United States v. Adams

• Citation: 955 F.3d 238
• Decision Date: 07 April 2020
• Docket Number: August Term 2019,No. 18-3650,18-3650
• Parties: UNITED STATES of America, Appellee, v. David M. ADAMS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

955 F.3d 238

UNITED STATES of America, Appellee,

v.David M. ADAMS, Defendant-Appellant.

18-3650

August Term 2019

No. 18-3650

United States Court of Appeals, Second Circuit.

Argued: October 10, 2019

Decided: April 7, 2020

Jeremiah Donovan, Old Saybrook, Connecticut (William T. Koch, Jr., Old Lyme, Connecticut, on the brief), for Defendant-Appellant David M. Adams.

Susan L. Wines, Assistant United States Attorney (Sandra S. Glover, Assistant United States Attorney, on the brief), for John H. Durham, United States Attorney for the District of Connecticut, New Haven, Connecticut, for Appellee United States of America.

Before: Lynch, Lohier, and Sullivan, Circuit Judges.

Richard J. Sullivan, Circuit Judge:

Defendant-Appellant David Adams appeals from a judgment of conviction entered on November 27, 2018, in the United States District Court for the District of Connecticut (Vanessa L. Bryant, Judge ), following his guilty plea to assorted tax offenses, including making and subscribing to a false tax return, tax evasion, and attempting to interfere with the administration of the internal revenue laws. Adams raises six contentions, including that the district court erred in denying his motion to withdraw his guilty plea, in calculating the tax loss for purposes of sentencing, and in imposing an order of restitution that commenced immediately upon his sentencing. We conclude that Adams is correct that the district court lacked authority to require restitution payments to begin immediately following sentencing. In all other respects, however, Adams’s claims are unavailing. We therefore affirm the district court’s judgment as modified.

I. Background

The district court was justified in finding the following facts, based on Adams’s statements under oath during his plea allocution and the facts set forth in the presentence investigation report ("PSR"), which was adopted by the district court without substantial objection from Adams at sentencing. Over the course of at least 14 years, Adams engaged in a concerted campaign to obstruct the IRS’s efforts to collect his delinquent tax payments and to secure overdue tax returns. He lied to and manipulated his accountant, filed extension requests containing false information, claimed to have made payments that he had not made, missed deadlines, lied that checks were in the mail, unjustifiably blamed his accountant for errors and delays, bounced checks, and fraudulently claimed financial distress at times when he had the funds necessary to pay his tax liability, all the while spending lavishly on a lifestyle that included purchasing and leasing multiple luxury vehicles, spending millions to construct a mansion in East Lyme, Connecticut, and staying at upscale hotels.

A grand jury eventually charged Adams in a six-count superseding indictment. Counts One, Three, and Five charged Adams with making and subscribing to false tax returns for the years 2009, 2011, and 2012, in violation of 18 U.S.C. § 2 and 26 U.S.C. § 7206(1). Counts Two and Four charged Adams with tax evasion in 2011 and 2012, in violation of 18 U.S.C. § 2 and 26 U.S.C. § 7201. Count Six charged Adams with attempting to interfere with the administration of the internal revenue laws, in violation of 18 U.S.C. § 2 and 26 U.S.C. § 7212(a).

Adams pleaded guilty to the superseding indictment on October 10, 2017. During the change of plea hearing, the government informed Adams in open court about the potential terms of imprisonment, fines, and restitution that he faced as a result of the charges. For Counts One, Three, and Five – the making and subscribing to false tax return offenses – the government advised Adams that "[e]ach ... count[ ] carrie[d] with it a statutory maximum term of imprisonment of up to three years; ... and under the alternative minimum fine provision, a fine of the greatest of twice the gross gain to the defendant resulting from the offense, twice the gross loss resulting from the offense, or $100,000." Gov’t App’x at 136. The government also stated that it would "be seeking restitution on those counts." Id. For Counts Two and Four – the tax evasion offenses – the government informed Adams that each "count carrie[d] with it a maximum statutory term of imprisonment of up to five years; ... [and] again, the alternative minimum fine provision as [the government] recited for the false return counts." Id. at 137. For Count Six – the attempt to interfere with the administration of the internal revenue laws – the government explained that Adams faced "a potential term of imprisonment of up to three years [and] a $5,000 fine." Id. During the hearing, Adams represented under oath that he understood the "potential penalties and fines" and further stated that he had discussed them with his counsel. Id. at 138. He made similar representations in his written Petition to Enter a Plea of Guilty, which he executed prior to the plea hearing. Id. at 391 ("I fully understand the sentence which the Court may impose, including the minimum and maximum penalty, the term of imprisonment, fine, and term of supervised release, and I fully understand the Court’s obligation to impose a special assessment and the Court’s authority to order restitution and/or forfeiture, if applicable.").

Several months later, the Probation Office issued a PSR that reiterated these maximum penalties and fines. It twice listed the maximum imprisonment terms for each of the six counts, and calculated the sentencing range under the United States Sentencing Guidelines ("U.S.S.G.") to be 78 to 97 months. It also advised that the maximum fine for each of Counts One through Five was $100,000, while the maximum fine for Count Six was $5000. During the sentencing proceeding that took place on November 27, 2018, Adams acknowledged that he had an opportunity to read the PSR and raised no objections to it.

The district court sentenced Adams principally to 90 months’ imprisonment and $4,872,172.91 in restitution payable to the IRS. On appeal, Adams asserts six separate challenges to his conviction and sentencing. We address each contention in turn.

II. Adams Is Not Entitled to Withdraw His Guilty Plea

Adams argues that he should be "permitted to withdraw his plea" because the district court violated Rule 11 when it (1) failed to apprise him that the sentences for his convictions could run consecutively, (2) misinformed him about the maximum fine he faced, and (3) incorrectly represented the scope of restitution. Adams’s Br. at 21; see also id. at 9–16. Though he acknowledges that "Rule 11 deficiencies frequently do not result in reversals because the complained-of error is frequently hypertechnical and the appellant is unable to prove harm," he counters that these failings were "whopper[s]" and thus "[t]he harm is obvious" – he "pleaded guilty thinking that he could be sentenced to a maximum of five years" and "would not have pleaded guilty if he knew that he could be sentenced to more than five years." Id. at 20.

Because Adams did not object to the purported Rule 11 violations before the district court, we review them for plain error. United States v. Espinal , 634 F.3d 655, 658 (2d Cir. 2011). "In the context of a Rule 11 violation, to show plain error, a defendant must establish that the violation affected substantial rights and that there is ‘a reasonable probability that, but for the error, he would not have entered the plea.’ " United States v. Vaval , 404 F.3d 144, 151 (2d Cir. 2005) (quoting United States v. Dominguez Benitez , 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) ).

Rule 11 requires that, "[b]efore the court accepts a plea of guilty ..., the court must inform the defendant of, and determine that the defendant understands ... any maximum possible penalty, including imprisonment, fine, and term of supervised release[,] ... [and] the court’s authority to order restitution." Fed. R. Crim. P. 11(b). "A variance from the requirements of [ Rule 11 ] is harmless error if it does not affect substantial rights." Fed. R. Crim. P. 11(h).

Adams has not established plain error under Rule 11. As an initial matter, contrary to Adams’s interpretation of Rule 11, a district court’s failure to advise a defendant that sentences could run consecutively does not render a guilty plea invalid. See United States v. Vermeulen , 436 F.2d 72, 75 (2d Cir. 1970) (finding that the district court fulfilled its Rule 11 obligations where it informed defendant of the terms of imprisonment he could receive on each of two counts despite not using the words "consecutive" or "consecutively"); see also United States v. Castillo , 303 F. App'x 989, 991 (2d Cir. 2008) ; United States v. Humphrey , 164 F.3d 585, 587 & n.2 (11th Cir. 1999) (noting that the Second Circuit does not require a court to explicitly inform a defendant "about the consecutive nature of multiple sentences" under Rule 11 ); Michel v. United States , 507 F.2d 461, 465 n.4 (2d Cir. 1974). Although a district court must inform the defendant of the maximum possible sentence he faces on each count, Fed. R. Crim. P. 11(b)(1)(H), Rule 11 does not require a district court to "do the math" for a defendant. This is because the logical inference from a listing of the maximum terms of imprisonment for the individual counts is that the terms of imprisonment for each could run consecutively. See United States v. Hamilton , 568 F.2d 1302, 1306 (9th Cir. 1978) (explaining that informing defendant of maximum imprisonment terms for each of two counts "implicitly alerted [defendant] to the possibility of consecutive sentencing"). Numerous other courts agree with this interpretation of Rule 11. See, e.g. , United States v. Burney , 75 F.3d 442, 445 (8th Cir. 1996) (finding no error where district court advised defendant of the maximum imprisonment term for each count, thereby implicitly disclosing "the possibility of consecutive sentencing"); United States v. Ospina , 18 F.3d 1332, 1334 (6th Cir. 1994) (determining that "there is no...