16-4212-cr
United States v. Persaud

                     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 WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH 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 Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 20th day of March, two thousand eighteen.

    PRESENT: DENNIS JACOBS,
             RICHARD C. WESLEY,
             EDWARD R. KORMAN,*
                             Circuit Judges.

    - - - - - - - - - - - - - - - - - - - -X
    United States of America,
             Appellee,

                 -v.-                                               16-4212

    Taramatie Persaud,
             Defendant-Appellant.
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    FOR APPELLANT:                        Bradley L. Henry, Henry Law Firm
                                          PLLC, New York, NY.

    FOR APPELLEE:                         Jane Kim, Assistant United
                                          States Attorney on behalf of

           *
         Edward R. Korman, United States District Court for the
    Eastern District of New York, sitting by designation.
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                           Geoffrey S. Berman, United
                           States Attorney for the Southern
                           District of New York (Anna M.
                           Skotko, United States Attorney,
                           on the brief), New York, NY.

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

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Taramatie Persaud appeals from the judgment of the
United States District Court for the Southern District of
New York (Wood, J.), sentencing her to 21 months in prison
after she pled guilty to wire fraud. We assume the parties’
familiarity with the underlying facts, the procedural
history, and the issues presented for review.

     Persaud was arrested in 2015 for embezzling rent
payments intended for her employer, a property management
company, and wiring the proceeds of the scheme to Guyana.
The Indictment charged one count of forging postal money
orders and one count of wire fraud. In December 2015, she
pled guilty to the wire fraud count before a magistrate
judge, and was sentenced by the district judge to pay
restitution and serve 21 months in prison.

     Persaud contends that her guilty plea was not voluntary
because the magistrate judge failed to adhere to the Rule 11
requirements for plea colloquies. See Fed. R. Crim. P.
11(b). Persaud did not raise the issue of a Rule 11
violation at the time of the plea, so we review for plain
error. United States v. Youngs, 687 F.3d 56, 59 (2d Cir.
2012) (citing United States v. Vonn, 535 U.S. 55, 62-63
(2002)). “Plain error review requires a defendant to
demonstrate that (1) there was error, (2) the error was
plain, (3) the error prejudicially affected his substantial
rights, and (4) the error seriously affected the fairness,
integrity or public reputation of judicial proceedings.”
Id. (internal quotations omitted).

     “[A] guilty plea violates due process and is therefore
invalid if not entered voluntarily and intelligently.”
Wilson v. McGinnis, 413 F.3d 196, 199 (2d Cir. 2005)(citing
Brady v. United States, 397 U.S. 742, 748 (1970) and Boykin

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v. Alabama, 395 U.S. 238, 242-43 (1969)). Rule 11 is
“designed to assist the district judge in making the
constitutionally required determination that a defendant’s
guilty plea is truly voluntary.” United States v. Maher,
108 F.3d 1513, 1520 (2d Cir. 1997). It requires the
district court to “advise the defendant of the right to
plead not guilty, the rights waived by pleading guilty, and
other specific consequences of pleading guilty, such as the
maximum penalties he faces.” Youngs, 687 F.3d at 59; see
Fed. R. Crim. P. 11(b).

     Persaud points to no specific omission under Rule 11,
but instead argues that the magistrate judge erred by asking
her how she would plead before he finished advising her of
her rights. She claimed this order of recitation violated
standard federal practice in this circuit, citing examples
of plea colloquies in other cases in the Southern District
in which the judge asked whether the defendant “still”
wished to plead guilty after being advised of a defendant’s
rights. Appellant’s Br. at 8-9.

     Whether or not the magistrate judge should have
proceeded in a different order, Persaud’s claim fails for
lack of prejudice. Crucially, Persaud does not sustain her
burden to show that “but for the error, [she] would not have
entered the plea.” United States v. Vaval, 404 F.3d 144,
151 (2d Cir. 2005) (internal quotations omitted). Persaud
was specifically informed that the magistrate judge would
not approve the plea until he had “determine[d] that [she]
underst[ood] the plea and its consequences, that the plea is
voluntary, and that there is a factual basis for the plea.”
J. App’x at 24. Persaud concedes that the magistrate judge
advised her of each of her Rule 11(b) rights. Appellant’s
Br. at 6. She answered questions lucidly under oath and
confirmed that she understood each of her rights as they
were read to her. After the government recited the elements
of her offense and the court instructed her that the
government “would have the burden of proving each and every
element of the offense beyond a reasonable doubt,” Persaud
re-confirmed that she committed the offense and described it
in detail. Only after this thorough inquiry did the court
enter the plea. Persaud did not protest that she wished to
change her mind, or think again, after receiving all of the
relevant and necessary information under Rule 11.

     “Where a defendant, before sentencing, learns of
information erroneously omitted in violation of Rule 11 but

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fails to attempt to withdraw his plea based on that
violation, there can be no” plain error. Vaval, 404 F.3d at
152. Persaud’s failure to attempt to withdraw her plea or
make a timely objection after she was advised of her rights
is fatal to her appeal.

     For the foregoing reasons, and finding no merit in
Persaud’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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