The opinion of the court was delivered by: NINA GERSHON, District Judge
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
This court finds that petitioner's claims are without merit. His motion
under 28 U.S.C. § 2255 is therefore denied.
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,
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
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.
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);
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
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 ...