U.S. v. Gwiazdzinski, s. 97-1278

• Citation: 141 F.3d 784
• Decision Date: 14 April 1998
• Docket Number: 97-1290,Nos. 97-1278,s. 97-1278
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond GWIAZDZINSKI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Steven DREYER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 784

141 F.3d 784

UNITED STATES of America, Plaintiff-Appellee, v. Raymond GWIAZDZINSKI, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Steven DREYER, Defendant-Appellant.

Nos. 97-1278, 97-1290.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 7, 1998.

Decided April 14, 1998.

Brian P. Netols, Office of the United States Attorney, Criminal Division, Chicago, IL, Mark S. Hersh (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Gerardo S. Gutierrez (argued), Chicago, IL, for Defendant-Appellant Gwiazdzinski.

Frederick F. Cohn (argued), Chicago, IL, for Defendant-Appellant Dreyer.

Before MANION, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

Raymond Gwiazdzinski and Steven Dreyer pled guilty to money laundering. They appeal contesting the voluntariness of their pleas and raising sentencing issues. We affirm the decisions of the district court except for its imposition of Dreyer's sentence, which we remand for a small correction.

I. HISTORY

An undercover agent posed as someone wanting to launder drug proceeds. On August 18, 1993, he learned from unknown Person A that Gwiazdzinski, a Chicago lawyer, could launder the proceeds for him. Person A told the agent to call Gwiazdzinski at his law office and gave him a code to use. Person A then contacted Gwiazdzinski and told him to expect the call.

The same day, the agent called Gwiazdzinski and explicitly told him that he needed to launder large amounts of cash from drug trafficking. Gwiazdzinski told the agent he was an attorney and a real estate broker and he had the experience, skills, and connections to launder the funds. Gwiazdzinski told the agent his fee for laundering was between five and ten percent of the laundered amount.

On October 25, 1993, Gwiazdzinski and the agent met to discuss the laundering. Gwiazdzinski suggested laundering the cash through investments, such as Eurodollars, real estate, or offshore accounts. When the agent explained that he was not interested in laundering the money through investments, Gwiazdzinski assured him he could simply convert the cash into negotiable instruments.

After several telephone conversations, the two agreed on December 3 that Gwiazdzinski would launder $50,000 to $75,000 for a fee of ten percent. On December 14, the agent met Gwiazdzinski in his law office and gave him approximately $75,000 plus a fee of $7,000. Later that day, Gwiazdzinski gave about half of that amount to unnamed Person B to "smurf," or convert into amounts less than $10,000. (Cash transactions of more than $10,000 trigger a financial institution's duty to file a Currency Transaction Report with the Internal Revenue Service.) Person B recruited Dreyer to assist. Together they purchased seven money orders from currency exchanges. Person B, unnamed Person C, and Gwiazdzinski purchased cashier's checks, some drawn on Gwiazdzinski's escrow account for client funds. On December 16, Gwiazdzinski delivered $75,000 worth of negotiable instruments to the agent.

On January 5, 1994, Gwiazdzinski contacted the agent to solicit more business from him. The agent said he had more drug proceeds to launder, so on January 12, Gwiazdzinski, Dreyer, Person B, and the agent met at Gwiazdzinski's law office. The agent handed over another $75,000 in cash plus another $7,000 fee. At this meeting, Dreyer told the agent that he helped Gwiazdzinski launder funds and that he would deliver negotiable instruments to the agent. They laundered the funds using techniques similar to those described above.

On February 7, 1994, Gwiazdzinski called the agent and asked again whether the agent had any new business for him. Dreyer also participated in this conversation, calling himself Gwiazdzinski's partner. Gwiazdzinski and Dreyer each had several conversations with the agent over the next few months, trying to drum up business. On October 5, 1994, Dreyer and the agent agreed to meet. On October 6, Dreyer met with the agent and accepted $80,000 in cash plus a $4,800 fee. The agent specifically represented the money as drug proceeds. Dreyer laundered the proceeds much as before, and he gave 40% of the fee to Gwiazdzinski.

The grand jury indicted Gwiazdzinski and Dreyer on multiple counts of money laundering in violation of 18 U.S.C. § 1956. Each pled guilty to one count. Before sentencing, Gwiazdzinski filed a motion pursuant to Fed.R.Crim.P. 32(e) seeking to withdraw his plea. The district court denied the motion. Overruling several sentencing objections by Gwiazdzinski, the district court sentenced him to 121 months' imprisonment and a $10,000 fine. He appeals.

Dreyer also pled guilty and was released on bond to return on his own recognizance. The Government learned that Dreyer committed additional offenses during his release. He also failed to appear for a court date. He was rearrested, and he entered into a new plea agreement. Dreyer then obtained new counsel. The court continued sentencing to allow new counsel time to prepare. The court denied a second continuance to allow Dreyer time to be examined by a psychiatrist. Dreyer moved to vacate his plea based on ineffective assistance of his former counsel. The court denied this motion. Dreyer was sentenced to 120 months' imprisonment. He appeals.

II. ANALYSIS

A. Defendant Gwiazdzinski

1. Pro Se Brief

Gwiazdzinski was represented by counsel in his appeal. His attorney filed a brief on his behalf on June 11, 1997. The Clerk of the Court set oral argument for January 7, 1998. On December 31, 1997, Gwiazdzinski filed a pro se Motion to Dismiss Indictment and a supporting brief raising issues not addressed by his attorney in the original brief. The Government did not have time to respond in writing to Gwiazdzinski's pro se brief before oral argument, but the Assistant United States Attorney argued primarily that Gwiazdzinski may not file a pro se brief when he is represented by counsel.

A defendant does not have an affirmative right to submit a pro se brief when represented by counsel. See Hayes v. Hawes, 921 F.2d 100, 102 (7th Cir.1990) (per curium). In the absence of such a right, we decline to accept Gwiazdzinski's pro se motion or brief. The motion and brief are stricken as improperly before the Court.

2. Withdrawal of Guilty Plea

Gwiazdzinski seeks to withdraw his guilty plea. He pled guilty to one count of money laundering, and at the Rule 11 hearing he averred that no one coerced him into doing so. However, he claims now that his wife coerced him into pleading guilty by threatening not to let him see their child unless he pled guilty. He submitted a psychiatric evaluation in support of his assertion that he was not in the right frame of mind to plead guilty. While he told his probation officer during the presentence investigation that he drank heavily the night before pleading guilty (thereby impacting his judgment at sentencing), his lawyers said at sentencing that he did not drink the night before he pled guilty. The district court denied his motion to withdraw his sentence. We usually review that decision for abuse of discretion. See United States v. Messino, 55 F.3d 1241, 1247 (7th Cir.1995). But when a defendant contradicts his own testimony given at the Rule 11 hearing, we accord the district court's decision "great weight" and we will not reverse unless the district court's decision was clearly erroneous. United States v. Ellison, 835 F.2d 687, 693 (7th Cir.1987).

The Federal Rules of Criminal Procedure provide that "the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." Fed.R.Crim.P. 32(e). Of course, coercion is a "fair and just reason" to withdraw a plea since a coerced plea is not voluntary. But the defendant who has already testified in his Rule 11 hearing that his plea was not coerced "faces a heavy burden of persuasion." Ellison, 835 F.2d at 693. The purpose of the Rule 11 colloquy is to expose coercion, and the district judge must be able to rely on the defendant's sworn testimony at that hearing. "We will not force an attitude of skepticism on district judges which would eliminate the presumption of truthfulness expected from responses given under oath." Id.

Here, Gwiazdzinski has directly contradicted his assertion at the Rule 11 hearing that his plea was completely voluntary. ¹ First, he asserts his wife was threatening not to let him see their child unless he pled guilty. Even if we thought this type of pressure could render a plea involuntary, we cannot say that the district court's finding otherwise was clearly erroneous. Many defendants face pressure from family members to make certain decisions when facing criminal charges. Gwiazdzinski has not persuaded us that the pressure was so overwhelming that he pled guilty involuntarily, and so we do not disturb the district court's decision.

Gwiazdzinski also submitted a two-year-old psychiatric evaluation in support of his contention that his plea was not voluntary. The district court read the evaluation and decided it had no impact on Gwiazdzinski's ability to make a voluntary plea. Gwiazdzinski has merely referred to the report without providing us any reason to call the district court's finding clearly erroneous. Therefore, we will not disturb that finding.

Finally, Gwiazdzinski asserts that he drank heavily the night before pleading guilty, which affected the voluntariness of his plea. However, at his Rule 11 hearing his lawyers told the district court that he had not been drinking. In light of the conflicting statements regarding Gwiazdzinski's drinking the night before he pled guilty, we cannot possibly say that the district court's decision not to let Gwiazdzinski withdraw his plea was incorrect for that reason. We find the district court's decision was not clearly erroneous.

3. Enhancement for Laundering over $200,000

The district court enhanced Gwiazdzinski's sentence by two...