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Park v. United States

United States District Court, E.D. New York

March 7, 2017

GYOUNG S. PARK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. UNITED STATES OF AMERICA,
v.
GYOUNG S. PARK, Defendant.

          MEMORANDUM & ORDER

          NICHOLAS G. GARAUFIS, United States District Judge.

         On October 23, 2015, Petitioner pled guilty to one count of willful failure to collect and pay taxes in violation of 26 U.S.C. § 7202, in connection with her ownership and operation of Empire State Auto, Inc. ("Empire"), an automobile repair business located in Queens, New York. (Oct. 23, 2015, Min. Entry; see also Indict. (Dkt. I).)[1] Petitioner was sentenced to an incarceratory term of one year plus one day, three years of supervised release, a $25, 000 fine, and restitution of $770, 823. (J. (Dkt. 18).) Now before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 (the "Petition"), in which Petitioner seeks to vacate her sentence on grounds of ineffective assistance of counsel. (Mot. to Vacate ("Pet.") (Dkt. 25).) For the reasons stated below, the Petition is DISMISSED.

         I. BACKGROUND

         A. The IRS Interview

         On August 24, 2010, IRS agents interviewed Petitioner and her daughter, J.H., at their home (the "IRS Interview").[2] (See IRS Interview Mem. (Dkt. 29-1).) Petitioner is a native Korean speaker with limited English proficiency, and so J.H. acted as an interpreter. (Id. at 1; see also Pet'r Decl. (Dkt. 25 at ECF p.12).¶ 6 ("I speak almost no English whatsoever.").) Respondent (the "Government") alleges-and Petitioner has not denied-that the IRS Interview "was conducted without [Petitioner's] husband being present and before she had retained counsel." (Gov't Resp. in Opp'n to Pet. ("Gov't Resp.") (Dkt. 29) at 2.)

         Petitioner explained that she was an Empire officer with signatory authority on the corporate bank accounts, and that she also signed the company's tax returns. (IRS Interview Mem. at 1-2.) J.H. stated that her role included processing weekly payroll checks for Empire's mechanics, and that she provided the payroll information and other financial records to Empire's accounting firm for assistance with tax filings. (Id. at 2-3.)

         The IRS agents asked whether Empire ever used check-cashing businesses to process auto insurance checks, rather than depositing those checks in the corporate bank account. (Id. at 3.) J.H. did not have an answer, and suggested that the agents ask her father about that issue. (Id.) When Petitioner was asked the same question, she explained that Empire employed 15 to 20 people "off the books" by paying them in cash on a weekly basis. (Id.) Petitioner acquired the necessary funds by endorsing certain checks made out to Empire and then cashing them at any of several nearby check-cashing businesses. (Id.) Empire did not keep records of checks cashed or employees paid in this way, and so those figures were not passed on to Empire's accountants for calculations of income or payroll taxes. (Id. at 3-4.)

         B. The Guilty Plea

         Petitioner and defense counsel Edmund Mendrala appeared before the court on October 23, 2015 (the "Plea Hearing"), for the purpose of entering a guilty plea to one count of willful failure to pay payroll taxes.[3] (Oct. 23, 2015, Min. Entry; see also Plea Tr. (Dkt. 26).) The court explained that lying under oath carried the risk of criminal perjury charges (id. 3:9-12) and that Petitioner had the right to a trial (Id. 9:9-11:21). The court informed Petitioner that she faced a maximum possible prison term of five years (Id. 12:13-16), and emphasized that "the final responsibility for sentencing [] is [the court's] alone" (Id. 16:9-15).

         As part of Petitioner's guilty plea, she confirmed that no one had made her any promise as to the sentence she would ultimately receive. (Id. 19:11-13.) In Petitioner's allocution, she stated that, as Empire's owner, her "job was to collect the payroll tax and file [the] correct amount. But in order to avoid the [] payroll tax, [she] intentionally, knowingly ... filed falsely." (Id. 19:19-22.) The court accepted Petitioner's guilty plea. (Id. 20:11-17.)

         C. Sentencing

         At a preliminary sentencing hearing on June 23, 2016 (the "Preliminary Sentencing"), the parties informed the court that Petitioner had agreed to a restitution order of $770, 823, "the full amount owed to the government." (Prelim. Sent. Tr. (Dkt. 28) 3:2-5.) Petitioner contested the tax loss calculation as it affected the Sentencing Guidelines, however, offering arguments based on the economics of tax deductions, the Social Security system, and a voluntary IRS v reclassification program. (Id. 7:20-15:21; see also Def. Sent. Mem. (Dkt. 8).) The court rejected these arguments and adopted the Presentence Report's calculated Guidelines range of 24 to 30 months' incarceration. (Prelim. Sent. Tr. 16:22-17:4.) The Government stated that it would not oppose a below-Guidelines sentence-including a "non-incarceratory sentence"-in light of Petitioner's cooperation with the IRS's investigation and her willingness to pay back the full amount of restitution. (Id. 17:11 -24.)

         Petitioner's sentencing was continued to August 10, 2016 (the "Continued Sentencing"). (Aug. 10, 2016, Min. Entry.) The court pressed the parties for details as to the specific roles that Petitioner and her husband played at Enterprise, seeking to confirm that Petitioner was the proper person to hold responsible for the fraudulent scheme. (Cont. Sent. Tr. (Dkt. 27) 5:19-8:13.) The Government stated that they "simply [had] no evidence [that] anybody else was involved, " and confirmed that they would have charged additional individuals had there been adequate evidence to do so. (Id. 7:24-8:2.) Both parties referenced an affidavit signed by Petitioner in 2012 in which she confessed to personally cashing $6.7 million in checks, and to her knowing failure to report Empire's income and cash wages to the IRS. (Id. 7:22-24 (Gov't), 16:1-4 (Pet'r); see also Park Aff. (Dkt. 29-2).)

         The court emphasized the "seriousness of the offense, " and explained the need to provide both "just punishment for this defendant" and also "adequate deterrence to criminal conduct in the future, " given the importance of "voluntary compliance" with U.S. tax laws. (Cont. Sent. Tr. 22:4-22.) The court restated its concern that Petitioner may not have been solely or even primarily responsible for the tax fraud, but pointed to the parties' "agree[ment] that she's responsible. Solely responsible. So, if she's solely responsible, she has to be the sole person who will accept the punishment for this." (Id. 23:5-11.) The court sentenced Petitioner to one year plus one day in ...


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