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UNITED STATES v. YARMOLUK

February 5, 1998

UNITED STATES OF AMERICA
v.
DAVID YARMOLUK, Defendant/Petitioner.



The opinion of the court was delivered by: RAKOFF

 JED S. RAKOFF, U.S.D.J.

 After pleading guilty to bank fraud, defendant Yarmoluk successfully persuaded this Court to adjust his sentence downward on the ground that he fully accepted responsibility for his criminal activity. Now, without the slightest suggestion of shame, he seeks to vacate his conviction on the claim that he never really intended to defraud anyone. A guilty plea, however, is a "grave and solemn act," not to be entered into - or withdrawn - lightly. United States v. Hyde, 137 L. Ed. 2d 935, 117 S. Ct. 1630, 1634 (1997). For the reasons stated below, petitioner's application to vacate his sentence and withdraw his guilty plea pursuant to 28 U.S.C. § 2255 is denied.

 Petitioner, an automobile retailer, pleaded guilty on February 11, 1997 to defrauding The Bank of New York of approximately $ 1.2 million through a "check-kiting" scheme that allowed him to draw on a series of worthless checks. Without any downward adjustments or departures, petitioner would have been facing a sentence of approximately two-and-a-half years. At petitioner's behest, the date of sentence, originally set for May 20, 1997, was adjourned to September 5, 1997 to enable petitioner, who was already seeking a downward adjustment for acceptance of responsibility, to also present materials warranting a downward departure on grounds of extraordinary health problems. Thereafter, in connection with the downward adjustment, petitioner testified at the sentence hearing as follows:

 
THE COURT: Let me see if I can spell it out. You say in your letter and your counsel has reaffirmed that you knew that what you were doing here was wrong, is that correct?
 
THE DEFENDANT: Right, writing the checks, signing the checks.
 
THE COURT: And basically you knew that these were worthless checks that were made to appear momentarily as not worthless checks because of the way the accounts were being moved around, correct?
 
THE DEFENDANT: Right, uncollectable.
 
THE COURT: And you knew when you were doing that, that was an unlawful, misleading thing to do, yes?
 
THE DEFENDANT: I assumed it was illegal.
 
United States v. Yarmoluk, 1997 U.S. Dist. LEXIS 16140, 1997 WL 642564, at *10 (S.D.N.Y. 1997) (September 4, 1997 Transcript at 20-21).

 Crediting these responses, as well as defendant's representations concerning his difficult health situation, the Court both adjusted and departed downward, sentencing defendant to a prison term of a year and a day.

 Dissatisfied even with this result, petitioner thereupon retained new counsel and brought the instant motion seeking to withdraw his guilty plea pursuant to 28 U.S.C. § 2255.

 Under § 2255, petitioner may be permitted to withdraw his guilty plea only if the plea was based on "a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." Wong v. United States, 1997 U.S. Dist. LEXIS 8969, 1997 WL 362154, at *4 (S.D.N.Y. 1997) (quoting Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962)) (internal quotation marks omitted); see also United States v. Bell, 1985 U.S. Dist. LEXIS 20218, 1985 WL 26 (S.D.N.Y. 1985). *fn1" Petitioner advances three arguments in support of his § 2255 motion: that the Court failed to adduce a factual basis for the "intent" element of the offense; that petitioner was not aware when he ...


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