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United States v. Obaei

United States District Court, N.D. Illinois, Eastern Division

June 16, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
HOSSEIN OBAEI, Defendant. Criminal Case No. 05 CR 254

MEMORANDUM OPINION AND ORDER

MILTON I. SHADUR, Senior District Judge.

Hossein Obaei ("Obaei") was convicted together with his co-defendant Amir Hosseini ("Hosseini") on nearly 100 counts that covered a host of criminal offenses. After an unsuccessful appeal (reported sub nom. United States v. Hosseini, 679 F.3d 544 (7th Cir. 2012))[1] and an unsuccessful petition for certiorari, Obaei filed a 28 U.S.C. § 2255 ("Section 2255") motion that barely got in under the wire in terms of timeliness (with the benefit of the "mailbox rule" as established in Houston v. Lack, 487 U.S. 266 (1988)).

Before this opinion turns to an analysis of Obaei's multiple grounds as advanced in his Section 2255 motion, it is useful to set forth the background against which that analysis must be considered. Here is the beginning of the Court of Appeals' opinion (Appeal at 548) that provided a thumbnail description of the nefarious activities with which Obaei and Hosseini were charged and of which a jury found them guilty beyond a reasonable doubt, after which the Court of Appeals upheld their convictions:

Amir Hosseini and Hossein Obaei operated three automobile dealerships in Chicago, and from 1995 to 2005, sold many luxury cars to Chicago-area drug dealers. Indeed, more than half their sales during this period were to drug traffickers, who preferred to deal with Hosseini and Obaei because they were willing to accept large cash payments in small bills with no questions asked. They also falsified sales contracts and liens, ignored federal tax-reporting requirements, and arranged their bank deposits to avoid triggering federal bank-reporting requirements. Based on this activity and more, Hosseini and Obaei were charged in a massive 100-count indictment alleging RICO conspiracy, money laundering, mail fraud, illegal transaction structuring, bank fraud, and aiding and abetting a drug conspiracy. After a five-week trial, a jury convicted on 97 counts (three were dismissed before trial), and the district court imposed long prison terms.

Then, after providing some further details in summary form in the opinion's Background section (id. at 548-49), the Court of Appeals focused on the charges against Obaei and related the ultimate results of the trial and sentencing (id. at 549):

Obaei was charged with RICO conspiracy; aiding and abetting a drug-trafficking conspiracy, 21 U.S.C. § 846; seven money-laundering counts; 30 counts of structuring; three counts of bank fraud, 18 U.S.C. § 1344; and four counts of mail fraud. Two of the money-laundering counts and one structuring count were dismissed before trial, and the jury convicted the defendants on the remaining 97 counts. Hosseini was sentenced to 240 months in prison; Obaei received a 180-month sentence. The district court also ordered all three dealerships forfeited.

Unfortunately for Obaei, his sense of timing in avoiding the one-year limitation bar erected by Section 2255(f) was far better than any of his substantive positions advanced before this Court, because not one of the nine grounds that he continues to pursue in Section 2255 terms[2] has merit. After the government had dropped the ball for an extended period of time in failing to respond to Obaei's long-pending Section 2255 motion despite this Court's order to do so, this Court finally received the government's response in late March of this year, and it promptly granted Obaei the right to submit a reply (see Rule 5(d) of the Rules Governing Section 2255 Proceedings for the United States District Courts) on or before April 29. On April 13 Obaei responded with a pro se document captioned "Supplamental [sic] Rebuttal Answers to Governments Response in Opposition to Motion To Vacate, " and of course this opinion has taken all of the parties' submissions into account.

Because the government's 21-page response is so comprehensive in refuting each of Obaei's contentions, this opinion will not seek "to gild refined gold, to paint the lily"[3] by repeating government counsel's detailed discussion. Instead this opinion will provide brief summaries of the deficiencies in Obaei's contentions, referring to the government's response (which this Court has found persuasive in all respects) for a more expansive discussion, supplemented where applicable by references to our Court of Appeals' treatment in the Appeal.

Obaei's Ground One faults his trial counsel for failing to argue the need to prove that Obaei laundered the net profits (rather than the gross receipts) from his drug dealer customers' illegal activities to prove a violation of 18 U.S.C. § 1956(b). But that contention is torpedoed by the treatment of that subject by the Court of Appeals on Obaei's direct appeal. In that respect the government's March 26, 2015 response in opposition to Obaei's Section 2255 motion (a response cited here as "G. Mem. -") treats fully and persuasively (G. Mem. 6-8) with the Court of Appeals' discussion and disposition on that subject (Appeal at 549-52). Just as the Court of Appeals rejected that contention, this Court does likewise and rejects Ground One of Obaei's motion.

Ground Two inexplicably tags Obaei's trial counsel with a purported failure to seek a severance. That is simply dead-wrong, for not only did his counsel join in an early motion for severance brought by Hosseini's counsel, but he also filed a separate written pretrial motion that sought severance. And as if that were not enough (and it surely is), the Court of Appeals clearly held on the issues of joinder and severance raised by Hosseini that the two defendants and all of the charges were properly joined, so that a joint trial was appropriate (Appeal at 552-54). Ground Two fails as well.

Ground Three targets Obaei's appellate lawyer, charging him with ineffectiveness of representation because of claimed errors (1) in failing to argue that this Court had erred in denying severance and (2) in failing to argue misjoinder. As the government responds (G. Mem. 10-11), Hosseini's appellate counsel did advance those arguments, and they were shot down by the Court of Appeals (Appeal at 552-54). It is nothing short of absurd to label an appellate lawyer as constitutionally inadequate because of his failure to argue a dead-bang loser on the client's behalf. Ground Three is equally groundless.

Next, Ground Four returns to the claimed constitutional inadequacy of Obaei's trial counsel, this time in having assertedly provided Obaei with "almost no defense" and in having assertedly failed to engage in cross-examination or to call favorable witnesses or otherwise present a defense theory. As the government correctly responds (G. Mem. 11-12), Obaei must be describing a different trial from the one over which this Court presided. Obaei's trial counsel did, as G. Mem. 11 states, "provide[ ] defendant with a vigorous defense during the pretrial, trial and sentencing phases." And as for the charged failure to call witnesses, Obaei's counsel did make such an attempt but was denied the possibility of doing so by this Court's rulings based on Fed.R.Evid. 401 and 403. In addition, G. Mem. 12 points out persuasively that one of the proposed witnesses identified by Obaei "was likely to do more harm than good to defendant's case." In sum, Ground Four is also a loser.

As for Ground Five, there Obaei seeks to pillory his trial counsel "for not honoring Petitioner's Request that they prepare him to testify and call him as a witness in his own defense." That claim is totally without merit - there are a number of bases for rejecting it. For one thing, as stated at G. Mem. 13-14:

Defendant ignores the fact that the Court admonished him at trial and advised him that the decision whether to testify belonged to him, and that he gave no indication at that time that he preferred to exercise his ...

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