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A federal judge has vacated the guilty plea of a chemist who sold toxic substances to bodybuilders over the Internet, ruling that he had been misinformed about his impending deportation. Eastern District Judge Arthur D. Spatt said that the defendant, Sean D. Zhang, was told by prosecutors, a magistrate judge and his attorney that he faced “possible” deportation by pleading guilty to mail fraud, an aggravated felony. In fact, the judge wrote in Zhang v. United States, 04-cv-3261, a conviction of that kind requires deportation. Spatt said the misrepresentations were not made intentionally, but nonetheless required him to vacate Zhang’s plea. Although a failure to inform a defendant about deportation is not automatically fatal, the judge said, a constitutional violation occurs if a defendant is actively told that deportation is not mandatory. “Merriam-Webster’s Third New International Dictionary Unabridged defines the word ‘could’ as ‘be made possible or probable by circumstances’ and ‘possible’ as ‘that may or may not occur: that may chan[g]e: dependent on contingency: neither probable nor impossible,’” Spatt wrote. “The use of these words to describe Zhang’s immigration status was misleading.” Zhang came to the United States in 1985 when he was 7 years old. His father, a professor at the National University in Singapore, was an opponent of China’s Communist government and had received political asylum. Zhang is married to an American, and English is the only language he speaks proficiently. He is not an American citizen. He holds a bachelor’s degree in Food Science from Cornell University. In 2001, Zhang used those skills to mix and prepare the chemical Dinitrophenol (known as DNP), a metabolic stimulant that is banned by the Food and Drug Administration. Zhang sold the substance from the Web site Elitefitness.com, using the screen name “DNP Guru.” One man who purchased the chemical, Eric Perrin, died after ingesting it. Another, James Shull, was in a coma for more than 10 days. Zhang was arrested in September 2001. He was indicted on 10 counts of introducing a misbranded drug and 10 counts of mail fraud. He pleaded guilty to a single count of mail fraud. In doing so, he waived his right to appeal if his sentence was 60 months or less. He was also told that he might be subject to post-sentence deportation. During Zhang’s plea allocution, Magistrate E. Thomas Boyle asked him if he understood that his immigration status “could result in your deportation.” Zhang said he understood, and the magistrate recommended that Spatt accept the plea. Zhang was sentenced to 60 months in prison and fined $113,000. In June of last year, Zhang moved to vacate his conviction pursuant to 28 U.S.C. �2255, arguing that his plea was invalid owing to a Rule 11 violation concerning whether his plea was voluntary and ineffective assistance of counsel. He said he would face detention and torture if he were removed to China. Prosecutors argued that there was still a possibility that Zhang would not be deported, saying he could attempt to have his removal deferred or his immigration status modified. But Spatt said those arguments had “no merit.” Even though Zhang had a slim chance of winning removal to a country other than China, he would nonetheless be deported, the judge said. VOLUNTARINESS OF PLEA As for the voluntariness of Zhang’s plea, the judge largely relied on a 2002 ruling from the 2nd U.S. Circuit Court of Appeals, United States v. Couto, 311 F.3d 179. In Couto, the 2nd Circuit held that a failure to inform a defendant of deportation is not objectively unreasonable, but affirmative misadvice constitutes ineffective assistance of counsel. “Similarly, although a judge may not be required to inform a defendant about deportation, if he or she makes a statement that misleads the defendant into thinking that deportation is not mandatory, then a constitutional violation occurs which provides sufficient grounds to vacate a plea,” Spatt wrote. He cited a similar outcome in U.S. v. Singh, 305 F.Supp.2d 109 (2004). The judge also said that Zhang’s attorney, Stuart Grossman, misled him by indicating that his background — his marriage and lack of criminal record — would be considered by an immigration court. The judge noted that Grossman prefaced those remarks by advising Zhang to seek an immigration attorney after he was sentenced. Grossman said in an interview that the ruling could have implications for other defendants. “I think this is going to change the prosecutors in the Eastern District when they do plea agreements,” Grossman said. “They will say mandatory deportation.” Now that his guilty plea has been vacated, Zhang could go to trial. Or he could try to negotiate a plea that does not subject him to mandatory deportation. He has expressed a willingness to serve more prison time if he has the opportunity to stay in this country. Robert Nardoza, a spokesman for Eastern District U.S. Attorney Roslynn R. Mauskopf, said, “We are reviewing Judge Spatt’s decision and it is too early to tell what impact this will have on future cases.” Gary Schoer represented Zhang on his motion to vacate. Assistant U.S. Attorney Wayne L. Baker appeared for the government.

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