U.S. v. West

• Decision Date: 10 December 2004
• Docket Number: No. 03-3149.,03-3149.
• Citation: 392 F.3d 450
• Parties: UNITED STATES of America, Appellee v. Jake WEST, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

392 F.3d 450

UNITED STATES of America, Appellee v. Jake WEST, Appellant

No. 03-3149.

United States Court of Appeals, District of Columbia Circuit.

Argued October 14, 2004.

Decided December 10, 2004.

Appeals from the United States District Court for the District of Columbia. (No. 01cr00292-01) (No. 02cr00218-02).

Jack R. Ormes argued the cause and filed the briefs for appellant. Phillis Payne entered an appearance.

Suzanne Grealy Curt, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, and John R. Fisher, Roy W. McLeese, III, and Steven W. Pelak, Assistant U.S. Attorneys. Thomas J. Tourish, Jr., Assistant U.S. Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, and HENDERSON and ROBERTS, Circuit Judges.

ROBERTS, Circuit Judge.

Appellant Jake West pled guilty to two charges related to the embezzlement of funds from a union pension fund. He later asked the district court to allow him to withdraw his plea; the court refused. West now urges us to reverse that ruling, and also presents several challenges to his sentence. We find that the district court did not abuse its discretion in denying West's motion to withdraw his plea. With regard to the sentence, we decide that under the plea agreement West has waived the right to appeal. Since he offers no reasons why we should not treat the waiver as valid, we honor it and uphold the sentence.

I.

Jake West is the former president of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers (IWU). In December 2001, the government charged him in a 51-count indictment with conspiracy, embezzlement from the IWU, making false statements in Department of Labor (DOL) reports, and obstruction of justice. The indictment alleged that West had appropriated union funds for his personal benefit and had covered up his activities by filing false and misleading reports with the DOL. A second indictment, filed in August 2002, charged both West and a former IWU General Secretary, LeRoy Worley, with conspiracy, embezzlement from the union, and embezzlement from the union's pension fund. According to the government, West arranged to have Worley paid a full pension from the IWU's retirement plan even though he did not meet the applicable requirements; Worley, in exchange, dropped his bid to challenge West for presidency of the union.

Trial on the charges contained in the second indictment began with jury selection on October 15, 2002. Ten days later the jury was sworn, and West changed his mind about going to trial. He instead agreed to plead guilty to embezzlement from a pension fund, 18 U.S.C. § 664, and to one count of making a false statement in a DOL report, 29 U.S.C. § 439(b). In return, the government dismissed all remaining charges against him.¹

The plea agreement that West signed includes an integration clause providing that "[t]he terms of this written Agreement constitute the entire plea offer and agreement in this matter." Appellee's Record Material (RM) at 7 (Plea Agreement). The agreement twice recites that no "promises, conditions, understandings, or agreements" have been made or entered into by the government other than those in the agreement itself. Id. at 8. The government "reserves allocution or its right to speak at Mr. West's sentencing," id. at 5, and the government and West "make no promises to one another and make no agreement with one another with regard to defendant West's sentencing in these matters," id. at 6. In addition, the agreement states that "West understands that his sentence will be imposed in accordance with the United States Sentencing Guidelines." Id. at 6. Finally, under the agreement West explicitly waives the right to appeal his sentence unless the court sentences him to a prison term in excess of the statutory maximum or departs upward beyond the Sentencing Guidelines range. Id. at 6-7.

The district court conducted a hearing to ensure that West was aware of the terms of the agreement and that he was entering his plea knowingly and voluntarily. West was represented at this hearing by counsel. With respect to the integration clause, the court asked West directly, "Other than the promises in this plea agreement, are there any other promises that have induced ... you [to] plead guilty?" West responded, "no." Plea Hr'g Tr. at 20.

At the plea hearing, the government also proffered the factual basis for its charges against West. As trustee of the IWU's retirement plan, West was familiar with plan provisions setting out criteria for receiving benefits, including one that restricts normal pension benefits to persons 60 years of age or older. In December 1998, West arranged for Worley, who was younger than 60 at the time, to receive a normal pension. The apparent purpose of this maneuver was to persuade Worley to retire early and thus remove a rival in the next election for IWU president. By the government's calculation, Worley received $59,380 in excess pension benefits between December 1998 and November 1999.

As to the false statement count, the government's proffer states that in December 1997 West signed and declared true and correct a Form LM-2 Labor Organization Annual Report that was submitted to DOL. The LM-2 stated that disbursements to the IWU president, other than salary and expense allowance payments, totaled $8,556; the true figure, which West knew, was close to $98,500. Disbursements to Worley and three other IWU officials were also understated on the 1997 LM-2 by amounts ranging from $25,000 to $70,000. According to the proffer, the union's LM-2 filings for 1995 and 1996 also underreported the true amounts of disbursements to the president by "more than $70,000 and $80,000, respectively." Proffer of Facts at 6.

On August 19, 2003, as the date of West's sentencing approached, the probation office issued its final presentence investigation report. The report calculated West's sentence under the Sentencing Guidelines. It first assigned West a base offense level of four. Enhancements were then applied for several aspects of West's crimes: twelve points for the loss associated with his embezzlement, which exceeded $500,000, U.S.S.G. § 2B1.1 (1998); four points for being the organizer or leader of the embezzlement, § 3B1.1(a); two points for abusing a position of trust, § 3B1.3; two points for involvement in an offense of more than minimal planning, § 2B1.1(b)(4)(A); and two points for obstructing justice by providing false information to the grand jury, § 3C1.1. The total offense level was therefore 26. For criminal history category I, this yielded a sentence under the relevant Guidelines of 63 to 78 months. Because the statutory maximum for violations of 18 U.S.C. § 664 is five years and for violations of 29 U.S.C. § 439(b) one year, the longest sentence West could receive was 72 months.

The government filed its sentencing memorandum in late August 2003. The memorandum agreed with the presentence report "in all material aspects" and requested that West receive a sentence of 63 to 72 months in prison and be ordered to pay restitution. Sentencing Memorandum at 2. It also offered an extensive view of West's criminal activity. West was revealed as not an especially frugal union president. He spent, by the government's calculation, more than $51,000 in IWU funds on dinners, golf, and items for his home in Virginia. He allowed relatives to dine and go shopping in Washington, D.C., at the union's expense. He had the union pay for golf vacations in Palm Springs, California, for both his personal waiter and his tailor. These expenses went unreported in the union's LM-2 filings.

West also had other top officials pay his tabs so as to conceal the true amount of his own expenses. An opponent had used West's reported disbursements against him in the 1991 campaign for IWU president; West hoped to avoid a repeat of this by shifting reported expenses to lower-ranking officials. In many cases, these officials did not report these expenses at all and, according to the memorandum, were given license to spend the union's money freely themselves. The government argued that all these disbursements — both those unreported and those attributed to other officials — should be treated as relevant conduct for purposes of calculating West's sentence.

The memorandum made similar contentions with respect to West's deal with Worley. In addition to the $59,384 embezzled from the retirement plan, West arranged to have $74,620 improperly paid to Worley from the union's supplemental pension plan. At West's direction, Worley also continued to receive a salary and expense allowance from IWU — amounting to about $217,000 — for more than a year after his retirement. In all, the government calculated that conduct relevant to West's offense resulted in a loss of at least $555,000. It is also significant that, according to the government's memorandum, West collaborated in almost every aspect of these schemes with IWU General Counsel Victor Van Bourg.

On September 22, 2003, almost a year after entering his guilty plea, West moved the district court to allow his plea to be withdrawn or, alternatively, to order specific performance of the plea agreement. In the event the court was inclined to deny these requests, he asked that it hold an evidentiary hearing to consider the evidence against him. He advanced two arguments in support of the motion. First, he claimed that the prosecutor who negotiated the plea agreement had assured him that, in West's phrasing, "there would be no further reference" to the dropped charges. RM at 18 (West Declaration). As he saw it, the government was now reneging on this promise by, in effect, re-introducing these charges at sentencing. Second, West argued that he did not know that his conduct as union president was illegal because he relied on attorney Van Bourg's assurances that — again, West's words — "all was proper and...