United States v. Colvard

UNITED STATES OF AMERICA v. MARIA COLVARD

CRIMINAL NO. 1:13-CR-109-01

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

February 18, 2015

(Chief Judge Conner)

MEMORANDUM

Presently before the court in the above-captioned matter is the motion (Doc. 143) to withdraw guilty plea filed by defendant Maria Colvard ("Colvard") on January 22, 2015, wherein Colvard seeks to withdraw the plea of guilty she entered on January 6, 2015. For the reasons that follow, the court will grant the motion.

I. Factual Background & Procedural History

Colvard was initially indicted (Doc. 23) on June 5, 2013 on two counts: (1) extortion by a person representing herself to be an officer of the United States, in violation of 18 U.S.C. §§ 2, 872 (Count I), and (2) false personation of an employee of the United States, in violation of 18 U.S.C. § 912 (Count II). A superseding indictment (Doc. 74) followed on November 6, 2013, which additionally charged Colvard with a count of interference with commerce by threats, in violation of 18 U.S.C. § 1951 ("Hobbs Act") (Count III). On January 15, 2014, the government filed a second superseding indictment (Doc. 83) against Colvard, adding two counts of tampering with a witness, in violation of 18 U.S.C. § 1512(b)(1) (Counts IV and V). Colvard appeared before a magistrate judge on January 14, 2014 and entered a plea of not guilty. (Doc. 92).

On January 6, 2015, Colvard entered a plea of guilty (Doc. 140) to Counts II and III of the second superseding indictment, pursuant to a plea agreement (Doc. 137) with the government. The plea agreement provides for dismissal of the remaining counts of the second superseding indictment at the time of sentencing. (Id. ¶ 1). The agreement also notes that Count II carries a maximum sentence of imprisonment of three years and that Count III carries a maximum sentence of imprisonment of twenty years. (Id.) Additionally, it "specifically reserves the right [of the government] to recommend a sentence up to and including the maximum sentence of imprisonment," but requires the government "to recommend that any sentence of imprisonment for Counts II and III be concurrent." (Id. ¶ 11). The agreement states that "any legal and factual issues relating to the application of the Federal Sentencing Guidelines to the defendant's conduct, including facts to support any specific offense characteristic or other enhancement or adjustment and the appropriate sentence within the statutory maximums provided for by law, will be determined by the court after briefing, a pre-sentence hearing, and/or a sentencing hearing." (Id. ¶ 9).

At the plea hearing, the court conducted a lengthy colloquy with Colvard to assess the voluntariness of her plea. (See Doc. 146). During the discourse, the government outlined the terms of the plea agreement, and Colvard verified their accuracy. (Id. at 9:17-19). Thereafter, the court specifically asked Colvard, "Do you understand that no one can guarantee . . . what sentence you will get from me?" (Id. at 10:3-4). She answered in the affirmative. (Id. at 10:5). Colvard confirmed her understanding that the combined statutory maximum term of imprisonment forCounts II and III is twenty-three years. Although she would have the opportunity to contest the probation officer's later calculation of the appropriate guidelines range prior to her sentencing, Colvard acknowledged that she would be precluded from withdrawing her guilty plea if she disagreed with the court's ultimate guidelines determination. (Id. at 11:10-16; 12:15-13:2).

After an extensive colloquy regarding Colvard's appellate waiver, the court continued with its inquiry, asking, "Are you pleading guilty because you are in fact guilty as charged in Counts II and III of the [second] superseding indictment?" (Id. at 15:20-21). Colvard responded in the affirmative. (Id. at 15:22). Yet, when she was faced with the factual admissions essential to establish various elements of the offenses, Colvard balked. In the court's view, the seemingly knowing and voluntary nature of the plea colloquy unraveled after the government stated the factual basis for the plea agreement.

The government proffered the facts on the record. It described an elaborate scheme wherein Colvard and an employee of her tax preparation business, Merarys Paulino ("Paulino"), conspired to obtain financial records and client information from a former employee, Cristina Gutierrez ("Gutierrez"), by impersonating an officer of the Internal Revenue Service ("IRS"). (Id. at 17:1-20:25). Immediately thereafter, Colvard conferred off the record with counsel, Attorney John Reed ("Attorney Reed"), for approximately four minutes. (Id. at 21:10-11). Attorney Reed then indicated to the court that Colvard requested permission "to state her position with respect to some of these things." (Id. at 21:18-19). Her request prompted the following exchange:

Court: Ms. Colvard, do you fully admit to the facts that have been placed on the record by the Assistant United States Attorney?

Colvard: Do I fully admit to the facts he stated?

Court: Yes.

Colvard: No, I found the various facts -

Court: Then tell me what you admit to and what you do not admit to.

Colvard: Okay. There were many. However, I admit to being aware of Ms. Paulino attending the, or presenting herself as the . . . IRS agent. . . . I was aware that Ms. Gutierrez was violating my do not compete agreement, and I presented myself and I, you know, provided her with a letter stating that she either cease and desist or . . . abide by the contract, which she was not to compete with my office within fifty miles . . . within three years I think of the original signed contract . . . .

So I felt I was within my rights to do that. Now, I understand Ms. Paulino presented herself, and I was not aware of everything that was stated, and it's not an attempt to, you know, dislodge myself from any responsibility, but, you know, just stating that I demanded money, that's -

Court: I'm sorry, I need to interrupt you for a second, Ms. Colvard. It's necessary, in order for me to make sure that this is a voluntary plea on your part . . . that you are admitting to the facts that form the essential elements of the charges that have been file[d] against you. Now, so far you haven't admitted to the essential elements of these statutory violations . . . . All you've said is that you were aware that Ms. Paulino was doing this . . . and all you've indicated is you thought it was within your rights to advise Ms. Gutierrez that she was in violation of the non-compete agreement.

Now, in order for me to accept your guilty plea it's necessary for me to establish for the record a factual basis for that plea. Mr. Bloom has placed on the record facts that would provide a sufficient basis for the plea to these two counts. Tell me what you admit to that forms the basis for the two charges against you and I'll determine whether or not I think that this plea has an independent basis in fact. . . .

Colvard: I admit to having, being involved in the impersonation of the IRS agent.

Court: So you were not only aware, but you were involved in the impersonation of an IRS agent for purposes of intimidating Ms. Gutierrez?

(Brief pause.)

Colvard: Intimidating is not a word that I would use, Your Honor.

Court: Mr. Bloom, maybe you can help us out. Let's get to the very basics of the essential elements of these two statutory offenses. If we cannot, then I'm not going to accept this guilty plea.

Attorney Bloom: Certainly, Your Honor. Your Honor, in terms of the second count, the 912, it would require . . . falsely assuming or pretending to be an IRS agent, I think we have the first part, but the second part [] that would need to be met is that she did so in order to obtain any money, paper, document, or anything of value. The thing of value certainly could be the client list.

. . .

Court: Now, do you admit to that Ms. Colvard? Do you admit that you were attempting to acquire something of value to you?

Colvard: I admit.

Court: . . . And what was the thing of value specifically? The client list? . . .

Colvard: Yes.

. . .

Attorney Bloom: [For the second statutory violation, interference with commerce by threats,] th[e] threat would be the threat to shut down the business and regarding the $10,000 fine as indicated . . . .

Court: All of which would be in connection with the impersonation of the IRS agent.

Attorney Bloom: Correct, Your Honor.

Court: Alright. Ms. Colvard, do you understand the allegation and the facts that the government suggests it would present in support of . . . that specific charge?

Colvard: The way it was stated, yes, I agree to it.

Court: Well, do you admit that the nature of this impersonation that you were involved with, the impersonation of an IRS agent, that the effort was made by intimidation . . . to stop [the business] from operating in your vicinity by the threats raised by Ms. Paulino.

Colvard: I understand that the threats, yes, but that was not my intention.

. . .

Colvard: Honestly the only thing I wanted to know was if she was using my technology and my EFIN. That's all I wanted to know. And through the actions that transpired the rest of it evolved into, you know, Ms. Paulino making demands that I was not aware of, but I know that they happened.

. . . (Discussion off the record.)

Court: Let's go back on the record. As I stated to counsel while we were off the record, Section 1951 states as follows, "Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce by robbery or extortion, or attempts or conspires to do so . . . shall be fined under this title or imprisoned not more than twenty years or both.

I'll note that while we were off the record Mr. Reed pointed out that the term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or, and I emphasize this last section, under color of

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