    08-3655-cr; 08-3657-cr
    United States v. Polanco



                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
RULINGS BY SUM M ARY O RDER DO N O T HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY
O RDER FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE O F
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER
IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the
    City of New York, on the 24 th day of February, two thousand ten.

    PRESENT:
               AMALYA L. KEARSE,
               PETER W. HALL,
                          Circuit Judges,
               JED S. RAKOFF,
                          District Judge.*
    __________________________________________

    United States of America,

                                Appellee,

                       v.                                      Docket Nos. 08-3655-cr(L);
                                                                           08-3657-cr(Con)

    Giglifi Polanco, Jose Miguel Minaya, Lenny Santos, Giovana Taveras,

                                Defendants,

    Cesar Polanco,
                     Defendant-Appellant.
    __________________________________________

             *
              The Honorable Jed S. Rakoff, of the United States District Court for the Southern
    District of New York, sitting by designation.

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FOR APPELLANT:              M ICHAEL K. B ACHRACH (Chad Edgar, on the brief); New York,
     N.Y.

FOR APPELLEE:        W ILLIAM J. H ARRINGTON, of counsel to Preet Bharara, United States
                     Attorney for the Southern District of New York (Anjan Sahni, Daniel
                     A. Braun, on the brief), New York, N.Y.


       Appeal from a judgment of the United States District Court for the Southern District

of New York (Pauley, J.).

       UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be AFFIRMED.

       Defendant-Appellant Cesar Polanco appeals from the district court’s July 14, 2008

consolidated Judgment of Conviction entered following his pleas of guilty in two separate

prosecutions for wire fraud—one involving stolen cars, the other involving the fraudulent

use of debit cards—sentencing him to a 120-month prison term and to a 60-month prison

term to be served concurrently. We assume the parties’ familiarity with the facts, procedural

history, and specification of issues on appeal.

       1.     Withdrawal of Guilty Plea

       The defendant-appellant’s first argument is that the district court (Pauley, J.) erred by

not allowing him to withdraw his guilty plea to the wire fraud/stolen car conspiracy. The

plea proceeding in this case was conducted solely by Judge Pauley. We review the district

court’s denial of a motion to withdraw a guilty plea under an abuse of discretion standard.

United States v. Carreto, 583 F.3d 152, 157 (2d Cir. 2009). A defendant must “show a fair

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and just reason for requesting the withdrawal” of his guilty plea, id. at 157 (quoting Fed. R.

Crim. P. 11(d)(2)(B)), as withdrawing a guilty plea is not an “absolute right,” United States

v. Williams, 23 F.3d 629, 634 (2d Cir. 1994). The appellant bases this part of his appeal on

a claim of an ineffective assistance of counsel due to his counsel’s alleged pressuring of him

to plead guilty, thus nullifying the requirement that a plea be knowing and voluntary. See

Fed. R. Crim. P. 11(b)(2).

       A party arguing ineffective assistance of counsel faces a heavy burden under

Strickland v. Washington, 466 U.S. 668, 687 (1984). The appellant must show “that

counsel's performance was so unreasonable . . . that ‘counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth Amendment,’ and [] that counsel's

ineffectiveness prejudiced the defendant such that ‘there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been different.’”

United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004) (quoting Strickland, 466 U.S. at

687, 694) (internal citation omitted). In its ruling from the bench, the district court

determined that Polanco failed to offer any objective evidence that would undermine his

clearly articulated voluntary plea before the same court.

       The district court did not abuse its discretion in denying Polanco’s motion. Although

appellant argues for a limited remand to develop the record on this issue, he fails to offer

any type of objective evidence that a remand might uncover of his deteriorated relationship

with his attorney. At his plea hearing the appellant was under oath and attested that his plea

was knowing and voluntary, that he had spoken with his attorney about his case and the

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consequences of entering a plea, that he was satisfied with his attorney’s performance, and

that no one had threatened him or forced him to enter his plea of guilty. The district court

determined nothing was amiss about his demeanor at the time. Polanco has offered nothing

other than his own contradictory statements to support his argument, and those are not

enough. United States v. Doe, 537 F.3d 204, 211 (2d Cir. 2008) (“A defendant’s bald

statements that simply contradict what he said at his plea allocution are not sufficient

grounds to withdraw the guilty plea.” (internal quotation marks omitted)). We therefore

affirm the district court’s denial of Polanco’s motion to withdraw his guilty plea.

       2.     Rule 11 Claim

       Polanco next argues that the district court (Owen, J.) during the April 2007 plea

hearing violated Rule 11 in not adequately explaining the nature of the conspiracy to commit

wire fraud charged in the debit card conspiracy. Judge Owen conducted the initial plea

proceeding in connection with this case, but the case was transferred to Judge Pauley prior

to sentencing. We review the appellant’s Rule 11 claim for plain error because the argument

was not made below. A plain error is one that is both plain and affects substantial rights.

United States v. Garcia, 587 F.3d 509, 515 (2d Cir. 2009). “In the context of a Rule 11

violation, to show plain error, a defendant must establish that the violation affected

substantial rights and that there is a reasonable probability that, but for the error, he would

not have entered the plea.” Id. (internal quotation marks omitted). Rule 11(b)(1)(G)

requires the district court, in accepting a guilty plea, to ensure that the defendant understand

“the nature of each charge to which the defendant is pleading.” Fed. R. Crim. P.

                                              4
11(b)(1)(G). To demonstrate plain error Polanco argues that the transcript of the plea

hearing shows a lack of an explanation of the elements of wire fraud by either the judge or

the government.

       In United States v. Blackwell, 199 F.3d 623, 626 (2d Cir. 1999), we stated that a court

need not follow a particular formula in ensuring the defendant understands the charges

against him. The court can describe “the elements of the offense in [its] own words” or read

the indictment aloud with the elements included. Id. Or, “if defendant's recitation of his

own conduct insufficiently supports the relevant charge, then Rule 11(c)(1) nonetheless is

satisfied where the charging instrument plainly describes the offense and defendant

acknowledges that he read, understood, and discussed with his attorney that legal

document.” Id. (internal quotation marks omitted).**

       In the transcript of appellant’s April 2007 plea hearing, there is sufficient evidence

that the court adequately explained the nature of the charge in satisfaction of its obligations

under Rule 11. After the appellant waived the reading of the indictment, the district court

identified the charge of one count of conspiracy to commit wire fraud, and then further

questioned Polanco to ascertain that his plea was voluntary. In an exchange between

Polanco and the district court, all of the elements of the indictment, including the

conspiracy, were described in plain language by both the court and the appellant. To the


       **
          In 2002, Rule 11 was reorganized and what was Rule 11(c) for the Blackwell decision
is now encompassed in the current Rule 11(b). See Fed. R. Crim. P. 11 Advisory Committee
Note (2002); Report of the Advisory Committee on Criminal Rules, at 40-41(May 10, 2001).


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extent there may have been error, it is doubtful that it was plain; but it was, in any event,

harmless, see Fed. R. Crim. P. 11(h) (“A variance from the requirement of this rule is

harmless error if it does not affect substantial rights.”); Fed. R. Crim. P. 52(a) (“Any error,

defect, irregularity, or variance that does not affect substantial rights must be disregarded.”).

       We have considered all of Polanco’s contentions on this appeal and have found them

to be without merit. The judgment of the district court is AFFIRMED.




                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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