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Mohabir v. United States

United States District Court, M.D. Pennsylvania

December 11, 2014

UNITED STATES OF AMERICA, Respondent. Criminal Action No. 10-0215




Before this Court is Petitioner Owshadram Mohabir's pro se Motion to Vacate, Set Aside, or Correct His Sentence Pursuant to 28 U.S.C. § 2255 (the"§ 2255 Motion"). (Doc. No. 88.)

On February 4, 2011, after a four-day jury trial, Petitioner was convicted of conspiring to transport in interstate commerce stolen motor vehicles and to receive, possess, store, and sell stolen goods, valued at $5, 000 or more, in violation of 18 U.S.C. § 371.[1] (Doc. No. 76.) On February 18, 2011, Petitioner filed a Motion for Judgment of Acquittal and/or New Trial. (Doc. No. 64.) On June 16, 2011, this Court filed a Memorandum and Order denying the Motion. (Doc. No. 72.)

On June 30, 2011, this Court sentenced Petitioner to serve fifty-one months imprisonment to be followed by a three-year term of supervised release. Petitioner was also required to pay $290, 520 in restitution and a $100 special assessment. (Doc. No. 76.) On July 8, 2011, Petitioner filed a Notice of Appeal to the Third Circuit Court of Appeals. (Doc. No. 78.) On January 17, 2013, the Third Circuit affirmed Petitioner's conviction and sentence. United States v. Mohabir, 510 F.Appx. 122 (3d Cir. 2013). Petitioner then filed a petition for certiorari with the U.S. Supreme Court, which was denied on October 7, 2013. Mohabir v. United States, 133 S.Ct. 324 (2013).

On March 24, 2014, Petitioner filed his § 2255 Motion, asserting that his counsel was constitutionally ineffective and that the evidence the Government presented at trial was insufficient to support his conviction. (Doc. No. 88.) On April 30, 2014, the Government filed its Response in Opposition. (Doc. No. 91.) On September 19, 2014, Petitioner filed a Reply to the Government's Response.[2] (Doc. No. 99.)

Petitioner's § 2255 Motion is now ripe for decision. For reasons that follow, Petitioner's § 2255 Motion (Doc. No. 88) will be denied.


This case arose out of an investigation into the interstate shipment and possession of stolen heavy equipment, including forklifts and skid steers. (Doc. No. 91 at 4.) The evidence presented at trial included testimony from investigators, victims of the thefts, one of Petitioner's employees, and a man named Orlando Perez, who was an unindicted coconspirator in this case. (Id. at 14.) The evidence also consisted of audio and visual recordings of Petitioner's conversations. (Id.) A more detailed discussion of the evidence presented at trial follows, including compelling corroborating evidence.

A. The Investigation Begins

At trial, New York State Trooper William Dengler testified that in August 2009 he began investigating a series of thefts of heavy equipment and commercial tools around Kirkwood, New York, which is near the Pennsylvania border. (Doc. No. 83 at 30-31.) Trooper Dengler's investigation revealed that a Ryder truck stolen from Great Bend, Pennsylvania was utilized in the thefts. (Id. at 37-39.) As a result of this clue, Trooper Dengler reviewed surveillance video from various businesses in the area where the thefts were occurring. (Id. at 39-43.) Trooper Dengler developed two suspects from his review, but could not identify them. (Id.)

On January 18, 2010, there was a break in the case. During a burglary at Gorick Construction in Kirkwood, New York, an employee at a neighboring business noticed the suspicious activity and recorded the license plate number of the burglars' trailer. (Id. at 43.) This number was run through the New York State Department of Motor Vehicles database, which revealed that the trailer was registered to a man named Orlando Perez and that Perez had a Pennsylvania driver's license. (Id. at 47.) The New York State Police then contacted the Pennsylvania State Police, advised them of Perez's suspected criminal activities, and obtained Perez's Pennsylvania driver's license photograph. (Id. at 47-49.) Perez's photograph was compared to the surveillance videos that Trooper Dengler had previously reviewed, and it was conclusively determined that Perez was the person depicted in the videos. (Id. at 48.)

According to testimony from Pennsylvania State Trooper John McGeary, Pennsylvania and New York State Police conducted surveillance on Perez near his home in Monroe County, Pennsylvania on February 24, 2010. (Id. at 103-04.) Investigators followed Perez as he drove down from Monroe County to King of Prussia, Pennsylvania, but abandoned their surveillance when they lost Perez in traffic congestion. (Id. at 103-05.) It was later determined that a business named DOPACO, located in Downington, Pennsylvania, which is not far from King of Prussia, had three forklifts stolen on February 24. (Id. at 106.) Investigators reviewed video surveillance from DOPACO, which showed Perez in DOPACO's warehouse at 9:03 p.m. on February 24 wiping down the push bar on the door he used to enter the building, so he would not leave any fingerprints. (Id. at 107-08.)

On April 22, 2010, investigators installed an electronic surveillance tracker on two of Perez's vehicles under authorization of a signed tracking order from Monroe County Court of Common Pleas, Stroudsburg, Pennsylvania. (Id. at 109-10.) On May 14, 2010, electronic surveillance showed that Perez had moved one of his vehicles, and investigators began to follow him. Id. at 110-11.) Investigators followed Perez to a warehouse in Bethlehem Township, Pennsylvania, where Perez was observed stealing a forklift which he loaded onto his truck. (Id. at 111-12.) Surveillance continued into the next day, when investigators followed Perez driving his truck loaded with the stolen forklift down to the Hunts Point section of the Bronx, New York. (Id.)

In Hunts Point, Perez was observed and photographed delivering the stolen forklift to a pallet company. (Id. at 114-20.) Investigators then saw Perez walk roughly a block and a half to All Models Forklift, the business owned and operated by Petitioner. (Id. at 120.) Perez was seen leaving All Models Forklift operating a red skid steer, which Perez later testified he stole from the Bethlehem, Pennsylvania area and sold to Petitioner for $2, 000. (Doc. No. 82 at 72.) Perez testified that on that day he was delivering the stolen skid steer from All Models Forklifts to another person who had purchased it from Petitioner. (Id.) Investigators ended their surveillance that day shortly after observing Perez transfer the skid steer. (Doc. No. 83 at 124.)

B. Perez Is Arrested and Cooperates with Law Enforcement

In the early morning hours of May 23, 2010, investigators again followed Perez. (Doc. No. 83 at 138.) This time, Perez drove to an industrial facility in Frackville, Pennsylvania, where he stole two forklifts. (Id. at 138-42.) Investigators continued following Perez and arrested him shortly after he crossed into New Jersey. (Id. at 140.) The two stolen forklifts were found in the trailer hitched to Perez's truck. (Id. at 142.)

Perez decided to start cooperating with investigators that morning. (Doc. No. 82 at 48.) He identified Petitioner as a buyer of stolen heavy equipment. (Id. at 48-49.) He told investigators that Petitioner would purchase stolen forklifts so he could rent them, sell them, or ship them overseas. (Id. at 49.) Perez testified at trial that he had stolen over one hundred pieces of heavy equipment and that Petitioner would sometimes give him keys that he could use to start the forklifts that he stole. (Id. at 55-56.)

On June 29, 2010, Perez met with agents from the Federal Bureau oflnvestigation (FBI) in the Bronx to arrange for him to make a consensual video and audio recording of Petitioner. (Doc. No. 84 at 17.) The objective was to have Perez elicit statements from Petitioner to establish that Petitioner knew he was buying stolen equipment from Perez. (Id. at 18-19.) The FBI agents followed Perez as he drove to All Models Forklifts. (Id. at 20.) When Perez arrived, he went inside the building where he had a twenty-minute conversation with Petitioner. (Id.) A video and audio recording of the conversation was made by a camera that Perez was wearing. (Id.)

During their conversation, Perez told Petitioner that he had two forklifts that Petitioner wanted him to steal from an auction in Upstate New York. (Doc. No. 82 at 83-84.) Perez asked Petitioner for two vehicle identification plates in case he was stopped by law enforcement. (Id. at 84-85.) Petitioner told Perez that he would pay Perez $3, ...

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