In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3587
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
LEO STOLLER,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 1052 — Virginia M. Kendall, Judge.
____________________
ARGUED DECEMBER 7, 2015 — DECIDED JUNE 27, 2016
____________________
Before FLAUM, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. Leo Stoller filed for bankruptcy.
In that proceeding, he was asked to list all property that he
controlled but did not own. He answered “none,” even
though he controlled a trust that owned property. He was
convicted—after a guilty plea—of bankruptcy fraud, and he
was sentenced to 20 months’ imprisonment. On appeal, he
2 No. 14‐3587
attacks the validity of his guilty plea on several grounds. But
because he was competent to plead guilty, his plea was not
coerced, and the plea colloquy included most of the basics
(and Stoller was not prejudiced by any deficiency), we reject
his arguments and affirm.
I. BACKGROUND
A. Bankruptcy Proceedings
Stoller’s mother lived in a house in River Forest, Illinois.
The property was owned by a trust; Stoller’s mother was the
beneficiary. When his mother died, Stoller became the sole
beneficiary. The next day, he assigned his beneficial interest
to his daughter but reserved a “power of direction” for him‐
self. The “power of direction” gave Stoller certain rights, in‐
cluding one he exercised three times: the right to obtain
loans for himself that were secured by the property. 765 ILL.
COMP. STAT. § 435/10 (defining “power of direction”). He also
directed the trust to rent out the property, and he received
the rental income.
In December 2005, Stoller filed for bankruptcy. None of
his filings mentioned the River Forest property. A question
on one of the forms specifically asked him to “[l]ist all prop‐
erty owned by another person that [he] [held] or con‐
trol[led].” Under penalty of perjury, he answered “none.”
B. Fraud Prosecution
Stoller was charged with two counts of knowingly and
fraudulently concealing property that belonged to a bank‐
ruptcy estate, see 18 U.S.C. § 152(1), and seven counts of
knowingly and fraudulently making a false statement, under
penalty of perjury, in a bankruptcy proceeding, see 18 U.S.C.
§ 152(3). Represented by an appointed lawyer, he pled guilty
No. 14‐3587 3
to one count of making a false statement (and the govern‐
ment dismissed the remaining counts).
Shortly before sentencing, Stoller considered moving to
withdraw his plea on the ground that he was not mentally
competent when he entered it. His lawyer—who had coun‐
seled him through that plea—withdrew, and a new lawyer
was appointed. Sentencing was postponed and Stoller was
examined by Dr. Robert Heilbronner, a board‐certified neu‐
ropsychologist affiliated with Northwestern University and
the University of Chicago. Dr. Heilbronner concluded that
Stoller was competent to plead guilty. After providing the
district judge with the doctor’s report, Stoller’s lawyer told
the judge that he would not move to withdraw Stoller’s plea
on competency grounds. He did, however, move to with‐
draw the plea based on alleged defects in the plea colloquy.
That motion was denied and Stoller was sentenced to 20
months’ imprisonment.
II. ANALYSIS
Represented by a new lawyer on appeal, Stoller repeated‐
ly urges his view that, under bankruptcy law, the River For‐
est property was not part of his estate. So, he argues, some of
the conduct charged in the indictment—namely, failing to
disclose the River Forest property—is not a crime, and the
indictment should have been dismissed as defective. That
argument has an obvious flaw. Stoller answered “none” to a
question that asked him about “all property,” not “all prop‐
erty that is part of your bankruptcy estate.” The indictment
charged him with knowingly and fraudulently making that
false statement under penalty of perjury, which is a federal
offense. See 18 U.S.C. § 152(3).
4 No. 14‐3587
We set that flaw aside because Stoller attacks the indict‐
ment on other grounds too, arguing the indictment was im‐
permissibly brought to punish him for his vexatious trade‐
mark litigation. See United States v. Batchelder, 442 U.S. 114,
125 (1979) (discretion regarding which cases to prosecute is
“subject to constitutional constraints”). But Stoller pled
guilty. As his lawyer conceded at oral argument, Stoller’s
guilty plea, if valid, waived his current arguments. Gomez v.
Berge, 434 F.3d 940, 942 (7th Cir. 2006) (guilty plea waives “all
formal defects in the proceedings, including any constitu‐
tional violations that occurred before the plea was entered”);
United States v. George, 403 F.3d 470, 472 (7th Cir. 2005)
(guilty plea waives argument that indictment failed to state
an offense). So Stoller attacks the validity of his plea, on sev‐
eral grounds.
“Our review is deferential, recognizing that the district
court has significant discretion in accepting or rejecting
guilty pleas. We reverse only for an abuse of that discretion.”
United States v. Hernandez‐Rivas, 513 F.3d 753, 759 (7th Cir.
2008). Where Stoller attacks his plea on a ground not pre‐
sented to the district court, we review for plain error. United
States v. Burnside, 588 F.3d 511, 520 (7th Cir. 2009).
A. Plea Not Invalid Due to Coercion
On appeal, Stoller argues that he was innocent. His ar‐
gument is that he could not have “knowingly and fraudu‐
lently” made a false statement because his bankruptcy fil‐
ings were completed: (1) by his bankruptcy lawyer, without
his knowledge; and, perhaps inconsistently, (2) in reliance on
the advice of his bankruptcy lawyer. See United States v. Van
Allen, 524 F.3d 814, 823 (7th Cir. 2008) (“[A] lawyer’s fully
informed opinion that certain conduct is lawful (followed by
No. 14‐3587 5
conduct strictly in compliance with that opinion) can negate
the mental state required for some crimes, including
fraud.”). He says that he only pled guilty because his first
appointed lawyer coerced him into doing so, by promising
that if he pled guilty he would receive probation only—he
would not go to prison. Stoller did not ask the district judge
to withdraw his plea on this ground, not even after the al‐
legedly coercive lawyer was replaced, so our review is for
plain error.
In the written plea agreement, and again during the plea
hearing, the government alleged that Stoller had acted
“knowingly and fraudulently” by intentionally concealing
his interest in the River Forest property to protect it from his
creditors. The judge asked Stoller whether he disagreed with
anything in the government’s description and he replied,
“No, Judge.” In the written agreement, and again during the
hearing, Stoller swore that his plea was voluntary, rather
than coerced. The judge accepted Stoller’s plea.
Then, at his sentencing hearing, while not under oath,
Stoller stated that he did not think he was guilty of anything
and that his lawyer had coerced him into pleading guilty. He
did not tell the district judge what he tells us on appeal—
that his lawyer promised a probation‐only sentence. Instead,
his barebones allegation of coercion was completely unex‐
plained. See Nunez v. United States, 495 F.3d 544, 546 (7th Cir.
2007) (a defendant seeking to withdraw a plea “cannot ob‐
tain relief by the expedient of contradicting statements made
freely under oath unless there is a compelling reason for the
disparity”) (vacated on other grounds, 544 U.S. 911 (2008)). The
judge noted that Stoller’s sentencing‐stage statements were
inconsistent with his prior admission of guilt under oath.
6 No. 14‐3587
The judge, who observed Stoller at both stages, credited the
plea‐stage testimony and discredited the conclusory sentenc‐
ing‐stage statements, characterizing the latter as an attempt
to minimize his culpability. We defer to that credibility find‐
ing, Hernandez‐Rivas, 513 F.3d at 758, and find no plain error
in the judge’s acceptance of Stoller’s plea (nor in her failure
to sua sponte vacate the plea as coerced).
B. Plea Not Invalid Due to Stoller’s Incompetency
A criminal defendant must be mentally competent at the
time he enters a guilty plea. Burt v. Uchtman, 422 F.3d 557,
564 (7th Cir. 2005). A defendant is competent if he has suffi‐
cient “ability to consult with his lawyer with a reasonable
degree of rational understanding” and if he “has a rational
as well as factual understanding of the proceedings against
him.” Id. Stoller argues on appeal that he has Alzheimer’s
disease and dementia, and that the district judge erred by
not holding a hearing to determine whether Stoller was men‐
tally competent to plead guilty. Because Stoller never asked
for such a hearing, he must show that the judge erred by not
holding one sua sponte. Failing to sua sponte hold a compe‐
tency hearing violates due process if, but only if, “there is a
bona fide doubt that arises as to a defendant’s competency
before trial.” United States v. Woodard, 744 F.3d 488, 493 (7th
Cir. 2014); Burt, 422 F.3d at 564. We review the district court’s
decision for an abuse of discretion. Woodard, 744 F.3d at 493;
United States v. Morgano, 39 F.3d 1358, 1373 (7th Cir. 1994).
When Stoller sought to plead guilty, the district judge
asked his lawyer and the prosecutor whether they had any
reason to question his competency; they both said “no”. The
judge examined Stoller under oath for the explicit purpose of
determining his competency. She asked him about his physi‐
No. 14‐3587 7
cal and mental health, living conditions, family, educational
background, and interactions with his lawyer. Based on
those answers and his demeanor, the judge found him com‐
petent. At that point, the judge had no indication that Stol‐
ler’s competency was in question, so she did not abuse her
discretion by failing to hold a competency hearing at or be‐
fore that point. We consider next whether the judge abused
her discretion by not sua sponte holding a hearing after Stol‐
ler’s plea was accepted, to determine whether it should be
vacated on competency grounds.
When Stoller considered moving to withdraw his plea on
competency grounds, the lawyer who had counseled him
through that plea withdrew and Stoller was given a new
lawyer. The new lawyer had sentencing postponed, collected
and analyzed medical records, and had Stoller examined by
an independent psychologist, Dr. Heilbronner. Dr. Heil‐
bronner concluded that Stoller was competent to plead
guilty and expressed concern that Stoller may have been ex‐
aggerating his impairments.1 The lawyer provided Dr. Heil‐
bronner’s report to the judge and informed her that he
would not file a motion to withdraw Stoller’s plea on compe‐
tency grounds. Stoller did not ask to have a third lawyer ap‐
pointed. At this point, it was not an abuse of discretion to
conclude that there was not a bona fide doubt as to Stoller’s
competency.
At sentencing, the district judge, who observed Stoller on
multiple occasions, credited his contention that he had “de‐
1 Stoller’s appellate briefs rely on a conclusory affidavit from another
doctor, but that affidavit was not presented to the district judge so she
could not have abused her discretion by failing to rely on it.
8 No. 14‐3587
mentia in the early stages,” but agreed with the psychologist
that Stoller sought to minimize his culpability and manipu‐
late the legal proceedings by exaggerating his impairments.
Cf. United States v. Rainone, 32 F.3d 1203, 1207–08 (7th Cir.
2004) (noting that “senile dementia is a progressive disease”
and finding no clear error in refusal to hold competency
hearing despite “early signs of senile dementia of the Alz‐
heimer’s type”). Nothing in Stoller’s briefs or our review of
the record convinces us that the judge abused her discretion
by not holding, at any point, a hearing to determine whether
Stoller was competent when he pled guilty.
C. Plea Not Invalid Due to Inadequate Colloquy
Though Stoller did not move to withdraw his plea on
competency grounds, he did move to withdraw it on other
grounds, namely that the plea colloquy conducted by the
district judge failed to satisfy Federal Rule of Criminal Pro‐
cedure 11(b). A defendant does not have “an absolute right
to withdraw a plea,” United States v. Carroll, 412 F.3d 787, 792
(7th Cir. 2005), but may do so if he “can show a fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). We review the denial of a motion to withdraw a
guilty plea for an abuse of discretion, and review any factual
findings underpinning that denial for clear error. United
States v. Collins, 796 F.3d 829, 833–34 (7th Cir. 2015).
The federal rules require that “[b]efore the court accepts
a plea of guilty,” the court “must address the defendant per‐
sonally in open court.” Fed. R. Crim. P. 11(b). During that
address, the court must “determine that the plea is voluntary
and did not result from force, threats, or promises (other
than promises in a plea agreement).” Fed. R. Crim. P.
11(b)(2). In his motion to withdraw his plea, Stoller argued
No. 14‐3587 9
that the judge failed to determine whether any improper
promises had induced Stoller to plead guilty. The rules also
require the judge to “inform the defendant of, and determine
that the defendant understands,” fifteen concepts about the
defendant’s legal proceedings. Fed. R. Crim. P. 11(b)(1). Stol‐
ler argued that the district judge failed to mention, and
failed to ensure that Stoller understood, five of those con‐
cepts:
the government’s right to use any statement
the defendant gives under oath against the
defendant in a prosecution for perjury or
false statement (Rule 11(b)(1)(A));
the defendant’s right to persist in his plea of
not guilty (Rule 11(b)(1)(B));
the defendant’s right to be represented by
counsel—and if necessary have the court
appoint counsel—at trial and at every other
stage of the proceeding (Rule 11(b)(1)(D));
the defendant’s right to be protected from
compelled self‐incrimination (Rule
11(b)(1)(E)); and
the court’s obligation, in determining a sen‐
tence, to consider possible departures un‐
der the Sentencing Guidelines (Rule
11(b)(1)(M)).
The use of Stoller’s statements in a prosecution for per‐
jury was not mentioned at all. The other listed concepts and
the issue of improper promises were not explicitly addressed
one at a time, but each can reasonably be viewed to have
been covered by the colloquy taken as a whole. The district
10 No. 14‐3587
court was correct to note that we do not “mandate a specific
format or dialogue to be followed in a Rule 11 hearing.”
United States v. Messino, 55 F.3d 1241, 1254 (7th Cir. 1995).
That said, we encourage district judges, prosecutors, and de‐
fense lawyers to protect not just the fairness of criminal pro‐
ceedings, but also the appearance of fairness and thorough‐
ness, and to advance judicial economy, by using a checklist
for Rule 11 colloquies. We have made this recommendation
before. United States v. Polak, 573 F.3d 428, 432–33 (7th Cir.
2009) (recommending use of a checklist and the Federal Ju‐
dicial Center’s Benchbook for U.S. District Court Judges). If a
thorough model or checklist is used during the colloquy and
consulted before the plea is accepted, errors and unnecessary
subsequent proceedings can be avoided.
All that said, as the Rule itself makes clear, a deviation
from the technical requirements “is harmless error if it does
not affect substantial rights.” Fed. R. Crim. P. 11(h). “The
harmlessness inquiry naturally should focus on whether the
defendant’s knowledge and comprehension of the full and
correct information would have been likely to affect his will‐
ingness to plead guilty.” United States v. Fernandez, 205 F.3d
1020, 1024 (7th Cir. 2000) (internal quotation marks omitted).
“If the defendant is fully apprised of his rights and the con‐
sequences of his actions, and he knowingly and voluntarily
enters into the entire contents of the plea agreement, the
hearing is proper.” Messino, 55 F.3d at 1254. In other words,
“the defendant must show why the omission made a differ‐
ence to him.” United States v. Sura, 511 F.3d 654, 662 (7th Cir.
2007).
Despite his obligation to demonstrate harm, Stoller’s mo‐
tion to withdraw was not supported by any evidence—not
No. 14‐3587 11
even an affidavit—tending to show that he would not have
pled guilty had the colloquy checked all of Rule 11’s boxes.
Stoller’s failure would have justified a summary denial but
the district judge issued a thorough written opinion, ad‐
dressing Stoller’s age and educational background, his sub‐
stantial experience with federal litigation, the fact that he
was represented by an experienced attorney when he pled
guilty, the length and substance of the plea colloquy, and the
detailed written plea agreement (which contained many of
the admonitions that were missing from the colloquy, and
which Stoller said he reviewed in detail with his lawyer). See
United States v. Blalock, 321 F.3d 686, 688–89 (7th Cir. 2003)
(decision whether to permit withdrawal of plea should con‐
sider the totality of the circumstances).
The judge found that Stoller: (i) was not being prosecuted
for perjury for any statement made at his plea hearing;2 (ii)
understood the judge could deviate from the Guidelines’
recommendation; (iii) understood his rights to persist in a
not‐guilty plea, to be represented by counsel, and to avoid
self‐incrimination; and (iv) entered his guilty plea voluntari‐
ly and not due to any improper promise. Nothing in Stoller’s
briefs or our review of the record reveals a clear error in
these findings. Nor did the judge abuse her discretion in
concluding, based on those facts, that Stoller was fully ap‐
prised of his rights and the consequences of his actions and
any deficiencies in the colloquy were harmless.
2 As the government argued, if Stoller is prosecuted for perjury the
proper remedy for the colloquy’s defect would be exclusion in the per‐
jury case of statements made during the colloquy in this case. United
States v. Graves, 98 F.3d 258, 259 (7th Cir. 1996).
12 No. 14‐3587
D. Ineffective Assistance of Counsel
Sprinkled throughout Stoller’s briefs are perfunctory
challenges to the constitutional effectiveness of his appoint‐
ed lawyers. The arguments are undeveloped and unsup‐
ported by any evidence. We decline to review these “per‐
functory and undeveloped” arguments. United States v. Man‐
jarrez, 258 F.3d 618, 626 n.4 (7th Cir. 2001). “We also note that,
should [Stoller] wish to pursue his ineffective assistance
claim in earnest, such a claim is best brought in a collateral
proceeding under 28 U.S.C. § 2255.” United States v. Turcotte,
405 F.3d 515, 537 (7th Cir. 2005) (finding ineffective assis‐
tance of counsel allegations “too sparse and unsupported to
gain any traction” but noting such a claim could be brought
in a subsequent § 2255 proceeding); see Massaro v. United
States, 538 U.S. 500, 504 (2003) (noting that “in most cases a
motion brought under § 2255 is preferable to direct appeal
for deciding claims of ineffective‐assistance”).
III. CONCLUSION
We AFFIRM Stoller’s conviction.