United States v. Fard
| Decision Date | 07 January 2015 |
| Docket Number | No. 14–1221.,14–1221. |
| Citation | 775 F.3d 939 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Siamak S. FARD, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Christopher R. McFadden, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.
Rosa A. Eliades, Eliades Law, PLLC, Chicago, IL, for Defendant–Appellant.
Before WOOD, Chief Judge, and WILLIAMS and TINDER, Circuit Judges.
Siamak S. Fard pled guilty to one count of wire fraud pursuant to a blind plea. He later sought to withdraw his plea, alleging that it was not knowingly and voluntarily entered. The district judge conducted an evidentiary hearing to determine whether Fard's plea was based upon a representation by Fard's original defense counsel that the government had promised to dismiss the indictment if Fard pled guilty and cooperated. At the hearing, counsel denied having made such a statement. Rejecting Fard's testimony, the district judge credited counsel's testimony and denied Fard's motion to withdraw his guilty plea. At sentencing, the judge increased Fard's guideline sentence, finding that he had obstructed justice by lying at the evidentiary hearing. He also denied Fard's motion for an acceptance of responsibility reduction, because Fard falsely denied his leadership role in the scheme. Now, Fard seeks to withdraw his guilty plea and challenges certain aspects of his sentence. We find that Fard's guilty plea was not knowing and voluntary, vacate his plea, and remand the case. Because we vacate Fard's plea, we will not address the arguments regarding his sentence.
On March 17, 2009, a federal grand jury in the Northern District of Illinois returned a three-count indictment charging Fard and two co-defendants with wire fraud in violation of 18 U.S.C. § 1343. Fard entered a plea of not guilty, and the government filed a superseding indictment on May 19, 2009, charging two additional co-defendants and three additional counts of wire fraud. In total, Fard was charged in four of the counts and again entered a plea of not guilty. A second superseding indictment was filed on May 25, 2010, after the district court granted a co-defendant's motion to dismiss for vagueness, but the new counts did not pertain to Fard.
The indictments were based upon an alleged mortgage fraud scheme where the defendants obtained money and property from mortgage lenders by means of false representations. Fard and his co-defendants allegedly obtained nearly thirty loans in the names of nominees by submitting false and fraudulent documents to the lenders. The nominees would not have qualified for the loans if their applications had been truthful. They usually did not live in the houses which were purchased in their names and funds acquired by the defendants were at times used to pay for improvements on different properties from the ones for which they were disbursed.
Over the course of two and a half years, the trial date was continued several times. In April 2011, Fard's original counsel filed a motion requesting that the district court appoint him to continue representing Fard under the Criminal Justice Act, 18 U.S.C. § 3006A, since Fard could no longer afford to pay him. The district court denied the motion, but we could find no record of why the motion was denied.
Trial was eventually set for October 18, 2011, but on October 17, defense counsel asked the court to continue the trial for sixty days, because both the defense and the government thought that Fard could provide significant cooperation and were hoping to reach an agreement. The judge refused to continue the trial beyond November 7, his next available date. After giving counsel that date, the judge called for a recess to allow the government, defense counsel, and Fard to confer.
After the break, defense counsel stated, The judge proceeded to read portions of the second superseding indictment and primary allegations. Then the following exchange occurred:
The judge pressed Fard about the extent of his “knowledge” by questioning defense counsel, to which counsel responded,“[Fard] had knowledge of Nationwide submitting these, permitting and submitting these phony applications, and he knew it was going on, but he did nothing about it, he just participated in the scheme as it went along.” Nationwide was the lender Fard allegedly defrauded.
The judge then read from a draft, but unexecuted, plea agreement, which spelled out the way in which the defendants obtained mortgage loans in the names of nominees and used the money for other projects. Whenever Fard spoke, he resisted the allegations, at one point saying, Defense counsel repeatedly said that Fard “participated” and “had knowledge,” but that Fard did not want the court to think he was the planner. Another break was held after Fard stated that the lender, Nationwide, put together the loan applications and knew about the misrepresentations.
The elements of wire fraud were never explicitly stated at the plea hearing. Fard insisted throughout the hearing—relevant portions of which we will quote in our later discussion—that his intentions were honest and businesslike. Despite finding that it was “like pulling teeth” to get Fard to admit guilt, the district judge accepted Fard's plea.
After entering his guilty plea, Fard met with the government without his attorney to discuss cooperation. At the meeting, government agents asked Fard to talk about his involvement in the wire fraud scheme. Fard became agitated, arguing that he did not do anything wrong. The meeting ended without Fard providing any cooperation and he did not meet with the government again. Instead he asked his attorney to file a motion withdrawing his guilty plea.
On November 10, 2011, Fard's original counsel filed a motion to withdraw as counsel and to withdraw Fard's guilty plea. The lawyer's motion to withdraw as counsel was granted and new counsel was appointed.
New counsel filed a more detailed motion to withdraw Fard's plea, arguing that it was not knowingly and voluntarily entered because Fard did not understand the nature of the charge. The motion also alleged that Fard only entered into the guilty plea because his original counsel told him that the cooperation agreement with the government was conditional on his willingness to enter a guilty plea that day and that if he pled guilty, the government would provide Fard a meaningful opportunity to provide anticipated cooperation by working undercover. In an attached affidavit, Fard stated that his original counsel had told him on the morning of his change of plea hearing that the plea was just a formality and the case would be dismissed after he cooperated with the government. The district judge decided that an evidentiary hearing was needed to determine the nature of the alleged conversations between Fard and original counsel on the day of the change of plea hearing.
On June 5, 2012, the evidentiary hearing was held. Original counsel, Fard, and the case agent testified. Counsel denied telling Fard on the day of the plea hearing that the government promised to dismiss the case if he pled guilty and cooperated, but he did admit to jokingly telling Fard that the indictment might be dismissed if Fard became a spy in Iran. At the conclusion of the hearing, the district judge made a credibility determination that counsel was telling the truth and Fard was not. The judge denied Fard's motion to withdrawhis plea and set a date for sentencing.
Sentencing was continued many times, during which Fard retained a third lawyer. He filed a third motion to withdraw Fard's guilty plea, which raised similar issues as the previous motions, along with an ineffective assistance of counsel claim. The motion was denied. On January 22, 2014, Fard's sentencing hearing was held. His pre-sentence report calculated an offense level of 29. But the district judge found Fard's offense level to be 31 because he included a two-level increase for obstruction of justice, based upon his finding that Fard lied during the evidentiary hearing. Fard was also denied an acceptance of responsibility reduction. With a criminal history category of I, Fard's Guideline range was 108–135 months. The judge ultimately sentenced Fard to 84 months in prison.
On appeal, Fard once again seeks to withdraw his guilty plea as unknowingly and involuntarily entered. He also challenges the district judge's sentencing decisions regarding the obstruction of justice enhancement and the denial of an acceptance of responsibility reduction.
Fard argues that his guilty plea was not knowing and voluntary. He asserts that his plea fell short of the requirements of Federal Rule of Criminal Procedure 11 in two respects. First, his plea colloquy did not comply with Rule 11 because he never understood the nature of the charge against him, and second, the district judge did not ensure that the plea was not based upon any undisclosed promises. With respect to the first claim, Fard asserts that the district judge failed to make sure that Fard understood the nature of wire fraud and particularly that a wire fraud conviction required a specific intent to defraud.
We review the district court's denial of a defendant's motion to withdraw a guilty plea for abuse of discretion. United States v. Chavers, 515 F.3d 722, 724 (7th Cir.2008). After a guilty plea is...
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United States v. Harper, 18-1725
...contends that the district court abused its discretion in denying his motion to withdraw the guilty plea. See United States v. Fard , 775 F.3d 939, 943 (7th Cir. 2015). He reprises the two allegedly "fair and just" reasons that he offered to the district court—that he is innocent of the sec......
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Review Proceedings
...harmless error because defendant would not have pleaded guilty had defendant been properly informed of statutory sentence); U.S. v. Fard, 775 F.3d 939, 945-47 (7th Cir. 2015) (denial of defendant’s motion to withdraw guilty plea not harmless error because defendant did not have clear unders......