08-2378-cr
USA v. Stone (Tonks)

                           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 COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED W ITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUMMARY ORDER”). 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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 20th day
of April, two thousand ten.

Present:
         GUIDO CALABRESI,
         CHESTER J. STRAUB,
         ROBERT A. KATZMANN,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                  v.                                            No. 08-2378-cr

DYANE CATALANO, also known as BARBARA EDEN, STACEY DEFILIPPIS, also known
as KATHY SULLIVAN, also known as LISA, AMELIA YOUNT,

           Defendants,

GEORGE BING TONKS, also known as ALEX MICHAEL HAUSNER, also known as DAVID
LUIZ SILVA, also known as MIKE KAPLAN, also known as IAN STONE, also known as
MICHAEL WARNER,

           Defendant-Appellant.

________________________________________________
For Defendant-Appellant:                    ROBIN C. SMITH , Brooklyn, NY

For Appellee:                               SHANE T. STANSBURY , Assistant United States Attorney
                                            (Andrew L. Fish, of counsel), for Preet Bharara, United
                                            States Attorney for the Southern District of New York,
                                            New York, NY


       Appeal from the United States District Court for the Southern District of New York
(Crotty, J.).

          ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

          Defendant-appellant George Bing Tonks was charged on September 11, 2006, with

conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 and the substantive offense of

wire fraud in violation of 18 U.S.C. § 1343. Tonks pleaded guilty to both counts on November

27, 2007, and on May 6, 2008, was sentenced principally to 115 months’ imprisonment. On

appeal, Tonks argues that: (1) the district court erred in failing to order an evidentiary hearing

with respect to his allegations of outrageous government conduct; (2) the district court erred in

failing to order a competency hearing; and (3) he received ineffective assistance of counsel. We

assume the parties’ familiarity with the facts, procedural history, and specification of issues on

appeal.

          As an initial matter, Tonks’s unconditional guilty plea precludes his claim of outrageous

government conduct because “[a] defendant who pleads guilty unconditionally admits all

elements of the formal charge and, in the absence of court-approved reservation of issues for

appeal, waives all challenges to prosecution except those going to the court’s jurisdiction.”

United States v. Lasaga, 328 F.3d 61, 63 (2d Cir. 2003).

          As to Tonks’s second claim, it is well established that a district court must conduct a

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competency hearing where “the defendant may . . . be suffering from a mental disease or defect

rendering him mentally incompetent to the extent that he is unable to understand the nature and

consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. §

4241(a); see also United States v. Quintieri, 306 F.3d 1217, 1232 (2d Cir. 2002). However,

because the district judge is in the best position to determine a defendant’s level of competence,

the question of whether to hold a competency hearing rests within the discretion of the district

court. See United States v. Nichols, 56 F.3d 403, 414 (2d Cir. 1995).

       We conclude that the district court did not abuse its discretion by determining that Tonks

was competent to plead guilty and be sentenced. There was no shortage of opportunities for the

district judge to observe Tonks and arrive at an informed assessment that Tonks was competent

to plead and be sentenced. Perhaps more revealingly, at no point in the underlying proceedings

did defense counsel indicate any concern about Tonks’s competency. Indeed, this conspicuous

silence firmly buttresses our determination that the district court did not err in concluding that

Tonks was competent and, accordingly, that no competency hearing was necessary. See United

States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (“A failure by trial counsel to indicate that the

defendant had any difficulty in assisting in preparation or in comprehending the nature of the

proceedings provides substantial evidence of the defendant’s competence.”) (internal quotation

marks omitted)).

       Finally, we are “disinclined to resolve ineffective assistance claims on direct review.”

United States v. Gaskin, 364 F.3d 438, 467 (2d Cir. 2004); see also Massaro v. United States,

538 U.S. 500, 504-505 (2003) (stating that “in most cases a motion brought under [28 U.S.C.] §

2255 is preferable to direct appeal for deciding claims of ineffective assistance” because the


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district court is “best suited to developing the facts necessary to determining the adequacy of

representation”). In the absence of further development of the record as to why defense

counsel’s representation was constitutionally defective, we decline to resolve Tonks’s ineffective

assistance claim at this juncture. Accordingly, we dismiss Tonks’s ineffective assistance of

counsel claims without prejudice to their being raised subsequently in a § 2255 motion.

       As we have considered the defendant’s remaining arguments and find them to be without

merit, we hereby AFFIRM the district court’s judgment.

                                                 FOR THE COURT:
                                                 CATHERINE O’HAGAN WOLFE, CLERK




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