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United States v. Feliz

United States District Court, D. New Jersey

December 3, 2019

UNITED STATES OF AMERICA
v.
MELVIN FELIZ, IRVING OLIVERO-PENA, and ROBERT CRAWFORD, Defendants. UNITED STATES OF AMERICA
v.
MELVIN FELIZ, Defendant.

          OPINION & ORDER

          KEVIN MCNULTY. U.S.D.J.

         Melvin Feliz was criminally charged in the two above-captioned cases, which I will call the "drug case" (Crim. No. 14-327) and the "wire fraud case" (Crim. No. 15-421). In the drug case, he pled guilty, admitting under oath that he had engaged in trafficking involving over 20 kilograms of cocaine and $549, 000 in cash. In the wire fraud case, he pled guilty to a phony-invoice scam in the amount of approximately $7.8 million, as well as related acts of tax evasion. The agreed sentence in the drug case (a package deal for Feliz and two codefendants) was 120 months; the agreed sentence in Feliz's wire fraud case was 48 months, to run consecutive to the drug sentence.

         Now before the court in both cases are Mr. Feliz's motions to withdraw both pleas of guilty, pursuant to Federal Rule of Criminal Procedure 11(d). (14-327 DE 156, 159; 15-421 DE 79 ("Notice")).[1] Because they are parallel and potentially interdependent, I discuss those two motions together in this Opinion, which will be filed in both cases.

         Under Rule 11(d), either of two standards could potentially govern this motion: Before the court accepts a plea, the defendant may withdraw it for "any reason or no reason"; after the court accepts a plea, the defendant must show a "fair and just reason" for withdrawal. To ascertain which of these standards applies, then, I must ascertain whether the Court has "accept[ed] the plea" for purposes of Fed. R. Crim. P. 11(d). For the reasons expressed below, I hold that the court has accepted the plea, that the "fair and just reason" standard therefore applies, and that Mr. Feliz has failed to meet it. The motions are therefore denied.

         I. BACKGROUND

         A. Guilty plea in the drug case

         1. Background of the plea

         On June 6, 2014, the grand jury returned an indictment in the drug case charging Mr. Feliz with conspiracy to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and money laundering, in violation of 18 U.S.C. § 1956(h). Also charged were two codefendants, Irving Olivero-Pena and Robert Crawford.

         On October 21, 2014, the government filed an enhanced penalty information, pursuant to 21 U.S.C. § 851(a), stating that Mr. Feliz had a prior, 1989 conviction of a felony drug offense. (DE 62) The effect of the information (if its allegations were proven, of course) would have been to increase the mandatory minimum sentence.[2] See 21 U.S.C. § 841(b)(1)(A).

         2. The guilty plea proceedings in the drug case

         On February 4, 2015, following some fairly intensive motion practice, Mr. Feliz and his codefendants, Olivero-Pena and Crawford, agreed to a "package deal" entailing simultaneous pleas of guilty in the drug case. All three written plea agreements were made under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Each of the three defendants stipulated to a sentence of 120 months' imprisonment, the statutory minimum for an offense involving 5 . or more kilograms of cocaine. All agreed to factual stipulations that the offense involved 20 kilograms of cocaine and some $549, 000 in cash. In Mr. Feliz's case, the government agreed to dismiss the enhanced penalty information pursuant to 21 U.S.C. § 851, thus restoring the unenhanced mandatory minimum sentence of ten years. (See Plea agreement, 14-327 DE 144; Transcript of plea hearing in drug case ("GPD Tr.")) 14-327 DE 151.)

         At the plea hearing, the Court conducted the inquiry required by Rule 11(b), Fed. R. Crim. P. It ensured diat Mr. Feliz was mentally and physically fit to participate. It confirmed that he had read the plea agreement, had gone over it thoroughly with his attorney, and understood it. (GPD Tr. 10-11) Through questioning, the Court determined that there had been no coercion of the plea. (GPD Tr. 11-12)

         The Court also accepted and filed the Application to Plead Guilty (or "Rule 11 form"), signed by Mr. Feliz, which independently confirmed what the Court elicited orally at the hearing: that the defendant understood the nature of the plea agreement, charges, and penalties, and was pleading voluntarily to an offense he had in fact committed. (DE 143; GPD Tr. 12-13)

         At several points, the Court reviewed with the defendant the particulars of a Rule 11(c)(1)(C) plea agreement-i.e., that the parties had stipulated to a sentence of 120 months and that the defendant had a "right to get out of this plea deal if the sentence is anything other . . . ." (GPD Tr. 12) (The Rule 11 (c)(1)(C)-related passages in the transcript are collected and set forth more fully at Section I.A.3, immediately following.)

         The Court reviewed the essential elements of the narcotics charges. Mr. Feliz acknowledged that he had reviewed them with his attorney and understood them. (GPD Tr. 14-15) The Court reviewed the trial-related rights that would be waived as a result of pleading guilty and warned of various collateral consequences. The defendant acknowledged that he understood and that his plea of guilty meant that there would be no trial. (Id. 15-18)

         The Court then advised Mr, Feliz as to the statutory minimum sentence of 10 years' imprisonment, the statutory maximum of life, and the other significant sentencing consequences of the plea. (GPD Tr. 18-19) He was advised of his rights under the Sentencing Guidelines and warned that the factual stipulations did not bind the Court. Here, as elsewhere, the Court clarified that these warnings were subject to the overarching Rule 11(c)(1)(C) proviso that a sentence of other than 120 months would give defendant the "right to get out of that plea" or to "withdraw the guilty plea." (Id. 19-21) The Court reviewed the plea agreement's waiver of the right to bring an appeal or a collateral challenge if the court imposed a sentence of 120 months. (Id. 21-23)

         The Court questioned Mr. Feliz's counsel, Mr. Joyce, as to the "package deal" aspect of the plea. The object of that questioning was to ensure that Mr. Feliz was properly represented by counsel who had acted in his individual interest. Mr. Joyce confirmed that he believed the plea benefited his client, particularly in that the enhanced penalty information would be withdrawn, reducing the mandatory minimum. (GPD Tr. 24-25) I confirmed directly with Mr. Feliz that a joint internal negotiation had occurred among the three defendants, via their counsel; that Mr. Joyce had represented Mr. Feliz's individual interest in those negotiations; and that the plea would not occur unless all three defendants went forward with the deal. (Id. 25-26) The Court again confirmed that the government had not coerced the plea. Mr. Feliz explicitly acknowledged that neither a co-defendant nor anyone else had forced, threatened, or coerced him to plead guilty. This was, he stated under oath, his own voluntary decision. (Id. 26-27)

         The Court gave Mr. Feliz the opportunity, if he wished, to change his mind or withdraw any of his answers. He declined. The Court ensured that Mr. Feliz was pleading guilty because he was guilty in fact of the drug offense:

THE COURT: Now, I'm going to ask you a question, sometimes people stumble on, but it's important, the question is Why are you pleading guilty? And by that I mean, are you guilty in fact, or are you pleading for some other reason?
Maybe you don't understand the question. Would you like me to clarify it?
DEFENDANT FELIZ: Yes, please do.
THE COURT: Sometimes people plead guilty, but later say "I didn't really do it. I wasn't really guilty. I did it because someone I love told me to. I did it because I was afraid. I did it because it helped my co-defendants", or some other reason. What I want to know is, are you pleading guilty because you are guilty in fact?
DEFENDANT FELIZ: I'm guilty.

(GPD Tr. 27)

         I again ensured that Mr. Feliz had consulted with his attorney and understood the Rule 11(c)(1)(C) plea agreement:

THE COURT: Now, if I reject the plea agreement, or rather, I may reject it, that is not to accept it. Do you understand that?
DEFENDANT FELIZ: Yes.
THE COURT: But if that happens, you or the Government may elect to be released from this plea agreement, that is, you'll be returned to the status you are in before today. Do you understand that?
DEFENDANT FELIZ: Yes.

(GPD 27:5-13) The Court carefully reviewed the proviso that a sentence other than the stipulated sentence of 120 months would give him, or the government, the right to withdraw. (GPD Tr. 27-28)

         The Court then elicited a factual basis for the plea, delegating the delivery of the questions to the Assistant U.S. Attorney, as is customary in this District. (GPD Tr. 28) Mr. Feliz expressed concerns about the accuracy of the starting and ending dates of the charged conspiracy, and the AUSA responded by taking a break to confer with defense counsel and revise his question.[3] (GPD Tr. 31-32)

         The factual-basis colloquy resumed:

[AUSA] URBANO: Okay.
Mr. Feliz, from on or about January, 2012, to on or about December, 2012, in the district of New Jersey and elsewhere, did you conspire and agree with others to distribute and possess with intent to distribute more than five kilograms of cocaine?
DEFENDANT FELIZ: Yes.
MR. URBANO: And were Irving Olivero-Pena and Robert Crawford two of the individuals with whom you conspired?
DEFENDANT FELIZ: Yes.
MR. URBANO: Did you enter into the agreement with those individuals knowingly and intentionally, that is not by accident or mistake?
DEFENDANT FELIZ: Yes.
MR. URBANO: Did you know that the purpose of that agreement with those individuals was to distribute and possess with intent to the distribute cocaine?
DEFENDANT FEUZ: Yes.
MR. URBANO: And in furtherance of the conspiracy, on or about October 22nd, 2012, did Irving Olivero-Pena, Robert Crawford and you, meet at a location in Bergen County with another individual who we'll call courier, and provide courier with approximately $549, 150.00 with a purchase of approximately 20 kilograms of cocaine?
DEFENDANT FELIZ: Yes.
MR. URBANO: Specifically, did Irving Olivero-Pena, Robert Crawford and you, knowingly give to courier to transport them $549, 950 via tractor trailer from New Jersey to California, and return the money to Robert Crawford?
DEFENDANT FELIZ: Yes.
MR. URBANO: Was the courier to wait in California for Robert Crawford to exchange the money for 20 kilograms of cocaine for other members of the conspiracy?
DEFENDANT FELIZ: Yes.
MR. URBANO: And was Robert Crawford then to provide the cocaine to courier so that courier could transport the cocaine from California to the New Jersey area to members of the conspiracy and distribution?
DEFENDANT FELIZ: Yes.
MR. URBANO: Did you know that what you were doing was in violation of law?
DEFENDANT FELIZ: Yes.
MR. URBANO: And are you pleading guilty to the offense because you are in fact guilty?
DEFENDANT FELIZ: Yes.

(GPD Tr. 32-34)

         The Court again reviewed the particulars of the plea and ensured that Mr. Feliz understood them:

THE COURT: Alright. Then just to be clear, before we get to the final stage of entry of the plea, this plea agreement to Count One of this two-count indictment, Count One being the drug charge which we've described, Count Two will be dropped and dismissed. The money laundering count will be dismissed in accordance with the agreement. It is a guilty plea that must be accepted by all three defendants to be effective. The Government agrees not to bring related criminal charges for distributed or conspiring to distribute cocaine from January, 2011, through in or about December, 2012.
MR. URBANO: Your Honor, it's January, 2012 --
THE COURT: Excuse me, I misstated that date. He corrected me.
In addition, the Government will move to dismiss the enhanced penalty information in order to make possible the agreed-upon sentence here. It is an 11(c) plea, meaning that the agreed-upon sentence is 120 months. Any other sentence gives either side the option to get out of the plea agreement.
And also very important is that the plea agreement has no bearing on Mr. Feliz's criminal liability with respect to the matters encompassed by a separate federal criminal complaint, magistrate No. 14-6800, which charges, I believe, a wire and/or mail fraud. There's advice as to the maximum sentences which were given. There are certain stipulations in attachment Schedule A, and the defendant is given to understand that except for the stipulated sentence, if the Court does not accept one or more of the stipulations, that is not a basis to get out of the plea agreement. Assuming a sentence of 120 months, both sides waive their right to appeal, and the defendant waives his right to bring any collateral attack. And it is an agreement that is reached by the United States Office for the District of New Jersey only, and that is reached without regard to other civil or administrative matters.
So, those are the major items as I understand them. I thought it was worth going through them again, given what's going on today.
Mr. Feliz, is that a fair summary of the plea agreement?
DEFENDANT FELIZ: Yes, your Honor.
THE COURT: Okay.
Alright. And then I'm going to ask you, in light of everything that's happened in court today, which has been somewhat protracted, do you still wish to plead guilty?
DEFENDANT FELIZ: Yes, your Honor.
THE COURT: And I'm going to ask you the question again that I asked you before, are you entering a plea of guilty because you're guilty in fact?
DEFENDANT FELIZ: Yes, your Honor.
THE COURT: So I'm going to ask you the formal question, this is IT, how do you plead to the charge, guilty or not guilty?
DEFENDANT FELIZ: Guilty.

(GPD Tr. 36-38) Counsel confirmed that Mr. Feliz was "entering the plea voluntarily with full knowledge of his rights and responsibilities." (Id. 38)

         The court made the necessary factual findings that the defendant understood all of the necessary advice under Fed. R. Crim. P. 11(b)((1)(A)-(0). (GPD Tr. 38)

         The Court accepted the plea "provisionally," stating that it would finally accept it on sentencing day if it found a sentence of 120 months to be appropriate. (The language pertinent to the Court's acceptance of the plea is set forth more fully at Section I.A.3, immediately following.)

         Mr. Feliz was then adjudged guilty of the drug conspiracy offense:

[THE COURT:] Accordingly, the defendants' plea of guilty is accepted, and the defendant is adjudged guilty of Count One, conspiracy to violate 21 U.S.C. Section 846.

(GPD Tr. 39)

         3. Excerpts particularly relevant to acceptance of drug plea

         For convenience, I have here extracted from the drug case guilty plea colloquy the passages that bear most directly on the court's acceptance of the defendant's guilty plea in the context of the Rule 11(c)(1)(C) plea agreement.

1.

DEFENDANT FELIZ: My understanding is 120 months. That's my understanding.

THE COURT: And we're going to talk about that more, which you have a right to get out of this plea deal if the sentence is anything other than -

DEFENDANT FELIZ: Yes, sir.

2.

THE COURT: Now, do you understand that a sentencing judge may impose a sentence higher or lower than that recommended by the Guidelines?

DEFENDANT FELIZ: Yes.

THE COURT: Once again, you have an 11(c) plea. You might have a right to get out of that plea should I see fit to do that. But you must be warned that that can happen.

3.

THE COURT: .... Now, just taking that as a random example, if I were to find that I could not accept that or another stipulation of fact, that will not be a basis to withdraw your guilty plea with one proviso. Do you understand, in general, not accepting the stipulations is not a basis to withdraw the guilty plea? But, again, this is an 11(c) plea. If you were to receive a sentence other than 120 months, that would be a basis to withdraw the guilty plea. Do you understand?

DEFENDANT FELIZ: Yes.

4.

[THE COURT] . . . [O]ne other element is the 11(c) aspect. I want to make sure you understand this, Mr. Feliz. If I accept your plea of guilty, I must sentence you to 120 months of imprisonment. Do you understand?

DEFENDANT FELIZ: Yes.

THE COURT: Now, if I reject the plea agreement, or rather, I may reject it, that is not to accept it. Do you understand that?

DEFENDANT FELIZ: Yes.

THE COURT: But if that happens, you or the Government may elect to be released from this plea agreement, that is,

you'll be returned to the status you are in before today. Do you understand that?

DEFENDANT FELIZ: Yes.

THE COURT: Now, have you discussed with your attorney this right to withdraw the plea of guilty if I should not accept the 11 (c) term?

DEFENDANT FELIZ: Yes.

THE COURT: And are you satisfied with your attorney's explanation?

DEFENDANT FELIZ: Yes.

5.

THE COURT: .... In addition, the Government will move to dismiss the enhanced penalty information in order to make possible the agreed-upon sentence here. It is an 11 (c) plea, meaning that the agreed-upon sentence is 120 months. Any other sentence gives either side the option to get out of the plea agreement.

6.

THE COURT: I will accept the plea provisionally, that is for an 11(c) plea. I guess, it doesn't really occur until sentencing day. Provisionally, I accept the plea. And assuming that I find the sentence more than 120 months [to] be appropriate, I will finally accept it on sentencing day. Provisionally I accept it, and I'll make the following findings ....

7.

THE COURT: .... Accordingly, the defendants' plea of guilty is accepted, and the defendant is adjudged guilty of Count One, conspiracy to violate 21 U.S.C. Section 846.

8.

THE COURT: .... And I just want to, as an aside to counsel for the Government, please just remind me on sentencing day to place on the record my acceptance - my final acceptance of the guilty plea, assuming that occurs and [a] sentence [of] 120 months is imposed. That's just an I we have to dot.

         B. Guilty plea in the wire fraud case

         Mr. Feliz and his spouse, Keila Ravelo, Esq., were charged with conducting a $7.8 million wire fraud scheme, as well as committing associated tax offenses. The wire fraud scheme used fake vendors of litigation support services to bill Hunton & Williams and Willkie Farr & Gallagher, two New York law firms of which Ms. Ravelo was a partner.[4]

         On August 25, 2015, Mr. Feliz waived indictment and pled guilty to a criminal Information charging him with conspiracy to commit wire fraud, 18 U.S.C. § 1349, and tax evasion, 26 U.S.C. § 7201. (15-421 DE 60-64) This, too, was a plea pursuant to Rule 11(c)(1)(C), entailing a total sentence of 48 months, consecutive to the sentence on the drug charges. (See plea agreement, 15-421 DE 64.) The guilty plea transcript in the wire fraud case demonstrates that Feliz entered the plea knowingly and voluntarily, with full knowledge of his rights. (The Transcript of the guilty plea hearing in the wire fraud case, 15-421 DE 82, is cited as "GPW Tr.".)

         At the outset of the guilty plea hearing in the wire fraud case, the Court clarified that the plea-hearing procedures would be similar to, but separate from, those in the drug case:

THE COURT: .... All right. Mr. Feliz, I realize you're somewhat familiar with this process, but we go through it the same way each time.

(GPW 9) Thus the Court conducted the usual Rule 11(b) colloquy.

         The charges and the terms of the plea agreement were summarized. The Court asked the usual questions to ensure that the defendant was able to participate properly, had thoroughly consulted with his attorney, and understood the terms of the plea agreement and his rights. (GPW Tr. 9-14) The Court accepted the written Application to Plead Guilty, or Rule 11 form. (Id. 14-15; 15-421 DE 63) The Court reviewed the essential elements of the wire fraud and tax charges, and the defendant acknowledged that he understood. (GPW Tr. 16-20) After due warnings, he waived indictment and consented to the filing of the Criminal Information containing the wire fraud and tax charges. (Id. 20-22) The defendant was advised of the rights he would have if he went to trial, and he waived them. (Id. 22-25) He was advised of the statutory penalties, and of his rights under the Sentencing Guidelines. (Id. 25-29)

         The court then explained the workings of a Rule 11(c)(1)(C) stipulated-sentence plea agreement:

THE COURT: Now, that's Step 1.
Step 2 is that there's a stipulated sentence, and both sides agree not to argue for any other sentence and that you, if the Court - that's me - decides that that is not an appropriate sentence, you have a right to apply to vacate, or get out of, this plea agreement.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Okay. Now, excuse me one moment.
More formally, if I reject the plea agreement or decide I cannot accept that 48-month provision, you and the Government may elect to be relieved from the terms of the plea agreement and the parties will be returned to their status before - as it was before the entry of the plea of guilty.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Now, have you discussed with your attorney this right to ...

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