IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 99-50888
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCESCO LAMPAZIANIE,
also known as Seyed Mohammed Tabib,
also known as Frank Lampazianie,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Western District of Texas
___________________________________________________
May 15, 2001
Before DAVIS, WIENER and STEWART, Circuit Judges,
WIENER, Circuit Judge:
Defendant-Appellant Francesco Lampazianie (“Francesco”)
pleaded guilty to one count of conspiracy. On appeal, Francesco
raises a host of arguments challenging his conviction. Most
significant among these is his contention that the district court
abused its discretion in refusing to permit him to withdraw his
guilty plea on the ground that the plea was coerced. As we
conclude that this contention —— like Francesco’s other grounds for
appeal —— does not mandate reversal, we affirm.
I.
1
FACTS AND PROCEEDINGS
In June 1998, the government filed a twenty-nine count
indictment against Francesco and nine other defendants, including
his brothers —— Marcello, Antonio, and Pierre —— and his sister,
Fakhrolsadat Tabib.1 The defendants were charged with 15 counts of
mail fraud and aiding and abetting, in violation of 18 U.S.C. §§ 2
and 1341, nine counts of wire fraud and aiding and abetting in
violation of 18 U.S.C. §§ 2 and 1343, two counts of money
laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i), and one
count of conspiracy in violation of 18 U.S.C. § 371.
According to Francesco’s presentence report (the “PSR”), the
individuals charged in the indictment, along with Choice
Richardson, an attorney not named in the indictment, operated a
business specializing in obtaining money from insurance companies
on automobile accident claims from April 1992 through April 1996.
More specifically, the PSR explains that the Lampazianies
structured their “business enterprise” to appear to be two separate
entities: (1) the Pain Therapy Clinic operated by Francesco,
Marcello, and Fakhrolsadat, and (2) the Law Office of Choice
Richardson, in which Francesco and Marcello held an ownership
interest and where Antonio and Pierre worked as legal assistants.
The brothers used the two businesses to defraud insurance companies
on personal injury claims by, inter alia, billing insurance
1
This indictment superseded the original indictment filed in
July 1997.
2
companies for medical “treatments” given to participants in staged
accidents and negotiating fraudulent settlements with insurance
companies. As part of this scheme to defraud, Marcello, with the
assistance of his brothers and sister, concealed from MetLife and
the Social Security Administration the fact that Marcello was
receiving income from the business so that he could continue to
receive disability payments.2
In July 1998, the district court held a hearing on Francesco’s
motion to suppress evidence obtained by search warrants for the
Pain Therapy Clinic. At the hearing, his counsel argued that the
warrants were improper “general exploratory rummaging” warrants
issued without probable cause. In addition, Francesco’s counsel
argued that 30 insurance claim files obtained by the government
from insurance companies, which files served as the basis for the
warrants, were insufficiently identified. The district court
orally denied Francesco’s motion to suppress at the close of the
hearing.
Francesco filed a motion to compel production of the records
and documents that supported the search warrants for the Pain
Therapy Clinic, including the aforementioned 30 claim files. The
motion was granted in October 1998. Approximately one month later,
however, the district court granted the government’s motion for
2
Marcello claimed that he had not been gainfully employed
since April 1990 as a result of an automobile accident; he received
payments of about $69,000 from MetLife and about $52,000 from
Social Security for his fraudulently claimed inability to work.
3
reconsideration and ruled that “the documents filed under seal will
remain under seal until otherwise ordered by the court.”
Francesco also filed a pretrial motion to quash the indictment
on the ground of duplicity, arguing that the indictment improperly
joins two or more offenses in a single count. Francesco argued
that the allegations in the indictment actually reveal six separate
schemes to defraud rather than the unitary scheme “broadly
described” by the government. The district court denied
Francesco’s motion to quash the indictment in October 1998.
In January 1999, on the day on which trial was scheduled to
begin, Francesco and seven co-defendants pleaded guilty before a
magistrate judge as to Count 29 of the indictment (the conspiracy
charge). Francesco’s plea agreement, which was read into the
record, included a binding term that his total offense level under
the sentencing guidelines would be fixed at 17, and that his
sentencing range would be fixed at between 24 and 30 months. When
the magistrate judge asked Francesco, “Are you pleading guilty
because you are guilty and for no other reason?[,],” and “Are you
pleading guilty freely and voluntarily and with full knowledge of
the consequences?[,]” Francesco answered each question in the
affirmative; when the magistrate judge asked whether “anyone has
threatened you, coerced you, or forced you in any way to plead
guilty,” he responded in the negative.
Ten days after entering his plea, Francesco filed a motion
styled “Defendant’s Motion for Extension of Time to File a Motion
4
to Withdraw Guilty Plea[.]” It asserts that “this motion is filed
by counsel to withdraw the plea of guilty[,]” but provides no
reason for the withdrawal; rather, the motion merely references
“problems with the taking of the plea of guilty” and states that
“[b]ecause Mr. Lampazianie is currently ill with the flu and at
home, it has been impossible for counsel to confer with him in
detail regarding this issue and still meet the deadline for
objecting to the plea[.]” The district court accepted the guilty
plea the day after Francesco’s Motion for Extension of Time to File
a Motion to Withdraw Guilty Plea was filed and denied that motion
ten days later.
More than six months later, Francesco filed a motion to
withdraw his guilty plea for the reason that “his plea of guilty
was entered as a result of coercion that was placed on him because
he and all the other family members . . . were told that his
disabled and mentally ill brother, indicted as Marcello
Lampazianie[,] was going to be taken into custody by the Court and
sent to the Federal Mental Hospital in Missouri on the spot unless
the entire family accepted the ‘package deal’ offered by the
government.” The “package deal” described by Francesco “was that
everyone had to plead guilty or his brother would be taken and
Defendants and his brother feared for the safety of Marcello, who
was heavily medicated and was suicidal.” Stating that it had
reviewed the transcript of Francesco’s plea colloquy “over and over
again,” the district court denied Francesco’s motion orally at his
5
sentencing hearing.
As specified in his plea agreement, Francesco’s offense level
was calculated at 17, which included an enhancement for his
leadership role in the offense and a reduction for his acceptance
of responsibility. As agreed, Francesco’s sentencing range was set
between 24 and 30 months. Stating that it would “go to the bottom
end of the guidelines,” the district court sentenced Francesco to
24 months, to be followed by supervised release for three years,
restitution in the amount of $61,093.34, and a special assessment.
On appeal, Francesco raises the following objections to his
conviction: (1) the district court abused its discretion in denying
his motion to withdraw his guilty plea, (2) the indictment was
duplicitous, (3) his due process rights were violated by the
government’s “failure” to produce discovery material related to the
issuance of the search warrants, (4) the district court erred in
denying his motion to suppress evidence obtained by the search
warrants, and (5) he was denied his Sixth Amendment right to
effective assistance of counsel.
II.
ANALYSIS
A. Standard of Review
We review the district court’s denial of a motion to withdraw
a guilty plea for abuse of discretion.3 The sufficiency of an
3
United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997).
6
indictment is subject to de novo review.4 We review a district
court's denial of a motion to suppress by (1) viewing the facts in
the light most favorable to the prevailing party, (2) accepting the
district court's factual findings unless clearly erroneous, and (3)
considering all questions of law de novo.5 A claim of ineffective
assistance of counsel generally cannot be reviewed on direct appeal
unless it has been presented to the district court;6 rather, we
"resolve claims of inadequate representation on direct appeal only
in rare cases where the record allow[s] us to evaluate fairly the
merits of the claim."7
B. Withdrawal of the Guilty Plea
Francesco contends that the district court abused its
discretion when it refused to permit him to withdraw his guilty
plea. We note at the outset that there is no absolute right for a
defendant to withdraw a plea.8 Instead, Rule 32(e) of the Federal
Rules of Criminal Procedure provides that the district court may
grant a motion to withdraw a guilty plea before a defendant is
sentenced if the defendant shows “any fair and just reason.” The
district court's decision is discretionary and will not be
4
United States v. Cluck, 143 F.3d 174, 178 (5th Cir. 1998).
5
United States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001).
6
United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.
1987).
7
Id. at 314.
8
Grant, 117 F.3d at 789.
7
disturbed absent an abuse of discretion.9
In reviewing the denial of a motion to withdraw a guilty plea,
we consider the seven factors set forth in United States v. Carr:
whether (1) the defendant asserted his innocence, (2) withdrawal
would prejudice the government, (3) the defendant delayed in filing
the withdrawal motion, (4) withdrawal would inconvenience the
court, (5) adequate assistance of counsel was available, (6) the
plea was knowing and voluntary, and (7) withdrawal would waste
judicial resources.10 The district court is not required to make
findings as to each of the Carr factors.11 Neither is any single
factor dispositive;12 instead, the determination is based on a
totality of circumstances.13 The burden of establishing a “fair and
just reason” for withdrawing a guilty plea rests at all times with
the defendant.14
Francesco asserted in his motion to the district court that
his plea should be withdrawn because it was entered as a result of
9
United States v. Benavides, 793 F.2d 612, 616 (5th Cir.
1986).
10
Id. at 343-44.
11
United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991).
12
Id.
13
Carr, 740 F.2d at 344.
14
United States v. Brewster, 137 F.3d 853, 858 (5th Cir. 1998).
8
coercion and therefore was not voluntary.15 We have scoured the
record and can find no shred of evidence to support Francesco’s
contention that he was somehow coerced into the plea agreement by
threats to institutionalize his brother Marcello. Similarly, we
have combed the transcript of the plea colloquy and are satisfied
that the consequences of the plea were painstakingly explained to
Francesco. And, as we have already noted, when asked by the
magistrate judge whether he was pleading guilty “freely and
voluntarily and with full knowledge of the consequences” or whether
anyone had “threatened . . . coerced . . . or forced” him “in any
way to plead guilty,” Francesco declared —— under oath —— in open
court that he had not been threatened or coerced in any way, and
that he was entering the plea voluntarily and fully informed. It
is well established that “[s]olemn declarations in open court carry
a strong presumption of verity.”16
With respect to the other Carr factors, we emphasize that
Francesco did not assert his innocence or offer either a specific
reason or factual underpinnings for withdrawing the plea until
15
Francesco argues for the first time on appeal that “it was
impossible for [him] to have made an intelligent and voluntary
choice when [he] had no idea as to what the evidence in the
possession of the government would show or fail to show.” This
belated contention, however, is belied by the record, which reveals
that in addition to the indictment setting forth the substantive
counts, fraudulent scheme, and overt acts in detail, the defense
was provided copies of the government’s 97-page exhibit list prior
to the plea.
16
Blackledge v. Allison, 431 U.S. 63, 74 (1977).
9
seven months after the plea was entered.17 Accordingly, the
district court was entitled both to discount Francesco’s belated
assertions of innocence and to weigh the seven-month delay in
denying Francesco’s motion.18
Furthermore, Francesco’s contention that he received
inadequate assistance of counsel with respect to the plea agreement
is contradicted by the record, which indicates that his counsel was
among the most active in protecting his client’s rights. At the
plea colloquy, for example, Francesco’s counsel successfully added
a term to the plea agreement barring further prosecution on the
facts of the investigation. More importantly, Francesco’s claim
that his counsel “conducted merely a cursory review of the
discovery materials in this case” flies in the face of record
evidence, such as the government’s statement that according to its
discovery log, the review of materials by counsel for Francesco was
“energetic and extensive.”
Finally, Francesco contends that withdrawal of his guilty plea
17
Francesco’s “Motion for Extension of Time to File a Motion
to Withdraw Guilty Plea” made no statement of innocence and
provided no specific reason for the withdrawal; as we have already
explained, the motion merely references “problems with the taking
of the plea of guilty” and states that “[b]ecause Mr. Lampazianie
is currently ill with the flu and at home, it has been impossible
for counsel to confer with him in detail” about any such
“problems.” By any standard, these vague statements fail to
articulate any “fair and just reason” for withdrawing the plea.
18
See, e.g., Carr, 740 F.2d at 345 (concluding that motion was
not promptly filed when defendant waited 22 days after guilty
plea).
10
would not prejudice the government because “the [Assistant United
States Attorney] made clear that all of the trial preparation had
been done and the government was prepared to go forward with a
trial.” But almost three years have elapsed since the superseding
indictment was filed, and for some witnesses the relevant conduct
occurred in 1994, over seven years ago. The government also urges
us to take into account that this is a complex fraud case, with
hundreds of exhibits; and that all other defendants (except one who
was found guilty) have pleaded guilty and received relatively short
sentences. Under these circumstances, we cannot agree with
Francesco that permitting the withdrawal of his plea would not
prejudice the government.
In sum, Francesco has failed to carry his burden of showing
any “fair and just reason” for the withdrawal of the guilty plea.
Our own independent review of the record confirms that the Carr
factors fully support the district court's denial of Francesco’s
motion to withdraw his guilty plea. We therefore find no abuse of
discretion.
C. Duplicitous Indictment
Francesco also contends that his conviction should be reversed
on the ground that the indictment is duplicitous, i.e., improperly
joins two or more offenses in a single count. In the absence of
any reservation of conditions, however, a guilty plea constitutes
a waiver of the right to challenge nonjurisdictional pretrial
11
rulings on appeal.19 If the record contains no indication of a
reservation of appellate rights, then the plea is presumptively
unconditional, and we may not reach the merits of the appeal.20
In the instant case, the record is devoid of any indication
that Francesco reserved the right to contest the district court's
nonjurisdictional pretrial rulings on appeal. There is nothing in
the plea agreement or elsewhere in the record resembling such a
reservation. Although we reiterate our admonition that "the
preferred practice is for the district court to advise the
defendant that by pleading guilty he waives his right to appeal
non-jurisdictional pretrial issues,"21 we nevertheless must affirm
19
See United States v. Wise, 179 F.3d 184, 187 (5th Cir. 1999).
Although an indictment’s failure to charge an offense on its face
is a jurisdictional defect that a defendant may challenge at any
time, see United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th
Cir. 1999), an indictment’s duplicity is not. See United States v.
Doherty, 17 F.3d 1056, 1058-59 (7th Cir. 1994); United States v.
Fairchild, 803 F.2d 1121, 1123 (11th Cir. 1986).
20
See United States v. Bell, 966 F.2d 914, 917 (5th Cir. 1992).
Rule 11(a)(2) provides, “[w]ith the approval of the court and the
consent of the government, a defendant may enter a conditional plea
of guilty or nolo contendere, reserving in writing the right, on
appeal from the judgment, to review of the adverse determination of
any specified pretrial motion.” The Advisory Committee Notes make
clear that “the availability of a conditional plea under specified
circumstances will aid in clarifying the fact that traditional,
unqualified pleas do constitute a waiver of nonjurisdictional
defects.”
21
Id. at 917 n.3. We also note that, although not binding on
this case, amended Federal Rule of Criminal Procedure 11(c), which
became effective on December 1, 1999, now provides that "[b]efore
accepting a plea of guilty or nolo contendere, the court must
address the defendant personally in open court and inform the
defendant of, and determine that the defendant understands . . .
(6) the terms of any provision in a plea agreement waiving the
12
Francesco’s conviction on this ground because his voluntary and
unconditional plea waived his right to appeal any nonjurisdictional
defects in the prior proceedings.
In any event, Francesco has made no claim that any prejudice
resulted from the alleged duplicity of the indictment. We have
held that even when an indictment is duplicitous, reversal is not
required if no prejudice results.22 Accordingly, we conclude that
Francesco’s challenge to the indictment would fail on the merits,
even if waiver were absent.
D. Discovery Claims
Francesco further contends that his due process rights were
violated by the government’s “failure” to produce discovery
material related to the issuance of the search warrants. He argues
that under Brady v. Maryland, which held that “the suppression by
the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of
the prosecution,”23 the government’s “failure” to produce the
underlying documents related to the 30 claim files violated his
right to due process.
right to appeal or to collaterally attack the sentence" (emphasis
added). In any event, Francesco’s plea, which was unconditional,
did not contain any such terms to be explained by the district
court.
22
See United States v. Drury, 687 F.2d 63, 66 (5th Cir. 1983).
23
Brady v. Maryland, 373 U.S. 83, 87 (1963) (emphasis added).
13
As we have already explained, Francesco’s guilty plea waived
any subsequent claims of violations. Nevertheless, the record
makes clear that the government did not “fail” to produce the 30
claim files; rather, the district court reconsidered its order
compelling discovery of the files and ruled that “the documents
filed under seal will remain under seal until otherwise ordered by
the court.” In light of the prosecutor’s declaration to
Francesco’s counsel that “I know of no exculpatory, impeaching, or
mitigating information regarding your clients other than that which
was previously made available to you[,]” and the reasonable
inference that the district court likewise found nothing
exculpatory in the relevant documents under seal, we conclude that
even absent waiver, we would hold his allegations of a Brady
violation to lack merit.
E. Denial of Motion to Suppress
Francesco asserts that the district court erred in denying his
motion to suppress evidence obtained by the search warrants. More
specifically, Francesco contends that the warrants issued in the
instant case lacked probable cause and failed to describe with
particularity the place to be searched and the things to be seized,
as required the Fourth Amendment and Federal Rule of Criminal
Procedure 41(c)(1).
We again reiterate that Francesco did not reserve the right to
review any adverse determinations of pretrial motions, such as the
motion to suppress evidence obtained from the search warrants.
14
Accordingly, even though we need not reach the merits of this
issue, we note in passing that Francesco has failed both (1) to
demonstrate that items such as “patient treatment cards,” computer
billing records, and bank records which pertained to the scheme to
defraud insurance companies by mail and wire communications were
not described with sufficient particularity, and (2) to show that
the breadth of the warrant was not justified by the assertion,
supported by the affidavit, that the locations contained records of
sham courses of medical treatment.24 In sum, we conclude that
Francesco’s challenge to the search warrants would be found
meritless even if it had not been waived.
E. Ineffective Assistance of Counsel
Finally, Francesco contends that he was denied his Sixth
Amendment right to effective assistance of counsel. More
specifically, Francesco argues that his counsel was “ineffective
with respect to the diligence that he exercised in pursuing the
discovery underlying the search warrant, specifically with regards
to the ‘30 claims[.]’” In general, however, a claim of ineffective
assistance of counsel cannot be reviewed on direct appeal when, as
here, it was not raised in the district court, because there has
24
See Williams v. Kunze, 806 F.2d 594, 598 (5th Cir. 1986)
(“Where probable cause exists to believe that an entire business
was merely a scheme to defraud, or that all the records of a
business are likely to constitute evidence, a warrant authorizing
the seizure of all such records and describing them in generic
terms is sufficient to meet the particularity requirement of the
fourth amendment.”).
15
been no opportunity to develop record evidence on the merits of the
claim.25
Even if we were to review the issue as framed by Francesco,
however, it does not appear to us that, based on the current state
of the record, he could succeed in meeting the high standard of
proof required to establish a viable ineffective assistance of
counsel claim. As we have already pointed out, Francesco’s counsel
diligently pursued discovery of the 30 claim files; Francesco’s
complaint that his counsel “never filed a motion for sanctions or
any other type of relief regarding the Government’s refusal to turn
over evidence of the ‘30 claims’” is nonsensical in light of the
district court’s order that the materials, having been submitted to
the court by the government, remain under seal.
Nevertheless, as we are unable to evaluate the full extent of
Francesco’s ineffective-assistance argument on the record as it now
stands, we do not review it on this direct appeal. Our decision
today does not, therefore, preclude Francesco from raising the
issue in an appropriate collateral proceeding.26
III.
CONCLUSION
For the reasons explained above, Francesco’s conviction is
AFFIRMED.
25
See United States v. Rinard, 956 F.2d 85, 87 (5th Cir. 1992).
26
See 28 U.S.C. § 2255.
16