U.S. v. Lampazianie
| Decision Date | 15 May 2001 |
| Docket Number | No. 99-50888,99-50888 |
| Parties | (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANCESCO LAMPAZIANIE, also known as Seyed Mohammed Tabib, also known as Frank Lampazianie, Defendant-Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
Defendant-Appellant Francesco Lampazianie ("Francesco") pleaded guilty to one count of conspiracy. On appeal, Francesco raises a host of arguments challenging his conviction. Most significant among these is his contention that the district court abused its discretion in refusing to permit him to withdraw his guilty plea on the ground that the plea was coerced. As we conclude that this contention ---- like Francesco's other grounds for appeal ---- does not mandate reversal, we affirm.
In June 1998, the government filed a twenty-nine count indictment against Francesco and nine other defendants, including his brothers ---- Marcello, Antonio, and Pierre ---- and his sister, Fakhrolsadat Tabib.1 The defendants were charged with 15 counts of mail fraud and aiding and abetting, in violation of 18 U.S.C. §§ 2 and 1341, nine counts of wire fraud and aiding and abetting in violation of 18 U.S.C. §§ 2 and 1343, two counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i), and one count of conspiracy in violation of 18 U.S.C. § 371.
According to Francesco's presentence report (the "PSR"), the individuals charged in the indictment, along with Choice Richardson, an attorney not named in the indictment, operated a business specializing in obtaining money from insurance companies on automobile accident claims from April 1992 through April 1996. More specifically, the PSR explains that the Lampazianies structured their "business enterprise" to appear to be two separate entities: (1) the Pain Therapy Clinic operated by Francesco, Marcello, and Fakhrolsadat, and (2) the Law Office of Choice Richardson, in which Francesco and Marcello held an ownership interest and where Antonio and Pierre worked as legal assistants. The brothers used the two businesses to defraud insurance companies on personal injury claims by, inter alia, billing insurance companies for medical "treatments" given to participants in staged accidents and negotiating fraudulent settlements with insurance companies. As part of this scheme to defraud, Marcello, with the assistance of his brothers and sister, concealed from MetLife and the Social Security Administration the fact that Marcello was receiving income from the business so that he could continue to receive disability payments.2
In July 1998, the district court held a hearing on Francesco's motion to suppress evidence obtained by search warrants for the Pain Therapy Clinic. At the hearing, his counsel argued that the warrants were improper "general exploratory rummaging" warrants issued without probable cause. In addition, Francesco's counsel argued that 30 insurance claim files obtained by the government from insurance companies, which files served as the basis for the warrants, were insufficiently identified. The district court orally denied Francesco's motion to suppress at the close of the hearing.
Francesco filed a motion to compel production of the records and documents that supported the search warrants for the Pain Therapy Clinic, including the aforementioned 30 claim files. The motion was granted in October 1998. Approximately one month later, however, the district court granted the government's motion for reconsideration and ruled that "the documents filed under seal will remain under seal until otherwise ordered by the court."
Francesco also filed a pretrial motion to quash the indictment on the ground of duplicity, arguing that the indictment improperly joins two or more offenses in a single count. Francesco argued that the allegations in the indictment actually reveal six separate schemes to defraud rather than the unitary scheme "broadly described" by the government. The district court denied Francesco's motion to quash the indictment in October 1998.
In January 1999, on the day on which trial was scheduled to begin, Francesco and seven co-defendants pleaded guilty before a magistrate judge as to Count 29 of the indictment (the conspiracy charge). Francesco's plea agreement, which was read into the record, included a binding term that his total offense level under the sentencing guidelines would be fixed at 17, and that his sentencing range would be fixed at between 24 and 30 months. When the magistrate judge asked Francesco, "Are you pleading guilty because you are guilty and for no other reason?[,]," and "Are you pleading guilty freely and voluntarily and with full knowledge of the consequences?[,]" Francesco answered each question in the affirmative; when the magistrate judge asked whether "anyone has threatened you, coerced you, or forced you in any way to plead guilty," he responded in the negative.
Ten days after entering his plea, Francesco filed a motion styled "Defendant's Motion for Extension of Time to File a Motion to Withdraw Guilty Plea[.]" It asserts that "this motion is filed by counsel to withdraw the plea of guilty[,]" but provides no reason for the withdrawal; rather, the motion merely references "problems with the taking of the plea of guilty" and states that "[b]ecause Mr. Lampazianie is currently ill with the flu and at home, it has been impossible for counsel to confer with him in detail regarding this issue and still meet the deadline for objecting to the plea[.]" The district court accepted the guilty plea the day after Francesco's Motion for Extension of Time to File a Motion to Withdraw Guilty Plea was filed and denied that motion ten days later.
More than six months later, Francesco filed a motion to withdraw his guilty plea for the reason that "his plea of guilty was entered as a result of coercion that was placed on him because he and all the other family members . . . were told that his disabled and mentally ill brother, indicted as Marcello Lampazianie[,] was going to be taken into custody by the Court and sent to the Federal Mental Hospital in Missouri on the spot unless the entire family accepted the 'package deal' offered by the government." The "package deal" described by Francesco "was that everyone had to plead guilty or his brother would be taken and Defendants and his brother feared for the safety of Marcello, who was heavily medicated and was suicidal." Stating that it had reviewed the transcript of Francesco's plea colloquy "over and over again," the district court denied Francesco's motion orally at his sentencing hearing.
As specified in his plea agreement, Francesco's offense level was calculated at 17, which included an enhancement for his leadership role in the offense and a reduction for his acceptance of responsibility. As agreed, Francesco's sentencing range was set between 24 and 30 months. Stating that it would "go to the bottom end of the guidelines," the district court sentenced Francesco to 24 months, to be followed by supervised release for three years, restitution in the amount of $61,093.34, and a special assessment.
On appeal, Francesco raises the following objections to his conviction: (1) the district court abused its discretion in denying his motion to withdraw his guilty plea, (2) the indictment was duplicitous, (3) his due process rights were violated by the government's "failure" to produce discovery material related to the issuance of the search warrants, (4) the district court erred in denying his motion to suppress evidence obtained by the search warrants, and (5) he was denied his Sixth Amendment right to effective assistance of counsel.
We review the district court's denial of a motion to withdraw a guilty plea for abuse of discretion.3 The sufficiency of an indictment is subject to de novo review.4 We review a district court's denial of a motion to suppress by (1) viewing the facts in the light most favorable to the prevailing party, (2) accepting the district court's factual findings unless clearly erroneous, and (3) considering all questions of law de novo.5 A claim of ineffective assistance of counsel generally cannot be reviewed on direct appeal unless it has been presented to the district court;6 rather, we "resolve claims of inadequate representation on direct appeal only in rare cases where the record allow[s] us to evaluate fairly the merits of the claim."7
Francesco contends that the district court abused its discretion when it refused to permit him to withdraw his guilty plea. We note at the outset that there is no absolute right for a defendant to withdraw a plea.8 Instead, Rule 32(e) of the Federal Rules of Criminal Procedure provides that the district court may grant a motion to withdraw a guilty plea before a defendant is sentenced if the defendant shows "any fair and just reason." The district court's decision is discretionary and will not be disturbed absent an abuse of discretion.9
In reviewing the denial of a motion to withdraw a guilty plea, we consider the seven factors set forth in United States v. Carr: whether (1) the defendant asserted his innocence, (2) withdrawal would prejudice the government, (3) the defendant delayed in filing the withdrawal motion, (4) withdrawal would inconvenience the court, (5) adequate assistance of counsel was available, (6) the plea was knowing and voluntary, and (7) withdrawal would waste judicial resources.10 The district court is not required to make findings as to each of the Carr factors.11 Neither is any single factor dispositive;12 instead, the determination is based on a totality of circumstances.13 The burden of establishing a "fair and just reason" for withdrawing a guilty plea...
To continue reading
Request your trial
-
Canion v. Cole ex rel. County of Maricopa
...for it to engage in suitable review, including if appropriate an in-chambers examination of the evidence. See United States v. Lampazianie, 251 F.3d 519, 526 (5th Cir.2001) (district court examined files and found no exculpatory evidence); United States v. Dent, 149 F.3d 180, 191 (3d Cir. 1......
-
United States v. Johnson
...by a factual allegation, can support a § 2255 motion. See Fontaine v. United States, 411 U.S. 213, 214-15; United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001). However, a defendant's statements during a Rule 11 colloquy as well as any findings made by the judge accepting the ple......
-
U.S. v. Rogers
...States v. Bell, 350 F.3d 534, 535 (6th Cir.2003); United States v. Garcia, 339 F.3d 116, 117 (2d Cir.2003); United States v. Lampazianie, 251 F.3d 519, 526 (5th Cir.2001). Mr. Rogers' situation differs from that of other instances of waiver by a failure to preserve through Rule 11(a)(2); he......
-
Flores-Diaz v. U.S.
...a strong presumption of verity. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir.2001). Indeed, the Fifth Circuit affords "great weight to the defendant's statements at the plea colloquy." United State......