U.S. v. Signori

• Decision Date: 08 April 1988
• Docket Number: No. 87-1101,87-1101
• Citation: 844 F.2d 635
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerard J. SIGNORI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 635

844 F.2d 635

UNITED STATES of America, Plaintiff-Appellee, v. Jerard J. SIGNORI, Defendant-Appellant.

No. 87-1101.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 12, 1988.

Decided April 8, 1988.

Reginald P. Minn, Minn & Ripley, of counsel, Honolulu, Hawaii, for defendant-appellant.

Daniel Bent, U.S. Atty., John F. Peyton, Jr., Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before ALDISERT ^*, WALLACE and SCHROEDER, Circuit Judges.

ALDISERT, Senior Circuit Judge:

This appeal requires us to decide if the district court abused its discretion in refusing to permit the defendant to withdraw his guilty plea. Should we affirm the district court's refusal, we must then decide whether the sentencing order was invalid as a matter of law because the court gave the probation office authority to specify the exact amount and manner of payment of restitution not to exceed a court-ordered maximum. We will affirm the district court's judgment in all respects.

The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction under 28 U.S.C. Sec. 1291.

I.

Jerard J. Signori appeals from the district court's judgment of conviction and sentence, entered after he pleaded guilty, for mail fraud, 18 U.S.C. Secs. 1341-42, tax evasion, 26 U.S.C. Sec. 7203, and filing false tax documents, 26 U.S.C. Sec. 7206(1). Signori, represented by retained counsel, initially pleaded not guilty, but changed his plea to guilty on the second day of trial pursuant to a plea bargain.

Testimony at the trial began with Mrs. Teressa Black, an elderly widow, who alleged Signori had defrauded her. Black had recovered $83,000 in insurance proceeds when her husband and two sons died. Because she did not feel competent to handle that amount of money, a friend introduced her to Signori, a certified public accountant, for advice. Black said that Signori told her of a new investment opportunity from which she would earn a return of from 20 to 50% in six months. Black gave Signori $10,000 to invest. Several months later, Signori told her that he had a $12,000 check for her as a repayment on the investment. Black never saw the check or received the money. Instead, Signori asked if she would like to make another $10,000 investment, again assuring her that it was safe. Black agreed.

In actuality, Signori had used the first $10,000 as a down payment on a condominium for himself. He used the second $10,000 to buy a motorcycle. A bank employee testified next. She stated that Signori exchanged the first cashier's check he received from Black for another cashier's check payable to him without Black's name on it. A real estate agent testified that Signori gave her this second cashier's check as a down payment on his condominium.

After hearing this highly incriminating testimony, defendant and his counsel entered into plea negotiations with the prosecutor. Signori then announced to the court that he wished to change his plea to guilty as to four counts of the indictment.

At a hearing on the plea agreement, the court asked Signori if he had had ample time to confer with his attorney. Signori replied that he had. In response to the court's next question, Signori said that he was satisfied with his counsel's representation. The court then thoroughly explained to Signori the entire panoply of a defendant's rights at trial, and that Signori would waive those rights by pleading guilty. The court discussed each count to which Signori proposed to plead guilty and asked if the defendant had any questions concerning the charges. Signori said, "No. No, I don't."

The court specifically asked Signori if anyone had threatened him or in any way forced him to change his plea to guilty. Signori answered, "No, no one has threatened me." The court then showed the defendant the written plea agreement and asked the defendant if he had read it, understood it, discussed it with his attorney, and signed it. The defendant answered affirmatively to all those questions. Finally, the court asked Signori if he had any questions at all about the plea agreement. Signori had none.

The defendant again announced his intention to plead guilty and the court began a lengthy process of determining, through questions put to Signori, that a factual basis existed to accept the guilty pleas. The court advised the defendant that it would not accept the guilty pleas if he did not admit guilt. Specifically, the judge told Signori that he would have to admit to obtaining money from Black with the intent to defraud her. Signori admitted he had done that. The court thoroughly reviewed the fraud charge with the defendant, and the defendant admitted every element of the offense. Finally, the court reviewed the tax offenses with the defendant. Again, Signori admitted the offenses and pled guilty.

At the sentencing, the district court granted Signori's motion to discharge his attorney and obtain court-appointed counsel. Upon obtaining new counsel, Signori moved to withdraw his guilty pleas, based on the alleged incompetence and misrepresentations of his original lawyer. Signori argued that his attorney had counseled him that a guilty plea may be withdrawn as of right at any time, notwithstanding a statement in the written plea agreement that there was no absolute right to withdraw the guilty plea. In sum, Signori contended his retained counsel had explained that it was perfectly proper to lie under oath to the judge in order to enter the guilty plea and thereafter change his position to a plea of not guilty with impunity.

The district court denied Signori's motion to withdraw his plea and sentenced him to three years imprisonment for mail fraud, a consecutive one-year term for tax evasion, and a consecutive two-year term for filing false tax documents. The court also ordered Signori to make restitution in the manner provided by the probation department in an amount not to exceed $20,000.

II.

A district court may permit withdrawal of a guilty plea prior to sentencing upon a showing by the defendant of any fair and just reason. Rule 32(d), F.R.Crim.P. It is well-established that a defendant has no right to withdraw his guilty plea, and that a withdrawal motion is committed to the sound discretion of the district court. United States v. Read, 778 F.2d 1437, 1440 (9th Cir.1985), cert. denied, --- U.S. ----, 107 S.Ct. 131, 93 L.Ed.2d 75 (1986); United States v. Castello, 724 F.2d 813, 814 (9th Cir.), cert. denied, 467 U.S. 1254, 104 S.Ct. 3540, 82 L.Ed.2d 844 (1984); United States v. King, 618 F.2d 550, 551 (9th Cir.1980). Moreover, although a motion to withdraw a guilty plea should be freely allowed, Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927); United States v. Vasquez-Velasco, 471 F.2d 294 (9th Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2163, 36 L.Ed.2d 692 (1973), the defendant has the burden on appeal to show that the district court abused its discretion in denying the motion. King, 618 F.2d at 551.

Signori contends on appeal that his guilty plea was invalid due to ineffective assistance of counsel. He also argues that his attorney's affirmative misrepresentations led him to plead guilty under the misapprehension that the plea could be easily withdrawn later and could be utilized to "buy time."

A.

To demonstrate ineffective assistance of counsel, a defendant must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.1986). This test "applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

The Court stated in Hill that in the context of guilty pleas, the first part of the Strickland test is a reiteration of the test for attorney competence set out in the Court's earlier cases dealing with the voluntariness of guilty pleas. Id. at 58, 106 S.Ct. at 370. "The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative causes of action open to the defendant.' " Id. at 56, 106 S.Ct. at 369 (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)); see also United States v. Read, 778 F.2d 1437, 1440 (9th Cir.1985), cert. denied, --- U.S. ----, 107 S.Ct. 131, 93 L.Ed.2d 75 (1986). A defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases. See Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973); McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).

This court has held that the effectiveness of counsel is "a mixed question of law and fact, reviewed de novo." Iaea, 800 F.2d at 864. We also review de novo the district court's determination as to voluntariness. Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 198, 98 L.Ed.2d 150 (1987). However, we will uphold findings of historical or subsidiary facts underlying the court's conclusion of voluntariness unless clearly erroneous. Id.; see also Iaea, 800 F.2d at 864. Whether the defendant subjectively understood the consequences of his guilty plea is an underlying factual issue. Iaea, 800 F.2d at 864.

B.

As evidence of his former attorney's incompetence, Signori points out that the district court had chastised counsel for his "unpreparedness." Br. for appellant at 19. However, following the acceptance of the four guilty pleas, the court stated to...