Constant v. Martuscello (119 F. Supp. 3d 87, 2015)

MEMORANDUM, ORDER & JUDGMENT

JACK B. WEINSTEIN, Senior District Judge.

Table of Contents

I. Introduction...........................................................99

II. Pacts.................................................................100

A Crime of Conviction.................................................100

1. Mortgage Fraud Scheme..................... 100

2. Jury Verdict....................................................101

3. Sentence.....................................■..................101

III. Procedural History.................................................. 101

A. Plea Allocution.....................................................101

B. Third Party Informs Court of Petitioner’s Aleged Crimes in Haiti........103

C. Post-Plea Sentencing......................................•.........105

1. First Hearing ............'......................................105

a. Department of Homeland Security Requests Time Served........105

b. Center for Constitutional Rights Requests Lengthy Sentence.....106

c. Decision Deferred........................'...................106

2. Center for Constitutional Rights Submits Additional Documents — -.108

3. Second Hearing.................................................112

4. Guilty Plea Vacated.............................................113

5. Third Hearing..................................................114

a. Petitioner Offered Revised Plea Deal ..........................114

b. Revised Plea Deal Rejected by Petitioner.......................115

c. Revised Plea Deal Again Rejected by Petitioner.................115

D. Trial..............................................................115

1.Case Presented to Jury..........................................115

2. Jury Instructions ...............................................116

a. Scheme to Defraud.......................... 116

b. Grand Larceny in the Third Degree .......... 116

c. Grand Larceny in the Second Degree ..........................117

d. Falsifying Business Records in the First Degree ................117

3. Deliberations and Verdict...............................i........118

E. Post-Conviction Sentencing..............;.;.........................118

F.' Motion to Set Aside Sentence ....................... 119

G. Direct Appeals :....... — ;........................................ 120

H. Instant Petition ................1...................................121

IV. Applicable Standard op Review...................................•......121

A. Antiterrorism and Effective Death Penalty Act.........................121

1. “Contrary to” Clause............................................122

2. “Unreasonable Application” Clause........... 122

B. Deference to State Court.......... 123

C. Harmless Error..................:.................................124

V.Plea Agreements......'................................................124

A. History............................................ 124

.. 1. Influence of English Practices........'........................'... .124

2. Early American Practices and Controversies-(1700s-1850s)...........125

a. ' Expeditious Nature of Criminal Trials ..;........................ 125

b. Judicial Moral Disapproval of Plea “Bargaining” Process.........125

3. Upsurge in Plea Deals (1850s — 1970s) ..............................126

4. Modern Acceptance (1970s~Today) —'.............................128

B. Law............'...................................................129

1. Judicial Discretion to Vacate Plea, Bargains.........................129

2. Information Considered Regarding Appropriate Sentence ............130

a. Breadth....................................................130

i. Presentence Report....................................132

ii. Ex Parte Communications..............................132

b. Due Process Considerations ..................................133

3. Specific Performance............................................133

C. Application ............................................. 135

VI.Double Jeopardy.......................................................136

A. Law ..............................................................136

B. Application .138

VII. IMPROPER Sentencing. H CO CO

A. Law.. H 03 00

B. Application. M CO CD

VIII. Insufficient Jury Instructions 03 CO r — l

A. Law . Oí 00 y — I

B. - Application. t-H t-H

IX. Ineffective Assistance of Counsel. 142

A. Law ..'.:...... 142

1. Standard.. 142

2. Rule as Applied to Trial Counsel... 144

a. Calling of Witnesses on Behalf of Defendant. 144

b. Failure to Object to or Request Additional Jury Instruction 144

c. Wide Range of Conduct Considered Reasonable. 145

3. Rule as Applied to Appellate Counsel. 146

B. Application . 147

X. CONCLUSION . 148

I. Introduction

This habeas corpus petition raises issues of due process and double jeopardy raised by New York State's criminal procedure. Federal and New York State practice with respect to participation by a judge in the plea-sentencing phase of criminal cases is somewhat different. Under Rule 11(c) of the Federal Rules of Criminal Procedure “the court must not participate in [plea] discussions.” Fed.R.Crim.P. 11(c). The New York practicó is somewhat more flexible. New York courts may accept a plea of guilty with the agreement by the judge of a specified sentence (as suggested by the district attorney), subject to reconsidering its terms — that is to say, the original proposed sentence is conditional upon the court’s receiving additional information on defendant’s background before the actual sentencing.

In, the present case, this New York practice was followed. Petitioner and the district attorney arrived at a plea bargain approved by the court conditionally. The court then received new information indicating that the defendant was more dangerous than it previously thought, and required a much longer sentence of incarceration.

Following the state practice, petitioner was offered a harsher sentence if he continued to plead guilty. When he refused this new deal, he was permitted to withdraw his plea and go to trial. He refused to accept the new plea sentence proposal, went to trial, was convicted, and received a sentence of incarceration much longer than the two "previously offered. 'This • state practice has been repeatedly approved by both state and federal courts. ■

Petitioner’s request for release is rejected. There is no indication that he was denied due process. A certificate of ap-pealability is granted so the Court of Appeals for the Second Circuit can revisit the New York practice, as applied in the present case, with a view to its constitutionality.

Petitioner, Emmanuel Constant — better known by some as the founder and former leader of a paramilitary Haitian death squad that operated under Haiti’s 1991-1994 military regime (a history that plays a critical role in this case) — seeks a writ of habeas corpus. See 28 U.S.C. § 2254. He blames the trial court for his decision to go to trial. There is no merit to his claim.

Petitioner contends that he had accepted an offer of a one to three year term if he pled guilty to one count of grand larceny in the second degree with respect to fraudulent activity regarding a real estate transaction in Brooklyn. After hearing of defendant’s misdeeds in Haiti, the trial court upped the offer to a three to nine year term. Rejecting the offer, petitioner went to trial. He lost. He claims that the "trial court improperly vacated his guilty plea, forcing him to stand trial for an offense to which he had already pled guilty.

Seven grounds for relief are asserted: (1) violation of due process arising from the court’s sua sponte vacatur of his guilty plea; (2) entitlement to specific performance of the original plea agreement; (3) violation of the right to not be twice placed ■ in jeopardy stemming from his being forced to stand trial for an offense to which he had already pled guilty; (4) violation of due process, resulting from the introduction of third party documents affecting his sentencing; (5) a sentence based on improper and unsubstantiated claims; (6) an erroneous jury charge; and (7) ineffective assistance of trial and appellate counsel.

Petitioner’s central issue, tying together claims 1-5 and part of 7, is: Did the trial court afford due process in sua sponte vacating petitioner’s original guilty plea? The answer is yes. The independent claim 6 and. the contentions in claim 7 regarding petitioner’s trial and appellate representation also lack merit.

The petition is dismissed.

A certificate of appealability is granted on all but question 6. The issue of whether the court-could, in effect, force the defendant to withdraw a plea so that it could impose a higher sentence than the one originally promised is somewhat troublesome in this case. Double jeopardy problems are implicated with respect to Count 3 of the indictment, to which petitioner pled guilty at his original plea allocation. It is not clear that the defendant understood that fye could withdraw his plea and take the guarantee of the of three to nine year sentence offered. He may have been confused about whether he was going to trial on one count or six of the seven counts upon which he had been indicted. See Indictment, Oct. 24, 2006, ECF No. 20-1 at 2-6.

II. Facts

A. Crime of Conviction

1. Mortgage Fraud Scheme

From 2001 to 2004, petitioner, who had immigrated from Haiti to the United States in 1994, organized a series of fraudulent real estate transactions. See Trial Transcript at 362:6-363:1, 441:19-442:24, 785:12-24, 832:18-833:3, People v. Constant, Kings Cnty. Indict. No. 8206-06 (N.Y.Crim.Ct.) July 14-25, 2008, ECF Nos. 20-3 at 1-683, 20-4 at 1-652, 31-1 at 1-2, 31-2 at 1-2, 31-3 at 1-5, 31-4 at 1-2, 31-5 at 1-2, 31-6 at 1 (“Trial Tr,”). Accomplices, including loan officers, property appraisers, title closers, and settlement agents, facilitated the fraudulent deals. Id. at 779:13-15, 785:12-786:12 (loan officer function); id. at 258:10-261:15, 270:1-10, 302:14-20, 311:4-22, 692:23-693:12, 1072:16-1073:2, 1141:5-11 (involvement of coconspirator loan officers); id. at 755:5-756:3, 782:21-783:20 (property appraiser function); id. at 512:17-7, 685:24-686:17, 896:12-898:12, 984:6-24 (involvement of co-conspirator property appraisers); id. at 619:9-13, 753:21-754:23 (title closer function); id. at 93:2-93:15, 634:7-11, 669:3-11, 753:21-754:23, 1105:25-1106:1 (involvement of coconspirator title closers); id. at 757:22-758:13 (settlement agent function); id. at 115:19-24, 268:9-22, 357:13-361:12, 367:9-14, 441:19-442:12, 556:10-16, 982:13-24, 1147:16-19, 1152:6-14 (involvement of coconspirator settlement agents); see also Trial Ex. 22 at 137-39, Mar. 16, 2006, ECF No. 20-7 at 26-178 (interview between petitioner and state investigators); Trial Ex. 23 at 95, Mar. 22, 2006, ECF No. 20-8 at 1-165 (same); Trial Ex. 32A at 103, Aug. 24, 2005, ECF No. 20-10 at 86-106 (recorded conversation between petitioner and coconspirator).

The transactions structured by petitioner-are known as “ABC” schemes. “A” represents an innocent, legitimate seller of real property. “B” represents a criminal entity that purchases the property from “A” at its real worth. “C” represents a “straw buyer,” recruited by scheme participants for a nominal fee, whose financial stability is enormously exaggerated. Trial Tr. at 52:17-53:9, 60:25-61:7, 1065:2-1066:2. A careless or complicit bank is engaged.

• First, B agrees with A on a fair sale price and signs a contract to buy with a small deposit.

• Second, an appraisal seriously overinf-lating the value of the property is obtained from a - cooperating appraiser.

• Third, unknown to A, B flips the property it has yet to own to C, a straw buyer, at a substantially inflated price, obtaining an overinflated bank mortgage loan in C’s name.

• Fourth, B uses part of the fraudulently obtained mortgage loan money given by C to pay A, the former owner, the fair price of the property.

• Fifth, B divides the borrowed money that was not needed to pay A among the coconspirators.

• Sixth, C, the straw buyer, defaults on the loan. The bank is left holding a defaulted loan and an underwater property.

Id. at 51:20-55:6, 60:17-61:4, 64:16-66:20, 180:12-21, 259:9-13.

2. Jury Verdict

In July 2008, petitioner was convicted for his participation in mortgage fraud related to three different properties located in Kings County, New York: (1) 153 Hull Street; (2) 87 Monroe Street; and (3) 118 Bainbridge Street. Id. at 1071:8-1074:23, 1120:24-1136:6, 1147:2-1153:13, 1345:18-1346:5. A jury found him guilty on six counts, including one count of a scheme to defraud, one count of grand larceny in the third degree, two counts of grand larceny in the second degree, and two counts of falsifying business records. Id. at 1345:18-1346:5.

3. Sentence

On October 28, 2008, the court imposed an aggregate, indeterminate sentence of twelve and one-third to thirty-seven years of imprisonment. Sed October 28, 2008 Hearing Transcript 25:13-26:19, Oct. 28, 2008, ECF No. 20-4 at 653-79 (“Oct. 28, 2008 Hr’g Tr.”). The sentence was.automatically reduced to a ten to twenty year inearceratory term by operation of section 70.30(1)(e)(i) of New York’s Penal Law, setting the minimum and maximum terms of imprisonment for aggregate consecutive sentences. See N.Y. Penal Law § 70.30(1)(e)(i).

III. Procedural History

A. Plea Allocution

Petitioner was arraigned in New York State Supreme Court on November 9, 2006. See Arraignment Transcript, Nov. 9, 2006, ECF No. 20-2 at 2-4. He pled not guilty. Id. at 2:16-18.

Three months later, on February 6, 2007, he withdrew his initial “not guilty” plea and pled “guilty” to the charge of grand larceny in the second degree, as it related to the 87 Monroe Street transaction. See Plea Hearing 2:9-15, Feb, .6, 2007, EOF No. 20-2 at 8-20. On the district attorney’s motion, counts related to a 1559 Pacific Street were dismissed. Id. at 2:19-22. A term of incarceration of one to three years, to be served concurrently with a related matter pending before the criminal court.in Suffolk County, where petitioner had also pled guilty, was recommended by the prosecutor. Id. at 2:23-3:12.

The court underscored that acceptance of the terms of the plea was subject to its discretion:

Now, if the probation report reveals information previously unknown to the Court, that the Court [feels] is of a serious nature, the Court, in its discretion, may refuse to sentence the Defendant under the plea terms, and permit the Defendant to withdraw [his] plea.

Id. at 3:19-24 (emphasis added).

Emphasized were the rights that petitioner would be giving up by accepting a plea deal:

The Court: Do you understand, if you did not 'take a plea, and you went to trial, you would have a right to a trial by jury, with the assistance 'of an attorney. Do you understand that?

The Defendant: Yes.

The Court: You will not have to testify and take the stand. Do you understand that?

The Defendant: Yes.

The Court: You would have a right to hear the witnesses testifying against you. Do you understand that?

The Defendant: Yes.

The Court: You would have the right to bring in witnesses to .testify for you. Do you understand that?

The Defendant: Yes.

The Court: By pleading guilty, you give up those rights. Do you understand that?

The Defendant: Yes.

The Court: And, a ..plea of guilty is the same as a conviction after trial. Do you understand that?

The Defendant: Yes, your honor.

Id. at 5:15-6:9. Petitioner’s counsel explained to the court that there was “a possibility that Mr. Constant may continue to cooperate with the Attorney General’s Office. And, if they obtain information they feel is useful, they may recommend a lesser time of incarceration.” Id. at 7:11-15.

The court made it plain that the guilty plea would not be accepted unless défen-dant admitted his guilt. Id. at 7:18-21. Petitioner’s admission of guilt'was taken as follows:

[Prosecutor]: The People contend, relating to count three of the indictment, that on or' about October 2, 2002, in Kings County, and other locations in the State of New York, the Defendant, acting in concert with other persons, helped process loan applications through a bank with respect to a property located at 878[sic] Monroe Street in Brooklyn, New York. And, based on false representations that, the Defendant and others knowingly made in those documents that were submitted to the bank, the bank, then relying on the documents, advanced mortgage money that it would not otherwise have advanced had it known the true circumstances of the transaction relating to that property, namely, 87 Monroe Street, Brooklyn, New York.

■The Court:. And the amount of money that was involved?

[Prosecutor]: It was in excess of $50,000.

The Court: Is that correct, sir?

The Defendant: Yes, your Honor.

Id. at 7:23-8:16.

Petitioner was advised of the maximum sentence available should he fail to cooperate before sentencing:

The Court: If you fail to appear for sentence, or [are] rearrested, you will not be permitted to withdraw this plea, and all promises are void. At that point, the court may impose any permissible sentence. What is the maximum?

The Clerk: Five to 15 years.

The Court: You can get five to 15 years on this case. Do you understand that?

The Defendant: Yes, your Honor.

Id. at 8:25-9:8.

Satisfied with petitioner’s understanding of the nature of the charges, the plea, and the possible consequences of the plea, the court accepted the plea, stating:

The Court is satisfied .that the Defendant understands the nature of the charges, nature of the plea, and possible consequences of his plea.

The- defendant has discussed his legal rights with his attorney. He is waving [sic] his constitutional rights. And, the plea is voluntary, of his own free will. And, that the Defendant admits his guilty [sic], and is willing to assume responsibility for it.

By pleading guilty, the Defendant is insured prompt and certain punishment to himself, without delay. And the Court believes it is in the interest of justice to take the plea from the Defendant.

The clerk is directed to take the plea.

Id. at 10:11-23.

The Clerk: Do you now plead guilty to the crime of Grand Larceny in the Second Degree, a class C felony, in full satisfaction of the indictment. Is that what you wish to do?

The Defendant: Yes.

Id. at 11:8-12.

Petitioner was told that he could not be sentenced prior to the court’s receipt of a probation report.

[Defendant’s Counsel]: Your Honor, as far as the probation report that was completed out in Suffolk County. Will there be a separate probation report completed here? I would like that.

The Court: I think the statute requires, this is a felony. That in order for me to sentence the Defendant I have to have a probation report.

Id. at 12:19-25.

Sentencing was set for April 16, 2007. Id. at 12:16-18. It was subsequently adjourned to May 15, 2007. See Adjournment Request Hearing, Apr. 16, 2007, ECF No. 20-2 at 21-22.

B. Third Party Informs Court of Petitioner’s Alleged Crimes in Haiti

On May 14, 2007, one day before petitioner’s scheduled sentencing hearing, the court received a letter from Jennifer Green, of the Center for Constitutional Rights (“CCR”), a human rights legal organization. See Letter from Jennifer Green, ECF No. 20-1 at 18-20 (“CCR Letter”). The letter alleged in detail that petitioner was responsible for human rights abuses and political violence in Haiti:

On behalf of the Center for Constitutional Rights (CCR), a legal non-profit dedicated to upholding the rights in the U.S. Constitution and the Universal Declaration of Human Rights, I respectfully submit this letter to be considered as a part of the pre-sentencing report in the criminal matter involving defendant Emmanuel (“Toto”) Constant.

As the following information will show, Constant has a long history of human rights abuses in his home country of Haiti, in addition to the fraud he has committed while in the United States. We strongly encourage the Court to apply the maximum sentence under the law to Constant and also strongly encourage the judicial system of New York to take all possible measures so that Constant serves his sentence in its entirety before he faces deportation back to Haiti.

As the former leader of the notorious Haitian paramilitary death squad known as FRAPH (the Revolutionary Front for Haitian Advancement and Progress), Constant was responsible for massacres, gang rapes and other torture committed by FRAPH under his command. FRAPH was formed in August or September of 1993 to assist the Haitian military in blocking the return to power of President Jean-Bertrand Aristide, whom the military had overthrown in a coup in 1991.

After President Aristide returned to power, he issued an arrest warrant for Constant for his crimes committed during the time of military rule. Soon after, in December 1994, Constant then fled to the United States.

In the late 1990s, the regional human rights body, the Organization of American States Inter-American Commission on Human Rights found that “[t]he primary instruments of the repression inflicted on women and children in Haiti have been rapes and other types of violence and abuse committed by members of the army and police forces, their armed civilian auxiliaries, the attachés, paramilitary groups and members of FRAPH, acting with complete impunity.” Organization of American States, Report on the Situation of Human Rights in Haiti, para. 119[.] The report continued,

... [Ajrmed men, frequently soldiers or FRAPH members, violently enter the house of a political militant to arrest him. When he is not there and the family cannot say where he is, the intruders turn against his wife, sister, daughter or cousin. Sexual abuse against Haitian women was carried out in various ways, but with a single aim: to create a climate of terror among people supporting Aristide. Women were generally raped by several men on the same occasion. Pregnant women and those who had just given birth were not safe from these crimes. Often, a violation occurred in the home of the victim in front of children and other family members, and then not only the woman, but the entire family was terrorized.” Id. paras. 121-122.

In 2004, the Center for Constitutional Rights, along with co-counsel from the Center for Justice and Accountability, filed a civil lawsuit against Constant charging him with crimes against humanity, attempted summary execution, and rape and other torture on behalf of three Haitian women who were brutally tortured by FRAPH. Two of the three plaintiffs were gang-raped in front of their families. A third was attacked by two FRAPH operatives and left for dead. Constant chose to simply ignore these charges, and in October 2006, the judge in the case issued a default judgment against Constant for his role in crimes against humanity, attempted summary execution, and rape and other torture. In awarding punitive damages, the Southern District of New York noted,

Constant’s conduct was clearly malicious. As commander of FRAPH, Constant founded and oversaw an organization that was dedicated principally towards terrorizing and torturing political opponents of the military regime. His direction or at a minimum, approval — of FRAPH’s state-backed campaign of violence constitutes an inexcusable violation of international law and merits a stiff punishment. This is particularly so because given that the government of Haiti has not, and likely will not prosecute Constant for his actions, “the objective of the international law making torture punishable as a crime can only be vindicated by imposing punitive damages.”

Doe v. Constant, [04-CV-10108], Findings of Fact and Conclusions of Law, Oct. 24, 2006[,] Slip Op. at 12 (citations omitted).....

Constant’s record of human rights abuses have been confirmed by U.S. government documents. In the mid-1990s, CCR obtained documents from the U.S. government through a series of Freedom of Information Act Requests which confirmed the broad and systematic pattern of FRAPH abuses and revealed that Constant directly conspired in the assassination of President Aristide’s Minister of Justice, Guy Malary.

The record of Constant’s human rights abuses in Haiti is extensive and we respectfully urge this court to take this record into account in applying the maximum sentence to Mr. Constant for his crime of grand larceny and fraud.

We also ask that Constant serve his full sentence in the U.S. before being deported to Haiti. With the instability that currently exists in Haiti, it is extremely likely that Mr. Constant would be able to evade justice once in his home country. A number of leaders of FRAPH escaped justice during the previous military regime. Given Constant’s documented pattern of human rights abuses perpetrated upon the Haitian people, he represents a serious threat to the safety and well-being of the nation. Serving his sentence in the United States would allow the Haitian justice system a chance to stabilize, so there is a greater chance for human rights abusers such as Constant to be brought to justice, rather than remain at large and able to perpetrate further human rights abuses.

Id.; see also generally Report on the Situation of Human Rights in Haiti, Organization of American States (Feb. 9, 1995), ECF No. 20-1 at 22-35 (excerpt). But see Memorandum in Defense of Emmanuel Constant Against the Allegations of Human Rights Violations, Oct. 28, 2008, ECF No. 21 at 16-49 (*sealed*) (contesting the allegations set forth in CCR Letter and maintaining that he is not being afforded the opportunity to defend himself against such allegations appropriately).

C. Post-Plea Sentencing

1. First Hearing

a. Department of Homeland Security Requests Time Served

Petitioner’s sentencing hearing was held on May 15, 2007. See May 15,. 2007 Hearing Transcript, May 15, 2007, ECF No. 20-2 at 23-47 (“May 15, 2007 Hr’g Tr.”). After listening to the state reiterate its support for the initial plea agreement, the court heard statements from two United States Department of Homeland Security (“DHS”) representatives, Paul Gleason and Arjay Bhatt. Id. at 4:5-7, 4:18-19.

Gleason and Bhatt explained that Immigration and Customs Enforcement (“ICE”) was seeking custody of petitioner to expedite his deportation to Haiti because he had a previously un-executed final order of removal against him, as well as an indictment in absentia in Haiti' for torture and murder in a 1994 massacre in Raboteau. Id. at 4:10-15, 5:19-24.

Raboteau, a heavily-populated shanty town along the coast at Gonaives, was particularly targeted for repression by the army and paramilitary because of its activist past and the strong support of its inhabitants for ousted president Aris-tide. As a result of a joint military and paramilitary operation which began on 18 April 1994, an estimated 20 people lost their lives. Homes were sacked, and burned and men, women and children beaten. Some died from the beatings or from gunshot wounds while others drowned as they fled into the sea. Some bodies were never recovered, as the survivors had to flee the area for their own safety.

Haiti: Perpetrators of Past Abuses Threaten Human Rights and the Reestablishment of the Rule of Law, Amnesty Int’l at A-104 at 264, Mar. 3, 2004, ECF No. 20-1 at 261-72.

The DHS representatives indicated that the justice system in Haiti had improved and was capable of trying petitioner:

[T]he government of Haiti has clearly demonstrated its capacity to seek justice for criminality since February, with the support of the United States, issues [sic] in Haiti, has captured, arrested and detained over 400 gang members whose judicial proceedings are pending.

Overall Haiti has made significant progress' over the last two years. The people are operating freely and democratically, a new government parliament, and officials working with the Department of State closely and its ties in Haiti, to determine the future for Emmanuel Constant and respectfully request that he enter ICE custody.

See May 15,2007 Hr’g Tr. 4:24-5:13.

. DHS requested a sentence of “time served” to facilitate petitioner’s deportation to Haiti. Id. at 6:6-18.

b. Center for Constitutional Rights Requests Lengthy Sentence

Jennifer' Green, who had written the letter concerning petitioner’s crimes in Haiti, also spoke at the hearing. Id. at 8:15; CCR Letter, ECF No. 20-1 at 18-20. She countered the suggestion that Haiti was capable of trying petitioner.

We have heard from some of[ ] our colleagues in Haiti who have represented to us that the situation in Haiti is still one of chaos and that the justice system is still either [sic] being put back together after the latest military coup. The new democratic government has been in position for a very short time.

See May 15, 2007 Hr’g Tr. at 8:16-22. Arguing against sentencing petitioner to time served, Green contended that he should receive a longer sentence than the one to three years contemplated in the plea bargain.

It will also just offend a lot of the members of the Haiti [sic] community if Mr. Constant were given time served. That means he would serve under the minimum for this crime and given the heinous nature of the other crimes he has committed, which we do think reflect very negatively, on his character, we think it is offensive that he would be serving two months on a one to three year sentence. We think he should serve at least the minimum [sentence of five years].

Id. at 9:5-14.

c. Decision Deferred

Deferring, pronouncement of petitioner’s sentence, the court indicated that it had underestimated the nature of defendant’s prior bad acts and needed to reconsider the case:

[I] must indicate that the charges that are being and they’re only charges, are being alleged against this defendant are much more than what I anticipated had to do with accepting the plea and in my plea, in the plea allocution, I did say that if there is anything that comes to my attention, I would permit the defendant to withdraw his plea if I could not move ahead with the plea itself. If this defendant was convicted and he’s innocent in this courtroom of any charges against him with reference to the charges that are brought, if in fact the Court permits him to withdraw his plea, he would be facing five to 15 years here in the Unitv ed States on this matter if he’s convicted. Up to. That doesn’t mean the Court would give him that amount. It doesn’t mean — I won’t prejudge what I would do. But I am not prepared at this point today to sentence the defendant or permit him to mthdraw his plea. I’m going to think about this. This has all been given to me in the last couple of minutes, and I think it’s too important an issue for the Court merely to come to a conclusion without analyzing, and I would also, give [CCR] an opportunity, anyone to give me any additional information that they want so I can make, I can evaluate this and come to a conclusion^]

Id. at 11:12-12:14 (emphasis added).

The court explained that it would come to one of three possible conclusions:

[First,] [i]t will either be agreeing with Homeland and give him time served so he can move ahead to wherever it is. [Second,] [i]t could be sentencing in the way I intended to sentence him, and we all intended to sentence him; that was oné to three years and let the Parole Board do whatever they do[.]

[O]r the third option, which is one that I am thinking about, is denying him the sentence and permitting him to withdraw his.plea and asking the attorney general to try the case.

Id. at 12:15-25.

Reargument was scheduled for the following week. Id. at 13:4-6. Addressing the court, petitioner claimed that the issues raised by his indictment in Haiti had no bearing on his case before the court, and that the allegations being brought against him by CCR were politically motivated.

... I’m very surprised to be, like I said, surrounded suddenly by all types of allegations and accusations that, in fact, I have absolutely no bearing on' the actual case that I’m, we are trying here____ [The] accusations ... against me con-cerní] things that [are] purely political and happened' in Haiti, that allegedly happened in Haiti[.]

Id. at 14:25-15:13. He continued:

I’ve known for years that I have a final order of deportation even though the situation in Haiti is not really, is chaos for the time being and my life would be in danger if deported, but I’m willing to respect the order of the Homeland Security.

Id. at 16:4-9.

The court moved cautiously and with deliberation. It ordered all parties present at the hearing to share information regarding petitioner’s sentencing:

[T]he Court takes a lot of things into consideration when one takes a plea and a sentence, so the Court will evaluate everything that everybody is saying here and give everybody that opportunity to say everything. Everything is on the record. The defendant has an opportunity . to say what he wants to say____[A]fter he receives any addition- _ al information that he might receive[.]

Id. at 18:5-13,18:18-20.

Petitioner’s counsel indicated that the probation report in Suffolk County, where prisoner had been sentenced to a term of incarceration of one to three years for the crime of grand larceny in the second degree and other offenses for his involvement in 'mortgage fraud schemes contained the same allegations by CCR. Id. at 19:9-12; Letter from Assistant Deputy Attorney General, Nov. 9, 2006, ECF No. 20-1 at 14-16.

I’d like to add, [the] Judge[] in the Suffolk County case did have a probation report and the probation report did point out all the accusations from the Center for Constitutional Rights.

May 15, 2007 Hr’g Tr. 19:8-12. The court indicated it needed to analyze the sentencing materials carefully.

I find that the report that was given to me by the Center for Constitutional Rights, that is what I’m basing this upon, and I don’t believe — and may I also say that two judges have a right to disagree with one another, like two lawyers have a right to disagree with one another. I might have looked at this quite differently with reference to a plea if I had this information in front of me. And I’m going to analyze it and see exactly what the decision will be[.]

Id. at 19:25-20:10.

2. Center for Constitutional Rights Submits Additional Documents

CCR then submitted declarations of three expert witnesses, Robert Maguire, Mario Joseph, and Brian Concannon, and additional documents regarding petitioner’s crimes and the perilous state of the criminal justice system in Haiti. See Letter from Jennifer Green and Moira Feeney, May 18, 2007, ECF No. 20-1 at 55-57; see also generally ECF No. 20-1 at 59-290 (affidavits of experts and assorted documents, including: (1) 2007 report by the United States Agency for International Development detailing current problems in the Haitian judicial system; (2) 2007 annual report from the U.S. State Department Bureau of Democracy, Human Rights and Labor detailing ongoing problems in Haitian prison and detention centers; and (3) reports from Amnesty International and Human Rights Watch documenting human rights abusers and the continuing threat posed in Haiti).

The evidence showed that petitioner helped establish and led the Revolutionary Front for the Advancement and Progress of Haiti (“FRAPH”), a paramilitary force that supported the de facto military government that ruled Haiti from 1991 to 1994. See Decl. of Robert E. Maguire ¶¶ 3-4, 8-10, May 18, 2007, ECF No. 20-1 at 77-87 (“Maguire Decl.”); Memorandum to the Congress of the United States of America by Emmanuel “Toto” Constant, Political Prisoner 89, April 19, 1996, ECF No. 21 at 89-93 (*sealed*) (describing FRAPH’s relationship with Clinton Administration in 1990s). “FRAPH,” when pronounced, is a homophone for the Creole word “a sharp blow or punch.” Maguire Decl. ¶ 4.

In 1991, FRAPH was initially led by a central committee of five self-appointed members, but three years later, petitioner had risen to Secretary General, “virtually the only active member of the committee.” Id. at ¶ 13.

In his declaration, Maguire, an expert in Haitian politics and social history who had been visiting the country since 1979, explained petitioner’s central role in FRAPH:

Mr. Constant played a very large role in FRAPH. In my opinion, Mr. Constant created FRAPH, controlled FRAPH, and represented FRAPH. My opinion is based on the assertions Mr. Constant made in a 1995 deposition and from my own personal knowledge of Haiti during the early 1990s. In his deposition, Mr. Constant admitted that he visited the headquarters of the organization, granted membership cards, named officials to departmental and regional branches, represented FRAPH before the press, called press conferences, attended FRAPH rallies, and made pronouncements on the radio and television. In his owns words, “I’m not a member of FRAPH. I’m a leader of FRAPH.”

... [Mr. Constant] was involved in the organization’s day-to-day administrative activities. He was also involved in planning and carrying out major FRAPH activities. Two examples clearly illustrate this[:]

[First,] [i]n October of 1993, a U.S. Navy vessel, the Harlan County, was to arrive in Haiti to deliver several hundred lightly armed Canadian and American troops who would act as police trainers, as agreed upon three months earlier at an internationally-brokered meeting at Governor’s Island in New York between the de facto [Haitian] government and the legitimate exiled [Haitian] government. As the vessel approached Haiti, Mr. Constant personally called for a demonstration to prevent the troops from disembarking. Evidence of his influence emerged when international monitors verified that demonstrators sent by Mr. Constant to the docks in Port-au-Prince mimicked his stated talking points — namely that the fate of the police trainers aboard the Harlan County would be the same as that of U.S. soldiers recently killed and dragged through the streets of Mogadishu in Somalia. The subsequent withdrawal of the Harlan County boosted Mr. Constant’s power and authority.

[Second ], in late December of 1993, Mr. Constant coordinated and directed members of FRAPH' to set fire to a large portion of Cite Soleil, a slum in Port-au-Prince— Over 1,000 homes were burned and over 100 people died in this deliberate act of arson.

Id. at ¶¶ 17-18 (emphasis added); see also Deposition of Emmanuel Constant at 154:13-15, June 7, 1995, ECF No. 20-1 at 154-57 (excerpt) (“No, I was not the only FRAPH member. I was the — one of the FRAPH leaders. I’m not a member of FRAPH. I’m a leader of FRAPH.”).

Maguire described some of the gruesome practices FRAPH used, including “scraping off a murder victim’s face using a machete” and “rape.” Maguire Decl. ¶¶ 19-20. His declaration stated:

.... FRAPH routinely intimidated the population and tried to eliminate Mr. Aristide’s supporters. Typically, FRAPH targeted known pro-democracy activists. And,- if those activists had gone into hiding, FRAPH moved against family members of their intended target. According to reports of the National Truth and Justice Commission and reports by human rights observers, FRAPH would routinely murder, rape, torture, imprison, and kidnap activists opposed to the de facto government. FRAPH would also use specific techniques, such as “kout marasa” which involved simultaneously striking a victim’s ears[,] which pierced the victim’s eardrums, [and] caused profuse bleeding and permanent damage- to that person’s hearing. It also engaged in the particularly gruesome practice of “erasing,” which involved scraping off a murder victim’s face using a machete[,] to literally erase it. [The] [e]rasing technique was particularly horrifying in the context of Haiti’s deeply spiritual society where it is very important to ensure that loved ones find eternal rest after death[.] Because erasing rémoved the victim’s identity, this ensured that the soul of the disfigured body would not find eternal rest. As a result, entire families were tormented and haunted by FRAPH’s actions.

The incidence of politically-induced rape increased dramatically in late 1993 through 1994, when FRAPH was at its peak of power. .Rape was used by FRAPH to accomplish a number of goals. If FRAPH members went to the home of an activist who supported Aris-tide or who opposed the de facto government and discovered that the activist was not home, then the FRAPH members might rape the women and children who were there as surrogates of their intended' victim. In other cases, FRAPH members raped women who were known ... or suspected to be activists. Rape was used in both of these situations to instill fear[,] and to intimidate, shame, and silence the victim,

As- a leader and organizer of FRAPH, Mr. Constant clearly knew of his organization’s use of rape ... as a tactic for terrorizing and silencing the population. Further, Mr. Constant, like all Haitian •citizens at this time, would have been well-aware of the increasing incidence of rape being enacted by gangs of paramilitary operatives as a result of the publicity [the rapes] received via broadcast and written reports, and via Haiti’s extremely effective word-of-mouth channels' for the ' dissemination • of information. Hence, even if Mr; Constant wished to ignore the information ... he was exposed to from his official position in FRAPH, he would certainly have to [have]- know[n] about it as a Haitian resident. -Given his position of authority within FRAPH, [there is no doubt that] Mr. Constant ,.. could have stopped the rapes and other abuses if he had chosen to.

Id. at ¶¶ 19-21.

Haitian human rights attorney Mario Joseph, in his declaration, listed the difficulties associated with bringing petitioner to trial in Haiti:

Based on my thirteen years’ experience working with the Haitian justice system on prominent human rights cases, I believe there is a strong risk that the Haitian government will not adequately prosecute Mr. Constant if he is returned to Haiti because:

A. The Haitian justice system is historically weak, and was greatly weakened during the two years of the unelected Interim Government of Haiti or the “IGH” (March 2004 — May 2006);

B. Several other people in Mr. Constant’s exact legal situation are circulating freely in Haiti without being prosecuted ...; '

C. High profile and complex human rights cases pose a challenge to Haiti’s judicial system. The prosecution of the case of the Rabo-teau Massacre took more than four years. It finally went to trial six years after the return of democratic rule to Haiti.

D.. While in power, the IGH forced ■ honest and objective judges- off the. bench, replacing them with their partisans. The most extreme example came with the fir- ■ ing of all the members of Haiti’s highest court, the Cour de Cassation, in one fell swoop in December 2005. This maneuver had a strong impact on- lower court judges, undermining their ability to remain impartial and objective. The judges and prosecutors appointed during the unconstitutional period of transitional government under the IGH remain on the bench.

See Declaration of Mario Joseph ¶ 7, May 18, 2007, ECF No. 20-1 at 59-64 (“Joseph Decl.”); see also generally Declaration of Brian E. Concannon, Jr., Esq., May 18, 2007, ECF No. 20-1 at 67-75 (“Concannon Decl”) (same).

Joseph stressed that other individuals indicted for the Raboteau Massacre had evaded justice:

Another person convicted along with Mr. Constant in the Raboteau case is the number-two-in-command of FRAPH, Louis Jodel Chamblain. Mr. Chamblain took refuge in the Dominican Republic for many years. He was a leader in the armed invasion into Haiti that led to the coup d’etat of February 2004. Under international pressure, Mr. Chamblain turned himself in to the IGH, ostensibly to stand trial on another in absentia murder conviction. But the “trial” in August 2004 was a transparent device to free Mr. Chamblain. There were several procedural irregularities. Amnesty International referred to the trial as “an insult to justice” and a “mockery.” The New York Times called it “sham justice.” Mr. Chamblain was released, and has not been pursued for any of his crimes. He even ran for Parliament-in the February 2006 elections.

Joseph Decl. at ¶ 11 (emphasis in original).

The weakness of Haiti’s criminal justice system was corroborated by the declaration of Concannon, another human rights attorney:

The Raboteau case is a strong example of the politicization of the justice system under the IGH. There were two types of convictions at the trial: 1) the sixteen defendants who were in the courtroom, who, after a full defense, were convicted by a jury and sentenced by the judge; and 2) thirty-seven defendants convicted and sentenced in absentia, by a judge. In absentia defendants do not have the right to present a defense, but are allowed a re-trial, with no presumptions from the in absentia conviction, if they return to Haiti.

The in-court convicts in the Raboteau case appealed shortly after the November 2000 jury decision. At the time, the prosecutors and lawyers for the victims felt that the grounds they advanced were weak. But as time passed without the Cour de Cassation, Haiti’s supreme court,"deciding the appeal, we became worried. We-initially feared that the convicts’ rights were being denied, but after our repeated, unsuccessful efforts to convince the court to hear the appeal, we began to fear that the appeals were being delayed until the next coup d’etat, when the convicts could escape.

Those fears now appear well-justified. The Cour de Cassation never heard the appeal for three years. After the February 29 coup d’etat, the Court’s President jwas installed as President of the counfry. By March 1, 2004, every person in jail for Raboteau had escaped. Subsequently, the IGH’s judiciary dismantled the Raboteau decision.

Because the Haitian justice system is weak and compromised, and still has a long way to go to successfully transition from the compromises to its integrity and independence imposed by the IGH, I believe that the system would struggle to effectively prosecute any high profile complex human rights case right now. The fact that other people convicted, like Mr. Constant, in absentia in the Rabo-teau massacre case have not been pursued by the justice system makes me believe it is particularly unlikely that Mr. Constant will receive the kind of trial that his victims deserve.

Concannon Decl. ¶¶ 22-24, 30 (emphasis in original).

Both Joseph and Concannon argued that the Haitian political system needed time to mature in order to handle petitioner’s trial.

The more time that the Haitian government has to stabilize and reinforce our democratic institutions, the better chance that the judicial system will be capable of handling the complex case that Mr. Constant represents.

Joseph Decl. ¶ 13.

... I believe an effective prosecution will be much more likely if the Haitian justice system is given time to rebuild itself.

Concannon Decl. ¶ 31.

3. Second Hearing

A second sentencing hearing was conducted. See May 21, 2007 Hearing Transcript, ECF No. 20-2 at 48-66. The court stated that it was in the process of reviewing the large number of documents that had been submitted regarding peti loner’s alleged human rights abuses in Haiti. Id. at 5:12-16,

I have no question at this point because I received so many documents. I read part of them. I haven’t read them all. They are still coming in.

Id.

Green gave a brief overview of the substance of the additional documents submitted to the court a few days earlier, including the current incapacity of Haiti’s judicial system to prosecute petitioner. Id. at 7:8-8:3. . She introduced Joseph, who engaged in the following exchange:

Joseph: The courts in Haiti up until now failed. One of the reasons I say this is because th[ere] is [a] guy who is number two after Emmanuel Constant [ ] who had the same accusations against him as Emmanuel Constant. And even though there was trial of him in Haiti he is now free in the streets.

And the other thing is that the prisons in Haiti, there’s no security there. Several times there’s been breakouts.

The Court: Was that person convicted or the case still pending? Was this a trial?

Joseph: There was no judgment made on them. They — during the middle of the night [had] all charges against them [removed]. The system is corrupt and there was a lot of weakness. In prison on many occasions the prisoners escaped. We have three people, a former general who was convicted in the same trial as Mr. Constant was tried. They were imprisoned. They were in jail in Haiti, and in February 2004 they escaped and got out. Many times there’s rumors of escapes from jail in Haiti. I am one of the first people who would call for Emmanuel Constant [] to go back to stand trial in Haiti. There are many victims in Haiti who would like to see him tried there, but the situation of justice and prisons in Haiti doesn’t make it propitious for him to be returned right now.

Id. at 9:4-10:15.

Vigorously contesting the allegations against him and contending that he faced death if he returned to Haiti, petitioner addressed the court:

... I’ve never ordered or promoted no violence: I never even assisted to nobody execution in my life. I was not brought up like that. All those accusation because I became a pawn in the whole situation because I was the most vocal. I was just fighting for the rights of my people on the embargo, but due to all the circumstances that we cannot discuss here, due to certain — my relationship with the U.S. government, with the White House, I was used as a escape goat, but I tell you my — I was promoting reconciliation between all the political parties. I have no, never promoted violence. There is no proof whatsoever, Your Honor, anywhere in the world that can link me to any type of massacre, execution, kidnapping, rape or anything, of this sort.

I never had my day in court because everybody knows that if I ever go back to Haiti the actual government that’s especially in power is still the same government that’s still related to the Aris-tide government. Everybody knows in the world if I ever touch Haiti it’s not the prison I am going to be escaping. I will be executed at the airport. Everybody knows it.

Id. at 12:8-13:12.

Decision was deferred until the following day. Id. at 17:16-18.

4. Guilty Plea Vacated

On May 22, citing the compendium of information it had received, the court explained why it was refusing to accept the originai plea bargain of one to three years offered to defendant in exchange for his plea of guilty. See May 22, 2007 Hearing Transcript 7:4-6, EOF No. 20-2 at 67-76.

The defendant had pleaded guilty before this court on February 6, 2007 and the matter is now on for sentence. What has been a simple imposition of sentence based on a negotiated plea has now turned into something far more complex. Under consideration by the court is vacatur of the plea, imposition of an agreed upon sentence, or a reduction of the sentence [to] time served resulting in an immediate deportation.

In addition to the parties[,] the court has heard from representatives of the United States Department of State, the Department of Homeland Security, the Center for Constitutional Rights and also received hundreds of faxes from various individuals. All submissions have been made available to both the defense attorney and the Attorney General’s office.

Facts. Defendant pleaded guilty to charges relating to a mortgage fraud scheme. During the plea colloquy[J the court specifically provided that it may refuse to sentence the defendant if any information of a serious nature, previously unknown to the court, was revealed ., The court went on to state .that in such circumstances the defendant would be permitted to withdraw his plea. It is beyond dispute that, in addition to the information contained in the pre-sentence report detailing defendant’s alleged crimes in Haiti the court has also recently received very detailed information regarding these crimes and the defendant’s leadership role in a Haitian anti-democracy paramilitary organization, the Revolutionary Front for the Advancement and Progress of Haiti (known as F.R.A.P.H.). These allegations included in [sic] F.R.A.P.H. involvement in rape, murder, and intimidation of Haitian people on a large scale. F.R.A.P.H. members brutally attempted to crush the democracy movement in Haiti.

“Conditions agreed upon as part of a plea bargain are generally enforceable, unless violative of statute or public policy.” That’s People versus Hicks, 98 N.Y.2d 185, [746 N.Y.S.2d 441, 774 N.E.2d 205] 207. However a sentencing promise made with “a plea is conditioned upon its being lawful and appropriate in light of the subsequent pre-sentence report or information obtained from other reliable sources.” Citing People versus Selikoff, 35 N.Y. [N.Y.2d] 227, 238 [360 N.Y.S.2d 623, 318 N.E.2d 784]. It is well accepted that if a plea agreement cannot be fulfilled the court should vacate the guilty plea. That’s Selikoff at 241 [360 N.Y.S.2d 623, 318 N.E.2d 784]; People versus Escalona, 2001 WL 880830 and that’s supreme court, Kings county 2001.

The extent and specificity of the evidence regarding the defendant’s involvement and' leadership role ' in [] F,R.A.P:H. has only been recently submitted to the Court[;]' while defendant ‘deserves the opportunity to defend" himself against these charges and is' presumed innocent, it is apparent that he was involved with F.R.A.P.H. and played a key role. On June 7, 1995 defendant was deposed for a federal case against F.R.A.P.H. and stated “I’m not a member of FRAPH. I’m not a member of FRAPH. I’m a leader of FRAPH.”

These allegations, if true, are heinous, and the court cannot in good, conscience consent to the previously negotiated sentence. The court also [cannot] consent to the time served, as that would be a .travesty. The plea is hereby vacated . and all counts of the indictment reinstated.

Id. at 3:21-7:6 (emphasis added).

Petitioner’s counsel contested the court’s vacatur:

For the record[,] I want to add.that..the court was fully aware of Mr. Constant’s background. All the documents are in the court file. The documents that I gave you yesterday, Judge, clearly give good background on his history in Haiti and for the court to say there’s new information that wasn’t made aware and for this plea to be vacated based on that is a misuse,of discretion and I do intend to appeal.

Id. at 8:24-9:9.

Responding, the court noted: “While some information was available [as] stated in the decision[,] much more detailed] and highly specific information [about Mr. Constant] was only provided within the last week and indeed the last few days.” Id. at 9:11-15.

5. Third Hearing

a. Petitioner Offered Revised Plea Deal

■Five months later, at a status conference held on October 31, 2007, the court indicated that it would be amenable to a plea agreement of an incarceratory sentence of three to nine years:

[T]he Attorney General had recommended a plea of one to three years.

And the plea was taken to the Court, and then the Court would not accept the plea after we received all the notices arid soforth.

I had suggested today, to resolve this issue, that the Court would accept a plea of [three] to [nine] years.

See Transcript of October 31, 2007 Hearing 2:14-20, ECF No. 20-2 at 80-86 (emphasis added). If the ease were to proceed to trial, the court indicated that petitioner could face up to forty-five years in prison. Id. at 2:21-3:3. The court gave petitioner until November 29, 2007 to decide if he would accept this revised plea deal. Id. at 5:13-14, 6:14.

At the hearing, petitioner’s counsel indicated that he would be making an application to be relieved from the case due to “irreconcilable differences in the way the case [was] being handled.”,Id, at-3:16-20.

b. Revised Plea Deal Rejected by Petitioner

One month after an enhanced sentence was offered, petitioner rejected it." See Transcript of November 29, 2007 Hearing 4:22-5:2, ECF No. 20-2 at 87-105. Asking the court to re-instate the original plea, petitioner explained that he had agreed to the initial plea bargain because it would run concurrently with the sentence in Suffolk County, which would allow him to" be released earlier. Id. at 11:6-10, 13:7-21.

The Court: What you’re saying to me, and let’s be very frank. Maybe you are having difficulty expressing it, but you want me to reduce the amount of time that I made as an offer; is that what you’re saying?

The Defendant: If it’s possible because I want to be entitled to the plea that we had before. ■

The Court: I already said that I am not going to honor that" plea.

Id. at 15:1-10. Having granted the application to relieve petitioner’s prior , counsel, the court adjourned sentencing so that petitioner could obtain and consult with new counsel. Id. at 18:13-24.

c. Revised Plea Deal Again Rejected by Petitioner

On January 9, 2008, two months after the court had extended its offer of an enhanced sentence, petitioner, now represented by a new attorney, again rejected the revised plea deal. See Transcript of January 9, 2008 Hearing 2:4-12, ECF No. 20-2 at 109-12.

[Petitioner’s Counsel]:- I have had extensive conversations with my client, For the last two weeks he was incarcerated in Downstate prison and I was able to speak with him. Based on our conversations both then and this morning he has informed me that he does not wish to take this Court’s plea offer.

Id. at 2:7-12.

The offer was retracted:

The Court: That’s fine. I want him to be aware that it is off the table.

Id. at 2:13-14.

D. Trial

1. Case Presented to Jury

Petitioner’s trial lasted ten days. The prosecution called seventeen witnesses, including key eoconspirators of petitioner involved in three fraudulent real estate transactions. Petitioner essentially justified his actions in two of the three transactions on the ground of good faith and denied his involvement in the third. Trial Tr. 1027:16-1188:18, 1208:24-1209:11, 1243:3-1244:7,1253:8-1258:17.

Defendant’s counsel did.what he.could with a poor factual defense.-

• Petitioner’s unlawful involvement in the 153" Hull Street conveyance was proved by a preponderance of the evidence. Id. at 45:2-16, 51:2-56:13, 76:15-23, 258:10-260:24, 925:5-8, 966:17-968:25, 1058:22-25 Goan officer’s role); id. 233:6-235:4, 240:3— 242:3, 246:12-17, (straw buyer’s role); Trial Ex. 3B at 22, Feb. 8, 2002, ECF No. 20-5 at 21-24 (loan application); Trial Tr. 105:10-108:6, 834:11-13, Trial Ex. 6 at 34, Jan. 29, 2002, ECF No. 20-5 at 31-34 (fraudulent appraisal); Trial Tr. 102:3-105:5, 236:5-14, 241:15-17, 861:21-862:2, 915:22-916:5, 925:19-926:7,(exchange of illicit funds).

• His illegal participation in the 87 Monroe Street transaction was sufficiently established. Id. at- 396:19-397:5, 527:22-548:18, 845:8-13, 943:20-947:23, 1141:4-9 (role of coconspirators in loan application, title transfer, and.property appraisal); Trial Ex. 13, Oct. 3, 2003, ECF No. 20-6 at 22-35 (fraudulent appraisal); Trial Ex. 14, Dec. 31, 2003, ECF No. 20-6 at 36-39 (loan application); Trial Tr. 367:5-379:15, 540:14-546:8, 845:8-13, 944:25-945:19, Trial Ex. 15 at 41, Jan. 5, 2003, ECF No. 20-6 at 41-48, Trial Ex. 21, Jan. 8, 2004, ECF No. 20-7 at 24, Exs. 15, 16A, 16B, ECF No. 20-6 at 41-51 (check and debit statements tracking illicit funds).

• The role he executed in the 118 Bain-bridge refinancing was sustained by the evidence. See Trial Tr. 675:17-684:16, 721:10-722:2 (petitioner’s participation sought out to save ABC mortgage fraud scheme gone awry); id. at 686:18-696:12, 733:1-9, 739:13-24 (transfer of title and resale of loan); id. at 436:3-6, 439:1-20, 451:21-453:20, 702:10-24, 793:20-25, 795:7-14 (refinancing and payout to eoconspirators); Trial Ex. 17 at 54, Dec. 20, 2004, ECF No. 20-6 at 53-56 (refinancing application); Trial Ex. 18 at 7, Oct. 9, 2004, ECF No. 20-7 at 2-18 (fraudulent appraisal); Trial Ex. 20, Dec. 30, 2004, ECF No. 20-7 at 22, Trial Ex.