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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1 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION 2 3 4 5 6 7 8 UNITED STATES OF AMERICA, Plaintiff, VS. JIAN TIAN LIN, Defendant. ) ) ) ) ) ) ) ) ) Case No. 3:06-CR-00090-H December 18, 2006 Louisville, Kentucky 9 ***************************************** 10 11 TRANSCRIPT OF CHANGE OF PLEA AND SENTENCING HEARINGS BEFORE HONORABLE JOHN G. HEYBURN, II UNITED STATES DISTRICT JUDGE 12 ***************************************** 13 14 APPEARANCES: For United States: 15 16 For Defendant: Caroline Pitt Clark R. Kent Westberry Landrum & Shouse 220 West Main Street, Suite 1900 Louisville, KY 40202 Interpreter: Edward Leong 17 18 19 20 21 22 23 24 25 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 (502) 625-3778 Proceedings recorded by mechanical stenography, transcript produced by computer. 2 1 (The interpreter, sworn before the proceedings 2 commenced, interpreted the following testimony from Chinese into 3 English.) 4 (Begin proceedings in open court at 11:43 a.m.) 5 DEPUTY CLERK: 6 THE COURT: 7 DEPUTY CLERK: 8 Lin, Case Number 3:06-CR-90-01-H. 9 MR. KINNICUTT: 10 Next case, Your Honor? Yes. United States of America v. Jian Tian Daniel Kinnicutt for the United States Government. 11 THE COURT: All right. 12 MR. WESTBERRY: 13 THE COURT: 14 MR. WESTBERRY: We're here for a plea? Yes, Judge. Okay. And we have signed a plea agreement, 15 as well as a preliminary order of forfeiture. 16 to the court, if you would like. 17 THE COURT: 18 MR. WESTBERRY: 19 THE COURT: I can tender them All right. Thank you. Mr. Lin, before I allow you to enter your 20 guilty plea, I'm going to need to ask you a number of questions 21 to make sure you understand your constitutional rights, the 22 consequences of waiving them, and to make sure you're doing it 23 voluntarily. 24 clerk to administer the oath to you. 25 Before we go any further, I'm going to ask the DEPUTY CLERK: Yes, Your Honor. 3 1 Raise your right hand, please. 2 MR. WESTBERRY: 3 THE INTERPRETER: 4 (Defendant sworn.) 5 THE COURT: 6 He agrees. He agrees. Would you please state your full name and address, please. 7 THE DEFENDANT: 8 THE COURT: 9 THE DEFENDANT: My name is Jian Tian Lin. Okay. And what's your local address? It's in Kentucky. I'm not quite -- I 10 couldn't quite remember the exact address or the street name. 11 Plus, I do not speak English. 12 THE COURT: 13 14 Does anyone have any doubt as to the defendant's competence to change his plea? MR. WESTBERRY: I do not, Judge. Other than the 15 obvious language barrier, he does understand with the help of an 16 interpreter. 17 THE COURT: 18 MR. KINNICUTT: 19 THE COURT: 20 competent to change his plea. 21 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 22 what's going on, raise your hand. 23 and make sure that you do. 24 THE DEFENDANT: 25 THE COURT: We'll stop the proceedings All right? Yes, sir. Or you can also tell your interpreter at 4 1 any time if you're not understanding. 2 THE DEFENDANT: 3 THE COURT: 4 Have you had plenty of opportunity to discuss this case with your attorney? 5 THE DEFENDANT: 6 THE COURT: 7 9 THE COURT: Yes, Your Honor, I know. The fact that you are presumed innocent and must be proven guilty beyond a reasonable doubt? 11 THE DEFENDANT: 12 THE COURT: I understand that. All right. THE INTERPRETER: 15 THE COURT: you to testify or testify against yourself? THE DEFENDANT: 18 THE COURT: 20 21 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: 23 THE COURT: 25 I understand that, Your Honor. Okay. 22 24 Sure. And you understand that no one can force 17 19 The interpreter has to speak a little louder so the court reporter can take -- 14 16 Do you understand your constitutional rights, your right to trial? THE DEFENDANT: 13 Yes, Your Honor. Okay. 8 10 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, 5 1 which is conspiracy to harbor aliens, and that's the sole count 2 that he's pleading to. 3 4 THE COURT: All right. Now, has anyone forced you or threatened you in any way to enter into this plea agreement? 5 THE DEFENDANT: 6 THE COURT: No, Your Honor. Okay. I'm going to ask the United States 7 to summarize the plea agreement. When the United States is 8 finished, I'm going to ask you whether that's the agreement as 9 you understand it. 10 THE DEFENDANT: Okay. 11 MR. KINNICUTT: Your Honor, in exchange for the 12 defendant's plea of guilty to Count 2 of the indictment, at the 13 time of sentencing and after sentencing, the government will 14 move to dismiss the remaining counts of the indictment. 15 The government will also recommend the lowest end of the 16 guideline range, which we believe in this case comes out to six 17 months. 18 lowest end of the range, whatever guideline that is. 19 know what it is. 20 to adjust his offender score offense level by two, since he is 21 accepting responsibility by pleading guilty in this case. 22 23 24 25 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 6 1 forfeiture, and the defendant to that end is forfeiting all 2 interest that he has in the houses, or the checking account, or 3 the restaurant. 4 have any interest in it, that it belongs to his brother, but 5 he's forfeiting that nonetheless in terms of any rights that he 6 may later have to come in and say, "Hey, that was my money." Now, it is my understanding that he doesn't 7 MR. WESTBERRY: 8 THE COURT: 9 And that is our understanding. Is that the plea agreement as you understand it? 10 THE DEFENDANT: 11 THE COURT: I understand, Your Honor. All right. Now, would the United States 12 please summarize the evidence that support the charges in Count 13 2. 14 MR. KINNICUTT: I will, Your Honor. Your Honor, 15 between May of 2003 and May 10th of 2006, the defendant and his 16 brother, Chai Lin, conspired to harbor or house about 18 aliens, 17 individuals who had illegally entered the United States, wherein 18 the defendant, Tian Lin, knew that they were here illegally. 19 Now, the purpose for the harboring was to keep them in two 20 separate residences in Radcliff, Kentucky. 21 transported to the Golden China Buffet Restaurant that is owned 22 by his brother, Chai Lin. 23 And they would be And to that end, Tian Lin at times drove the individuals 24 from the residence to the hotel. There was never any facts of 25 abuse -- the aliens were free to leave any time they wanted 7 1 to -- but rather it's a matter of them being housed for the 2 purposes of working at the restaurant. 3 And to that end, Tian Lin conspired with his brother to 4 house the aliens in the residence of 713 Wilma Court and 597 5 Lincoln Trail in Radcliff, Kentucky. 6 those aliens were of Hispanic descent, Francisco Torres- 7 Hernandez, Jose Luis Meraz-Ramirez, and the third was Ai Mei 8 Chen, who was a National Republic -- I mean a National of China. 9 And that would be the evidence that we would proffer to the 10 11 12 court, Your Honor. THE COURT: Do you agree with the government's evidence and the summary of the facts? 13 THE DEFENDANT: 14 THE COURT: 15 Three of those -- two of I agree. So all of the things the government has just said are true? 16 THE DEFENDANT: 17 THE COURT: Yes, Your Honor. Okay. The court finds there is a factual 18 basis for the charges against the defendant and now with respect 19 to the United States of America v. Jian Tian Lin, Mr. Lin, how 20 do you plead as to Count 2 of the indictment? 21 THE DEFENDANT: 22 THE COURT: I plead guilty. Okay. The court will let the guilty plea 23 be entered and accepted as to Count 2 -- 24 Is this a superseding indictment? 25 MR. KINNICUTT: No, Your Honor. 8 1 2 THE COURT: -- Count 2 of the indictment. Mr. Lin, do you agree to the -- is it a forfeiture in Count 9? 3 MR. KINNICUTT: 4 THE COURT: 5 in Count 9 of the indictment? Do you agree to the forfeiture contained 6 THE DEFENDANT: 7 THE COURT: 8 9 10 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 11 custody approximately seven months. 12 have calculated -- we placed that inside the plea agreement -- 13 works out to six to 12 months. 14 The guideline range that we The reason why it works out six to 12 months in terms of our 15 calculations is because the defendant is in a different posture 16 than his brother, meaning that his involvement with this 17 conspiracy was not for private gain or commercial advantage, but 18 rather, he's helping his brother. 19 who was actually running the restaurant operation. 20 effect, that's why his guideline range would be reflected at 21 approximately between six to 12 months incarceration. 22 And his brother was the one And to that I tell the court that, since he's already served his time 23 and the government is recommending the low end of the range, 24 that at this point in time I believe there's also a motion by 25 the defense to have their client released on bond. We're not 9 1 opposed to that based on the fact that he's not going to be 2 getting the benefit of the time. 3 Now, that's -- we're assuming a lot here, that the court 4 would be inclined to recommend the bottom end of the range and 5 we're not backing down from that, but I wanted to present that 6 to the court. 7 How the defendant is going to deal with the administrative 8 hold that he has with Immigration and Customs Enforcement is 9 entirely up to him and separate from this court proceeding here, 10 11 12 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. 13 THE COURT: Well, there are a number of different ways 14 we could handle this. 15 general agreement, we could sentence him now, which would 16 involve potentially a sentence to time served, plus supervised 17 release. 18 Of course, we could -- if there was Again, I have no way of determining what the ramifications 19 of that may or may not be or whether there would be reasons why 20 you would want to argue for a different sentence if we did the 21 sentencing in the normal course of events, or we could have had 22 him -- you could make a motion for his release pending sentence 23 and we could do the sentencing later. 24 25 MR. WESTBERRY: I don't see any reason why we couldn't sentence today, Judge Heyburn. 10 1 2 Mr. Kinnicutt, I know we're waiving PSR. MR. KINNICUTT: Right. My only hesitation in that, 3 Your Honor, is because there's a co-defendant in this case and 4 perhaps it might be prudent to have the probation office be able 5 to generate a set of facts to present to the court. 6 We're not going to deviate -- we're asking the court to 7 sentence him at the bottom end, which in this case -- because 8 his credit for time served would be seven months incarceration. 9 But in terms of gathering the facts to present to the court -- 10 because my understanding that his brother enters a plea as well, 11 then those would be best, I think, to be put before the court. 12 I hesitate in that regard because it's a little complicated 13 because it took, you know, about three years for the 14 investigation of this case to come to fruition and perhaps it -- 15 I'm just thinking it might be best to wait. We're not trying 16 get in the way of his being released at all. And I know that 17 sounds like probably the most efficient use of time, but just 18 because the nature of the case, Judge, we -- if we could. 19 THE COURT: Well, I don't know that -- if you're 20 asking for the low end, you know, then by sentencing to time 21 served, it doesn't really affect any other sentence because if 22 there was -- you're not asking for a higher sentence. 23 MR. KINNICUTT: 24 THE COURT: 25 Right. And since the sentence would be for time served, I'm not really considering whether -- if we were 11 1 starting from scratch, whether he should have been sentenced to 2 a lower sentence because it's not a practical reality. 3 So by sentencing him to time served, I don't think I'm -- 4 you know, we're simply dealing with this defendant based on the 5 reality of what he's charged with, what he's pled with. 6 a whole host of reasons, most of which have nothing to do with 7 the actual charges here, he has, as I understand it, partially 8 made his own decision to remain in the custody of this federal 9 court as opposed to seeking release where the consequences at 10 very best would have been of an uncertain nature. 11 And for where we are. 12 MR. WESTBERRY: 13 THE COURT: So we are Sure. And it would seem to me that sometimes 14 there is a relationship between the sentencing of one defendant 15 and another. 16 we're dealing with the reality of the fact that he's already 17 served some time and the United States is not asking for 18 additional time. 19 In this particular case, there wouldn't be because At this point, I can't conclude that there's any likelihood 20 I would be sentencing above the United States' recommendation. 21 If we were in a different circumstance, again, whether I would 22 have sentenced below is sort of a moot point at this point. 23 we sentence and it has no consequence to the other cases. 24 to the extent we need -- obviously, may need more of an 25 investigation and facts surrounding the other cases, then we'll So And 12 1 get it for those cases. 2 Does that make sense to you? MR. KINNICUTT: Your Honor, it makes a whole lot of 3 sense. 4 terms of the defendant, if now he's going to waive the -- his 5 right to have a presentence report generated -- and that was not 6 part of the plea -- but we're not -- 7 8 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. 9 MR. WESTBERRY: 10 THE COURT: 11 MR. WESTBERRY: 12 THE COURT: We would waive the PSR -- Okay. -- Judge Heyburn. Because, again, there are a lot of 13 potential consequences of anything we do of which I'm not 14 completely aware and I assume that you are. 15 MR. WESTBERRY: We're going to start immediately 16 contacting the immigration folks in Chicago. 17 given us a name and number. 18 might accept a cash bond. 19 process as soon as we leave here today. 20 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, 21 sentence him to time served, then he'll be placed on supervised 22 release, a period of supervised release, which would be -- 23 what -- two years probably? 24 25 MR. KINNICUTT: three. Correct, Your Honor, no more than 13 1 2 THE COURT: So then you'll be dealing with other agencies in terms of any other problems that develop. 3 MR. WESTBERRY: That's correct. He'll be out of your 4 court, Judge Heyburn, and on in the direction -- it seems like 5 the best way we can get this process moving. 6 DEPUTY CLERK: 7 THE COURT: 8 9 10 11 12 13 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 14 sufficient information upon which to sentence today in the 15 absence of a presentence report, and I gather that neither the 16 defense or the United States objects at this time to such a 17 sentencing. 18 19 20 MR. KINNICUTT: That's correct, Your Honor, no objection. THE COURT: The defendant has, of course, waived his 21 right to appeal any issues arising from his plea. 22 would extend to -- he is also waiving his right to appeal any 23 issues that come out of his sentencing. 24 MR. WESTBERRY: 25 THE COURT: And that Is that understood? That is correct, Your Honor. And I might say, the court is sufficiently 14 1 aware of the circumstances to advise that the intention is to 2 sentence to a period of time served, since that is less than the 3 time period -- which he has already served, for a whole lot of 4 reasons. 5 MR. WESTBERRY: 6 THE COURT: Yes, sir. Okay. Does the counsel or the defendant 7 have any questions as to the proceeding we're about to enter 8 into? 9 10 MR. WESTBERRY: I do not, but let me ask him. Mr. Lin, do you have any questions for Judge Heyburn? 11 THE DEFENDANT: 12 THE COURT: No, Your Honor. All right. I gather then we can proceed 13 at this point to the sentencing hearing. 14 recommendation of the United States, based on all the factors 15 considered, that the -- they believe that the guideline range, 16 the advisory guideline range in this case is six to 12 months, 17 and that their recommendation would be a sentence at the low end 18 of that range. 19 MR. KINNICUTT: And I gather it is the That's correct, Your Honor. And, Your 20 Honor, if I could just -- if the court would indulge me just to 21 put on the record how we arrived at that guideline 22 recommendation. 23 The offense level for this charge puts him at a level 12 and 24 then because it was not done for a commercial advantage or 25 private financial gain, there's a three-level adjustment for 15 1 deduction from that, which takes it to nine. 2 there is -- there was involved more than six aliens, between six 3 and 23, that adds three additional levels. 4 to 12. 5 However, because So it takes us back From 12, the defendant entered his plea of guilty today. He 6 accepted responsibility. Adjusting that by two levels, he has a 7 total offense level 10. He is at a Criminal History Category I. 8 He has no criminal history that I'm aware of. 9 file, alien file. 10 We've got his A I've talked to the agent on this case. He doesn't have any criminal history. 11 That would put him at a Criminal History Category I. 12 on that, he's looking at six to 12 months incarceration. 13 Because he's already served seven, we're recommending six. 14 We're asking the court to impose the bottom end of the range of 15 this case, which we believe would be a fair sentence. 16 the -- just the last thing I want to share with the court 17 regarding the allocution is that the posture of the defendant 18 was not the individual who was making money off this endeavor. 19 THE COURT: 20 MR. KINNICUTT: Based And Right, I understand. And so in terms of -- the reason I say 21 that is comparing him to his brother or perhaps other defendants 22 in the future, he's going to be separate in that regard and 23 that's why his sentence will be calculated at six to 12, as 24 opposed to being higher. 25 bottom end of the range in terms of his involvement with this So we are still recommending the 16 1 enterprise. 2 3 THE COURT: address the court? 4 5 6 Would the defendant or his counsel wish to MR. WESTBERRY: Honor. Thank you. Mr. Lin, do you have anything? 7 THE DEFENDANT: 8 THE COURT: 9 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 10 considered the advisory guideline range and the factors in 18 11 USC -- I got it. 12 recommendation of the United States, the court finds that the 13 defendant is sentenced to the custody of Bureau of Prisons for 14 time served as to Count 2 of the indictment. 15 Thank you -- Section 3553(a) and the In addition, at the conclusion of that -- the time served, 16 defendant shall be placed on supervised release for a term of 17 two years and abide by the conditions of supervised release as 18 set forth in the record, otherwise explained by the United 19 States Probation Office. 20 Once again, the court believes that the time already served 21 is well within the range of the sentence that the court would 22 have imposed specifically had the defendant not already served 23 approximately seven-and-a-half months in custody. 24 one of the primary reasons why the court believes that there's 25 absolutely no doubt that the sentence is consistent with all the So that is 17 1 ends of justice at this point, meets all of the objectives of 2 3553(a). 3 There will be no fine imposed in this case, no other 4 penalties of any kind. 5 stated? 6 DEPUTY CLERK: 7 MR. WESTBERRY: 8 THE COURT: 9 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. 10 MR. WESTBERRY: Sure. 11 MR. KINNICUTT: I forgot, Your Honor -- I'm sorry -- 12 the supervised release. 13 release. 14 going to happen or not -- that that would become inactive 15 supervised release. 16 17 18 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 19 record, Judge Heyburn, that Mr. Lin is released from all the 20 terms and conditions of the bond that was set by this court and 21 any other issues surrounding -- 22 THE COURT: Also find -- I think that happens. 23 current sentencing order supersedes any bond. 24 from the terms of that bond. 25 MR. WESTBERRY: Anything else? No, Your Honor. The So he is released 18 1 2 THE COURT: I'll impose the sentence as stated. you have waived your right to appeal -- 3 MR. WESTBERRY: 4 THE COURT: 5 MR. WESTBERRY: 6 THE COURT: 7 DEPUTY CLERK: 13 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. 14 THE COURT: 15 MR. WESTBERRY: 16 THE COURT: 17 (Proceedings concluded at 12:09 p.m.) 18 19 20 21 22 23 24 25 I appreciate it. 9 12 Yes, sir. Okay. MR. WESTBERRY: 11 Yes, sir. -- and any issues related to it? 8 10 And I'll sustain the motion. Thank you. Thank you. 19 1 2 3 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. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 s/Dena Legg Certified Court Reporter No. 20042A157 Official Court Reporter August 31, 2012 Date

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