The opinion of the court was delivered by: Nora Barry Fischer United States District Judge
In this action, Defendant Richard Shumaker ("Defendant" or "Shumaker") has filed a motion to withdraw his guilty plea entered at Count One of the Indictment pursuant to a plea agreement with the Government and after a lengthy plea colloquy with the Court on May 20, 2010. (Docket No. 70). He now claims that he is innocent of this offense and that his guilty plea was involuntary because his counsel coerced him into pleading guilty and, thus, provided ineffective assistance of counsel to him. (Id.). The Government opposes Defendant's motion. (Docket No. 76). The Court held a hearing on Defendant's Motion on February 8, 2011 during which Defendant testified and documentary evidence was presented. (Docket Nos. 81, 84). Upon consideration of the parties' arguments and the evidence presented at the hearing, and for the following reasons, Defendant's Motion  is denied.
a.The Instant Conspiracy and Related Criminal Proceedings
The instant action arises out of a criminal conspiracy to commit mail
and wire fraud between at least three individuals, Defendant Richard
Shumaker, Susan Fawcett and Larry Konter. (See Crim. Nos. 09-87,
08-264, 08-267). These individuals participated in a scheme to
defraud American Express by "cycling" or "factoring"*fn1
various credit card accounts in a fashion similar to a "check
kiting" scheme.*fn2 They opened a number of fraudulent
accounts, and processed fake sales of goods and services from
Shumaker's businesses through these accounts, fraudulently inducing
American Express to pay money to cover the fraudulent charges. They
also cycled hundreds of thousands of dollars between the various
accounts, profiting from the "float" or differences in the due dates
set for payments due on each account. All told, the scheme resulted in
losses to American Express of $574,134.40.
The alleged criminal conduct by these individuals was initially investigated by American Express fraud investigators. (Govt. Ex. 12). On June 21, 2006, one of the American Express fraud investigators met with law enforcement officers from Allegheny County and the United States Postal Inspection Service and briefed them on his findings regarding Konter's conduct within American Express, including his dealings with Defendant at issue in this case. (Id. at ¶¶ 9-14). The investigation was then taken over by the Financial Crimes Task Force of Southwestern Pennsylvania, consisting of Allegheny County detectives as well as agents of the United States Postal Inspection Service and the United States Secret Service. (Id.). U.S. Postal Inspector David Anderchak led the federal investigation. (Id.). During the investigation, Inspector Anderchak participated in interviews of Fawcett and Shumaker, on January 11, 2007 and February 20, 2007, respectively. (Id. at ¶¶ 15, 22; see also Govt. Ex. 1). Defendant made a number of incriminating statements during his interview. (Govt. Ex. 1). He described the mechanics of the cycling scheme. He also admitted, among other things, that: he trained Fawcett and directed her during the cycling scheme; he directly paid Konter fees of up to $10,000.00 on several occasions for his performance of his role; there were never any goods or services sold supporting the credit card charges which were made; the cycling scheme grew too quickly and they made bad decisions; and that American Express suffered losses of $395,000.00. (Id. at 2-4).
On April 30, 2007, Inspector Anderchak submitted a sworn affidavit in support of a request for a search warrant for records maintained by Defendant at his place of business, 325 Commerce Drive, Wilmerding, Pennsylvania. (Govt. 12). The affidavit details the entire investigation and his findings regarding the alleged criminal activity of Defendant and his co-conspirators.*fn3 (Id.). The affidavit was sworn before United States Magistrate Judge Francis X. Caiazza and a search warrant was issued. (Id.). Subsequently, the warrant was executed and numerous documents, including email communications and other correspondence, were seized from Defendant's office. (PIR at ¶ 16).
Konter and Fawcett were both charged with one count of conspiracy to commit mail and wire fraud in separate indictments filed on July 9, 2008. (Cr. No. 08-267, Docket No. 1; Cr. No. 08-264, Docket No. 1). Fawcett pled guilty to said offense shortly thereafter, on September 18, 2008. (Cr. No. 08-264, Docket No. 16). Konter also pled guilty on March 6, 2009. (Cr. No. 08-267, Docket No. 21). The sentencing hearings for both Fawcett and Konter were continued a number of times because both were cooperating with the Government against Shumaker.*fn4
A few days after Konter's guilty plea, on March 10, 2009, a federal grand jury returned a one-count indictment against Defendant, alleging that he conspired to commit mail and wire fraud in violation of 18 U.S.C. § 1349. (Docket No. 1). Similar to the charges against Fawcett and Konter, the grand jury charged that, from in or around June 2005 until in or around December 2007, Defendant did knowingly and willfully conspire, combine, confederate, and agree with other persons (i.e., Konter and Fawcett) to commit mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343. (Id.). Inspector Anderchak contacted Defendant shortly after the Indictment was filed, on March 12, 2009, to advise him of the charge and that he would be receiving a summons to appear in federal court on March 31, 2009. (Govt. Ex. 2). Defendant returned Inspector Anderchak's phone call and, although Defendant's responses were increasingly evasive, he made additional incriminating statements to him. (Id.). Chief among them, when questioned regarding who should repay American Express for the losses caused by the cycling scheme, Defendant stated that he should be one of the individuals required to pay American Express back. (Id. at 2).
On March 31, 2009, attorney Patrick J. Thomassey, Esquire*fn5
entered his appearance as counsel in this case for Defendant.
(Docket No. 5). That same day, Defendant was arraigned
before the late Chief Magistrate Judge Amy Reynolds Hay and was
released on a $10,000 unsecured appearance bond, which permitted him
to reside at his home in Florida, outside the Western District of
Pennsylvania. (Docket Nos. 7, 9, 10). The Government provided Mr.
Thomassey with Rule 16 materials at the arraignment, which consisted
of copies of the "search warrant including the affidavit in support of
the search warrant" and Anderchak's two memoranda of interviews from
the February 20, 2007 and March 12, 2009 interviews of Defendant.
(Docket No. 9; see also Govt. Ex. 1, 2). As noted, these documents
thoroughly detail Defendant's alleged criminal conduct as discovered
by Inspector Anderchak and the other law enforcement officers during
the investigation. (Govt. Ex. 1, 2, 12). They also fully support the
criminal allegations set forth in the Indictment. (See Docket No. 1).
Defendant then filed six motions for extensions of time to file pre-trial motions, which were all granted by this Court. (Docket Nos. 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22). Subsequently, on April 8, 2010, Mr. Thomassey filed a motion to withdraw as counsel for Defendant, citing "irreconcilable differences" between him and Defendant. (Docket No. 23). This Court denied Mr. Thomassey's motion to withdraw appearance, without prejudice to re-submission upon the entry of appearance of alternative counsel on behalf of Defendant. (Docket No. 24). None came.
On April 12, 2010, the Court issued a Pretrial Order, which set, amongst other things, jury selection and trial to commence on June 1, 2010 at 9:30 a.m. (Docket No. 25). The Government then filed a motion requesting that a status conference be convened. In his request for a status conference, Government counsel stated his concerns with the trial date and preparation for same given that Defendant had not made any attempts to review discovery and his belief that Defendant, who continued to reside in Florida, was "not taking this case seriously." (Docket No. 26). The Court granted the Government's motion and held a status conference on April 20, 2010. (Docket No. 27, 29). During the conference, Mr. Thomassey advised the Court that Defendant was likely to enter a change of plea, which Defendant confirmed, and Mr. Thomassey also stated that he was no longer seeking to withdraw as counsel in this matter. (Docket No. 29). Consequently, the Court set a change-of-plea hearing for May 20, 2010. (Id.). However, the Court expressly ordered that it would not rescind the Pretrial Order nor the attendant deadlines and hearings at that time. (Docket No. 29). Thus, the matter remained set for trial on June 1, 2010.
Prior to the change-of-plea proceeding, Defendant had certain correspondence with his counsel, Mr. Thomassey. In a letter to Defendant dated May 10, 2010, Mr. Thomassey wrote:
I received your letter of May 3, 2010. All of the things that you talk about in your case are mitigation factors in sentencing. They do not go to guilt of [sic] innocence. I can tell you this; you are walking a very fine line here with this Federal Judge. You stood in front of her several weeks ago and told her that this case was settled and that you were going to enter a plea on May 20, 2010. If you change your mind now, in my opinion, she is going to immediately put you in jail and set a trial date in July or August. You cannot do this going back and forth. I have been practicing criminal law for thirty-five years and I am telling you that there is no way to win your case. You either have to fire me, apply for a Public Defender, or not show up for court. Those are your three options at this point. We have told the Judge that you are going to plead guilty on May 20, 2010 and then be sentenced sometime around five months later. That is still my best advice for you and you should follow it.
Very Truly yours, s/Patrick Thomassey (Docket No. 70-1).*fn6 In advance of the proceeding, on May 11, 2011, the Court received a fax from Thomassey's office containing a version of the plea letter executed by both Thomassey and Defendant. (Ct. Ex. 2). The material terms of the agreement are the same as the version that was ultimately executed in court, including the final passage wherein Defendant agrees that he had reviewed the agreement with his attorney and that no additional promises or representations were made to induce his plea. (Id.).
On May 20, 2010, Defendant pled guilty to one count of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 1349, at Count One of the Indictment, pursuant to a written plea agreement with the Government, which was fully executed during the proceeding. (See Docket No. 31). At the change-of-plea proceeding, the Court engaged in an extensive colloquy with Defendant as required under Rule 11, including questioning Defendant regarding his understanding of the plea agreement, the charges against him, the potential penalties, and the constitutional rights he was waiving as a result of his guilty plea. (See generally Trans. 5/20/10 Hr'g). The Court found that Defendant's plea was knowingly and voluntarily made and accepted it. (Id. at 31-32).
The material terms of the plea agreement included the following. Defendant agreed to: plead guilty to Count One of the Indictment; pay mandatory restitution under the Victim-Witness Protection Act, 18 U.S.C. §§ 3663, 3663A and 3664; pay a special assessment of $100 to the Clerk of Court; and waive his right to appeal his sentence and to file a motion to vacate or other collateral attack on his sentence. (Docket No. 32). In exchange, the Government agreed to stipulate that the loss associated with Defendant's criminal conduct was between $400,000 and $1,000,000, resulting in an adjusted offense level of 21 under U.S.S.G. §§ 2B1.1 and 2B1.1(b)(1)(H), and that said offense level should be reduced by 3 levels under U.S.S.G. § 3E1.1 for acceptance of responsibility, for a total offense level of 18. (Id.). The plea agreement further states that [t]his letter sets forth the full and complete terms and conditions of the agreement between Richard Shumaker and the United States Attorney for the Western District of Pennsylvania, and there are no other agreements, promises, terms or conditions, express or implied. (Id.). Also, Defendant and his counsel executed the plea agreement directly below the following passage:
I have received this letter from my attorney, Patrick Thomassey, Esquire, have read it and discussed it with him, and I hereby accept it and acknowledge that it fully sets forth my agreement with the Office of the United States Attorney for the Western District of Pennsylvania. I affirm that there have been no additional promises or representations made to me by any agents or officials of the United States in connection with this matter. (Id.).
At the time of his plea, Defendant was 68 years old, had attained a bachelor's degree and completed real estate courses necessary to work as a mortgage broker. (Trans. 5/20/10 Hr'g at 3-4). He had no difficulty communicating with his attorney or the Court. (Id. at 4). He averred that he was not under the influence of drugs or alcohol nor was he under the care of a physician, therapist, psychologist or psychiatrist. (Id. at 4-5). Defendant stated that he fully understood the proceedings; his counsel opined that Defendant was competent to plead; and the Court found that Defendant was competent to meaningfully participate in the proceeding based on his response to the Court's questions and his demeanor in the courtroom. (Id. at 5). In this Court's estimation, Defendant is a sophisticated individual, who engaged in a complicated fraud against a large financial institution, and clearly had the mental capacity and ability to understand the nature and circumstances of the proceedings and the consequences of his guilty plea.
As part of this proceeding, Defendant indicated that he was satisfied with the representation that Mr. Thomassey had provided to him and understood the charges against him. (Id. at 6-7). Defendant further indicated that he understood all of the material terms of his plea agreement with the Government and acknowledged his endorsement of the plea agreement. (Id. at 9-10). After hearing the Court's recitation of the constitutional rights and protections that would be lost if he pled guilty (id. at 17-21), along with the government's summary of the elements that it would have been required to prove beyond a reasonable doubt and a summary of the government's evidence (id. at 25-28), Defendant stated that he still wished to plead guilty (id. at 29), which he acknowledged was voluntary and the product of his own free will (id. at 29-31). Specifically, the Court engaged in the following colloquy:
THE COURT: Mr. Conway, what, in summary, would be the government's evidence as to the charge at Count 1 against Mr. Shumaker?
MR. CONWAY: Your Honor, if the defendant were to choose to go to trial in this case, we would present evidence that he was involved in a conspiracy to defraud American Express. The fraud involved submitting applications to American Express for credit cards that did not include all the accurate information with regard to the applicants['] financial condition.
We would present evidence that the purpose of this scheme was to get a bunch of American Express accounts, and then, a merchant account associated with it. And the idea was to, for example, on day one, charge a bunch of services to the American Express business card accounts, receive the payments for them, and then use money from subsequent credit card purchases to pay off the bills. So, it was sort of a running scheme in which they were using money from the scheme to repay liabilities incurred earlier.
In connection with this, Mr. Shumaker paid an individual named Larry Konter approximately $5,000 to open up various accounts that were used in connection with the scheme.
In addition, he had an individual named Susan Fawcett, who opened accounts as the merchant, essentially, and she, at Shumaker's direction, according to her, prepared fraudulent invoices, falsely representing that she had done services for a different company, and then, submitted those requests for payment for those services through the interstate wires to American Express. Once those moneys -- once she received moneys from American Express, those funds would then, in turn, be provided to Mr. Shumaker.
In addition, Miss Fawcett, according to her, and according to the evidence that we would present, used a false name, used her maiden name and variations of her own name in connection with this scheme, which was really designed to avoid internal controls that would have otherwise caught the fraud. American Express had certain internal accounts, where the merchant account couldn't, and the actual account holder couldn't be the same person, essentially. So there were false representations made to American Express to avoid that internal control. They may have otherwise captured the fraud.
In addition, Mr. Shumaker directed the payments to be made to American Express during the course of this that went through the United States mails. And eventually, the payments could no longer be made, they could no longer continue the operation, and I guess Mr. Shumaker was using some of the money from the scheme to pay for his own expenses. So eventually American Express shut the account down, and there was a substantial loss to American Express.
We did execute a search warrant in connection with this case. We found a lot of fraudulent invoices. We found e-mails implicating Mr. Shumaker in this conspiracy.
So, in summary, Your Honor, that would be the evidence that we would intend to present.
THE COURT: Thank you, Mr. Conway.
Mr. Thomassey and Mr. Shumaker, do you agree with the prosecution's summary of what Mr. Shumaker did? Anything you want to add or correct?
MR. THOMASSEY: No additions or corrections to the summary at this point, Your Honor. Thank you.
THE COURT: Okay. The Court then finds that there is, indeed, a factual basis to accept the defendant's plea of guilty to the offense charged at Count 1 in the indictment at Criminal No. 09-87.
Mr. Shumaker, having been advised of all of your rights, do you still wish to plead guilty, sir?
THE DEFENDANT: Yes, ma'am.
THE COURT: Mr. Thomassey, is this consistent with your advice? MR. THOMASSEY: It is, Your Honor, very much so. (Id. at 25-28).
After this extensive colloquy, the Court accepted Defendant's guilty plea and entered a judgment of guilt against him. (Id. at 31-32). Government counsel then notified the Court that the sentencing hearings for Fawcett and Konter could be scheduled, given that their testimony at trial against Defendant was no longer needed. (Id. at 36-37).
A Presentence Order was issued after the proceeding, setting forth
presentence deadlines and scheduling Defendant's sentencing for
September 17, 2010. (Docket No. 34). Then, on May 21, 2010, the Court
issued an Order in Konter's case, scheduling his sentencing -- which
had been held in abeyance pending resolution of Defendant's case --
for July 7, 2010. (Crim. No. 08-267, Docket No. 32). A continuance was
granted and Konter's sentencing was held on July 29, 2010. The Court
imposed the following sentence in Konter's case: 15 months of
imprisonment; 3 years of supervised release with standard and
additional conditions; restitution of $574,134.40; a $10,000 fine; and
a $100 special assessment. (Cr. No. 08-267, Docket No.
54). The Court further ordered that Konter voluntarily surrender to
the U.S. Marshal Service for
service of his sentence by no later than September 9, 2010.*fn7
(Id.). Susan Fawcett's sentencing was held on August 12,
2010. (Cr. No. 08-264, Docket No. 51). The Court imposed the following
sentence in Fawcett's case: 5 years' probation with standard and
additional conditions; restitution of $574,134.40 and a $100 special
assessment were ordered; a fine was waived. (Cr. No. 08-264, Docket
No. 52). The period of probation commenced forthwith.
As directed by the Court's Presentence Order, (Docket No. 34), the Probation Office prepared a Presentence Investigation Report ("PIR") for Defendant's case dated August 10, 2010. (Docket No. 39). The PIR included a detailed and thorough recitation of the offense conduct in this case:
5. This case involves a complex scheme to defraud American Express through the use of merchant accounts. The Financial Crimes Task Force of Southwestern Pennsylvania conducted the investigation leading to the indictments in this case.
6. Richard Shumaker has owned Wilmerding World Wide (WWW), which is a consulting business, since the mid-1990s. Shumaker was also affiliated with the following companies: Vasseur Maintenance, Vassuer Industrial, EC Barnes, East Pittsburgh Improvement Company, WIRC, Hamilton Development Company, New Era Technology, Digimax, and Hetrick. Shumaker was a financial consultant who claimed that he could assist businesses in improving their cash flow, when in reality, his "assistance" amounted to a scheme that worked similarly to check kiting.
7. Susan Fawcett was employed at CIS Office Installation and was also employed at WWW. Fawcett was also the owner of Susan Fawcett and Associates, a consulting business which operated out of her residence. Fawcett is the girlfriend of [JV], who is the owner of CIS Office Installations. [YR] is a secretary at WWW.
8. Essentially, Shumaker would have Susan Fawcett process a fake sale, in which no goods or services were provided. American Express would send money to Shumaker. They would later send a bill to Shumaker, who would pay the bill with the money received from the fake sale. However, in between the first sale and the bill, Fawcett would have processed more fake transactions on a different business account associated with Shumaker. Thus, he would receive more money from American Express. The process would repeat itself time and time again. However, Shumaker was spending some of the American Express money on rent, payroll, and other expenses and not paying all that he owed American Express; therefore, he ran up a huge debt to American Express before the Company realized that he was associated with multiple accounts.
10. On June 21, 2006, a postal inspector with the United States Postal Inspection Service and an Allegheny County detective met with an American Express investigator regarding fraud involving an American Express employee. The investigator related that a group of American Express accounts had recently been shut down by American Express for suspicious activity. He stated the accounts in question were opened around the same time period and were only being used at one common American Express merchant terminal, that of Susan Fawcett and Associates.
11. The investigator provided documentation detailing accounts belonging to WWW, CIS, EC Barnes, and others that were all utilized at the American Express merchant terminal of Susan Fawcett and Associates. The American Express investigator stated that all of the accounts in question were opened by American Express salesman Larry Konter. In addition, he stated Konter accepted payments into his PayPal account from Richard Shumaker, utilizing the same American Express accounts which Konter had helped set up. The investigator further stated that Richard Shumaker, who is connected to all of the American Express accounts in question, is currently in legal proceedings with American Express for accounts opened by Vasseur Industrial and Vasseur Maintenance in 2002, which caused a loss of approximately $2,000,000 to American Express. Larry Konter was responsible for setting up the Vasseur accounts connected to Richard Shumaker in 2002.
12. On January 11, 2007, a postal inspector, an Allegheny County detective, and a Secret Service agent interviewed Susan Fawcett. Fawcett informed them that she opened an American Express merchant account at the request of Richard Shumaker and ran "hundreds of thousands of dollars" through the merchant account at Shumaker's request. Fawcett stated Shumaker was "cycling" funds from a number of American Express accounts and that "cycling" involved manipulating the monthly due dates associated with each of the American Express accounts to prolong actual payments. The investigation revealed this practice to be similar to check kiting, only using credit card accounts. Fawcett stated Shumaker's secretary, [YR], kept track of the cycling on a computer at the office of WWW. Fawcett informed them that Richard Shumaker opened American Express accounts for WWW, WIWR, EPIC, EC Barnes, and CIS. Fawcett stated Larry Konter assisted in setting up the accounts and told her to use fictitious names on the accounts to avoid suspicion from American Express. Fawcett did so in order to, on at least two occasions, avoid American Express' internal controls set up to avoid this type of fraud. She additionally created a fake invoice that she provided to Shumaker's secretary. Fawcett stated Shumaker would tell her to bill the accounts through her American Express merchant account, as if she had provided a good or service. She stated American Express would then pay her, and she would write a check to Shumaker for the amount of the transaction. She stated that she never provided any services for the transactions.
13. On January 12, 2007, [JV] was interviewed. [JV] is the owner of CIS. He indicated that Shumaker introduced a way to generate cash for his business using American Express corporate business accounts by "cycling." He stated that although he ([JV]) completed the American Express account applications, Shumaker controlled the accounts and possessed the cards. He stated when he received an American Express bill for CIS, he would mail it to Shumaker. Shumaker would then provide him with a check to pay the bill, and [JV] would mail the payment to American Express.
14. On February 20, 2007, investigators interviewed Shumaker. Shumaker stated he opened American Express corporate business accounts for EC Barnes, WWW, EPIC, WIRC, and CIS in 2005 to cycle the accounts. He stated he instructed Susan Fawcett to open an American Express merchant account to utilize the accounts connected to WWW, CIS, EPIC, etc. He admitted that there never were any legitimate services connected to the charges to the merchant accounts.
15. On April 2, 2007, Shumaker's secretary, [YR], was interviewed. She stated that a credit card system was set up and that she worked with Fawcett on tracking four to five credit card cycles. She stated a cycle is a billing date that takes place at different times each month. She stated that she maintained a spreadsheet on her computer for keeping track of the cycles.
16. Based on the above information, a search warrant was conducted at Shumaker's business. Incriminating e-mails and other correspondence were seized.
17. Shumaker is under investigation for the same type of scheme in Kentucky, where it is alleged that he caused a loss to American Express of over $2,000,000. The conduct which occurred in Pennsylvania, involves a loss of $574,134.40 to American Express.
(PIR at ¶¶ 5-17).*fn8 The PIR further details background information regarding the Defendant and the Probation Office's position as to the applicable statutory penalties, advisory guideline range, and the restitution owed by Defendant, among other things. (See generally, PIR).
The Government and Defendant both filed their positions regarding the PIR, indicating that neither had any objections to the PIR. (Docket Nos. 37, 38). The Probation Office then filed an Addendum to the PIR dated August 24, 2010, noting the lack of any objections by the parties. (Docket No. 41). The Court issued its Tentative Findings and Rulings on August 26, 2010, setting forth the applicable statutory penalties and its tentative guideline calculations. (Docket No. 42). Based on his conviction at Count One of the Indictment, Defendant is subject to the following statutory penalties: a maximum term of imprisonment of 20 years, a term of supervised release of not more than three years, a fine of $100, and mandatory restitution of $574,134.40. (Id.). In addition, the advisory guidelines provide for a sentence of 27-33 months imprisonment, followed by 2-3 years of supervised release and also a fine of $6,000 to $60,000. (Id.).
Defendant's sentencing was originally scheduled for September 17, 2010. (Docket No. 34). However, by Order dated June 24, 2010, the sentencing was rescheduled for September 14, 2010, given the Court's judicial retreat. (Docket No. 35). Subsequently, on September 9, 2010, Defendant filed an unopposed motion to reschedule the sentencing date, citing as reasons interviews of Defendant by federal agents that had yet to occur and Mr. Thomassey's trial schedule. (Docket No. 43). The Court granted said motion and rescheduled the sentencing for November 23, 2010. (Docket No. 44). Thereafter, the Government filed an unopposed motion to continue the sentencing hearing, citing the Assistant U.S. Attorney's trial schedule as the basis for its motion. (Docket No. 45). As before, the Court granted this motion and again rescheduled the sentencing for December 14, 2010 at 9:00 a.m. (Docket No. 46).
Around October of 2010, Defendant began filing a series of motions,
pro se and sending ex parte letters directly to the Court.*fn9
He filed an "emergency" motion to stay proceedings on October
25, 2010. (Docket No. 47). In his motion, Defendant complained about
his counsel, that he had no access to certain documents in the
possession of the Government which were relevant to his sentencing and
lodged allegations against American Express as well as several other
individuals. (Id.). The Court set a hearing on Defendant's "emergency"
motion for December 8, 2010 and separately ordered that Defendant
refrain from any further submissions given that he was represented by
counsel at the time and that any future filings should be submitted to
the Clerk of Court, rather than directly to the Court's Chambers.
(Docket No. 49). Defendant did not abide by this Order and continued
to make pro se filings. On December 3, 2010, Defendant submitted a
motion to continue the hearing scheduled for December 8, 2010 and a
motion to dismiss the case. (Docket Nos. 52, 53). Like his earlier
submissions, these filings state Defendant's displeasure with Mr. Thomassey and indicated
that he intended to request new counsel. (Docket No. 52-1). On
December 4, 2010, the Court denied Defendant's motions separately for
failure to comply with the Court's previous Order. (Docket Nos. 54,
After the Court's December 4, 2010 rulings, and because of Defendant's numerous pro se filings, Mr. Thomassey filed a motion to withdraw his appearance on December 7, 2010. (Docket No. 57). The Court intended to address both Defendant's motion to stay and Mr. Thomassey's motion to withdraw at the December 8, 2010 hearing. However, Defendant failed to appear. (Docket Nos. 48, 54). Therefore, a warrant was issued for his arrest. (Docket Nos. 57, 58, 59). Defendant then made two more pro se submissions on December 10, 2010, a motion to continue his sentencing and a second motion to dismiss the case. (Docket Nos. 62, 63). Included with his filings was a letter addressed to Mr. Thomassey purportedly terminating his services and another letter to Government counsel, where Defendant also expressed his intent to obtain new counsel. (Docket Nos. 62, 63). With respect to his guilty plea, Defendant stated that "[i]n court in April after you submitted a motion to withdraw, I agreed to consider confession as long as I had the opportunity to read and consent to the settlement letter, plus you kept your promise to postpone sentencing one year to go after American Express." (Ct Ex. 14). The Court denied these motions for failure to comply with the previous Order. (Docket No. 64).
Mr. Thomassey reported to the Court during a previously scheduled telephone conference on December 10, 2010 that he had contacted Mr. Shumaker and advised him that a warrant was issued for his arrest given his failure to appear. (Docket No. 68). The Court further advised that the sentencing hearing set for December 14, 2010 may be converted to a motion hearing in the event that Defendant was detained pursuant to the warrant and/or appeared. (Id.).
Defendant appeared for the proceeding on December 14, 2010. (Docket No. 68). At the hearing, the Court heard Defendant's position regarding his failure to appear and as to Mr. Thomassey's motion to withdraw as counsel. (Id.). The Court granted Mr. Thomassey's motion to withdraw and appointed new counsel for Defendant, James Brink, Esquire. (Docket No. 67). Mr. Brink appeared later that day and met with Defendant. (Docket No. 68). The Court then reconvened and, after hearing the parties' positions, entered an order amending Defendant's bond conditions, which permitted him to continue to reside in Florida but required him to make more frequent contacts with Pretrial Services. (Id.; Docket No. 69). The Court also withdrew the outstanding bench warrant. (Docket No. 69).
The matter then was set for sentencing on February 8, 2011. However, in the interim, Defendant, through counsel, filed the pending motion to withdraw his guilty plea and a motion to continue sentencing. (Docket Nos. 70, 71). The Government filed responses opposing both of Defendant's motions on January 24, 2011. (Docket Nos. 74, 75). Defendant, again through counsel, filed a reply brief wherein he reiterated his request that a hearing be held on his motion to withdraw his guilty plea. (Docket No. 76). At a status conference on January 28, 2011,*fn10 the Court heard brief argument regarding whether a hearing was necessary and also inquired with counsel regarding the status of the case. (Docket No. 79). The Court ordered that the sentencing hearing scheduled for February 8, 2011 be converted to a motion hearing wherein the Court would accept evidence regarding Defendant's motion to withdraw plea. The Court expressed her displeasure with the lack of preparation by the defense in the six weeks from the previous hearing and ordered that Defendant immediately deliver all evidence he intended to present at the motion hearing to counsel and that defense counsel immediately meet with Government counsel to review all Rule 16 materials. (Docket No. 80). The Court also ordered Defendant to appear in person. (Id.). Defendant's sentencing has been held in abeyance pending the resolution of the present motion to withdraw his guilty plea.
b.Evidence Presented at the February 8, 2011 Motion Hearing
The Court held a motion hearing on February 8, 2011. (Docket Nos. 81, 84). Defendant was the only witness presented by the defense and the Government did not call any witnesses. (Id.). However, documentary exhibits were entered into evidence by Defendant, the Government during cross-examination and the Court during its questioning.*fn11 (Docket No. 81-1).
At the outset of the hearing, the Court detailed the background of the case and asked Defendant standard competency questions. (Docket No. 84 at 3-12). He appropriately answered the Court's questions and the Court was satisfied that he was competent to proceed during the hearing. (Id. at 12). As Defendant's credibility was squarely at issue in this proceeding,*fn12 the
Court carefully reviewed his demeanor and conduct on the witness stand throughout his testimony, particularly in light of his demeanor and conduct before the Court on prior occasions.
Considering the entire record,*fn13 the Court did not find Defendant's testimony to be credible regarding multiple material points. To this end, the Court rejects Defendant's testimony that contradicted his statements at the change-of-plea hearing and his prior statements to Inspector Anderchak as stated in two memoranda of interviews. (See Tran 5/20/10 Hr'g; Govt. Ex. 1, 2). The Court further disregards Defendant's testimony to the extent it conflicted with Inspector Anderchak's sworn affidavit in support of the search warrant. (See Govt. Ex. 12).
In general, Defendant did not appear truthful at the motion hearing.
When difficult questions were posed, he often took long pauses, closed
his eyes and put his hand on his forehead. He also clenched his jaw at
times when the Court turned to directly observe his answers. At one
point during the hearing, he claimed he could not read with his
glasses on, despite the fact that he had read other documents with his
glasses on throughout the hearing. (Docket No. 84 at 84). He also
needlessly contested whether a fax number listed on many of the
documents presented by the Government was his office fax number;
however, many of the documents, including his correspondence with his
attorneys in this case, are stamped with the same fax number and
marked as sent by his company, Wilmerding World Wide. (Docket Nos. 84
at 79, 81, 117-18; 70-1; Ct. Ex. 2). Indeed, the copy of the May 10,
2010 letter from Mr. Thomassey to Defendant that is filed with the
Court-- the critical document supporting his motion to withdraw plea
-- is stamped as sent from Wilmerding World Wide at the same number to
the fax number of his current counsel, James Brink, Esq.*fn14
(See Docket No. 70-1). Throughout, he failed to present any convincing and corroborating evidence to support
much of his testimony. As a whole, Defendant's testimony was at best,
inconsistent; at worst, incredible. With this backdrop, the Court
turns in more detail to Defendant's testimony.
The Court questioned Defendant why he wished to withdraw his guilty plea and he responded stating that he did not feel that he was guilty, that he was put in a position to confess and ultimately, was coerced into confessing. (Docket No. 84 at 12). Defendant explained that he retained Mr. Thomassey to represent him shortly after the indictment was filed, on March 11 or 12 of 2009. (Id. at 16-18). He paid Mr. Thomassey $11,000 of the $20,000 he required for the services provided in this case.*fn15 (Id. at 16). The two had an initial consultation about a week before his May 31, 2009 arraignment. (Id. at 18). Defendant flew ...