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United States v. Schweitzer

July 11, 2006

UNITED STATES OF AMERICA
v.
LEO F. SCHWEITZER, III, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 03-cr-00451) District Judge: Honorable James K. Gardner.

The opinion of the court was delivered by: Fisher, Circuit Judge.

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) June 12, 2006.

Before: FISHER, GREENBERG and LOURIE,*fn1 Circuit Judges.

OPINION OF THE COURT

The record of a case provides the only window by which an appellate court can survey the underlying proceedings, to assess claims of error and the legality of judgment. Development of that record is thus of critical importance, a principle illustrated by this case. Through an extensive plea colloquy and detailed statement of reasons, the District Court created a record that demonstrates both the validity of the guilty plea and the reasonableness of the final, above-guidelines sentence. We will affirm.

I.

A.

Leo F. Schweitzer, III, has a two-decade history of defrauding the Department of Defense. The ill-fated relationship began in the early 1980s, when Schweitzer agreed to supply military contractors with manufactured components for construction and production. The materials that he provided were, however, defective and of little value. Schweitzer pled guilty in 1985 to mail fraud and making false statements, and he was sentenced to fifteen years' imprisonment, to be followed by a term of supervised release. The District Court also enjoined Schweitzer, as a special condition of release, from engaging in contractual arrangements with the United States, either directly or indirectly.

The admonition had little effect. Soon after Schweitzer was paroled in 1990, he and a cohort secured new government supply contracts worth nearly $800,000. They filled these orders through a series of front businesses, which were used to procure the necessary goods on credit from third parties and were then closed when payment was demanded. The scheme was eventually uncovered, and Schweitzer pled guilty in 1995 to conspiracy, making false statements, and money laundering. His parole was revoked, and he was sentenced to forty-one months' imprisonment. Once again, the District Court barred Schweitzer from contracting with the United States, either directly or indirectly.

Once again, the order was ignored. Schweitzer was released from custody in 1999 and quickly launched another plot involving contracts with the Department of Defense. As in the prior scheme, he and a coconspirator used a series of front businesses, nominally controlled by friends and family members, to obtain goods on credit for resale to the government. The conspirators profited from the venture, but the third-party suppliers were never paid. Schweitzer was arrested in 2003 and charged by indictment with multiple counts of wire fraud, mail fraud, and making false statements.

B.

Schweitzer initially entered a plea of not guilty, and a jury trial commenced in August 2004. However, on the tenth day of trial, Schweitzer indicated that he had reached an agreement with the prosecution and wished to plead guilty to thirty-three counts of mail fraud, wire fraud, and making false statements.

1.

A change of plea hearing was held on September 13, 2004. The District Court asked Schweitzer whether he was satisfied with his representation and had been given adequate time to discuss the case with his attorney. Schweitzer responded in the affirmative. The District Court then asked Schweitzer whether he had read the plea agreement "entirely," had understood "everything in there," and had "fully gone over" the document with his attorney. Schweitzer again responded in the affirmative.

The District Court addressed in detail the provisions of the plea agreement. The agreement states that the "total statutory maximum sentence" to which Schweitzer will be exposed by his plea is 165 years' imprisonment. It also recites a number of stipulations to which the parties had agreed for purposes of sentencing, including that "the defendant has [nine] criminal history points, resulting in a Criminal History Category IV." However, it acknowledges that "these stipulations are not binding upon either the Probation Department or the Court" and that "[t]he defendant may not withdraw his plea because the Court declines to follow any . . . stipulation by the parties to this agreement."

The agreement also includes a broad waiver of appellate rights. It provides that "the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law." The only exceptions are for claims that "the defendant's sentence exceeds the statutory maximum" or that "the sentencing judge erroneously departed upward from the otherwise applicable sentencing guidelines range." The agreement specifically states that, "[i]f the defendant does appeal pursuant to [one of these exceptions], no issue may be presented by the defendant on appeal other than those described in [these exceptions]."

The District Court recited these provisions on the record and confirmed that Schweitzer understood each of them. It advised Schweitzer that, although the defense and the prosecution "can agree on facts . . . [and] make recommendations . . . at sentencing," the Court is not bound by those stipulations and that, regardless of the Court's findings, the plea "is still binding on you." It admonished: "[N]o one can guarantee you what sentence you will get from me." It recounted the charges to which Schweitzer was pleading guilty and stated that, because each of the ...


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