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United States v. Malik

January 21, 2010

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 is the Motion of Defendant Ira H. Weiner For Release Pending Appeal. (Doc. No. 175.) For the following reasons, Defendant's Motion will be denied.

I. INTRODUCTION

The facts of this case are set forth in detail in our Memorandum dated December 7, 2009, which disposed of Defendants' post-trial motions pursuant to Federal Rules of Criminal Procedure 29 and 33. See generally United States v. Malik, No. 08-614, 2009 WL 4641706 (E.D. Pa. Dec. 07, 2009). Defendants were convicted for their roles in a scheme that involved foreign individuals applying for U.S. citizenship. Eligibility for U.S. citizenship is conditioned, in part, on basic knowledge of the English language and familiarity with U.S. history and civics. Defendant Habeeb Malik operated an organization that purported to assist applicants for U.S. citizenship. Unfortunately, Malik's "assistance" consisted of taking the applicants to a cooperative doctor who, in return for a fee, would falsely affirm that the applicant had various psychological disorders that prevented him or her from learning English or U.S. history and civics. Defendant Ira Weiner was one of the doctors to whom Malik sent his clients. Defendant Thongchai Vorasingha was another.

The grand jury indicted Defendants Malik, Weiner, and Vorasingha on one count of conspiracy to commit naturalization fraud in violation of 18 U.S.C. § 371. In addition, Weiner and Malik were indicted on nine counts of naturalization fraud in violation of 18 U.S.C. § 1425. Vorasingha and Malik were indicted on two additional counts of naturalization fraud. On July 20, 2009, a jury found the three Defendants guilty on Count One of the Indictment, charging conspiracy to commit naturalization fraud. (Doc. No. 98.) The jury found Weiner and Malik not guilty on one of the counts of naturalization fraud, but guilty on the remaining eight naturalization fraud counts. (Id.) In addition, Vorasingha and Malik were found guilty on the two counts of naturalization fraud with which they were charged. (Id.) The convictions were affirmed in our December 7 Memorandum and Order. Malik, 2009 WL 4641706, at *24. We concluded that there was more than sufficient evidence to support the jury's verdicts on each of the counts. Id. at *5-11, *23.

With regard to the conspiracy count, we found that there was a variance between the single conspiracy charged in the Indictment and the proof at trial, which showed two separate conspiracies, one between Malik and Weiner and another between Malik and Vorasingha. Id. at *17. We concluded, however, that the variance was not fatal to Defendants' convictions on the conspiracy count because it did not prejudice their substantial rights. Id. at *17-19. Ultimately, Weiner was sentenced to a term of 36 months of imprisonment followed by 24 months of supervised release. A fine of $10,000 was imposed.*fn1 Weiner was ordered to surrender on January 25, 2010, to serve his sentence. (Doc. No. 152.) Weiner has appealed his convictions, and his appeal is currently pending in the United States Court of Appeals for the Third Circuit.

II. LEGAL STANDARD

The Bail Reform Act of 1984 reversed the presumption in favor of bail for a person convicted and sentenced to jail, during the pendency of his appeal. 18 U.S.C. § 3143(b); see also United States v. Miller, 753 F.2d 19, 22-23 (3d Cir. 1985) (examining legislative history of § 3143(b)). Under 18 U.S.C. § 3143(b), a defendant who has appealed his conviction is entitled to release pending appeal only if a court finds:

(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released . . . ; and

(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in--

(i) reversal,

(ii) an order for a new trial,

(iii) a sentence that does not include a term of imprisonment, or

(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected ...


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