United States District Court, E.D. Pennsylvania
R. BARCLAY SURRICK, District Judge.
Presently before the Court is Petitioner Donald Hellinger's Motion to Vacate/Set Aside/ Correct Sentence under 28 U.S.C. § 2255 (ECF No. 298). For the following reasons, the Motion will be denied.
On February 10, 2011, a federal grand jury returned a fourteen-count Indictment charging Petitioner with conspiracy, in violation of 18 U.S.C. § 371 (Count 1); operating an illegal money transmission business, in violation of 18 U.S.C. § 1960 (Count 2); operating an illegal gambling business, in violation of 18 U.S.C. § 1955 (Count 3); transmission of wages and wagering information, in violation of 18 U.S.C. § 1084 (Counts 4 through 11); and international money laundering, in violation of 18 U.S.C. § 1956 (a)(2)(A) (Counts 12 through 14). (Indictment, ECF No. 1.) Also charged in the Indictment were: Petitioner's brother, Ronald Hellinger; Michael Weisberg; Randy Trost; Jami Pearlman; and Michele Quigley. (Id.)
Petitioner entered into a plea agreement with the Government. (Min. Entry, ECF No. 101; Plea Doc., ECF No. 102.) The plea agreement provided that Petitioner would plead guilty to Count 2 of the Indictment and, in exchange, the Government would move to dismiss the remaining counts. A violation of 18 U.S.C § 1960 charged in Count 2 has a statutory maximum sentence of 60 months. (Id.) On February 28, 2012, Petitioner entered a plea of guilty pursuant to the plea agreement. On September 19, 2012, a sentencing hearing was held. (Sept. 19, 2012 Hr'g Tr., ECF No. 187.) The Sentencing Guidelines called for a sentence above the statutory maximum. (Id. at 45.) After considering all of the relevant circumstances, a sentence well below the statutory maximum was imposed. Petitioner was sentenced to 36 months incarceration followed by two years of supervised release. (Sept. 19 Hr'g Tr. 48.) Petitioner was represented by Fortunato N. Perri, Jr., Esquire from the time of his arraignment through the time of his plea hearing. (Pet'r's Mot. 3, ECF No. 298.)
On February 26, 2014, Petitioner filed the instant Motion to vacate/set aside/correct sentence under 28 U.S.C. § 2255. (Id.) Petitioner argues that Perri rendered ineffective assistance by failing to timely convey a linked plea offer from the Government to him and to counsel for his co-Defendants. On June 18, 2014, the Government filed a response. (Gov't's Resp., ECF No. 312.) On July 2, 2014, Petitioner filed a reply. (Pet'r's Reply, ECF No. 313.) An evidentiary hearing was held on August 18, 2014 (Aug. 18 Hr'g Tr., ECF No. 325) and September 4, 2014 (Sept. 4, Hr'g Tr., ECF No. 332). At the August 18th hearing, Petitioner presented testimony from Perri, and from his co-Defendants, Jami Pearlman and Randy Trost. At the September 4th hearing, Petitioner testified and presented two additional witnesses: Michael Drossner, Esquire, counsel for Ronald Hellinger; and Robert Welch, Esquire, attorney for co-Defendant Michelle Quigley. The Government presented the testimony of Jeffrey Miller, Esquire, counsel for Jami Pearlman. On October 17, 2014, at the Court's request, the parties each filed proposed findings of facts and conclusions of law. (Gov't's Mem., ECF No. 346; Pet'r's Mem., ECF No. 347.)
II. HEARING TESTIMONY
Perri was Petitioner's attorney from approximately March of 2011 through April of 2012. (Aug. 18 Hr'g Tr. 6; ECF Nos. 35, 123.) The representation began shortly after Petitioner was arraigned, and ended after Petitioner's change-of-plea hearing. (Aug. 18 Hr'g Tr. 6.) Perri has been an attorney for over 25 years. (Aug. 18 Hr'g Tr. 6.) He spent two years as an assistant district attorney, and the remaining years dedicated predominantly to criminal matters in private practice. (Id. at 6-7.)
On December 14, 2011, the Government, through Assistant United States Attorney Joel Sweet ("AUSA Sweet"), extended a collective or "linked plea offer" ("Linked Offer") to Perri. (Aug. 18 Hr'g Tr. 10, 15, 16.) The offer was made over the telephone. (Aug. 18 Hr'g Tr. 10-11.) AUSA Sweet understood that Perri had communicated the Linked Offer to all other defense counsel in the case. (Joint Exhibit ("J. Ex.") 024.)
To accept the Linked Offer, all Defendants had to plead guilty to one count of illegal gambling, in violation of 18 U.S.C. § 1955, and one count of illegal transmission of wagering information, in violation of 18 U.S.C. § 1084. (Id.) If the Linked Offer was accepted by all Defendants by January 10, 2012, each Defendant would receive a three-level reduction for timely acceptance of responsibility. (Id.) If any Defendant rejected the Linked Offer, the offer was withdrawn as to all Defendants. (Id.) The Linked Offer had significantly lower guideline ranges and statutory maximums than what was charged in the Indictment. (Aug 18 Hr'g Tr. 12.) Perri believed that the Linked Offer was a "very good offer" for his client because it would significantly reduce the sentencing guideline range and would lead to a lower sentence. (Id. at 14-15.)
A. Communication of Linked Offer to Defense Counsel
After receiving information about the Linked Offer from AUSA Sweet, Perri conveyed it to counsel for co-Defendants. (Aug. 18 Hr'g Tr. 38-39.) Perri does not recall specifically when he shared the Linked Offer with co-Defendants' counsel; however, it was clear to him that everyone was aware of the situation. (Id. at 15, 24-25, 38, 49.) Perri's testimony in this regard is supported by an e-mail that he sent to Michael Drossner, Anne Dixon, Jeffrey Miller, and Bob Welsh on December 26, 2011. In that e-mail, Perri stated: "I spoke to Joel [Sweet] last week and he wanted me to pass on that the government would like to know by around the 10th of January our decision on a non-trial disposition." (J. Ex. 025.) Obviously, Counsel knew, prior to December 26, 2011, that there was a plea offer on the table with a deadline for acceptance. Nevertheless, Jeffrey Miller, Michael Drossner, and Robert Welch each testified that they first learned about the Linked Offer from a January 6, 2012 e-mail from AUSA Sweet to all counsel. (Sept. 4 Hr'g Tr. 33, 80, 82, 157.) AUSA Sweet's e-mail, which was sent at 10:04 a.m. on January 6th, stated, "the government's plea offer and possibility of reduction [for acceptance of responsibility] expires on January 10." (Aug. 18 Hr'g Tr. 30-31; J. Ex. 022.) Miller responded to the email requesting additional details from AUSA Sweet. (J. Ex. 020.) AUSA Sweet responded by e-mail to Miller at 2:01 p.m. that the Linked Offer had been conveyed to Perri several weeks ago, and Perri had advised Sweet that he had conveyed it to Counsel. AUSA Sweet set forth the details of the plea agreement in the e-mail. (J. Ex. 019.) At 4:12 p.m. on January 6th, Drossner sent the following e-mail to defense counsel:
Based upon the Government's offer, I don't believe a meeting is necessary; instead we should each speak to our respective clients regarding the offer and their options. Please notify me of your client's position and I will contact AUSA Sweet on or before Tuesday.
Hopefully, I will be able to inform him that everyone wants to accept the offer, and I will then request that he prepare a proposed guilty plea agreement for each defendant. While nobody likes deadlines, there is no reason why we need more time to discuss this offer (with the exception of Jeff's client but that is between him and the government).
If possible, please don't wait until Tuesday afternoon to contact me. Also, if you contact the government directly, please let me know so that I'm not waiting for your call/email.
(J. Ex. 023 (emphasis supplied).)
B. Communication of Linked Offer between Petitioner and Perri
Perri does not recall exactly when he first advised Petitioner of the Linked Offer; however, he testified that he had conversations with Petitioner about the Linked Offer between December 14, 2011 and January 5, 2012. (Aug. 18, Hr'g Tr. 23-24.) Perri also testified that he remembered speaking to Petitioner on Friday, January, 6, 2012. (Id. at 43.) When Perri spoke to Petitioner on the 6th, Petitioner was agreeable to the Linked Offer. (Id.) However, Petitioner later ...