Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gonzalez v. United States

United States District Court, S.D. New York

March 21, 2017

EFRAIN GONZALEZ, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION & ORDER

          WILLIAM H. PAULEY III, District Judge.

         Petitioner Efrain Gonzalez, Jr., brings this habeas proceeding to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, Gonzalez's habeas petition is denied.

         BACKGROUND

         On May 8, 2009, Gonzalez, a former New York State Senator, pled guilty to: (1) Conspiracy to commit mail fraud and federal program fraud (Count Two); (2) Conspiracy to commit mail fraud, wire fraud (including honest services fraud), and federal program fraud (Count Three); (3) Mail fraud in connection with the West Bronx Neighborhood Association (Count Six); and (4) Mail fraud in connection with the United Latin American Foundation (Count Eight).

         Thereafter, Gonzalez sought to withdraw his plea. This Court denied that application (No. 06-cr-0726-01, ECF No. 148.), and sentenced Gonzalez to 60 months of imprisonment on Counts Two and Three, and 84 months of imprisonment on Counts Six and Eight, all to run concurrently. (ECF No. 162.) This Court also ordered restitution in the amount of $122, 775. (ECF No. 168.)

         The Second Circuit affirmed Gonzalez's conviction and sentence in all respects except as to the restitution amount. (ECF No. 178.) In March 2013, this Court entered a revised restitution order in the amount of $92, 081.25 on consent of the parties. (ECF No. 181.) Gonzalez's time to appeal the Second Circuit's remand order and this Court's subsequent revised restitution order has expired.

         In September 2013, Gonzalez filed his first habeas petition, asserting in essence that the Government intimidated a witness who could have provided exculpatory testimony on his behalf. This, Gonzalez argues, resulted in obstruction of justice and a denial of his right to a fair trial. In May 2014, this Court dismissed Gonzalez's habeas petition as untimely. (ECF No. 193.) Thereafter, the Second Circuit vacated this Court's dismissal order on the basis that Gonzalez's time to file his petition should have been calculated from the date this Court entered the revised restitution order, not the date on which the Second Circuit affirmed his conviction. (ECF No. 198.)

         On December 2, 2015, Gonzalez amended his habeas petition to assert four grounds for relief: (1) ineffective assistance of appellate counsel; (2) obstruction of justice; (3) denial of a right to a fair trial; and (4) due process violation. (ECF No. 200.)

         DISCUSSION

         I. Ground One-Ineffective Assistance of Counsel

         Gonzalez asserts that his appellate counsel should have argued for his conviction on Count Three-conspiracy to commit mail fraud, wire fraud (including honest services fraud), and federal program fraud-to be set aside in view of the Supreme Court's holding in Skilling v. United States, 561 U.S. 358 (2010). Gonzalez cites Skilling for the proposition that the honest services fraud statute at issue, 18 U.S.C. § 1346, bars only kickback and bribery schemes in connection with an honest services fraud charge. And because the underlying allegations of his indictment did not involve any bribes or kickbacks, Gonzalez argues that Count Three, a multi-object conspiracy that includes honest services fraud, would have been dismissed but for his appellate counsel's failure to raise the argument.

         Gonzalez's argument is unavailing for many reasons, but none more than for the simple proposition that a “conspiracy conviction based on a multi-object conspiracy may be upheld so long as evidence is sufficient with respect to at least one of the criminal objectives.” United States v. Bilzerian, 926 F.2d 1285, 1302 (2d Cir. 1991); United States v. Duncan, 42 F.3d 97, 105 (2d Cir. 1994) (“[W]hen a defendant is convicted of a multiple object conspiracy by a general verdict, the conviction is sustainable if one of the conspiratorial objects is supported by the evidence, even if the other is not.”). The criminal charge at issue here covers not only honest services fraud, but also mail fraud and federal program fraud. As the Government notes in its opposition brief, the “wire fraud/honest services object of Count Three formed no part of his guilty plea.” (Govt. Memo. of Law in Opp. to Pet. Efrain Gozalez, Jr.'s Section 2255 Motion (“Opp.”), ECF No. 203, at 10 (emphasis added).)

         Indeed, the two substantive offenses to which Gonzalez pled guilty were mail fraud charges stemming from his illicit activities with the West Bronx Neighborhood Association and the United Latin American Foundation (Counts Six and Eight, respectively). Those mail fraud schemes formed the basis of the conspiracy charge in Count Three despite the fact that the conspiracy count contained multiple objects. Cognizant of that distinction, this Court allocuted Gonzalez on the conspiracy charges specifically in terms of their mail fraud objects, noting that “counts two and three of the indictment charge you with a conspiracy to commit mail fraud in violation of Title 18 of the United States Code, Section 371.” (Plea Transcript dated May 8, 2009 (“Plea Tr.”), ECF No. 99, at 9 (emphasis added), at 21 (“[H]ow do you plead, sir, to the mail fraud conspiracy charged in count three of the indictment, guilty or not guilty?”).)

         Moreover, in Gonzalez's own words, he admitted his conduct in terms of mail fraud, not wire fraud, and admitted stealing funds to pay for his personal expenses, not to deprive his constituents of honest services. (Plea Tr. at 17.) And at sentencing, this Court acknowledged once more that Gonzalez's conviction on Count Three was predicated on the mail fraud object, specifically excluding any basis for a conviction on conspiracy to commit honest services fraud or federal program fraud. (See Sentencing Transcript dated May 25, 2010 (“Sent. Tr.”), ECF No. 166, at 25 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.