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United States v. Avasso

October 21, 2010

UNITED STATES OF AMERICA
v.
ALFRED P. AVASSO, DEFENDANT.



The opinion of the court was delivered by: Simandle, U.S. District Judge

OPINION

On July 11, 2008, defendant Alfred P. Avasso appeared before this Court and entered a plea of guilty to a one-count Information for the crime of conspiracy to engage in monetary transactions in criminally derived property, in violation of 18 U.S.C. § 1956(h). His plea agreement was memorialized in a written document dated July 18, 2007 (Ex. C-1 on 7/11/08) and in a cooperating plea agreement also dated July 18, 2007 (Ex. D to Gov't Opp. Br.), which he had reviewed with two different lawyers and indeed signed twice. On the eve of sentencing, after a lengthy period of proffer sessions and efforts to cooperate, and after receipt of the Probation Department's Presentence Investigation and Report, Avasso has moved, through his third attorney, to withdraw his plea of guilty pursuant to Rule 11(d)(2)(B), Fed. R. Crim. P. In support of his motion, defendant asserts three grounds, namely, (1) that his plea was not knowing or voluntary because he was threatened by federal investigators, (2) his prior counsel was ineffective in advising him to plead guilty, and (3) he is innocent of the crime to which he pled guilty.

The Court convened a hearing on September 16, 17, 20 & 21, 2010, received documentary and testimonial evidence from both sides, and has considered the submissions and arguments of counsel. With the benefit of hearing live testimony and making various determinations of credibility and weight, the Court will deny defendant's motion for the following reasons.

I. PROCEDURAL HISTORY

In 2007, the defendant and the government entered into two written plea agreements, each dated July 18, 2007. In the agreement, the defendant agreed to plead guilty to one count of conspiracy to commit money laundering contrary to 18 U.S.C. § 1957 and in violation of 18 U.S.C. § 1956(h). In exchange for Mr. Avasso's agreement to plead guilty to 18 U.S.C. § 1956(h), the government agreed not to initiate any further criminal charges against the defendant, including conspiracy to conduct monetary transactions in criminally derived property (securities and wire fraud), conspiracy to manipulate the price of securities, and concealing the ownership and proceeds from the sale of securities. Mr. Avasso, however, agreed to be held responsible for the above as relevant conduct under U.S.S.G. §§ 1B1.3 and 1B1.2(c). Mr. Avasso and his first attorney, Gavin W. Scotti, Esquire executed the agreement on September 4, 2007, but the plea was not entered in court. Thereafter, Christopher H. O'Malley, Assistant Federal Defender's Office was assigned to represent Mr. Avasso in April 2008, at Defendant's request.

On July 11, 2008, Mr. Avasso appeared in the United States District Court for an initial appearance. At that hearing, Mr. Avasso waived indictment (Docket Item 2) and entered into a guilty plea to an Information (Docket Item 1), charging him with violating 18 U.S.C. § 1956(h). Mr. Avasso completed the Application for Permission to Enter Plea of Guilty (Ex. C-2 on 7/11/08). Mr. Avasso re-signed and Mr. O'Malley signed the July 18, 2007 plea agreement in open court on July 11, 2008. (Tr. 7/11/2008 at 19-20.)

During the lengthy and detailed Rule 11 hearing on July 11, 2008, Mr. Avasso acknowledged that he read the charges against him in the Information and discussed them with his attorneys (Tr. 7/11/08 at 10:15-17; 13:9-22), that he understood the maximum penalties he faced in the event he chose to plead guilty (id. at 10:21 to 13:8); and that indeed the charge contained in the Information was the same as the charge to which he had decided to plead guilty while represented by prior counsel, Mr. Scotti, in 2007 (id. at 14:18 to 15:2). He acknowledged that he had discussed with counsel the pluses and minuses of pleading guilty versus going to trial (id. at 15:3-9), and that he has personally made the choice to plead guilty as his own decision (id. at 15:10-20). Regarding pleading guilty of his own free will, and contrary to his new claim of being threatened, Avasso gave these answers under oath on July 11, 2008:

THE COURT: And so in a very real sense you have the choice to make of whether to plead guilty or whether to go to trial.

THE DEFENDANT: I've made that choice, your Honor.

THE COURT: Is it your own personal choice?

THE DEFENDANT: Yes, your Honor.

THE COURT: Are you pleading guilty of your own free will?

THE DEFENDANT: Yes, your Honor.

THE COURT: Has anyone forced you to plead guilty?

THE DEFENDANT: No, your Honor.

(Id. at 15:15-25.)

He acknowledged filling out and reading and understanding the plea application (id. at 16:9-20). Contrary to his new claim that Mr. O'Malley provided ineffective assistance, he testified he was "very satisfied" with the services and efforts of Mr. O'Malley and the Federal Public Defender on his behalf. (Id. at 17:11-13.)

Contrary to his present claim of never having read his plea agreement letters, Avasso testified on July 11, 2008 that he read the letters and had gone over them with Mr. O'Malley in detail. (Id. 17:15 to 21:4.) He read, understood, and accepted the stipulations attached to his plea agreement, and he testified they were true and correct. (Id. at 18:4-24.)

Avasso acknowledged signing his plea agreement letters with prior counsel Gavin Scotti, Esq., on September 4, 2007, and he signed them again in open court with Mr. O'Malley. (Id. at 18:25 to 20:7.)

Contrary to his current claim of being unfamiliar with his responsibilities under the cooperating plea agreement, Avasso testified on July 11, 2008 that he understood and accepted the requirements of his cooperating plea agreement (id. at 20:12 to 21:7).

At the guilty plea hearing, the Court also engaged in dialog with Avasso that demonstrated that Avasso knew and voluntarily waived his constitutional rights (id. 21:5 to 23:14) and that his plea of guilty results in "a finding of guilt with the same force and effect as if a jury found [him] guilty after a trial." (Id. at 23:15-20.)

Regarding the finality of his admission of guilty, and contrary to his current assertion of innocence, Avasso testified as follows in 2008:

THE COURT: Do you also realize that a plea of guilty is an acknowledgment of your guilt. So, as a factual matter, you could never come back to this Court or some other court and say that you really weren't guilty of the things you are pleading to. Do you understand that?

THE DEFENDANT: Yes, your Honor.

THE COURT: In other words, are you prepared to admit your guilt to these charges?

THE DEFENDANT: Yes, your Honor.

(Id. at 23:21 to 24:5.)

Avasso explicitly acknowledged his understanding of the finality of his guilty plea and his inability to thereafter change his mind or claim lack of knowledge of the consequences of his decision. He testified that if his guilty plea was accepted by the court, he could never come back another day and say, "Judge, I changed my mind, I don't want to plead guilty anymore; or, ...


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