18‐1682‐cr United States v. Terry

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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 19th day of March, two thousand nineteen.

PRESENT: RICHARD C. WESLEY, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges.

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UNITED STATES OF AMERICA, Appellee,

v. 18‐1682‐cr

GERARD TERRY, Defendant‐Appellant.

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FOR APPELLEE: ARTIE McCONNELL, 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: DANIEL M. PEREZ, Law Offices of Daniel M. Perez, Newton, New Jersey.

Appeal from the United States District Court for the Eastern District of

New York (Seybert, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Gerard Terry appeals from a judgment of conviction,

entered June 1, 2018, convicting him, following a guilty plea, of one count of tax

evasion. On May 29, 2018, Terry was sentenced principally to 36 monthsʹ

imprisonment. Terry contends that his plea did not comply with the requirements of

Federal Rule of Criminal Procedure 11 because the district court failed to inform him of

the nature of the crime to which he was pleading guilty. He asks that we set aside his

plea and remand to the district court for further proceedings. We assume the partiesʹ

familiarity with the underlying facts, procedural history, and issues on appeal.

Due process requires that a district court accept a guilty plea only where

there is ʺan affirmative showing that it was intelligent and voluntary.ʺ Boykin v.

Alabama,

(1969). ʺRule 11 sets forth requirements for a plea allocution

and is designed to ensure that a defendantʹs plea of guilty is a voluntary and intelligent

choice among the alternative courses of action open to the defendant.ʺ United States v. 2

Andrades,

(2d Cir. 1999) (internal quotation marks omitted). Rule

11(b)(1) provides that before the court accepts a guilty plea, ʺthe court must inform the

defendant of, and determine that the defendant understands,ʺ among other things, ʺthe

nature of each charge to which the defendant is pleading.ʺ Fed. R. Crim. P. 11(b)(1)(G);

see also United States v. Lloyd,

, 119‐20 (2d Cir. 2018). In doing so, however,

the court is ʺnot required to follow any particular formula,ʺ Lloyd,

,

because Rule 11 does ʺnot . . . tell [the district court] precisely howʺ to ʺinformʺ and

ʺdetermineʺ the requisite information, United States v. Maher,

, 1520‐21 (2d

Cir. 1997).

Because Terry raised no Rule 11 objection below, we review his plea for

plain error. United States v. Vonn,

(2002). To successfully challenge a

guilty plea conviction based on a Rule 11 violation, a defendant ʺmust establish that the

violation constituted a constitutional or jurisdictional error, or establish that the error

resulted in a complete miscarriage of justice, or in a proceeding inconsistent with the

rudimentary demands of fair procedure.ʺ Zhang v. United States,

(2d

Cir. 2007) (internal quotation marks omitted). We evaluate whether a plea complied

with Rule 11 by looking to the ʺtotality of the relevant circumstancesʺ under which the

plea is taken. Hanson v. Phillips,

(2d Cir. 2006).

The elements of tax evasion are ʺ(1) willfulness; (2) the existence of a tax

deficiency; and (3) an affirmative act constituting the evasion or attempted evasion of

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the tax.ʺ United States v. Klausner,

(2d Cir. 1996) (quoting United States v.

DiPetto,

(2d Cir. 1991)). Count Two of the indictment charged Terry with

nine affirmative acts, including (1) cashing over $500,000 worth of checks that

represented income to avoid levy collection by the IRS and (2) creating and utilizing a

checking account in the name of a corporate nominee to conceal such income and avoid

levy by the IRS.

Terryʹs plea complied with the requirements of Rule 11. After

determining that Terry ‐‐ a lawyer ‐‐ was ʺperfectly capableʺ of entering a plea, Appʹx at

15‐16, and that he understood the rights he was waiving by pleading guilty,

at 18‐20,

the district court asked Terry to describe ʺwhat [he] did with respect to . . . tax evasion,ʺ

id. at 20. Although Terry admitted to seven of the nine overt acts listed in the

indictment ‐‐ any one of which was sufficient to satisfy the elements of tax evasion ‐‐ the

Court engaged in a lengthy colloquy with Terry and his counsel over two of the alleged

acts. Specifically, Terry stated that he could not admit to cashing checks ʺto avoid levy

collection by the IRS,ʺ id. at 32, and Terryʹs counsel informed the court that Terry used a

corporate nominee but could not admit that the purpose was to avoid levy by the IRS,

id. at 33. Nevertheless, Terry subsequently confirmed to the court that he willfully

committed these acts, that they were not by mistake, and that the purpose of the acts

ʺwas to avoid the payment of taxes,ʺ id. at 34. Thus, Terryʹs plea demonstrates that he

pled to each element of the crime charged: he stated that he (1) knowingly, willfully,

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and deliberately, id. at 21, 23, 34, (2) in the face of a significant tax deficiency that

spanned over a decade, id. at 20‐21, (3) committed a number of affirmative acts for the

purpose of ʺavoid[ing] the payment of taxes,ʺ id. at 34.

While the district court did not explicitly explain the elements of tax

evasion, all three elements were discussed in detail, and the record certainly does not

indicate that a miscarriage of justice has occurred. See Zhang,

. Any error

on the part of the district court was therefore harmless. See Fed. R. Crim. P. 11(h).

Furthermore, Terry fails to articulate how his purported failure to understand the

nature of tax evasion contributed to his decision to plead guilty. He thus fails to ʺshow

a reasonable probability that, but for the error, he would not have entered the plea.ʺ

United States v. Dominguez Benitez,

(2004). He therefore cannot

demonstrate plain error. We note that the plea colloquy in this case was not a model of

clarity. District courts can avoid error, or the appearance of error, by using ʺa standard

script for accepting guilty pleas, which covers all of the required information.ʺ United

States v. Pattee,

, 503 & n.3 (2d Cir. 2016).

We have considered Terryʹs remaining arguments and find them to be

without merit. For the reasons set forth above, we AFFIRM the district courtʹs

judgment.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court

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