Convicted human smuggler wants to self-represent in appeal, questions lawyer's conduct

A man convicted of human smuggling last year has asked a United States court to continue his appeal without a lawyer, in a case where a family from India froze to death near the Manitoba-U.S. border in 2022.

Harshkumar Patel argues in a motion filed in the U.S. Court of Appeals this week from a prison in Pennsylvania that he’s been left with no choice, due to what he describes as his latest counsel’s "incompetent conduct."

Patel says the lawyer he was initially appointed filed a brief deeming the appeal without merit, and he then hired lawyer Seth Kretzer. His family and friends pooled money to pay the legal fees, he says.

Kretzer requested extensions to file his opening brief. The last extension gave him until Dec. 22, according to a court document filed last month.

Patel says after he called Kretzer several times asking to see a draft, Kretzer provided him with versions that Patel says appeared to include plagiarized elements from other cases — including one the federal public defender’s office prepared for Steve Shand, Patel’s co-accused.

Shand’s appeal brief was filed last month, and raised questions about whether the traffic stop that led to his arrest on the night the family died was justified. Shand also questioned whether he knew, or should have known, such a vulnerable family would be crossing the border that night.

The Patel family (no relation to Harshkumar Patel) died of exposure on Jan. 19, 2022, while trying to illegally walk across the border into Minnesota near Emerson, Man., in blizzard conditions.

The frozen bodies of 39-year-old Jagdish Patel, his 37-year-old wife, Vaishali, their 11-year-old daughter, Vihangi, and three-year-old son, Dharmik, were found 12 metres from the U.S. border.

Harshkumar Patel is now asking the court to allow him to file his own opening appeal brief "and disregard any future brief filed by the counsel." He also wants the court to publicly reprimand Kretzer and order him to refund Patel’s family, the motion says.

Kretzer said in an email Patel's brief isn't due for nearly two weeks, and there's a "wide chasm between a rough draft and the brief which is ultimately filed — and the many versions in between."

"While I would never divulge any communications between myself and a client, I have argued two cases in the Supreme Court of the United States, so I can assure you I have never plagiarized any brief," Kretzer said.

"I [would] have filed an excellent brief for him, but he has chosen to [represent himself], and I regard the client choices in this regard as sacrosanct."

Kretzer said he still plans to file a brief by the deadline, unless the court grants Patel's request before then — and added Patel's request for a reprimand isn't something done through an appeals court.

Patel was convicted alongside Shand in November 2024, after a jury found them guilty on all four counts they faced related to bringing unauthorized people into the U.S., transporting them and profiting from it.

Patel, an Indian national arrested in Chicago last year, was sentenced to over 10 years for co-ordinating the smuggling and hiring his co-accused.

Shand, a Florida resident who had other Indian nationals in the van he was driving at the time of his arrest, got six and a half years.

Issues with jury instructions, sentencing

Patel’s appeal brief raises concerns with the jury instructions in his and Shand’s case, and says prosecutors didn’t present enough evidence at trial to prove Patel brought people to the U.S. illegally.

The brief also claims his sentence was "based on procedural errors," arguing there was no evidence at trial he "recklessly created a substantial risk" of serious bodily injury, as required by the guidelines under which he was sentenced.

Patel argues the facts at his trial proved the "family died due to circumstances created by others," not him.

During that trial, convicted human smuggler Rajinder Pal Singh testified the Patel family had called accused smuggler Fenil Patel (also no relation to Harshkumar or the Patel family) while they were trying to cross the border to say it was too cold to continue.

Singh testified Fenil Patel told the family to turn around and that he would have someone pick them up where they started — but that was a lie, Singh testified, because there was no one there.

"With the plethora of evidence that the death of Patel family was caused by Fenil Patel, it is unreasonable for the district court to apply the [sentencing] enhancement" to Harshkumar Patel, his motion says.

Fenil Patel, who was living in Brampton, Ont., was arrested in September following an extradition request from the U.S. The charges he's expected to face there include conspiracy to bring aliens to the U.S. resulting in death, court documents obtained by CBC News say.

Court heard during Harshkumar Patel’s sentencing he is likely to be deported to India after completing his sentence.