tahzib

June 29, 2009

UNITES STATES OF AMERICA, PLAINTIFF,
v.
NASSIM TAHZIB, DEFENDANT.



The opinion of the court was delivered by: John F. Grady, United States District Judge

MEMORANDUM OPINION

The defendant Nassim Tahzib pled guilty to wire fraud and income tax evasion and was sentenced to a period of 30 months, the low end of the applicable 30-37 month guideline range. He appealed on the basis that he should have received a lower guidelines sentence, based largely upon his contention that his offenses were mitigated by the fact that they were caused by his gambling addiction. We had rejected this argument both because we were not persuaded he had a gambling addiction and because even if he did, it would do nothing to explain his income tax evasion, a separate basis for his concurrent 30-month sentences. The Court of Appeals affirmed, United States v. Tahzib, 513 F.3d 692 (7th Cir. 2008).

Tahzib has now filed a motion under 18 U.S.C. § 2255, seeking to set aside his conviction and sentence. We have denied the motion, and the purpose of this opinion is to explain why we denied it.

The defendant has discovered that the conviction is likely to result in his deportation upon his release from prison. (He is a citizen of the United Kingdom.) His hope is that if his conviction were to be set aside, he would be acquitted in a new trial and thereby avoid deportation.

The Geneva Convention

Tahzib's motion is based on two general grounds. First, he claims the government violated Article 36 of the Vienna Convention by failing to notify him of his right to have the assistance of the British consulate prior to the time he changed his plea. The government responds that the right to consular assistance applies only when the individual is detained and that Tahzib had not been detained prior to the time his plea of guilty was entered. The government cites the case of Osagiede v. United States, 543 F.3d 399, 402 (7th Cir. 2008). In that case, the court explained the obligations imposed by Article 36:

Article 36 imposes three separate obligations on a detaining authority: (1) inform the consulate of a foreign national's arrest or detention without delay; (2) forward communications from a detained national to the consulate without delay, and (3) inform a detained foreign national of "his rights" under Article 36 without delay. Vienna Convention, art. 36(1)(b), 21 U.S.T. 77, 596 U.N.T.S. 261.

Id. at 402. The defendant argues that he was in fact detained for several hours when he was fingerprinted, photographed and processed after his guilty plea was entered, but this is not the detention contemplated by Article 36. Moreover, whatever need there could have been for consular assistance prior to Tahzib's entry of his plea of guilty no longer existed after his plea had been entered. He was not detained before the plea, and even if the brief post-plea processing could be regarded as detention, it was irrelevant for Article 36 purposes.

In Osagiede, the Court explained the utility of Article 36 in cases where foreign nationals are being detained:

Article 36 furthers an essential consular function: "protecting ... the interests of the sending State and of its nationals." Vienna Convention, arts. 5(a), (e), 21 U.S.T. at 82-83. This "protective function" is one of the most important functions performed by a consulate. Foreign nationals who are detained within the United States find themselves in a very vulnerable position. Separated from their families and far from their homelands, they suddenly find themselves swept into a foreign legal system. Language barriers, cultural barriers, lack of resources, isolation and unfamiliarity with local law create "an aura of chaos" around the foreign detainees, which can lead them to make serious legal missteps.

Id. at 402-03.

Tahzib's reliance on Article 36 is especially inappropriate when one considers the difference between his situation and that of many foreign nationals residing in this country. He was born in 1955 in Iran, and his parents emigrated with him to Scotland when he was a baby. He was reared in Scotland. (Presentence Investigation Report at 12.) He entered the United States in 1980 on a British visa and remained here illegally after the visa expired. He lived in California until he moved to Chicago in 1992, where he remained until he returned to California in 2001. Id. He has three children, all born in the United States. Whether he speaks any language but English does not appear from the record. In 1991, the defendant had an experience with the American criminal justice system. He was convicted in Los Angeles, California, of grand theft and sentenced to a term of 180 days. Like the present wire fraud conviction, the offense involved the theft of money from defendant's employer, a car dealer. (Presentence Investigation Report at 10; Ex. A to Government's Sentencing Mem.)

Our conclusion is that Article 36 of the Vienna Convention does not apply to the defendant and affords him no basis for setting ...


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