FRANK D. WHITNEY, Chief District Judge.
On August 12, 2009, Petitioner entered into a written plea agreement with Respondent, agreeing to plead guilty to two counts in a twenty-three count bill of indictment. Specifically, Petitioner agreed to plead guilty to a charge of conspiracy to defraud the United States, in violation of 18 U.S.C. §§ 371 & 2326 (Count 1), and one count of wire fraud and aiding and abetting the same, in violation of 18 U.S.C. §§ 1343, 2 & 2326 (Count 8). In exchange for Petitioner's guilty plea, Respondent agreed to dismiss the remaining twenty-one wire fraud charges that were filed against him.
On the same day the plea agreement was filed, Petitioner's Plea and Rule 11 hearing commenced before U.S. Magistrate Judge David S. Cayer and Petitioner was placed under oath. Respondent summarized the elements of Counts 1 and 8, and the potential penalties and fines he faced up conviction, and Petitioner averred that he understood the attendant consequences of pleading guilty. The court explained that Petitioner could plead not guilty, and contest the charges at trial where Respondent would be required to prove each of the elements of Count 1 and 8 beyond a reasonable doubt. Petitioner admitted he understood those rights, but that he had decided to plead guilty because he was in fact guilty of the charged conduct. Petitioner averred that he understood that by entering into the plea agreement and pleading guilty that he would waive, among other things, his right to contest his sentence on appeal or collateral review, except on grounds of ineffective assistance of counsel or prosecutorial misconduct. Petitioner averred that he understood he was waiving these rights, and he agreed that he understood and agreed with each of the other terms of the plea agreement.
Petitioner next averred that no one had threatened, intimidated or induced him to enter into the plea agreement, and that no one had promised him any leniency in exchange for his plea, other than those promises contained in the plea agreement. Finally, Petitioner stated that he had sufficient time to discuss possible defenses to the conduct charged in Counts 1 and 8 with his counsel, and that he was satisfied with the services of his attorney. After finding that Petitioner's counsel was satisfied that he understood the terms of the plea agreement and the Rule 11 proceedings, the court presented the plea transcript to Petitioner and he signed the transcript, thereby averring that he understood and agreed with all parts of the plea hearing and the answers he had given. The court then concluded the plea was knowing and voluntary and it was therefore accepted and recorded.
Following the entry of Petitioner's guilty plea, the U.S. Probation Office prepared a presentence investigation report (PSR). In calculating the Guidelines range, the probation officer included a thorough description of the offense conduct involved in the conspiracy which is as follows:
The probation officer applied the same Guidelines upon which the parties agreed in the plea agreement, to wit:
(
In considering Petitioner's statutory sentencing range, the probation officer noted a term of not more than 15 years on Count 1, and not more than 30 years on Count 8. Based on Petitioner's Level I criminal history category and a total offense level of 33, the probation officer calculated a Guidelines range of 135-168-months' imprisonment, although the plea agreement provided that Petitioner remained free to argue for a variance or departure from this range.
On September 22, 2009, Petitioner appeared for his sentencing hearing and at the outset the Court confirmed that he understood the Rule 11 proceedings wherein he entered his guilty plea. In particular, he acknowledged he was under oath during the hearing and had truthfully answered each of the magistrate judge's questions, and that he would answer each those questions in the same way if the Court chose to pose them again during sentencing. Petitioner affirmed that he had reviewed the acceptance of plea form and signed it because he agreed that each of the answers he had provided were true. Petitioner also reaffirmed that he was in fact guilty of the felony conduct charged in Counts 1 and 8. After concluding the Rule 11 hearing was properly conducted, Petitioner's guilty plea was affirmed and based on the parties' stipulation to the offense conduct detailed above in the PSR, the Court found there was a factual basis for the plea and it was accepted.
The Court next turned to the final presentence report. Petitioner acknowledged that he had read the report and understood its contents, and that he had reviewed its contents with his counsel. Although Petitioner filed a number of objections to the PSR, the parties agreed that none of the objections, even if sustained, would have any impact on the calculation of Petitioner's Guidelines range. (3:07-cr-00166, Doc. No: 31: Sentencing Tr. 7).
In addressing Petitioner's potential sentence, his counsel, who filed a thorough and detailed sentencing memorandum, discussed important aspects of the memorandum and argued for a variance based on factors related to Petitioner's participation in the conspiracy, particularly his decision to withdraw from the conspiracy before many of his co-defendants. Counsel also urged that a variance was appropriate because he had shown that he was willing to cooperate and testify to further the prosecution's efforts.
Petitioner allocated to the Court and expressed remorse for his participation in the fraud conspiracy and noted that he walked away early because he felt ashamed that he actively worked to defraud people through the scheme. Petitioner also noted that he would still be willing to cooperate with the Government in an effort to aid its prosecution and possibly earn a lower sentence.
The Government adopted a far different view which, in general, relied upon facts that supported a finding that Petitioner played a substantial role in the conspiracy and had, in fact, been an active participant for years before he decided to withdraw. The Government also noted that, despite Petitioner's position to the contrary, his delay in being arrested, and therefore in not being able to cooperate, was based on his own actions in leaving the conspiracy and the area. In other words, the evidence gathered in debriefings after his arrest show that Petitioner knew the fraud scheme was being dismantled; therefore he could have turned himself in if he was so eager to assist the prosecution, and thereby potentially aid his own cause. He did not, however, and it was only following his arrest that he expressed a willingness to cooperate.
After hearing from the parties, the Court thoroughly considered the evidence in this matter and applied the same to the § 3553(a) factors, and found that a within-Guidelines sentence was appropriate and imposed a sentence of 126-months' imprisonment, a 3-year term of supervised release, and an order of restitution in the amount of $4,291,473.00, to be paid jointly and severally with his co-defendants. (
On appeal from this judgment, Petitioner challenged his sentence, including the restitution order. After considering the parties' arguments, the Court found that Petitioner's challenge to his sentence was foreclosed by his appeal waiver in his plea agreement; however the Court noted the restitution order was in excess of the statutory maximum. The judgment as it pertained to the order of restitution was vacated and remanded to this Court for further proceedings.
In this collateral proceeding, Petitioner raises a number of interrelated claims of ineffective assistance of counsel, prosecutorial misconduct and challenges to rulings of this Court that will be examined in turn below.
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings" in order to determine whether a petitioner is entitled to any relief. The Court has considered the record in this matter and applicable authority and concludes that this matter can be resolved without an evidentiary hearing.
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused has the right to the effective assistance of counsel to assist in his defense. U.S. Const. amend. VI. In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show that: (1) "counsel's representation fell below an objective standard of reasonableness," and (2) the deficient performance was prejudicial to the defense.
To demonstrate prejudice in the context of a guilty plea, a petitioner must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."
In considering the prejudice prong of the analysis, the Court must not grant relief solely because petitioner can show that, but for counsel's performance, the outcome of the proceeding would have been different.
Petitioner first maintaines his counsel enticed him into agreeing to participate in the proffer sessions and that counsel failed to secure the Government's promise of a particular plea agreement. (3:14-cv-00122, Doc. No. 1-1: Petitioner's Mem. 16).
After Petitioner was indicted on July 25, 2007, he was brought before U.S. Magistrate Judge David Keesler for his arraignment. Petitioner requested appointed counsel due to his indigent status and Judge Keesler granted the request and appointed James McLoughlin, who served as his counsel during the course of the criminal proceedings. On August 12, 2009, Petitioner pleaded guilty pursuant to a written plea agreement. It appears that sometime between the arraignment and the filing of the plea agreement, Petitioner entered into a "PROFFER AGREEMENT" with the Fraud Section, Criminal Division of the U.S. Department of Justice and with agents of federal law enforcement. (
Petitioner notes there were many co-conspirators that had entered into plea agreements and were sentenced to terms of imprisonment that were far lower than his because they had provided assistance to the Government, and that he could not provide such assistance because he was still detained in Costa Rica. Petitioner maintains counsel was aware of this, but he nonetheless "insisted on the proffer." (Petitioner's Mem. 10). Petitioner also contends counsel informed him prior to the proffer meeting that he had spoken with the Government and he would likely be offered a plea agreement that include a term of 41 months, even if he was unable to provide valuable assistance to the Government, but if he did provide useful information, his sentence would be lower because he would receive the benefit of a § 5K.1.1 reduction. (
Petitioner's arguments here are merely unadorned efforts to attack the knowing and voluntary nature of his decision to plead guilty and they will be dismissed because, as this Court has repeatedly found, Petitioner's guilty plea was knowing and voluntary as a matter of law.
During his Rule 11 hearing Petitioner was placed under oath and asked the following questions:
THE COURT: Has anyone threatened, intimidated or forced you into pleading guilty today?
THE DEFENDANT: No.
THE COURT: Other than the terms of your plea agreement, has anyone made you any promises of leniency or a light sentence to induce you to plead guilty?
THE DEFENDANT: No.
(3:07-cr-00166, Doc. No. 34: Tr. of Plea Hr'g 11; Doc. No. 20: Acceptance and Entry of Plea ¶¶ 27-28).
It is well-settled that a petitioner is bound by his sworn statements that he makes during a properly conducted Rule 11 hearing and as this Court found during sentencing, and reaffirms herein, Petitioner's Rule 11 hearing was properly conducted therefore his present challenges to his guilty plea must fail.
Last, as to Petitioner's contention that his counsel was ineffective in failing to secure the Government's phantom promise of a specific plea agreement, the Court finds it is without merit, for as the Government notes, no such offer ever existed. (3:14-cv-00122, Doc. No. 5: Government's Response). To the extent Petitioner's counsel and the Government may have brainstormed potential sentences, it is black letter law that the Government is under no obligation to offer a plea agreement.
Petitioner next contends that his counsel was ineffective because he failed to discuss the plea agreement with him. This argument is plainly belied by the record as it is clear from the Rule 11 hearing that Petitioner had reviewed the terms of the plea agreement with him. However, even assuming arguendo that his counsel did not, the Government summarized the terms of the agreement during the hearing, and Petitioner averred that he understood and agreed with each of the terms of the plea agreement. (Tr. of Rule 11 Hr'g,
Petitioner contends his counsel failed to object to his Guidelines calculations. (Motion to Vacate 4; Petitioner's Mem. 12). In particular, Petitioner contends he urged his counsel to object to a two-level increase in his Guideline range because his offense of conviction lacked sufficient evidence that he and others misrepresented themselves by informing the victims that they were acting on behalf of a government agency.
This argument without merit as Count 1 of the bill of indictment expressly charges Petitioner and others with misrepresenting that they were "a governmental agency charged with ensuring that sweepstakes winners received their money." (3:07-cr-00166, Doc. No. 7: Bill of Indictment ¶ 11; PSR ¶¶ 9-10) (noting telemarketers routinely represented themselves as federal agents or other agents of other bogus departments that were under the U.S. Dept. of Commerce). In addition, as the Court has repeatedly observed, Petitioner agreed under oath that he was in fact guilty of the conduct charged in Court 1. Accordingly, his counsel was not ineffective in declining to present a meritless objection.
Petitioner also contends that his counsel was ineffective when he did not challenge the vulnerable victim enhancement under USSG § 3A1.1(b)(1), which is applied when the evidence shows the victims of the conspiracy and scheme to defraud were unusually vulnerable, whether due to age, physical or mental condition, or they were otherwise susceptible to be taken in by criminal conduct.
Here, the evidence in the PSR, to which Petitioner did not object, demonstrated that a predominate number of the victims of the conspiracy to defraud were elderly U.S. citizens, and many of them were reluctant to admit they were defrauded because they were embarrassed about being fooled and some were even hesitant to admit they were involved in any fraudulent scheme at all. This argument is overruled.
Petitioner raises yet another challenge to his guilty plea, this time through a claim that counsel coerced him into signing the plea agreement. For the reasons already previously stated, this claim will be denied.
Petitioner contends he is entitled to collateral relief because his counsel failed to honor his promise to attend Petitioner's interview with the probation officer who was then preparing the presentence report. Petitioner maintains the probation officer only spent around ten minutes with him and the officer failed to ask enough pertinent questions about his involvement in the conspiracy. Petitioner also complains that the officer produced a draft PSR with factually inaccurate information regarding his involvement in the conspiracy. (Petitioner's Mem. 14-15). First, there is no constitutional right to have counsel in attendance during a presentence interview. Second, Petitioner had an opportunity to file objections to alleged factual errors. In sum, this argument is plainly conclusory and fails to demonstrate what prejudice or deficient performance.
Second, Petitioner argues the PSR should not have included statements he made during his proffer sessions. This argument will be overruled for the simple reason that it was Petitioner volunteering the statements. The Proffer Agreement merely restricts the information the Government may offer, not the statements Petitioner chooses to volunteer.
Finally, Petitioner complains he only received a copy of his PSR by mail one day before sentencing and that counsel failed to include the objections he wished to present. This argument will be denied because Petitioner confirmed during sentencing that he had reviewed the PSR and understood its content, and he that had he reviewed the PSR with his attorney. Further, Petitioner's proposed objections, as previously observed, were meritless. Finally, Petitioner's claim that he was unable to see the witness statements appears to be untrue at best, in light of the foregoing, but in any event he could have requested the opportunity to do so during sentencing.
Petitioner argues here that his counsel failed to present and discuss sentencing issues with him. (Petitioner's Mem. 15). This argument is nothing short of a blanket objection and is not supported by the record, first because Petitioner acknowledged before this Court that he had reviewed and understood the contents of the PSR and he reviewed the PSR with his attorney. And at no time during sentencing did Petitioner protest the proposed enhancements (which would have been futile in any event).
Second, Petitioner's contention that he did not receive a copy of the Sentencing Memorandum does not demonstrate prejudice because Petitioner could have requested time to review the document during his sentencing hearing; yet he failed to do so even while Petitioner exercised his right to address the Court during his allocution
Petitioner offers no credible argument that but for counsel's alleged errors in presenting certain objections or information to the Court that he would have pleaded not guilty and proceeded to trial. This claim will be denied as conclusory and without merit.
Petitioner principally complains that the Government impermissibly introduced statements he made in the proffer meeting during sentencing, and these statements convinced this Court to impose a harsher sentence. In fact, Petitioner contends the use of these prohibited statements "was probably the major factor that caused Zakrzewski to receive the longest sentence among all co-defendants who plead [sic] guilty in this case." (Petitioner's Mem. 17). In sum, Petitioner argues counsel should have objected to the introduction of these statements during sentencing.
The statements the Government offered that are at issue are (1) that he knew about the 2006 raids and arrests; (2) that he located an monitored a website (the website maintained by this District) containing information about the arrests; (3) "that he withdraw [sic] from the conspiracy with about $40,000 . . . (this information, the Government also passed on to the PSR, thus breaching the agreement)"; and (4) that he lived in a beach town where he operated his own scooter rental business. (
Petitioner's contentions are with merit. As the Government notes in its response in opposition, proffer agreements are contracts and each proffer agreement must be enforced according its contractual terms. (
U.S.S.G. § 1B.1(8)(a)."
Petitioner's Proffer Agreement provides, in pertinent part, that the Government was prohibited from offering statements made by Petitioner during the proffer meeting against him, unless the Government uses the statements "to rebut any evidence offered by or on my behalf in connection with the trial and/or sentencing . . ." (Proffer Agreement ¶ 4).
In support of a downward variance from his Guidelines range, Petitioner argued he was so entitled because he withdrew from the conspiracy while it was in full swing, and because he later lived in a beach town where he operated a scooter business that conducted tours of Costa Rica and was funded with his own money. (Sealed Sentencing Memorandum 5).
The Government did not violate the terms of the Proffer Agreement because the statements Petitioner made during his proffer session that pertained to reasons for a variance were properly fodder for rebuttal. In other words, the fact that Petitioner admitted he opened and operated the scooter business with $40,000 that he stole from the fraud conspiracy demonstrated he was still benefitting from the conspiracy (even after he left it) and therefore he was hardly blameless. Accordingly, the Government was not precluded from noting that the business was started and operated with money stolen from the victims in an effort to rebut his plea for leniency.
Petitioner also argued that a variance was appropriate because he would have cooperated with the Government during its investigation into the fraud conspiracy, both prior to and after his arrest and conviction. And he argues that the Government should not have highlighted the fact that he lived in a beach town or that he travelled in and out of Costa Rica after withdrawing from the conspiracy. Petitioner further contends the Government should not have disclosed that he admitted he knew about the 2006 raids and arrests; however evidence of this knowledge is clearly relevant to rebut his contention that he would have cooperated with the Government because it shows that he had the means, but not the effort to contact the Government after learning of the raids.
To establish prosecutorial misconduct, Petitioner must demonstrate (1) that the conduct of the United States was in fact improper and (2) that the improper conduct prejudicially affected Petitioner's substantial rights so as to deprive him of a fair trial.
Petitioner renews his contention that he was "enticed" into participating in the proffer sessions by the Government's promise of a plea offer that was more favorable than the plea agreement he ultimately received. (Petitioner's Mem. 18). This argument renews his attack on the knowing and voluntary nature of his guilty plea. The question of whether anybody (counsel, Government or otherwise) promised, induced or "enticed" him into entering his plea agreement has been resolved against Petitioner. So has the question of whether anybody (counsel, Government or otherwise) made you any promises of leniency or a lighter sentence to induce you to plead guilty: No.
It is established that the guilty plea was knowing and voluntary, therefore any attempt to challenge this fact, yet again, through a claim of prosecutorial misconduct must fail.
For the reasons stated in Ground One (D),
For the reasons stated in Ground One (G),
Petitioner blankly contends the Government erred during sentencing by challenging his motion for a variance when it argued that (1) he was hiding in the beach town (where he retreated with the $40,000 that was stolen from victims during the conspiracy); (2) that he knew he was wanted by authorities; (3) and that he was trying to avoid capture by flying to Canada. (Petitioner's Mem. 22). This argument is without merit because his counsel disclosed the "protected" statements that he made during proffer sessions, and he did so in support of a variance, there being so little else to go on. And as noted herein, the statements are fairly offered as rebuttal statements under the terms of the proffer agreement because the statements challenge the validity of his claim that he would have assisted the Government in its prosecution.
As the Court explained before, there is no evidence whatever the Government made any promise to file a motion for departure or variance, and pursuant to USSG § 5K1.1, the Government has the sole discretion in deciding when and if to file a § 5K motion.
Petitioner presents a host of contentions that this Court erred in calculating and fashioning his sentence. First, the sentencing challenges he presents are not properly subject to collateral attack as they should have been presented, if at all, in a direct appeal. Therefore, these claims are procedurally defaulted.
A petitioner may, however, avoid procedural default and proceed with certain claims for the first time in a collateral proceeding if (1) he can demonstrate cause for failing to present the claims on direct review and (2) actual prejudice.
In addition, the Fourth Circuit concluded that his challenge to the procedural and substantive reasonableness of his sentence was barred by the appeal waiver in his plea agreement.
For the reasons stated herein, Petitioner's Motion to Vacate will be denied and dismissed.
The Clerk is respectfully directed to close this civil case.
DECISION BY COURT. This action having come before the Court and a decision having been rendered;
IT IS ORDERED AND ADJUDGED that Judgment is hereby entered in accordance with the Court's March 14, 2017 Order.
