U.S.A. v. Juncal

• Decision Date: 23 October 2000
• Docket Number: Docket No. 00-1257
• Citation: 245 F.3d 166
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. JOHN G. JUNCAL, RAMASAMY EGAMBARAM, HARVEY L. SCHILOWITZ, DANNY KEMP, Defendants, RAYMOND H. LANCASTER, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 166

245 F.3d 166 (2nd Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. JOHN G. JUNCAL, RAMASAMY EGAMBARAM, HARVEY L. SCHILOWITZ, DANNY KEMP, Defendants, RAYMOND H. LANCASTER, Defendant-Appellant.

Docket No. 00-1257

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: Oct. 23, 2000.

Decided: April 02, 2001.

THOMAS F.X. DUNN, New York, New York, for Defendant-Appellant.

BRET R. WILLIAMS, Assistant United States Attorney (Mary Jo White, United States Attorney for the Southern District of New York, Meir Feder, Christine H. Chung, Assistant United States Attorneys, of counsel), New York, New York, for Appellee.

Before: CARDAMONE, WINTER, and POOLER, Circuit Judges.

WINTER, Circuit Judge:

Raymond H. Lancaster appeals from his convictions for conspiracy and wire fraud, in violation of 18 U.S.C. §§ 371 & 1343, based on guilty pleas before Judge Keenan. The appeal raises two issues: whether the district court properly denied appellant's motion to withdraw his guilty plea and whether it erred in imposing a two-level sentencing enhancement for obstruction of justice based on an allegedly perjurious affidavit. See U.S.S.G. § 3C1.1. We affirm the denial of appellant's motion to withdraw his plea but hold that he did not commit perjury by claiming in an affidavit that he had been "coerced" into pleading guilty. Because the sentencing enhancement was unwarranted, we vacate the sentence and remand for resentencing.

BACKGROUND

This appeal arises out of a scheme to issue a fraudulent surety bond. The scheme involved the bogus assignment of $500 million in U.S. Treasury Securities, ostensibly owned by Red Rock Dragon, Ltd., a company owned by codefendant John G. Juncal, to Investor's Guaranty Group, Inc. ("IGGI"), a company controlled in part by appellant. Red Rock Dragons's claim that it owned the securities, which were to serve as collateral for the bond, was false. A four-count indictment charged appellant with one count of conspiracy to commit wire fraud and three substantive counts of wire fraud. The conspiracy count recounted the bogus assignment of the U.S. Treasury Securities; negotiations among appellant, his codefendants, and an undercover FBI agent; the use of fax machines to transmit documents relating to the fraudulent surety bond over interstate wires; and the issuance of the fraudulent bond itself. The substantive wire-fraud counts charged three specific wire transmissions in furtherance of the fraudulent scheme.

In the course of pretrial preparation, appellant and his attorney had five in-person meetings and some sixty telephone conversations. Frequent communication by phone was necessary because appellant lived in California, while his attorney was located in New York, the site of the upcoming trial. During pretrial preparations, appellant adamantly rejected suggestions that he plead guilty rather than go to trial. As jury selection got underway, however, he was persuaded to plead guilty to all four counts of the indictment. Appellant signed a plea agreement on January 20, 1999.

The district judge held a plea allocution that day. At the allocution, the court ascertained from appellant that he had received copies of the indictment and the plea agreement, had reviewed those documents with his attorney, and had understood them. Appellant waived the reading of his indictment and affirmed that he was satisfied with his attorney's representation and that the plea was fully voluntary.

The court asked appellant whether he had "been induced to offer to plead guilty by any threat, pressure or force or anything like that?" Appellant answered in the negative. The court then asked appellant to describe the conduct that served as the basis for his plea. In response, appellant explained his role in the scheme, including the use of fax machines, misrepresentations about the nature of his company, and his deliberate avoidance of any attempt to learn whether the scheme was fraudulent. With regard to his knowledge of fraud, appellant admitted that while the scheme was ongoing, he learned of a federal investigation into the transaction but "deliberately failed to heed the red flag that federal law enforcement officers brought to [his] attention." The district judge accepted appellant's plea.

Almost a year later, appellant, represented by new counsel, moved to withdraw his guilty plea and proffered an affidavit stating that: (i) the court failed to inform him of the nature of the charges to which he was pleading guilty; (ii) the court had not ascertained an adequate factual basis for the plea; and (iii) his former attorney had "coerced" him into pleading guilty by refusing to defend him, "seldom ma[king] any effort to listen to" him and failing to follow up on information that appellant had provided him.

Appellant's affidavit recounted the events that in his view amounted to coercion causing him to plead guilty. According to the affidavit, appellant perceived his trial attorney to be ill-prepared for trial. There were disagreements over calling certain witnesses. The attorney repeatedly predicted that the jury would convict appellant, told appellant that the attorney "would not be able to present a defense" at trial, and advised appellant that he would receive more jail time if he went to trial rather than agree to a plea. Defense counsel facilitated a meeting in which the prosecutor told appellant that securing a conviction would be easy and that the prosecution would seek the maximum penalty if appellant were to force a trial. However, the prosecutor also stated that if appellant were to accept the plea, the prosecutor "would go easy on" him. Appellant's attorney then arranged a meeting between appellant and a supervisory attorney at the Federal Defenders' office. The supervisor also advised appellant that he "would certainly [lose] if [he] were to continue forward with the trial." Appellant described his mental state at this point as "frightened" and "under duress" as a result of the meetings. Appellant next asked his attorney whether he would have any time to prepare for incarceration if he were to be convicted at trial. His attorney explained that he would be immediately incarcerated upon a conviction, but that, if he were to enter a plea, he could remain at liberty for several months. Appellant then agreed to plead guilty.

The district court held a hearing on appellant's motion to withdraw the plea at which appellant's former attorney testified, after appellant waived the attorney-client privilege. The attorney's version of events was, except with regard to the adequacy of his trial preparation, not greatly at odds with appellant's version. The attorney expected to lose if a trial were held, regarded the witnesses proposed by appellant as more dangerous than helpful, and believed it was very much in appellant's interest to plead guilty. He conveyed these views to appellant in no uncertain terms. He generally verified appellant's descriptions of meetings with the prosecutor and the supervisor in the Federal Defenders' Office.

At the conclusion of the hearing, the district court found that the attorney had done nothing improper, that no one had improperly induced appellant to plead guilty, that appellant's plea was knowing and voluntary, and the appellant's allocution had fully complied with Fed. R. Crim. P. 11. He therefore denied his motion to withdraw the plea.

Before sentencing, the government requested a two-level enhancement under U.S.S.G. § 3C1.1, for obstruction of justice based on appellant's "submitting a perjurious affidavit in connection with a motion to withdraw his guilty plea on the alleged ground that... his then court-appointed counsel... engaged in coercive tactics to force a guilty plea." Specifically, the government pointed to three assertions in the affidavit that it regarded as perjurious: (i) "I did not enter this plea of guilty voluntarily [but] under the coercion exercised upon me by my attorney at the time"; (ii) "I was being pressured by my attorney and everyone he had talk with me [and] was under duress during these conversations"; and (iii) "because of [my attorney's] coercive tactics, I reluctantly pled guilty".

The district court agreed with the government, finding:

The evidence here is clear and convincing that the defendant committed perjury in his affidavit when he wrote,... "under the coercion exercised upon me by my attorney at the time Mr. Jonathan Bach, Esq., who very seldom made any effort to listen to me and did not follow up on information I provided him."

The guilty plea in the minutes of the March 7, 2000, hearing demonstrates beyond question that the guilty plea was knowing and voluntary. I find by clear and convincing evidence that the defendant intentionally gave false testimony as to a material matter, because he willfully and materially made false statements in his February 29, 2000 affidavit....

Accordingly, the district court imposed a two-level enhancement pursuant to U.S.S.G. § 3C1.1, for obstructing justice by "providing materially false information to a judge or magistrate." U.S.S.G. § 3C1.1, App. Note 4(f). After various other Guidelines calculations not pertinent to the issues on this appeal, the court determined an offense level of 19, a Criminal History Category of I, and a sentencing range of 30-37 months. The district judge sentenced appellant to 30 months' imprisonment, to be followed by two years of supervised release, and imposed a mandatory $400 special assessment.

This appeal followed.

DISCUSSION

a) Motion to Withdraw the Guilty Plea

We review a district court's denial of a motion to withdraw a guilty plea for abuse of discretion and any findings of fact in connection with that decision for clear error. See United States v. Goodman, 165 F.3d 169, 173 (2d Cir.), cert. denied, 528 U.S. 874 (1999). Appellant offers two arguments as to why the district court abused its discretion in denying his motion to withdraw his plea....