United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Patti B. Saris Chief United States District Judge.
Cheng has moved under 28 U.S.C. § 2255 to vacate the
nine-year term of imprisonment imposed after he pleaded
guilty to six counts of a ten-count indictment relating to
his illicit scheme to export pressure transducers, highly
sensitive goods with nuclear applications, from the United
States to Iran through China. After review of the briefing
and the record, the Court ALLOWS IN
PART and DENIES IN
PART Cheng's motion to amend (Docket No.
185) and DENIES Cheng's motion
to vacate his sentence (Docket No. 146).
AND PROCEDURAL BACKGROUND
is a citizen of the People's Republic of China. On
November 21, 2013, he and three co-conspirators (an Iranian
national named Seyed Abolfazl Shahab Jamili; Nicaro
Engineering Co., Jamili's Iranian company; and an Iranian
company called Eyvaz Technic Manufacturing Company) were
charged in a ten-count indictment with the illegal export of
pressure transducers manufactured by MKS Instruments, Inc., a
Massachusetts corporation, from the United States to Iran
between 2009 and 2012. MKS pressure transducers can be used
in gas centrifuges to produce weapons-grade uranium. The
indictment charged Cheng with conspiracy to commit export
violations in violation of 50 U.S.C. § 1705 (Count I),
conspiracy to commit smuggling violations under 18 U.S.C.
§ 554(a) in violation of 18 U.S.C. § 371 (Count
II), unlawful exports of U.S. goods to Iran on four occasions
between April and August 2009 in violation of 50 U.S.C.
§ 1705 (Counts III-VI), and smuggling of U.S. goods to
Iran on the same four occasions in violation of 18 U.S.C.
§ 554 (Counts VII-X).
served as the middleman in the scheme: He coordinated
shipments from the United States, received them in China, and
then sent them to Iran. He knew Kalaye Electronic Company,
which the United States had designated as a nuclear weapons
proliferator, was the end user of the pressure transducers.
He also knew exporting the transducers from the United States
to Iran was illegal, so he removed their serial numbers to
hide their origin. He and his co-conspirators lied about the
end users to secure export licenses to ship the goods to
Cheng's arrest in the United Kingdom and his extradition
to the United States, the Court held an initial status
conference on June 9, 2015. The Court asked the Government to
provide a memorandum addressing whether it had
extraterritorial jurisdiction to convict Cheng for conduct in
China. The Government informed the Court that Cheng could be
prosecuted in a U.S. court pursuant to the First
Circuit's decision in United States v. McKeeve,
131 F.3d 1 (1st Cir. 1997), because his conspiracy involved
pressure transducers exported from Massachusetts. Cheng's
attorney, Stephen Weymouth, did not respond to the
December 18, 2015, Cheng pleaded guilty to Counts I through
VI of the indictment. At the Rule 11 hearing, Cheng said he
was satisfied with Weymouth's representation and Weymouth
had not pressured him into pleading guilty. Besides
explaining that he stopped selling pressure transducers in
2011, not 2012 as stated in the indictment, he agreed with
the factual basis for the charges as just described. He
specifically admitted he knew exporting the pressure
transducers was illegal under U.S. law. Because of the nature
of the crime, the Court recognized that evidence about
Iran's nuclear program would be a significant issue at
sentencing in determining whether a terrorism enhancement or
upward departure was appropriate.
also stated during the colloquy that he suffered from
“mania.” Dkt. No. 76 at 7:11-15. Weymouth
explained that he had reviewed Cheng's Chinese
psychiatric records, which called him “manic”
with “racing thoughts” and an “inability to
sleep.” Id. at 8:2-13. The Court suggested
Weymouth submit the records at the sentencing hearing to
support an argument for diminished capacity or a variance
based on his mental health. The Court authorized money to
interpret the records for this purpose.
Pre-Sentence Report (“PSR”) discussed Cheng's
mental health at length. He was hospitalized twice in China,
once in 1999 and again in 2012. During his 1999
hospitalization, he was diagnosed with mania and prescribed
medication. He took the medication until 2003 but
stopped due to negative side effects. In addition to his
mania, he began having delusions of grandeur in 1999 and
experienced suicidal thoughts in the early 2000s and in 2012.
Cheng reported that his condition improved significantly
after his 2012 hospitalization. Nevertheless, after his
arrest, he experienced racing thoughts, vivid dreams and lack
of sleep due to “noise” in his brain. While in
custody at Wyatt Detention Facility, he had monthly mental
health counseling sessions and took melatonin to aid in
sleeping. Documentation from Wyatt suggested a diagnosis of
“a mood disorder and possible bipolar disorder.”
PSR ¶ 91.
January 27, 2016, the Court held an all-day sentencing
hearing. The Government called David Albright, the president
of a nongovernmental organization that conducts research on
nuclear nonproliferation, to testify in support of a
terrorism enhancement and upward departure under Application
Note 2 to U.S.S.G. § 2M5.1 (evasion of export controls).
Albright worked in the field since 1981, wrote hundreds of
peer-reviewed articles and five books, and personally studied
Iran's nuclear program for over twenty years. His
organization conducted significant research on Iran's
nuclear program and was the first to identify the Natanz Fuel
Enrichment Plant as a gas centrifuge facility.
testified that Iran began to develop a program to create
weapons-grade uranium in 1985. It used gas centrifuges
located at Natanz and the Fordow Fuel Enrichment Plant to
conduct enrichment. Kalaye Electric Company operated the
Fordow plant and acquired equipment and materials overseas to
develop and design gas centrifuges. Fordow was used for
enrichment at least until it was discovered in September
2009, after Cheng made four shipments of pressure transducers
studied illegal procurement networks, Albright called
Cheng's role in the conspiracy “critical” and
the scheme “very sophisticated.” Dkt. No. 104 at
39:23-40:5, 44:22-45:6. Finally, he opined that Cheng's
conduct put the United States at a strategic disadvantage
during negotiations with Iran over its nuclear program: Cheng
was supplying Iran with tools to manufacture more centrifuges
just as the United States was trying to get Iran to agree to
reduce the number of centrifuges.
cross-examined Albright about his qualifications, the basis
of his opinions, and the timing of Iran nuclear program.
Albright admitted he was a mathematician and physicist by
education and his opinion relied only on publicly available
documents and statements from others. Weymouth emphasized
Albright's testimony that he could only say that the
weapons-grade enrichment at Fordow continued until 2009, and
he pointed out that, according to assessments of Iran's
nuclear program from 2009 to 2013, Iran had never made enough
weapon-grade uranium for even one nuclear weapon. Albright
also admitted that pressure transducers have nonnuclear and
nonmilitary purposes. Weymouth did not put on an expert
witness to counter Albright's testimony, but he said he
had spent dozens of hours over four weeks preparing for the
Court next heard argument on calculation of the guidelines
range. The Government sought, and Weymouth opposed, a
four-level aggravating role adjustment as an organizer under
U.S.S.G. § 3B1.1(a), a terrorism enhancement under
U.S.S.G. § 3A1.4, and an upward departure under
Application Note 2 to U.S.S.G. § 2M5.1. Although
Weymouth sought a minor-role adjustment in his sentencing
memorandum, he conceded at the hearing that it did not apply.
The Court rejected the aggravating role adjustment and
terrorism enhancement, which the Government never properly
sought, but decided to upwardly depart by six levels under
Application Note 2 to U.S.S.G. § 2M5.1 because
Cheng's scheme posed a serious threat to national
security, involved a substantial volume of commerce and
number of occurrences, and was highly sophisticated. With the
upward departure, the Court found a total offense level of
29. Cheng had a criminal history category of I, so his
guidelines range was 87 to 108 months.
Court then heard argument on the appropriate sentence.
Requesting a term of imprisonment of fifteen years, the
Government emphasized the national security threat
Cheng's conduct posed to the United States, the
sophistication of the scheme, the quantity and number of
shipments of pressure transducers sent to Iran, and
Cheng's knowledge of its illegality. Weymouth argued for
a twenty-four-month sentence because other defendants in
similar cases received short sentences and Cheng did not
knowingly support Iran's nuclear weapons program, had no
exposure to the United States or its laws, executed his
scheme solely for personal gain, and did not need to be
Court asked about Cheng's Chinese mental health records.
Weymouth did not submit translations of the records, but
Cheng and an interpreter had translated them for him.
Weymouth said that the records showed Cheng suffers from
“mania” and argued that, while Cheng was
competent to stand trial and criminally responsible, his
mania and “racing thoughts” likely influenced his
decision to participate in the scheme. Cheng then had a
lengthy allocution. Among other things, he mentioned his two
hospitalizations in China for “mania” and his
diagnosis of Hepatitis B in 1999.
Court sentenced Cheng to a term of imprisonment of nine
years. Citing the factors under 18 U.S.C. § 3553(a), the
Court emphasized the need for general deterrence, and
Cheng's pecuniary motivation for the crime. The Court
also recognized that his mental health problems might explain
some of his statements (like “f--- the United
States”) but added it did not have much of a record on
the issue of mental health. The Court also noted the sentence
was consistent with United States v. Khazaee, a
similar case from Connecticut raised by the Government in its
sentencing memorandum. The Court issued a memorandum
memorializing the reasons for its guidelines calculations and
its sentence on February 1.
First Circuit affirmed Cheng's nine-year sentence on
March 1, 2017. United States v. Cheng, 849 F.3d 516,
517 (1st Cir. 2017). The First Circuit determined that the
Court did not err in its upward departure under Application
Note 2 to U.S.S.G. § 2M5.1 or its balancing of the
sentencing factors and that Cheng's sentence was not
disproportionate to sentences in similar case. Id.
April 10, 2017, Cheng filed a pro se motion to vacate his
sentence under 28 U.S.C. § 2255. After securing counsel,
Cheng filed an amended motion on April 5, 2018. In this
motion, Cheng argues that Weymouth provided ineffective
assistance of counsel in the following ways: 1) failure to
translate and use his Chinese mental health records to
support a mitigation argument or a departure under U.S.S.G.
§ 5H1.3 (mental and emotional conditions); 2) failure to
call an expert on Iran to counter the testimony of David
Albright; 3) failure to challenge the exercise of
extraterritorial jurisdiction; 4) failure to challenge the
Government's evidence that Cheng acted willfully; 5)
failure to object to the use of Application Note 2 to
U.S.S.G. § 2M5.1; 6) conceding that Cheng did not play a
minor role in the conspiracy; and 7) a lack of trust in the
27, 2018, Cheng moved to amend his amended petition. In his
motion, he withdraws his claim regarding a lack of trust with
Weymouth. He also seeks to add the following ineffective
assistance of counsel claims: 1) failure to move to dismiss
based on insufficiency of the indictment; 2) failure to
distinguish United States v. Khazaee at sentencing;
and 3) failure to use his medical records to argue for
diminished capacity under U.S.S.G. § 5K2.13. Finally, he
contends that his prosecution for extraterritorial conduct
violated due process.
Motion to Amend
defendant must move to vacate his conviction or sentence
within one year of “the date on which the judgment of
conviction becomes final.” 28 U.S.C. § 2255(f)(1).
Where the defendant challenges his conviction or sentence
before the court of appeals but does not to seek review in
the Supreme Court, the “judgment of conviction becomes
final when the time expires for filing a petition for
certiorari.” Ramos-Martínez v. United
States, 638 F.3d 315, 320-21 (1st Cir. 2011) (quoting
Clay v. United States, 537 U.S. 522, 525 (2003)).
Parties have ninety days after entry of the judgment in the
court of appeals to file a petition for certiorari.
See Sup. Ct. R. 13.1;
Ramos-Martínez, 638 F.3d at 321.
Rule of Civil Procedure 15 governs amendments to § 2255
motions. United States v. Ciampi, 419 F.3d 20, 23
(1st Cir. 2005). Rule 15(c)(1)(B) permits an amendment to
“relate back” to the date of the original
pleading for purposes of evaluating a statute of limitations
if “the amendment asserts a claim . . . that arose out
of the conduct, transaction, or occurrence set out -- or
attempted to be set out -- in the original pleading.”
For § 2255 motions, this provision “is to be
strictly construed, in light of Congress' decision to
expedite collateral attacks by placing stringent time
restrictions on them.” Ciampi, 419 F.3d at 23
(cleaned up). Thus, relation back is permitted for amendments
to § 2255 motions only where the amended claims
“arise from the ‘same core facts'” as
the timely claims and do “not depend upon events which
are separate both in time and type from the events upon which
the original claims depended.” Id. at 24
(quoting Mayle v. Felix, 545 U.S. 644, 657 (2005)).
For example, a defendant ...