U.S. v. Peleti

• Decision Date: 04 August 2009
• Docket Number: No. 08-1507.,08-1507.
• Citation: 576 F.3d 377
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peleti PELETI, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

576 F.3d 377

UNITED STATES of America, Plaintiff-Appellee, v. Peleti PELETI, Jr., Defendant-Appellant.

No. 08-1507.

United States Court of Appeals, Seventh Circuit.

Argued December 3, 2008.

Decided August 4, 2009.

Jeffrey B. Lang (argued), Attorney, Office of the United States Attorney, Rock Island, IL, Joseph H. Hartzler, Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Paul L. Alaga (argued), Romero & Alaga, San Fransisco, CA, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and MANION and WOOD, Circuit Judges.

WOOD, Circuit Judge.

During the time he was stationed in Kuwait, Peleti Peleti, Jr., then a Chief Warrant Officer in the U.S. Army, accepted a bag containing $50,000 from a local contractor who sought Peleti's help in obtaining a contract to supply flatware and paper products to the U.S. Army in Iraq. Peleti pleaded guilty to bribery and smuggling bulk cash into the United States, but he later changed his mind and tried to persuade the district court to allow him to withdraw his guilty plea. We conclude that the district court did not abuse its discretion by denying the motion; the factual basis for the bribery plea establishes that Peleti committed bribery, Peleti received effective assistance of counsel, and any ineffective assistance did not prejudice Peleti. We therefore affirm.

I

In 2005, Peleti served as the Army Theater Food Service Advisor for Kuwait, Iraq, and Afghanistan. Stationed in Kuwait, Peleti advised his superiors on the food service program, monitored existing food service contracts, and helped develop new contracts. One of the suppliers Peleti worked with was Gulf Catering Company. Peleti developed a relationship with the company's Chief Executive Officer, Ibraham. (Whether Ibraham is the CEO's first or last name is unclear from the record; we therefore refer to him simply as Ibraham and adopt the spelling used by Peleti in his written statement.)

Ibraham sought a contract with the U.S. Army to supply paper products and plastic flatware in Iraq. Peleti recommended to his superiors that the U.S. Army award the contract, but his superiors informed Peleti that a 2001 contract with Kellogg, Brown & Root Services, Inc., prohibited the U.S. Army from contracting with another company. Peleti relayed this information to Ibraham and told him that "there was no way" Gulf Catering Company could get the desired contract. Peleti also told Ibraham that he would be leaving his position in Kuwait in December 2005.

Before Peleti left Kuwait, however, he and Ibraham met privately in Ibraham's office. Our knowledge of what occurred during that meeting comes from a written statement Peleti gave to investigators on July 25, 2006, and Peleti's admissions to the district court during his plea colloquy. Peleti's appeal accepts these statements as true, and so we do the same.

The meeting occurred in the first week of December 2005, less than two weeks before Peleti left Kuwait on December 14, 2005. At the meeting, Peleti told Ibraham several times that Gulf Catering Company would not receive the contract for paper products and plastic flatware. Ibraham listened, but persisted in asking Peleti, "Well, see if you can continue." Ibraham then gave Peleti a bag containing $50,000. Peleti accepted the money.

Peleti never told Ibraham that Peleti could secure the contract for Gulf Catering Company, but at the same time, Peleti knew that Ibraham gave him the money in order to influence Peleti to do what he could to get the contract for Ibraham. This is clear from a question the district court asked Peleti: "At the time you received the money, actually got it in your hand from him, was it your belief that he was giving this to you for the purpose of influencing your official actions?" Peleti answered, "Yes, Your Honor."

Peleti maintained contact with Ibraham after Peleti left Kuwait. The district court asked Peleti if he had phone calls with Ibraham after receiving the $50,000 and Peleti answered yes. He referred to "conversations" with Ibraham and stated that during one of those conversations he told Ibraham that Gulf Catering Company still could not receive the contract.

The government charged Peleti with receipt of a bribe by a public official, in violation of 18 U.S.C. § 201(b)(2)(A), smuggling bulk cash into the United States, in violation of 31 U.S.C. § 5332, and criminal forfeiture. On February 9, 2007, while represented by attorney Donovan Robertson, Peleti waived indictment and pleaded guilty to all three counts.

After the district court accepted the guilty plea, but before sentencing, Peleti replaced Robertson with his current attorneys. Peleti then filed a motion under FED. R. CRIM. P. 11(d)(2)(B) to withdraw his guilty plea. That motion offered two "fair and just reasons" to withdraw the plea: (1) there was no factual basis for the guilty plea to bribery, as required by FED. R.CRIM.P. 11(b)(3); and (2) the plea was involuntary because Peleti received ineffective assistance of counsel—specifically, Robertson failed to consider whether Peleti committed the offense of accepting an illegal gratuity rather than bribery and failed to investigate the charges.

The district court denied Peleti's motion to withdraw his guilty plea. It found that Peleti, by accepting the money during a private meeting with Ibraham after Ibraham asked Peleti, "Well, see if you can continue," conveyed to Ibraham that the money would influence Peleti's official actions. The court explained its ruling as follows:

[I]t seems very clear to me that when he took that money, he was in effect saying to that guy, "In spite of what I've said concerning this situation, you're asking me to continue seeing what I can do to try to influence this decision and I'm accepting this money under those conditions." That seems to me to be a reasonable inference.

Because the facts show that Peleti represented to Ibraham that the money would influence his official action, the court reasoned, Peleti's guilty plea had a basis in fact.

The district court considered the ineffective assistance claim a closer call, but it ultimately held that Robertson provided adequate assistance for both the bribery count and the smuggling count. The court heard testimony from Robertson and Peleti, but it rejected Peleti's testimony as "totally lacking in credibility" while accepting Robertson's testimony as credible. Because Peleti does not challenge this finding on appeal, the factual summary below is based on Robertson's account.

By the time Robertson was appointed to represent Peleti in August 2006, Peleti had already given his written statement to investigators. In that statement, Peleti makes several damning admissions, including the following: he experienced "numerous approaches from the contractors themselves for Bribery for monies and Gifts"; he received gifts, including "approximately $8,000 [sic] Iraqi Dinar in exchange for [a] new contract"; he met with Ibraham to discuss a flatware and paper product contract and developed a relationship with Ibraham; he received $50,000 from Ibraham in cash; he stored the cash in his barracks and spent $30,000 on credit card bills, $10,000 on jewelry for his wife, and the rest on vacations and his family. In addition, Peleti expressed regret at his actions and stated that he "will fully cooperate with the investigation at hand." Robertson considered this statement powerful evidence against Peleti, and the district court agreed. Robertson also learned from the government that it possessed a copy of a currency card signed by Peleti upon his return to the United States on December 14, 2005, on which Peleti swears to bringing less than $10,000 into the United States. The government also had a credit card statement showing a $15,000 payment to Peleti's wife's credit card on December 31, 2005.

Robertson had several meetings with Peleti. During these meetings, Peleti affirmed the written statement and said that he wanted to continue in that "mode." Robertson considered whether the statement could be suppressed, but saw no legal basis for such a motion. (Peleti does not question this conclusion.) Peleti admitted to Robertson that he carried about $40,000 in cash into the United States¹ and indicated that when he took the money from Ibraham, he knew Ibraham intended the money to influence an official action— specifically, to influence Peleti to do what he could to get Ibraham the food service contract.

After speaking with Peleti, Robertson read the bribery statute and the Seventh Circuit model jury instructions for bribery. Those materials, taken together, indicate that a defendant commits bribery if he accepts money knowing that the donor intends the money to influence an official act. Based on his research, his discussions with Peleti, and the written statement, Robertson concluded that Peleti had committed the crimes of bribery and smuggling of cash, and that a jury would likely convict Peleti on both counts. Robertson discussed his evaluation of the facts and the likely outcome of a trial with Peleti and recommended that Peleti plead guilty. Robertson also discussed on at least 15 different occasions the effect of taking the case to trial compared with pleading guilty. He explained to Peleti how a reduction for the acceptance of responsibility would reduce Peleti's sentencing range. In addition, Robertson repeatedly assured Peleti that if Peleti decided to go to trial, Robertson would aggressively represent him.

During the plea hearing, the district court read the charges and portions of the plea agreement to Peleti. It then asked Peleti if he had "fully discussed those charges and the case in general, including any possible defenses that you might have, with Mr. Robertson" and if Peleti was fully satisfied with Robertson's representation and advice. Peleti answered in the affirmative to both questions.

The district court found Robertson's representation...