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United States v. Kalu

United States District Court, D. Colorado

December 13, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
KIZZY KALU, Defendant. Criminal Action No. 12-cr-00106-MSK,

          OPINION AND ORDER DENYING MOTION TO VACATE

          Marcia S. Krieger, Chief Judge

         THIS MATTER comes before the Court pursuant to Mr. Kalu's Motion to Vacate pursuant to 28 U.S.C. § 2255 (# 393, as amended # 395), the Government's response (# 399), and Mr. Kalu's reply (# 400).

         FACTS

         The Court assumes the reader's familiarity with the proceedings to date, and provides only a brief summary.

         In March 2012, Mr. Kalu and a co-Defendant were indicted (# 1, as superseded #149) on various charges of mail fraud, visa fraud, trafficking in forced labor and others. The charges stemmed from a scheme in which Mr. Kalu and his co-defendant recruited nurses from the Philippines and other locations, ostensibly to serve as nursing instructors at Adam University. Mr. Kalu obtained “specialty” H1B visas for the nurses, representing that they would be employed by that institution (thereby avoiding the numerical caps on available H1B visas). In reality, Adam University did not operate and did not employ the nurses to provide instruction of any kind. Instead, Mr. Kalu initially employed the nurses through a business entity that he owned which contracted to provide their services as unspecialized nursing labor to nursing homes and other medical facilities; later, Mr. Kalu instructed the nurses to find nursing positions on their own. Mr. Kalu charged the nurses a fee for obtaining the visas and also required them to pay over a portion of their salaries, threatening them with immigration consequences if they resisted his demands.

         After lengthy pretrial proceedings, the charges against Mr. Kalu were tried to a jury in June 2013. The jury convicted Mr. Kalu on 19 counts of mail fraud (acquitting him on 3 others), 15 counts of inducing or encouraging an alien, 3 counts of visa fraud, 13 counts of forced labor (acquitting him on one), 9 counts of trafficking in forced labor (acquitting him on one), and 29 counts of money laundering (acquitting him on one). In February 2014, the Court sentenced Mr. Kalu to 130 months of imprisonment and imposed a restitution obligation of approximately $ 3.8 million. Mr. Kalu appealed his conviction and sentence. The 10th Circuit affirmed. U.S. v. Kalu, 791 F.3d 1194 (10th Cir. 2015).

         Mr. Kalu timely filed the instant pro se[1] Motion to Vacate (# 393, 395) under 28 U.S.C. § 2255. He raises a single ground for relief - that his trial counsel rendered ineffective assistance in pre-trial plea negotiations. Mr. Kalu specifically alleges that approximately three weeks prior to his trial, his counsel told him that the U.S. Attorney had informally offered a plea deal that would include between 30 - 37 months of imprisonment. Mr. Kalu states that at that time his primary goal was to be released from detention as quickly as possible, and his focus was on securing an offer “as close to the time I have served as possible.” Thus, he asked his counsel to obtain the offer in writing, and to negotiate further with the Government to avoid application of an enhancement under the Sentencing Guidelines to reduce his Guideline range to as little as 15 - 21 months which was close to the 14 months he had been detained pre-trial. Mr. Kalu states that he told his counsel that, if the Government was not amenable to the additional negotiations over the enhancement, “he should accept the deal as it is, IN WRITING, ” and argue against the enhancement at sentencing.

         The following week, Mr. Kalu met again with his counsel, at which time his attorney “proceeded to persuade and encourage me to REJECT the government's offer of 30-37 months.” According to Mr. Kalu, his counsel's reasoning for rejecting the plea agreement entailed: (i) the likelihood that the court would not accept the deal; (ii) that counsel believed that Mr. Kalu would be acquitted at trial; and (iii) that “even if I lost in some of the counts, I would NEVER be sentenced to a time higher than 37 months.” Mr. Kalu states that, because his counsel had not secured the prior offer and writing and had argued against accepting it, he “had no choice but to succumb to their pressure and go to trial.” Thus, Mr. Kalu rejected the plea offer.

         Mr. Kalu attaches a copy of an e-mail, sent to him by his counsel after the jury's verdict but prior to sentencing, in which his counsel relates his recollections of the plea discussions. Mr. Kalu's counsel confirms receipt of a preliminary plea offer, but emphasizes that “this was NEVER any firm offer” and that “if you were interested, [the Government] would talk . . . about making it a firm offer.” Mr. Kalu's counsel stated that “when we met and discussed it, you were not interested in the offer” and that “you told me that you would only take an offer that was close to credit for time served.” Addressing Mr. Kalu's apparent desire to address the plea offer at his upcoming sentencing, counsel advised against it, explaining that “it was be inappropriate for you to claim there was any firm offer on the table. When plea offers are conveyed in these types of cases, they are in writing. We never got past the negotiation stage because you were never interested in any offer even close to what the government was proposing.” Nevertheless, during his allocution at sentencing, Mr. Kalu addressed the plea offer:

I just want to ask respectfully and humbly that I should be - I shouldn't be - that I'm not penalized because I went to trial. Why do I say that? Because I'm sorry two weeks before trial, my attorney told me he was discussing with [the U.S. Attorney] the numbers between 30 and 37 months. And my wife just lost her mom, and I just wanted to go home. And after discussing it with my attorneys, because there was nothing written about this, I decided I knew I felt that I should go to trial.

         Because Mr. Kalu's allegations in the instant motion concerned the advice he received from his counsel, the Court issued an Order (# 403) inviting Mr. Kalu's counsel to provide their recollections of the same conversation. Mr. Menges, Mr. Kalu's primary counsel, supplied an affidavit (# 405, as corrected # 407) stating that: (i) no formal plea offer was ever made by the Government; (ii) Mr. Menges had had “very loose informal discussions” about a possible plea with the Government; (iii) Mr. Menges then met with Mr. Kalu, whereupon they discussed a “hypothetical” of a possible plea in the 30-37 month range; and (iv) Mr. Menges denied ever telling Mr. Kalu that he should reject any plea offers, that the Court would reject a plea, that Mr.

         Kalu was assured of being acquitted at trial, or that Mr. Kalu would never be sentenced to a term in excess of 37 months. Mr. Sheehan, Mr. Menges' co-counsel, also submitted an affidavit (#406), stating that: (i) Mr. Sheehan was at the meeting where Mr. Menges and Mr. Kalu discussed the possibility of a plea offer; (ii) Mr. Menges informed Mr. Kalu at the time that “there was no offer on the table”; (iii) Mr. Kalu “expressed no interest in negotiating a plea agreement”; and (iv) that neither he nor Mr. Menges encouraged Mr. Kalu to reject any plea offer, assured him of an acquittal at trial, or told him that he would not be sentenced to a term longer than 37 months.

         ANALYSIS

         A convicted defendant seeking relief under 28 U.S.C. § 2255 bears the burden of showing that his conviction or sentence was obtained in violation of the Constitution or federal ...


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