United States v. Renee Perillo ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17–3436
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RENEE S. PERILLO,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 15-CR-202 – Richard L. Young, Judge.
____________________
ARGUED MAY 30, 2018 — DECIDED JULY 30, 2018
____________________
Before WOOD, Chief Judge, and SYKES and HAMILTON, Cir-
cuit Judges.
HAMILTON, Circuit Judge. Defendant-appellant Renee Per-
illo pleaded guilty to conspiracy to commit kidnapping in vi-
olation of 18 U.S.C. § 1201(c), and to commissioning a murder
for hire in violation of 18 U.S.C. § 1958. Before sentencing, Per-
illo moved to withdraw her plea. The district court denied
Perillo’s motion and sentenced her to concurrent terms of 324
2 No. 17-3436
months for conspiracy to kidnap and 120 months for commis-
sioning a murder for hire. The court also ordered Perillo to
pay just under $75,000 in restitution. Perillo appeals the denial
of her motion to withdraw her plea and the restitution order.
Perillo’s plea agreement included a valid appellate waiver that
covers both of these claims, however, so we dismiss her ap-
peal.
I. Factual & Procedural Background
A. Criminal Conduct
The underlying facts here sound like the plot of a medio-
cre novel, focused on Perillo’s relationship with her boyfriend,
Dr. Arnaldo Trabucco, and her attempts to harm Trabucco’s
ex-wife and the ex-wife’s divorce attorney. On May 22, 2015,
police responded to a 911 call from the divorce attorney’s hus-
band. Officers found Perillo and her son, Richard Perillo, hid-
ing in the back of the caller’s SUV in Noblesville, Indiana. The
Perillos had with them a loaded handgun, binoculars, a plas-
tic bag, latex gloves, a knife, a rubber tourniquet, and a sy-
ringe that Perillo claimed contained heroin, but in fact con-
tained a potentially lethal dose of succinylcholine, a paralytic.
The police arrested Perillo and her son. They obtained a war-
rant to search Perillo’s car, where they found: ammunition,
duct tape, a long blonde wig, two machetes, a tranquilizer gun
and darts, alcohol pads, syringes, a “commando” saw, a ham-
mer, a shovel with dirt on it, three license plates, a walking
cane, a priest disguise, and a full-headed silicone mask depict-
ing an elderly man’s face.
Within forty-eight hours, Trabucco bonded Perillo out of
the county jail. Perillo fled west. She was arrested about a
month later in Montana. When she was returned to Indiana,
No. 17-3436 3
she was placed in a cell with Lisa Starr Ramos. According to
the government, Perillo told Ramos about her crimes and that
she still wanted to kill attorney Rebecca Eimerman, the person
she had been hoping would get into the SUV where she was
hiding on May 22 in Noblesville. Ramos contacted the Federal
Bureau of Investigation. An agent suggested that Ramos give
Perillo the name and telephone number of a hitman named
“Don-Don,” who was of course an undercover agent. Ramos
agreed.
Perillo called “Don-Don” to discuss hiring him to kill
Eimerman. She then followed up with a letter describing
Eimerman’s appearance, vehicle, work address, and daily
schedule. She also told “Don-Don” that the murder “should
look like spur of the moment,” and she suggested that he “in-
tercept her at [the] gym and take her to [the] bank” to make
the murder look like a robbery gone wrong.
B. Guilty Plea
In November 2015, Perillo was charged with conspiracy to
kidnap in violation of 18 U.S.C. § 1201(c); possession of a fire-
arm in furtherance of a crime of violence in violation of 18
U.S.C. § 924(c); interstate transportation of a firearm with in-
tent to commit a felony in violation of 18 U.S.C. § 924(b); and
commissioning a murder for hire in violation of 18 U.S.C.
§ 1958. The parties negotiated a plea deal. Perillo agreed to
plead guilty to conspiracy to kidnap and commissioning a
murder for hire. The government agreed to dismiss the other
charges.
Although Perillo pleaded guilty to conspiracy to kidnap,
she maintained that her intent was actually to kill her victims.
In the plea agreement, Perillo admitted that she drove from
4 No. 17-3436
Florida to Nebraska, stopping along the way to pick up her
son and to dig a pit that her son said was intended as a grave
for Trabucco’s ex-wife. When the Perillos could not find
Trabucco’s ex-wife in Nebraska, they headed to Indiana, in-
tending to kill attorney Eimerman. They brought with them
the paralytic and firearm. Perillo also admitted that she later
mailed the letter to the supposed hitman saying that she
would pay him to kill Eimerman. At Perillo’s request, the plea
language was edited to state that Ramos actually wrote a por-
tion of the letter but that it was “adopted by Renee Perillo.”
The district court held a hearing, engaged in a full Rule 11
colloquy to ensure that Perillo’s guilty pleas were knowing
and voluntary, and accepted her pleas of guilty to both
charges. The court’s questioning covered the terms of the plea
agreement, including the waiver of Perillo’s right to appeal
her sentence, which was contingent on her receiving a guide-
line sentence. The court asked Perillo if she understood the
appellate waiver, if she had discussed it with her attorney, and
if she was voluntarily waiving her right to appeal. Perillo re-
sponded “yes” to all of those questions.
About two weeks after the change of plea, Perillo’s daugh-
ter wrote a letter to the court saying that Perillo “wants to
withdraw her plea because she feels she committed perjury,”
that she “never wanted to plead guilty,” but that she did so
because her attorney “pressured her into it.” In response, the
district court allowed Perillo’s initial counsel to withdraw and
appointed new counsel. A month later, Perillo’s new attorney
filed a formal motion to withdraw her guilty plea. The motion
asserted that Perillo’s first attorney had “coerced and pres-
sured” her into pleading guilty; that “being incarcerated” had
put her under “enormous pressure” to plead; that she had
No. 17-3436 5
been “baited and entrapped” by Ramos; and that problems
with her medication had left her “particularly vulnerable” to
Ramos’s influence.
The district court held a hearing where Perillo spoke but
offered no sworn testimony or other actual evidence. Perillo
explained that she felt coerced into pleading by her attorney
and that everything she had said at the colloquy “was a lie,
and it was perjury.” She never asserted that she was actually
innocent, but she claimed that the charges against her were
incorrect, that she was vulnerable when she spoke with Ra-
mos, and that Ramos and the government “set up” the
charges against her.
The district court listened to Perillo’s arguments and then
reviewed her testimony from the guilty plea hearing. The
court noted that she had been under oath in answering the
court’s questions. The court recited her prior testimony that
her mind was clear, that she understood the plea, that she was
pleading voluntarily, and that she was satisfied with her at-
torney. The court then found that Perillo had not presented a
“fair and just” reason to withdraw her plea and denied her
motion. See Fed. R. Crim. P. 11(d)(2)(B) (allowing withdrawal
of plea before sentencing for a “fair and just reason”).
C. Sentencing
At sentencing, the court heard testimony from the in-
tended victim about her losses. Eimerman estimated that she
lost $74,848.71 as a result of Perillo’s conduct: $60,000 in lost
income after her reaction to this terrifying threat prevented
her from working for three months; $2,315.71 for medication
and counseling; $2,533 for installation of a home security sys-
tem; and $10,000 for the estimated value of her SUV, which
6 No. 17-3436
she had given away to a family member after the crime. Per-
illo’s counsel objected to paying restitution on the vehicle and
argued that the government had not submitted sufficient doc-
umentation to support Eimerman’s lost income. Perillo did
not object to the security system or the medical expenses. The
district court ordered the full $74,848.71 in restitution and
sentenced Perillo to a total of 324 months in prison, which was
a guideline sentence.
II. Analysis
On appeal, Perillo challenges the denial of her motion to
withdraw her plea and the restitution order. The government
argues that the appellate waiver in Perillo’s plea covers both
claims. We agree. A “voluntary and knowing waiver of an ap-
peal is valid and must be enforced.” United States v. Sakellar-
ion, 649 F.3d 634, 638 (7th Cir. 2011) (dismissing appeal based
on waiver in plea agreement), quoting United States v. Sines,
303 F.3d 793, 798 (7th Cir. 2002). Our review of Perillo’s appeal
is foreclosed if (1) her claims fall within the scope of the ap-
pellate waiver and (2) the waiver was valid. United States v.
Alcala, 678 F.3d 574, 577 (7th Cir. 2012), citing United States v.
Shah, 665 F.3d 827, 837 (7th Cir. 2011), and United States v. Cole,
569 F.3d 774, 776 (7th Cir. 2009). We also noted in Alcala that
every other circuit that has considered the question has held
that a valid waiver of appeal can require dismissal of an ap-
peal of denial of a motion to withdraw a guilty plea. 678 F.3d
at 578 & n.1. Because a valid waiver covers both of Perillo’s
claims, we dismiss her appeal.
A. Scope of the Waiver
The first question is whether Perillo’s two claims fall
within the scope of the appellate waiver. We review the scope
No. 17-3436 7
of the waiver de novo. See Alcala, 678 F.3d at 577 (deciding, as
a matter of law, the scope of defendant’s waiver). Perillo’s plea
agreement provided:
The defendant understands that the defendant
has a statutory right to appeal the conviction
and sentence imposed and the manner in which
the sentence was determined. Acknowledging
this right, and in exchange for the concessions
made by the Government in this Plea Agree-
ment, the defendant expressly waives the de-
fendant’s right to appeal the conviction imposed
in this case on any ground, including the right
to appeal conferred by 18 U.S.C. § 3742. The de-
fendant further agrees that in the event the
Court sentences the defendant to a sentence
within the advisory guideline range as deter-
mined by the Court, or lower, then the defend-
ant expressly waives the defendant’s right to ap-
peal the sentence imposed in this case on any
ground, including the right to appeal conferred
by 18 U.S.C. § 3742. This waiver of appeal spe-
cifically includes all provisions of the guilty plea
and sentence imposed, including the length and
conditions [of] supervised release and the
amount of any fine.
This broad language covers both claims that Perillo raises in
this appeal. Perillo has waived her “right to appeal the con-
viction imposed in this case on any ground.” That waiver in-
cludes the right to challenge the denial of her motion to with-
draw her plea. United States v. McGuire, 796 F.3d 712, 715 (7th
Cir. 2015) (“When a defendant waives his right to appeal in a
8 No. 17-3436
plea, ‘he also waives his right to appeal a denial of his motion
to withdraw that plea.’”), quoting Alcala, 678 F.3d at 578 (hold-
ing that “a defendant challenges his conviction when he chal-
lenges the district court’s denial of his motion to withdraw a
plea”). The appellate waiver therefore applies to Perillo’s ap-
peal from the denial of her motion to withdraw her plea.
Perillo also waived her right to appeal the restitution or-
der. Perillo’s waiver applies to the “right to appeal the sen-
tence imposed in this case on any ground,” as long as she re-
ceived a sentence within the guideline range, and restitution
is a part of a sentence. See United States v. Worden, 646 F.3d
499, 502 (7th Cir. 2011) (“Because restitution is a part of a crim-
inal sentence, and Worden agreed not to challenge his sen-
tence, he may not appeal the restitution order.”), citing United
States v. Behrman, 235 F.3d 1049, 1052 (7th Cir. 2000) (noting
that an “agreement waiving appeal from ‘any sentence within
the maximum provided in Title 18’ or similar language”
would waive right to appeal restitution order). Perillo was not
given an above-guideline sentence. And contrary to her argu-
ments, the waiver did not need to refer specifically to restitu-
tion in order to apply to the restitution order that was part of
the sentence. The waiver included “all provisions of the …
sentence imposed.” The fact that other specific terms of the
sentence were mentioned and restitution was not does not
take restitution out from under the “all provisions” umbrella.
See Worden, 646 F.3d at 502, citing Behrman, 235 F.3d at 1052.
B. Enforceability
The next question is whether the appellate waiver in Per-
illo’s plea agreement is enforceable. “It is well settled that a
defendant may waive her right to appeal.” McGuire, 796 F.3d
at 715, citing United States v. Woolley, 123 F.3d 627, 631 (7th Cir.
No. 17-3436 9
1997). We will enforce an appellate waiver “so long as the rec-
ord clearly demonstrates that it was made knowingly and vol-
untarily.” Id., quoting United States v. Williams, 184 F.3d 666,
668 (7th Cir. 1999). To determine whether the plea was know-
ing and voluntary, we ask “whether, looking at the total cir-
cumstances surrounding the plea, the defendant was in-
formed of his or her rights.” United States v. Kelly, 337 F.3d 897,
902 (7th Cir. 2003), quoting United States v. Mitchell, 58 F.3d
1221, 1224 (7th Cir. 1995). We review the district court’s factual
findings, including whether the defendant knowingly and
voluntarily entered the plea, for clear error. United States v.
Collins, 796 F.3d 829, 835 (7th Cir. 2015) (applying clear-error
review to factual findings related to knowing and voluntary
nature of plea); United States v. Messino, 55 F.3d 1241, 1248–49
(7th Cir. 1995) (same).
Perillo’s main argument is that she entered the plea agree-
ment before she knew of all available defenses. From this
premise, she contends that her plea and the waiver it contains
were not knowing and voluntary. She argues on appeal that
she has a valid entrapment defense; that she did not learn
about it until after she pleaded guilty; and that she presented
unrebutted evidence of entrapment to the district court,
which should have granted her motion or at least held an ev-
identiary hearing.1
1 The enforceability of a plea agreement typically involves review of
the Rule 11 colloquy to ensure that the defendant pleaded guilty volun-
tarily and that she was properly informed of the charges against her, the
rights she was giving up by pleading guilty, and the terms of the plea
agreement. Perillo does not argue that her Rule 11 colloquy was defective,
only that she lied throughout it. The district judge reviewed the appellate
10 No. 17-3436
We start by noting that Perillo did not clearly raise an en-
trapment defense before the district court. Although Perillo
asserted in her motion that she “was baited and entrapped by
Ms. Ramos,” she never alleged that she was induced into com-
missioning a murder for hire or that she lacked predisposition
to do it. Instead, Perillo argued that “questionable new
charges” were filed against her based on “unfounded infor-
mation from an unreliable jailhouse source.” That is not an
entrapment defense. And when Perillo spoke to the district
judge at the hearing on her motion to withdraw the plea, she
never argued that the government induced her to contact the
hitman. Her main argument was that she felt pressured into
pleading guilty, that her attorney forced her to plead guilty,
and that she lied when she testified otherwise at the Rule 11
colloquy. She did tell the court that medication made her vul-
nerable when Ramos befriended her and that the charges
against her were “set up” between Ramos and the FBI, but
that is as close as she came to arguing entrapment.
Even if Perillo had gone further than she did and had as-
serted the elements of an entrapment defense, that alone
would not have made her plea invalid. Perillo is correct that
she could not knowingly and voluntarily plead unless she
possessed “an understanding of ‘the law in relation to the
facts,’” which includes understanding available defenses.
United States v. Frye, 738 F.2d 196, 199 (7th Cir. 1984), quoting
McCarthy v. United States, 394 U.S. 459, 466 (1969); see also
United States v. Pineda-Buenaventura, 622 F.3d 761, 770 (7th Cir.
2010), quoting United States v. Vonn, 535 U.S. 55, 62 (2002). A
guilty plea can therefore “be involuntary if the defendant was
waiver with Perillo and asked whether she understood it and voluntarily
waived her right to appeal. Perillo said that she did.
No. 17-3436 11
not informed by his lawyer of his defenses to the criminal
charges.” Evans v. Meyer, 742 F.2d 371, 375 (7th Cir. 1984); see
also Stewart v. Peters, 958 F.2d 1379, 1381 (7th Cir. 1992) (know-
ing plea requires that defendant have knowledge necessary to
make “a choice among rationally understood probabilities”).
At the same time, however, “a plea of guilty does not have
to be perfectly informed in order to be voluntary.” Evans, 742
F.2d at 375; see also St. Pierre v. Walls, 297 F.3d 617, 635 (7th
Cir. 2002) (finding that “lawyers need not inform their clients
of every possible defense, argument, or tactic”). Were the law
otherwise, few guilty pleas could survive later challenges
based on “buyer’s remorse” if a defendant could claim that
there was some possible motion or theory her lawyer did not
discuss with her first. Perillo did not need to know of every
defense theoretically available to the charges against her. She
needed to know only the defenses that she could plausibly
raise, given the nature of the charges and the evidence against
her. Entrapment was not such a defense for Perillo. She has
not presented, and could not present, a colorable claim of an
entrapment defense that undermines the knowing and volun-
tary nature of her plea.
Entrapment has two elements: (1) that the government in-
duced the defendant to commit the crime; and (2) that the de-
fendant was not otherwise predisposed to engage in the crim-
inal conduct. United States v. Mayfield, 771 F.3d 417, 420 (7th
Cir. 2014) (en banc). For obvious reasons, Perillo does not ar-
gue that the government entrapped her into driving from
Florida to Indiana with a car full of suspicious and dangerous
paraphernalia, pausing to prepare an empty grave on the way,
stalking Eimerman for several days, and then lying in wait in
Eimerman’s car with a loaded gun and a potentially lethal
12 No. 17-3436
paralytic. Perillo argues only that the government impermis-
sibly induced her to contact a hitman once she was in jail.
Perillo cannot plausibly argue that she lacked a predispo-
sition to commission a murder for hire. By the time she was
incarcerated with Ramos, Perillo had already tried to kill
Eimerman once. And when Perillo contacted the undercover
agent who she believed was a hitman, she did so enthusiasti-
cally. Within 11 days of Ramos’s suggestion, Perillo called the
agent on the phone and wrote a letter providing Eimerman’s
home address and a vague description of her workplace, de-
scribing her physical appearance and her car, and outlining
her morning exercise routine. Perillo told the agent that the
murder “should look like spur of the moment” and “not
planned.” She even suggested two additional targets for mur-
der, saying that “After Rebecca + her husband the bigger
money will come with Pam + Tatianna,” Trabucco’s ex-wife
and the ex-wife’s daughter. Perillo finished the letter by telling
the agent: “I will be calling you soon to check on our progress,
hoorah!” Perillo admitted to sending this letter in her plea
agreement. There was not even a colorable entrapment de-
fense here, so Perillo’s second thoughts on this basis did not
undermine the knowing and voluntary character of her guilty
pleas.2
One more point merits brief discussion. Perillo argues that
United States v. Groll, 992 F.2d 755 (7th Cir. 1993), required the
2Perillo argues that Ramos wrote part of the letter and that she only
“adopted” it. This does not affect our analysis. Even if Ramos wrote some
of the letter, Perillo did adopt it, and she provided extensive details about
her intended victims and called the undercover agent on the phone.
No. 17-3436 13
district court to hold an evidentiary hearing on the entrap-
ment defense or to explain why it found the defense implau-
sible. Groll is distinguishable in two critical ways. First, the
defendant in Groll offered record evidence that supported at
least a colorable entrapment defense. Id. at 759. Perillo has not.
Second, the defendant in Groll pleaded guilty before “the Su-
preme Court decision breathing new life into the entrapment
defense,” so the defendant’s entrapment defense did not con-
tradict her testimony in the Rule 11 colloquy. Id. at 760, citing
Jacobson v. United States, 503 U.S. 540, 548–49 (1992). Perillo’s
attempt to withdraw her plea, by contrast, required her to
contradict almost everything she had told the court in the
Rule 11 colloquy.
Perillo knowingly and voluntarily waived her right to pur-
sue this appeal. The appeal is DISMISSED.