United States District Court, E.D. New York
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
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 inquired
whether petitioner understood the charges and elicited an explanation of
petitioner's conduct from petitioner in his own words. See Tr. at 12-27.
The plea allocution was ample to establish the charge of Hobbs Act
To the extent petitioner is arguing that he did not in fact threaten
the business and that the government thus could not prove a Hobbs Act
violation, this challenge to the sufficiency of the evidence against him
is waived. "[A] defendant who pleads guilty unconditionally admits his
guilt and waives his right to appeal all nonjurisdictional contentions."
Maker, 108 F.3d at 1528, Petitioner retains the right to argue that the
court failed to elicit a factual basis for his plea in violation of Rule
11, but, as noted above, this inquiry does not focus on the factual
sufficiency of the government's case. See id. at 1529.
Petitioner also challenges the factual basis of his plea to the
conspiracy charge on the ground that the court inadequately explained the
charge by failing to describe petitioner's particular co-conspirators and
the specific object of the illegal agreement. This argument overlaps with
petitioner's "knowing and voluntary" claim, discussed below. It is enough
to note here that
petitioner was read the language of the indictment charging conspiracy,
including the specific names of the co-defendants with whom he had
conspired, during the allocution. Petitioner admitted that he had in fact
agreed with his three co-defendants to threaten a restaurant employee so
that the restaurant would use his car service. Id. at 26-27. Thus, there
was a sufficient factual basis for the conspiracy charge.
Knowing and Voluntary
Petitioner claims the plea was not knowing and voluntary for four
reasons: 1) the court did not adequately explain the elements of the
conspiracy charge; 2) there was no explanation of the unanimous verdict
requirement; 3) there was an inadequate statement of the reasonable doubt
standard; and 4) the plea was coerced by counsel.
Petitioner is procedurally barred from challenging the voluntary and
knowing nature of his guilty plea in this proceeding. These may be
attacked on collateral review only if they are first challenged on direct
review. Bousley v. United States, 523 U.S. 614, 621 (1998). Once
a petitioner fails to assert this claim on direct review, "he is barred
from raising the claim in a subsequent § 2255 proceeding unless he
can establish both cause for the procedural default and actual prejudice
resulting therefrom." DeJesus v. United States, 161 F.3d 99, 102
(2dCir. 1998). Petitioner did not contest the voluntariness of his plea
on appeal and has not shown any cause or prejudice justifying his failure
to do so.
Moreover, his claim that his plea was not knowing and voluntary is
without merit. The record clearly shows that petitioner's plea was both
knowing and voluntary. At the plea allocution, petitioner was read both
counts of the indictment with which he was charged and to which he was
pleading guilty, consisting of the conspiracy count and the substantive
violation of the Hobbs Act.
The conspiracy charge, which the court read to petitioner, included the
specific names of his co-defendants. Tr. at 13. The language read from the
indictment also specifically identified the object of the conspiracy, by
stating that petitioner "conspire [d] to obstruct, delay, and affect
commerce and the movement of articles and commodities in commerce, by
extortion, specifically, by obstructing the rights of certain business
owners to contract freely by requiring these business owners and their
representatives, through the wrongful use of actual and threatened
force, violence, and fear, to purchase liquor from defendants and refer
customers to a car service controlled by defendants." Id. This court
explained to the petitioner that a "conspiracy is an illegal agreement
or, put another way, an agreement to do something illegal." Id.
Petitioner indicated that he understood the nature of the conspiracy
charge, id. at 13-14, and entered a plea of guilty to that charge. Id. at
The record also demonstrates that petitioner received a fair and
adequate explanation of his right to a jury trial and the reasonable
doubt standard. See id. at 21-23. The court explained,
If you plead not guilty, you are entitled to a speedy
and public trial by jury with the assistance of
counsel, and if you cannot afford an attorney, an
attorney will represent you free of cost. . . . At a
trial you are presumed to be innocent and the
government must overcome that presumption and prove
you guilty by competent evidence beyond a reasonable
doubt. Otherwise, you are not convicted.
Id. at 21-22. Petitioner's argument that this explanation was inadequate
because it failed to advise him that the government would have to prove
"each and every element of the charges beyond a reasonable doubt" is
meritless. Rule 11 by its terms does not require such an explanation. The
one case petitioner cites in support of this argument, United States v.
Pinckney, 85 F.3d 4 (2d Cir. 1996), is inapposite. In Pinckney, the
Second Circuit reversed a conviction under the "chop shop" statute on
direct appeal because the government had failed to prove at trial every
element of the crime charged. Pinckney has nothing to say about the
requirements of Rule 11, and petitioner cites no other
authority to support this claim.
Regarding petitioner's argument that his plea was not voluntary because
the court did not explain the unanimous verdict requirement, petitioner
cites no case from the Supreme Court or the Second Circuit that requires
an explanation that the jury must reach a unanimous verdict, and Rule 11
by its terms does not require such explanation. Furthermore, the one case
petitioner does cite, United States v. Gastelum, 16 F.3d 996 (9th Cir.
1994), does not stand for this proposition, In Gastelum., the Ninth
Circuit held that a district court's failure to inform a defendant of
"any constitutional rights" before accepting his guilty plea was a
violation of Rule 11. Gastelum, 15 F.3d at 998. In reaching this
holding, the court recounted in a footnote the various constitutional
rights the district judge eventually described to the defendant when he
belatedly instructed him on the rights he waived by pleading guilty. This
list included the right to receive a unanimous verdict, but there is no
indication the court rested its holding on the judge's failure to inform
the defendant that he waived this particular right. See id. at 998 n.2.
Petitioner also claims that his plea was not knowing and voluntary
because he pled guilty based on his attorney's definition of extortion,
even though he believed he had engaged in simple assault. However,
petitioner's counsel's definition of extortion was correct. The conduct
petitioner admitted having engaged in properly constitutes the federal
crime of Hobbs Act extortion. Therefore this claim fails.
Petitioner also claims that his guilty plea was effectively coerced
because he received erroneous advice from counsel concerning the maximum
sentence available for the offenses charged. To the extent this alleged
coercion has a bearing on the effectiveness of counsel's assistance, it
is analyzed below. Regarding the voluntariness of petitioner's plea,
petitioner asserts that his attorney told him "that if he did not plead
guilty, he would receive a `twenty year prison term,' whereas, if
he did plead guilty, he will `receive a ten year term.'" Petitioner
also asserts his attorney told him he would receive "double the prison
term" if he were found guilty at trial.*fn3
Petitioner does not submit any affidavits to support this claim,
although he does proffer that his brother "would testify" that
petitioner's attorney made these statements on the morning petitioner
entered his guilty plea.*fn4 Even accepting for purposes of this motion
that the attorney made such statements, petitioner's strained attempt to
characterize them as coercive fails. Petitioner's attorney was simply
advising his client of the possible consequences of going to trial versus
pleading guilty. Petitioner was charged with two violations of the Hobbs
Act, each of which carried a statutory maximum sentence of twenty years.
Correctly reporting the maximum sentence allowed under the statute is not
coercive; it is appropriate professional conduct. The sentence petitioner
ultimately received after pleading guilty was 121 months, or just over
ten years, which is in accord with the estimate petitioner claims he
received from counsel.
Moreover, the court independently explained that the maximum sentence
petitioner faced was twenty years for each count to which he was pleading
guilty. Tr. at 15. Any possible confusion allegedly engendered by
petitioner's trial counsel was therefore resolved prior to petitioner's
guilty plea, The court also asked petitioner whether he had discussed the
sentencing guidelines and the
possible range of sentencing with his attorney, and petitioner answered
"yes." Tr. at 18, 20. Finally, at the plea allocution, the court asked
petitioner whether anyone had threatened or forced him to plead guilty and
petitioner answered "no." Tr. at 25. These "[s]olemn declarations in open
court carry a strong presumption of verity." Blackledge v. Allison,
431 U.S. 63, 74 (1977). The court thus finds that petitioner's plea was
both knowing and voluntary.
Ineffective Assistance of Counsel
In order to succeed on an ineffective assistance of counsel claim, a
petitioner must show both that counsel's performance fell below the
objective standards of reasonableness dictated by prevailing professional
norms and that there is a reasonable probability that, but for counsel's
deficient performance, the outcome of the proceedings would have been
different. Strickland v, Washington, 466 U.S. 668, 687-99, 694 (1984).
Under the first prong, a court "must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound
trial strategy." Id. at 689. In the context of a guilty plea, the second
prong "focuses on whether counsel's constitutionally ineffective
performance affected the outcome of the plea process. In other words, in
order to satisfy the `prejudice' requirement, the defendant must show
that there is a reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going to trial."
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). No such showing has been
Petitioner argues that he received ineffective assistance of counsel
because counsel suggested that a guilty plea would result in a lower
sentence than a verdict of guilty at trial, even though at the time
petitioner pled guilty on the morning of trial the only possible
difference in sentence was a
potential downward adjustment for acceptance of responsibility. Petitioner
argues this was unlikely because of the late date of his plea. Far from
being ineffective or coercive, however, petitioner's counsel was in fact
correct. Although ultimately petitioner did not receive a downward
adjustment for acceptance of responsibility, that was a result of his
conduct after the plea.*fn5 At the time he plead guilty, there was still
a possibility that he would get credit for accepting responsibility.
Petitioner also argues that he received ineffective assistance of
counsel because his attorney provided him with no discussion or analysis
of sentencing guidelines. However, at the plea allocution, the court
asked petitioner whether he had discussed the sentencing guidelines and
the possible range of sentencing with his attorney, and petitioner
answered "yes." Tr. at 18, 20.
During the allocution, petitioner stated he had discussed his plea with
counsel and that he was satisfied with counsel's representation. Tr. at
9. Prior to sentencing, petitioner specifically declined
an opportunity to withdraw his guilty plea and proceed to trial.
Petitioner fails to demonstrate that, absent counsel's alleged errors, he
would have insisted on proceeding with a trial rather than pleading
guilty. Moreover, given the strength of the evidence against petitioner,
which included a twenty-minute-long videotape showing a brutal beating of
a restaurant employee in which petitioner's co-defendant is heard
demanding to know why the restaurant was not using their car service, it
cannot be said that counsel's advice to plead guilty was not a reasonable
strategy. Accordingly, petitioner's claim of ineffective assistance of
counsel is denied.
For the reasons stated above, petitioner's motion under Section 2255 is