United States v. Polanco , 367 F. App'x 226 ( 2010 )

08-3655-cr; 08-3657-cr
United States v. Polanco
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY O RDER DO N O T HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY
O RDER FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE O F
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER
IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the
City of New York, on the 24 th day of February, two thousand ten.
PRESENT:
AMALYA L. KEARSE,
PETER W. HALL,
Circuit Judges,
JED S. RAKOFF,
District Judge.*
__________________________________________
United States of America,
Appellee,
v. Docket Nos. 08-3655-cr(L);
08-3657-cr(Con)
Giglifi Polanco, Jose Miguel Minaya, Lenny Santos, Giovana Taveras,
Defendants,
Cesar Polanco,
Defendant-Appellant.
__________________________________________
*
The Honorable Jed S. Rakoff, of the United States District Court for the Southern
District of New York, sitting by designation.
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FOR APPELLANT: M ICHAEL K. B ACHRACH (Chad Edgar, on the brief); New York,
N.Y.
FOR APPELLEE: W ILLIAM J. H ARRINGTON, of counsel to Preet Bharara, United States
Attorney for the Southern District of New York (Anjan Sahni, Daniel
A. Braun, on the brief), New York, N.Y.
Appeal from a judgment of the United States District Court for the Southern District
of New York (Pauley, J.).
UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court be AFFIRMED.
Defendant-Appellant Cesar Polanco appeals from the district court’s July 14, 2008
consolidated Judgment of Conviction entered following his pleas of guilty in two separate
prosecutions for wire fraud—one involving stolen cars, the other involving the fraudulent
use of debit cards—sentencing him to a 120-month prison term and to a 60-month prison
term to be served concurrently. We assume the parties’ familiarity with the facts, procedural
history, and specification of issues on appeal.
1. Withdrawal of Guilty Plea
The defendant-appellant’s first argument is that the district court (Pauley, J.) erred by
not allowing him to withdraw his guilty plea to the wire fraud/stolen car conspiracy. The
plea proceeding in this case was conducted solely by Judge Pauley. We review the district
court’s denial of a motion to withdraw a guilty plea under an abuse of discretion standard.
United States v. Carreto, 583 F.3d 152, 157 (2d Cir. 2009). A defendant must “show a fair
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and just reason for requesting the withdrawal” of his guilty plea, id. at 157 (quoting Fed. R.
Crim. P. 11(d)(2)(B)), as withdrawing a guilty plea is not an “absolute right,” United States
v. Williams, 23 F.3d 629, 634 (2d Cir. 1994). The appellant bases this part of his appeal on
a claim of an ineffective assistance of counsel due to his counsel’s alleged pressuring of him
to plead guilty, thus nullifying the requirement that a plea be knowing and voluntary. See
Fed. R. Crim. P. 11(b)(2).
A party arguing ineffective assistance of counsel faces a heavy burden under
Strickland v. Washington, 466 U.S. 668, 687 (1984). The appellant must show “that
counsel's performance was so unreasonable . . . that ‘counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment,’ and [] that counsel's
ineffectiveness prejudiced the defendant such that ‘there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been different.’”
United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004) (quoting Strickland, 466 U.S. at
687, 694) (internal citation omitted). In its ruling from the bench, the district court
determined that Polanco failed to offer any objective evidence that would undermine his
clearly articulated voluntary plea before the same court.
The district court did not abuse its discretion in denying Polanco’s motion. Although
appellant argues for a limited remand to develop the record on this issue, he fails to offer
any type of objective evidence that a remand might uncover of his deteriorated relationship
with his attorney. At his plea hearing the appellant was under oath and attested that his plea
was knowing and voluntary, that he had spoken with his attorney about his case and the
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consequences of entering a plea, that he was satisfied with his attorney’s performance, and
that no one had threatened him or forced him to enter his plea of guilty. The district court
determined nothing was amiss about his demeanor at the time. Polanco has offered nothing
other than his own contradictory statements to support his argument, and those are not
enough. United States v. Doe, 537 F.3d 204, 211 (2d Cir. 2008) (“A defendant’s bald
statements that simply contradict what he said at his plea allocution are not sufficient
grounds to withdraw the guilty plea.” (internal quotation marks omitted)). We therefore
affirm the district court’s denial of Polanco’s motion to withdraw his guilty plea.
2. Rule 11 Claim
Polanco next argues that the district court (Owen, J.) during the April 2007 plea
hearing violated Rule 11 in not adequately explaining the nature of the conspiracy to commit
wire fraud charged in the debit card conspiracy. Judge Owen conducted the initial plea
proceeding in connection with this case, but the case was transferred to Judge Pauley prior
to sentencing. We review the appellant’s Rule 11 claim for plain error because the argument
was not made below. A plain error is one that is both plain and affects substantial rights.
United States v. Garcia, 587 F.3d 509, 515 (2d Cir. 2009). “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.” Id. (internal quotation marks omitted). Rule 11(b)(1)(G)
requires the district court, in accepting a guilty plea, to ensure that the defendant understand
“the nature of each charge to which the defendant is pleading.” Fed. R. Crim. P.
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11(b)(1)(G). To demonstrate plain error Polanco argues that the transcript of the plea
hearing shows a lack of an explanation of the elements of wire fraud by either the judge or
the government.
In United States v. Blackwell, 199 F.3d 623, 626 (2d Cir. 1999), we stated that a court
need not follow a particular formula in ensuring the defendant understands the charges
against him. The court can describe “the elements of the offense in [its] own words” or read
the indictment aloud with the elements included. Id. Or, “if defendant's recitation of his
own conduct insufficiently supports the relevant charge, then Rule 11(c)(1) nonetheless is
satisfied where the charging instrument plainly describes the offense and defendant
acknowledges that he read, understood, and discussed with his attorney that legal
document.” Id. (internal quotation marks omitted).**
In the transcript of appellant’s April 2007 plea hearing, there is sufficient evidence
that the court adequately explained the nature of the charge in satisfaction of its obligations
under Rule 11. After the appellant waived the reading of the indictment, the district court
identified the charge of one count of conspiracy to commit wire fraud, and then further
questioned Polanco to ascertain that his plea was voluntary. In an exchange between
Polanco and the district court, all of the elements of the indictment, including the
conspiracy, were described in plain language by both the court and the appellant. To the
**
In 2002, Rule 11 was reorganized and what was Rule 11(c) for the Blackwell decision
is now encompassed in the current Rule 11(b). See Fed. R. Crim. P. 11 Advisory Committee
Note (2002); Report of the Advisory Committee on Criminal Rules, at 40-41(May 10, 2001).
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extent there may have been error, it is doubtful that it was plain; but it was, in any event,
harmless, see Fed. R. Crim. P. 11(h) (“A variance from the requirement of this rule is
harmless error if it does not affect substantial rights.”); Fed. R. Crim. P. 52(a) (“Any error,
defect, irregularity, or variance that does not affect substantial rights must be disregarded.”).
We have considered all of Polanco’s contentions on this appeal and have found them
to be without merit. The judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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