Lin v. USA

Filing 1

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 12/20/2012 as to Jian Tian Lin ; all parties will file all subsequent documents pertaining to this action in docket number 3:12-CV-813-H, restyled as Jian Tian Lin v. United States; Clerk s hall enter the following documents, currently docketed under 3:06-CR-90-H, in the 3:12-CV-813-H docket: Motion to Vacate Final Judgment (DN 69), Motion for Extension of Time to File Response to Motion by the United States (DN 70), Order on 8/24/2012 granting Motion for Extension of Time (DN 71), Filing of Official Transcript of Change of Plea (DN 72), Motion for Extension of Time to File Response/Reply to Motion by the United States (DN 74), Order on 10/5/2012 granting Motion for Extension of Ti me to File Response (DN 75), Response to Motion by USA (DN 76), Motion for Extension of Time to File Response/Reply by Jian Tian Lin (DN 77), Order on 11/14/2012 granting Motion for Extension of Time (DN 79), and Reply to Response by Jian Tian Lin (D N 80). Petitioners writ of error coram nobis is SUSTAINED and that on or before January 11, 2013, Petitioner shall file a proposed final judgment in docket number 3:12-CV-813-H; On or before January 11, 2013, either party may request a hearing to determine appropriate proceedings and/or relief consistent with this order. (Attachments: # 1 DN69, # 2 DN70, # 3 DN71, # 4 DN72, # 5 DN74, # 6 DN75, # 7 DN76, # 8 DN77, # 9 DN79, # 10 DN80)cc:counsel (TLB)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

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UNITED STATES OF AMERICA,
Plaintiff,
VS.
JIAN TIAN LIN,
Defendant.

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Case No. 3:06-CR-00090-H

December 18, 2006
Louisville, Kentucky

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TRANSCRIPT OF CHANGE OF PLEA AND SENTENCING HEARINGS
BEFORE HONORABLE JOHN G. HEYBURN, II
UNITED STATES DISTRICT JUDGE

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APPEARANCES:
For United States:

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For Defendant:

Caroline Pitt Clark
R. Kent Westberry
Landrum & Shouse
220 West Main Street, Suite 1900
Louisville, KY 40202

Interpreter:

Edward Leong

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Daniel P. Kinnicutt
U.S. Attorney's Office
717 West Broadway
Louisville, KY 40202

[Defendant present.]
Dena Legg, CCR, RMR, CRR
Official Court Reporter
221 U.S. Courthouse
Louisville, KY 40202
[phone]
Proceedings recorded by mechanical stenography, transcript
produced by computer.

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(The interpreter, sworn before the proceedings

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commenced, interpreted the following testimony from Chinese into

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English.)

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(Begin proceedings in open court at 11:43 a.m.)

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DEPUTY CLERK:

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THE COURT:

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DEPUTY CLERK:

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Lin, Case Number 3:06-CR-90-01-H.

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MR. KINNICUTT:

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Next case, Your Honor?

Yes.
United States of America v. Jian Tian

Daniel Kinnicutt for the United States

Government.

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THE COURT:

All right.

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MR. WESTBERRY:

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THE COURT:

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MR. WESTBERRY:

We're here for a plea?

Yes, Judge.

Okay.
And we have signed a plea agreement,

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as well as a preliminary order of forfeiture.

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to the court, if you would like.

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THE COURT:

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MR. WESTBERRY:

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THE COURT:

I can tender them

All right.
Thank you.

Mr. Lin, before I allow you to enter your

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guilty plea, I'm going to need to ask you a number of questions

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to make sure you understand your constitutional rights, the

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consequences of waiving them, and to make sure you're doing it

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voluntarily.

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clerk to administer the oath to you.

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Before we go any further, I'm going to ask the

DEPUTY CLERK:

Yes, Your Honor.

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Raise your right hand, please.

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MR. WESTBERRY:

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THE INTERPRETER:

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(Defendant sworn.)

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THE COURT:

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He agrees.
He agrees.

Would you please state your full name and

address, please.

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THE DEFENDANT:

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THE COURT:

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THE DEFENDANT:

My name is Jian Tian Lin.

Okay.

And what's your local address?

It's in Kentucky.

I'm not quite -- I

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couldn't quite remember the exact address or the street name.

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Plus, I do not speak English.

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THE COURT:

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Does anyone have any doubt as to the

defendant's competence to change his plea?
MR. WESTBERRY:

I do not, Judge.

Other than the

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obvious language barrier, he does understand with the help of an

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interpreter.

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THE COURT:

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MR. KINNICUTT:

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THE COURT:

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competent to change his plea.

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Okay.

Mr. Kinnicutt?

No, Your Honor.

Okay.

The court finds that defendant is

By the way, Mr. Lin, if at any time you don't understand

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what's going on, raise your hand.

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and make sure that you do.

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THE DEFENDANT:

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THE COURT:

We'll stop the proceedings

All right?

Yes, sir.

Or you can also tell your interpreter at

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any time if you're not understanding.

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THE DEFENDANT:

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THE COURT:

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Have you had plenty of opportunity to

discuss this case with your attorney?

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THE DEFENDANT:

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THE COURT:

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THE COURT:

Yes, Your Honor, I know.

The fact that you are presumed innocent

and must be proven guilty beyond a reasonable doubt?

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THE DEFENDANT:

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THE COURT:

I understand that.

All right.

THE INTERPRETER:

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THE COURT:

you to testify or testify against yourself?
THE DEFENDANT:

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THE COURT:

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The court finds that the defendant

does understand his constitutional rights.
I gather, Mr. Lin, you're willing to give up your
constitutional rights in order to plead.
THE DEFENDANT:

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THE COURT:

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I understand that, Your Honor.

Okay.

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Sure.

And you understand that no one can force

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The interpreter has to speak a

little louder so the court reporter can take --

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Do you understand your

constitutional rights, your right to trial?
THE DEFENDANT:

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Yes, Your Honor.

Okay.

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Good.

Yes, Your Honor.

Is the defendant -- what counts of the

indictment is the defendant pleading to?
MR. KINNICUTT:

Your Honor, he's pleading to Count 2,

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which is conspiracy to harbor aliens, and that's the sole count

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that he's pleading to.

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THE COURT:

All right.

Now, has anyone forced you or

threatened you in any way to enter into this plea agreement?

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THE DEFENDANT:

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THE COURT:

No, Your Honor.

Okay.

I'm going to ask the United States

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to summarize the plea agreement.

When the United States is

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finished, I'm going to ask you whether that's the agreement as

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you understand it.

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THE DEFENDANT:

Okay.

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MR. KINNICUTT:

Your Honor, in exchange for the

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defendant's plea of guilty to Count 2 of the indictment, at the

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time of sentencing and after sentencing, the government will

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move to dismiss the remaining counts of the indictment.

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The government will also recommend the lowest end of the

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guideline range, which we believe in this case comes out to six

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months.

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lowest end of the range, whatever guideline that is.

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know what it is.

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to adjust his offender score offense level by two, since he is

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accepting responsibility by pleading guilty in this case.

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Furthermore, we're going to recommend a fine at the
I don't

And furthermore, we're going to ask the court

And lastly, Your Honor, the defendant is waiving his right
to appeal or collaterally attack his conviction in this case.
And, I'm sorry, one last thing is that with reference to the
indictment, there's Count 9, which is a notice requirement of

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forfeiture, and the defendant to that end is forfeiting all

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interest that he has in the houses, or the checking account, or

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the restaurant.

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have any interest in it, that it belongs to his brother, but

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he's forfeiting that nonetheless in terms of any rights that he

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may later have to come in and say, "Hey, that was my money."

Now, it is my understanding that he doesn't

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MR. WESTBERRY:

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THE COURT:

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And that is our understanding.

Is that the plea agreement as you

understand it?

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THE DEFENDANT:

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THE COURT:

I understand, Your Honor.

All right.

Now, would the United States

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please summarize the evidence that support the charges in Count

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2.

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MR. KINNICUTT:

I will, Your Honor.

Your Honor,

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between May of 2003 and May 10th of 2006, the defendant and his

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brother, Chai Lin, conspired to harbor or house about 18 aliens,

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individuals who had illegally entered the United States, wherein

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the defendant, Tian Lin, knew that they were here illegally.

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Now, the purpose for the harboring was to keep them in two

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separate residences in Radcliff, Kentucky.

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transported to the Golden China Buffet Restaurant that is owned

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by his brother, Chai Lin.

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And they would be

And to that end, Tian Lin at times drove the individuals

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from the residence to the hotel.

There was never any facts of

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abuse -- the aliens were free to leave any time they wanted

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to -- but rather it's a matter of them being housed for the

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purposes of working at the restaurant.

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And to that end, Tian Lin conspired with his brother to

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house the aliens in the residence of 713 Wilma Court and 597

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Lincoln Trail in Radcliff, Kentucky.

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those aliens were of Hispanic descent, Francisco Torres-

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Hernandez, Jose Luis Meraz-Ramirez, and the third was Ai Mei

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Chen, who was a National Republic -- I mean a National of China.

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And that would be the evidence that we would proffer to the

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court, Your Honor.
THE COURT:

Do you agree with the government's

evidence and the summary of the facts?

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THE DEFENDANT:

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THE COURT:

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Three of those -- two of

I agree.

So all of the things the government has

just said are true?

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THE DEFENDANT:

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THE COURT:

Yes, Your Honor.

Okay.

The court finds there is a factual

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basis for the charges against the defendant and now with respect

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to the United States of America v. Jian Tian Lin, Mr. Lin, how

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do you plead as to Count 2 of the indictment?

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THE DEFENDANT:

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THE COURT:

I plead guilty.

Okay.

The court will let the guilty plea

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be entered and accepted as to Count 2 --

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Is this a superseding indictment?

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MR. KINNICUTT:

No, Your Honor.

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THE COURT:

-- Count 2 of the indictment.

Mr. Lin, do

you agree to the -- is it a forfeiture in Count 9?

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MR. KINNICUTT:

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THE COURT:

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in Count 9 of the indictment?

Do you agree to the forfeiture contained

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THE DEFENDANT:

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THE COURT:

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It is a forfeiture, Your Honor.

I agree.

Okay.

The defendant has agreed to the

forfeiture contained in Count 9 of the indictment.
Now, how long has the defendant been in custody?
MR. KINNICUTT:

Your Honor, I believe he's been in

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custody approximately seven months.

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have calculated -- we placed that inside the plea agreement --

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works out to six to 12 months.

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The guideline range that we

The reason why it works out six to 12 months in terms of our

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calculations is because the defendant is in a different posture

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than his brother, meaning that his involvement with this

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conspiracy was not for private gain or commercial advantage, but

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rather, he's helping his brother.

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who was actually running the restaurant operation.

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effect, that's why his guideline range would be reflected at

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approximately between six to 12 months incarceration.

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And his brother was the one
And to that

I tell the court that, since he's already served his time

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and the government is recommending the low end of the range,

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that at this point in time I believe there's also a motion by

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the defense to have their client released on bond.

We're not

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opposed to that based on the fact that he's not going to be

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getting the benefit of the time.

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Now, that's -- we're assuming a lot here, that the court

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would be inclined to recommend the bottom end of the range and

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we're not backing down from that, but I wanted to present that

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to the court.

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How the defendant is going to deal with the administrative

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hold that he has with Immigration and Customs Enforcement is

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entirely up to him and separate from this court proceeding here,

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but I believe that they are working on that.
And so to that end, the government is not opposed to the
defendant being released pending his sentence in this case.

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THE COURT:

Well, there are a number of different ways

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we could handle this.

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general agreement, we could sentence him now, which would

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involve potentially a sentence to time served, plus supervised

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release.

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Of course, we could -- if there was

Again, I have no way of determining what the ramifications

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of that may or may not be or whether there would be reasons why

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you would want to argue for a different sentence if we did the

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sentencing in the normal course of events, or we could have had

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him -- you could make a motion for his release pending sentence

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and we could do the sentencing later.

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MR. WESTBERRY:

I don't see any reason why we couldn't

sentence today, Judge Heyburn.

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Mr. Kinnicutt, I know we're waiving PSR.
MR. KINNICUTT:

Right.

My only hesitation in that,

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Your Honor, is because there's a co-defendant in this case and

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perhaps it might be prudent to have the probation office be able

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to generate a set of facts to present to the court.

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We're not going to deviate -- we're asking the court to

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sentence him at the bottom end, which in this case -- because

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his credit for time served would be seven months incarceration.

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But in terms of gathering the facts to present to the court --

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because my understanding that his brother enters a plea as well,

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then those would be best, I think, to be put before the court.

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I hesitate in that regard because it's a little complicated

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because it took, you know, about three years for the

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investigation of this case to come to fruition and perhaps it --

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I'm just thinking it might be best to wait.

We're not trying

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get in the way of his being released at all.

And I know that

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sounds like probably the most efficient use of time, but just

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because the nature of the case, Judge, we -- if we could.

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THE COURT:

Well, I don't know that -- if you're

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asking for the low end, you know, then by sentencing to time

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served, it doesn't really affect any other sentence because if

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there was -- you're not asking for a higher sentence.

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MR. KINNICUTT:

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THE COURT:

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Right.

And since the sentence would be for time

served, I'm not really considering whether -- if we were

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starting from scratch, whether he should have been sentenced to

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a lower sentence because it's not a practical reality.

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So by sentencing him to time served, I don't think I'm --

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you know, we're simply dealing with this defendant based on the

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reality of what he's charged with, what he's pled with.

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a whole host of reasons, most of which have nothing to do with

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the actual charges here, he has, as I understand it, partially

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made his own decision to remain in the custody of this federal

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court as opposed to seeking release where the consequences at

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very best would have been of an uncertain nature.

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And for

where we are.

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MR. WESTBERRY:

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THE COURT:

So we are

Sure.

And it would seem to me that sometimes

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there is a relationship between the sentencing of one defendant

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and another.

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we're dealing with the reality of the fact that he's already

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served some time and the United States is not asking for

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additional time.

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In this particular case, there wouldn't be because

At this point, I can't conclude that there's any likelihood

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I would be sentencing above the United States' recommendation.

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If we were in a different circumstance, again, whether I would

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have sentenced below is sort of a moot point at this point.

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we sentence and it has no consequence to the other cases.

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to the extent we need -- obviously, may need more of an

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investigation and facts surrounding the other cases, then we'll

So

And

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get it for those cases.

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Does that make sense to you?

MR. KINNICUTT:

Your Honor, it makes a whole lot of

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sense.

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terms of the defendant, if now he's going to waive the -- his

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right to have a presentence report generated -- and that was not

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part of the plea -- but we're not --

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My only concern is I just wanted to make sure that in

THE COURT:

We'll certainly take -- that would be a

necessary consequence of going forward.

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MR. WESTBERRY:

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THE COURT:

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MR. WESTBERRY:

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THE COURT:

We would waive the PSR --

Okay.
-- Judge Heyburn.

Because, again, there are a lot of

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potential consequences of anything we do of which I'm not

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completely aware and I assume that you are.

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MR. WESTBERRY:

We're going to start immediately

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contacting the immigration folks in Chicago.

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given us a name and number.

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might accept a cash bond.

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process as soon as we leave here today.

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THE COURT:

Agent Phillips has

The process, basically, is they
We're going to start that negotiation

But in the interim, if we sentence today,

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sentence him to time served, then he'll be placed on supervised

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release, a period of supervised release, which would be --

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what -- two years probably?

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MR. KINNICUTT:
three.

Correct, Your Honor, no more than

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THE COURT:

So then you'll be dealing with other

agencies in terms of any other problems that develop.

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MR. WESTBERRY:

That's correct.

He'll be out of your

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court, Judge Heyburn, and on in the direction -- it seems like

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the best way we can get this process moving.

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DEPUTY CLERK:

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THE COURT:

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It has been signed.

The defendant has now waived his right to

have a presentence report prepared.
Do you believe the defendant understands that he has such a
right?

That would delay his sentence probably three months.
MR. WESTBERRY:

That is correct.

I do believe he's

aware, Your Honor.
THE COURT:

Okay.

The court believes that it has

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sufficient information upon which to sentence today in the

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absence of a presentence report, and I gather that neither the

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defense or the United States objects at this time to such a

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sentencing.

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MR. KINNICUTT:

That's correct, Your Honor, no

objection.
THE COURT:

The defendant has, of course, waived his

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right to appeal any issues arising from his plea.

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would extend to -- he is also waiving his right to appeal any

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issues that come out of his sentencing.

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MR. WESTBERRY:

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THE COURT:

And that

Is that understood?

That is correct, Your Honor.

And I might say, the court is sufficiently

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aware of the circumstances to advise that the intention is to

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sentence to a period of time served, since that is less than the

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time period -- which he has already served, for a whole lot of

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reasons.

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MR. WESTBERRY:

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THE COURT:

Yes, sir.

Okay.

Does the counsel or the defendant

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have any questions as to the proceeding we're about to enter

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into?

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MR. WESTBERRY:

I do not, but let me ask him.

Mr. Lin, do you have any questions for Judge Heyburn?

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THE DEFENDANT:

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THE COURT:

No, Your Honor.

All right.

I gather then we can proceed

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at this point to the sentencing hearing.

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recommendation of the United States, based on all the factors

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considered, that the -- they believe that the guideline range,

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the advisory guideline range in this case is six to 12 months,

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and that their recommendation would be a sentence at the low end

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of that range.

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MR. KINNICUTT:

And I gather it is the

That's correct, Your Honor.

And, Your

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Honor, if I could just -- if the court would indulge me just to

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put on the record how we arrived at that guideline

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recommendation.

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The offense level for this charge puts him at a level 12 and

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then because it was not done for a commercial advantage or

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private financial gain, there's a three-level adjustment for

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deduction from that, which takes it to nine.

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there is -- there was involved more than six aliens, between six

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and 23, that adds three additional levels.

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to 12.

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However, because

So it takes us back

From 12, the defendant entered his plea of guilty today.

He

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accepted responsibility.

Adjusting that by two levels, he has a

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total offense level 10.

He is at a Criminal History Category I.

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He has no criminal history that I'm aware of.

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file, alien file.

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We've got his A

I've talked to the agent on this case.

He

doesn't have any criminal history.

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That would put him at a Criminal History Category I.

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on that, he's looking at six to 12 months incarceration.

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Because he's already served seven, we're recommending six.

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We're asking the court to impose the bottom end of the range of

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this case, which we believe would be a fair sentence.

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the -- just the last thing I want to share with the court

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regarding the allocution is that the posture of the defendant

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was not the individual who was making money off this endeavor.

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THE COURT:

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MR. KINNICUTT:

Based

And

Right, I understand.
And so in terms of -- the reason I say

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that is comparing him to his brother or perhaps other defendants

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in the future, he's going to be separate in that regard and

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that's why his sentence will be calculated at six to 12, as

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opposed to being higher.

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bottom end of the range in terms of his involvement with this

So we are still recommending the

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enterprise.

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THE COURT:
address the court?

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Would the defendant or his counsel wish to

MR. WESTBERRY:
Honor.

Thank you.

Mr. Lin, do you have anything?

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THE DEFENDANT:

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THE COURT:

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I don't have anything else, Your

No, Your Honor.

I think the court believes it can now

state the sentence it intends to impose and that is having

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considered the advisory guideline range and the factors in 18

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USC -- I got it.

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recommendation of the United States, the court finds that the

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defendant is sentenced to the custody of Bureau of Prisons for

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time served as to Count 2 of the indictment.

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Thank you -- Section 3553(a) and the

In addition, at the conclusion of that -- the time served,

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defendant shall be placed on supervised release for a term of

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two years and abide by the conditions of supervised release as

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set forth in the record, otherwise explained by the United

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States Probation Office.

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Once again, the court believes that the time already served

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is well within the range of the sentence that the court would

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have imposed specifically had the defendant not already served

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approximately seven-and-a-half months in custody.

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one of the primary reasons why the court believes that there's

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absolutely no doubt that the sentence is consistent with all the

So that is

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ends of justice at this point, meets all of the objectives of

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3553(a).

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There will be no fine imposed in this case, no other

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penalties of any kind.

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stated?

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DEPUTY CLERK:

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MR. WESTBERRY:

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THE COURT:

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Any objections to the sentence as

Special assessment.
We will take care of that.

The special assessment of $100 as to

single the count of indictment.

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MR. WESTBERRY:

Sure.

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MR. KINNICUTT:

I forgot, Your Honor -- I'm sorry --

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the supervised release.

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release.

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going to happen or not -- that that would become inactive

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supervised release.

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We would ask two years of supervised

In the event he's deported -- we don't know if that's

THE COURT:

Yeah, that would -- I think that would

happen as a matter of law so I don't need to take care of that.
MR. WESTBERRY:

Would you initially find for the

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record, Judge Heyburn, that Mr. Lin is released from all the

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terms and conditions of the bond that was set by this court and

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any other issues surrounding --

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THE COURT:

Also find -- I think that happens.

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current sentencing order supersedes any bond.

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from the terms of that bond.

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MR. WESTBERRY:

Anything else?

No, Your Honor.

The

So he is released

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THE COURT:

I'll impose the sentence as stated.

you have waived your right to appeal --

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MR. WESTBERRY:

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THE COURT:

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MR. WESTBERRY:

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THE COURT:

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DEPUTY CLERK:

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Thank you for your help.

THE COURT:

Thank you.
Your Honor, the remaining counts.

Is the United States moving to dismiss the

remaining counts?
MR. KINNICUTT:

Your Honor, as to this defendant only

we're moving to dismiss the remaining counts of the indictment.

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THE COURT:

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MR. WESTBERRY:

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THE COURT:

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(Proceedings concluded at 12:09 p.m.)

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I

appreciate it.

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Yes, sir.

Okay.

MR. WESTBERRY:

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Yes, sir.

-- and any issues related to it?

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And

I'll sustain the motion.
Thank you.

Thank you.

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C E R T I F I C A T E
I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM
THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER.

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s/Dena Legg
Certified Court Reporter No. 20042A157
Official Court Reporter

August 31, 2012
Date