Friday, June 5, 2015

The Open Plea And Ineffective Assistance of Counsel (6/5/15)

In United States v. Wilson, 2015 U.S. Dist. LEXIS 70679 (E.D. Cal. May 29, 2015), here, the defendant was initially charged "with multiple counts arising out of his operation of a Ponzi scheme known as CIC Investment Fund."  The defendant "pled guilty to one count of wire fraud (Count 14) and one count of making and subscribing a false income tax return (Count 31) pursuant to a written plea agreement."   The defendant "was sentenced 236 months imprisonment in the custody of the U.S. Bureau of Prisons as to the wire fraud charge and 36 months imprisonment on the false tax return charge with those sentences to run concurrently,"  The defendant appealed.  The Court of Appeals remanded for resentencing.  On remand, after additional findings, the sentencing court "re-imposed the same sentence that had originally been imposed, including the 236-month prison term."  The defendant again appealed.  The Court of Appeals affirmed the sentence.  Later, while serving his time, the defendant filed this action under 18 USC § 2255, here, alleging ineffective assistance of counsel.  Since, the defendant was the moving party in the § 2255 collateral review case, the court refers to him as movant and I shall also in the balance of the discussion of the case.  The movant's claim was then heard by a Magistrate Judge who entered the order in this case.

The movant's claim is that in advising defendant to sign the plea agreement resulting in his conviction and incarceration, the trial counsel had rendered ineffective assistance of counsel, thus requiring overturning his conviction.  The claim is that, despite the Guidelines' calculations contained in the plea agreement movant was offered (151-188 months), his counsel in the case in chief had assured him that the Guidelines calculations were "immaterial" and that he would be sentenced to "'three to five years' 'regardless of how the guidelines are calculated.'"  Based on this advice and related erroneous Guidelines advice, movant entered an "open plea" -- just a plea to all counts without any stipulation as to the Guidelines calculations.  The related advice was:
Movant also alleges that his trial counsel gave him "grossly incompetent" advice about the applicability of the Sentencing Guidelines to his case. According to movant, this incompetent advice included inaccurate assertions that: (1) the government would have to prove that movant was a registered investment advisor in order to increase the offense level for "Abuse of Position of Trust or Use of Special Skill" under USSG § 3B1.3; (2) the increase in the offense level based upon "sophisticated means" set forth in USSG § 2B1.1(b) (10) would not apply to movant; (3) the increase in the offense level for being a "leader/organizer" set forth in USSG § 3B1.1(c) was not applicable to movant unless other people were indicted; (4) movant would be sentenced "regardless of how the probation officer scores the guidelines" and "regardless of what the Sentencing Guidelines say;" and (5) movant would "come out as a criminal history [category] three," even though his criminal background actually "mandated a criminal history category IV." (ECF No. 188 at 14, 18.) n1 Movant contends that his trial counsel's erroneous advice in these areas made it impossible for him to make an intelligent decision as to whether to enter an "open" plea of guilty, and caused him to reject the government's first, more favorable, plea offer and to plead "open with no protection." (ECF No. 200 at 10, 25.) 
In sum, movant claims that his retained trial counsel induced him to plead guilty with: (1) false promises and guarantees, both to him and to his family, that he would receive a sentence in the 3-5 year range; (2) threats to withdraw from the case if he was not paid additional fees; (3) a "threat" that movant should not mention any promises made by counsel about his sentence to the trial judge; and (4) erroneous legal advice about the Sentencing Guidelines and the applicability of certain guideline provisions, described above. (Id. at 16, 18-19.) Movant argues,[b]ased on [counsel's] threat to quit my case, his faulty explanation of how the sentencing guidelines worked, his misguided legal advice that the enhancements (sophisticated means, abuse of trust, organizer) did not apply (openly misstating the law on particular enhancements), his mischaracterization of Judge Karlton and his view of the sentencing guidelines, his erroneous guidance of my criminal history category, and his directing me to reject the Government's plea offer . . . to sign an open plea in order to receive a sentence of three (3) to five (5) years, I was coerced, pressured, and deceived into relinquishing my trial rights, rejecting the government's plea offer, and entering an open plea.
The claim of ineffective assistance of counsel after conviction is not uncommon.  Many convicted defendants think it is worth a shot.

The movant offered some nominal proof that the claims were made, including affidavits of he and family members and some alleged transcripts of telephone conversations.  The magistrate judge thought that the claims were sufficient to warrant a hearing and appointed the Federal Defender to represent the movant.

I thought I would digress for a bit on the "open plea."  Actually, an open plea can mean various things.  Most commonly, I think it means where a defendant and  the prosecutor simply cannot reach a plea agreement, as in Wilson.  If the guilty defendant then wants avoid trial, he must without a plea agreement.  Such a plea will usually assure the defendant of the acceptance of responsibility 2 level reduction, but may forego the additional 1 level reduction which requires  that the Government make the motion.  S.G. §3E1.1.Acceptance of Responsibility, here.  Without a plea agreement, the Government will likely not drop counts, so the defendant must plead to all counts.  In many tax cases, the number of counts will not affect sentencing, so if all the defendant achieves from reaching a plea agreement with the Government is the dropping of counts, the sentence may not be affected at all.  (Indeed, with a plea dropping counts in tax cases, a not uncommon statement in the PSR is that the sentencing calculations are recommended sentencing range are not affected by the dropping of counts.)  So, except for the 1-level AOR reduction, the defendant may not actually lose anything material by doing an open plea to all charged counts rather than reaching a plea agreement that only reduces the number of counts.  But, the defendant will not gain anything by doing an open plea as opposed to a plea agreement.  And a plea agreement can often include favorable agreements as to other sentencing factors.

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