Those who Commit Insurance Fraud Have Funds to Issue Interminable Motions & Appeals
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Insurance fraud convictions are unreasonably rare and when the perpetrator is convicted the convicted defendant seems to have unlimited funds to appeal the convictions. Imtiaz Shareef, after his conviction, unsuccessful in his first appeal filed a new appeal claiming his lawyers failed him.
In Imtiaz Shareef v. United States Of America, Nos. 3:22-cv-001144-RJC, 3:18-cr-00157-RJC-DCK-3, United States District Court, W.D. North Carolina, Charlotte Division (May 4, 2022) the USDC put a stop to Shareef's appeals.
BACKGROUND
On April 19, 2018, a federal grand jury indicted Petitioner Imtiaz Shareef, along with three coconspirators, on one count of wire fraud and bank fraud conspiracy in violation of 18 U.S.C. § 1349 (Count One) and one count of money laundering conspiracy in violation of 18 U.S.C. § 1956(h) (Count Two). As to Count One, the Indictment charged that, “[f]rom in or about April 2009 through in or about April 2018, ... [Petitioner and the coconspirators] did knowingly ... conspire ... to commit offenses against the United States, including violations of Title 18, United States Code, Sections 1343 (wire fraud) and 1344 (bank fraud).”
Title 18, Section 1349 provides:
Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy. [18 U.S.C. § 1349].
Petitioner proceeded to trial and the jury convicted him on both counts. On Count One, the jury specifically found that “wire fraud, in violation of 18 U.S.C. § 1343” and “bank fraud, in violation of 18 U.S.C. § 1344” were objects of the conspiracy. Petitioner was sentenced to a term of imprisonment of 57 months on each count to be served concurrently.
On appeal, Petitioner argued that “the insurance fraud scheme supporting the wire fraud object of the conspiracy concluded prior to the running of the statute of limitations and, even if the charge was timely, insufficient evidence supported the jury's verdict.” United States v. Shareef, 852 Fed. App'x 92, 93 (4th Cir. 2021). The Fourth Circuit affirmed the USDC's judgment. He also unsuccessfully argued that prior acts evidence was inappropriately admitted against him and that his trial counsel was ineffective for failing to request a “reliance-on-expert” jury instruction.
Not deterred by his failure at the Fourth Circuit, on March 30, 2022, Petitioner filed a new motion in the USDC and made two claims:
prosecutorial misconduct for the Government submitting 18 U.S.C. §§ 1343 and 1344 to support Petitioner's conviction without submitting such statutes to the grand jury; and
ineffective assistance of trial and appellate counsel for failing to adequately introduce into the record evidence showing that Petitioner was indicted only for violations of 18 U.S.C. § 1349 and 18 U.S.C. § 1956 (h), and allowing the Government to convict or maintain a conviction for Title 18 U.S.C. 1343 and 18 U.S.C. 1344 unconstitutionally.
Shareef asked that his conviction be vacated for what he alleged were many due -process violations.
DISCUSSION
Prosecutorial Misconduct
The Verdict Form submitted to the jury mirrored the charges set forth in the Indictment. And, consistent with the Indictment, the jury found that “wire fraud, in violation of 18 U.S.C. § 1343” and “bank fraud, in violation of 18 U.S.C. § 1344” were objects of the conspiracy. There was, therefore, no prosecutorial misconduct relative to the sufficiency of the Indictment or the way the charges were presented to the jury.
Ineffective Assistance of Counsel
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. To show ineffective assistance of counsel, Petitioner must first establish a deficient performance by counsel and, second, that the deficient performance prejudiced him. In making this determination, there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Furthermore, in considering the prejudice prong of the analysis, the Court can only grant relief if the result of the proceeding was fundamentally unfair or unreliable. Under these circumstances, the petitioner bears the burden of affirmatively proving prejudice. [Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008)].
If the petitioner fails, as did Shareef, to meet this burden, a reviewing court need not even consider the performance prong.
Appellate counsel is not required to assert all non-frivolous issues on appeal. Rather, it is the hallmark of effective appellate advocacy to winnow out weaker arguments and to focus on more promising issues.
A decision with respect to an appeal is entitled to the same presumption that protects sound trial strategy. Additionally, the petitioner still bears the burden of showing that there is a reasonable probability that but for counsel's failure to raise an issue on appeal, the result of the proceeding would have been different; i.e., that he would have prevailed on appeal.
The Indictment plainly set forth that the objects of the conspiracy were the violation of 18 U.S.C. §§ 1343 and 1344 and Petitioner was convicted accordingly. There was no deficient performance by Petitioner's trial or appellate counsel for their failure to raise or attempt to support a frivolous argument.
Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1] was denied and the USDC refused to allow further appeal.
ZALMA OPINION
The USDC refused to properly allow Shareef to abuse the judicial process a second time and kept him jailed in accordance with his conviction. The court, in addition, to ruling on this frivolous motion should have sanctioned Shareef and his lawyers for wasting the time of the court with a frivolous appeal.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and [email protected].
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