Bontkowski v. U.S.

Decision Date19 July 1988
Docket Number86-1908,Nos. 86-1871,s. 86-1871
Citation850 F.2d 306
PartiesEdward BONTKOWSKI, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Suzanne Philbrick, Oak Lawn, Ill., for petitioner-appellant.

Stephen Crocker, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for respondent-appellee.

Before CUDAHY, POSNER, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Petitioner-appellant, Edward Bontkowski, appeals the district court's dismissal of his two petitions filed pursuant to 28 U.S.C. Sec. 2255. 1 Bontkowski sought to vacate his convictions based on guilty pleas to two separate and unrelated indictments--one charging him with conspiracy to distribute and distribution of cocaine and a second charging him with aiding and abetting in the misapplication of bank funds. Bontkowski claims his conviction of the cocaine charge should have been vacated because the court incorrectly sentenced him. He also contends his conviction of the bank fund misapplication charge should have been vacated because the plea, on which it was based, was not voluntary and because the court had an insufficient factual basis for accepting it.

We agree with the district court that Bontkowski's Sec. 2255 petition was properly dismissed with respect to the cocaine charge and we agree that Bontkowski's failure to raise certain claims regarding the bank fraud charge resulted in a waiver of those claims. However, we also find that Bontkowski's Sec. 2255 petition, with respect to the claim that his plea to the bank fraud charge was based on insufficient facts, should be remanded for review by the district court in light of our recent decision in a related case.

I.

In the spring of 1984, Bontkowski and seven co-defendants were named in a twenty-five count indictment. They were charged with transporting stolen property, aiding and abetting in the misapplication of bank funds, and making false statements to a bank. This case was assigned to Judge Paul Plunkett. Later that summer, Bontkowski and Elena Vavadakis (whom Bontkowski later married) were indicted by a separate grand jury for multiple counts of cocaine distribution, conspiracy, and extortion. This case was assigned to Judge George Leighton.

Separate plea agreements were negotiated in each case. The cocaine case was transferred to Judge Plunkett so that pleas in both cases could be accepted by the same judge.

Bontkowski pled guilty to the two counts of the bank fraud indictment which charged him with aiding and abetting in the misapplication of bank funds. As to this indictment, he was sentenced to four years imprisonment for each count, with the sentences to be served concurrently.

At the time Bontkowski pled guilty to the bank fraud charges, he also pled guilty to two counts, in the unrelated drug indictment, of conspiring to distribute cocaine and to distributing cocaine. With regard to the drug indictment, Bontkowski was sentenced to four years imprisonment followed by a five year period of probation and a special parole term of three years. The sentence imposed in the drug indictment was concurrent to the sentence imposed under the bank fraud indictment.

Because the facts leading to the acceptance of the guilty pleas to the various charges are pertinent to Bontkowski's Sec. 2255 petitions, we will set them out in some detail.

A.

As we described in the related case involving one of Bontkowski's co-defendants, 2 Bontkowski and several others, including Ronald Berkovitz and William Giova, were charged with defrauding a federal bank. Berkovitz allegedly masterminded the conspiracy which involved duping small business operators into obtaining loans for him from Giova and the First National Bank of Cicero.

According to Bontkowski, Berkovitz approached him with a plan whereby Bontkowski could obtain quick financing for his trucking company and some additional, much-needed cash. All Bontkowski had to do was to approach Giova, an officer at the Cicero bank, and apply for a loan. Berkovitz would then receive a portion of Bontkowski's loan proceeds presumably to invest in Berkovitz's get-rich-quick enterprise.

Bontkowski contends that unbeknownst to him, Berkovitz and Giova already had a prior history of engaging in loan transactions. Dealing with Giova, Berkovitz had borrowed money directly from and brokered loans for the Cicero bank. With regard to the brokered loans, Berkovitz referred a series of large (but usually high risk) borrowers to the Cicero Bank. Giova then approved these brokered loans. When these loans proved to be a serious liability to the bank, the bank board ordered Giova to stop accepting loans brokered by Berkovitz. Moreover, under federal lending limit laws, Giova was no longer permitted to make direct loans to Berkovitz. Ever resourceful, Berkovitz sought out small business owners who were in a financial pinch, and encouraged them to apply directly to Giova for loans. A portion of the loans then went to Berkovitz, a fact of which Giova and the borrowers were allegedly aware but the bank management was not. Thus, Berkovitz continued to receive a portion of loans, the Cicero Bank, in effect, was still accepting brokered loans, and Giova continued to make loans to Berkovitz in violation of federal lending limits.

Of specific relevance here, Berkovitz called Giova and told him that he had provided Bontkowski with bearer bonds which Bontkowski was going to use as collateral to obtain two loans from Giova. One loan was for $370,000.00, the other for $100,000.00. Unfortunately, the bonds Bontkowski used as collateral were stolen. Bontkowski purportedly did not know the bonds were stolen. However, Bontkowski was aware, as he admitted at the time of his plea, that a portion of his loans was to go to Berkovitz.

When the Berkovitz-Giova scheme was uncovered, Bontkowski was charged with one count of aiding and abetting in the misapplication of bank funds for each loan for which he had signed.

Bontkowski pled guilty to the two counts of the indictment, admitting that when he applied for the two loans, he knew that a portion of the proceeds were to go to Berkovitz. At the time of the plea, the government's evidence as to Bontkowski's participation in the loan scheme was presented as follows:

[AUSA]: Judge, it is charged in Counts 10 and 11 of the indictment that on February 26, 1982 Mr. Bontkowski obtained two loans at the First National Bank of Cicero, one for $370,000.00, the other for $100,000.00. The government's evidence would show first that the deposits of that bank are insured by the Federal Deposit Insurance Corporation and were insured at the time he obtained the loans.

The government's evidence would also show that the collateral for those loans was $495,000.00 worth of bearer bonds which Mr. Bontkowski didn't own and which in fact had been stolen in New York City and transported to Chicago by Clarence Wade, a co-defendant.

The government's evidence would also show that the defendant was only a partial beneficiary of the loan proceeds and that in fact most of the money went to Ronald Berkowitz [sic], another co-defendant. By signing numerous checks, cashing checks and turning the money over to Mr. Berkowitz [sic], and by further concealing from the bank through its records, and not disclosing the existence of Mr. Berkowitz [sic] and the fact he was a beneficiary of the loan, other than to Mr. Giova, who is a co-defendant, the defendant aided and abetted Mr. Giova in misapplying the bank funds. (Emphasis added.)

Notably absent from the government's summary was any evidence that Bontkowski knew the bearer bonds he used to obtain the loans, were stolen. This omission, as we shall see, was a crucial one.

After the government presented its evidence, the court questioned Bontkowski to further establish the basis for his plea.

THE COURT: Is it in fact your statement to me today by your plea that you did work with Mr. Berkowitz [sic] and others to obtain money from the First National Bank of Cicero?

THE DEFENDANT: Yes, I did, your Honor.

THE COURT: And that you knew in the course of what you were doing that you were in fact injuring and defrauding the First National Bank of Cicero?

THE DEFENDANT: In a legal sense, your Honor.

THE COURT: Well, you have to tell me what you mean then, Mr. Bontkowski.

THE DEFENDANT: I knew that I wasn't the benefactor in these loans, but it was never my intention to defraud this bank.

THE COURT: Well, then we may have a problem, Mr. Pearl [AUSA] we have charged him with intent to --not "we," the government has charged him with intent to injure and defraud the bank.

[AUSA]: I think Mr. Bontkowski, if we could clarify, perhaps would admit that he had no intent to injure the bank in the sense that most people would have--he would have wished that this whole thing worked out and no one lost a penny; but I think he would agree that he intended to defraud the bank in the sense that he never revealed, and willfully failed to reveal, that Mr. Berkowitz [sic] was a recipient of the proceeds and did in fact represent himself as the sole beneficiary of the loan.

[DEFENDANT'S ATTORNEY]: That is what I was about to say, Judge.

THE COURT: All right.

THE DEFENDANT: That's what I meant, your Honor.

THE COURT: Okay.

THE DEFENDANT: I don't know how to explain myself.

THE COURT: All right. Well, you're doing all right. So you are telling me you knew at the time these loans were given that they were given at least in part in your name, is that right?

THE DEFENDANT: The entire loan was given in my name.

THE COURT: I see, and at the time you knew you weren't going to get those funds?

THE DEFENDANT: That's correct, your Honor.

THE COURT: And you knew you were going to give them to somebody named Berkowitz [sic]?

THE DEFENDANT: Correct, your Honor.

THE COURT: And you did not tell the bank...

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