People v Pervez

[*1] People v Pervez 2020 NY Slip Op 20272 Decided on October 21, 2020 Supreme Court, Bronx County Barrett, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on October 21, 2020
Supreme Court, Bronx County

The People of the State of New York

against

Mujahid Peter Pervez, Defendant.



1847/13



Assistant Attorney General Christopher Shaw, Medicaid Fraud Control Unit, New York State Attorney General's Office, 212-417-5379

Attorney for Defendant, Ali Najmi, Esq., 212-401-6222
Steven L. Barrett, J.

Defendant stands charged with enterprise corruption, grand larceny in the first degree, and related charges, for his role as the alleged ringleader in a scheme that defrauded Medicaid of millions of dollars.[FN1] Approximately nine months prior to when the indictment was filed, upon learning that he was the target of an investigation by the New York State Attorney General's Medicaid Fraud Control Unit (MFCU), defendant flew to Pakistan. Since learning that defendant took residence in Pakistan, MFCU has sought defendant's return to this Court's jurisdiction to face the pending charges. As will be detailed below, to date, those efforts have been unsuccessful and defendant still resides in Pakistan. Defendant now has filed a motion to dismiss the indictment on the grounds that his constitutional and statutory rights to a speedy trial have been violated. Even more audaciously, defendant seeks dismissal in the interests of justice, claiming that his continued prosecution is a "gross injustice" that "shocks the conscience" and that the "public will have more confidence in the criminal justice system if the indictment is dismissed." For the following reasons, defendant's motion is denied.

Over the course of two months, the People presented to the Grand Jury the testimony of 25 witnesses (including 8 accomplices turned cooperators) and a mountain of documentary evidence (192 exhibits) that established defendant's leading role in a multi-year, multi-million dollar scheme to systematically defraud Medicaid. The evidence demonstrated that defendant, who had previously been convicted of defrauding Medicaid in 1991 and who had been excluded [*2]from the program and specifically excluded from owning or managing pharmacies, used his son (who has pled guilty) as a front to conceal his true ownership and control of at least 11 pharmacies in New York City and Long Island. These pharmacies billed Medicaid and were reimbursed by Medicaid for prescription drugs that were never ordered from wholesalers and never dispensed to patients. In many instances, defendant directed his co-conspirators to pay cash to seriously ill patients who had contracted HIV in return for their prescriptions for expensive HIV medications. Defendant then submitted a claim for reimbursement and was reimbursed by Medicaid often in the thousands of dollars for each prescription. The prescriptions, in fact, were not filled, the medications were not ordered and dispensed, and the patients' illnesses went untreated.

Defendant's Flight and the Efforts to Return Him to the Court's Jurisdiction

On May 3, 2012, defendant, with counsel present, was interviewed by Special Assistant Attorney General Christopher Shaw and was made aware that he was the target of a criminal investigation involving serious charges. (See Affirmation of Christopher Shaw at ¶15.) On September 29, 2012, defendant flew to Pakistan via Abu Dhabi. (See Affirmation of Christopher Shaw at ¶15.) Two cooperating witnesses corroborated defendant's flight information and informed MFCU that defendant had told them that he had fled to Pakistan in order to avoid the instant criminal prosecution. In addition, defendant's son admitted during his plea allocution that defendant had fled to Pakistan rather than face the pending charges. (See Affirmation of Christopher Shaw at ¶16-19, People's Exhibit 2, plea allocution at p. 17.)[FN2]

On or about June 13, 2013, when the instant indictment was filed, this Court signed a warrant for defendant's arrest. Based on the belief that defendant most likely fled to his home country of Pakistan,[FN3] MFCU, with the assistance of the Department of Justice and Interpol, secured an international wanted persons notice known as a "Red Notice," which was then forwarded by the State Department to the Government of Pakistan. (See Affirmation of Christopher Shaw at ¶20.) It was not until February 7, 2017 (approximately 4 years after the indictment was filed) that MFCU learned that on October 15, 2015, based upon the Red Notice, defendant had been detained by Pakistani authorities in Islamabad.[FN4]

In early 2017, once they learned of defendant's detention, MFCU expeditiously undertook diligent efforts to extradite defendant. As detailed in the affirmation of AAG Christopher Shaw, notwithstanding an extradition treaty between the United States and Pakistan, defendant's extraction from Pakistan and transfer to federal and then New York State authority required considerable resources, time, and expense. It required coordination between MFCU, the FBI in Islamabad, a local Pakistani attorney hired by the FBI, the U.S. embassy in Islamabad, U.S. Customs and Immigration Services, and the NYPD.[FN5] (See Affirmation of Christopher Shaw at ¶24-27.)

Initially, defendant indicated that he would not be challenging his extradition, and after much planning, including procuring the Government of Pakistan's consent to extradite defendant, defendant was scheduled to be returned to the United States on October 30, 2017. Airline tickets had been purchased for defendant, and the FBI agents who were tasked with transporting defendant awaited at the airport in Islamabad where Pakistani authorities would transfer custody of defendant to them. However, at the eleventh hour, the agents were informed that defendant had filed a petition seeking a stay of extradition that had been granted by a local court in Islamabad. (See Affirmation of Christopher Shaw at ¶25-26.)

Since October 30, 2017, MFCU has kept in constant contact with the FBI in Pakistan and has been informed that defendant's extradition case in Pakistan has been adjourned numerous times and for a period of time was off the Islamabad court's calendar. (See Affirmation of Christopher Shaw at ¶27.) As recently as November 6, 2019, MFCU was informed by the FBI that defendant's petition to stay extradition is in "legal limbo and that the process has stalled indefinitely" due to the fact that defendant and/or his family is fighting extradition. (See Affirmation of Christopher Shaw at ¶27.)

As we are all well aware, since January 31, 2020, when the Secretary of the Health and Human Services declared a public health emergency, international travel has ground to a virtual halt due to the global pandemic caused by Covid-19. From January 31, 2020 to the present, for much of this time period, due to the coronavirus, all of the international airports in Pakistan have been closed and air travel has been strongly discouraged. (See Affirmation of Christopher Shaw at ¶27.) Throughout this time period to the present, MFCU has continued to stay in contact with the FBI in Pakistan and stands ready to assist in defendant's return to the United States.[FN6] (See [*3]Affirmation of Christopher Shaw at ¶28.)

Conclusions of Law

Initially, based upon the fugitive disentitlement doctrine, the Court declines to consider the merits of defendant's motion. Fugitive disentitlement is an equitable doctrine that may be applied at the court's discretion when the balance of all equitable concerns leads the court to conclude that it is a proper sanction for a defendant's flight. See Nen Di Wu v. Holder, 646 F.3d 133, 135 (2d Cir. 2011); Roman Polanski v. Superior Court, 180 Cal. App. 4th 507, 533 (2009). The doctrine was first employed in the context of appeals in cases in which the United States Supreme Court declined to review the convictions of criminal defendants who have escaped. See Molinaro v. New Jersey, 396 U.S. 365, 366 (1970); Estelle v. Dorrough, 420 U.S. 534 (1975); see also People v. Taveras, 10 NY3d 227, 232-3 (2008)(had People moved to dismiss appeal while defendant was at large, fugitive disentitlement doctrine would apply and defendant would have forfeited his right to appeal). However, the doctrine also has been applied in the trial context. Specifically, it has been applied in cases such as this, where defendants have fled the court's jurisdiction and then filed motions to dismiss the indictment on speedy trial grounds. See United States v. Fox, 2020 WL417796 (S.D.NY 2020)(Cote, J.); United States v. Gayatrinath, 2011 WL873154 (S.D.NY 2011); United States v. Gorcyca, 2008 WL4610297 (E.D.NY 2008)(Block, J.); People v. Joaquin, 150 AD3d 618 (1st Dept. 2017).

The Second Circuit has identified four justifications for applying the fugitive disentitlement doctrine as the basis for denying relief to those who flee from justice: 1) assuring the enforceability of any decision that may be rendered against the fugitive; 2) imposing a penalty for flouting the judicial process; 3) discouraging flights from justice and promoting the efficient operation of the courts; and 4) avoiding prejudice to the prosecution caused by the defendant's escape. See United States v. Persico, 853 F.2d 134, 137 (2d Cir. 1988); United States v. Awadalla, 357 F.3d 243, 245 (2d Cir. 2004); Nen Di Wu v. Holder, supra, 646 F.3d at 135-6.

As a threshold issue, the People have clearly established that defendant is a fugitive insofar as they have adduced evidence that after becoming aware of an investigation into his illegal activities related to his pharmacies, defendant flew to Pakistan to avoid prosecution. Even had defendant first learned of the charges after he flew to Pakistan, the Court would still consider defendant a fugitive because once he learned of the charges he made no effort to return to the United States to face the charges. See United States v. Blanco, 861 F.2d 773, 779 (2d Cir. 1988); see also In re Grand Jury Subpoenas dated March 9, 2001, 179 F. Supp. 2d 270, 287 (S.D.NY 2001)("A person who learns of charges against him while he is outside the jurisdiction constructively flees by deciding not to return.")

Moreover, all of the justifications for applying the doctrine are present here. First, unless [*4]defendant appears, he cannot be held to account on the indictment. Surely, if the Court were to grant defendant's motion and dismiss the indictment, he undoubtably would embrace that result. However, if the Court declines to dismiss the indictment, such decision would be unenforceable because, just as undoubtably, defendant would remain abroad and continue to fight extradition. Second, by ruling on the merits, it would allow defendant to stay safely ensconced in Pakistan while awaiting a decision on his motion and to return to the United States only if it is a favorable decision. The Court cannot and will not countenance such gaming of the legal process. Thus, as an appropriate penalty for defendant's actions, the Court will not consider the instant motion. Third, it is the sincere hope of the Court that application of the disentitlement doctrine will deter others who similarly flout the judicial process. Lastly, applying the doctrine here avoids prejudice to the People, who have spent copious time and resources executing the arrest warrant and dealing with the international extradition process, and, with the passage of time, will likely have difficulty locating witnesses.

For these reasons, the Court exercises its discretion and finds that defendant is a fugitive, who, by his wilful actions, has demonstrated such disrespect for the Court and the legal process that he is disentitled to have his motion entertained and adjudicated by the Court.

Even, assuming arguendo, that the fugitive disentitlement doctrine did not apply, the Court would conclude that defendant's constitutional and statutory speedy trial rights were not violated and that it is not in the interests of justice to dismiss the indictment. With respect to defendant's constitutional speedy trial claim, based upon the record, the People have satisfied their burden of establishing that the delay in prosecuting defendant was not unreasonable. See People v. Staley, 41 NY2d 789, 791 (1977). In reaching this conclusion the Court has considered the following factors: 1) the extent of the delay; 2) the reasons for the delay; 3) the nature of the underlying charge; 4) whether there has been an extended period of pretrial incarceration; and 5) whether there is any indication that the defense has been impaired by reason of the delay. See People v. Taranovich, 37 NY2d 442 (1975).

As to the extent of the delay, defendant claims that the five-year period from his initial detention in Pakistan to his release from custody in Pakistan is an extraordinary period of delay. (See Defendant's Memorandum of Law at p. 7.) Under ordinary circumstances, where defendant is not at large and has been charged in an uncomplicated case with few, if any, co-defendants, the Court indeed would consider a five-year time period excessively lengthy, and thus, constitutionally problematic.[FN7] However, here, defendant has been charged in a complex fraud, with numerous co-defendants, and, most significantly, he has fled the jurisdiction. Further, defendant concedes that, prior to April 9, 2019, his own actions impeded the People's ability to extradite him and that he only became extraditable after April 9, 2019.[FN8] (See Affirmation of Ali Najmi, Esq. at ¶5, 6, Defendant's Memo of Law at p. 5.) Based on defendant's concession, the [*5]Court finds the period of delay, at most, is the rather unextraordinary eleven month period between April 9, 2019 and the filing of the instant motion on May 28, 2020.

Furthermore, the People have satisfied their burden of demonstrating good cause for any delay. As set forth above, the sole reason for the delay is defendant's flight to Pakistan, where he is a citizen, and his successful efforts to date to thwart extradition. None of the delay is attributable to the actions or inactions of the People. Indeed, the Court finds that MFCU has assiduously sought and pursued defendant's extradition from Pakistan and has expended considerable time and expense in doing so. Aside from defendant's efforts in thwarting his extradition, the global pandemic caused by Covid-19 has further complicated matters and provides further good cause for any delay in returning defendant to the Court's jurisdiction.

With respect to the remainder of the Taranovich factors, although defendant has alleged that he has spent a considerable amount of time in custody in Pakistan, he is facing a charge of enterprise corruption, which is a B felony, and faces a maximum term of imprisonment of 8 1/3 to 25 years as well as millions of dollars in restitution.[FN9] With respect to prejudice, defendant has failed to establish that his defense will be significantly impaired by the delay that he has caused. Indeed, the delay in prosecution will likely make the case against defendant more difficult to prove. Thus, if the Court were to consider the merits of defendant's motion to dismiss the indictment on the ground that his constitutional right to a speedy trial has been violated it would be denied.

Similarly unavailing if the Court were to consider it is defendant's claimed violation of his statutory right to a speedy trial. During the eleven month period defendant claims to be chargeable to the People, defendant has made himself unavailable as that term is defined in the statute as his presence for trial cannot be obtained, notwithstanding the diligent efforts of the People. See CPL 30.30(4)(c)(i); 30.30(4)(e). Indeed, since 2017, when defendant's location in Pakistan became known to the People, MFCU has worked diligently with the Government of Pakistan, and U.S. federal, state, and local authorities to arrange defendant's extradition only to have those efforts repeatedly frustrated by defendant and the courts of Pakistan. Even now, in the midst of a global pandemic, MFCU is attempting to secure defendant's voluntary surrender and return to the Court's jurisdiction. Because the entire period of delay, from defendant's indictment to the present, is the result of defendant's flight and his successful efforts to thwart his extradition or his voluntary return, no time is chargeable to the People.

Lastly, defendant's motion to dismiss the indictment in furtherance of justice is utterly devoid of merit. All of the factors delineated in CPL 210.40(1) militate against such a finding. Among the factors to be considered are the seriousness of the offense, the extent of the harm, the evidence of guilt, the history and character of the defendant, and the impact of dismissal on the safety or welfare of the community. As to the first three of these factors, the People presented voluminous compelling evidence that defendant headed a criminal enterprise that systematically stole millions of dollars from a healthcare program aimed to provide insurance and care to the [*6]neediest New Yorkers. Although this was not a violent crime, the impact of this type of so-called white collar crime cannot be understated. When an individual steals much needed funds from an imperative government program it not only deprives the program of funds it can ill afford to lose, but it also results in a more insidious consequence in that it promotes cynicism in a government program that can ill afford to lose public support and trust.

Furthermore, with respect to the history and character of defendant, defendant is no real life version of Richard Kimble or Jean Valjean. Both of these fictional characters were perceived to be fugitives who were pursued by law enforcement, notwithstanding their innocence. In stark contrast, defendant is an alleged repeat offender, who is facing a metaphorical mountain of evidence that strongly suggests he headed a criminal enterprise that stole millions of dollars from Medicaid, and who is an actual fugitive from justice. Under these circumstances, to grant the extraordinary relief of dismissal in furtherance of justice would be a perversion of justice. However, the Court is not unsympathetic to defendant's alleged health concerns and the fact that he claims to have been held in custody in Pakistan for 4 ½ years. Thus, should defendant submit to the Court's jurisdiction, and should he be convicted, the Court (or, more likely, a subsequent Court) will consider at sentencing all relevant evidence, including defendant's age, any documented medical conditions, and any documented time defendant has been held in custody in Pakistan.

This is the decision, opinion, and order of the Court.

Dated: October 21, 2020

Hon. Steven Barrett

Justice of the Supreme Court

Bronx, New York

/Head>

Footnotes

Footnote 1:Five co-defendants were similarly charged and already have pled guilty. During their plea allocutions each named defendant as the head of the criminal enterprise. Several of the co-defendants have signed cooperation agreements.

Footnote 2:Craftily, in his motion papers, defendant omits any description of how, why, or when he arrived in Pakistan, but merely states that he was "in Pakistan at the time he was indicted." (See Affirmation of Ali Najmi, Esq. at ¶2.)

Footnote 3:Defendant has dual citizenship and possesses a passport from both the United States and Pakistan.

Footnote 4:According to Assistant Attorney General Shaw, on or about February 7, 2017 the Attorney General's Office received a phone call from an FBI agent reporting that defendant was in custody. The agent did not state where, or by whom, defendant had been detained. Upon further investigation, AAG Shaw ascertained that defendant had been detained since October 15, 2015, in Pakistan in a facility on the outskirts of Islamabad. (See Affirmation of Christopher Shaw at ¶22.) According to defendant, he has been in custody in Pakistan for the 4 ½ year time period between October 15, 2015 and April 25, 2020 when he was allegedly granted bail. (See Affirmation of Ali Najmi, Esq. at ¶3.) However, defendant has not adduced any corroborative evidence with respect to the exact time period he was detained in Pakistan.

Footnote 5:Significantly, defendant does not contest the facts as to the People's efforts to return him to the Court's jurisdiction prior to April 4, 2019 as he concedes that it was his actions in challenging extradition that were responsible for his not being returned prior to that date. Defendant, without any corroborative evidence, claims that on April 4, 2019, he ceased challenging his extradition and thereby became extraditable on that date and that the People failed to exercise diligent efforts to return him from April 4, 2019 to the present.

Footnote 6:In March of 2020, MFCU was informed that defendant had a change in heart and was interested in waiving extradition. (See Affirmation of Christopher Shaw at ¶27.) However, defendant has not adduced evidence that he has withdrawn his stay petition or that the Court in Islamabad has lifted the stay. In addition, on May 28, 2020, defendant filed the instant motion and MFCU first learned that on April 25, 2020, defendant apparently was granted conditional bail and released from custody in Pakistan and has been at liberty since that date. Thus, once travel restrictions are lifted, defendant could provide evidence that the stay petition has been withdrawn and then voluntarily surrender to U.S. law enforcement authorities in Pakistan so that he can be returned to this Court's jurisdiction.

Footnote 7:It is worth noting that defendant has yet even to be arraigned on the indictment and thus could not be tried in absentia.

Footnote 8:Defendant alleges, without adducing any corroborative evidence, that he exhausted his legal challenges in Pakistan on April 9, 2019 and that he could have been extradited after that date had the People exercised diligent efforts to do so.

Footnote 9:The Court notes that any time defendant has been held in custody in Pakistan is due to his flight to Pakistan. Had he not absconded, or had he voluntarily returned to the Court's jurisdiction, it is quite possible that bail would have been set by this Court and defendant would have posted such bail and therefore been at liberty during this time period.