                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-10-2003

USA v. Lavanture
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4389




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 02-4389


                          UNITED STATES OF AMERICA

                                          v.

                          JEAN RUDOLPH LAVANTURE
                                    a.k.a.
                              RUDY LAVANTURE

                                                     Rudy Lavanture,
                                                           Appellant


                     Appeal from the United States District Court
                              for the District of New Jersey
                      (D.C. Criminal Action No. 97-cr-00428-1)
                    District Judge: Honorable Harold A. Ackerman


                     Submitted Under Third Circuit LAR 34.1(a)
                                  July 31, 2003

       Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges

                             (Filed September 10, 2003 )


                                      OPINION


AM BRO, Circuit Judge

      Jean Rudolph Lavanture pleaded guilty in 1998 to the federal offense of wire
fraud, and the District Court in 1999 sentenced him to five years probation. Three years

later, Lavanture pleaded guilty in state court to having committed real estate securities

fraud. After holding a hearing and finding Lavanture’s state court conviction violated a

condition of his probation, the federal District Court revoked his probation and

resentenced him to imprisonment. Lavanture appeals the District Court’s decision. We

affirm.1

                                              I.

         On February 18, 1998, Lavanture pleaded guilty to Count Three of an indictment

filed in the District of New Jersey that charged on or about March 24, 1997, he used an

unauthorized Visa credit card in violation of 18 U.S.C. §§ 1029(a)(2) and (b)(1). On

April 21, 1999, the District Court sentenced Lavanture to five years probation and a

$10,000 fine. As a condition of his probation, Lavanture was instructed: “[w]hile on

probation, you shall not commit another Federal, state, or local crime . . . .”

         On July 18, 2001, a grand jury in the County of New York indicted Lavanture on

23 counts of real estate securities fraud, committed “on or about and between November

18, 1997 and April 6, 2001.” Lavanture pleaded guilty to two of these counts on April 9,

2002. The State moved to have Lavanture sentenced as a predicate felon, citing his prior

conviction for federal wire fraud. At Lavanture’s sentencing on June 5, 2002, the New

York Supreme Court denied the State’s motion, finding the state court indictment alleged


   1
       We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291.

                                              2
a scheme to defraud over a period of time and that some of the conduct occurred prior to

the federal conviction. The Supreme Court imposed concurrent sentences of one to three

years imprisonment on the first count and two to six years on the second.

       On August 9, 2001 – after Lavanture had been indicted by the state grand jury but

prior to his guilty plea and sentencing in state court – the United States Probation Office

petitioned the District Court for a warrant to arrest Lavanture for violating his federal

sentence. The District Court held a hearing on November 25, 2002, and found

Lavanture’s conviction in New York state court violated a condition of his probation.

Accordingly, the District Court revoked Lavanture’s probation and sentenced him to 24

months imprisonment, to run consecutively to his state court prison sentence.

                                              II.

       Lavanture challenges on three grounds the District Court’s decision to revoke his

probation. None of the arguments is persuasive, and we address each in turn.

                                              A.

       Title 18 U.S.C. § 3565(a) provides a District Court may revoke a sentence of

probation “[i]f the defendant violates a condition of probation at any time prior to the

expiration or termination of the term of probation . . . .” Lavanture argues that because

the criminal conduct giving rise to his guilty plea in state court occurred prior to the date

he was sentenced to probation in federal court, the District Court erred in revoking his

probation. The Government responds that the decision was appropriate because the



                                              3
District Court based the revocation on a state crime that continued for approximately two

years after Lavanture was sentenced to probation. We review a District Court’s order to

revoke a defendant’s probation for an abuse of discretion. Gov’t of the Virgin Islands v.

Martinez, 239 F.3d 293, 297 (3d Cir. 2001).

       Lavanture’s argument is based almost exclusively on the Sixth Circuit’s decision

in United States v. Twitty, 44 F.3d 410 (6th Cir. 1995). 2 In that case, the defendant


   2
     Indeed, this section of Lavanture’s brief is five pages, and more than half of the text
appears to have been cut and pasted directly from Twitty, with almost no alteration or
attribution. In so doing, Lavanture’s counsel ill-represents his client’s interests and for
several reasons we note our strong disfavor of the practice.

       First, it is certainly misleading and quite possibly plagiarism to quote at length a
judicial opinion (or, for that matter, any source) without clear attribution. For example, at
pages seven and eight of Lavanture’s brief his counsel has copied, nearly verbatim,
extended passages from Twitty – including string cites and the Court’s summation of the
cases’ holdings – but Twitty is not cited for the first time until page nine. And upon
introducing Twitty, the brief reproduces the Sixth Circuit’s language almost word-for-
word until page eleven, again without adequate citation.

        Second, by simply reprinting the Sixth Circuit’s work out of its original context,
certain statements in Lavanture’s brief are inaccurate. For example, it is common and
correct for the Sixth Circuit in its opinion to refer to “this Circuit,” or to describe Twitty’s
rights in the present tense; the same is not true for a brief filed in the Third Circuit eight
years after Twitty was decided. To cite another example, the Sixth Circuit’s statement –
“We fail to see how one can violate a condition of probation before it exists,” 44 F.3d at
413 – has been changed in Lavanture’s brief to: “One can violate a condition of probation
before it exists.” Appellant’s Br. at 10. Deleting the clause “we fail to see how,” without
modifying the auxiliary verb “can,” obviously changes the meaning of the sentence, an
error overlooked by Lavanture’s counsel. In fact, the entire paragraph in Twitty where
this sentence appears is included in Lavanture’s brief without any citation to Twitty and
without any changes save two instances where the Sixth Circuit stated “[w]e fail to see”
and “[a]s we have said.” Compare 44 F.3d at 413 (first full paragraph), with Appellant’s
Br. at 10 (second full paragraph).

                                               4
pleaded guilty to one count of wire fraud in federal court in October 1992. In December

1992, while awaiting sentencing, the defendant cashed checks while posing as her

deceased sister. The federal District Court sentenced her to probation in January 1993,

and in October 1993 she pleaded guilty in state court to check fraud. The District Court

revoked her probation in May 1994. However, the Sixth Circuit reversed. It noted that

many circuits “have held that the statutory language of 18 U.S.C. § 3565 and its

predecessor statutes authorize the revocation of probation for conduct occurring after

imposition of the probationary sentence but before commencement of probation.” Id. at

412 (citing, inter alia, United States v. Camarata, 828 F.2d 974 (3d Cir. 1987)). In those

circumstances, a defendant has fair notice, consistent with due process, of what conduct

may result in the revocation of probation. The same is not true, according to the Sixth

Circuit, “for conduct which occurs prior to the date on which the defendant was sentenced

to probation.” 3

       But Twitty is inapplicable here, where the District Court did not revoke

Lavanture’s probation for presentence conduct. He argues the New York Supreme

Court’s refusal to sentence him as a predicate felon demonstrates the criminal conduct on

which his state court conviction was based – according to the indictment, committed “on




   3
    Id. at 413. The Sixth Circuit noted its disagreement with United States v. James, 848
F.2d 160 (11th Cir. 1988), which it described as “[t]he only case holding that probation is
revocable for presentence conduct.” Twitty, 44 F.3d at 412. Because Lavanture’s
probation was not revoked for presentence conduct, we express no opinion on this issue.

                                             5
or about and between November 18, 1997 to April 6, 2001” – occurred prior to the date

he was sentenced to probation in federal District Court – April 21, 1999. This is correct,

but only partly so. While the state court did find Lavanture’s securities fraud scheme had

begun before the date of his wire fraud conviction in federal court, it also found his

criminal conduct was an ongoing enterprise that continued after his federal conviction.

More specifically, the state court found:

       With respect to count 1, it seems to me that the allegation in count 1 is that
       basically it was a scheme to defraud over a period of time. Some of that period
       is before the federal conviction, some of it is after the federal conviction, so it
       seems to me under the circumstances I can’t really make a finding that the
       crime was completed prior to his plea in this case because it really isn’t worded
       that way and that’s my ruling.

App. at 88 (emphasis added). Indeed, during his state court plea colloquy Lavanture

himself acknowledged that he continued to engage in criminal activity for almost two

years after he was sentenced to probation on April 21, 1999.4


   4

              THE COURT: Under this first count here, the AG might want to ask
       you some questions, but I want to make sure that you operated a business, you,
       yourself, also known as Jean Lavanture and Intrust Investment Realty
       Company, LLC, also known as Intrust Realty, these were your companies, and
       from on or about November 18, 1997 through April 6th of the year 2001, in
       the County of New York, you intentionally engaged in a scheme constituting
       a systematic ongoing course of conduct with intent to defraud ten or more
       persons and to take property from ten or more persons, basically money, by
       false and fraudulent representations, and that in making these false and
       fraudulent representations you did actually obtain money from one or more
       people while engaged in inducing and promoting the issuance, distribution,
       exchange, sale, negotiation and purchase of securities, specifically moneys
       paid in connection with the purchase of investments and realty from the U.S.

                                               6
       In sum, unlike in Twitty, where the criminal offense involved discrete events

(fraudulent check cashing) completed prior to sentencing, Lavanture’s multiyear real

estate fraud was an ongoing violation of a condition of his probation, committed “prior to

the expiration or termination of the term of probation.” 18 U.S.C. § 3565(a).

Accordingly, the District Court did not abuse its discretion in revoking Lavanture’s

probation.

                                             B.

       As instructed by 18 U.S.C. § 3565(a)(1), the District Court held a hearing to

consider whether Lavanture’s probation should be revoked. Lavanture argues the District

Court’s questioning of him at this hearing “disclosed bias against the defendant, requiring

reversal on grounds of excessive judicial intervention.” Appellant’s Br. at 12. We have

recognized, as have other circuits, that a “trial judge may elicit germane facts through

interrogation of witnesses on his own initiative,” but also cautioned the court “must not

‘abandon [its] proper role and assume that of an advocate.’” United States v. Wilensky,

757 F.2d 594, 597 (3d Cir. 1985) (internal citations omitted). Lavanture contends the

District Court’s questioning in this instance was “inappropriate and served no purpose,”



       Department of Housing and Urban Development, HUD.

              Is that true?

              THE DEFENDANT: Yes.

App. at 82 (emphases added).

                                             7
and “fell below established standards of fairness.” Appellant’s Br. at 16, 19.

       This claim is not well-founded. Lavanture raised no objection at the revocation

hearing, and thus we review the District Court’s questioning of him for plain error. See

United States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001) (en banc). Under the plain error

standard:

       before an appellate court can correct an error not raised at trial, there must be
       (1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three
       conditions are met, an appellate court may then exercise its discretion to notice
       a forfeited error, but only if (4) the error seriously affect[s] the fairness,
       integrity, or public reputation of judicial proceedings.

Id. (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)). Here there was not

even an error. First, as Wilenksy and related decisions emphasize, excessive questioning

of a witness may especially be prejudicial where the bench influences the jury toward a

conviction. See Wilensky, 757 F.2d at 598 (“In order to reverse on grounds of excessive

judicial intervention, the record must either ‘disclose actual bias on the part of the trial

judge (or) leave the reviewing court with an abiding impression that the judge’s remarks

and questioning of witnesses projected to the jury an appearance of advocacy or

partiality.’”) (emphasis added) (quoting United States v. Beaty, 722 F.2d 1090, 1093 (3d

Cir. 1983)). Lavanture’s probation revocation hearing did not involve a jury. While it

may be possible a District Court’s questioning in these circumstances could be so unfair

as to violate a probationer’s due process rights, we are mindful that “in non-jury

proceedings, questioning by the judge will rarely be prejudicial to the defendant.” United



                                                8
States v. Webb, 83 F.3d 913, 917 (7th Cir. 1996) (internal citation omitted).

       Moreover, the District Court’s inquiries in this case were entirely justified. Title

18 U.S.C. § 3565(a) mandates the sentencing judge first hold a hearing to determine

whether a probationer has violated the terms of his sentence and, if so, whether to

resentence him pursuant to the factors set forth in 18 U.S.C. § 3553(a), including “the

need for the sentence imposed to reflect the seriousness of the offense . . . .” Id. at §

3553(a)(2)(A). Having reviewed the record, we believe the District Court’s questions

were intended to satisfy this purpose and well within acceptable bounds. Judge

Ackerman asked Lavanture about the nature and extent of the actions that comprised his

state court offenses and whether he had paid fully the restitution and fines imposed for

both his state and federal offenses. This was not error, much less plain error that affected

Lavanture’s substantial rights.

                                              C.

       Lavanture’s final claim is that the representation provided by his former lawyer

constituted ineffective assistance of counsel. Lavanture argues that the former counsel’s

performance was deficient in failing to object to the District Court’s allegedly excessive

questioning at the probation revocation hearing. Lavanture also alleges that in October

2002 he paid the lawyer $3000 to represent him at the probation hearing, but the lawyer

ignored his case. When Lavanture stated he would retain new counsel and seek a refund,

his then-counsel threatened to justify the fee by fabricating his hours. Lavanture also



                                               9
claims he and his lawyer argued repeatedly over the lawyer’s recommendation to accept a

plea offered by the Government.

       An ineffective assistance of counsel claim requires Lavanture to demonstrate his

attorney’s representation was both professionally unreasonable and prejudicial to the

outcome of the proceeding. See United States v. Roberson, 194 F.3d 408, 418 (3d Cir.

1999) (citing Strickland v. Washington, 466 U.S. 668, 689, 694 (1984)). We typically

will not entertain an ineffective assistance of counsel claim raised for the first time on

direct appeal. United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998). “[T]he

proper avenue for pursuing such claims is through a collateral proceeding in which the

factual basis for the claim may be developed.” Id. (citation omitted). But there is a

“narrow exception” to this rule: “[w]here the record is sufficient to allow a determination

of ineffective assistance of counsel, an evidentiary hearing to develop the facts is not

needed.” Id. (citation omitted).

       We agree with the Government the record is sufficient to rule on Lavanture’s first

allegation, but not the second. As discussed in the preceding section, we are unpersuaded

by Lavanture’s argument the District Court’s questioning of him at the probation

revocation hearing was excessive. Thus, his attorney’s failure to object to this

questioning was neither unreasonable nor prejudicial. The record contains no

information, however, as to Lavanture’s claim that the attorney collected payment for

work he had not performed and that he pressured Lavanture to take a plea. These claims



                                              10
are more properly pursued in a collateral proceeding under 28 U.S.C. § 2255. See id.

                                        *****

      For the reasons stated, we shall affirm the judgment of the District Court.




TO THE CLERK:

      Please file the foregoing Opinion.




                                           By the Court,




                                             /s/ Thomas L. Ambro
                                           Circuit Judge




                                             11
