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United States of America v. Gilbert Fischer

August 8, 2012


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Presently before the Court is the MOTION TO WITHDRAW GUILTY PLEA filed by defendant Gilbert Fischer (Document No 48) and the RESPONSE in opposition filed by the government (Document No. 49). The matter has been fully briefed by the parties and is ripe for disposition. After considering and balancing the three factors for withdrawal of a guilty plea set forth in United States v. Jones, 336 F.3d 245 (3d Cir. 2003), the Court finds that Defendant has failed to establish any of the required criteria under Jones. Therefore, the motion will be denied.


Based upon a careful and detailed review of the record to date and the relevant law, the Court has determined that an evidentiary hearing is not required. See United States v. Jasper, 481 F.2d 976 (3d Cir. 1973) (holding that an evidentiary hearing is not required when the record in the proceedings leading to the guilty plea shows compliance with Federal Rule of Criminal Procedure 11 or the record establishes that the plea was voluntarily, knowingly, and intelligently made.) The Court finds and rules that the transcript of the proceeding in which the guilty plea was entered establishes beyond question that Defendant understood the nature of the charges against him and the consequences of the plea and that there existed a factual basis to support such a plea.


On February 1, 2011, the government filed an Information against Defendant in which he was charged with one-count of wire fraud in violation of 18 U.S.C. § 1343, which occurred on or around November 10, 2006. The criminal behavior underlying the criminal charge stemmed from a mortgage brokerage business Defendant, together with Jason Dull,*fn1 owned known as Lender's Corner. Defendant was charged with submitting and causing the submission of a loan application that falsely represented the employment status of the borrower, and a false document that also falsely represented the employment status of the borrower.

On February 9, 2011, Defendant appeared before the Court, with counsel, waived his right to an Indictment and pleaded guilty to the single count Information. The Court conducted a thorough colloquy with Defendant in open court, found that he was competent, acting knowingly and voluntarily, and accepted his guilty plea. Sentencing was scheduled on June 10, 2011.

On April 15, 2011, the Probation Office prepared a Draft Presentence Investigation Report ("PSI") report which was provided to counsel. The Court does not know the content of that draft PSI. A draft PSI was also provided to counsel in the companion case involving Defendant Dull. Each counsel disputed factors material to sentencing in each report and each pursued administrative resolution of those matters through informal presentence conferences with counsel for the government and the United States Probation Office. The disputes with the PSIs were first brought to the attention of the Court on June 8, 2011, when Defendant Dull filed a motion for a status conference to address issues relating to sentencing. Defendant Fischer moved to join the proposed status conference, explaining that both Defendants "are in the same position as it relates to the requested relief." Defendant Fischer's motion was granted. The joint status conference was conducted on June 15, 2011, following which an evidentiary hearing was scheduled on September 14, 2011.

The evidentiary hearing regarding the sentencing factors spanned two days on September 14 and October 13, 2011. A number of witnesses testified over the course of those two days. On November 28, 2011, Defendant Fischer and the government each filed a brief with respect to sentencing factors. (Document Nos. 36 and 37.)

On March 21, 2012, the Court issued Tentative Findings and Rulings. Those Tentative Findings, with the exception of the Abuse of Position of Trust and Obstruction of Justice enhancements, agreed with the position of the government.

A final PSI was prepared by the Probation Office on April 10, 2012, which reflected that Defendant had a total offense level of 22 and a criminal history category of I. Accordingly, under the advisory United States Sentencing Guidelines, his guideline range for imprisonment is 41 to 51 months.

On April 20, 2012, Attorney Stanton D. Levenson entered his appearance for Defendant. Three days later, on April 23, 2012, Attorney Steven C. Townsend filed a Motion to Withdraw as Attorney in which he stated that Defendant had retained other private counsel, specifically Stanton D. Levenson. The Motion was granted on April 23, 2012, and the appearance of Steven C. Townsend as counsel for Defendant was withdrawn and terminated.

On May 29, 2012, a Text Notice of Hearing was filed which scheduled a Sentencing Hearing for Defendant on June 11, 2012. At 7:58 PM on the evening of May 29, 2012, Defendant filed the instant motion to withdraw guilty plea in which he argues that "the Court failed to scrupulously comply with Rule 11 thereby invalidating the guilty plea." Mot. at ¶ 12. Specifically, Defendant contends that he mistakenly believed he could be held criminally liable for the conduct of his employees, that the Court's waiver and plea colloquy was inadequate, that there was not a factual basis for the plea, and that his plea was not knowing and voluntary.

The government responded that under United States v. Jones, 36 F.3d 245 (3d Cir. 2003), the motion should be denied as Defendant "has not made a credible assertion of actual innocence, his claimed reasons for seeking to withdraw his plea are incredible, and allowing the defendant to withdraw his plea of guilty would prejudice the government." Resp. at 13-14.

The Plea Hearing

On February 9, 2012, Defendant appeared in Court with Attorney Townsend and waived his right to an indictment and entered his plea of guilty to Count I of the Information.

At the hearing, the Court placed Defendant under oath and conducted an extensive colloquy with him in open session and in very clear, plain language. The Assistant U.S. Attorney explained that there was no plea agreement as there were issues involving the calculation of the loss amount which the Court would ultimately be called upon to decide.

The Court found Defendant Fischer to be competent to enter a plea of guilty without objection from Defendant or his counsel. The Court further explained Defendant's constitutional and other rights, including: Defendant's right to a trial by jury; his privilege against self-incrimination; his right to participate in jury selection; the applicable burden of proof beyond a reasonable doubt which the government would be required to meet at trial; and his right to confront, question, and cross-examine witnesses at trial. (Tr. at 9-13.) Throughout the colloquy, Defendant indicated that he understood the effect of a guilty plea and stated to the Court that he still desired to plead guilty. (Id. at 13.)

Significantly, during the Sentencing Hearing, the elements of the offense to which Defendant was pleading guilty were specifically explained to him by the Assistant United States Attorney:

MR. CONWAY: There are three elements: One, that there was a scheme or artifice to defraud or obtain monies or properties by materially false and fraudulent presentences (sic), representations or promises as alleged in the information; two, the Defendant knowingly and willfully participated in the scheme or artifice to defraud with knowledge of its fraudulent nature and with specific intent to defraud; and three, that in the execution of the scheme the Defendant used or caused to be used interstate wires.

THE COURT: Mr. Fischer, do you understand that before you could be found guilty of the offense to which you are entering a plea of guilty, the Government would have to prove all of the elements of ...

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