United States v. William Graulich, IV , 524 F. App'x 802 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2576
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UNITED STATES OF AMERICA
v.
WILLIAM GRAULICH, IV,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-11-cr-00641-001)
District Judge: Honorable Robert B. Kugler
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Submitted Under Third Circuit LAR 34.1(a)
April 16, 2013
Before: AMBRO, HARDIMAN and COWEN, Circuit Judges.
(Filed: April 18, 2013)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
William Graulich IV appeals the District Court‘s order denying his motion to
withdraw his guilty plea and its sentencing enhancement for obstruction of justice. For
the following reasons, we will affirm.
I
Because we write for the parties, who are well acquainted with the case, we recite
only the facts and procedural history essential to its disposition.
In September 2011, Graulich pleaded guilty to conspiracy to commit wire fraud in
violation of 18 U.S.C. § 1343. Graulich‘s guilty plea was entered pursuant to a written
plea agreement with the Government, which stipulated, for sentencing purposes, that
Graulich‘s Ponzi scheme caused a loss of $867,000. The plea agreement also stipulated
that Graulich was entitled to a three-point reduction for acceptance of responsibility and
no other enhancements, for a total offense level of 18. During the plea colloquy, the
District Court informed Graulich that the plea agreement was not binding on the Court
and that Graulich could be sentenced to a term of imprisonment of up to twenty years.
Graulich acknowledged that he understood. Graulich then testified that he was pleading
guilty of his own free will, and that he had not been induced or threatened. Next, the
District Court explained the elements of conspiracy to commit wire fraud to Graulich.
Finally, the District Court and Graulich had the following exchange:
[The Court:] Was this a fraud, Mr. Graulich?
(Brief Pause)
[Graulich:] My contracts with [D.G.] were reached in good faith.
[The Court:] So you did not commit a fraud?
[Graulich:] I moved money that I should not have moved.
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[The Court:] Mr. Graulich, this is a simple yes or no question. You either
committed a fraud or you didn‘t. You either committed a fraud back in
2008. If you didn‘t, then put the Government to its proofs. Make them try
the case and prove this case against you.
[Graulich:] Yes.
[The Court:] Yes, sir, what?
[Graulich:] D.G., D.G. the business investment with D.G. — uh, yes, sir,
there was a fraud committed.
[The Court:] Against D.G.?
[Graulich:] Yes, sir.
[The Court:] All right. Sir, how do you plead to this information guilty or
not guilty?
[Graulich:] Guilty.
App. 136a. The District Court then accepted Graulich‘s guilty plea.
On February 14, 2012, the Probation Office delivered Graulich‘s Presentence
Investigation Report (PSR), in which it calculated a loss of $3.6 million rather than the
$867,000 stipulated to by the Government. In addition, the PSR assessed a two-level
enhancement, which had not been contemplated by the plea agreement, for committing a
substantial part of the fraud outside the United States. As a result, the PSR calculated a
total offense level of 24, six levels higher than was stipulated in the plea agreement. This
calculation increased Graulich‘s Guidelines sentencing range from 27 to 33 months‘
imprisonment to 51 to 63 months‘ imprisonment.
On March 12, 2012, Graulich informed the Government that he would be moving
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to withdraw his guilty plea. Graulich submitted an affidavit stating that, the day before
his September 2011 plea hearing, Sotiris Macromalis, an alleged perpetrator of a related
fraud, sent an individual to show Graulich a picture of Graulich‘s wife and children in
Arizona. Graulich further averred that another person sent by Macromalis approached
him a month later, and that a private investigation revealed that Macromalis‘s brother was
murdered in North Africa by ―very dangerous individuals.‖ (Id.) Graulich stated that he
attempted to report the threats to the U.S. Attorney‘s Office, but to no avail. Graulich‘s
affidavit also noted that his PSR assessed a total offense level six points higher than that
contemplated by the plea agreement. Therefore, Graulich stated:
As Probation is claiming (falsely) that the loss is much greater than the actual
loss, and since Probation is claiming that there should be a two-level
enhancement based upon its incorrect finding that a substantial portion of the
scheme occurred outside of the United States, . . . I am moving to withdraw my
guilty plea.
App. 89a. Finally, Graulich averred that his guilty plea was defective because he never
admitted to forming the requisite intent for conspiracy to commit wire fraud.
At a hearing in April 2012, the District Court denied Graulich‘s motion to
withdraw his guilty plea, finding that the real reason Graulich wanted to withdraw his
plea was dissatisfaction with the offense level calculation in his PSR. At the sentencing
hearing one month later, the District Court imposed a two-level enhancement for
obstruction of justice, because Graulich admitted at the April hearing that he lied under
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oath when he testified in September that his plea was voluntary. The Court also rescinded
the three-level decrease for acceptance of responsibility, because Graulich‘s attempt to
withdraw his guilty plea demonstrated that he did not accept responsibility.
Consequently, the District Court calculated a total offense level of 27,1 corresponding to a
Guidelines range of 70 to 87 months‘ imprisonment. After hearing argument from
counsel and considering the 18 U.S.C. § 3553(a) factors, the District Court sentenced
Graulich to the bottom of the range (70 months‘ imprisonment). Graulich now appeals
the District Court‘s denial of his motion to withdraw his guilty plea and the two-level
enhancement for obstruction of justice.
II2
We review the District Court‘s denial of a motion to withdraw a guilty plea for
abuse of discretion. United States v. King, 604 F.3d 125, 139 (3d Cir. 2010). We review
the District Court‘s legal interpretation of the Sentencing Guidelines de novo, and its
factual finding that Graulich willfully obstructed justice for clear error. See United States
1
The District Court appears to have made an arithmetic error here. The PSR
assessed a total offense level of 24. The District Court indicated that it was making only
two changes to the PSR: adding two levels for obstruction of justice, and adding another
three levels by removing the acceptance of responsibility reduction. That calculation
should have resulted in a total offense level of 29, not 27. This error was harmless as to
Graulich because it resulted in a lower offense level than he would have received absent
the error.
2
The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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v. Powell, 113 F.3d 464, 467 (3d Cir. 1997).
A
A defendant seeking to withdraw a guilty plea bears ―a substantial burden‖ to
show ―a fair and just reason for the withdrawal of his plea.‖ King, 604 F.3d at 139(citations omitted); see also Fed. R. Crim. P. 11(d)(2)(B). To determine whether a ―fair
and just reason‖ exists, we consider whether: (1) the defendant asserts his innocence; (2)
the defendant proffers strong reasons justifying the withdrawal; and (3) the government
would be prejudiced by the withdrawal. King, 604 F.3d at 139. Graulich has not met any
of these factors.
First, Graulich did not meaningfully assert his innocence. To do so, a defendant
must ―not only reassert innocence, but give sufficient reasons to explain why
contradictory positions were taken before the district court and why permission should be
given to withdraw the guilty plea and reclaim the right to trial.‖ United States v. Jones,
336 F.3d 245, 253 (3d Cir. 2003) (citation omitted). Rather than attempting to explain
why contradictory positions were taken in the District Court, Graulich claims innocence
by arguing that he never had the intent to defraud. This argument is belied by Graulich‘s
plea colloquy, which shows that he admitted to having the requisite intent. The District
Court informed Graulich that an element of conspiracy to commit wire fraud was ―that
you joined in this agreement or conspiracy knowing of its objective and intending to join
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together with at least one other alleged conspirator to achieve this objective.‖ App. 116a.
When the District Court asked Graulich if he had committed a fraud, he replied: ―I
moved money that I should not have moved.‖ App. 136a. When the District Court
pressed Graulich on this issue, he stated that ―there was a fraud committed‖ and that he
wished to plead guilty. Id. Taken as a whole, Graulich‘s statements in the plea colloquy
are an admission of guilt, and he failed to ―give sufficient reasons to explain‖ them in his
withdrawal motion. See Jones, 336 F.3d at 253.
Second, Graulich did not proffer strong reasons for justifying the withdrawal.
Although he averred a vague threat against him, five months after the threat was allegedly
made, Graulich provided no evidence beyond his own belated testimony that the threat
actually occurred. Even more significant, as the District Court pointed out, Graulich
never averred that the threat caused him to plead guilty. The District Court found that the
―real reason‖ for Graulich‘s motion to withdraw his plea was the Probation Office‘s
calculation of a higher offense level than that contemplated by the plea agreement. Given
that Graulich himself averred that was the case, the District Court‘s finding was obviously
correct. Dissatisfaction with an offense level calculation is not a strong reason for
withdrawing a guilty plea. See King, 604 F.3d at 140 & n.7.
Finally, allowing Graulich to withdraw his guilty plea would prejudice the
Government. As the District Court found, the Government suspended its investigation
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into Graulich in light of his guilty plea, and seven months elapsed between Graulich‘s
guilty plea and his motion to withdraw it. Thus, the District Court did not abuse its
discretion by refusing to allow Graulich to withdraw his guilty plea.
B
Graulich also challenges the District Court‘s imposition of a two-level
enhancement for obstruction of justice. The District Court applied the enhancement after
finding that Graulich committed perjury. This finding was not clearly erroneous. At the
April withdrawal of guilty plea hearing, Graulich himself admitted to lying under oath:
Q. And is it your testimony here today while you are also under oath that
the testimony on [September 23, 2011] was in fact a lie?
[Graulich:] Yes, because of the perception of the violence against my
family, yes.
App. 168a.
Having found that Graulich committed perjury, the District Court committed no
legal error by applying the obstruction of justice enhancement. Section 3C1.1 of the
United States Sentencing Guidelines provides for a two-level enhancement
[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of conviction, and (2) the
obstructive conduct related to (A) the defendant‘s offense of conviction and
any relevant conduct; or (B) a closely related offense.
The obstruction of justice enhancement applies to defendants who commit perjury.
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See USSG § 3C1.1 cmt. 4(B); United States v. Dunnigan, 507 U.S. 87, 98 (1993). Thus,
the District Court‘s legal conclusion that the obstruction of justice enhancement was
appropriate because Graulich committed perjury was correct.
Graulich challenges the enhancement on three grounds: (1) that the District Court
failed to make sufficient findings; (2) that he did not ―willfully‖ provide the false
testimony because he provided it in order to protect his family rather than to obstruct
justice; and (3) that his false testimony was not material. None of these arguments has
merit. First, while ―‗it is preferable for a district court to address each element of the
alleged perjury in a separate and clear finding,‘ express separate findings are not
required.‖ United States v. Boggi, 74 F.3d 470, 479 (3d Cir. 1996) (quoting Dunnigan,
507 U.S. at 95). If ―the record establishes that the district court‘s application of the
enhancement necessarily included a finding as to the elements of perjury, and those
findings are supported by the record, we will not remand merely because the district court
failed to engage in a ritualistic exercise and state the obvious for the record.‖ Id. Here,
the District Court applied the obstruction of justice enhancement after listening to
counsel‘s argument that Graulich committed perjury while cross-examined about the
voluntariness of his guilty plea—an argument which necessarily implies that Graulich
willfully lied about a material matter. Thus, the District Court created an adequate record.
Cf. Rita v. United States, 551 U.S. 338, 359 (2007) (―Where a matter is . . . conceptually
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simple . . . and the record makes clear that the sentencing judge considered the evidence
and arguments, we do not believe the law requires the judge to write more extensively.‖).
Second, perjury does not require a specific intent to obstruct justice—rather, it
requires only that a defendant give false testimony with the ―willful intent to provide false
testimony, rather than as a result of confusion, mistake, or faulty memory.‖ Dunnigan,
507 U.S. at 94. Here, Graulich admitted at his April hearing that he lied when he stated
under oath at his September hearing that no one had threatened him into pleading guilty.
Therefore, the District Court did not clearly err by finding that he had the intent to
provide false testimony—either at the September hearing or the April one.
Finally, testimony related to Graulich‘s guilty plea is material because his conduct
during the guilty plea is related to his offense of conviction. See, e.g., United States v.
Ardolf, 683 F.3d 894, 901 (8th Cir. 2012) (obstruction of justice enhancement justified
when defendant admitted guilt under oath but later attempted to withdraw his guilty plea
claiming innocence); United States v. Adam, 296 F.3d 327, 334–35 (5th Cir. 2002)
(obstruction of justice enhancement appropriate when defendant admitted that he lied
about the circumstances surrounding his guilty plea); United States v. Martinez, 169 F.3d
1049, 1056 (7th Cir. 1999). Thus, the District Court properly assessed a two-point
enhancement for obstruction of justice.
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III
For the foregoing reasons, we will affirm the judgments of the District Court.
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