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United States v. Pichardo

United States District Court, Second Circuit

November 13, 2013


Negar Tekeei, Assistant United States Attorney, United States Attorney's Office, Southern District of New York, New York, NY, for the United States of America.

Sam A. Schmidt, New York, NY, for the Defendant.


DENISE COTE, District Judge.

On September 25, 2013, defendant Enriquillo Eliud Pena Pichardo ("Pichardo") filed a motion to withdraw his guilty plea to one count of aggravated identity theft in violation of 18 U.S.C. § 1028A. For the reasons explained herein, the motion is denied.


On February 19, 2009, Pichardo submitted a passport application in Manhattan in the name of "David Gascot." He provided a social security number, a birth certificate, and a New York driver's license for Gascot. David Gascot is a real person, and Pichardo is not he.

Pichardo had successfully used the Gascot identity on multiple occasions in 2008, the year before he used it to apply for a passport. First, on June 3, 2008, he applied for New York Medicaid benefits using the Gascot name, date of birth, and social security number. Second, on or about June 23, he applied for (and later received) a New York non-driver identification card using the Gascot name, date of birth, and social security number. Third, on July 25, because the first New York Medicaid application was rejected for reasons unknown, he reapplied using the Gascot name, date of birth, and social security number. He was successful and began receiving benefits by October. Fourth, on July 30, Pichardo was arrested on a New York drug charge, and he provided the Gascot name, date of birth, and social security number in connection with that arrest. Fifth, on December 3, Pichardo obtained a New York State driver's license using the Gascot name and date of birth.

On March 4, 2013, Pichardo was charged by federal complaint with two crimes. The first was making a false statement in applying for a passport with the intent to secure a passport, in violation of 18 U.S.C. § 1542 ("passport fraud"). The second was knowingly using the personal identification information of another person in connection with the first crime, in violation of 18 U.S.C. § 1028A ("aggravated identity theft"). Pichardo was arrested on March 5, at which point the Federal Defenders Office was assigned to represent him. A grand jury indicted Pichardo on March 13. Count One in the indictment is passport fraud, and Count Two is aggravated identity theft. Ronald Thau, of the Federal Defenders, filed a notice of appearance on behalf of Pichardo on March 19, and at a conference on that same date a trial date was set for June 17.

Through a Pimentel letter of May 8, the Government advised the defendant of its calculations of his sentencing guidelines. Among other things, it calculated the criminal history category as V due to the defendant's accumulation of 11 criminal history points stemming from three prior convictions and one parole violation. The Government calculated the guidelines range for Count One as nine to fifteen months' imprisonment, and because Count Two carried a mandatory consecutive term of imprisonment of two years, the total guidelines range as thirty-three to thirty-nine months' imprisonment. The defendant admitted during his plea allocution that he read the letter and discussed it with his attorney.

On May 22, the defendant pled guilty to both counts. The Court conducted a full Rule 11 plea colloquy, establishing that the defendant's plea was knowing and voluntary. The defendant was provided with a Spanish interpreter, even though Mr. Thau advised that the defendant was fluent in English. It was determined that the defendant was not under the influence of drugs, medicine, or pills. He was advised of the constitutional rights that he was waiving in pleading guilty. He was advised of the charges against him, and the penalties that applied to those charges. Among other things, he was advised of the mandatory two-year term of imprisonment for Count Two that would follow any term of imprisonment imposed on Count One. It was determined that an adequate factual basis existed for guilt on both charges. Further details of that colloquy, including the allocution, are discussed below. The defendant stated that he was satisfied with Mr. Thau's representation, and Mr. Thau affirmed that the defendant had provided a sufficient factual predicate for a plea of guilty to both counts. Mr. Thau further asserted that he knew of no reason that the Court should not accept the plea. The plea was accepted, a judgment of guilt was entered on both counts, and sentencing was scheduled for August 23.

Instead of filing a written sentencing submission on August 9, the date on which it was due, Mr. Thau submitted a letter requesting to be relieved as counsel due to the defendant's "asserted grounds on ineffective assistance of counsel" for (1) failing to move for dismissal of the aggravated identity theft count under Flores-Figueroa v. United States , 129 S.Ct. 1886, 1894 (2009), and (2) advising the defendant to plead guilty to the count, despite Flores-Figueroa. On August 14, new counsel was appointed.

On September 25, the defendant moved to withdraw his guilty plea to aggravated identity theft. As set forth in the affidavit accompanying the motion, the defendant alleges that he purchased a birth certificate and social security card in the name of David Gascot sometime in 2008 for approximately $1, 000. The seller was Dominican but told the defendant that he had "friends in Puerto Rico." The defendant admits that the "documents looked unaltered." For another $1, 000, another person took the defendant to the New York Department of Motor Vehicles, where his photograph was taken and he was given a New York driver's license in the name of David Gascot.

The defendant denies that anyone ever told him prior to his arrest that the name on the birth certificate or social security card was the name of a real person. He also asserts that he did not "know" that the documents were for a "real person" when he used them, but that his attorney told him that they were documents "of a real person" following his arrest.

The defendant represents that he told his attorney "all of the relevant information about the case, " and that his attorney advised him that he had "no defense to the charges and explained the sentencing Guidelines and the mandatory penalty" to him. Given the defendant's criminal record, the Government refused to accept a plea to Count One alone, and Mr. Thau advised the defendant that he had no choice but to plead guilty to both counts in order to "get points off for acceptance of responsibility." Following his plea of guilty, the defendant learned from a fellow inmate that to be guilty of the crime of aggravated identity theft, he had to have known that he was using a real person's identification documents.


The defendant presents three arguments in support of his motion to withdraw his guilty plea: (1) that he has met the requirements of a "fair and just reason" for withdrawal under Fed. R. Crim. P. 11(d)(2)(B); (2) that his plea was involuntary and thus invalid; and (3) that his plea was the product of ineffective assistance of counsel. Because the second and third arguments are closely related as the defendant has argued them, they are grouped for present discussion.

Each of these grounds rests on the Supreme Court's holding in Flores-Figueroa v. United States , 129 S.Ct. 1886 (2009), which interpreted the language of the aggravated identity theft statute at issue here. Under the statute, a mandatory consecutive two-year prison term is imposed upon an individual who, during the commission of certain other crimes, "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." 18 U.S.C. § 1028A(a)(1). In Flores-Figueroa, the defendant had submitted a counterfeit social security card and alien registration card to his employer; these cards used the defendant's real name, but the numbers on both cards were assigned to other people. The Government charged the defendant with aggravated identity theft under 18 U.S.C. § 1028A(a)(1), and the defendant moved for acquittal on the basis that the Government could not prove that he knew that the numbers on the counterfeit documents were assigned to other people. The Government responded that it was not required to do so because, as it contended, the term "knowingly" did not extend to the statute's last three words, "of another person."

The Supreme Court rejected the Government's position and held that "§ 1028A(a)(1) requires the Government to show that the defendant knew that the means of identification at issue belonged to another person." Flores-Figueroa , 129 S.Ct. at 1894. Of relevance here, the Court based its holding in large part on its assessment, under basic principles of grammar and common usage, that a person would "ordinarily" or "typically" read the statute and understand the term "knowingly" to extend to the words "of another person." Id. at 1891. Additionally, in responding to the Government's argument that it would prove difficult in many instances to prove that a defendant has the requisite knowledge, the Court ...

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