U.S. v. Pavlico

• Decision Date: 23 March 1992
• Docket Number: No. 90-6629,90-6629
• Citation: 961 F.2d 440
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph J. PAVLICO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 440

961 F.2d 440

UNITED STATES of America, Plaintiff-Appellee, v. Joseph J. PAVLICO, Defendant-Appellant.

No. 90-6629.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 3, 1991.

Decided Feb. 28, 1992.

As Amended March 23, 1992.

Victoria B. Eiger, New York City, argued (Alan M. Dershowitz and Claudia M. Marbach, Cambridge, Mass., on brief), for defendant-appellant.

Max Oliver Cogburn, Jr., Asst. U.S. Atty., Asheville, N.C., argued (Thomas J. Ashcraft, U.S. Atty., on brief), for plaintiff-appellee.

Before WIDENER, WILKINSON, and WILKINS, Circuit Judges.

OPINION

WIDENER, Circuit Judge:

Joseph J. Pavlico appeals from an order of the United States District Court for the Western District of North Carolina denying his Fed.R.Crim.P. 35(a) motion challenging the legality of the sentence that court imposed upon him following convictions under the federal false statements and mail fraud statutes, 18 U.S.C. §§ 1001, 1341. Pavlico claims (1) that the district court improperly considered the perjurious trial testimony of himself and his wife in fixing his sentence; (2) that the district court took personal offense at certain testimony of Pavlico's wife, thereby improperly affecting the sentencing decision; and (3) that his sentence is so disproportionate to the culpability of his conduct as to violate the Eighth Amendment's prohibition against cruel and unusual punishment. Treating Pavlico's action as a motion to vacate sentence under 28 U.S.C. § 2255, we find these claims to be without merit, and accordingly we affirm the judgment of the district court.

I

An understanding of the present appeal requires a brief discussion of the two separate criminal proceedings that arose out of Pavlico's conduct. Both of Pavlico's federal criminal prosecutions were the result of his involvement, along with his associate and co-defendant Arthur Jacoby, in a fraudulent investment scheme known as Financial and Business Services, Inc. (FBS).

Though Jacoby was the sole founder of FBS, Pavlico, through his efforts as an investment salesman and later supervisor of several other salesmen, enabled the fraudulent enterprise to realize its full potential. Jacoby and his wife were the sole stockholders of FBS. FBS promised investors a sixteen percent return on investments that were supposed to have been reinvested by FBS in second mortgages. However, FBS invested very little of these funds in second mortgages. Rather, investors' money was funneled into other companies owned by Jacoby and otherwise misappropriated; in effect FBS became a giant pyramid scheme. FBS's victims invested sums ranging from $5000 to $200,000. When FBS finally declared bankruptcy in 1985, it owed some 500 investors a total of $6.8 million, with $6 million unaccounted for.

In July, 1986, Pavlico was tried and convicted in the Western District of North Carolina on nine counts of violating the Currency Transaction Reporting Act, 31 U.S.C. § 5311 et seq., and one count of conspiring to violate the false statement provisions of 18 U.S.C. § 1001. (This will be referred to as the Reporting Act trial.) See United States v. Arthur Jacoby and Joseph Pavlico, 836 F.2d 547, 548 (4th Cir.1987) (unpublished). Pavlico did not testify in his defense at that trial, a fact that became an issue in his second trial and thus in the present appeal. Pavlico was sentenced to four years in prison in the Reporting Act trial. Jacoby was convicted on similar charges and was sentenced to 15 years in prison.

Following his Reporting Act trial convictions, Pavlico and Jacoby were indicted again in the Western District of North Carolina, this time on multiple counts of violation of the federal mail fraud and false statements statutes, 18 U.S.C. §§ 1001, 1341. It is this case we now consider. At this trial Pavlico elected to testify in his defense. During his direct examination, Pavlico suggested that he "never had a chance to tell any part of [his] story to the Courts," and that his counsel during his first trial had convinced him, against his wishes, not to take the stand. Pavlico maintained again during cross-examination that his previous trial counsel had "kept him off the stand," in part by assuring Pavlico that he would not be convicted and that there thus was no need for his testimony. Moreover, Pavlico's testimony is replete with statements which, if believed, would tend to exculpate him from the charges of fraud. See United States v. Pavlico, 741 F.Supp. 582, 585-86 (W.D.N.C.1990); see also, e.g., App. 113, 138-39, 143, 147, 228-40.

Following Pavlico's testimony, the government was permitted to call to the stand the attorney who represented Pavlico during the Reporting Act trial, Mr. George Laughrun. The sole purpose of Laughrun's testimony was to rebut Pavlico's assertion that his lawyer had somehow prevented him from testifying at the Reporting Act trial. Laughrun denied both that he had in any way coerced Pavlico into declining to testify, and he also denied that he had ever told Pavlico that, in his opinion, there was no way Pavlico could be convicted of the charges at the Reporting Act trial. Laughrun testified that he did advise Pavlico that, in his opinion, it was in Pavlico's best interest not to take the stand. Laughrun made clear, however, that Pavlico was aware that the ultimate decision whether to testify remained with Pavlico.

The issue of Pavlico's decision not to testify at his first trial came up later, this time during the testimony of Pavlico's wife, Michelle. Pavlico apparently called his wife solely to rebut attorney Laughrun's testimony. Mrs. Pavlico testified that Laughrun not only had urged her husband not to testify at the Reporting Act trial, but also that Laughrun told the Pavlicos that he had spoken with the district judge, and that the judge believed that Pavlico would be acquitted, thus making Pavlico's testimony unnecessary.

Ultimately, the jury convicted Pavlico of nine counts of mail fraud and one count of making false statements to the Securities and Exchange Commission. Jacoby for his part was convicted of 23 counts of mail fraud and one count of making false statements to the S.E.C. The court proceeded to sentence Pavlico to a 40-year term of imprisonment, to run consecutively to the four-year sentence he had received in the Reporting Act trial. Jacoby received a prison term of 20 years, also to be served consecutively to his prior sentence. As we shall discuss more fully below, at sentencing the district judge noted his belief that both Joseph and Michelle Pavlico had perjured themselves when they testified at trial. This comment of the district judge is the basis of some of Pavlico's present claims. Before examining those claims, however, we must address a procedural matter that has come to our attention.

II

As we have noted, Pavlico raised the claims at issue today through the use of a motion which he labeled under Fed.R.Crim.P. 35(a). ¹ Rule 35 provides for three different types of challenges to a criminal sentence, each aimed at a different type of defect. See generally 3 C. Wright, Federal Practice and Procedure: Criminal 2d §§ 582-86 (1982). First, a convicted defendant may move the court to correct an "illegal sentence" at any time following the conviction. Second, the court "may correct a sentence imposed in an illegal manner," but only upon motion made within 120 days of the occurrence of a listed triggering event; here the relevant event is the "receipt by the court of a mandate issued upon affirmance of the judgment [of conviction]." Third, the court may entertain a motion for reduction of sentence, which motion also is available only within the 120 day period. The time limits obtaining to the latter two motions have been held to be jurisdictional. United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979).

The district court received this court's mandate affirming Pavlico's conviction on August 14, 1989. Pavlico, 741 F.Supp. at 583. Pavlico filed the instant pro se motion on June 26, 1990, greatly in excess of the 120-day limit. Thus, Pavlico's motion was proper under Rule 35 only if his challenges are to an "illegal sentence" under Rule 35(a) so that the time limit does not apply at all. We find that Pavlico's is not an "illegal sentence" and thus that this case may not be maintained under Rule 35(a).

The Supreme Court has limited the types of defects that will render a sentence "illegal" for purposes of attack without regard to time under Rule 35(a). "Sentences subject to correction under [Rule 35(a) ] are those that the judgment of conviction did not authorize." United States v. Morgan, 346 U.S. 502, 506, 74 S.Ct. 247, 250, 98 L.Ed. 248 (1954); see also Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962) (rejecting Rule 35(a) challenge where "[t]he punishment meted out was not in excess of that prescribed by the relevant statutes, multiple terms were not imposed for the same offense, nor were the terms of the sentence itself legally or constitutionally invalid in any other respect."). The clear import of these cases, as the treatise writers have recognized, is that a Rule 35(a) motion challenging an illegal sentence may be brought only when the sentence imposed exceeds the statutorily-authorized limits, violates the Double Jeopardy Clause, or is ambiguous or internally contradictory. See C. Wright, supra, at § 582; 8A Moore's Federal Practice 2d p 35.07 (1991).

Pavlico's sentence was not illegal within the meaning of Rule 35(a). His 40-year prison term for conviction on nine counts of mail fraud and one count of making false statements falls well within the statutory range, see 18 U.S.C. §§ 1001, 1341, and his other challenges simply do not fall within the narrow category of those which may be brought at any time under Rule 35(a). We express no opinion as to whether this motion is in fact a challenge to a legal sentence illegally imposed or merely a ...