United States v. Surinder Multani

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 19, 2011
Decided May 19, 2011
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10-1568
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 07 CR 655-1
SURINDER MULTANI,
aka SAM MULTANI, Rebecca R. Pallmeyer,
Defendant-Appellant. Judge.
ORDER
Surinder Multani, a native of India and currently a permanent resident of the United
States, wanted the Small Business Administration to guarantee a $1.35 million loan for a
business venture. The SBA gave approval conditioned upon Multani putting $470,000 of his
own money into the venture. Multani had only $150,000 in his bank account, so he
convinced a friend at the bank to write a letter stating that his balance was $470,000 and to
issue seven cashier’s checks totaling $450,000. Multani then got his $1.35 million loan and
returned the bogus cashier’s checks to his bank after showing them at the loan closing.
Multani later defaulted on the loan, and he pleaded guilty to causing the bank employee to
issue cashier’s checks that were not backed by sufficient funds, in violation of 18 U.S.C.
§ 1005. He also admitted his involvement in many other fraudulent SBA loans totaling $44
million. The district court sentenced Multani to 135 months in prison. Multani filed a notice
of appeal, but his appointed lawyer has concluded that the case is frivolous and seeks to
No. 10-1568 Page 2
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Multani opposes counsel’s
motion. See CIR. R. 51(b). We confine our review to the potential issues identified in
counsel’s facially adequate submission and Multani’s response. See United States v. Schuh,
289 F.3d 968, 973-74 (7th Cir. 2002).
As part of a plea agreement, Multani waived the right to appeal his conviction or
sentence. He also agreed to forego, with limited exceptions, any collateral challenge under
28 U.S.C. § 2255. Those waivers are binding if Multani’s guilty plea was voluntary,
see Nunez v. United States, 546 F.3d 450, 453 (7th Cir. 2008); United States v. Whitlow, 287 F.3d
638, 640 (7th Cir. 2002), so our starting point is the plea. Multani has told counsel that he
wants it set aside, so counsel appropriately has examined the adequacy of the colloquy and
the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002).
But since Multani did not move to withdraw that plea in the district court, our review of
any appellate claim would be for plain error only. See United States v. Vonn, 535 U.S. 55, 59
(2002); United States v. Griffin, 521 F.3d 727, 730 (7th Cir. 2008). Counsel identifies two
omissions in the plea colloquy, but we agree with him that any argument based on these
shortcomings would be frivolous.
Counsel first points out that the district court did not explain the essential elements
of the charge to Multani. The pertinent rule requires that a court disclose the nature of the
charge and confirm the defendant’s understanding, FED. R. CRIM. P. 11(b)(1)(G), and
typically that step is accomplished by reading the charge and listing the essential elements,
see Griffin, 521 F.3d at 729; United States v. Gibson, 356 F.3d 761, 764 (7th Cir. 2004). The
district court did neither (although the prosecutor briefly summarized the critical portion of
the information), but we would not find plain error in that omission. The information is
sufficiently detailed to convey the nature of the charge, see Torzala v. United States, 545 F.3d
517, 523-24 (7th Cir. 2008); Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 197-98
(2d Cir. 2002), and both the plea agreement and the government’s offer of proof at the plea
colloquy adequately detailed the nature of the charge against Multani, see United States v.
Page, 520 F.3d 545, 547-48 (6th Cir. 2008); Frederick, 308 F.3d at 197-98; In re Sealed Case, 283
F.3d 349, 352-54 (D.C. Cir. 2002). In particular, if appellate counsel is correct in assuming
that intent to defraud is an element of the crime defined by paragraph 2 of § 1005, the
subsection under which Multani was charged, compare United States v. Harvard, 103 F.3d 412,
422 (5th Cir. 1997), and United States v. Pollack, 503 F.2d 87, 91 (9th Cir. 1974), with United
States v. Malone, 837 F.2d 670, 672-73 (5th Cir. 1988), and Harrison v. United States, 279 F.2d
19, 23-24 (5th Cir. 1960), then both the plea agreement and the government’s factual basis
readily establish that Multani intended to defraud the bank when he persuaded its
employee to issue the checks despite knowing he had insufficient funds to back them.
Indeed, in the plea agreement Multani stipulated that he engaged in a longrunning scheme
to defraud that began with the events underlying the § 1005 offense. Multani conceded
during the plea colloquy that the government would be able to prove that he committed
No. 10-1568 Page 3
that crime, and his representations to the court in that proceeding are presumed truthful.
Schuh, 289 F.3d at 975; United States v. Pike, 211 F.3d 385, 389 (7th Cir. 2000).
In his Rule 51(b) response, however, Multani proposes that his guilty plea was
involuntary because, he maintains, the facts he admitted could not constitute a violation of
§ 1005. He reads United States v. Barel, 939 F.2d 26 (3d Cir. 1991), to hold that the
government cannot prosecute bank customers under § 1005 because the statute criminalizes
malfeasance by bank employees. But that is not what Barel says. In that decision the Third
Circuit reviewed a conviction under paragraph 3 of § 1005 and observed that bank
customers acting on their own are not subject to liability under § 1005. Id. at 41. The court
stopped short of declaring that no bank customer can be prosecuted for causing, or aiding
and abetting, a § 1005 offense, see 18 U.S.C. § 2(a), (b), and instead concluded that the
particular facts of that case—the defendant’s use of a false social security card to open
several bank accounts—did not assist or precipitate a prosecutable violation of the statute,
Barel, 939 F.2d at 41-43; see United States v. Curran, 20 F.3d 560, 568 (3d Cir. 1994). And more
recently the 10th Circuit, acknowledging Barel, recognized that customers who aid and abet
a bank employee may be convicted under § 1005. See United States v. Weidner, 437 F.3d 1023,
1038 (10th Cir. 2006). Multani’s argument to the contrary would be frivolous.
Appellate counsel identifies one other omission in the plea colloquy: the district
court did not inform Multani that his property may be subject to forfeiture. See FED. R. CRIM.
P. 11(b)(1)(J). But we would conclude that this error was harmless. Multani knew he faced
forfeiture: the information includes a count for forfeiture, and he agreed to the forfeiture in
his plea agreement. Moreover, there is nothing in the record or in his Rule 51(b) response
suggesting that Multani would not have pleaded guilty had the court discussed with him
the forfeiture count at the plea colloquy. See United States v. Dominguez Benitez, 542 U.S. 74,
76 (2004).
It follows that, because Multani’s guilty plea would stand, so too would his waivers
of appeal and of postconviction relief. Thus, Multani’s proposed arguments about the
restitution the district court ordered and the matters surrounding his sentencing would be
barred. See United States v. Quintero, 618 F.3d 746, 751-53 (7th Cir. 2010). The same might
well be true concerning Multani’s proposal to claim that the lawyer who represented him at
the plea colloquy never told him that his guilty plea might lead to his removal from the
country and thus rendered ineffective assistance. Lawyers now must advise their clients
whether a guilty plea carries the risk of deportation, Padilla v. Kentucky, 130 S. Ct. 1473, 1486
(2010), but we have only Multani’s representation that he did not know the immigration
consequences of his guilty plea before it was entered. What is certain, though, is that
Multani changed lawyers after he pleaded guilty, and his new counsel did advise him that a
conviction carried the risk of removal. And yet rather than move to withdraw his guilty
plea, Multani instead argued at sentencing that he should receive a lower sentence due to
No. 10-1568 Page 4
the likelihood that he will lose his resident status. By this maneuver Multani arguably
waived any claim about the prior lawyer’s performance. See United States v. Davis, 121 F.3d
335, 338-39 (7th Cir. 1997). Moreover, even if this claim was not waived, it is better saved for
a motion under § 2255, where the necessary factual predicate can be developed. See Massaro
v. United States, 538 U.S. 500, 504-05 (2003); United States v. Harris, 394 F.3d 543, 557 (7th Cir.
2005). Even that possibility appears to be foreclosed, however, by Multani’s waiver of relief
under § 2255.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Multani’s
appeal.