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United States v. Tarnai

United States District Court, W.D. Pennsylvania

January 12, 2017



          Donetta W. Ambrose Senior Judge


         On January 23, 2013, Defendant pleaded guilty to one Count of producing material depicting the sexual exploitation of a minor, in violation of 18 U.S.C. § 2251; the remainder of the seven-count superseding indictment was dismissed pursuant to the plea agreement, although Defendant acknowledged responsibility for the conduct charged therein. Pursuant to a stipulation in the plea agreement, Defendant was sentenced to a term of 180 months of imprisonment. Before the Court is Defendant's counseled Motion pursuant to 28 U.S.C. § 2255. In his Motion, Defendant contends that his counsel was ineffective when he failed to communicate Defendant's acceptance of an earlier plea offer that would have resulted in a five-year term of incarceration, and that Defendant accepted a later, less favorable plea offer as a result. The Government has filed a Motion to Dismiss Defendant's petition based on a collateral attack waiver in Defendant's plea agreement.[1] On July 21, 2016, the parties appeared at an evidentiary hearing on Defendant's Motion, with a Hungarian interpreter present in a standby capacity. Defendant's retained counsel participated in the hearing, and filed pre- and post- hearing briefs, on his behalf. For the following reasons, the Government's Motion will be granted, and Defendant's denied.


         Relief is available under Section 2255 only under exceptional circumstances, when the claimed errors of law are "a fundamental defect which inherently results in a complete miscarriage of justice, " or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).


         In this case, the Government has proffered a letter dated February 29, 2012, advising then-defense attorney Alexander Lindsay, that it contemplated filing additional charges following a forensic examination of Defendant's computer. That examination led to the discovery of surreptitious video recordings of young boys using Defendant's bathroom, and the Government contemplated adding charges for producing illegal materials in violation of 18 U.S.C. § 2251. The Government, at that time, indicated that it was willing to discuss a possible plea agreement prior to making a final determination regarding additional charges.

         Accordingly, by letter dated April 19, 2012, the Government proposed a plea agreement, by way of a letter marked "DRAFT." The proposal provided that Defendant would plead guilty to Count I of the indictment, charging a violation of 18 U.S.C. § 2252(a)(2), and acknowledge responsibility for the remaining Counts. It also included a waiver of collateral attack rights. The proposed plea outlined and contemplated an offense level of 28, which would have generated an advisory guideline range of 78-97 months. Count I of the indictment carried a mandatory minimum sentence of five years. The agreement also noted that the penalty may be a term of imprisonment of not more than ten years.

         At a July 21, 2016 evidentiary hearing on Defendant's Motion, Ms. Baker testified that she called Mr. Lindsay in mid-May, 2012, at Defendant's request, that she spoke with Mr. Lindsay, and that she told him that Defendant wanted to accept the Government's offer. Ms. Baker was not present at any of Mr. Lindsay's conversations with Defendant, and was not aware of conversations between the two after Ms. Baker's telephone call to Mr. Lindsay. Ms. Baker does not recall Mr. Lindsay stating that he would accept the offer, but he indicated that he would discuss it. Evidentiary Hearing Transcript, pp. 7-10, 12, 13.

         Defendant testified that Mr. Lindsay discussed the plea offer with him, and that he initially intended not to take it, and advised counsel accordingly. Then, he consulted with his family and decided to take the offer. He recalled discussing with Mr. Lindsay "more than once" whether he would accept the offer. He was unable to reach Mr. Lindsay at first, so he contacted Ms. Baker. Later that day, Defendant reached Mr. Lindsay by telephone. When he spoke to Mr. Lindsay, Defendant said, "I asked him to please take the plea offer for me." Mr. Lindsay advised Defendant "it was all right. He would take it." Id. at 17-19.

         Defendant offered the following testimony regarding his response to the plea offer:

GOVERNMENT: Isn't it true that when Mr. Lindsay first told you about the government's April of 2012 plea offer, you told him you were innocent of the charges?
DEFENDANT: I can't recall.

Id. at 28.

DEFENSE COUNSEL: Did it take you a while to admit to yourself you were not innocent?
COUNSEL: What did you tell Mr. Lindsay about the first plea offer?
DEFENDANT: That originally I wasn't thinking of accepting it but I had changed my mind.
COUNSEL: Would you have accepted that plea offer if you had been able to?

Id. at 28-29.

         Mr. Lindsay, in turn, testified that "what [Defendant] continued to maintain is his absolute innocence in the case, that he did not commit the crimes.. .we couldn't enter a plea of guilty because he didn't admit his guilt." Id. at 32. He stated as follows:

MR. LINDSAY: The problem with Mr. Tarnai was he insisted on his innocence of the charges up until the very end and we discussed this with him at substantial length, he could not enter a plea of guilty - we didn't even get to the specifics of the plea agreements because he steadfastly indicated that he was innocent of the charges.[2]
GOVERNMENT: And you couldn't have him plead guilty if he was saying he was innocent of the charges why? **
MR. LINDSAY: We talked to Mr. Tarnai about the fact that there would be a colloquy with the judge taking the plea. It's a detailed, substantial colloquy in federal court and that he would be asked in no uncertain terms whether he admitted that he had done the acts with which he was accrued, and if he could not say that he did it, then the Court would not accept his plea regardless of whatever the terms were. So, as far as what we discussed with Mr. Tarnai, can you admit your guilt in this situation, and he would not and could not. So our position was we couldn't ethically or legally put him in front of a federal judge when he was telling us he was innocent of the charges.

Id. at 38-39.

         Mr. Lindsay further explained:

[E]very time there was a plea letter we received, what we did, Mr. Smith and myself, would take the plea letter, go over the terms of the plea letter with Mr. Tarnai and when we would get to the point where we discussed whether or not he could admit that he did these things, he said he could not.

Id. at 50.

         James Smith, a paralegal who worked with Mr. Lindsay on Defendant's case, testified as follows:

I mean, he maintained his innocence throughout and we explained to him that he would have to appear in front of a judge of this Court and that there would be a colloquy and he would have to acknowledge his guilt and that he would have to convince a judge of his guilt and the facts that he would have to admit to would be whatever the government proffered as the evidence against him...As the evidence continued to ...

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