Chichakly v. U.S., 89-2162

• Decision Date: 21 February 1991
• Docket Number: No. 89-2162,89-2162
• Citation: 926 F.2d 624
• Parties: Mark W. CHICHAKLY, also known as Mowaffak Wadi Chichakly, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 624

926 F.2d 624

Mark W. CHICHAKLY, also known as Mowaffak Wadi Chichakly, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 89-2162.

United States Court of Appeals, Seventh Circuit.

Submitted June 1, 1990.

Decided Feb. 21, 1991.

Mark W. Chichakly, Danbury, Conn., pro se.

David L. Rimstidt, Rimstidt, Yackey & Ladd, Indianapolis, Ind., Daniel E. Manville, Detroit, Mich., Efrem A. Gordon, Springfield, Mass., for petitioner-appellant.

Deborah J. Daniels, U.S. Atty., David L. Ryan, Susan E. Heckard, Asst. U.S. Atty., Indianapolis, Ind., for respondent-appellee.

Before CUDAHY, COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

After entering a plea of guilty Mark W. Chichakly was convicted on four counts of willful failure to file federal income tax returns in violation of 26 U.S.C. Sec. 7203. Thereafter he filed a writ of habeas corpus alleging ineffective assistance of counsel and incompetence to plead guilty by reason of the influence of prescription drugs, and the district court denied his motion. We affirm.

I. FACTS

Dr. Chichakly, with a successful radiology practice of some 40 years, failed to file federal income tax returns since 1973. ¹ Each year from 1973 to 1986, Dr. Chichakly filed requests for an extension of time to file his returns but failed to file the returns (in 1985 he filed neither a request for an extension of time nor a return). On June 8, 1987, a federal grand jury handed down a four-count indictment charging Dr. Chichakly with willful failure to file federal income tax returns for the years 1981 through 1984 pursuant to 26 U.S.C. Sec. 7203, ² years in which he averaged an income of over $150,000.

The defendant entered into plea negotiations with the government shortly after the indictment, but the parties failed to reach an agreement. ³ In a letter dated August 19, 1987, Dr. Chichakly's attorney informed him of the attorney's view of the case. He stated that, in his opinion, the trial judge has "an extremely simplistic view of these cases. If you had income and did not file taxes you are guilty." The attorney felt that he could build a defense based on Dr. Chichakly's lack of "willfulness," but he did not think the defense was likely to succeed, for the judge appeared to view "a willful act [as] one done conscientiously and voluntarily." Nonetheless, the attorney stated that he would continue preparing for trial even though he believed the best course would be to "attempt a negotiated settlement."

Dr. Chichakly filed a "Petition to Enter a Plea of Guilty" with the trial court on September 23, 1987. The trial judge carefully instructed the defendant of his constitutional rights, including the possibility of his receiving a maximum confinement period of up to four years' and a fine not to exceed $160,000. After the defendant assured the judge that he understood his constitutional rights and was waiving the same, and that he understood the charges against him as well as the possible penalties, his attorney informed the court that Dr. Chichakly was ingesting several prescription drugs including medications for clinical depression and insomnia. The judge thereupon questioned the defendant about his habit of taking medications and, after observing his condition at this time including the defendant's intelligent responses to his questions, stated that "your memory seems to be unimpaired in that regard. And having had this little discussion, I believe that you do understand this matter as you have said." Upon the conclusion of his detailed interview, the trial judge made a finding that the guilty plea was knowingly and voluntarily made and accepted the same subject to a showing of a factual basis, which the government thereafter demonstrated.

Three weeks after the guilty plea hearing and ten weeks before sentencing a psychiatrist who had treated Dr. Chichakly regularly 14 years earlier conducted a psychiatric evaluation of him. The psychiatrist's impression was that the appellant's mental state was the same as when he treated Dr. Chichakly before (Dr. Chichakly possessed adequate mental awareness to practice radiology at that time). The psychiatrist determined that Dr. Chichakly "was oriented for time place and person.... [and that] There was no evidence of delusions or hallucinations...." The evaluation was included in the presentence report. ⁴

At sentencing the defendant acknowledged that the presentence report had been summarized for him by his lawyers. ⁵ One of the attorneys for the defendant submitted objections to the presentence report, and the sentencing judge engaged the defendant in an extended colloquy concerning the objections. Most of the defendant's challenges were to factual allegations in the report as they related to certain sums of money that he had allegedly spent on, or had allegedly given to, various people. At all times during the exchange the record reflects that the defendant demonstrated an acute awareness of the facts under discussion at the sentencing hearing. When the judge offered him an opportunity to address the court in mitigation of sentence, he replied, "I would like my attorneys to speak on my behalf because I am in no mental or emotional state to address the Court." The attorneys presented a lengthy argument for probation on the grounds that the defendant was needed in a public service role at a hospital in Georgia (which paid him $150,000 per year), the IRS was allegedly persecuting him in this prosecution, and the defendant was simply unable to organize his life or his records well enough to prepare income tax returns. The district judge sentenced Dr. Chichakly to a term of one year of imprisonment on each count, each of the first three years to be served consecutively to each other and the fourth year of imprisonment to be suspended while the defendant served a year of probation consecutive to the prior three years of confinement, and imposed a $10,000 fine on each count.

II. ISSUES

Nearly a year after sentencing, Dr. Chichakly, now represented with other counsel, brought this federal habeas corpus action, alleging ineffective assistance of counsel and incompetence to enter a guilty plea.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

The appellant argues that his attorney rendered ineffective assistance of counsel when he allegedly advised Chichakly to plead guilty. ⁶ He asserts that if his attorney had not advised him incorrectly as to his likely sentence and his chances for success at trial, he would not have pled guilty. We measure claims of ineffective assistance of counsel under the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). ⁷ The first prong determines whether "counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms," id. at 688, 104 S.Ct. at 2064-65. The appellant characterized the first prong of the test as requiring the defendant to demonstrate "that counsel's assistance was unreasonable considering all the circumstances of the case." Given the cases the appellant relies upon for his claim of ineffective assistance of counsel, it seems apparent that his actual claim is a mis-application of the theory that the guilty plea was involuntary because it was based upon alleged erroneous advice of counsel. ⁸ In determining whether a plea was involuntary, we consider the entire record made in a case, Henderson v. Morgan, 426 U.S. 637, 645-46, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108 (1976), but we measure counsel's performance with an objective standard. See Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985). Thus, for the appellant's guilty plea to have been involuntary as a result of ineffective assistance of counsel, his attorney must have given advice that falls below prevailing professional norms. Furthermore, the defendant must overcome a strong presumption that the attorney's performance was effective:

"A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' "

Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted). Hence, we shall evaluate whether the advice of Chichakly's attorney appeared to be sound trial strategy under Strickland. If the strategy appeared valid at the time given, it does not constitute ineffective assistance of counsel.

Dr. Chichakly raises a number of examples of allegedly faulty advice or inappropriate actions that purportedly constitute ineffective assistance of counsel. Initially, he argues that after he rejected the government's offer of a plea agreement, he instructed his attorney to prepare for trial, but instead the attorney tried to persuade him to enter an unconditional plea of guilty to all four counts of the indictment. Interestingly, Dr. Chichakly cites one section of a letter from his counsel as support for the assertion that he instructed his attorney to prepare for trial, but he disingenuously ignores other clear statements in the letter setting forth the attorney's preparations for trial. In fact, the letter (quoted below) reveals that the attorney was willing to go to trial but was fulfilling his responsibility as an attorney to advise him (the defendant) of the chances of success. Thus, the appellant misrepresents the overall message set forth in the letter when he states that his attorney tried to persuade him to plead guilty rather than...