King v. United States
| Decision Date | 25 April 2017 |
| Docket Number | 10-cr-122 (JGK),14-cv-7962 |
| Parties | MELISSA G. KING, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of New York |
The petitioner, Melissa G. King, moves pro se pursuant to 28 U.S.C. § 2255 to vacate and set aside her 72-month sentence of imprisonment, which was entered following her guilty plea to one count of embezzlement from employee benefit plans, in violation of 18 U.S.C. §§ 664 & 2, and to one count of subscribing to false United States individual tax returns, in violation of 26 U.S.C. § 7206(1). The petition and its supporting memorandum (collectively, the "Petition") --- which were filed over a year after the statute of limitations expired --- raise a host of claims: among others, that the guilty plea was not knowing, intelligent, or voluntary; ineffective assistance of counsel; prosecutorial misconduct; actual innocence; and violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment.
In response to the request of this Court, see Civ. Dkt. 26, the attorneys that represented the petitioner in the underlying criminal proceedings have submitted declarations and an affidavit to address the ineffective assistance of counsel claims. See Civ. Dkt. 32 (Fontier Declaration); Civ. Dkt. 33 (Schachter Affidavit); Civ. Dkt. 34 (Handwerker Declaration) (collectively, the "Attorney Affidavits").
For the reasons explained below, the Petition is dismissed.
On February 17, 2010, the petitioner was charged in an Indictment with one count of embezzlement from employee benefit plans, in violation of 18 U.S.C. §§ 664 & 2, and with eleven counts of money laundering, in violation of 18 U.S.C. §§ 1957 & 2. See Cr. Dkt. 12. The Indictment alleged that the petitioner served as the third-party administrator for the employee benefit plans of a union, the Compressed Air and Free Air Foundations, Tunnels, Caissons, Subways, Cofferdams, Sewer Construction Workers Local 147 of New York, New Jersey States and Vicinity AFL-CIO ("Local 147"). The Indictment alleged that the petitioner embezzled approximately $40 million from three of Local 147's employee benefit plans through King Care LLC ("King Care"), a company the petitioner controlled, which served as the fund manager for the funds pursuant to an administrative agreement, and that the petitioner then laundered the embezzledfunds through a series of bank accounts. See Cr. Dkt. 12 at 4-5. The petitioner pleaded not guilty.
At the time the Indictment was filed, the petitioner was represented by retained counsel, Peter William Till ("Till") of the Law Offices of Peter W. Till.1 See Cr. Dkt. 3. The petitioner retained two additional lawyers, Michael Handwerker ("Handwerker") of Goldstein & Handwerker, LLP, who appeared on behalf of the petitioner in March 2010, and Ronald K. Smith ("Smith"), a solo practitioner, who appeared on behalf of the petitioner in June 2010. See Cr. Dkts. 21, 23, 25, 30. On June 15, 2010, Till moved to withdraw as the petitioner's attorney. See Cr. Dkts. 28-29. The petitioner --- citing "irreconcilable differences" and a "breakdown in communications" with Till, as well as her belief that Handwerker could adequately represent her in the matter --- did not oppose Till's motion, see Cr. Dkt. 32, which was granted on July, 2, 2010, see Cr. Dkt. 34.
On June 30, 2010, a Superseding Indictment was filed, adding one count of mail fraud, in violation of 18 U.S.C. §§ 1341 & 2, and four counts of tax evasion, in violation of 26 U.S.C. § 7201. See Cr. Dkt. 35. Over the next year, in numerous filings, the Government and counsel for the petitioner battled over a series of dispositive and non-dispositive issues, rangingfrom the post-indictment restraint and preservation of the petitioner's assets, to the dismissal of the superseding indictment, to the suppression of post-arrest statements. See United States v. King, No. 10 CR. 122 (JGK), 2011 WL 1630676 (S.D.N.Y. Apr. 27, 2011); United States v. King, No. 10 CR. 122 (JGK), 2010 WL 4739791 (S.D.N.Y. Nov. 12, 2010).2
Due in part to the post-indictment freeze of the petitioner's assets, the petitioner lost the ability to pay for Smith and Handwerker. See Cr. Dkt. 128. On March 14, 2011, at the request of the petitioner, Michael S. Schachter ("Schachter") of Willkie Farr & Gallagher LLP ("WFG") was appointed to represent the petitioner pursuant to the Criminal Justice Act (the "CJA"), 18 U.S.C. § 3006A. See Cr. Dkt. 130. Because the petitioner could no longer pay for retained counsel, on March 23, 2011, Handwerker was temporarily appointed to the CJA Panel so that Handwerker could continue representing the petitioner pursuant to the CJA. Cr. Dkt. 136. The purpose of the dual representation was to provide the petitioner with the benefit of her choice of counsel, Handwerker, and the experienceof Schachter, along with the resources of a larger firm, WFG, that could review the immense amount of discovery in the case.
As counsel for the petitioner, Handwerker and Schachter continued to contest issues in the case, including by moving in limine to exclude certain evidence. See, e.g., Cr. Dkts. 192, 209. While preparing for the possibility of a trial, the petitioner also negotiated with the Government regarding the possibility of a disposition short of trial.
On October 21, 2011, the petitioner waived her right to be indicted by a grand jury, and consented to being charged in a Superseding Information S3 10 Cr. 122 (JGK) (the "Information"). See Cr. Dkt. 218. The Information charged the petitioner with one count of embezzlement from employee benefit plans, in violation of 18 U.S.C. §§ 664 & 2 ("Count I"), and with one count of subscribing to false United States individual tax returns, in violation of 26 U.S.C. § 7206(1) ("Count II").
On the same date, the petitioner appeared before this Court, and pleaded guilty to both Counts in the Information pursuant to a plea agreement dated October 20, 2011 (the "Plea Agreement") with the Government. The Plea Agreement contained a waiver by the petitioner of any direct appeal or collateral challenge of any sentence of or below the Stipulated Guidelines Range of 96 months' imprisonment. Plea Agr. at 8-9. The Plea Agreement also noted that, for the purposes of calculating theSentencing Guidelines offense level, the petitioner and the Government disputed the loss amount attributable to the petitioner's conduct: the petitioner contended that the loss amount was between $7 million and $20 million, while the Government contended that the loss amount was between $20 million and $50 million. Plea Agr. at 7. This was a sentencing issue that did not affect the petitioner's ability to plead guilty to Counts I and II of the Information. Indeed, the Stipulated Guidelines Range of 96 months' imprisonment was based on the statutory maximum sentence for the two Counts of conviction. Under both the Government's calculations and the petitioner's calculations, the Guideline Sentencing Range would have been higher if it were not capped by the statutory maximum sentence.
At the petitioner's guilty plea, this Court conducted an allocution in conformity with Rule 11 of the Federal Rules of Criminal Procedure. The petitioner was placed under oath and then answered a series of questions establishing that she was competent to enter a guilty plea. Plea Tr. at 9-13. For example, the petitioner explained that she was highly educated: she had a master's degree, and had nearly completed a Ph.D. Plea Tr. at 10.
The petitioner also explained that she had had psychiatric treatment for post-traumatic stress "a couple of years ago" andthat she was separately being treated for several physical ailments --- namely, back problems and "a chronic infection." She swore that her past psychiatric condition and treatment "[a]bsolutely [did] not" affect her ability to understand the proceedings and to consult with her lawyer. Plea Tr. at 10-12. She also swore that her physical condition did not interfere with her ability to understand the proceedings and to consult with her lawyer. Plea Tr. at 12. The petitioner swore that her mind was clear; that she wanted to proceed with the plea allocution; and that she had not taken any drugs, medicine, pills, or alcohol in the preceding 24 hours. Plea Tr. at 12-13. Counsel for the petitioner, and the petitioner herself, confirmed that "nothing about [the petitioner's] physical condition in any way impact[ed] her ability to proceed with the guilty plea." Plea Tr. at 5-8. The guilty plea allocution occurred in the afternoon at 4:35 p.m. The petitioner's counsel confirmed that the petitioner had refrained from taking her medication so that she could participate in the guilty plea allocution that afternoon. Plea Tr. at 6.
The petitioner also swore that she had "extensive discussion" with her counsel regarding her case, and the consequences of waiving indictment, proceeding by information, and entering a guilty plea. Plea Tr. at 14. The petitioner sworethat she was satisfied with Schachter's representation of her --- "very much so." Plea Tr. at 14.
On the basis of the petitioner's responses to this Court's questions, and the Court's observations of her demeanor, this Court found that the petitioner was "fully competent to waive indictment, agree to proceed by information, and enter an informed plea." Plea Tr. at 14.
The petitioner acknowledged the various rights that she was giving up by pleading guilty. Plea Tr. at 14-17. The petitioner acknowledged that she consented to being charged by information rather than indictment. Plea Tr. at 17-19. The petitioner was advised of the nature of the charges to which she was pleading guilty, Plea Tr. at 20-23, the maximum penalties for those charges (including restitution), the possibility of forfeiture, and the implications of any term of supervised release. Plea Tr. at 21-28.
As to the Plea Agreement, the petitioner acknowledged...
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