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United States v. Malik

December 7, 2009

UNITED STATES OF AMERICA
v.
HABEEB MALIK IRA WEINER THONGCHAI VORASINGHA



The opinion of the court was delivered by: Surrick, J.

MEMORANDUM

Presently before the Court are Defendant Habeeb Malik's Post-Trial Motion for Judgment of Acquittal Pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure (Doc. No. 104), Defendant Ira Weiner's Motion for Judgment of Acquittal Pursuant to Rule 29, or, in the Alternative, Motion for New Trial Pursuant to Rule 33 (Doc. No. 105), Defendant Thongchai Vorasingha's Joinder in Defendant Ira Weiner, D.O.'s Motion for Judgment of Acquittal Pursuant to Rule 29, or, in the Alternative, Motion for a New Trial Pursuant to Rule 33 (Doc. No. 108), and Defendant Habeeb Malik's Joinder in Defendant Ira Weiner, D.O.'s Motion and Reply Memorandum for Judgment of Acquittal Pursuant to Rule 29, or, in the Alternative, Motion for a New Trial Pursuant to Rule 33 (Doc. No. 117). For the following reasons, Defendants' Motions are denied.

I. PROCEDURAL BACKGROUND

On October 2, 2008, Defendants Habeeb Malik, Dr. Ira Weiner, and Dr. Thongchai Vorasingha were indicted on one count of conspiracy to commit naturalization fraud in violation of 18 U.S.C. § 371 (Count One). In addition, the grand jury indicted Malik on eleven counts of naturalization fraud in violation of 18 U.S.C. § 1425 (Counts Two through Twelve) and four counts of filing false tax returns in violation of 26 U.S.C. § 7206(1) (Counts Thirteen through Sixteen). Weiner was indicted with Malik on nine of the eleven naturalization fraud counts (Counts Two through Ten). Vorasingha was indicted with Malik on the two remaining naturalization fraud counts (Counts Eleven and Twelve). (See Doc. No. 1.)*fn1

On July 20, 2009, a jury found Malik, Weiner, and Vorasingha guilty of conspiracy to commit naturalization fraud. (Doc. No. 98.) The jury also found Malik guilty of ten counts of naturalization fraud and four counts of filing false tax returns. The jury found Weiner guilty of eight counts of naturalization fraud and Vorasingha guilty of two counts of naturalization fraud. The jury found Malik and Weiner not guilty of one of the naturalization fraud counts (Count Seven). Malik, Weiner, and Vorasingha now seek relief pursuant to Federal Rules of Criminal Procedure 29 and 33 on the grounds that the Government did not prove the single conspiracy alleged in the Indictment and that the evidence was not sufficient to support the jury's findings. (See Doc. No. 104 ¶ 2; Doc. No. 105; Doc. No. 108.)

II. FACTUAL BACKGROUND*fn2

From 2000 through 2005, Malik operated a business known as the Foundation of Human Services ("the Foundation"). The Foundation, at least in part, assisted foreign individuals in obtaining United States citizenship. Foreign individuals must be able to speak, read, and write basic English to be eligible for United States citizenship. Those who are unable to meet this requirement because of some physical or mental impairment can apply for a waiver. The waiver, INS Form N-648, is a standardized form that must be completed by a physician or clinical psychologist. An applicant is eligible for a waiver if a physical or mental impairment prevents him or her from learning or demonstrating knowledge of the English language, or basic history and the principles and form of government of the United States. The physician or psychologist must provide a diagnosis of the applicant's problem and a conclusion with regard to the applicant's ability to learn English.

The foreign individuals who sought the Foundation's services had some difficulty reading and writing English. At some point, Malik entered into a scheme with two physicians, Dr. Weiner and Dr. Vorasingha. For a fee, Malik sent his clients to Weiner or Vorasingha for "examinations" to determine if they qualified for a waiver. Weiner's examination consisted of talking with the applicant and also talking privately with Malik. Vorasingha's examination consisted of having one of his assistants ask some questions from a questionnaire that he had prepared for that purpose. Vorasingha diagnosed applicants based on their answers. Malik paid Weiner and Vorasingha between $70 and $120 for each examination.

After the examinations, Weiner and Vorasingha completed N-648s, stating that the applicants suffered from various maladies-including mental retardation, learning disorders, depression, anxiety, and post traumatic stress disorder-that impaired their ability to learn English. The evidence established that the factual information on which Weiner and Vorasingha based their diagnoses and conclusions was false and that the diagnoses and conclusions provided by Weiner and Vorasingha were erroneous and were not properly based on examinations of the applicants.

III. LEGAL STANDARDS

A. Rule 29 Motion for Acquittal

"A defendant challenging the sufficiency of the evidence bears a heavy burden." United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992) (citing United States v. Vastola, 899 F.2d 211, 226 (3d Cir. 1990)). In considering a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29, the trial court must "review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence." United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (citations and internal quotation marks omitted). A finding of insufficiency of the evidence should "be confined to cases where the prosecution's failure is clear." Id. (quoting United States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002) [hereinafter T. Smith]). In reviewing a motion for judgment of acquittal, the court must "presume that the jury properly evaluated the credibility of witnesses, found the facts, and drew rational inferences" from the evidence. United States v. Menon, 24 F.3d 550, 564 (3d Cir. 1994); see also United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987) (setting forth the standard for a post-verdict judgment of acquittal). The trial court may not "usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury." Brodie, 403 F.3d at 133 (citing United States v. Janotti, 673 F.2d 578, 581 (3d Cir. 1982)). Accordingly, the jury verdict must be upheld, unless, viewing the evidence in this manner, no rational jury "could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).

B. Rule 33 Motion for a New Trial

In considering a motion for a new trial under Federal Rule of Criminal Procedure 33, the trial court may "vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). On a Rule 33 motion, "[t]he court may weigh the evidence, but may set aside the verdict and grant a new trial only if it determines that the verdict constitutes a miscarriage of justice, or if it determines that an error at trial had a substantial influence on the verdict." United States v. Enigwe, No. 92-00257, 1992 WL 382325, at *4 (E.D. Pa. Dec. 9, 1992) (citations omitted), aff'd, 26 F.3d 124 (3d Cir. 1994). "Unlike an insufficiency of the evidence claim, when a district court evaluates a Rule 33 motion it does not view the evidence favorably to the Government, but instead exercises its own judgment in assessing the Government's case." United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002). The court may exercise its discretion to grant a new trial based on the weight of the evidence "only if it finds that 'there is a serious danger that a miscarriage of justice has occurred-that is, that an innocent person has been convicted.'" United States v. Rich, 326 F. Supp. 2d 670, 673 (E.D. Pa. 2004) (quoting Johnson, 302 F.3d at 150). A new trial is required on the basis of evidentiary errors only when the "errors, when combined, so infected the jury's deliberation that they had a substantial influence on the outcome of the trial." United States v. Thornton, 1 F.3d 149, 156 (3d Cir. 1993). Motions under Rule 33 "are to be granted sparingly and only in exceptional cases." Government of Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987).

IV. DISCUSSION

Weiner argues that the Government failed to prove the single conspiracy charged in the Indictment and that, consequently, there exists a variance between the single conspiracy as charged and the proof at trial. Weiner also contends that the Government did not present sufficient evidence to establish the existence of a conspiracy between him and Malik. In addition, Weiner asserts that the Government's evidence was insufficient to support the jury's verdicts on the substantive naturalization fraud counts on which the jury found him guilty.*fn3

Weiner seeks relief under Rule 29 and Rule 33.

Malik did not address the variance issue in his motion and instead requested "the opportunity to supplement [his] motion and provide a detailed memorandum of law . . . within a reasonable amount of time after [receiving] the trial transcripts." (Doc. No. 104 ¶ 4.) Malik subsequently joined in Weiner's Motion and in Weiner's Reply Memorandum, without providing a detailed memorandum of law and without making any additional arguments on his own behalf. (Doc. No. 117.) Vorasingha simply joined in Weiner's Motion. (See Doc. No. 108.) At the end of the Government's case-in-chief, Vorasingha did "move for a motion to dismiss," arguing that the Government failed to prove a conspiracy beyond a reasonable doubt. (Trial Tr. 165, July 16, 2009.) In making that oral motion, however, Vorasingha's counsel alluded only to the conspiracy charge and did not mention the substantive naturalization fraud counts against Vorasingha. (Id. at 165-67.)

Neither Malik nor Vorasingha submitted memoranda of law in support of their Motions. The Local Criminal Rules unambiguously require that post-trial motions for judgment of acquittal or new trial under Federal Rules of Civil Procedure 29 and 33 be supported by timely filed memoranda. See L.C.R. 47.1. Even though Malik and Vorasingha submitted no memoranda of law in support of their motions, we will nevertheless consider their motions to the extent that they find support in Weiner's Memorandum of Law accompanying his Motion (Doc. No. 105) or in Weiner's Reply Memorandum (Doc. No. 116). We will consider Weiner's arguments to the extent they may apply to Malik's convictions on Counts One (conspiracy) and Two through Six and Eight through Ten (the substantive naturalization fraud counts on which the jury found Malik and Weiner guilty), and Vorasingha's conviction on Count One (conspiracy). We will not guess as to what Vorasingha's and Malik's additional arguments might have been.

A. Sufficiency of Evidence to Support Substantive Counts of Naturalization Fraud

We turn first to Defendants' convictions on the naturalization fraud counts. Counts Two through Ten each charged Weiner and Malik with naturalization fraud in violation of 18 U.S.C. § 1425, and aiding and abetting in violation of 18 U.S.C. § 2. (Doc. No. 1.) Section 1425 states:

(a) Whoever knowingly procures or attempts to procure, contrary to law, the naturalization of any person, or documentary or other evidence of naturalization or of citizenship; or

(b) Whoever, whether for himself or another person not entitled thereto, knowingly issues, procures or obtains or applies for or otherwise attempts to procure or obtain naturalization, or citizenship, or a declaration of intention to become a citizen, or a certificate of arrival or any certificate or evidence of nationalization or citizenship, documentary or otherwise, or duplicates or copies of any of the foregoing--

Shall be fined under this title or imprisoned . . . .

To prove naturalization fraud under § 1425, the Government had to show that: (1) Defendant procured or attempted to procure the naturalization of another person or documentary or other evidence of naturalization or citizenship; (2) Defendant did so contrary to law; and (3) Defendant knew that it was contrary to law to procure such naturalization. See 18 U.S.C. § 1425; Trial Tr. 31, July 20, 2009 (Court's jury instructions on naturalization fraud). A defendant can be found guilty of aiding and abetting naturalization fraud if the Government demonstrates that:

(1) each element of the crime charged was committed; (2) Defendant knew that the offenses charged were going to be committed or were being committed; (3) Defendant did some act for the purpose of aiding, assisting, facilitating, or encouraging the commission of the charged offense, and with the intent that the offense be committed; and (4) Defendant's acts did in some way aid or assist or facilitate or encourage others to commit the offense. See 18 U.S.C. § 2; Trial Tr. 33-34, July 20, 2009 (Court's jury instructions on aiding and abetting).

Weiner contends that the Government failed to prove beyond a reasonable doubt the falsity of his statements on the N-648 forms that he had completed.*fn4 (Doc. No. 105 at 7.) Specifically, Weiner argues that the Government's evidence "rel[ied] on matters of medical judgment" and "centered on the supposed discrepancy between the estimated prevalence of mental retardation mentioned in the DSM-IV, and the prevalence of mental retardation as a diagnosis in the N-648s that the Government located." (Id. at 7-8.) According to Weiner, "this type of evidence . . . concerns the standards by which a physician reaches a diagnosis and thus requires expert testimony." (Id. at 8.) In addition, Weiner argues that "[t]he Government presented no evidence at all from which the jury could gauge the prevalence of mental retardation in the relevant population." (Id.) Weiner also contends that the Government cannot claim that Weiner's examinations of the applicants were insufficient because that is a matter of medical judgment. (Id.) Finally, Weiner maintains that the Government "wished the jury to conclude that because the witnesses it presented did not appear disabled to a layperson, Dr. Weiner could not have concluded in good faith, between six and eight years ago, that they were." (Id. at 9.)

The Government responds that "the jury heard from witnesses who testified that they spoke English in front of [Weiner], yet, surprisingly, he stated on the form that they were unable to learn English or U.S. civics." (Doc. No. 109 at 12.) Moreover, "the jury also saw that Weiner's N-648 for these individuals was practically identical to every other N-648 that he completed: He diagnosed them with mental retardation, depression, anxiety, post-traumatic stress disorder, and learning disorder." (Id.) The Government argues that a number of the witnesses for whom Weiner prepared N-648s testified that when Malik told them to see Weiner, he asked them no questions with regard to their backgrounds. (Doc. No. 118 at 5-7.) Yet, Weiner included information in their respective N-648s about their experiences in their countries of origin that was false, and then used this false information as the basis for his medical diagnoses. (Id.) In addition, even though some of them (e.g., Nimer Fares and Khelifi) spoke at least a few words of English to Weiner, he indicated on their N-648s that they were unable to learn even basic English. (Id.) According to the Government, the jury "was free to conclude that Weiner, who was false in one, was false in all, particularly when all forms Weiner completed were practically identical, and each immigrant was brought to him by Malik."*fn5 (Doc. No. 109 at 12.)

After a thorough review of the evidence and testimony presented by the Government, we are satisfied that the evidence supports the jury's findings of naturalization fraud or attempted naturalization fraud as to both Weiner and Malik. A brief review of the evidence and testimony offered in support of each naturalization fraud count is appropriate.

Count Three of the Indictment charged Weiner and Malik with committing naturalization fraud by making false statements on the N-648 form completed for Nimer Fares.*fn6 Nimer first met Malik through his father, whom Malik had helped obtain U.S. citizenship. (Trial Tr. 65, July 14, 2009.) Nimer had previously applied for naturalization and taken the required citizenship test. He passed the portion of the test dealing with U.S. history and government. He failed the test of his English writing ability. (Id. at 61-65; Gov't Exs. 2B & 2C.) Nimer, along with his two brothers and a friend, approached Malik specifically for the purpose of seeking his help to obtain U.S. citizenship. (Trial Tr. 66, July 14, 2009.) According to Nimer, Malik presented himself as a lawyer and a doctor and told Nimer that he "could let [Nimer] go through very easy because [he] do[es] a lot of peoples [sic]." (Id. at 66, 68.) Malik charged Nimer between $1000 and $1200, asked for and obtained information about Nimer's family, and told Nimer that he would have to go to a doctor. (Id. at 66-67.) He did not explain the purpose of seeing a doctor. (Id.) Nimer primarily spoke Arabic with Malik, but he also spoke some English both to him and in his presence during their interactions. (Id. at 68-69.)

Not long after their initial meeting with Malik, Nimer, his brother, and his friend went to see a doctor, as directed by Malik. (Id. at 71-72.) They drove to Malik's house, picked up Malik, and went to the doctor's office. (Id. at 72.) At the doctor's office, they stayed in the waiting area while Malik went to speak alone with the doctor before calling them in. (Id.) Nobody had yet explained to Nimer why he was going to see a doctor. (Id.) Before going in to see the doctor, Malik told Nimer and his companions that they should not speak to the doctor; the doctor would speak to Malik and Malik would speak to them in Arabic. (Id. at 73-74.) Eventually, Nimer went in to see the doctor, whom he identified at trial as Weiner. (Id. at 73.) Nimer was with the doctor for about five to seven minutes. (Id.) Initially, Malik spoke to Weiner. (Id. at 74.) According to Nimer, Weiner then spoke to Nimer in English, asking his name "and a couple of things." (Id.) Nimer responded to Weiner in English. (Id.) Weiner asked where Nimer was from, but did not follow up on Nimer's response that he had been born in Jordan and had lived there. (Id. at 75.) Specifically, Nimer testified that Weiner did not ask him what the conditions were like in Jordan or about war or violence in Jordan. (Id.) Weiner did ask Nimer a few questions, such as the spelling of his name backwards, and "about the ...


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