Opinion
CV 01-6091 (RR)
January 3, 2002
Petitioner, Pro Se, LEE PENG FEI, Inmate No. 82766-012 El Reno, OK
Attorney for Respondent, HONORABLE ALAN VINEGRAD UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK, By: Amy Walsh, Assistant U.S. Attorney
Memorandum and ORDER
Lee Peng Fei, proceeding pro se, moves this court pursuant to 28 U.S.C. § 2255 for an order vacating his 1998 conviction for manslaughter, conspiracy and alien smuggling in connection with the notorious immigrant ship, the Golden Venture. See United States v. Lee Peng Fei, 98 CR 263 (RR). Lee is presently incarcerated serving a ten-year prison term for the manslaughter deaths of at least six persons who drowned off the coast of Queens when the Golden Venture was grounded, and consecutive terms of five years each for conspiring to smuggle and actually smuggling 298 Chinese aliens on board the Golden Venture. Lee's conviction and sentence were upheld by the Court of Appeals in United States v. Lee Peng Fei, 225 F.3d 167 (2d Cir. 2000). This court assumes familiarity with that decision, as well as others involving the Golden Venture. See United States v. Moe, 65 F.3d 245 (2d Cir. 1995); United States v. Kin Sin Lee, 122 F.3d 1058 (2d Cir. 1995) (unpublished opinion available at 1995 WL 595065 (Sept. 11, 1995));United States v. Hui, 83 F.3d 592 (2d Cir. 1996).
In moving for § 2255 relief, Lee asserts that (1) his Fifth Amendment right to due process and his Sixth Amendment right to an indictment were violated by this court's acceptance of a guilty plea to a criminal information that had not yet been filed with the clerk of court; (2) his allocution was factually inadequate to support his guilty pleas, thereby violating the Fifth Amendment; (3) the consecutive sentences in his case violated his Sixth Amendment rights as recognized in Apprendi v. New Jersey, 530 U.S. 466 (2000): and (4) he was denied the effective assistance of counsel guaranteed by the Sixth Amendment. Having carefully reviewed the submissions of the parties as well as relevant sections of the original criminal record, the court finds that these claims are all without merit. Indeed, none merits lengthy discussion.
1. Guilty Plea to Information
Nothing in the Federal Rules of Criminal Procedure or the case law supports Lee's claim that a federal court lacks jurisdiction to act on a criminal information until it is formally docketed by the Clerk of Court. Rule 7(a) of the Federal Rules of Criminal Procedure does permit an information to be tiled without any preliminary proceedings before a judge or magistrate. But this is only to allow more flexibility than is the case with an indictment. which must be returned to a judicial officer in open court. See Fed.R.Crim.P. 6(f). The added flexibility of Rule 7(a) in no way limits a judicial officer from receiving an information in open court and then transmitting it to the Clerk for docketing. Indeed, this procedure is particularly sensible and efficient when, as in this case, a defendant is ready to waive his right to an indictment and plead guilty to the information.
Lee's reliance on the filing provisions of Fed.R.Civ.P. 5(e) is misplaced since the rules of civil procedure do not apply to criminal cases. In any event, Rule 5(e) recognizes the propriety of a judge receiving papers in open court, simply providing for a notation to be made of the in-court filing date. In this case, the judge's courtroom deputy noted on the relevant transmittal papers that Lee waived indictment and pleaded guilty to an information on March 11, 1998. This is plainly reflected on the docket sheet, as are the dates that the Clerk's office actually received the papers from the court and entered the information on the docket. In sum, Lee's challenge to this court's jurisdiction is rejected as without merit.
2. Sufficiency of the Evidence
As respondent correctly points out, Lee challenged the factual adequacy of his guilty plea on direct appeal. The Court of Appeals having rejected his claim, this court cannot now review the matter on a collateral motion. See United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997).
3. Apprendi Challenge to Consecutive Sentences
To the extent Lee relies on Apprendi v. New Jersey, 530 U.S. 466. to challenge this court's decision to impose consecutive sentences in his case, he misreads the Supreme Court's holding. As the Second Circuit recently emphasized in its en banc decision in United States v. Thomas, ___ F.3d ___ 2001 WL 1579993, 5 (2d Cir. Dec. 12, 2001), "[t]he constitutional rule of Apprendi does not apply where the sentence imposed is not greater than the prescribed statutory maximum for the offense of conviction (emphasis added)." Thus, when, as in this case, there are multiple offenses of conviction. Apprendi requires only that a judge not exceed the statutory maximum as to each count. It in no way alters a judge's discretionary power to run sentences consecutively or concurrently as justice requires in the particular case. To the extent that the consecutive sentences in Lee's case represent a significant upward departure from his sentencing guideline range, the Court of Appeals has already rejected petitioner's challenge, holding that "the upward departure in Lee's sentence reflected a careful and reasoned application of the sentencing guidelines." United States v. Lee Peng Fei, 225 F.3d at 172.
4. Ineffective Assistance of Counsel
Lee asserts that his attorney was constitutionally ineffective in failing to challenge (1) the court's misapplication of the sentencing guidelines in his case, (2) the disparity in the sentences received by him and various confederates, and (3) his guilty plea to an information that had not yet been filed. It is well established that a defendant who challenges the effectiveness of counsel carries a heavy burden. He must show both (a) that counsel's performance was objectively unreasonable, and (b) that but for counsel's errors, the result in his case would have been different. See Strickland v. Washington, 466 U.S. 668 (1984). Plainly, Lee cannot satisfy the second prong of Strickland as to his sentencing and guilty plea claims for the reasons already stated by this court in rejecting these arguments on the merits.
Lee further faults counsel for failing to use an interpreter at unspecified proceedings. The court can only assume that he is referring to attorney-client meetings, for court records reveal that Lee was always assisted by an interpreter at proceedings occurring in open court. Because Lee fails to demonstrate how he was prejudiced by the alleged lack of an interpreter at meetings with counsel, he is not entitled to have his conviction or sentence vacated on this ground.
Finally, Lee submits that counsel was ineffective in failing to challenge the sufficiency of the manslaughter charge and his allocution on this point. He insists that the charge had to plead the ultimate cause of a person's death. He speculates that some of the persons whose bodies washed ashore after the Golden Venture was grounded could have died from natural causes rather than from drowning or hypothermia. The court rejects Lee's argument.
The statute at issue, 18 U.S.C. § 1115, makes it a crime for any owner or employee of a vessel, through misconduct, to cause the life of another person to be destroyed. Nothing in the statute requires that the ultimate cause of the manslaughter be specifically pleaded. The critical allegation is of a causal connection between a death and defendant's misconduct.
In this case, the information charged that Lee Peng Fei "did knowingly and wilfully aid. abet, counsel, command, induce and procure the commission of an offense, to wit, misconduct by an owner of and employee on a vessel called the GOLDEN VENTURE through whose misconduct on such vessel the lives of other persons, namely John Does 1 through 6, were destroyed." See Guilty Plea Tr. at 11. At the allocution, the court explained that this would require the government to prove both (a) "that some person on the GOLDEN VENTURE engaged in misconduct that was specifically the cause of the death of these other persons" and (b) that Lee "somehow aided that person in the misconduct or, as I said, even commanded that he engage in it." Id. Lee's allocution amply supported these elements. Indeed, as the Court of Appeals noted in affirming his conviction:
Lee was responsible for the inhumane conditions that deprived his passengers of adequate water, food, sanitation, and opportunity for exercise for weeks on end. He knew that the Golden Venture lacked life preservers and life boats. Yet, he ordered the ship to ground at full speed in the dead of night in an area with water temperatures below 60F, and ordered the crew to tell the passengers that those who knew how to swim should jump overboard. The passengers were not even warned of the time of impact, and there was no plan or equipment to evacuate them safely.
Thus, . . . the multiple deaths that in fact occurred were an entirely foreseeable result of Lee's arrangements and orders to his subordinates. The district court correctly discerned an adequate causal nexus for conviction under 18 U.S.C. § 1115.United States v. Fei, 225 F.3d at 171.
In sum, counsel was not constitutionally ineffective for failing to challenge the § 1115 charge or allocution.
Conclusion
For the reasons stated, the court finds that Lee's motion to vacate his conviction and sentence is without merit. The motion is hereby denied as is a certificate of appealability. The Clerk of the Court is to mark this case closed.