U.S. v. Maher

• Decision Date: 25 March 1997
• Docket Number: D,Nos. 982,947 and 1116,s. 982
• Citation: 108 F.3d 1513
• Parties: UNITED STATES of America, Appellee, v. Robert MAHER, aka "Bob M.", Peter Mancusi, Andrew Giordano, Defendants-Appellants. ockets 96-1193, 96-1286 and 96-1458.
• Court: U.S. Court of Appeals — Second Circuit

Page 1513

108 F.3d 1513

65 USLW 2652

UNITED STATES of America, Appellee, v. Robert MAHER, aka "Bob M.", Peter Mancusi, Andrew Giordano Defendants-Appellants.

Nos. 982, 947 and 1116, Dockets 96-1193, 96-1286 and 96-1458.

United States Court of Appeals Second Circuit.

Argued Jan. 22, 1997.

Decided March 25, 1997.

Robert E. Rice, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Rose A. Gill, Marian W. Payson, Assistant United States Attorneys, New York City, on the brief), for Appellee.

Steven Jay Harfenist, Bayside, NY (Friedman & Harfenist, Bayside, NY, on the brief), for Defendant-Appellant Robert Maher.

J. Jeffrey Weisenfeld, New York City, for Defendant-Appellant Peter Mancusi.

David I. Schoen, New York City, for Defendant-Appellant Andrew Giordano.

Before: KEARSE and JACOBS, Circuit Judges, and GLEESON, District Judge ^*.

KEARSE, Circuit Judge:

Defendants Robert Maher, Peter Mancusi, and Andrew Giordano appeal from judgments of conviction entered in the United States District Court for the Southern District of New York following their pleas of guilty before Louis L. Stanton, Judge, to charges of conspiring to launder money in violation of 18 U.S.C. § 371 (1994), and money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and (f) (1994) and 18 U.S.C. § 2 (1994). Maher was sentenced principally to 135 months' imprisonment, to be followed by three years of supervised release; Mancusi was sentenced principally to 108 months' imprisonment, to be followed by two years of supervised release; Giordano was sentenced principally to 151 months' imprisonment, to be followed by three years of supervised release. In addition, pursuant to 18 U.S.C. §§ 982(a)(1) and (b)(1)(A) (1994), each defendant was ordered to forfeit his respective interest in $7,000,293.15 in laundered money, the proceeds of narcotics trafficking. On appeal, defendants contend chiefly that the district court erred in accepting their guilty pleas or in refusing to allow them to withdraw those pleas. Mancusi and Giordano also challenge their sentences. Finding no merit in defendants' challenges to their pleas, and finding that the sentencing challenges have been waived, we affirm the judgments.

I. BACKGROUND

The present proceedings arise out of a 59-count indictment that charged each defendant with, inter alia, laundering, on 14 specified occasions, a total of approximately $7,000,293.15 derived from narcotics trafficking, knowing that the money represented the proceeds of some form of unlawful activity and intending to conceal the source, location, or ownership of the money, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and (f) and 18 U.S.C. § 2 (count 2); and with conspiring to do so, in violation of 18 U.S.C. § 371 (count 1); and seeking forfeiture of the $7,000,293.15 (count 59). The indictment also alleged numerous counts of other money laundering offenses, as well as failure to file currency reports, and interstate and foreign travel in aid of racketeering activity.

The government contended that the laundered money was the proceeds of narcotics trafficking conducted by an international conspiracy that included Thongchai Sanguandikul, a resident of Thailand, and Albert Castagnola, a resident of Pennsylvania. A jury trial began on October 23, 1995, and continued for two weeks. The 25 witnesses called by the government included private citizens from the United States and Asia, law enforcement agents, and Castagnola. The proof at trial, taken in the light most favorable to the government, showed the following.

A. The Trial Evidence

In the late 1980s, Sanguandikul was a foreign supplier of large quantities of heroin imported into the United States and Mexico. Raphael Santana, a buyer, arranged for payment by having Castagnola transfer money by wire to a Hong Kong bank account; the money was then transferred to the Shun Lee Company in Bangkok, Thailand, from which it was accessible to Sanguandikul. In 1989, however, Castagnola was arrested; he pleaded guilty to conspiring to import heroin and to money laundering, and he agreed to cooperate with the government.

After Castagnola was arrested, Sanguandikul traveled to New York City, where defendants were located, and defendants soon began to deposit hundreds of thousands of dollars into Hong Kong bank accounts controlled by Sanguandikul. The evidence as to defendants' activities, which included testimony from employees of banks and other companies whose services were used, testimony from customs agents and other law enforcement officials, and records seized from offices shared by Giordano and Maher and from their respective homes, included the following.

First, Maher began delivering hundreds of thousands of dollars in cash to Giordano. Giordano in turn delivered hundreds of thousands of dollars to Mancusi. Giordano and Mancusi, along with their sons and Giordano's employees, converted large sums of cash from small-denomination bills to $50 and $100 bills at New York City area banks. Mancusi, charging part of his travel expenses to an account maintained by Giordano, proceeded to make 14 trips to Hong Kong, carrying cash, mostly in $100 bills, which he deposited there in accounts controlled by Sanguandikul. The amounts ranged from $179,673 to $1,047,324 and totaled more than $7 million. To demonstrate the furtive nature of these actions, the government showed that, although Mancusi in 1985 had filed a currency report when he traveled to Liberia carrying $44,750, on none of his Hong Kong trips did he file the required reports that he was transporting more than $10,000 out of the United States.

Mancusi's deposits in Hong Kong were closely monitored by Sanguandikul, who would then arrange for their transfer to the Shun Lee Company. Law enforcement agents found copies of telefaxes sent from offices shared by Giordano and Maher and from Giordano's home to Sanguandikul, who, according to Castagnola's testimony, was also known as "Joe." In the Giordano-Maher offices the agents also found telephone and pager numbers in Bangkok for "Mr. Joe"; and there was evidence that Maher had sent packages, bearing a false return address, to "Joe" in Bangkok. Maher's packages were sent to a Bangkok hair salon at which Sanguandikul's wife was a hairdresser; in a document filed with the Thai government, Sanguandikul had given the salon's address as his own.

Sanguandikul was eventually arrested in Hong Kong and extradited to the United States, where he was tried for and convicted of conspiracy to import heroin.

B. The Pleas of Guilty and the Attempts To Withdraw Those Pleas

On November 6, 1995, after two weeks of trial at which the government had presented evidence, including that summarized above, through the testimony of 25 of its 26 scheduled witnesses, defendants' attorneys approached the government about changing defendants' pleas to guilty. After a recess granted by the court, the defendants signed agreements on that day agreeing, inter alia, to plead guilty to counts 1 (conspiracy), 2 (money laundering), and 59 (forfeiture); in return, the government agreed, inter alia, to move to dismiss the remaining counts. As discussed in Part II.E. below, in their respective plea agreements defendants entered into various stipulations as to sentencing. As discussed in Parts II.A. and B. below, the district court conducted individual plea inquiries pursuant to Rule 11 of the Federal Rules of Criminal Procedure and thereafter accepted the guilty pleas of all three defendants.

On April 15, 1996, Mancusi, who was scheduled to be sentenced on April 24, moved to withdraw his plea of guilty. Represented by new counsel, he argued principally that the evidence the government had presented at trial was insufficient to establish his guilt and that the assistance of his former counsel in advising him as to the strength of the government's case had been ineffective. The district court denied the motion, stating, inter alia, that

[a] rational juror would have been hard pressed to avoid finding that the money Mancusi carried to Hong Kong was proceeds from narcotics trafficking. The exchange of small denomination bills (which are used in street-level narcotics transactions) for larger ones, the physical transportation of the money to Hong Kong rather than a more easily traced method of transfer, Giordano and Maher's contact with Sanguandikul, Mancusi's repeated receipt of large cash amounts from Giordano, and his failure to file currency reports all but compel the inference that the money was proceeds of narcotics trafficking.

Memorandum Endorsement, dated April 23, 1996, at 2 (emphasis added). The court further concluded that the evidence itself showed that Mancusi's counsel's advice that the government had presented a strong case was not ineffective assistance.

On May 22, 1996, Giordano, who was scheduled to be sentenced on June 25, similarly moved to withdraw his plea of guilty. Likewise represented by new counsel, he argued principally that he was actually innocent because in fact Mancusi had received the funds in question in Hong Kong from Korean investors for a project in Liberia. One of the supporting affidavits submitted by Giordano was an extensive affidavit from Mancusi dated May 20, 1996, describing his own and Giordano's innocence. (Mancusi had not submitted such an affidavit in support of his motion to withdraw his own plea, and by May 20 he had been sentenced.) Giordano argued that there was no adequate factual basis for his plea, that he had not knowingly and voluntarily entered into his plea agreement because he did not understand it, and that his former counsel had rendered ineffective assistance in advising him to plead guilty. He also claimed that counsel had coerced him to plead guilty by demanding more money to continue with the trial.

The district court denied Giordano's motion to withdraw his plea, finding, inter...