Findings of Fact and Recommendation on Guilty Plea Before the United States Magistrate Judge — United States v. Fahad H. Shah, No. 4:20-CR-00156-ALM (Dkt. 34, E.D. Tex.)

Summary

U.S. Magistrate Judge Kimberly C. Priest Johnson of the Eastern District of Texas recommends that the District Court accept the guilty plea of Fahad H. Shah to Count Three of the Indictment in Case Number 4:20-CR-00156-ALM. Count Three alleges that from about April 2020 until around May 2020 Shah knowingly and intentionally committed wire fraud in violation of 18 U.S.C. 1343. At the May 19, 2021 hearing the judge found the plea knowing and voluntary and supported by an independent factual basis; the plea agreement was placed under seal. The report recommends deferring acceptance of the plea agreement until after review of the presentence report and orders Shah to report to the United States Probation Department. Each party has fourteen (14) days to file objections. The report was signed the 20th day of May, 2021.

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

UNITED STATES OF AMERICA, §
§
§
v. § CASE NUMBER 4:20-CR-00156-ALM
§
§
FAHAD H. SHAH, §
§

FINDINGS OF FACT AND RECOMMENDATION ON GUILTY PLEA
BEFORE THE UNITED STATES MAGISTRATE JUDGE

By order of the District Court, this matter is referred to the undersigned United States

Magistrate Judge for administration of the guilty plea under Rule 11. Magistrate judges have the

statutory authority to conduct a felony guilty plea proceeding as an “additional duty” pursuant to

28 U.S.C. § 636(b)(3). United States v. Bolivar-Munoz, 313 F.3d 253, 255 (5th Cir. 2002).

On May 19, 2021, this case came before the undersigned United States Magistrate Judge

for entry of a guilty plea by Defendant, Fahad H. Shah, to Count Three of the Indictment. Count

Three alleges sometime in or about April 2020, and continuing until in or around May 2020, in the

Eastern District of Texas, Defendant, Fahad H. Shah, did knowingly and intentionally commit the

offense of Wire Fraud, in violation of 18 U.S.C. 1343.

Defendant entered a plea of guilty to Count Three of the Indictment into the record at the

hearing. After conducting the proceeding in the form and manner prescribed by Federal Rule of

Criminal Procedure 11, the undersigned finds:

a. Defendant, after consultation with his attorney, has knowingly, freely, and

voluntarily consented to the administration of the guilty plea in this case by a United States

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Magistrate Judge in the Eastern District of Texas subject to a final approval and imposition of

sentence by the District Court;

b. Defendant and the Government have entered into a plea agreement which was

disclosed and addressed in open court, entered into the record, and placed under seal. Defendant

verified that he understood the terms of the plea agreement, and acknowledged that it was his

signature on the plea agreement. To the extent the plea agreement contains recommendations and

requests pursuant to FED. R. CRIM. P. 11 (c)(1)(B), the Court advises Defendant that he has no right

to withdraw the plea if the Court does not follow the particular recommendations or requests. To

the extent that any or all of the terms of the plea agreement are pursuant to Rule 11(c)(1)(A) or

(C), the undersigned advises Defendant that he will have the opportunity to withdraw his plea of

guilty should the Court not follow those particular terms of the plea agreement; 1

c. Defendant is fully competent and capable of entering an informed plea, Defendant

is aware of the nature of the charges and the consequences of the plea, and the plea of guilty is

made freely, knowingly, and voluntarily. Upon addressing Defendant personally in open court, the

undersigned determines that Defendant’s plea is knowing and voluntary and did not result from

1. “(3) Judicial Consideration of a Plea Agreement.
(A) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the
agreement, reject it, or defer a decision until the court has reviewed the presentence report.
(B) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant
that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request.
(4) Accepting a Plea Agreement. If the court accepts the plea agreement, it must inform the defendant that to the
extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the agreed disposition will be included
in the judgment.
(5) Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions of the type specified in
Rule 11(c)(1)(A) or (C), the court must do the following on the record and in open court (or, for good cause, in
camera):
(A) inform the parties that the court rejects the plea agreement;
(B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant
an opportunity to withdraw the plea; and
(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably
toward the defendant than the plea agreement contemplated.” FED. R. CRIM. P. 11(c)(3)-(5).

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force, threats, or promises (other than the promises set forth in the plea agreement). See FED. R.

CRIM. P. 11(b)(2); and

d. Defendant’s knowing and voluntary plea is supported by an independent factual

basis establishing each of the essential elements of the offense and Defendant realizes that his

conduct falls within the definition of the crime charged under 18 U.S.C. § 1343.

STATEMENT OF REASONS

As factual support for Defendant’s guilty plea, the Government presented a factual basis.

See Factual Basis and Stipulation. In support, the Government would prove that Defendant is one

and the same person charged in the Indictment and that the events described in the Indictment

occurred in the Eastern District of Texas. The Government would also have proven, beyond a

reasonable doubt, each and every essential element of the offense as alleged in Count Three of the

Indictment through the testimony of witnesses, including expert witnesses, and admissible

exhibits. In support of Defendant’s plea, the undersigned incorporates the proffer of evidence

described in detail in the factual basis and stipulation, filed in support of the plea agreement.

Defendant, Fahad H. Shah, agreed with and stipulated to the evidence presented in the

factual basis. Counsel for Defendant and the Government attested to Defendant’s competency and

capability to enter an informed plea of guilty. Defendant agreed with the evidence presented by

the Government and personally testified that he was entering his guilty plea knowingly, freely, and

voluntarily.

RECOMMENDED DISPOSITION

IT IS THEREFORE the recommendation of the undersigned United States Magistrate

Judge that the District Court accept the Guilty Plea of Defendant, which the undersigned

determines to be supported by an independent factual basis establishing each of the essential

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elements of the offense charged in Count Three of the Indictment. It is also recommended that the

District Court defer acceptance of the plea agreement until after review of the presentence report.

Accordingly, it is further recommended that Fahad H. Shah be finally adjudged guilty of the

charged offense under Title 18 U.S.C. § 1343.

If the plea agreement is rejected and Defendant still persists in the guilty plea, the

disposition of the case may be less favorable to Defendant than that contemplated by the plea

agreement. Defendant is ordered to report to the United States Probation Department for the

preparation of a presentence report. Defendant has the right to allocute before the District Court

before imposition of sentence.

OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1)(c), each party to this action has the right to file objections

to this report and recommendation. Objections to this report must: (1) be in writing, (2) specifically

identify those findings or recommendations to which the party objects, and (3) be served and filed

within fourteen (14) days after being served with a copy of this report, and (4) be no more than

eight (8) pages in length. See 28 U.S.C. § 636(b)(1)(c) (2009); FED. R. CIV. P. 72(b)(2); Local Rule

CV-72(c). A party who objects to this report is entitled to a de novo determination by the United

States District Judge of those proposed findings and recommendations to which a specific

objection is timely made. See 28 U.S.C. § 636(b)(1) (2009); FED R. CIV. P. 72(b)(3).

A party’s failure to file specific, written objections to the proposed findings of fact and

conclusions of law contained in this report, within fourteen (14) days of being served with a copy

of this report, bars that party from: (1) entitlement to de novo review by the United States District

Judge of the findings of fact and conclusions of law, see Rodriguez v. Bowen, 857 F.2d 275, 276–

77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of any such findings

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.

of fact and conclusions of law accepted by the United States District Judge, see Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).

So ORDERED and SIGNED this 20th day of May, 2021.

____________________________________
KIMBERLY C. PRIEST JOHNSON
UNITED STATES MAGISTRATE JUDGE

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