United States v. Peleti Peleti ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1507
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
P ELETI P ELETI, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 06-40117—Michael M. Mihm, Judge.
A RGUED D ECEMBER 3, 2008—D ECIDED A UGUST 4, 2009
Before E ASTERBROOK, Chief Judge, and M ANION and
W OOD , Circuit Judges.
W OOD , Circuit Judge. During the time he was
stationed in Kuwait, Peleti Peleti, Jr., then a Chief
Warrant Officer in the U.S. Army, accepted a bag con-
taining $50,000 from a local contractor who sought
Peleti’s help in obtaining a contract to supply flatware
and paper products to the U.S. Army in Iraq. Peleti
pleaded guilty to bribery and smuggling bulk cash into
2 No. 08-1507
the United States, but he later changed his mind and
tried to persuade the district court to allow him to with-
draw his guilty plea. We conclude that the district court
did not abuse its discretion by denying the motion; the
factual basis for the bribery plea establishes that Peleti
committed bribery, Peleti received effective assistance
of counsel, and any ineffective assistance did not
prejudice Peleti. We therefore affirm.
I
In 2005, Peleti served as the Army Theater Food
Service Advisor for Kuwait, Iraq, and Afghanistan. Sta-
tioned in Kuwait, Peleti advised his superiors on the
food service program, monitored existing food service
contracts, and helped develop new contracts. One of the
suppliers Peleti worked with was Gulf Catering Com-
pany. Peleti developed a relationship with the company’s
Chief Executive Officer, Ibraham. (Whether Ibraham is the
CEO’s first or last name is unclear from the record; we
therefore refer to him simply as Ibraham and adopt the
spelling used by Peleti in his written statement.)
Ibraham sought a contract with the U.S. Army to
supply paper products and plastic flatware in Iraq. Peleti
recommended to his superiors that the U.S. Army
award the contract, but his superiors informed Peleti that
a 2001 contract with Kellogg, Brown & Root Services, Inc.,
prohibited the U.S. Army from contracting with another
company. Peleti relayed this information to Ibraham
and told him that “there was no way” Gulf Catering
Company could get the desired contract. Peleti also told
No. 08-1507 3
Ibraham that he would be leaving his position in Kuwait
in December 2005.
Before Peleti left Kuwait, however, he and Ibraham met
privately in Ibraham’s office. Our knowledge of what
occurred during that meeting comes from a written
statement Peleti gave to investigators on July 25, 2006, and
Peleti’s admissions to the district court during his plea
colloquy. Peleti’s appeal accepts these statements as
true, and so we do the same.
The meeting occurred in the first week of December 2005,
less than two weeks before Peleti left Kuwait on
December 14, 2005. At the meeting, Peleti told Ibraham
several times that Gulf Catering Company would not
receive the contract for paper products and plastic flat-
ware. Ibraham listened, but persisted in asking Peleti,
“Well, see if you can continue.” Ibraham then gave Peleti
a bag containing $50,000. Peleti accepted the money.
Peleti never told Ibraham that Peleti could secure the
contract for Gulf Catering Company, but at the same
time, Peleti knew that Ibraham gave him the money
in order to influence Peleti to do what he could to get
the contract for Ibraham. This is clear from a question
the district court asked Peleti: “At the time you received
the money, actually got it in your hand from him, was
it your belief that he was giving this to you for the
purpose of influencing your official actions?” Peleti
answered, “Yes, Your Honor.”
Peleti maintained contact with Ibraham after Peleti left
Kuwait. The district court asked Peleti if he had phone
calls with Ibraham after receiving the $50,000 and Peleti
4 No. 08-1507
answered yes. He referred to “conversations” with
Ibraham and stated that during one of those conversa-
tions he told Ibraham that Gulf Catering Company
still could not receive the contract.
The government charged Peleti with receipt of a bribe
by a public official, in violation of 18 U.S.C. § 201(b)(2)(A),
smuggling bulk cash into the United States, in violation
of 31 U.S.C. § 5332, and criminal forfeiture. On Feb-
ruary 9, 2007, while represented by attorney Donovan
Robertson, Peleti waived indictment and pleaded guilty
to all three counts.
After the district court accepted the guilty plea, but
before sentencing, Peleti replaced Robertson with his
current attorneys. Peleti then filed a motion under F ED. R.
C RIM. P. 11(d)(2)(B) to withdraw his guilty plea. That
motion offered two “fair and just reasons” to withdraw
the plea: (1) there was no factual basis for the guilty plea
to bribery, as required by FED. R. C RIM. P. 11(b)(3); and
(2) the plea was involuntary because Peleti received
ineffective assistance of counsel—specifically, Robertson
failed to consider whether Peleti committed the offense
of accepting an illegal gratuity rather than bribery and
failed to investigate the charges.
The district court denied Peleti’s motion to withdraw his
guilty plea. It found that Peleti, by accepting the money
during a private meeting with Ibraham after Ibraham
asked Peleti, “Well, see if you can continue,” conveyed
to Ibraham that the money would influence Peleti’s
official actions. The court explained its ruling as follows:
[I]t seems very clear to me that when he took that
money, he was in effect saying to that guy, “In spite
No. 08-1507 5
of what I’ve said concerning this situation, you’re
asking me to continue seeing what I can do to try to
influence this decision and I’m accepting this money
under those conditions.” That seems to me to be a
reasonable inference.
Because the facts show that Peleti represented to Ibraham
that the money would influence his official action, the
court reasoned, Peleti’s guilty plea had a basis in fact.
The district court considered the ineffective assistance
claim a closer call, but it ultimately held that Robertson
provided adequate assistance for both the bribery count
and the smuggling count. The court heard testimony
from Robertson and Peleti, but it rejected Peleti’s testi-
mony as “totally lacking in credibility” while accepting
Robertson’s testimony as credible. Because Peleti does not
challenge this finding on appeal, the factual summary
below is based on Robertson’s account.
By the time Robertson was appointed to represent Peleti
in August 2006, Peleti had already given his written
statement to investigators. In that statement, Peleti makes
several damning admissions, including the following:
he experienced “numerous approaches from the contrac-
tors themselves for Bribery for monies and Gifts”; he
received gifts, including “approximately $8,000 [sic] Iraqi
Dinar in exchange for [a] new contract”; he met with
Ibraham to discuss a flatware and paper product contract
and developed a relationship with Ibraham; he received
$50,000 from Ibraham in cash; he stored the cash in his
barracks and spent $30,000 on credit card bills, $10,000
on jewelry for his wife, and the rest on vacations and
6 No. 08-1507
his family. In addition, Peleti expressed regret at his
actions and stated that he “will fully cooperate with the
investigation at hand.” Robertson considered this state-
ment powerful evidence against Peleti, and the district
court agreed. Robertson also learned from the govern-
ment that it possessed a copy of a currency card signed
by Peleti upon his return to the United States on Decem-
ber 14, 2005, on which Peleti swears to bringing less
than $10,000 into the United States. The government
also had a credit card statement showing a $15,000 pay-
ment to Peleti’s wife’s credit card on December 31, 2005.
Robertson had several meetings with Peleti. During
these meetings, Peleti affirmed the written statement
and said that he wanted to continue in that “mode.”
Robertson considered whether the statement could be
suppressed, but saw no legal basis for such a motion.
(Peleti does not question this conclusion.) Peleti ad-
mitted to Robertson that he carried about $40,000 in
cash into the United States 1 and indicated that when he
took the money from Ibraham, he knew Ibraham intended
the money to influence an official action—specifically, to
influence Peleti to do what he could to get Ibraham the
food service contract.
1
We recognize the discrepancy between what Peleti received—
$50,000—and what he admits to bringing back into the United
States—approximately $40,000. But we recite the facts as
recounted by Peleti during his plea colloquy and as described
by Robertson in his testimony. (Perhaps Peleti spent $10,000
in Kuwait.)
No. 08-1507 7
After speaking with Peleti, Robertson read the bribery
statute and the Seventh Circuit model jury instructions
for bribery. Those materials, taken together, indicate
that a defendant commits bribery if he accepts money
knowing that the donor intends the money to influence
an official act. Based on his research, his discussions
with Peleti, and the written statement, Robertson con-
cluded that Peleti had committed the crimes of bribery
and smuggling of cash, and that a jury would likely
convict Peleti on both counts. Robertson discussed his
evaluation of the facts and the likely outcome of a trial
with Peleti and recommended that Peleti plead guilty.
Robertson also discussed on at least 15 different
occasions the effect of taking the case to trial compared
with pleading guilty. He explained to Peleti how a reduc-
tion for the acceptance of responsibility would reduce
Peleti’s sentencing range. In addition, Robertson repeat-
edly assured Peleti that if Peleti decided to go to trial,
Robertson would aggressively represent him.
During the plea hearing, the district court read the
charges and portions of the plea agreement to Peleti. It
then asked Peleti if he had “fully discussed those charges
and the case in general, including any possible defenses
that you might have, with Mr. Robertson” and if Peleti
was fully satisfied with Robertson’s representation and
advice. Peleti answered in the affirmative to both ques-
tions.
The district court found Robertson’s representation
adequate because of Peleti’s admissions in the written
statement, Peleti’s expressed desire to plead guilty, and
8 No. 08-1507
Peleti’s admissions of guilt to Robertson. The court ac-
knowledged Robertson’s limited factual investigation,
but reasoned that Robertson reasonably focused his
efforts on getting the best plea. Furthermore, the district
court found that Peleti failed to show prejudice from
Robertson’s alleged ineffective assistance because it
found that Peleti would have pleaded guilty anyway.
Based on these findings, the district court denied Peleti’s
motion to withdraw the guilty plea. It later sentenced
Peleti to 28 months’ imprisonment, a $7,500 fine, and a
$200 special assessment. It also ordered Peleti to forfeit
to the government certain personal property and entered
a money judgment in favor of the United States for
$50,000. Peleti appeals the denial of his motion to with-
draw his guilty plea.
II
A court may allow a defendant to withdraw a guilty plea
before sentencing if the defendant presents a “fair and
just reason” for doing so. F ED. R. C RIM. P. 11(d)(2)(B). We
review the district court’s decision not to allow the with-
drawal of a guilty plea for an abuse of discretion and
review the court’s factual findings for clear error. United
States v. Carroll, 412 F.3d 787, 792 (7th Cir. 2005).
As we mentioned above, Peleti offered two “fair and just
reasons” for withdrawing his guilty plea: (1) no factual
basis establishing that Peleti committed bribery (as op-
posed to taking an illegal gratuity); and (2) ineffective
assistance of counsel. We first address Peleti’s challenge
to the factual basis.
No. 08-1507 9
To ensure that a defendant’s actions match the crime to
which she pleads guilty, Rule 11(b)(3) requires a court
to “determine that there is a factual basis for the plea.”
Peleti argues that his guilty plea for bribery lacks a suf-
ficient factual basis because it does not establish that
Peleti intended to convey to Ibraham that the $50,000
would influence an official action.
Under 18 U.S.C. § 201(b)(2)(A), a public official is guilty
of bribery if she
directly or indirectly, corruptly demands, seeks,
receives, accepts, or agrees to receive or accept any-
thing of value personally or for any other person
or entity, in return for: (A) being influenced in the
performance of any official act . . . .
To commit bribery, the public official must receive the
money “corruptly.” United States v. Arroyo, 581 F.2d 649,
657 (7th Cir. 1978). An officer can act corruptly
without intending to be influenced; the officer need
only “solicit or receive the money on the representation
that the money is for the purpose of influencing his
performance of some official act.” Id. at 652; see also
United States v. Meyers, 692 F.2d 823, 841-42 (2nd Cir.
1982) (noting that “ ‘being influenced’ does not describe
the [recipient’s] true intent, it describes the intention he
conveys to the briber in exchange for the bribe” and
holding that an official commits bribery if he gives
“false promises of assistance to people he believed were
offering him money to influence his official actions”).
Peleti acknowledges in his brief that if“he misled the bribe-
payor to believe he was going to do a specific official act
10 No. 08-1507
in exchange for something in value,” then he com-
mitted bribery. Peleti argues, however, that he did no
such thing and that there exists no factual basis for
finding otherwise.
The problem for Peleti is that the district court disagreed
and explicitly found that Peleti, by accepting the money
after Ibraham asked Peleti to see if he “can continue,”
conveyed to Ibraham that Peleti would “continue” his
efforts to secure the contract for Ibraham in exchange
for the money. Peleti argues that this finding is clearly
erroneous because Peleti repeatedly told Ibraham that
“there was no way” Gulf Catering Company could
receive the contract and told Ibraham that Peleti was
leaving his position in Kuwait later that month. But
Peleti admitted during his plea that he knew, when he
accepted the money, that Ibraham gave Peleti the
money for the purpose of influencing Peleti’s official
actions. Under these circumstances, the act of accepting
the money speaks louder than Peleti’s words. Whether
Peleti actually intended to be influenced is irrelevant,
so long as Peleti conveyed to Ibraham that the money
would influence him. We see nothing clearly erroneous
about the district court’s finding.
Peleti attempts to turn his appeal into a question of
law by arguing that Peleti must have intended to convey
to Ibraham that the money would influence an official
act and that the facts do not establish such an intent. We
do not see the record this way. The district court was
entitled to find that Peleti intended to indicate to
Ibraham that the money would influence Peleti and that
No. 08-1507 11
Peleti would be an advocate for Ibraham’s company.
And the record shows that the district court made such a
finding, albeit less explicitly than it might have. Perhaps
Peleti’s argument would succeed under different cir-
cumstances, such as where the acceptance of the money
did not convey to the briber an intent to be influenced,
but those circumstances do not exist here.
We now turn to Peleti’s claim of ineffective assistance
of counsel. Ineffective assistance of counsel can render
a plea agreement involuntary, and in such a case, it is a
valid basis for withdrawing a guilty plea. United States v.
Lundy, 484 F.3d 480, 484 (7th Cir. 2007). Indeed, a defen-
dant may withdraw a plea even after it has been accepted,
as Peleti’s was, if he can show any “fair and just reason for
requesting the withdrawal.” F ED. R. C RIM. P. 11(d)(2)(B).
Peleti argues only that Robertson provided constitutionally
ineffective assistance, and so we address that argument
rather than any other possible “fair and just reason” he
might have had to withdraw the plea. (We note as well
that Peleti’s decision to raise this point on direct appeal
means that it will not be available to him later. Once
we have rejected a Sixth Amendment claim on direct
appeal, the law of the case doctrine bars the defendant
from raising it in a motion under 28 U.S.C. § 2255. See
United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995).)
To show ineffective assistance of counsel, a defendant
“must show both that the counsel’s performance was
objectively unreasonable and that, but for counsel’s errors,
the defendant would not have pled guilty.” Lundy, 484
F.3d at 484. A reasonably competent attorney “will
12 No. 08-1507
attempt to learn all of the relevant facts of the case, make
an estimate of a likely sentence, and communicate the
results of that analysis to the client before allowing the
client to plead guilty.” Bethel v. United States, 458 F.3d
711, 717 (7th Cir. 2006).
For the bribery count, Peleti argues that Robertson
failed to advise Peleti of a possible defense: claiming
that Peleti accepted an illegal gratuity in violation of 18
U.S.C. § 201(c)(1)(B) rather than a bribe covered by
§ 201(b)(2)(A). To commit bribery, “there must be a quid
pro quo—a specific intent to give or receive something of
value in exchange for an official act.” United States v. Sun-
Diamond Growers of Cal., 526 U.S. 398, 404-05 (1999) (em-
phasis in original). In contrast, the illegal gratuity
offense requires only that the gratuity be accepted “for
or because of” an official act. Thus, an official commits
the illegal gratuity offense by accepting money as a thank-
you for past help or without a quid pro quo. See
§ 201(c)(1)(B). Peleti points out that in his written state-
ment, he admits accepting the money, but he does not
say what the money was for—it could have been a gift
for Peleti’s past assistance or a gift untied to any
specific official action. Robertson never explored alterna-
tive explanations for the $50,000 with Peleti, Peleti
argues, and Robertson therefore failed to discuss a po-
tentially successful defense with Peleti.
Perhaps Robertson could have devoted more effort to
exploring with Peleti the strategy of characterizing the
payment as an illegal gift, but Robertson’s assistance
was effective under the circumstances. Robertson evalu-
ated the powerful evidence against Peleti, most notably
No. 08-1507 13
Peleti’s written admissions, read the bribery statute and
the relevant Seventh Circuit jury instructions, and spoke
with Peleti. According to the jury instructions and
Peleti’s admissions to Robertson, Peleti committed brib-
ery. Additionally, Peleti repeatedly expressed his desire to
cooperate with the government, in both his written state-
ment and the meeting with Robertson. Robertson discussed
his evaluation of the evidence and possible defenses with
Peleti and repeatedly assured Peleti that he would aggres-
sively represent him if Peleti decided to go to trial. Further-
more, Peleti testified during the plea hearing that he was
fully satisfied with Robertson’s representation and had
discussed the plea agreement and possible defenses with
him. Choosing to believe Peleti’s statements under oath
during the plea hearing is within the district court’s
discretion. The court was also entitled to conclude that
Robertson was making a strategic choice to direct his
efforts where he did, rather than by pursuing other
legal theories including one based on the illegal gratuity
statute.
Peleti also asserts that Robertson failed to investigate
the evidence adequately. Like the district court, we ac-
knowledge that it might have been better if Robertson
had conducted his own investigation rather than rely on
the government’s explanation of the evidence of bribery,
but we evaluate Robertson’s performance based on all
the circumstances he faced. Given the written statement,
Peleti’s admissions to Robertson, and Peleti’s expressed
desire to cooperate, we have no quarrel with the
district court’s holding that Robertson reasonably de-
cided to focus his efforts on obtaining the best possible
plea agreement.
14 No. 08-1507
With respect to the smuggling count, Peleti argues
that Robertson’s assistance was ineffective because Robert-
son did no investigation beyond asking the govern-
ment about its evidence. Although this seems minimal
at first glance, once again a look at the broader circum-
stances convinces us that Robertson’s failure to do more
did not amount to ineffective performance. After all, the
government had a devastating case against Peleti, includ-
ing (1) the written statement in which Peleti admitted to
receiving $50,000 in cash in early December, (2) the cur-
rency card on which Peleti swore to carrying less than
$10,000 into the United States on December 14, 2005,
(3) Peleti’s admission to spending $30,000 of the money
on credit cards, and (4) evidence of a credit card pay-
ment of $15,000 on December 31, 2005. While some in-
ferences are required to come up with the conclusion
that Peleti smuggled the cash into the United States, it is
telling that Peleti has offered no alternative explanation.
As Peleti admitted his guilt to Robertson, Robertson
reasonably concluded that further investigation was
unlikely to turn up evidence exonerating Peleti. Peleti says
only that Robertson should have advised Peleti to put the
government to its standard of proof, but, given Peleti’s ad-
mission of guilt to Robertson, Robertson could not
have offered testimony by Peleti or Peleti’s wife to
explain what happened to the money or where the
credit card payment came from. Given these circum-
stances, Robertson’s decision not to conduct further
investigation and to advise Peleti to plead guilty was
within constitutional standards.
Even if Peleti successfully persuaded us that Robertson
provided ineffective assistance, Peleti would have to
No. 08-1507 15
show a reasonable probability that he would not have
pleaded guilty but for Robertson’s ineffective assistance.
The district court found that Peleti would have pleaded
guilty, and we review that finding for clear error. Peleti
asserts that it is reasonably likely that he would have not
pleaded guilty, but he does not explain why the district
court’s finding to the contrary is clearly erroneous. All
he can do is return to his point about the difference
between taking a bribe and taking an illegal gratuity,
and his insistence that he would not have pleaded guilty
to the former if he had known about the latter. But the
district court agreed with Robertson that the written
statement was powerful proof of guilt of bribery, and that
finding is not clearly erroneous. And in the final analysis,
the district court was entitled to hold Peleti to his word
at the initial guilty plea proceeding, complete with the
inference that his actions met the requirements of the
bribery statute.
***
We A FFIRM the district court’s decision to deny Peleti’s
motion to withdraw his guilty plea.
8-4-09