United States v. Lavanture , 74 F. App'x 221 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
9-10-2003
USA v. Lavanture
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4389
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4389
UNITED STATES OF AMERICA
v.
JEAN RUDOLPH LAVANTURE
a.k.a.
RUDY LAVANTURE
Rudy Lavanture,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 97-cr-00428-1)
District Judge: Honorable Harold A. Ackerman
Submitted Under Third Circuit LAR 34.1(a)
July 31, 2003
Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges
(Filed September 10, 2003 )
OPINION
AM BRO, Circuit Judge
Jean Rudolph Lavanture pleaded guilty in 1998 to the federal offense of wire
fraud, and the District Court in 1999 sentenced him to five years probation. Three years
later, Lavanture pleaded guilty in state court to having committed real estate securities
fraud. After holding a hearing and finding Lavanture’s state court conviction violated a
condition of his probation, the federal District Court revoked his probation and
resentenced him to imprisonment. Lavanture appeals the District Court’s decision. We
affirm.1
I.
On February 18, 1998, Lavanture pleaded guilty to Count Three of an indictment
filed in the District of New Jersey that charged on or about March 24, 1997, he used an
unauthorized Visa credit card in violation of 18 U.S.C. §§ 1029(a)(2) and (b)(1). On
April 21, 1999, the District Court sentenced Lavanture to five years probation and a
$10,000 fine. As a condition of his probation, Lavanture was instructed: “[w]hile on
probation, you shall not commit another Federal, state, or local crime . . . .”
On July 18, 2001, a grand jury in the County of New York indicted Lavanture on
23 counts of real estate securities fraud, committed “on or about and between November
18, 1997 and April 6, 2001.” Lavanture pleaded guilty to two of these counts on April 9,
2002. The State moved to have Lavanture sentenced as a predicate felon, citing his prior
conviction for federal wire fraud. At Lavanture’s sentencing on June 5, 2002, the New
York Supreme Court denied the State’s motion, finding the state court indictment alleged
1
We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291.
2
a scheme to defraud over a period of time and that some of the conduct occurred prior to
the federal conviction. The Supreme Court imposed concurrent sentences of one to three
years imprisonment on the first count and two to six years on the second.
On August 9, 2001 – after Lavanture had been indicted by the state grand jury but
prior to his guilty plea and sentencing in state court – the United States Probation Office
petitioned the District Court for a warrant to arrest Lavanture for violating his federal
sentence. The District Court held a hearing on November 25, 2002, and found
Lavanture’s conviction in New York state court violated a condition of his probation.
Accordingly, the District Court revoked Lavanture’s probation and sentenced him to 24
months imprisonment, to run consecutively to his state court prison sentence.
II.
Lavanture challenges on three grounds the District Court’s decision to revoke his
probation. None of the arguments is persuasive, and we address each in turn.
A.
Title 18 U.S.C. § 3565(a) provides a District Court may revoke a sentence of
probation “[i]f the defendant violates a condition of probation at any time prior to the
expiration or termination of the term of probation . . . .” Lavanture argues that because
the criminal conduct giving rise to his guilty plea in state court occurred prior to the date
he was sentenced to probation in federal court, the District Court erred in revoking his
probation. The Government responds that the decision was appropriate because the
3
District Court based the revocation on a state crime that continued for approximately two
years after Lavanture was sentenced to probation. We review a District Court’s order to
revoke a defendant’s probation for an abuse of discretion. Gov’t of the Virgin Islands v.
Martinez, 239 F.3d 293, 297 (3d Cir. 2001).
Lavanture’s argument is based almost exclusively on the Sixth Circuit’s decision
in United States v. Twitty, 44 F.3d 410 (6th Cir. 1995). 2 In that case, the defendant
2
Indeed, this section of Lavanture’s brief is five pages, and more than half of the text
appears to have been cut and pasted directly from Twitty, with almost no alteration or
attribution. In so doing, Lavanture’s counsel ill-represents his client’s interests and for
several reasons we note our strong disfavor of the practice.
First, it is certainly misleading and quite possibly plagiarism to quote at length a
judicial opinion (or, for that matter, any source) without clear attribution. For example, at
pages seven and eight of Lavanture’s brief his counsel has copied, nearly verbatim,
extended passages from Twitty – including string cites and the Court’s summation of the
cases’ holdings – but Twitty is not cited for the first time until page nine. And upon
introducing Twitty, the brief reproduces the Sixth Circuit’s language almost word-for-
word until page eleven, again without adequate citation.
Second, by simply reprinting the Sixth Circuit’s work out of its original context,
certain statements in Lavanture’s brief are inaccurate. For example, it is common and
correct for the Sixth Circuit in its opinion to refer to “this Circuit,” or to describe Twitty’s
rights in the present tense; the same is not true for a brief filed in the Third Circuit eight
years after Twitty was decided. To cite another example, the Sixth Circuit’s statement –
“We fail to see how one can violate a condition of probation before it exists,” 44 F.3d at413 – has been changed in Lavanture’s brief to: “One can violate a condition of probation
before it exists.” Appellant’s Br. at 10. Deleting the clause “we fail to see how,” without
modifying the auxiliary verb “can,” obviously changes the meaning of the sentence, an
error overlooked by Lavanture’s counsel. In fact, the entire paragraph in Twitty where
this sentence appears is included in Lavanture’s brief without any citation to Twitty and
without any changes save two instances where the Sixth Circuit stated “[w]e fail to see”
and “[a]s we have said.” Compare 44 F.3d at 413 (first full paragraph), with Appellant’s
Br. at 10 (second full paragraph).
4
pleaded guilty to one count of wire fraud in federal court in October 1992. In December
1992, while awaiting sentencing, the defendant cashed checks while posing as her
deceased sister. The federal District Court sentenced her to probation in January 1993,
and in October 1993 she pleaded guilty in state court to check fraud. The District Court
revoked her probation in May 1994. However, the Sixth Circuit reversed. It noted that
many circuits “have held that the statutory language of 18 U.S.C. § 3565 and its
predecessor statutes authorize the revocation of probation for conduct occurring after
imposition of the probationary sentence but before commencement of probation.” Id. at
412 (citing, inter alia, United States v. Camarata, 828 F.2d 974 (3d Cir. 1987)). In those
circumstances, a defendant has fair notice, consistent with due process, of what conduct
may result in the revocation of probation. The same is not true, according to the Sixth
Circuit, “for conduct which occurs prior to the date on which the defendant was sentenced
to probation.” 3
But Twitty is inapplicable here, where the District Court did not revoke
Lavanture’s probation for presentence conduct. He argues the New York Supreme
Court’s refusal to sentence him as a predicate felon demonstrates the criminal conduct on
which his state court conviction was based – according to the indictment, committed “on
3
Id. at 413. The Sixth Circuit noted its disagreement with United States v. James, 848
F.2d 160 (11th Cir. 1988), which it described as “[t]he only case holding that probation is
revocable for presentence conduct.” Twitty, 44 F.3d at 412. Because Lavanture’s
probation was not revoked for presentence conduct, we express no opinion on this issue.
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or about and between November 18, 1997 to April 6, 2001” – occurred prior to the date
he was sentenced to probation in federal District Court – April 21, 1999. This is correct,
but only partly so. While the state court did find Lavanture’s securities fraud scheme had
begun before the date of his wire fraud conviction in federal court, it also found his
criminal conduct was an ongoing enterprise that continued after his federal conviction.
More specifically, the state court found:
With respect to count 1, it seems to me that the allegation in count 1 is that
basically it was a scheme to defraud over a period of time. Some of that period
is before the federal conviction, some of it is after the federal conviction, so it
seems to me under the circumstances I can’t really make a finding that the
crime was completed prior to his plea in this case because it really isn’t worded
that way and that’s my ruling.
App. at 88 (emphasis added). Indeed, during his state court plea colloquy Lavanture
himself acknowledged that he continued to engage in criminal activity for almost two
years after he was sentenced to probation on April 21, 1999.4
4
THE COURT: Under this first count here, the AG might want to ask
you some questions, but I want to make sure that you operated a business, you,
yourself, also known as Jean Lavanture and Intrust Investment Realty
Company, LLC, also known as Intrust Realty, these were your companies, and
from on or about November 18, 1997 through April 6th of the year 2001, in
the County of New York, you intentionally engaged in a scheme constituting
a systematic ongoing course of conduct with intent to defraud ten or more
persons and to take property from ten or more persons, basically money, by
false and fraudulent representations, and that in making these false and
fraudulent representations you did actually obtain money from one or more
people while engaged in inducing and promoting the issuance, distribution,
exchange, sale, negotiation and purchase of securities, specifically moneys
paid in connection with the purchase of investments and realty from the U.S.
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In sum, unlike in Twitty, where the criminal offense involved discrete events
(fraudulent check cashing) completed prior to sentencing, Lavanture’s multiyear real
estate fraud was an ongoing violation of a condition of his probation, committed “prior to
the expiration or termination of the term of probation.” 18 U.S.C. § 3565(a).
Accordingly, the District Court did not abuse its discretion in revoking Lavanture’s
probation.
B.
As instructed by 18 U.S.C. § 3565(a)(1), the District Court held a hearing to
consider whether Lavanture’s probation should be revoked. Lavanture argues the District
Court’s questioning of him at this hearing “disclosed bias against the defendant, requiring
reversal on grounds of excessive judicial intervention.” Appellant’s Br. at 12. We have
recognized, as have other circuits, that a “trial judge may elicit germane facts through
interrogation of witnesses on his own initiative,” but also cautioned the court “must not
‘abandon [its] proper role and assume that of an advocate.’” United States v. Wilensky,
757 F.2d 594, 597 (3d Cir. 1985) (internal citations omitted). Lavanture contends the
District Court’s questioning in this instance was “inappropriate and served no purpose,”
Department of Housing and Urban Development, HUD.
Is that true?
THE DEFENDANT: Yes.
App. at 82 (emphases added).
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and “fell below established standards of fairness.” Appellant’s Br. at 16, 19.
This claim is not well-founded. Lavanture raised no objection at the revocation
hearing, and thus we review the District Court’s questioning of him for plain error. See
United States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001) (en banc). Under the plain error
standard:
before an appellate court can correct an error not raised at trial, there must be
(1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three
conditions are met, an appellate court may then exercise its discretion to notice
a forfeited error, but only if (4) the error seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.
Id. (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)). Here there was not
even an error. First, as Wilenksy and related decisions emphasize, excessive questioning
of a witness may especially be prejudicial where the bench influences the jury toward a
conviction. See Wilensky, 757 F.2d at 598 (“In order to reverse on grounds of excessive
judicial intervention, the record must either ‘disclose actual bias on the part of the trial
judge (or) leave the reviewing court with an abiding impression that the judge’s remarks
and questioning of witnesses projected to the jury an appearance of advocacy or
partiality.’”) (emphasis added) (quoting United States v. Beaty, 722 F.2d 1090, 1093 (3d
Cir. 1983)). Lavanture’s probation revocation hearing did not involve a jury. While it
may be possible a District Court’s questioning in these circumstances could be so unfair
as to violate a probationer’s due process rights, we are mindful that “in non-jury
proceedings, questioning by the judge will rarely be prejudicial to the defendant.” United
8
States v. Webb, 83 F.3d 913, 917 (7th Cir. 1996) (internal citation omitted).
Moreover, the District Court’s inquiries in this case were entirely justified. Title
18 U.S.C. § 3565(a) mandates the sentencing judge first hold a hearing to determine
whether a probationer has violated the terms of his sentence and, if so, whether to
resentence him pursuant to the factors set forth in 18 U.S.C. § 3553(a), including “the
need for the sentence imposed to reflect the seriousness of the offense . . . .” Id. at §
3553(a)(2)(A). Having reviewed the record, we believe the District Court’s questions
were intended to satisfy this purpose and well within acceptable bounds. Judge
Ackerman asked Lavanture about the nature and extent of the actions that comprised his
state court offenses and whether he had paid fully the restitution and fines imposed for
both his state and federal offenses. This was not error, much less plain error that affected
Lavanture’s substantial rights.
C.
Lavanture’s final claim is that the representation provided by his former lawyer
constituted ineffective assistance of counsel. Lavanture argues that the former counsel’s
performance was deficient in failing to object to the District Court’s allegedly excessive
questioning at the probation revocation hearing. Lavanture also alleges that in October
2002 he paid the lawyer $3000 to represent him at the probation hearing, but the lawyer
ignored his case. When Lavanture stated he would retain new counsel and seek a refund,
his then-counsel threatened to justify the fee by fabricating his hours. Lavanture also
9
claims he and his lawyer argued repeatedly over the lawyer’s recommendation to accept a
plea offered by the Government.
An ineffective assistance of counsel claim requires Lavanture to demonstrate his
attorney’s representation was both professionally unreasonable and prejudicial to the
outcome of the proceeding. See United States v. Roberson, 194 F.3d 408, 418 (3d Cir.
1999) (citing Strickland v. Washington, 466 U.S. 668, 689, 694 (1984)). We typically
will not entertain an ineffective assistance of counsel claim raised for the first time on
direct appeal. United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998). “[T]he
proper avenue for pursuing such claims is through a collateral proceeding in which the
factual basis for the claim may be developed.” Id. (citation omitted). But there is a
“narrow exception” to this rule: “[w]here the record is sufficient to allow a determination
of ineffective assistance of counsel, an evidentiary hearing to develop the facts is not
needed.” Id. (citation omitted).
We agree with the Government the record is sufficient to rule on Lavanture’s first
allegation, but not the second. As discussed in the preceding section, we are unpersuaded
by Lavanture’s argument the District Court’s questioning of him at the probation
revocation hearing was excessive. Thus, his attorney’s failure to object to this
questioning was neither unreasonable nor prejudicial. The record contains no
information, however, as to Lavanture’s claim that the attorney collected payment for
work he had not performed and that he pressured Lavanture to take a plea. These claims
10
are more properly pursued in a collateral proceeding under 28 U.S.C. § 2255. See id.*****
For the reasons stated, we shall affirm the judgment of the District Court.
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Thomas L. Ambro
Circuit Judge
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