U.S. v. DeFusco

• Decision Date: 22 November 1991
• Docket Number: Nos. 90-5319,90-6918,s. 90-5319
• Citation: 949 F.2d 114
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Allen Hagen DeFUSCO, Defendant-Appellant. (Two Cases)
• Court: U.S. Court of Appeals — Fourth Circuit

Page 114

949 F.2d 114

UNITED STATES of America, Plaintiff-Appellee, v. David Allen Hagen DeFUSCO, Defendant-Appellant. (Two Cases)

Nos. 90-5319, 90-6918.

United States Court of Appeals,

Fourth Circuit.

Argued June 7, 1991.

Decided Nov. 12, 1991.

As Amended Nov. 22, 1991.

Laurel M. Nelson-Laduca, Carlsbad, Cal., argued, for defendant-appellant.

Robert C. Chesnut, Asst. U.S. Atty., Alexandria, Va., argued (Henry E. Hudson, U.S. Atty., on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, HALL, Circuit Judge, and GARBIS, District Judge for the District of Maryland, sitting by designation.

OPINION

GARBIS, District Judge:

David Allen DeFusco ("DeFusco") appeals from his conviction, obtained by virtue of his guilty plea, for laundering of monetary instruments in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and conspiring to conceal assets from a bankruptcy trustee in violation of 18 U.S.C. § 371. DeFusco contends that the district court erred in accepting his guilty plea. We find DeFusco's contention to be totally devoid of merit, and thus we affirm.

I.

On September 29, 1989, DeFusco entered into a plea agreement in which he agreed to waive indictment and plead guilty to charges of money laundering, 18 U.S.C. § 1956(a)(1)(A)(i), and conspiracy to defraud a bankruptcy trustee, 18 U.S.C. § 152, § 371. This plea agreement was tied to a separate plea agreement in which DeFusco agreed to plead guilty to mail fraud charges in the Western District of Texas. DeFusco's wife, Annette Louise DeFusco, also entered into an agreement calling for her to plead guilty to money laundering and conspiracy charges in the Eastern District of Virginia. As part of her agreement, Mrs. DeFusco was not charged in the Western District of Texas.

Pursuant to these plea agreements, on October 20, 1989, Mr. and Mrs. DeFusco appeared before the district court in the Eastern District of Virginia which conducted proceedings pursuant to Rule 11 of the Federal Rules of Criminal Procedure. Mr. and Mrs. DeFusco were both represented in the plea proceeding by Marvin Miller, Esquire, and Kent Schaffer, Esquire. The district court accepted the proffered guilty pleas.

On October 31, 1989, DeFusco wrote to the government in an unsuccessful attempt to obtain a reduction in his sentence by providing evidence and assistance to prosecute others. DeFusco acknowledged his guilt in this letter.

On January 12, 1990, DeFusco appeared for sentencing before the district court, represented by Kent Schaffer, Esquire. Once again, DeFusco acknowledged his guilt, but argued unsuccessfully for a downward departure from the guideline range of sentences. The trial court sentenced DeFusco within the guideline range to 60 months in prison.

In early February of 1990, pursuant to his guilty plea to mail fraud charges in the Western District of Texas, DeFusco was sentenced to 60 months in prison, 40 months of which were to run consecutive to the Virginia sentence.

In March of 1990, DeFusco filed a notice of appeal of his Virginia conviction and sentence to this Court. DeFusco also appealed his Texas conviction and sentence to the Fifth Circuit, raising many of the same issues which form the basis of this appeal. The Fifth Circuit rejected his appeal and declined to vacate his plea. United States v. DeFusco, 930 F.2d 413, reh'g denied, 933 F.2d 1006 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 239, 116 L.Ed.2d 194 (1991).

DeFusco challenges his conviction on several grounds. First, he argues that the trial court inadequately complied with Rule 11 by failing to establish through colloquy that his plea was knowing and voluntary with regard to (1) the nature of the charges; (2) the possible penalties; and (3) whether the plea was coerced or truly voluntary. Second, DeFusco argues that the trial court erred in finding that an adequate factual basis for the plea existed. Third, DeFusco argues that his plea was not knowing or voluntary because of the ineffective assistance of counsel. We will address each issue in turn.

II.

Prior to accepting a guilty plea, a trial court, through colloquy with the defendant, must inform the defendant of, and determine that he understands, the nature of the charge(s) to which the plea is offered, any mandatory minimum penalty, the maximum possible penalty and various rights. Fed.R.Crim.P. 11(c)(1).

In reviewing the adequacy of compliance with Rule 11, this Court should accord deference to the trial court's decision as to how best to conduct the mandated colloquy with the defendant. "The manner of ensuring that the defendant is properly informed is committed to the good judgment of the district court, to its calculation of the relative difficulty of comprehension of the charges and of the defendant's sophistication and intelligence." United States v. Reckmeyer, 786 F.2d 1216, 1221 (4th Cir.), cert. denied, 479 U.S 850, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986). Moreover, any Rule 11 violations should be evaluated under a harmless error standard. In enacting the 1983 Amendments to Rule 11, Congress directed that a trial court's compliance with the rule be evaluated under the harmless error standard, rather than the per se reversal standard previously created by the Supreme Court in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Under the new Rule 11 standard, which the Advisory Committee observed was meant to overrule McCarthy, this Court may vacate the conviction made pursuant to the plea only if the trial court's violations of Rule 11 affected the defendant's substantial rights. See Fed.R.Crim.P. 11(h) and Advisory Committee's Note to 1983 Amendment.

A.

DeFusco argues that the trial court erred by failing to explain to him at the Rule 11 hearing the nature of the charges against him, in particular the elements of each offense. DeFusco complains that the trial court merely recited each charge without explaining the true nature of the charge.

In explaining the nature of the charges to the defendant, a trial court must take into account both the complexity of the charge and the sophistication of the defendant. United States v. Lumpkins, 845 F.2d 1444, 1449 (7th Cir.1988). In so doing, the trial court is given a wide degree of discretion in deciding the best method to inform and ensure the defendant's understanding. The trial court may look at the availability of counsel, and the defendant's personal characteristics, such as age, education, and intelligence. Id. at 1448. The court may also examine whether a written plea agreement exists, what its terms are, and whether the defendant has read the agreement. Reckmeyer, 786 F.2d at 1222. Although the defendant must receive notice of the true nature of the charge rather than a rote recitation of the elements of the offense, Henderson v. Morgan, 426 U.S. 637, 644, 96 S.Ct. 2253, 2257, 49 L.Ed.2d 108 (1976), the defendant "need not receive this information at the plea hearing itself. Rather, a guilty plea may be knowingly and intelligently made on the basis of detailed information received on occasions before the plea hearing." LoConte v. Dugger, 847 F.2d 745, 751 (11th Cir.), cert. denied, 488 U.S. 958, 109 S.Ct. 397, 102 L.Ed.2d 386 (1988).

In this instance, the trial court was aware that DeFusco is a 34 year old, experienced businessman who had two years of college education and a wealth of business experience (including three bankruptcies) from which to draw. The trial court repeatedly informed DeFusco of the nature of the charges on several occasions, including during his preliminary hearing, his plea negotiations, as part of the plea agreement, and again at his sentencing. During the Rule 11 colloquy, the trial court verified DeFusco's education and level of business sophistication. More importantly, the court verified that DeFusco had read both the criminal information and the plea agreement, and reviewed both documents with his attorney. The plea agreement contained a detailed outline of the charges, complete with each element of both offenses and the facts necessary to support each element. Further, during the colloquy, DeFusco stated that he had reviewed the elements of each offense with his attorney along with any potential defenses, and that he felt that he completely understood the nature of the charges against him. Given these facts, we cannot conclude that the trial court abused its discretion in relying on DeFusco's review of the plea agreement and criminal information with his attorney, and his verbal statements in open court that he understood the nature of the charges against him. The trial court fully complied with the dictates of Rule 11 and did not fail to address DeFusco's substantial right to understand the nature of the charges against him. See DeFusco, 930 F.2d at 415.

B.

Rule 11(c)(1) requires that the court inform the defendant of any mandatory minimum penalty provided by law for the charged offense.

Counsel for DeFusco, noting that the trial court had not advised DeFusco of any mandatory minimum sentence, devotes a section of her brief to this matter without any reference to a pertinent statutorily mandated minimum sentence. Of course, there is none. Neither statute under which DeFusco was charged contains a mandatory minimum sentence. ¹

While there is no mandatory minimum sentence, there is a sentencing range under the Sentencing Guidelines within which the defendant must be sentenced absent a departure. To the extent that DeFusco is arguing that the low end of the guideline range is equivalent to a "mandatory minimum sentence," he is wrong. The guideline range does not set a mandatory minimum penalty for an offense within the meaning of Rule 11(c)(1). United States v. Salva, 902 F.2d 483, 487 (7th Cir.1990).

The Guidelines provide for departures from the applicable sentencing range for numerous reasons. Normally, at the time a defendant would make a guilty plea, there has not been a presentence investigation or...