United States of America v. Hosseini

Filing 50

MEMORANDUM Order: Defendant Hosseini's motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(1) 49 is denied. Signed by the Honorable Milton I. Shadur on 3/31/2015:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
AMIR HOSSEINI,
Defendant.

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Case No. 13 C 2472
Criminal Case No. 05 CR 254

MEMORANDUM ORDER
On September 12, 2014 this Court issued its memorandum opinion and order ("Opinion")
that addressed and ultimately dismissed this 28 U.S.C. § 2255 ("Section 2255") action in which
Amir Hosseini ("Hosseini") had asserted 11 grounds for securing relief from his conviction and
sentence on all 97 remaining counts of "a massive 100-count indictment alleging RICO
conspiracy, money laundering, mail fraud, illegal transaction structuring, bank fraud and abetting
a drug conspiracy." 1 More than six months later, again acting pro se as he had in originally
filing his Section 2255 motion, Hosseini has submitted a new motion on March 23, 2015 2 in
which he seeks to invoke Fed. R. Civ. P. ("Rule") 60(b)(1) to obtain relief from that
September 12, 2014 dismissal.
Because Rule 60(b)(1) is limited to challenges based on "mistake, inadvertence, surprise,
or excusable neglect," Hosseini attempts to characterize this Court as having "mistakenly failed

1

That quoted language comes from the description given by our Court of Appeals
(United States v. Hosseini, 679 F.3d 544, 548 (7th Cir. 2012)) at the outset of its opinion
affirming Hosseini's conviction and sentence.
2

That is the date that Hosseini lists as his mailing date, so that comports with the
"mailbox rule" under Houston v. Lack, 487 U.S. 266 (1988).

to address the merits of Grounds Seven (7), Eight (8), Nine (9) and Ten (10)" of the 11 grounds
advanced in his Section 2255 motion. Like all of Hosseini's other contentions, that is simply
untrue. Instead those four purported grounds -- each of which charges the claimed
ineffectiveness of his trial counsel in having failed to object to portions of the indictment as
allegedly submitted to the jury at the end of the trial -- were simply unsupported by the record.
Here is the basis on which the Opinion at 6 dealt with those grounds in brief compass:
Grounds Seven through Ten ring several changes on the figurative bell that
comprises charges that an incorrect version of the indictment was delivered to the
jury, together with the jury instructions and verdict form, for purposes of the
jury's deliberations. In that respect this Court had issued several rulings that
called for redaction of portions of the indictment, and nothing that Hosseini has
submitted provides any predicate for believing that the version tendered to the
jury did not match up with those required redactions. Hosseini's speculation to
the contrary carries no weight. All four of those Grounds provide no basis for
Section 2255 relief.
In turn, that ruling was based on the responses that had been made by the government
[Dkt. 13 and Dkt. 30] to Hosseini's Section 2255 motion. Here is the portion of the government's
Dkt. 13 response relating to those four grounds:
Petitioner argues that the version of the indictment submitted to the jury at the
conclusion of the trial was deficient. Where petitioner has new counsel on appeal,
and a question regarding the form of the indictment was not raised on direct
appeal, the issue is procedural defaulted. Moreover, there is no evidence in the
record that the flawed indictment about which petitioner complains was submitted
to the jury. To the contrary, appellate counsel included a chart in the appellate
brief listing the counts of the indictment -- neither Count Five nor Count Twelve
was included on the chart, and a footnote notes that a portion of Count One was
struck on this Court's order. See United States v. Hosseini and Obaei, Nos.
08-1879 and 09-1880. Document No. 64 at 5-6. There is nothing in the record to
indicate what version of the indictment was provided to the jury for its
deliberations.
And here is the portion of the government's Dkt. 30 response to Hosseini's supplemental
submission on the same subject:
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Petitioner also fails to respond to the government's response regarding the version
of the indictment that was tendered to the jury. The redacted indictment is not
included on the docket for petitioner's underlying case, but as noted in the
government's initial response, later references to the indictment do not include the
stricken counts in their analysis. As this Court well knows, indictments are
regularly redacted in a number of ways, such as removal of references to the
grand jury and the deletion of the U.S. Attorney and grand jury foreperson's
signatures, before they are tendered to the grand jury. That the redacted
indictment is not included on the docket is not probative of whether the redacted
indictment was in fact tendered to the jury. Where petitioner has failed to address
evidence that shows the redacted indictment was in fact used for jury
deliberations, he cannot meet his burden under Strickland.
In sum, even apart from the tardiness of Hosseini's current challenge, his current motion
fails on two independent grounds. First, he failed to bring himself under the rubric of Rule
60(b)(1) (for it simply cannot be said that this Court "mistakenly failed to address the merits" of
the four purported grounds at issue), which itself disentitles him to obtain any relief. Second and
at least equally important, his motion fails on the merits. Accordingly Hosseini's motion is
denied.

Date: March 31, 2015

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Milton I. Shadur
Senior United States District Judge

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