NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 13, 2008
Decided November 14, 2008
Before
DANIEL A. MANION, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐1323
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
Hammond Division.
v.
No. 07 CR 40
GERALD W. KACAK
Defendant‐Appellant. Philip P. Simon,
Judge.
O R D E R
Gerald Kacak pleaded guilty to two counts of bank fraud, see 18 U.S.C. § 1344, and
was sentenced to a total of 27 months’ imprisonment. As part of his written plea agreement,
Kacak waived his right to challenge his convictions or sentence. Despite this waiver, Kacak
filed a notice of appeal, but his appointed counsel now moves to withdraw because he
cannot discern a nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738, 744
(1967). Kacak opposes counsel’s motion. See Cir. R. 51(b). We confine our review to the
potential issues identified in counsel’s submission and in Kacak’s response. See United
States v. King, 506 F.3d 532, 534 (7th Cir. 2007).
No. 08‐1323 Page 2
An appeal waiver must be enforced if it is entered into as part of a voluntary guilty
plea and is unambiguous. United States v. Linder, 530 F.3d 556, 561 (7th Cir. 2008); United
States v. Woolley, 123 F.3d 627, 632 (7th Cir. 1997). Kacak wants his guilty pleas set aside, so
both he and counsel consider whether a ground exists to challenge them. See United States v.
Knox, 287 F.3d 667, 671 (7th Cir. 2002). As Kacak did not move to withdraw his pleas in the
district court, we would evaluate any potential issue for plain error. See United States v.
Vonn, 535 U.S. 55, 59 (2002); United States v. Griffin, 521 F.3d 727, 730 (7th Cir. 2008).
Counsel cannot identify any flaw in the plea colloquy. Kacak, however, contends
that the district court erred in two respects. First, he argues that the court should have
directly engaged him in a colloquy to establish the factual basis for his pleas rather than
allowing his attorney to question him to draw out the facts. Second, Kacak contends that,
even with his attorney’s questioning, the court never developed an adequate factual basis
because he never admitted that he had the requisite intent to defraud. Both contentions are
frivolous.
To ensure the voluntariness of a guilty plea, the district court must substantially
comply with Rule 11 of the Federal Rules of Criminal Procedure. See Fed. R. Crim. P. 11(b);
United States v. Shuh, 289 F.3d 968, 975 (7th Cir. 2002). That rule requires the district court to
satisfy itself that a factual basis exists before entering judgment on a guilty plea, Fed. R.
Crim. P. 11(b)(3), United States v. Rea‐Beltran, 457 F.3d 695, 700 (7th Cir. 2006), but the court
is not obligated to engage the defendant in a colloquy to establish the factual basis, United
States v. Arenal, 500 F.3d 634, 638 (7th Cir. 2007); United States v. LeDonne, 21 F.3d 1418, 1424
(7th Cir. 1994). Rather, the court may find the factual basis from anything that appears on
the record. LeDonne, 21 F.3d at 1424. Indeed, in LeDonne we held that the procedure used
here—placing the defendant under oath and directing his lawyer to elicit the relevant
facts—is sufficient to comply with Rule 11. See id. at 1424‐25.
Furthermore, Kacak’s responses to his attorney’s questions confirmed that he
intended to defraud the banks. See United States v. Jackson, 540 F.3d 578, 594 (7th Cir. 2008).
Intent to defraud means that the defendant “‘acted willfully and with specific intent to
deceive or cheat, usually for financial gain for one’s self or the causing of financial loss to
another.’” Id. (quoting United States v. Lamarre, 248 F.3d 642, 649 (7th Cir. 2001)). The
defendant’s intent may be proven by circumstantial evidence and inferences drawn from
the scheme itself. Id.; United States v. Ryan, 213 F.3d 347, 350 (7th Cir. 2000). Here, Kacak
confirmed that he endorsed and deposited two sizable checks, knowing they were
fraudulent and would be dishonored, and that he wired the proceeds overseas. Nothing
more was needed to establish his intent to defraud. See Lamarre, 248 F.3d at 649 (explaining
that knowingly depositing forged or non‐sufficient funds check or knowingly writing check
on inadequate account balance constitutes circumstantial evidence of intent to defraud).
No. 08‐1323 Page 3
We agree with counsel, then, that a challenge to Kacak’s guilty pleas would be
frivolous. It therefore follows that Kacak’s appeal waiver must be enforced. Counsel’s
motion to withdraw is GRANTED, and the appeal is DISMISSED.