United States v. Lilaahar Bical ( 2020 )

19-2470-cr
United States v. Lilaahar Bical
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 7th day of July, two thousand twenty.
PRESENT: RALPH K. WINTER,
GUIDO CALABRESI,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v- 19-2470-cr
LILAAHAR BICAL, aka SAMMY,
Defendant-Appellant,
DARMIN BACHU,
Defendant. ∗
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∗
The Clerk of the Court is respectfully directed to amend the official caption to conform
to the above.
FOR APPELLEE: DREW G. ROLLE, Assistant United States
Attorney (Susan Corkery, Assistant United
States Attorney, on the brief), for Richard P.
Donoghue, United States Attorney for the
Eastern District of New York, Brooklyn, New
York.
FOR DEFENDANT-APPELLANT: THOMAS A. KENNIFF (Nipun Marwaha, on
the brief), Raiser & Kenniff, PC, New York, New
York.
Appeal from the United States District Court for the Eastern District of
New York (DeArcy Hall, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Lilaahar Bical appeals from a judgment entered July
31, 2019, following a guilty plea, convicting him of attempt and conspiracy to commit
mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1349. The district court
sentenced Bical to three years' probation, with six months in community confinement,
and imposed a fine of $55,632. On appeal, Bical argues that (1) the district court erred
when it denied his motion to withdraw his guilty plea; (2) his counsel at the time of the
guilty plea was constitutionally ineffective; and (3) the district court erred procedurally
in imposing a fine above the range provided by the United States Sentencing
Guidelines. We assume the parties' familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
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During his plea allocution on October 4, 2017, Bical acknowledged
engaging in a scheme to defraud General Motors of funding for a lease on property for
a new GM dealership. Bical affirmed that he was pleading guilty voluntarily, that he
was fully satisfied with his counsel's representation of him, that no threats had been
made to force him to plead guilty, and that the only promises made to induce his guilty
plea were those set forth in the plea agreement. At the time, Bical was represented by
counsel from the law firm Carter, Ledyard & Milburn LLP ("CLM").
Just a few weeks later, Bical's co-defendant Bachu was acquitted after a
three-day trial. On December 11, 2017, the district court granted CLM's motion to
withdraw and Bical retained present counsel. On February 20, 2018, Bical moved to
withdraw his guilty plea on the grounds that the plea was involuntary and his CLM
counsel was constitutionally ineffective. The district court held a hearing on October 3,
2018 and denied the motion. On July 26, 2019 the district court sentenced Bical
principally to three years' probation with the first six months to be served in community
confinement and imposed a fine of $55,632. This appeal followed.
DISCUSSION
I. Motion to Withdraw the Guilty Plea
A. Applicable Law
"We review a district court's denial of a motion to withdraw a guilty plea
for abuse of discretion and any findings of fact in connection with that decision for clear
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error." United States v. Rivernider, 828 F.3d 91, 104 (2d Cir. 2016) (quoting United States v.
Juncal, 245 F.3d 166, 170-71 (2d Cir. 2001)). A defendant may withdraw a guilty plea
after it has been accepted but prior to sentencing if he can show "a fair and just reason
for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). In deciding whether to
grant a motion to withdraw a guilty plea, courts consider several factors, including (1)
whether the defendant raises a "significant question about the voluntariness of the
original plea"; (2) whether the defendant asserts his legal innocence in his motion; (3)
"the amount of time that has elapsed between the plea and the motion"; and (4) whether
withdrawal of the plea would prejudice the government. United States v. Albarran, 943
F.3d 106, 117-18 (2d Cir. 2019) (quoting United States v. Schmidt, 373 F.3d 100, 102-03 (2d
Cir. 2004)).
A defendant's sworn testimony at a plea colloquy is accorded a "strong
presumption of accuracy." Rivernider, 828 F.3d at 105 (internal quotation marks
omitted). The more time that has elapsed between the guilty plea and the motion, the
less likely withdrawal is to be fair and just. See Albarran, 943 F.3d at 123 (four-month-
lapse between plea and motion to withdraw supports denial of motion); see also United
States v. Doe, 537 F.3d 204, 213 (2d Cir. 2008) (five-month-lapse supports denial of
motion to withdraw). "[T]he government need not demonstrate prejudice where the
defendant fails to show sufficient grounds to justify withdrawal of the plea." United
States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997). The burden is on the defendant to show
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valid grounds for withdrawal, see Rivernider, 828 F.3d at 104, and, "because society has a
strong interest in the finality of guilty pleas," we apply a "stringent" standard when
determining whether a defendant has carried this burden, United States v. Rose, 891 F.3d
82, 85 (2d Cir. 2018).
B. Application
We conclude the district court did not abuse its discretion in denying
Bical's motion to withdraw his guilty plea. After conducting a hearing, the district court
determined that Bical failed to show valid grounds for withdrawal of his guilty plea.
The district court reviewed the plea allocution and Bical's affidavit in support of the
motion and concluded that the plea was knowing and that Bical had presented "no
evidence" to show that the plea was involuntary. App'x at 217. The district court noted
that though Bical maintained his innocence in the affidavit submitted with the motion,
this contradicted his sworn statements at the plea hearing. See Rivernider, 828 F.3d at
105. Further, while the district court did not specifically address the timing of Bical's
motion in its oral ruling, it engaged in an extensive discussion with Bical's counsel
seeking to clarify why over two months passed between the guilty plea and the motion.
See Doe, 537 F.3d at 213 (while a "swift change of heart may indicate a plea made in
haste or confusion" the delay of several months between the plea and the motion to
withdraw supports a finding that the plea was voluntary) (brackets and internal
quotation marks omitted); see also United States v. Smith, 949 F.3d 60, 66 (2d Cir. 2020)
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(district courts are not required to engage in "the utterance of 'robotic incantations'" to
assure the reviewing court they have considered the relevant factors (quoting United
States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007) (internal quotation marks omitted)).
Finally, because Bical failed to show sufficient grounds to justify the withdrawal of the
plea, the Government was not required to show prejudice. See Torres, 129 F.3d at 715.
Accordingly, there was no abuse of discretion.
II. Ineffective Assistance of Counsel
A party voluntarily waives an argument where the decision to abandon it
"was the product of a free and deliberate choice rather than intimidation, coercion, or
deception." United States v. O'Brien, 926 F.3d 57, 73 (2d Cir. 2019) (quoting
Berghuis v. Thompkins, 560 U.S. 370, 382 (2010)). Here, in response to the district court's
inquiries during the hearing on the motion to withdraw the guilty plea, defense counsel
clarified several times that Bical was not asserting an ineffective assistance of counsel
claim. See, e.g., App'x at 196-97 (Court: "[A]re you arguing ineffective assistance of
counsel or . . . providing an explanation for the Court as to why Mr. Bical didn't raise
certain issues to the Court?" [ . . . ] [Counsel]: "[T]he latter, providing context."); App'x
at 216 ("At this hearing, the defendant has made clear that he is not advancing an
ineffective assistance of counsel claim, . . . and as such, that argument to the extent it
was advanced in his submission has been withdrawn."). Accordingly, the ineffective
assistance of counsel argument was waived. See O'Brien, 926 F.3d at 73.
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III. The Fine
The district court determined that the Guidelines range for a fine was
$1,000 to $10,000, with a statutory maximum of $250,000. The district court imposed an
above-Guidelines fine of $55,632. Bical challenges the procedural reasonableness of the
fine, contending that the district court failed to explain its reasoning for imposing an
above-Guidelines fine. We are not persuaded.
We review claims of procedural unreasonableness not raised below for
plain error. See United States v. Stevenson, 834 F.3d 80, 83 (2d Cir. 2016). Demonstrating
plain error requires that there is an error that is clear or obvious, that affects the
appellant's substantial rights, and that seriously affects the "fairness, integrity, or public
reputation of judicial proceedings." Id. (quoting United States v. Marcus, 560 U.S. 258,
262 (2010)). Where the district court imposes a sentence that represents an upward
departure from the guidelines, "it should indicate the specific reasons for the imposition
of [the] sentence." United States v. Mordini, 366 F.3d 93, 95 (2d Cir. 2004) (internal
quotation marks omitted).
Here, the Probation Office calculated that three years of supervision and
six months of community confinement would result in a cost to the Government of
$27,816. Noting that it chose to rely on a fine rather than a custodial period to reflect the
seriousness of the offense, the district court imposed a fine double the cost of Bical's
supervision and confinement because it "believe[d] that additional monies should be
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levied against Mr. Bical to reflect the seriousness of this crime and to provide just
punishment." App'x at 306. The district court thus clearly stated the reasons for its
upward departure from the Guidelines range. See Mordini, 366 F.3d at 95. Accordingly,
we conclude that there was no error -- let alone plain error -- in the district court's
imposition of the fine.
* * *
We have considered Bical's remaining arguments and conclude they are
without merit. For the foregoing reasons, we AFFIRM the judgment of the district
court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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