U.S. v. Bennett

• Decision Date: 23 June 2003
• Docket Number: No. 02-3176.,02-3176.
• Citation: 332 F.3d 1094
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald R. BENNETT, also known as Butch, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

332 F.3d 1094

UNITED STATES of America, Plaintiff-Appellee, v. Donald R. BENNETT, also known as Butch, Defendant-Appellant.

No. 02-3176.

United States Court of Appeals, Seventh Circuit.

Argued April 10, 2003.

Decided June 23, 2003.

COPYRIGHT MATERIAL OMITTED

Patrick F. McGovern (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Steven Shobat (argued), Chicago, IL, for Defendant-Appellant.

Before BAUER, RIPPLE, and EVANS, Circuit Judges.

BAUER, Circuit Judge.

A grand jury returned a five-count indictment charging Defendants Donald R. Bennett and Edward Landaw with wire fraud and conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 371. Both men appeared separately before the district court and entered guilty pleas on one count of conspiracy to commit wire fraud pursuant to plea agreements. After learning that the government had conditioned a two-level reduction in Landaw's offense level upon Bennett pleading guilty first, Bennett moved to withdraw his guilty plea. The district court conducted a two-day evidentiary hearing on the matter and denied Bennett's motion. The court then sentenced him to forty months' imprisonment, and this appeal ensued. For the reasons set forth below, we affirm the judgment of the district court.

BACKGROUND

Already serving a lengthy prison sentence for bank robbery, for which he was not due to be released until 2032, Bennett, who is now sixty years old, orchestrated a scheme whereby he and other inmates would make telephone calls without paying for them. To facilitate this criminal endeavor, Bennett and Landaw established over thirty-five telephone service accounts in several states using various names without the permission of those people. Bennett and Landaw, along with others at their direction, then placed numerous calls and had those calls billed to the persons whose names were on the accounts. The pair also enlisted the help of people outside the jail by promising them unlimited talking time with their incarcerated boyfriends.

As we said earlier, the two pleaded guilty in separate appearances. During Bennett's plea colloquy, the district court established Bennett's competence to plead guilty, reviewed the plea agreement with him (including his trial rights and the consequences of pleading guilty), and asked whether Bennett was satisfied by the representation he had received from his attorney, Victor Pilolla. Of particular import were the questions concerning the voluntariness of his plea and his understanding of the terms of the agreement. The court specifically asked Bennett whether he had fully read and discussed the plea agreement with Pilolla and whether anyone had forced, threatened, or made any promises to Bennett to induce a guilty plea. Bennett replied that he had fully read and discussed the agreement with Pilolla and that his plea was entirely voluntary.

The district court accepted Bennett's guilty plea and later entertained Landaw's guilty plea. It was not until Landaw's plea colloquy, however, that the district court learned that the government conditioned a two-level reduction in Landaw's offense level upon Bennett pleading guilty first. The district court stated that, had it known of the condition in Landaw's plea agreement when it accepted Bennett's plea, it would have inquired further into the basis for Bennett's plea to ensure its voluntariness. The court, however, accepted Landaw's guilty plea without further questioning Bennett.

Two months after pleading guilty, Bennett filed a pro se motion to withdraw his plea, arguing that Landaw and Landaw's attorneys coerced him to plead guilty and that he was actually innocent of the charge. Bennett claimed that the "package deal" in Landaw's plea agreement which enabled Landaw to avoid a sentence increase for an escape charge in the Northern District of Indiana, highly motivated Landaw to pressure Bennett into pleading guilty. Bennett further argued that the government's failure to disclose this term of Landaw's plea agreement to the district court during Bennett's plea colloquy was a violation of Federal Rule of Criminal Procedure 11, insofar as the district court failed to probe adequately the voluntariness of his plea. Finally, Bennett asserted that the terms of the package deal had not been disclosed to Pilolla, which deprived Bennett of the effective assistance of counsel because Pilolla was not aware of the potential for coercion.

Bennett did not provide details of Landaw's coercion in the motion but requested, and was granted, a hearing. The district court scheduled a hearing on November 2, 2000, and appointed stand-by counsel for Bennett. Bennett became ill on November 2, so the hearing was continued until March 15, 2001. During the hearing, Bennett examined Landaw's attorneys (Sarah Ellis and Daniel Hesler), Landaw, Pilolla, and the prosecutor involved with the case.

Bennett first called Sarah Ellis to the stand. She testified about her discussions with Landaw concerning his plea agreement and the package deal requiring Bennett to plead guilty first. She testified that Landaw said he would speak with Bennett about pleading guilty but that he never told her he was pressuring Bennett to do so. Ellis also testified that she met with Bennett twice, both times with Pilolla's knowledge. During the first meeting, according to Ellis, she explained to Bennett that Landaw's plea agreement was contingent upon Bennett taking responsibility for the scheme. Ellis testified that Bennett claimed full responsibility for the scheme and that he stated that Landaw's involvement was limited. Ellis recalled that during her second meeting with Bennett he expressed interest in pleading guilty. She testified that she was not aware of any attempts to threaten or coerce him.

Bennett then called Daniel Hesler, who testified that Bennett stated he felt some moral compunction to go along with the deal. Hesler also testified about meeting with Bennett to discuss whether Bennett would plead guilty and the package deal in Landaw's agreement. Hesler further testified, by reading a transcript of the voice-mail message, that Pilolla had given permission for Ellis and Hesler to meet with Bennett because Bennett had instructed Pilolla to do so. Finally, Hesler stated that Bennett seemed willing to plead guilty to the charges in order to assist Landaw's sentence, that Bennett never conveyed he had been threatened or coerced in any way, and that Bennett seemed calm at their two meetings.

Bennett's third witness was his attorney, Victor Pilolla, who testified that Bennett had earlier rejected deals similar to the one he ultimately accepted. Pilolla testified that he did not see a final version of the plea agreement until the morning of the Rule 11 plea colloquy but that he did fully discuss the final version with Bennett that morning. Pilolla further testified that plea negotiations took place prior to January 5, 2000, but he stated that he was unaware of the condition in Landaw's agreement that Bennett plead guilty first. He also testified that he had no reason to doubt Bennett when Bennett told the district court that he had not been threatened or coerced. Finally, Pilolla testified that Bennett requested to see him two days after pleading guilty in order to discuss withdrawing his guilty plea.

Following Pilolla's testimony, Bennett called Landaw to the stand, and he testified that he had tried to persuade Bennett to plead guilty by whatever way he could, including by putting pressure on Bennett and hollering at him on the morning of the plea colloquy because he (Landaw) was upset. When pressed on cross-examination, however, Landaw admitted that he never physically threatened Bennett and that the only pressure he actually put on Bennett was to persuade him that it was in both men's best interest to plead guilty.

Bennett next called the prosecutor, who testified to the terms of Landaw's plea agreement, specifically the condition requiring Bennett to plead guilty first. Finally, Bennett took the stand and read a statement into the record for his direct examination. He claimed that he had been coerced into signing an affidavit stating that he was responsible for the crimes and that the affidavit had only been signed, at Landaw's attorneys' behest, in connection with a motion to sever his trial from Landaw's. Aside from Bennett, no one else had mentioned this affidavit; yet, it further proves his admission of guilt.

Bennett then testified about the events on the morning of the plea colloquy. He stated that Landaw physically threatened him to induce him to plead guilty and that he was afraid for his safety. Bennett claimed he was overwhelmed because everyone (Ellis, Hesler, Landaw, Pilolla) kept telling him to plead guilty, that the judge was going to come down hard on him, and that he was unable to exercise his own judgment as a result. He also asked the district court to consider that he suffers from paranoid schizophrenia. Bennett admitted, however, that he told no one that morning, not even the federal marshals or the judge, that he had been threatened. As a consequence, Bennett conceded that, by not disclosing that he was threatened that morning, he had lied to the district court when asked if he had been threatened or coerced in any way.

Following the hearing, Bennett filed a pro se memorandum simply rehashing his argument that Pilolla never knew about Bennett's meetings with Ellis and Hesler and that, therefore, he had been denied the effective assistance of counsel. Pilolla subsequently filed a statement with the district court disputing Bennett's assertion that he had been unaware of his client's meetings with Landaw's attorneys.

After carefully considering the parties' briefs and the evidence from the two-day hearing, the district court denied Bennett's motion to withdraw his guilty plea. The court did not hold Bennett to the higher burden normally imposed upon defe...