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United States v. Alcalay

United States District Court, D. Vermont

June 12, 2019

United States of America
David Alcalay

          OPINION AND ORDER (DOC. 9)

          John M. Conroy United States Magistrate Judge.

         David Alcalay, with benefit of counsel, has petitioned for a writ of error coram nobis, seeking to vacate his 1987 misdemeanor conviction that resulted from his plea of guilty to the crime of alien smuggling in violation of 8 U.S.C. § 1324(a)(2)(A). (Doc. 9; see Doc. 7.) Alcalay contends he received ineffective assistance of counsel prior to pleading guilty, thereby rendering his guilty plea involuntary and constitutionally infirm. (Doc. 9 at 9; see Docs. 16, 23, 25.) The government opposes the Petition, asserting that it was filed over 30 years after Alcalay's conviction without providing a reason for the delay, and that, in any event, there are no grounds supporting application of the extraordinary remedy of coram nobis relief. (Doc. 15; see Doc. 24.) The authority for the undersigned magistrate judge to hear and decide this Petition is found at 28 U.S.C. § 636(a)(5) as this matter involves a challenge to a conviction for a Class A misdemeanor in which the defendant had consented to magistrate judge jurisdiction.

         For the reasons discussed below, I find that Alcalay has unjustifiably filed his Petition too late, and has failed to demonstrate any circumstances so compelling that justice requires coram nobis relief. Therefore, Alcalay's Petition for Writ of Error Coram Nobis (Doc. 9) is DENIED.

         Background Facts and Procedure

         The records of this Court reveal that on October 5, 1987, Alcalay appeared before United States Magistrate[1] Jerome J. Niedermeier, having been charged with the misdemeanor crime of bringing or attempting to bring an alien into the United States, in violation of 8 U.S.C. § 1324(a)(2)(A). (Doc. 6.) Alcalay was represented by Attorney John Brockway. (Id.) At the initial appearance, a probable cause hearing was scheduled for October 22, 1987, and Alcalay was released on his own personal recognizance. (Id. at 2.) Attorney Brockway later waived the probable cause hearing on behalf of Alcalay. (Id.)

         On November 2, 1987, Alcalay appeared with his codefendant, Moritz Gang, before Magistrate Niedermeier, and pleaded guilty to the charged offense of violating 8 U.S.C. § 1324(a)(2)(A). (Docs. 7, 14; see Doc. 6 at 2.) Attorney Brockway represented both Alcalay and Gang. In response to detailed questioning by the Magistrate, Alcalay testified as follows: he was 40 years old and had finished university; he was satisfied with his attorney's representation of him; the plea agreement was a complete representation of his agreement with the government; he had not been forced to plead guilty; he agreed with the factual summary of the offense conduct; and he affirmed that he pleaded guilty to the charge of misdemeanor alien smuggling. (Doc. 14 at 3-27.) Magistrate Niedermeier also engaged in a detailed colloquy with Alcalay concerning the inherent conflict of interest arising from Attorney Brockway's joint representation of both him and Gang, and ascertained that each defendant understood that conflict and wished to proceed with Brockway as their attorney, waiving their right to separate counsel. (Id. at 9-12.) See Fed. R. Crim. P. 44(c).

         At the conclusion of the plea hearing, Alcalay was sentenced to a $3, 000 fine plus a $25 mandatory special assessment, the total of which he immediately paid by check. (Doc. 14 at 37; see Doc. 6 at 2; Doc. 7.) No. term of imprisonment was imposed. (Id.) No. direct appeal was pursued.

         Now, over 31 years after his guilty plea, Alcalay has filed a Petition for Writ of Error Coram Nobis through new counsel, seeking to vacate his conviction and sentence. (Doc. 9.) As noted above, Alcalay contends that he received ineffective assistance of counsel from Attorney Brockway, resulting in Alcalay entering an involuntary plea of guilty. Specifically, Alcalay asserts that, prior to his plea of guilty, counsel failed to explain to him the “nature and circumstances and elements of the charged conduct” (id. at 7), and “informed [him] that he had no choice at all other than to accept” the plea deal (id. at 7-8). Alcalay also claims that counsel failed to interview his brother, who purportedly would have provided exculpatory evidence concerning Alcalay's knowledge of the undocumented status of the person he brought into the United States. (Doc. 9-3 at 3.) Alcalay further argues that counsel failed to discuss or contemplate filing a motion to suppress “all evidence flowing from a potential illegal stop, search[, ] and seizure.” (Doc. 9 at 7.) Alcalay contends that Attorney Brockway “never explained the consequences of pleading guilty, of having the conviction remain on [his] record following the entry of his plea of guilty, or how it could affect him in the future.” (Id. at 8.) Rather, Alcalay states that Brockway simply advised him that if he paid the required fine, “everything would be dismissed.” (Id.; see Doc. 16-1 at 3-8.) Finally, Alcalay contends that Brockway failed to counsel him on the inherent conflict of interest arising from Brockway's joint representation of Alcalay and Gang and failed to secure from them a written waiver of that conflict. (Doc. 16-1 at 3.)

         Alcalay argues that he has suffered and continues to suffer compelling collateral consequences from the conviction that resulted from his counsel's alleged ineffective assistance. (Doc. 9 at 6-7, 9-10; see Doc. 16-1 at 2.) These consequences consist of: (1) “negative impacts on [Alcalay's] ability to obtain necessary bonding for his businesses [and] . . . necessary bank loans and financing” (Doc. 9 at 10); (2) an inability to have expunged from his record a previously filed and subsequently dismissed state criminal charge in his home state of Florida (id. at 6, 10); (3) a “more than potential[] . . . impact [on] his ability to travel internationally” (id. at 10); and (4) “myriad other collateral effects” (id. at 6). In other words, Alcalay claims his conviction has reduced his ability to transact business and earn money, prevented him from having a state conviction expunged, and possibly limited his ability to travel internationally. (Id. at 6, 9-10; see Doc. 16-1 at 2.) According to Alcalay, “[t]hese consequences continue, and are highly likely to continue, to have a significant impact in terms of annual losses and impediments to his livelihood.” (Doc. 9 at 10.)

         On April 1, 2019, an evidentiary hearing on Alcalay's Petition was held, and Alcalay added the following detail, under oath, to his written claims. (See Doc. 22.) Alcalay testified that he was born in Israel and emigrated to the United States in 1975. (Id. at 7, 9.) He became a naturalized United States citizen in 1983. (Id. at 7.) He earned undergraduate degrees in economics and political science at the Hebrew University in Jerusalem, and has had postgraduate training in banking and financing in Jerusalem. (Id. at 8.) As noted above, since earning his degrees and emigrating to the United States, Alcalay has enjoyed success in several business ventures, including the manufacture and distribution of baking flour, aviation sales, and real estate development. (Id. at 7-8; see Doc. 9 at 6.)

         Alcalay testified that his ability to speak and understand English was very limited at the time of his arrest in 1987. (Doc. 22 at 9-10.) He recalled being detained for two days in Derby Line after the arrest, and then being transferred to Burlington, where he appeared in this court for his initial appearance. (Id. at 11-12.) Upon his release, Alcalay returned to New York where he consulted with an attorney who then referred him to Attorney Brockway, a Vermont attorney. (Id. at 12-14.) Alcalay stated that he “c[ould] hardly remember” his first encounter with Brockway (id. at 14); and that he did not remember going to Brockway's law office, speaking with Brockway on the telephone, or meeting with Brockway anyplace other than in court.[2] (Id. at 14-15.)

         Nonetheless, Alcalay testified that after recently reviewing the transcript from the November 1987 plea hearing, he recalled Brockway being with him at the plea proceeding and advising him that he should plead guilty. (Id. at 15-16.) Alcalay also recalled that Brockway never explained the concept of plea bargaining to him, never discussed the facts leading up to the arrest with him, never sent any written materials to him, never explored possible defenses with him, and never explained the elements of the offense to him. (Id. at 16-18.) Alcalay further testified that Brockway never discussed with him the potential conflicts that are inherent in an attorney's joint representation of codefendants. (Id. at 19.) According to Alcalay, Brockway advised him that if he entered a plea of guilty, he would be charged a fine of up to $25, 000 with no jail time, and then the case “would be over and it would be dismissed and [he would] never hear about it [again].” (Id. at 20.) Alcalay testified that Magistrate Niedermeier similarly advised him that, after he paid the fine, he “[wouldn't] hear from [the Court] anymore.” (Id.)

         After his 1987 conviction, Alcalay returned to New York and “went back to [living his] life.” (Id. at 21.) He apparently forgot about the conviction until the year 2013, when he was arrested after being involved in “an incident” in the bathroom at a Florida movie theater. (Id. at 22.) Alcalay testified that, although he was initially held on a charge of aggravated battery and spent two days in jail as a result of this incident, he was never formally charged because an investigation by the state prosecuting authorities concluded that there was insufficient evidence to prosecute. (Id.; see Doc. 21-1 at 3.) Unfortunately for Alcalay, however, his 2013 arrest generated substantial local publicity, both on the internet and in print, including publication of a story along with Alcalay's booking photograph in the Orlando Sun Sentinel, a newspaper of general circulation in Florida. (Doc. 22 at 22-23, 35.) Alcalay testified that he found the publication of this news “disturbing, ” “inconvenient, ” and detrimental to his various active business ventures. (Id. at 23-24, 35.)

         Alcalay testified that publication of the fact of his 2013 arrest “definitely” had a negative effect his ability to “conduct business” and “[secure] loans from financial institution[s].” (Id. at 24.) According to Alcalay, following publication of the story of his 2013 arrest, several banks that he conducted business with contacted him to discuss the arrest in the context of their financial/business relationships. (Id. at 23, 37.) Alcalay explained that his attorney was required to send letters to these banks explaining the circumstances of the arrest. (Id. at 37.) He further explained that he has not been able to extend his lines of credit with the banks; and it is only because his brother has guaranteed the lines of credit and his family has had a “good relationship” with the banks, that he has been able to maintain his existing lines of credit with them. (Id.) Moreover, Alcalay testified that he had attempted to sell his businesses several times and was unsuccessful, surmising that the transactions did not occur “probably because of my background” because “[n]obody wants to do business with [a] criminal like me.” (Id. at 24-25; see Id. at 35-36.) More specifically, Alcalay explained that he was in the process of selling his flour business for “about $150 million, ” but “at the last moment [and] for no reason, . . . the deal was cancel[l]ed” by the purchaser, “presume[ably]” because of the news surrounding his 2013 arrest. (Id. at 36.) Alcalay further explained that he was also attempting to sell his aviation business for a price of $190 million, and again, at “the last minute, ” the purchaser “cancel[l]ed the deal.” (Id. at 36-37.)

         It was at this time, stated Alcalay, that he asked his Florida lawyer if there was a way to “expunge” all records, both in print and on the internet, of his 2013 Florida arrest. (Id. at 25.) Responding to Alcalay's lawyer's inquiry, however, the Florida court advised that expungement was not possible due to the “incident in Vermont” in 1987. (Id.; see Doc. 21-1 at 1.) After his Florida lawyer searched for records of the 1987 Vermont case for about a year, Alcalay retained a Vermont lawyer to assist in obtaining the records, with the apparent aim of procuring some sort of decree of dismissal of the 1987 Vermont case to present to the Florida court to effectuate expungement of the records of the 2013 Florida arrest. (Doc. 22 at 26-28.)

         At the April 1 hearing, in response to the Court's inquiry, Alcalay also described his difficulties with international travel due to the 1987 arrest. Preliminarily, Alcalay stated that he has traveled “a lot” and “all around the world” since the 1987 arrest, including one trip to Israel and more than 20 trips to Europe (Switzerland, Germany, England, Ireland, and Spain) to attend aviation conventions and meet with clients in furtherance of his aviation business. (Id. at 38-39.) Regarding the “difficult[ies]” that Alcalay encountered with international travel, Alcalay testified that he has ben unable to obtain a “Global Entry” pass, which would allow for expedited border crossings, reduced wait times at airports, no processing lines, and no need to fill out customs paperwork. (Id. at 39.) He also recalled an occasion in approximately 2012 or 2013 when he was the subject of a secondary inspection and detained for two hours by immigration authorities in Canada before he was allowed to return to the United States. (Id. at 39-40.) Alcalay confirmed that he has never been denied entry into the United States, his country of citizenship, but stated that international travel has been “difficult” and “inconvenient” due to his 1987 Vermont conviction. (Id. at 40.) He added that his travel difficulties do not “bother” him as much as his financial problems. (Id.)

         Attorney Bradley Stetler, a frequent and accomplished practitioner in this Court and an expert in federal criminal practice, filed an Affidavit in support of Alcalay's Petition and testified as an expert witness at the April 1 hearing. (See Doc. 9-3; Doc. 22 at 42-60.) Stetler opined that Attorney Brockway's representation of Alcalay with respect to his 1987 conviction was deficient in three ways: (1) Brockway failed to meet with Alcalay before the plea hearing to instruct him about the elements of the crime charged, particularly the degree of intent required; (2) Brockway failed to explore possible defenses and conduct a proper investigation of the facts underlying the case; and (3) Brockway failed to explain to Alcalay the conflicts inherent in his joint representation of both Alcalay and Gang. (Doc. 9-3 at 2-4; Doc. 22 at 44-57.) In response to an inquiry, counsel for the petitioner informed the court that Attorney Brockway was now deceased.

         Analysi ...

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