Ex-Senator's Criticism of Counsel in Effort to Upset Plea Rebuffed

Ex-Senator's Criticism of Counsel in Effort to Upset Plea Rebuffed
The New York Law Journal by Joel Stashenko  -  July 25, 2011

The U.S. Court of Appeals for the Second Circuit upheld the conviction of Efraim Gonzalez Jr. for using public money for personal purposes, rejecting Mr. Gonzalez's contention that he was not properly apprised by Bronx defense attorney Murray Richman of the ramifications of the guilty plea he entered in 2009.  An appellate court has rebuffed a former state senator's complaint that he was not allowed to withdraw a guilty plea to corruption charges he allegedly made under pressure from a well-known defense attorney who was "incapable, unwilling and unprepared" for trial.  The U.S. Court of Appeals for the Second Circuit upheld the conviction of Efraim Gonzalez Jr. for using public money for personal purposes, although the panel asked a district court judge to re-examine his calculation of $122,775 for restitution in the case.  The Second Circuit panel rejected Mr. Gonzalez's contention that he was not properly apprised by Bronx defense attorney Murray Richman of the ramifications of the guilty plea he entered in 2009.  Moreover, the unanimous panel concluded in United States v. Gonzalez, 10-2202-cr, that Southern District Judge William H. Pauley III had not attempted to pressure Mr. Gonzalez into pleading guilty because he was in a hurry to conclude the case. Nor had he erred in refusing to let Mr. Gonzalez withdraw his plea, the court said.  "Now, Mr. Gonzalez, your attorney has informed me that you wish to enter a plea of guilty," the record quoted Judge Pauley asking as the legislator entered his plea. "Do you wish to enter a plea of guilty?"  "Yes, your honor," the ruling quoted Mr. Gonzalez as responding.  "Have you had a full opportunity to discuss your case with your attorney and to discuss the consequences of entering a plea of guilty?" Judge Pauley pressed.  "Yes, your honor."  "Are you satisfied with your attorney, Mr. Richman, and his representation of you in connection with this matter?"  "Yes, your honor."  The circuit said that Mr. Richman had "in no way indicated that he was not prepared to go to trial." Nor could the attorney be faulted for his pessimistic assessment of Mr. Gonazalez's chances at trial. Indeed, the circuit said that he was obligated to share that pessimistic assessment with his client.  A transcript of Mr. Richman's remarks at a hearing before the plea "makes clear that the conflict between Gonzalez and Richman centered simply on Gonzalez's view that he was innocent and Richman's view that he would be proven guilty, and that Richman would refuse to proceed in a manner that was unethical," Judge Amalya Kearse wrote for a panel that also included Judges Roger J. Miner and Denny Chin.  The panel said Mr. Gonzalez's criticisms of Mr. Richman were not supported by the record. It noted that Judge Pauley had described Mr. Richman as a "highly experienced and well qualified lawyer."  Mr. Richman said in an interview on Friday it is "difficult to understand" how Mr. Gonzalez could argue that he did not understand the guilty plea he entered.  "He was totally cognizant," Mr. Richman said. "We went over it several times. You don't take a plea lightly, especially with a public figure."  Mr. Richman said he still considers Mr. Gonzalez his friend.  "But I have maintained that we often do the impossible for the ungrateful," Mr. Richman said in an interview.  Mr. Gonzalez, a former Democratic state senator from the Bronx from 1990-2008, pleaded guilty to mail fraud, conspiracy to commit mail fraud, wire fraud and other charges in connection with what federal prosecutors said was a scheme to use public grants and gift money to fund the senator's private spending.  The scheme used organizations like the West Bronx Neighborhood Association, the United Latin American Foundation and Pathways for Youth Inc. to attract public and private funding. Some of their funding went into Mr. Gonzalez's accounts, according to prosecutors, including more than $400,000 from Pathways alone.  The court said the money was used for personal bills for the Gonzalez family, including a membership in a vacation club in the Dominican Republic, the rental of a luxury apartment in the Dominican Republic, his rental of a summer residence in upstate New York, college tuition for his daughter and his purchase of personal items, including "premium" New York Yankees' tickets.  Similarly, some money committed to the other groups also ended up in the Gonzalez's possession, the court said.  Mr. Gonzalez was sentenced to 84 months in prison, less than the guidelines range of 108 to 135 months, and two years of post-release supervision. He also was ordered to pay $122,775 in restitution to contributors to the West Bronx organization. The circuit affirmed the prison sentence but questioned whether the government's claims of contributions were accurate.  "Gonzalez has argued that an order granting persons on the West Bronx donor lists restitution in the full amount of the checks they sent in [in] connection with a gala birthday party may well grant them restitution in excess of their losses," Judge Kearse said.  She noted that "it may well be that some of the listed donors made contributions and received nothing in return." Valid questions have been raised about the "accuracy and ...qualifications of the donors' losses," the court held.  Southern District Assistant U.S. Attorney Michael A. Levy argued for the prosecution.  Lance Croffort-Suede and Patrick C. Askby of Linklaters represented Mr. Gonzalez.  Joel Stashenko can be reached at jstashenko@alm.com.