Opinion
01 CR 416 (S-6) (ILG).
May 23, 2003.
MEMORANDUM AND ORDER
Two days before he was to be sentenced, the defendant moved this Court for an order that would permit him to withdraw his plea of guilty. For the reasons that follow, his motion is denied.
Background
An indictment naming the defendant and 39 others was unsealed on April 25th, 2001. This defendant was named in seven of the forty one counts and was arraigned on the same day and released on bond in the amount of $2,000,000. A notice of appearance on his behalf was filed by Michael S. Washor, Esq., who represented him throughout thereafter. The indictment charged him with a violation of 18 U.S.C. § 1962(C) (RICO). As predicate racketeering acts, he was charged with wire fraud, mail fraud, money laundering and interstate transportation of stolen property. He was also charged with RICO conspiracy, and the substantive crimes of wire fraud, mail fraud, money laundering conspiracy and interstate transportation of stolen property.
During the succeeding months, numerous status conferences were held, discovery requests made, motions filed and severances granted. This defendant and co-defendants David Grossman and Robert Santoro were grouped together and severed from the others. All defendants, except those three, pleaded guilty. As matters stood, those three were going to be tried. On March 26th, 2002 a trial was scheduled to begin on November 4th, 2002. Plea negotiations were pursued on behalf of Schwamborn and a plea agreement was drafted and offered to be consummated on condition that Grossman pleaded guilty. Grossman pleaded guilty and entered into a cooperation agreement with the government on October 11th, 2002. The plea previously offered to Schwamborn was then withdrawn because, as the government explained, the identical case had to be tried against Santoro who insisted on going to trial.
On October 24th, 2002, a complaint was filed against Schwamborn in the Central Islip branch of this Court alleging his complicity in the distribution of narcotics and money laundering, offenses completely unrelated to the offenses charged here. As of this date, an indictment based on that complaint has not yet been returned.
Prior to the commencement of the trial against the two remaining defendants, Schwamborn and Santoro, which was to begin on November 4th, 2002, the latter moved for a severance which was granted. Schwamborn was thus notified that he would be tried alone beginning on November 18th. The trial against Santoro commenced as scheduled on November 4th, 2002. David Grossman, pursuant to his cooperation agreement, testified against him.
On Friday, November 15th, 2002, the Santoro trial was concluded, the jury charged and deliberating. On that day, a conference was held in this courthouse. Present were Schwamborn, his counsel and Assistant United States Attorney Paul Weinstein. The defendant was informed that the plea agreement previously offered would not be renewed, but should he decide to plead guilty to the crimes with which he was charged, the government would not oppose a two level adjustment for acceptance of responsibility. He was also informed that his trial would commence three days later, on Monday, November 18th. Schwamborn decided to plead guilty and after a plea allocution in accordance with Rule 11, Fed.R. Cr. P., the Court accepted his plea. Sentence, fixed at that time to be imposed on February 26th, 2003, was postponed until May 21st, 2003. On May 19th 2003, represented by other counsel, Flora Edwards, Esq., Schwamborn filed a motion to withdraw his plea.
In support of his motion, two affidavits were filed — one by Schwamborn and one by Mr. Washor. Schwamborn's affidavit (SA) in relevant part declares:
12. On Friday, November 15, 2002 I was transported from the Metropolitan Detention Center to this Court for what I believed was a meeting to discuss disposition. Instead I found my attorney with his arm in a sling. He appeared to be in pain and to be visibly shaken.
13. In a "no-contact" visit behind an aluminum screen which lasted no more than 20 minutes, I was advised that there would be no plea discussion and that I had the choice of pleading to the Indictment that day or going to trial on Monday.
14. Under the circumstances, there was no time or opportunity to have any discussion with my attorney to weigh any meritorious defense that I had to the charges against taking the plea, or to discuss the fact that I was actually innocent as to one of the charges.
15. There was no time or opportunity to discuss whether a brief continuance might be had in order to prepare for trial, or if, given the year and a half which had lapsed since my Indictment if it were reasonable to assume that counsel would be prepared for trial on Monday.
16. Mr. Washor simply advised me that I really had no choice and that if I pled to the Indictment, at least I would get the two points that he had negotiated for. He appeared to be defeated and emotionally distraught.
17. After I pled guilty to the indictment, I spoke to Mr. Washor for a few minutes in the "bull pen" adjacent to the courtroom and told him that I had just pled guilty to counts for which I am actually innocent.
Mr. Washor, in his affidavits, in relevant part declares:
10. On Friday, November 15th I was contacted by Paul Weinstein and told to appear that afternoon before this Court. When I arrived Mr. Weinstein advised me that Mr. Schwamborn had two options: to plead to the Indictment under which circumstances he would receive two points for acceptance of responsibility or to proceed to trial on Monday. He further advised me that we had twenty minutes to make a decision.
11. Because we were forced to meet in the bull pen separated by an aluminum screen which makes meaningful communication difficult if not impossible and given the time constraints there was really no opportunity for me to assist Mr. Schwamborn in determining and weighing all his options, even despite his assertion of innocence as to one of the charges to which he was required to plead. Instead, I met with my client and advised him that we really had no option but to take the plea and that at least he would get the two points.
12. In retrospect, the only reasonable course of action would have been to either refuse Mr. Weinstein's officer or to make a record when we appeared to take the plea. I clearly should have advised this court that I was in no condition to properly advise my client, nor could any attorney competently advise their client in a matter of such importance under those coercive conditions.
13. However, I was simply overwhelmed by the circumstances combined with the pain and the continued effect of the medication.
14. After he took the plea on November 15, 2002, I met with Mr. Schwamborn on several occasions. At each meeting he repeatedly asked me to make a motion on his behalf to withdraw the plea. Each time I postponed the decision because of the difficulty in coming to terms with events of November 15, 2002.
15. The fact remains that when I appeared before this Court last November, I did not render, what what I perceive to be effective assistance of counsel to my client so that he would be in a position to weight his options and make an informed decision.
16. The above notwithstanding, Mr. Schwamborn continues to have faith in my ability and should this court grant his motion, in order to avoid the undue delay incurred by the need to hire another attorney who would then require many months to familiarize himself with the case, I will be available to try this case on any date set by this court.
On May 21st, immediately prior to the imposition of sentence, a hearing was held on the motion to withdraw his plea. Present were the defendant, Ms. Edwards, Mr. Washor, who was still representing Schwamborn for sentencing, and Assistant United States Attorney Paul Weinstein. Skeptical about the literal accuracy of the declaration by Mr. Washor, a very experienced criminal defense attorney, that he advised Schwamborn that "we really had no option but to take the plea and that at least he would get the two points" (Washor aff'd. ¶ 11), and given the significantly different declaration by Schwamborn that "I was advised that there would be no plea discussion and that I had the choice of pleading to the Indictment that day or going to trial on Monday" (SA ¶ 13) (emphasis mine), I suggested that testimony be elicited from Mr. Washor, and it was.
As regards the declaration in his affidavit, his testimony responded to the Court's skepticism about its accuracy. In response to questions by Ms. Edwards, his testimony was as follows:
Q. Did you meet with Frank Schwamborn on the 15th?
A. Of course I did.
Q. Can you describe the meeting with him?
A. I think the first part of the meeting was downstairs in the pen and those are the conditions that I had to discuss the matter with him. I told him that I had received the night before, I believe, or the day before, the bottom line that we would not have a plea agreement and that he had no choice. Either he takes a plea to the entire indictment and gets the two points, or alternatively, he goes to trial. But those — that's it. No other options.
TrM refers to transcript of hearing on motion to withdraw.
That amplification makes it clear to the Court that Schwamborn's declaration accurately reflected what was said and what he understood — it was his choice either to plead to the indictment or go to trial. He chose to plead and that choice was not coerced.
In response to questions by the Court, Mr. Washor testified that he had more than ample occasion to discuss with Schwamborn the evidence the government had against him. He reviewed with Mr. Schwamborn intercepted conversation on which Schwamborn had been overheard. He discussed affirmative defenses and other defenses which might have been available to Schwamborn. TrM at 38. The strengths and weaknesses of Schwamborn's case were fully explained to him over a long period of time. He testified that on the day Schwamborn pleaded guilty, he was fully conversant with what the evidence against him was and what the strengths and weaknesses of his case were and that he had more than ample opportunity to explain all of that. TrM at 39. He also testified that he was prepared to go to trial on November 18th. TrM at 40.
Schwamborn did not testify nor did Ms. Edwards have any intention of calling him. TrM at 41.
Discussion
The reasons advanced in support of his motion to withdraw his plea are that it was neither knowing nor voluntary and that he was denied the effective assistance of counsel. Before addressing each of those, it is appropriate to note that the motion is made pursuant to Rule 11(d)(2)(B), Fed.R. Cr. P., which provides that "A defendant may withdraw a plea of guilty . . . (2) after the court accepts the plea, but before it imposes sentence, if: (B) the defendant can show a fair and just reason for requesting the withdrawal." His motion is, therefore, timely. I turn to a consideration of whether the reasons he gives for the relief he seeks are "fair and just."
1. His Claim That His Plea Was Neither Knowing Nor Voluntary
As has been indicated, approximately seventeen months elapsed between April 25th, 2001, the day on which he was arraigned and November 15th, 2002, the day he pleaded guilty. Mr. Washor testified that over the course of those months, he was provided with complete discovery of intercepted conversations in which Schwamborn's inculpatory statements were captured and all other materials the government was obliged to provide in discharge of its obligation pursuant to Rule 16, Fed. R Cr. P. He discussed that evidence with his client on numerous occasions. He testified that he discussed possible defenses that may be available to Schwamborn and the relative strengths and weaknesses of the government's case against Schwamborn on many occasions. As has been alluded to, there were plea negotiations to which Schwamborn was privy and the reasons for their failure to be realized were explained and known to him.
The transcript of the proceeding at which Schwamborn pleaded guilty establishes beyond any peradventure of a doubt that his plea was entirely knowing and voluntary. At the very outset of that proceeding, the Court was advised:
Mr. Washor: While the matter has been set for trial, your Honor we're prepared to interpose a plea to Counts 1 and 2, 24, 25, 26, 27 and 36, which would constitute a plea to the indictment, and the only understanding is that we will receive two points for acceptance of responsibility, and, last but not least, that the plea will encompass, when the defendant allocutes and responds to the Court's inquiry, that it was an enterprise, in fact, and that he did, in fact, conspire with other people.
And with that premise, we respectfully ask the Court to allow us to interpose a plea of guilty to those charges constituting the indictment pending against Mr. Swamborn.
Defendants charged with being members or associates of a named organized crime family as the enterprise in a RICO count invariably are unwilling to acknowledge either membership or association in that family and acknowledge instead being associated in fact with others, etc.
Tr. at 2.
Thereafter, Schwamborn was sworn to tell the truth and was advised:
BY THE COURT:
Q. You just swore to tell the truth, so everything you're going to say to me this afternoon should be truthful. It's a crime of perjury to tell a lie after you swore to tell the truth.
A. I understand.
Tr. at 5.
Q. Do you understand why you're here?
A. Yes, I do.
Q. And you've understood everything that I have said to you so far?
A. Yes, Judge.
THE COURT: Mr. Washor, do you have any questions about the competence of your client to participate in these proceedings?
A. No, I do not, Judge.
BY THE COURT:
Q. Have you gone over this indictment with your lawyer?
A. Yes, I have.
Q. You're familiar with all of the introductory counts to this indictment?
A. Yes.
Tr. at 6.
The introductory paragraphs were then summarized for him, which he acknowledge having gone through with Mr. Washor and the first Count (RICO) was read to him. Tr. at 6-10. The advice to be given to and the questions to be asked of the defendant prescribed by Rule 11(b) were given and when asked, Schwamborn acknowledged that he understood everything of which he was advised and had also previously reviewed it all with Mr. Washor. Tr. at 10-17. The procedure prescribed by Rule 11(b) was explained in McCarthy v. United States, 349 U.S. 459,465 (1968) to be
designed to assist the district court in making the constitutionally required determination that a defendant's guilty plea is truly voluntary. . . . Thus, the more meticulously the Rule is adhered to, the more it tends to discourage or at least to enable more expeditious disposition of the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas.
A review of the transcript will confirm a faithful adherence to that Rule.
Following that allocution, the transcript then reflects:
Q. Do you have any questions about anything that I have explained to you so far?
A. No, I do not.
THE COURT: Mr. Washor, are you aware of any reason for which Mr. Schwamborn shouldn't plead to all of the counts that I have gone over with him?
Mr. Washor: No, your Honor.
BY THE COURT:
Q. How do you plead to those counts, the count of racketeering, which is Count 1, the Racketeering Acts, mail fraud, wire fraud, money laundering, interstate transportation of stolen property, how do you plead to those counts?
A. I plead guilty, Judge.
Q. You plead guilty to racketeering, the second count, racketeering conspiracy; you plead guilty to that, as well?
A. I plead guilty, your Honor.
Q. You plead guilty to the wire-fraud count, Count 25?
A. Guilty, your Honor.
Q. Count 26, the mail-fraud count?
A. Guilty.
Q. Money-laundering conspiracy?
A. Guilty, your Honor.
Q. And the interstate transportation of stolen property?
A. I plead guilty, your Honor.
Q. Anybody forcing you to tell me that here today?
A. No, your Honor.
Q. Anybody make any promises to you as to what your sentence will be?
A. No.
Q. If anybody did, they would be lying to you, because I don't know what your sentence will be, as I talk to you.
Tr. at 17-19.
After explaining to Schwamborn what the government would have to prove if a jury would be justified in finding him guilty of the charge of racketeering, the following ensued:
THE COURT: Given all of that, Mr. Schwamborn, was there an enterprise, as I defined that term to you, group of people you were associated with, who in fact had a common goal of making money for its members by the commission of a whole variety of criminal activity?
A. Yes.
Q. That entity had a formal or an informal structure, had personnel that functioned as a continuing unit?
A. That's correct, your Honor.
Q. And you knowingly, intentionally associated with that enterprise?
A. Yes, your Honor.
Q. And you participated in the conduct of the affairs of that enterprise, you performed acts which were necessary, helpful to the operation of that enterprise?
A. Yes, your Honor.
Q. And you did that through a pattern of racketeering activity, meaning that you committed the crime of wire fraud or mail fraud or money laundering —
A. Yes, Judge.
Q. — through Racketeering Acts?
A. Yes.
Q. A Racketeering Act, Mr. Schwamborn, may consist of any one of a whole list of crimes which are set out in Section 1961 of Title 18 of the United States Code. And Racketeering Acts, as they are defined in that section, include mail fraud, wire fraud, money laundering, interstate transportation of stolen property — and this activity that you were engaged in affected interstate commerce, across state lines?
A. Yes, your Honor.
Q. And this pattern of racketeering activity had some relationship to this enterprise that you were a member of; in other words, the mail fraud, the wire fraud, the money laundering, the interstate transportation of stolen property, was connected with the affairs of the enterprise, was related to it?
A. Yes, your Honor.
Q. And, of course, this racketeering activity had a threat of a continuing and ongoing series of Racketeering Acts; is that right?
A. That's correct.
Tr. at 19-21.
The elements of the crimes of wire fraud, mail fraud, money laundering conspiracy, each of which the government would have to prove if a jury would be justified in finding him guilty, were similarly reviewed with him and the satisfaction of each element of each of those crimes was acknowledged by him. A finding was made as to each Count that Schwamborn knowingly and voluntarily pleaded guilty to it and that there was a factual basis for his plea, which was accepted.
The transcript of the proceeding at which Schwamborn pleaded guilty, establishes beyond cavil that Schwamborn admitted his guilt and in his own words stated that his plea was not coerced and that no promises had been made to induce it. A "strong presumption of verity" attaches to admissions of guilt at a plea allocution. United States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992) (quoting Blacklede v. Allison. 431 U.S. 63, 74 (1977). "A defendant's bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea," United States v. Hirsch, 239 F.3d 221, 225 (2d Cir. 2001), nor is a mere allegation of innocence sufficient to warrant the granting of such a motion.United States v. Smith, 407 F.2d 33, 35 (2d Cir. 1969). An en banc Court of Appeals for the District of Columbia, speaking through Judge Skelly Wright in United States v. Barker, 514 F.2d 208 (D.C. Cir. 1975) observed at p. 221 in a frequently cited passage:
Were mere assertion of legal innocence always a sufficient condition for withdrawal, withdrawal would effectively be an automatic right. There are few if any criminal cases where the defendant cannot devise some theory or story which, if believed by a jury, would result in his acquittal. . . . A guilty plea 'frequently involves the making of difficult judgments.' Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, however, a guilty plea is no such trifle, but 'a grave and solemn act' which is 'accepted only with care and discernment.' (Internal citations omitted).
Given the assertions made by Schwamborn in his affidavit in support of this motion, it is plain that he lied when he entered his guilty plea or is lying now and has exposed himself to a prosecution for perjury should the United States Attorney choose to pursue one. See Stassi v. United States, 583 F.2d 122 (3d Cir. 1978), distinguished by Dunn v. United States, 442 U.S. 100 (1979). To permit the assertion by this defendant that he lied under oath when he pleaded guilty to warrant a re-litigation of this proceeding is offensive to the principles of finality of judgments. It is also offensive in that it manifests a total disregard for an oath and disrespect for the judicial process. See Martinez v. United States, 411 F. Supp. 1352, 1359-60 (N.J. 1976), aff'd. Mem. 547 F.2d 1162 (3d Cir. 1977).
2. Ineffective Assistance Claim
To succeed on his claim of ineffective assistance of counsel, Schwamborn must show that (1) his counsel's performance fell below an objective standard of reasonableness; and (2) but for the deficiency, there is a reasonable probability that the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-96 (1984).
Schwamborn's assertion is that he was deprived of an opportunity to consult with his attorney to assess the consequences of his plea and that he did not receive effective assistance of counsel to advise him of the consequences of his plea in light of the charges against him alleged in a complaint and for which he has yet to be indicted. That he had insufficient time to consider the consequences of a plea is belied by the testimony of Mr. Washor alluded to above. It should be noted too, that the evidence the government would present against him was fully displayed and elicited during the trial of Robert Santoro at which he was to be a co-defendant and on the heels of which he was to be tried. That evidence was damning. It is reasonable to infer that the preview of the strength of the case against him was fully known by Schwamborn on the 15th, when he opted to plead guilty. A two level adjustment in the guidelines would have yielded a potential range of sentence of 51 — 63 months rather than 63 — 78, which it would have been without it. Although a specific guideline calculation was not presented to him, that there was a benefit to be derived from a two level adjustment was obviously understood by him.
The components of an ineffective assistance claim prescribed by Strickland have not been established. Schwamborn has failed to show that counsel's representation fell below an objective standard of reasonableness bearing in mind that in assessing his representation, the inquiry must be whether his assistance was reasonable considering all the circumstances. 466 U.S. at 688. That consideration compels the conclusion that counsel's representation was objectively reasonable. The suggestion that he should have asked for a continuance on Friday, November 15th, of a trial that was to commence on Monday, November 18th, which had been scheduled six months before, is fanciful. A jury was summoned to appear in Brooklyn from the five counties that comprise the Eastern District. A trial of essentially the same issues had just been completed. The evidence and the witnesses were all in place. Strickland cautions against succumbing to the temptation to second guess counsel's assistance and teaches, instead, that "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight . . . and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." 466 U.S. at 689.
Deciding, as I must, Schwamborn's claim of ineffective assistance by judging the reasonableness of his lawyer's conduct on the facts of this case viewed in the context within which his conduct is challenged and obedient to the teaching ofStrickland that I "should recognize that counsel is strongly presumed to have rendered adequate assistance," 466 U.S. at 690, I am driven to conclude that the defendant has failed to meet the first prong of Strickland and that counsel's assistance under the circumstances was not ineffective.
Returning to Rule 11(d)(2)(B), Fed.R. Cr. P., the defendant has not borne the burden that is his of showing a fair and just reason for withdrawing his plea. The transcript of the proceeding at which he pleaded guilty plainly reflects that he did so knowingly and voluntarily. Having presided over that proceeding and observed the defendant's demeanor during the course of it, I have no doubt that the transcript accurately reflects his total understanding of the significance of his admission of guilt made in the exercise of free will and without coercion.
I also have no doubt that, evaluating the representation of his counsel on that occasion, that he was suffering from no impediment, physical or otherwise which in any way diminished the quality of his representation and that he undoubtedly was, as he said he was, prepared to go to trial on the next court day.
In United States v. Saft, 588 F.2d 1073, 1082-83 (2d Cir. 1977) (Friendly, J.), the Court observed that its "decisions have recognized the large discretion confided to district judges in passing on motions to withdraw pleas of guilty, . . . a discretion justified by the much better 'feel of the case' possessed by the judge who observed the defendant at the taking of the plea than can be imparted by any appellate transcript. . . . The government is not required to show prejudice when a defendant has shown no sufficient grounds for permitting withdrawal of a guilty plea, although such prejudice may be considered by the district court in exercising its discretion."
The defendant has not shown sufficient grounds for permitting withdrawal and government prejudice need not be shown. If I were to consider it, however, the reasons for the government's assertion that it would be prejudiced are not insubstantial. Gov. Mem. in Opposition at 12-13.
For all the foregoing reasons, the motion to withdraw is denied.
The parties are to appear for sentencing at 10 a.m. on May 28th, 2003.
SO ORDERED.