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CHANG v. U.S.

February 20, 2004.

IN SUK CHANG, Petitioner, -against- UNITED STATES OF AMERICA, Respondent


The opinion of the court was delivered by: NINA GERSHON, District Judge

ORDER

Petitioner In Suk Chang brings this motion, pursuant to 28 U.S.C. § 2255, to vacate his guilty plea and dismiss the indictment against him. Petitioner claims that federal jurisdiction is lacking. Additionally, petitioner makes numerous claims regarding his plea allocution. He claims that the allocution failed to elicit a sufficient factual basis to establish the charges. He also claims that the plea was not knowing and voluntary because the court failed to explain adequately all elements of the conspiracy charge, the requirement for a unanimous verdict, and the reasonable doubt standard during the plea allocution. Petitioner further claims his plea was not knowing and voluntary because he received erroneous advice from his trial counsel regarding the maximum prison sentence he faced. Finally, petitioner claims ineffective assistance of counsel.

This court finds that petitioner's claims are without merit. His motion under 28 U.S.C. § 2255 is therefore denied.

  Background

  On May 31, 2000, on the morning he was scheduled to begin trial, petitioner pled guilty to two violations of the Hobbs Act, 18 U.S.C. § 1951. The charges were based on incidents of threats, Page 2 violence and harassment by which petitioner and his co-defendants sought to ensure that various business owners purchased liquor from petitioner's unlicensed liquor distribution company and referred customers to petitioner's car service. In one such incident, petitioner and his co-defendants were captured on videotape beating an employee of Northern Northern restaurant, in Queens, New York, for twenty minutes, and telling the employee he should have "called for the car service."

  Petitioner was sentenced to 121 months in prison. Petitioner timely appealed his sentence, challenging the court's denial of a downward departure for acceptance of responsibility under the sentencing guidelines and the decision to sentence him to the maximum guideline sentence. Petitioner also contested the finding that the victim suffered serious bodily harm, thus warranting a four-level enhancement. He did not challenge his conviction. The Second Circuit affirmed the sentence on November 21, 2001. United States v. Lee et al., 25 Fed. Appx. 20 (2d Cir. 2001).

  Jurisdiction

  Federal jurisdiction is predicated on the effect petitioner's actions had on interstate commerce, A showing of a very slight effect on interstate commerce is sufficient to support Hobbs Act jurisdiction. United States v. Perrotta, 313 F.3d 33, 36 (2d Cir. 2002); United States v. Angelilli, 660 F.2d 23, 35 (2d Cir. 1981). During the plea allocution, the government proffered that the businesses that were the victims of petitioner's extortionate conduct were engaged in interstate commerce. Specifically, government counsel stated that the owner of the restaurant targeted by the petitioner was prepared to testify that a number of products used in the restaurant were manufactured outside New York and that the restaurant served customers who came from New Jersey and Connecticut. Transcript of Pleading, May 31, 2000, at 27-28 ("Tr."). The government's proffer at the plea allocution establishes a proper basis for federal jurisdiction. Page 3

  In a Supplemental Memorandum dated April 21, 2003, petitioner argues that the Second Circuit's decision in United States v. Perrotta, 313 F.3d 33 (2d Cir. 2002), and the Supreme Court's decision in Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003), buttress his claim that there was no federal jurisdiction in this case. In Perrotta, the Second Circuit held that, where the only connection to interstate commerce was that the victim of extortive activity was employed by a business that engages in interstate commerce, there was insufficient effect on interstate commerce under the Hobbs Act. Perrotta, 313 F.3d at 36. In Scheidler, a civil RICO suit against anti-abortion protestors that alleged acts of extortion in violation of the Hobbs Act, the Court held that the Hobbs Act requires that "a person must `obtain' property from another party to commit extortion," which requires "not only the deprivation but also the acquisition of property." Scheidler, 537 U.S. at 404.

  Petitioner's reliance on these cases is misplaced. Perrotta itself makes clear that some instances of extortion of an employee of a business engaged in interstate commerce will support Hobbs Act jurisdiction and cites as an example a case where "the victim was targeted because of her status as an employee at a company participating in interstate commerce." Perrotta, 313 F.3d at 37-38 (citing United States v. Diaz, 248 F.3d 1065, 1089 (11th Cir. 2001)) (emphasis added). That is precisely the scenario in this case. As he admitted at his plea allocution, petitioner threatened an employee of Northern Northern Restaurant because he wanted the restaurant to use his car service. See Tr. at 25-27,

  Any argument based on Scheidler is precluded by petitioner's guilty plea. Given a proper plea allocution (see below), petitioner has waived the right to challenge the factual issue of whether he "obtained" property. See United States v. Broce, 488 U.S. 563, 570 (1989) (noting that a guilty plea "is an admission that he committed the crime charged against him") (citation omitted); Page 4 McCarthy v. United States, 394 U.S. 459, 466 (1969) ("a guilty plea is an admission of all the elements of a formal criminal charge"). To the extent that the contention is that the indictment itself is insufficient because it does not charge petitioner with "obtaining" property, this argument fails. The indictment specifically charged petitioner with engaging in extortive acts in order to require certain business owners to purchase liquor from petitioner and to refer customers to a car service he controlled. Such purchases and referrals were the mechanisms by which he sought to obtain property.

  Factual Bases of Petitioner's Guilty Plea

  Former Rule 11(f)*fn1 of the Federal Rules of Criminal Procedure requires the court to satisfy itself that there is a factual basis for the guilty plea before accepting the plea. The rule requires that the court assure itself "simply that the conduct to which the defendant admits is in fact an offense under the statutory provision under which he is pleading guilty." United States v. Maker, 108 F.3d 1513, 1524 (2d Cir. 1997). This inquiry focuses not on the factual sufficiency or persuasiveness of the government's evidence but rather on the relationship between the law and the acts the defendant admits to having committed. Id. at 1529.

  Petitioner's plea allocution provides clear factual bases for his plea of guilty to the offenses charged. At the allocution, petitioner admitted that he had "threatened the employee" of the restaurant that was the target of the extortionate conduct "to use [his] car service." Tr. at 25. When asked if he had threatened the employee with force, petitioner responded "yes." Id. at 27. Petitioner, relying on United States v. Andrades, 169 F.3d 131 (2d Cir. 1999), and United States v. McCarthy, 394 U.S. 459 (1969), argues this was merely a "mimicking" response to a leading question from the Page 5 court and thus is inadequate.*fn2 However, the court did much more than merely elicit a single affirmative response from petitioner, as was the case in Andrades. Here, after reading the counts, of the indictment and explaining the charges to petitioner, the court repeatedly ...


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