U.S. v. Goodman, Docket No. 97-1513
| Decision Date | 20 January 1999 |
| Docket Number | Docket No. 97-1513 |
| Citation | 165 F.3d 169 |
| Parties | UNITED STATES of America, Appellee, v. Kimberly GOODMAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Herbert L. Greenman, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Buffalo, N.Y., for defendant-appellant.
Anthony M. Bruce, Asst. U.S. Atty., Buffalo, N.Y. (Denise E. O'Donnell, U.S. Atty., Buffalo, N.Y., on the brief), for appellee.
Before: NEWMAN, CARDAMONE, and PARKER, Circuit Judges.
The recurring use in plea bargains of variously worded provisions waiving a defendant's right to appeal once again presents an issue of the validity of such a waiver. In the agreement in this case, the appellant waived the right to appeal any sentence within the statutory maximum. The validity of the waiver arises on an appeal by Kimberly Goodman from the August 20, 1997, judgment of the District Court for the Western District of New York (Richard J. Arcara, District Judge), convicting her, on a plea of guilty, of one count of mail fraud in violation of 18 U.S.C.A. § 1341 (West Supp.1998), and imposing a sentence that included 30 months of imprisonment. Goodman challenges the District Court's denial of her motion to withdraw her guilty plea and two aspects of the calculations under the Sentencing Guidelines. The Government contends that the waiver of appellate rights concerning the sentence should be enforced and the appeal from the sentence should be dismissed because the sentence was within the statutory maximum.
We hold that the appeal waiver provision used by the United States Attorney's Office for the Western District of New York in Goodman's plea agreement is not enforceable under the circumstances of this case. On the merits, we conclude that the District Court did not exceed its discretion in denying Goodman's motion to withdraw her plea and that the sentence was correctly calculated. We therefore affirm.
From the mid-1980s through early 1992, Goodman worked as a commodities broker at REFCO Securities, Inc. ("REFCO"), a New York based securities broker-dealer. Through her work at REFCO, Goodman came to know Steven Wymer, an investment advisor in Irvine, California. Goodman eventually became involved with a fraudulent scheme orchestrated by Wymer.
Promising extraordinarily high rates of return, Wymer induced individual and municipal clients to place funds under his control. Wymer instructed his clients to deposit their money in accounts at REFCO, telling them that he used REFCO to make purchases and sales of securities and as a custodian of clients' funds. Almost immediately after a client deposited funds with REFCO, Wymer would raid the account, using one client's money either to pay other clients or to enrich himself.
To facilitate this plan, Wymer enlisted an employee at his investment advisory firm to generate false documents showing exaggerated account balances and transactions that had not occurred. However, because accounting firms that audited the financial condition of some of Wymer's municipal clients periodically would ask for verification of the clients' account balances at REFCO, it became necessary for Wymer to enlist an insider at REFCO. For this purpose, Wymer turned to Goodman.
Wymer instructed his clients to send audit confirmation inquiries to Goodman's attention at REFCO. When Goodman received these inquiries, she would telephone Wymer's office to ascertain what fraudulent information Wymer's employee had given the client. Goodman would then prepare a form verifying this false information and mail it to the client's auditor. The municipal clients and their auditors relied on the false REFCO verifications in projecting municipal spending. Apparently in exchange for her assistance, Goodman received two luxury automobiles from Wymer.
Wymer was ultimately convicted of charges arising from a series of fraudulent schemes. Wymer's schemes resulted in losses of over $100 million to his clients.
The United States Attorney for the Central District of California filed a one-count information charging Goodman with mail fraud in connection with her preparation and mailing of a single false audit verification to the auditors of one of Wymer's municipal clients. Goodman executed both a Waiver of Indictment and a Consent to Transfer of Case for Plea and Sentence, resulting in the transfer of her case to the Western District of New York. Goodman then appeared before Judge Arcara, at which time she re-executed the Waiver of Indictment and entered a guilty plea pursuant to a written plea agreement.
The plea agreement stipulated that Goodman's adjusted offense level was 12 and her criminal history category was I, which yielded a sentencing range of ten to sixteen months. The adjusted offense level reflected a reduction of four levels because Goodman had been a "minimal participant," see U.S.S.G. § 3B1.2 (1997), and two levels for her acceptance of responsibility, see U.S.S.G. § 3E1.1 (1997). As is typical, the plea agreement cautioned that neither the Probation Office nor the District Court was bound by the agreed upon Guidelines calculation. Spelling out the implications of this fact, the agreement stated, "You understand that if the Court ascertains factors different from those contained in the stipulation, you cannot, for that reason alone, withdraw your guilty plea." In addition, Goodman agreed that if she breached the plea agreement in any way, the Government would no longer be bound by its sentencing recommendation.
The plea agreement also contained a section titled "Waiver of Appeal." It stated that Goodman "knowingly and voluntarily waive[d her] right to appeal any sentence ... imposed by the Court and the manner in which the sentence is determined so long as [the] sentence is within the statutory maximum specified above." During the plea allocution, this provision was read to Goodman, and she affirmed that she understood "everything." Judge Arcara then made the following comment on the appeal waiver:
There will be no appeal except two ways; one, that departure we talked about before; two if there's an offense determination that is recommended by the probation office, I look at it and let's say it's a higher number and you disagree with me on that, you'd have a right to appeal that.
Though this statement was not entirely clear and appeared to be inconsistent with the language of the plea agreement, Goodman stated that she understood the judge's comment.
On the date set for sentencing, the District Judge stated that he had serious concerns regarding Goodman's role in the offense, and directed both parties and the Probation Office to prepare reports on the issue. During a hearing on that issue, Judge Arcara voiced his concern that Goodman had not accepted responsibility for her actions and, therefore, might not be entitled to a two-level reduction pursuant to section 3E1.1. Goodman's Presentence Report indicated that although she recognized that her actions facilitated the Wymer scheme and accepted responsibility for "her lack of due diligence," she maintained that she "d[id] not act with criminal intent or knowledge."
A week before the date set for sentencing, Goodman moved to withdraw her plea on the ground that the sentence the District Court was likely to impose would substantially exceed the sentence she expected when she entered into the plea agreement. A week later, the District Judge requested briefs on the issues of whether Goodman was entitled to a reduction for acceptance of responsibility and should receive an enhancement for an abuse of trust, pursuant to section 3B1.3.
Thereafter, the District Court denied Goodman's motion to withdraw her plea, finding that her desire to avoid a sentence more severe than she had expected at the time of her plea agreement did not constitute "a fair and just reason" warranting a plea withdrawal prior to sentence, under the standards of Fed.R.Crim.P. 32(e). The District Court also rejected Goodman's argument that she should be allowed to withdraw her plea because, in her view, the Government had breached the plea agreement by arguing against an offense level reduction for acceptance of responsibility and for an abuse-of-trust enhancement. The District Court found that the Government's submission on these issues had not advocated a position on the ultimate sentence but had only endeavored to supply the Court with the law and the facts, and therefore did not violate the plea agreement. Indeed, the District Court found that Goodman had breached the plea agreement by moving to withdraw her plea.
In the same ruling, the Court held that the defendant had failed to prove by a preponderance of the evidence that she was entitled to a reduction in her offense level for her role in the offense or for acceptance of responsibility, but the Court declined to make an upward adjustment for abuse of trust. The District Court sentenced the defendant, principally, to thirty months of imprisonment.
A motion to withdraw a guilty plea before a sentence is imposed may be granted "if the defendant shows any fair and just reason." Fed.R.Crim.P. 32(e). Nevertheless, a defendant "has no automatic entitlement to have such a motion granted, for '[s]ociety has a strong interest in the finality of guilty pleas,' and allowing withdrawal of pleas not only 'undermines confidence in the integrity of our judicial procedures,' but also 'increases the volume of judicial work, and delays and impairs the orderly administration of justice.' " United States v. Maher, 108 F.3d 1513, 1529 (2d Cir.1997) (quoting United States v. Sweeney, 878 F.2d 68, 70 (2d Cir.1989)). We have explicitly stated that " '[t]he fact that a defendant has a change of heart prompted by his reevaluation of ... the penalty that might be imposed is not a sufficient reason to permit withdrawal of a plea.' " Id. (quo...
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