United States District Court, E.D. New York
GYOUNG S. PARK, Petitioner,
UNITED STATES OF AMERICA, Respondent. UNITED STATES OF AMERICA,
GYOUNG S. PARK, Defendant.
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge.
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.
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.
The IRS Interview
August 24, 2010, IRS agents interviewed Petitioner and her
daughter, J.H., at their home (the "IRS
Interview"). (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.)
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.)
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.)
The Guilty Plea
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. (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).
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.)
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.)
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).)
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 ...