Opinion
Civil No. AW-01-1815, Criminal No. AW-99-0367
November 5, 2001
ORDER
In accordance with the Memorandum Opinion dated November 5, 2001 and for the reasons stated therein, it is this 5th day of November 2001, by the United States District Court For The District Of Maryland (Southern Division),
ORDERED:
1. That the Motion to Vacate and Set Aside Conviction filed by Petitioner, Hyacinth Udegbe, BE and the same Hereby IS DENIED; and
2. That the clerk CLOSE this case; and
3. That the clerk mail copies of the Memorandum Opinion and this order to all parties of record.
MEMORANDUM OPINION
Currently pending before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.A. § 2255. Petitioner, Hyacinth Udegbe ("Udegbe") challenges his conviction for conspiracy to present false claims to the United States, in violation of 18 U.S.C.A. § 286. Petitioner pled guilty and was sentenced to six months. The Government filed a Response in Opposition to Petitioner's § 2255 Motion. Petitioner submitted a Reply to the Government's Response. In his pro se motion, Petitioner alleges that: (1) he was denied effective assistance of counsel; (2) the restitution judgment against him was excessive; (3) he should have received a greater downward departure during sentencing; and (4) he was denied an evidentiary hearing. The Court has reviewed the entire record, including the criminal proceedings, with respect to the instant motion. No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). The Court finds the Petitioner's claim void of merit, and will DENY the Petitioner's Motion to Vacate, Set Aside, or Correct Sentence.BACKGROUND
In approximately 1995, Petitioner gathered, from computer databases, the names and social security numbers of unemployed persons and used them to file false tax returns. The Petitioner and his co-conspirators forged the endorsements on the refund checks and deposited them. The Petitioner rented mailboxes in Maryland, Georgia, and Indiana to receive the refund checks. He also used false identification cards to rent post office boxes and to open bank accounts to receive and deposit the tax refund checks that Petitioner fraudulently obtained. More than $200,000 in fraudulent income tax refund requests were submitted.Petitioner was charged with Conspiracy to Defraud the Government with Respect to False and Fraudulent Claims, in violation of 18 U.S.C.A. § 286. On January 11, 2000, Petitioner appeared before this Court and pled guilty to the charge. Petitioner testified at his co-defendants' trial, received a downward departure for his cooperation, and was sentenced to six months.
DISCUSSION
1. Denial of Effective Assistance of Counsel
Petitioner first asserts that he was denied effective assistance of counsel during plea negotiations because his attorney misrepresented the rules and procedures of the plea agreement, failed to secure a guaranteed probationary sentence, did not convince the Court to reduce the amount of restitution owed by the Petitioner, and failed to get the Petitioner into the Federal Witness Protection Program. Petitioner contends that the legal representation provided by his attorney was not adequate under the test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland test for ineffective assistance of counsel, Petitioner must first show that counsel's performance was so deficient that he or she was not functioning as counsel guaranteed to a defendant by the Sixth Amendment. Id. at 687. Secondly, Petitioner must show that counsel's deficiencies were so serious as to deprive the defendant of a fair trial. Id.
With regards to the first prong of the Strickland test, Petitioner argues that his counsel was not competent because he induced the Petitioner to plead guilty by misrepresenting the plea agreement and failed to represent his interests in plea negotiations. Specifically, Petitioner alleges that his counsel told him that they were going to the United States Attorney's Office to discuss discovery, when in fact his counsel had arranged for a plea negotiation. The Court is not convinced by this argument. The record reflects that Petitioner's counsel prepared and filed on behalf of the Petitioner on April 10, 2000, Exceptions to the Pre-Sentence Report, in which counsel argued Petitioner's position on these issues regarding the restitution amount and the application of the Mandatory Victims Restitution Act. Furthermore, Petitioner's counsel was functioning as counsel guaranteed to a criminal defendant by the Sixth Amendment because the Petitioner voluntarily signed the plea agreement and ensured the Court that he understood the terms of the agreement during his Rule 11 hearing. Both the conduct of the Petitioner and the due diligence of his counsel fail to show that Petitioner's counsel was deficient as to satisfy the first part of the Strickland test.
Petitioner also fails to prove the second part of the Strickland test, which requires him to show that his counsel's deficiencies deprived him of a fair trial and that but for counsel's errors, the result of the proceeding would have been different. Id. at 694. As stated above, the record is devoid of any evidence that the disposition of the Petitioner's case was not fair. Petitioner was presented with a plea agreement which he read and signed with the assistance of his counsel. Petitioner also stated that he understood the effects of that agreement in court at his Rule 11 hearing. Petitioner does not give, nor does the court find, any evidence that the result of his case would have been anymore advantageous had his counsel implemented an alternative strategy.
For the above reasons, the Petitioner has failed to show that he received ineffective assistance of counsel under Strickland's two-part test.
2. Excessive Restitution Judgement
The Petitioner next argues that the restitution judgment against him was excessive.
Petitioner argues that the Court calculated restitution pursuant to the Mandatory Victim Restitution Act (MVRA) 18 U.C.S.A. § 3663A ex post facto, and instead, it should have used the Victim and Witness Protection Act (VWPA) 18 U.C.S.A § 3663. This position was argued before the Court and the Court decided against the Petitioner. The MVRA was not applied ex post fact because the Petitioner's offense began in 1995 and continued into 1996, the year that the MVRA was enacted. Even though the conspiracy took place before the effective date of the MVRA, the ongoing nature of the conspiracy enabled application of the MVRA without violating Ex Post Facto Clause. U.S. v. Futrell, 209 F.3d 1286 (11th Cir. 2000).
Furthermore, the Petitioner has not shown the Court that it was more appropriate to calculate damages under the VWPA instead of the MVRA. The MVRA was enacted as a supplement to the VWPA, and it allows the District Court judge discretion as to the restitution amount. The only difference between the two acts is that the MVRA allows the judge to set restitution without consideration of the economic circumstances of the defendant. U.S. v. Posnanski, 2000 U.S. App. LEXIS 16970, at 6-7. The MVRA does not apply if the court finds that "determining complex issues of fact related to the cause or amount of the victims' losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process." Id. at 6. The Court previously determined that there was no complex issue of fact that would complicate calculating restitution or the sentencing process. Moreover, any complex issues of fact were necessarily resolved in light of the guilty plea and Petitioner's testimony at his co-defendants' trials. Finally, the Court concludes that the restitution amount was not excessive because the Court applied the MVRA to calculate damages within its discretion, and because the Petitioner has not shown any reason that the VWPA should have been applied instead of the MVRA.
3. Further Downward Departure
Next, Petitioner argues that he should have received a further downward departure than the one stipulated in his plea agreement. The Petitioner contends that the Court should have sentenced him to probation and placed him in the Federal Victim and Witness Protection Program rather than sentencing him according to the mandatory Federal Sentencing Guidelines. District Courts have broad discretion in departing from the sentencing guidelines. U.S. v. Holguin, 16 F. Supp.2d 595, 600 (D. Md. 1998). District Courts may exercise their discretion to depart from the Sentencing Guidelines pursuant to 18 U.S.C.A § 3553(b) only if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." Koon v. United States 518 U.S. 81, 92 (1996) (citing § 3553(b)).
In the present case, pursuant to the United States Sentencing Guidelines, Chapter 5, Part A, the Court calculated that the Petitioner's offense was at level 13 and his criminal history was in Category One. The guideline range for a level 13 offense and a Category One criminal history is 12 to 18 months. See paragraph 49 of the Pre-Sentence Report. The Court used its discretion to depart from the sentencing guidelines because it determined that the Petitioner's substantial assistance to the Government in their cases against his co-defendants was a mitigating factor that should have been considered during sentencing. For his cooperation, the Petitioner received a sentence of six months instead of the recommended maximum of 18 months. This was a downward departure consistent with the Petitioner's plea agreement, and the Petitioner offers nothing that would justify a greater downward departure. It was within this Court's discretion to approve the sentence stipulated in the plea agreement, and that sentence is still approved. Under these circumstances, the Court believes that a further downward departure is not appropriate in this case.
4. Denial of an Evidentiary Hearing
Lastly, the Petitioner argues that he was denied an evidentiary hearing because of ineffective assistance of counsel. Because the Petitioner has failed to show that he was denied effective assistance of counsel under the two-part Strickland test, the Court finds that it does not have to address this issue. The Court reviewed the evidence against the Petitioner in his plea agreement and when he testified at his co-defendants' trials. Therefore, the Court finds no need for an evidentiary hearing to revisit the facts of this case.
CONCLUSION
In short, the Court has reviewed the entire record, including the criminal proceedings and record with respect to the instant motion, and concludes that the Petitioner has not demonstrated that his counsel was ineffective under the Strickland test to warrant relief from the conviction and sentence. The record does not reflect any deficiencies on the part of Petitioner's counsel.
Petitioner's counsel arranged for a plea agreement for the Petitioner and presented the Petitioner's exceptions to that agreement before this Court. The Court concludes that there is no evidence of a performance deficiency. Nor is there any evidence demonstrating unfairness sustained by the Petitioner, or that the disposition of his case would have been different, had the Court found a performance deficiency. Accordingly, the Motion to Vacate, Set Aside, or Correct Sentence is DENIED.
MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
1. Name and location of the court which entered the judgment/conviction being challenged. United States District Court, District of Maryland, Southern Division 6500 Cherrywood Lane, Greenbelt, Maryland 207702. Date of judgment or sentencing. January 26, 2001
3. Length of sentence. Six (6) months
4. Nature of offense (all counts). Conspiracy to defraud the government with respect to false and fraudulent claims.
5. What was your plea? (check one)
(a) Not Guilty [ ]
(b) Guilty [X]
(c) Nolo Contendere [ ]
If you entered different pleas to different counts or charges, explain. ___ ___
6. Kind of trial. (check one)
(a) Jury [ ]
(b) Judge Only [ ]
7. Did you testify at the trial?
Yes [ ] No [X]
8. Did you appeal from the judgment of conviction?
Yes[ ] No[X]
If you answered yes, provide the following information:
A. What grounds did you raise? ___ ___ ___
B. What was the result?
C. What was the date of the decision by the Court of Appeals? ___
9. Did you file a petition for writ of certiorari to the United States Supreme Court?
Yes [ ] No [X]
If you answered yes, what was the result? ___
If you answered yes, what was the date of the decision by the Supreme Court? ___
10. Other than a direct appeal, have you filed any petitions, applications, or motions challenging this judgment in any federal court?
Yes[ ] No[x]
11. If you answered yes, provide the following information for each petition, application, or motion:
A. Name and location of the court where you filed. ___
B. Describe what you filed and the date on which it was filed. ___
C. What grounds did you raise? ___ ___ ___
D. What was the result? ___
E. What was the date of the decision? ___
F. Did you appeal the decision?
Yes[ ] No[ ]
G. What was the result? ___
H. If you did not appeal any adverse decision, explain why you did not appeal.
___ ___
12. Do you CURRENTLY HAVE PENDING in any court any motion, petition, or appeal concerning the judgment being challenged in this petition?
Yes [ ] No [X]
If you answered yes, describe what you filed, when, where, and its current status. ___ ___ ___
13. State BRIEFLY every ground on which you claim you are being held unlawfully. BRIEFLY summarize the facts supporting each ground. If necessary, you may attach additional pages.
A. Ground One: Ineffective assistance of counsel.
Supporting Facts: See attached memorandum pages 4 to 9. ___ ___
B. Ground Two: Counsel failed to object to improper application of restitution statute and imposition of excessive restitution.
Supporting Facts: See attached memorandum pages 10 to 14. ___ ___ ___
C. Ground Three: Failure to properly present to Court factors which warrant departure from Guideline range.
Supporting Facts: See attached memorandum pages 15 to 18. ___ ___ ___
D. Ground Four: Failure to object to violation of Rule 52(b) Fed. Rule Criminal Procedure.
Supporting Facts: See attached memorandum pages 19 to 20. ___ ___
14. If any of the issues that you are raising in this motion have not been previously presented, explain which issues are being raised for the first time and why.
Ineffective assistance of counsel because the plea was not knowing and intelligently and consequently, I involuntarily waived my right to file a direct appeal. Thus, this § 2255 is the only relief available to me to redress all my issues.
15. Give the name of each attorney who represented you at the following:
(a) Trial/plea: Timothy Maloney
(b) Sentencing: Timothy Maloney
(c) Appeal: not available
(d) Post conviction: pro se
16. Do you have any other sentence(s) to be served after you complete the sentence(s)/commitment that is being challenged in this petition?
Yes[ ] No[X]
If you answered yes, provide the following information about each of your future sentences:
A. Name and location of the court that imposed the sentence. ___
B. Length of the sentence.
C. Have you filed, or do you intend to file, a petition or motion attacking this sentence?
Yes[ ] No[ ]
WHEREFORE, Movant prays that the Court grant him all relief to which he may be entitled in this action.
I DECLARE UNDER THE PENALTIES OF PERJURY THAT THE INFORMATION ABOVE IS TRUE AND CORRECT.
SIGNED THIS 13th day of June, 2001
Defendant No.: 001 MEMORANDUM OF LAW IN SUPPORT OF PETITION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. SECTION 2255
PROCEDURAL HISTORY
On August 26, 1999, Hyacinth Udegbe (Udegbe) was arrested and charged with conspiracy to defraud the government with respect to false and fraudulent claims, in violation of Title 18 U.S.C. § 286, a class C felony. The offence occurred from in or about 1995 until in or about 1996 in the state of Maryland.
Pursuant to a plea agreement signed by Udegbe on December 21, 1999, Udegbe appeared before the Honorable Alexander Williams, Jr., and pled guilty.
On January 26, 2001, Udegbe was sentenced to six (6) months imprisonment, three (3) years supervised release, and $256,264.24 (jointly and severally) restitution.
STATEMENT OF FACTS
The issues and arguments alleged throughout this § 2255 had a synergistic effect on Udegbe, and taken separately or cumulatively did alter the balance, and deprived Udegbe of rights secured by the Fifth and Sixth Amendments of the United States Constitution.
What is at stake for Udegbe is his liberty devoid of aversion. On the recision of the plea agreement, Udegbe can never be returned to his "original position." By the time the court gets to hear this § 2255 motion, Udegbe would have served the time by reason of his guilty plea and his surrender of basic constitutional rights. Udegbe's cooperation with the government in his punishment, along with that of his coconspirators, can never be redone.
What is at stake for the government is its interest in securing Just punishment for violations of the law and its interest that one who cooperated with authority in solving a crime is not left unprotected if he fears for his life and that of his beloved family. The interests at stake and the judicial context in which they are weighed require something more than a plea covenant be applied.
ARGUMENTS
The very nature of § 2255 itself, limits the discretions of the court to summarily dismiss the motion under this section, unless the motion, files and records or the case conclusively show that the petitioner is entitled to no relief. In that case, the court shall cause notice thereof to be served upon the United States Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusion of law with respect thereto. 28 U.S.C. § 2255. See also Machibroda v. United States, 368 U.S. 487, 7 LEd 2d 473, 82 SCt 510 (1962); and United States v. Hill, 368 U.S. 424, 427 (1962). Therefore, it would appear that in this case, Udegbe has a right to bring forth this § 2255 petition.
Comes now, the petitioner, Hyacinth Udegbe, pro se, to respectfully submit this motion pursuent to 28 U.S.C. § 2255, thereby moving this honorable court to enter an order vacating petitioner's conviction or correct the sentence on the grounds that the conviction was the result of misrepresentation, inadequate representation and counsel's deficient performance and consequently, was not entered knowingly, voluntarily and intelligently, rendering said conviction and sentence constitutionally invalid.
ISSUES PRESENTED IN THIS MOTION
1. Ineffective assistance of counsel;
2. Counsel failed to object to improper application of restitution statute and imposition of excessive restitution;
3. Failure to properly present to Court factors which warrant departure from Guideline range; and,
4. Failure to object to violation of Rule 52(b) Fed. Rule Criminal Procedure.
ISSUE 1
Petitioner was Denied Effective Assistance of Counsel Based on Counsels Misrepresentation of Facts of Law and Inducemet to Sign Plea Agreement.
Udegbe contends that counsel Maloney rendered ineffective assistance when he knowingly misrepresented the rules and procedures of a plea agreement. Counsel Maloney totally misled Udegbe at the critical stage of post indictment procedures. Fed. Rule. Crim. Pro. 16, thereby causing Udegbe to plead guilty without the privilege of weighing his options and defense strategies.
The Sixth Amendment guarantees a criminal defendant charged with a serious crime the right to effective assistance of counsel. And by the standard of the Strickland court, Strickland v. Washington, 466 U.S. 668, 80 LEd 2d 674, 104 SCt 2052 (1984). "A convicted defendant making a claim of ineffective assistance of counsel must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgement, the court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the "wide range or professionally competent assistance."
In the instant case, when Udegbe retained Maloney as his counsel, Maloney's chief business was to represent Udegbe from the trial up to the appeal phase if need be. As agreed upon, counsel Maloney had a meeting with prosecutors to review inculpatory evidence on Udegbe. Thereafter, counsel Maloney told Udegbe that he didn't think he could take the case to trial based on the government evidence he had seen. At this point, Udegbe after examining the Bill of Particulars provided by the prosecutors, Udegbe not satisfied with the contents of the Bill of Particulars, requested for a discovery inspection, in order to examine for himself the government's physical evidence.
Several days later, attorney Maloney informed Udegbe that the government prosecutors are ready for the discovery inspection as prescribed by Fed. RuleCrim. Pro. 16(a)(1)(C) (Upon defendants request, government shall permit defendant to inspect and copy materials in government control material to defendant's defense preparation, materials intended to be used by government in prosecuting it's case). Counsel Maloney told Udegbe that the visit to the prosecutor's office was for discovery only, and if not, the session has to be brought to an abrupt end. When counsel and Udegbe got to government prosecutor's office, it turned out counsel Maloney had indeed arrainged for a plea negotiation session. Udegbe was subjected to a lot of interrogation by which counsel Maloney facilitated the violation of Udegbe's right to Fifth Amendment privilege against self-incrimination.
In light of Murray v. Carrier, 477 U.S. 478, 496 (1986) (dictum) "The right to effective assistance of counsel may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial." This is very much in line with the fact that counsel Maloney, sensing that his error had affected Udegbe's substantial rights, reasoned that Udegbe should start thinking about pleading guilty and cooperating with government prosecutors. At this point, Udegbe made it abundantly clear to counsel Maloney that the dispositive issue for him to accept a plea was first and foremost, if counsel could guarantee Udegbe a probationary sentence since Udegbe wanted to be around to take care of his extraordinary family problems and keep his struggling business. Secondly, Udegbe unequivocably rejected the estimated amount of victims loss claimed, and lastly and most importantly, Udegbe informed counsel that if he had to testify against his coconspirators, that the government may have to include him in the government's witness protection program as prescribed in Fed. Rule.Crim. Pro. 18 § 3521, since Udegbe and his family would be exposed to great danger by virtue of-being, a government witness against his coconspirators for obvious various reasons.
Out of the blue, on December 21, 1999, counsel Maloney called Udegbe at his place of business and requested him to stop by his office to examine the proffered plea agreement. When Udegbe saw the plea agreement, Udegbe pointed out the fact that the above mentioned provisions were not stated in the proposed plea agreement and moreover, the plea agreement, dated December 7, 1999, stated inter alia "if this offer has not been accepted by December 13, 1999, it will be deemed withdrawn." At this juncture, counsel Maloney gave Udegbe various oral assurances that the lapsed plea agreement will be reinstated with all Udegbe's demands. In the process of Udegbe's deliberation of whether or not to sign the lapsed plea agreement or wait for one with the correct amendments, counsel Maloney's phone rang and he informed Udegbe the call was from the prosecutor's office, that the government wanted to take Udegbe down for a change of plea. Attorney Maloney instructed Udegbe that the judge during the Rule 11 colloquy will inquire if he's satisfied with defence counsel's service, and that the response should be in the affirmative. Udegbe questioned counsel Maloney what's the reason for the haste and swiftness of the whole process. Counsel Maloney informed Udegbe that time is of the essense. The very next day or so, counsel Maloney brought Udegbe back to the court. To Udegbe's surprise, his fellow coconspirators were also present in the court, at which time they entered a not guilty plea, even though counsel had told Udegbe that these same men (coconspirators) had also signed their own plea agreements on the very day Udegbe had signed his. Udegbe contends that counsel's only reason to bring him back to court on the clay in question was to use Udegbe's presence to help the government straighten out the jurisdictional or perhaps severance issues being that Udegbe's coconspirators came from different states.
When a defendant convicts himself in open court, the constitution recognizes that the critical stage of adjudication has proceeded for the most part outside the courtroom. That process contemplates the pursuit by counsel of factual and legal theories in order to reach a conclusion as to whether a contest would best serve the attorney's client's interest. Ware v. Cox, 324 F. Supp. 568 (E.D. VA 1971).
In the case at the bar, Udegbe respectfully submits that the plea he entered in the instant case, was obtained in violation of the laws and Constitution of the United States. That he was induced to enter the plea. Because the said plea and conviction was obtained by trickery, thus rendering said plea constitutionally invalid.
The United States Supreme Court has repeatedly pronounced that in order to satisfy the dictates of due process, a plea of guilty must be a knowing, intelligent and voluntary act. E.g., Brandy v. United States, 397 U.S. 742, 748 (1970), accord North Carolina v. Alford, 400 U.S. 25, 31 (1970) (plea must "represent a voluntary and intelligent choice among the alternative courses of action open to the defendant"). Thus a plea is not voluntary or intelligent if the advice given by defense counsel on which the defendant relied in entering the plea falls below the level of reasonable competence such that the defendant does not receive effective assistance of counsel. See Tollett v. Henderson, 411 U.S. 258, 267 (1973).
It is a known fact, that to better understand and weigh the level of ineffective assistance of counsel's claim, the indis-pensible standard is Strickland v. Washington, 466 U.S. 687-88 (1984). "The defendant must show that counsel's representationn fell below an objective standard of reasonableness. And the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.
In this case, Udegbe submits that plea agreements are unique contracts to which he had not before been a party. Udegbe was not aware that he was waiving a panoply of rights by pleading guilty. Otherwise how can he knowing abandon his very valuable right to correct a District Court's unknown and unannounced sentence? Furthermore, Udegbe contends that he had adequately and strongly expressed his safety concern for his family both here in America and in his home country, Nigeria, with regard to his being a government witeness only if he's included in the witness protection program along with a probationary sentence, in order to be around and provide his family with the necessary protection they may need as direct consequences of his cooperating with authorities. Otherwise, Udegbe submits that he would have gone to trial and risked a longer prison term had he not been manipulated into pleading guilty. See Hill v. Lockhart, 106 SCt 366, 88 LEd 2d 203 (1985). See also Thomas v. Foltz, 818 F.2d 476, 480 (6th Cir.) cert. denied, 484 U.S. 870, 108 SCt 198, 98 LEd 2d 149 (1987).
In the case at bar, based upon the foregoing, Udegbe respectfully submits that he has satisfied his burden of proving unreasonableness, the first prong of Strickland and the fact that he was ready to go to trial but for counsel's errors. Thus prejudice is obvious here. IN light of these, Udegbe has set forth sufficient facts to establish that in these proceedings, he received ineffective assistance of counsel.
ISSUE 2
FAILURE TO OBJECT TO IMPROPER APPLICATION OF RESTITUTION STATUTE AND IMPOSITION OF EXCESSIVE RESTITUTION.
The Supreme Court has recognized that even an intelligent and educated layman has little and sometimes no skill in the science of law. Indeed, he frequently lacks both the skill and knowledge adequate to prepare a defense even though he may have a perfect one. "He requires the guiding had of counsel at every step of the proceeding against him." See Powell v. Alabama, 287 U.S. 45, 69, 53 SCt 55, 64, 77 LEd 158 (1932). In this instant case, counsel Maloney failed to oppose the improper use of Mandatory Victims Restitution Act of 1996 (MVRA) which became effective April 24, 1996, in computing the amount of restitution. Udegbe contends that the imposition of restitution of this magnitude for a conduct which he contends ended prior to enactment of MVRA, violated ex post facto clause. Moreover, restitution is "punishment" under MVRA and this act disadvantaged him by holding him accountable for full amount of restitution (jointly and severally), when under Victim and Witness Protection Act (VWPA), he would not, in all likelihood have been hald accountable for full amount. E.g., see United States v. Edwards, 162 F.3d 87 (3rd Cir. 1998), accord United States v. Siegel, 153 F.3d 1256 (11th Cir. 1998).
Udegbe submits that he's mindful that court requires all continuing offense such as conspiracy to be sentenced under a new law, where there are changes in law, but he contends that the conspiracy ended before April 24, 1996, when the MVRA took effect. Udegbe stated that overt acts are meaningful only if within the scope of the conspiratorial agreement. The agreement here was to file false income tax returns, which normally occurs between January 1st and April 15th, of each tax year. Regardless of the pro forma averments of the indictment or the Presentence Investigation Report (PSR), the conspiracy has no use after April 15th of 1996. Thus this kind of criminal offense should not be regarded as a continuing offense. See Landgraf v. USI Film Prod., 511 U.S. 244, 114 SCt 1483, 128 LEd 2d 229 (1994), "holding that presumption against retroactive legislation is deeply rooted as elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly, and settled expectations should not be lightlyadisrupted. unless Congress clearly expresses its intent to the contrary, courts presume that a statute has no retroactive application to conduct predating it.
Udegbe contends further that since MVRA calls for full mandatory restitution and in VWPA restitution is discretionary, if the court wants to order restitution, an alternative would be for the court to identify which losses resulted from acts committed after the effective date of MVRA and which of the fraud scheme falls under the VWPA. See 18 USCA (1985 ed.) § 3579, 3580. Also, United States v. Corn, 836 F.2d 889 (5th Cir. 1988).
As a further alternative, Udegbe contends that in assessing the loss, the court should focus on the time at which the criminal acts were committed rather than on the time at which the losses occurred since after April 15, 1996, the conspiracy was of no use. E.g. see United States v. Oldaker, 823 F.2d 778-82 (4th Cir. 1987), accord United States v. Martin, 788 F.2d 184, 188-89 (3rd Cir. 1986).
Udegbe further submits, that indeed counsel's error in this case at bar, resulted in a breakdown in the adversary process which renders the result unreliable. For instance, in the process of Udegbe's cooperation with prosecutors, during some of the fact-finding sessions, at a point, the government and Udegbe appeared to have an impasse, due to Udegbe's inability to recognize or recall some of the transactions presented to him. The prosecutors at this juncture, suggested that Udegbe should confer with his attorney. Counsel Maloney, in order to keep the deal with the government on track, misadvised Udegbe to own up to those questionable transactions which were not familiar to him. Counsel told Udegbe that after all, "he was under immunity," which Udegbe understood to mean whatever he said or admitted can't be used against him. Thus far, Udegbe, mindful of this mistaken belief of immunity, started to own up to most of those questionable transactions, many of which the prosecutors had Udegbe cross out his signatures, figuring out that Udegbe had over-admitted to transactions he shouldn't have admitted.
The constitutional requirement for effective assistance of counsel is not satisfied upon a perfunctory appearance by counsel who does nothing whatever before or during trial to advise a client or to protect his rights except to acquiesce with the client's wishes. Perfunctory or handholding representation is simply not consistent with the right to counsel. See Turner v Maryland, 303 F.2d 507 (1962). This holding is instructive to the inquiry here. Why did counsel Malony, after inducing Udegbe to plea to the "fast-track" plea bargain, keep on telling Udegbe when he was bothering him with the restitution issue, that it's under control, that when it's time for evidentiary hearing, that Udegbe's desire for a more favorable restitution amount will be met.
USSG 1B1.3 makes it specifically clear that the sentencing court should make specific findings as to the scope of the defendant's agreement and whether the conduct of others was foreseeable in light of that scope. Herethen, "reasonable foreseeability" alone is not sufficient to make a defendant "otherwise accountable" for the donduct of others. The conduct must also be in furtherance of the execution of the jointly undertaken criminal activity. E.g., see United States v. Gilliam, 987 F.2d 1009, 1012-13 (4th Cir. 1993) (holding that the acts must have to be within the scope of defendant's agreement). Accord United States v. Jenkins, 4 F.3d 1338, 1346-47 (6th Cir. 1993), "holding that court must determine not only foreseeability, but the scope of criminal activity defendants agreed to jointly undertake," In light of this, Udegbe contends that whatever Femi Oduwole and Chuck Arinzechi and perhaps others along with whatever other activities of Ligali Oyefusi outside the conspiratorial agreement, Udegbe should not be held accountable. I.e., actual loss determination has to be predicated upon harm caused by Udegbe's offenses, and not this excessive restitution amount, a mind-bogling $256,264.24, which to Udegbe is above his ability to pay, even in the next one hundred (100) years.
ISSUE 3
Failure to Properly Present to Court Factors Which Warrant Departures from Guideline Range.
The mere securing of a plea bargain, does not fulfill counsel's duty in this instant case, for to do so would be to reduce the role contemplated by the Constitution to that of a messenger, and to cast the responsibility for the fairness of the entire proceeding upon the individual defendant who the law recognizes is most in need of assistance. See Stern v. Turner, 370 F.2d 895 (4th Cir. 1966). For the foregoing reasons, Udegbe contends that viewing his counsel's dereliction through a retrospective prism does not require 100% success, but rather that no effort was made and failure to act adversely affected the course of the defense and its-outcome. For example, counsel Maloney was apprised of the fact that without adequate protective measures for Udegbe and his family, that it may be dangerous for Udegbe to testify against his coconspirators. For this reason Udegbe requested to be included in the government witness protection program, if he had to be a government witness. The agreement was that when the lapsed plea gets reinstated, Udegbe will be included in the witness protection program. Time and again Udegbe asked counsel if the court has accepted his proposal, and counsel Malony said yes. Udegbe believing that he was under the government witness protection program went ahead and testified against his coconspirators.
Sometime in January, 2001, right before Udegbe was scheduled for sentencing, Udegbe received a letter from his mother back home in Nigeria. Udege's mother informed him about threats to their lives as a result of his involvement in testifying against his fellow Nigerians — being his coconspirators. See Exhibit A (letter from home). At this point in time, Udegbe knew that there is a great possibility his life and that of hi(c) immediate family here in the United States may be in great danger. Udegbe forwarded the said letter to his counsel since the need to be protected by the government had arised. So far, Udegbe is still waiting for the updated plea agreement from counsel Maloney and believes that counsel is still in possession of it. Counsel's refusal to address this pressing issue, through his donduct ostensibly displays an attitude of deliberate indifference to Udegbe's serious predicament that can result to substantial harm to Udegbe and his family. Hence Udegbe, right before he self-surrendered to start his prison sentence, had to temporarily hide his immediate family until the government takes over that responsibility. Counsel, aware of this fact, could not properly present Udegbe's case to the court during the proceedings.
Udegbe further contends, that counsel was aware of his ineligibility for less restrictive terms of confinement or half-way house. Counsel was apprised of this fact at the plea proffer stage. Based on the way Counsel handled this issue, it does not show that he took this into consideration, because reliance and expectation concerns are strong in such circumstances, in that a permanent resident (green card holder) is likely to consider the immigration consequences when deciding whether and how to plead, if the plea is knowing and intelligent.
Udegbe further ploclaims, that counsel Maloney rendered inadequate service when he failed to challgne the PSR in which the probation office wrongly concluded that Udegbe has no ground for downward departures. Indeed, counsel had all the evidence at his disposal, but he chose not to use them, despite the fact that Udegbe pointed out to counsel the grounds that make him eligible for dowward departures.
Udegbe raised the issue of his earlier cooperation with authorities, his post-offense rehabilitation, his vulnerability to harm as a result of his being a government witness and above all his extraordinary family obligations. Udegbe's wife is five months pregnant and she's a very high-risk pregnancy and as such, has to be on bed rest and out of work for the duration of her pregnancy. See Exhibit B. In addition, Udegbe is very much needed in the house to take care of his sick and ill son.
Udegbe submits that based on the above mentioned circumstances, counsel failed to properly present to court his issues. For the commission in preparing the sentencing guidelines does not foreclose the possibility of an extraordinary case that, because of a combination of such characteristics or circumstances, makes the case differ significantly from the heartland.
Again, where there is no statutory ban, the Substantial Assistance Guideline authorizes this court to impose probation even where it would otherwise be prohibited. See United States v. Wilson, 896 F.2d 856 (4th Cir. 1990), accord United States v. Daiagi, 892 F.2d 31 (4th Cir. 1989).
But counsel did not prepare a sentencing memoranda or in the alternative bring to the court's attention that with respect to sentencing outside the Guideline range, that although the plea agreement bound Udegbe and the government to a 2 level reduction for substantial assistance, this court never-the-less had discretion to depart further, since this court was not a party to the agreement. E.g., see United States v. Cunavelis, 969 F.2d 1419 (2nd Cir. 1992), accord United States v. Abuhouran, 161 F.3d 206 (3rd Cir. 1998).
Regardless of all these available avenues to seek downward departure, counsel absolutely cites no federal authority or a proposition with either statutory or decisional precedents. Instead coonsel resorts to make court presentations without any agility.
ISSUE 4
Failure to Object to Violation of Rule 52(b) Federal Rule of Criminal Procedure.
Counsel's failure to make a meaningful, identifiable request for an evidentiary hearing in light of the overwhelming need for one, was unreasbonable under the Strickland standard. 466 U.S. 668, 104 SCt at 2064.
Deviation from a legal rule is "error" and error is "plain error" if it is clear or obvious. Fed. Rules.Crim. Pro. Rule 52(b). In most cases, an error affects substantial rights if it is prejudicial, this is why a competent attorney is needed, one who can wage against this kind of shortcomings.
Recently, the Eighth Circuit held that a district court may not rely on the disputed portions of PSR's to determine loss amount, but must hear evidence to resolve the dispute. Moreso in this instant case, where the PSR was almost one (1) year old instead of the usual ten (10) days ahead of sentencing date. See United States v. Shoff, 151 F.3d 889.
Udegbe contends that under Fed. Rule.Crim. Pro. Rule 52(b), he can conclusively and rightly state that without the evidentiary hearing, the outcome of the District Court's proceedings was substantially affected. Olano, 507 US at 734, 113 SCt 1770.
The fact that the court failed to have an evidentiary hearing to determine the proper victim's loss, Udegbe submits that based on his counsel's advice, that he was looking forward to the hearing to resolve the disputed issue. Going by his counsel's advice, he was hoping that there will be a negotiation on the amount of loss considering his substantial assistance to authorities because departing downwards on the restitution amount is not a forbidden factor under Koon v. United States, 518 U.S. 81, 116 SCt 203 (1996), and 18 U.S.C. § 3553(b). In the light of this, Udegbe believes that the evidentiary hearing will bring forth a loss amount that will be most favorable to the government's and Udegbe's interests.
Above all, Udegbe was made to believe that he had preserved some direct Appellate issues, until counsel informed Udegbe otherwise, when Udegbe requested counsel to file appeal, hence the reason for this § 2255 post conviction relief.
Thus far, Udegbe maintains that the restitution order should be vacated on the alternative ground that the Court failed to advise him during the Rule 11 Colloquy proceedings, that the: Court may not hold an evidentiary hearing after all, to determine the loss.
By and large, Udegbe submits that the Court's conclusory findings that the losses caused by the entire multiple conspiracy were foreseeable to him should be reversed, because this procedure amounts to a fundamental defect which inherently results in this instant case to an omission inconsisent with the rudimentary demands of fair procedure. See United States v. Evans, 155 F.3d 245 (3rd Cir. 1998).
CONCLUSION
WHEREFORE, based on the foregoing and in the interest of justice and due process, Hyacinth Udegbe, has satisfied the standards set forth in Strickland and has established that the proceedings would have been different but for counsel's ineffectiveness. Thus, this honorable Court is respectfully urged to grant Udegbe's motion for withdrawal of his guilty plea or grant an order for specific performance of the plea agreement by way of including petitioner in the witness protection program. And vacate the restitution order or resentence petitioner with or without partial restitution, at a minimum, grant petitioner a prompt evidentiary hearing on the instant motion.ISSUES 3 EXHIBIT A
ISSUES 3
EXHIBIT B
St AGNES
HEALTHCARE
OB/GYN Services
April 10, 2001
To Whom It May Concern:
Please be advised that Franca Onunkwo is currently under my medical care for her high risk pregnancy. Due to complications she has been advised to remain off of work for an indeterminate amount of time.
If you need any additional information, please contact me at 410-368-2523.
Sincerely,
Christos G. Hatjis, M.D. Chairman, Department of OB/GYN Director of Perinatology CGH/amm
900 Caton Avenue • Baltimore, Maryland 21229-5299 • (410) 368-2604 • Fax: (410) 368-3563
DAUGHTERS OF CHARITY • NATIONAL HEALTH SYSTEM