United States v. McCloskey

UNITED STATES OF AMERICA v. DAVID McCLOSKEY

Criminal No. 09-225

Civil No. 16-987

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

December 6, 2017

MEMORANDUM OPINION

Conti, Chief District Judge.

I. Introduction

Defendant David McCloskey ("McCloskey") filed a motion, through counsel, to vacate his conviction and/or sentence pursuant to 28 U.S.C. § 2255 (ECF No. 149), with numerous exhibits and brief in support (ECF Nos. 150, 151). On June 15, 2017, the court issued an opinion which denied McCloskey's motion, with one exception. The court held an evidentiary hearing on August 3 and 9, 2017, to determine whether McCloskey's former attorney, Michael DeRiso ("DeRiso"), provided ineffective assistance regarding a motion to withdraw his guilty plea. The parties filed proposed findings of fact and conclusions of law (ECF Nos. 165, 166) and the matter is now ripe for disposition.

II. Procedural Background

The entire factual and procedural history will not be recounted. In summary, on July 14, 2009, a federal grand jury returned a one-count indictment charging McCloskey with Conspiracy to Commit Wire Fraud, a violation of 18 U.S.C. § 1349. (ECF No. 1.) On June 8, 2010, defendant pleaded guilty to the offense. (ECF Nos. 28.) The parties vigorously disputed sentencing issues. On May 22, 2012, while awaiting sentencing, DeRiso filed a motion to withdraw McCloskey's guilty plea, with an attached affidavit signed by McCloskey and witnessed by DeRiso. (ECF No. 83). On September 4, 2012, DeRiso was replaced as McCloskey's attorney. On January 2, 2013, McCloskey withdrew the motion to withdraw his guilty plea.

On November 26, 2013, the court determined that filing the motion to withdraw his guilty plea and the affidavit constituted obstruction of justice and prevented McCloskey from qualifying for a sentence reduction for acceptance of responsibility. Filing the motion to withdraw his guilty plea changed McCloskey's advisory guideline range from 135-168 months to 210-240 months. On February 18, 2014, the court granted a downward variance and sentenced McCloskey to a term of imprisonment of 120 months. As noted above, McCloskey filed a § 2255 motion alleging that DeRiso provided ineffective assistance of counsel.

III. Findings of Fact

There was no plea agreement in this case. During the plea hearing, McCloskey agreed with only part of the government's factual basis for the conspiracy charge. McCloskey admitted that he knew Kenneth Cowden ("Cowden") was not a licensed appraiser, but did not concede that he hired Cowden to perform inflated appraisals. McCloskey acknowledged that the factual statements he agreed with "satisf[y] the elements of wire fraud." (Plea Hr'g Tr. at 17-20, ECF No. 78.) The court questioned McCloskey thoroughly to confirm that McCloskey knew that he could be sentenced to the statutory maximum of 20 years in prison and would be bound by his guilty plea even if his counsel made a mistake in advising him regarding the advisory guidelines. The court accepted defendant's entry of a guilty plea as knowing and voluntary. (Id. at 20-21.)

The sentencing process was extensive and extended for over three years. The parties vigorously disputed numerous sentencing issues, most notably the relevant conduct and amount of loss the government sought to attribute to McCloskey.¹ The court held an evidentiary hearing on March 19 and 20, 2012, to determine the correct application of the sentencing guidelines in this case. After the hearing, McCloskey's relationship with DeRiso soured. In the following weeks, they exchanged a series of emails in which McCloskey criticized DeRiso's handling of the hearing.

DeRiso had the initial idea to move to withdraw the guilty plea. In an email dated April 14, 2012, DeRiso stated: "Before you wrote this email to me, I had been doing research on the withdrawal of your plea. I was about to contact you to discuss your options and what the evidence means. I also contacted former AUSA James Love to get a 2^nd opinion and I was going to have us meet." (Defendant's Exh. 6.) Prior to that time, McCloskey was not aware that withdrawal of his guilty plea was possible. (ECF 160 at 16-17.) McCloskey believed that the withdrawal of his guilty plea would be based on alleged prosecutorial misconduct in relying on known false witnesses to tie him to the amount of loss of other brokers. (ECF No. 160 at 21.)

DeRiso was unfamiliar with motions to withdraw guilty pleas in federal court and therefore hired Love to help him draft it. (ECF No. 161 at 92-93). Love had no prior involvement in the case. Id. at 106. Although the guilty plea was entered almost two years earlier, DeRiso twice told McCloskey that the withdrawal of his guilty plea was time sensitive. (Defendant's Exhs. 7, 9.)

On May 2, 2012, McCloskey met with DeRiso and Love to discuss withdrawal of his guilty plea. DeRiso was not present for the entire meeting. (ECF 160 at 25.) DeRiso testified that he did not have a clear recollection of what was said at the meeting. (ECF No. 161 at 97-98.) McCloskey testified that Love advised him that the motion was a "slam dunk" and "no brainer." (ECF No. 160 at 27). McCloskey testified that neither DeRiso nor Love discussed any potential downsides to filing the motion. Id. DeRiso admitted that he did not advise McCloskey about the obstruction of justice enhancement until after the government asserted it. (ECF No. 161 at 20, 110.)² There is no evidence in the record that DeRiso advised McCloskey that by signing and filing the affidavit he was subject to possible perjury charges or that filing the motion was contrary to DeRiso's legal advice. (ECF No. 161 at 111.)

Love drafted the original motion and affidavit and sent them to DeRiso. (ECF No. 161 at 20, 100.) McCloskey reviewed the motion and made several stylistic revisions. (Defendant's Exh. 14.) McCloskey also wanted to include his reasons for pleading guilty in the motion. Id. DeRiso disagreed with adding these reasons and refused to do so. Id.; (ECF No. 160 at 32.) McCloskey asked to talk to Love, but DeRiso did not make him available. (ECF No. 160 at 32-33; ECF No. 161 at 106.)

Love drafted the affidavit without communications from DeRiso. (ECF 161 at 100-101.) In the affidavit, McCloskey made the following sworn representations to the court: "I have read the entirely [sic] of this motion and assert that each factual matter stated therein is true and correct to the best of my knowledge, information and belief," and "I assert that I am innocent of the offense charged in the Indictment." (ECF No. 83-1 ¶¶ 2, 5.) McCloskey acknowledged thathis affidavit was made subject to the criminal penalties for perjury. Id. McCloskey signed the affidavit without making any changes to it. (ECF No. 160 at 35.)

When McCloskey went to DeRiso's office to sign the affidavit, DeRiso was not there. DeRiso's assistant, Renee, witnessed McCloskey's signature on the affidavit. (ECF No. 160 at 36-37.) The affidavit is dated May 21, 2012. There is a signature line for a witness, which contains DeRiso's signature above his typed name. (ECF No. 83-1.) On May 22, 2012, DeRiso filed the motion to withdraw the guilty plea and attached the affidavit. (ECF No. 83.) The motion was signed by DeRiso.

On June 5, 2012, the government opposed the motion to withdraw the guilty plea, and noted that it "now objects to any reduction based on acceptance of responsibility and intends to assert that the two-level obstruction of justice enhancement applies." (ECF No. 84 at 10 n.7.) DeRiso admitted that he was surprised by the government's argument regarding obstruction of justice and that he had not advised McCloskey about that possibility. (ECF No. 161 at 110.) The hearing on the motion to withdraw the guilty plea was postponed several times.

In August 2012, DeRiso filed a motion to withdraw as counsel and McCloskey filed a parallel motion to remove DeRiso as his attorney. (ECF Nos. 95, 96.) On September 4, 2012, the court held a hearing on the motions to remove DeRiso as counsel. (Transcript, ECF No. 144.) DeRiso informed the court that the impasse with McCloskey arose over how to handle the motion to withdraw his guilty plea. (Id. at 5.) Upon questioning from the court, DeRiso explained that the dispute was not over whether the motion should have been filed; he was competent to handle it and had no problem doing so; and the allegation was "in good faith and founded." Id. The dispute instead involved strategy - who should be called as witnesses, what evidence should be produced, and how the hearing should proceed. Id. at 5-6. DeRiso nevertold the court that he filed the motion to withdraw the guilty plea at McCloskey's direction even though it was contrary to his legal advice.³

Because McCloskey's accusations of ineffective assistance of counsel created a conflict of interest, the court granted the motions and terminated DeRiso's representation. On September 14, 2012, James Robinson ("Robinson") was appointed as McCloskey's attorney. On January 2, 2013, the court held a hearing on the motion to withdraw the guilty plea. When Robinson called DeRiso to testify as a witness, the government sought to clarify the record regarding McCloskey's waiver of the attorney-client privilege and the government's intent to pursue perjury charges. (ECF No. 150-8 at 7-16.) Robinson requested time to discuss these potential consequences with McCloskey, stating: "This is totally new to me." Id. at 16. After conferring with Robinson, McCloskey abandoned the motion to withdraw his guilty plea. Id. at 17.

On June 6, 2013, attorney Martin Dietz ("Dietz") was appointed as McCloskey's counsel and Robinson withdrew his appearance. On November 26, 2013, the court found that the statements McCloskey made in the affidavit in support of his motion to withdraw his guilty plea directly contradicted his knowing and voluntary admission in open court, under oath, that he committed the offense charged in the indictment. (ECF...