18

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United States v. Terry

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY

ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE

F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ). 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 19 th day of March, two thousand nineteen.

PRESENT: RICHARD C. WESLEY,

DENNY CHIN,

RICHARD J. SULLIVAN,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

v. 18

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GERARD TERRY,

Defendant

‐ Appellant.

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FOR APPELLEE: ARTIE McCONNELL, Assistant United

States Attorney (Susan Corkery,

Assistant United States Attorney, on the2 brief ), for Richard P. Donoghue, United

States Attorney for the Eastern District

of New York, Brooklyn, New York.

FOR DEFENDANT

‐ APPELLANT: DANIEL M. PEREZ, Law Offices of

Daniel M. Perez, Newton, New Jersey.

Appeal from the United States District Court for the Eastern District of

New York (Seybert, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant

‐ appellant Gerard Terry appeals from a judgment of conviction,

entered June 1, 2018, convicting him, following a guilty plea, of one count of tax

evasion. On May 29, 2018, Terry was sentenced principally to 36 months ʹ

imprisonment. Terry contends that his plea did not comply with the requirements of

Federal Rule of Criminal Procedure 11 because the district court failed to inform him of

the nature of the crime to which he was pleading guilty. He asks that we set aside his

plea and remand to the district court for further proceedings. We assume the parties ʹ

familiarity with the underlying facts, procedural history, and issues on appeal.

Due process requires that a district court accept a guilty plea only where

there is ʺ an affirmative showing that it was intelligent and voluntary. ʺ Boykin v.

Alabama

, 395 U.S. 238, 242 (1969). ʺ Rule 11 sets forth requirements for a plea allocution

and is designed to ensure that a defendant ʹ s plea of guilty is a voluntary and intelligent

choice among the alternative courses of action open to the defendant. ʺ United States v.3 Andrades

, 169 F.3d 131, 133 (2d Cir. 1999) (internal quotation marks omitted). Rule

11(b)(1) provides that before the court accepts a guilty plea, ʺ the court must inform the

defendant of, and determine that the defendant understands, ʺ among other things, ʺ the

nature of each charge to which the defendant is pleading. ʺ Fed. R. Crim. P. 11(b)(1)(G);

see also United States v. Lloyd

, 901 F.3d 111, 119

‐ 20 (2d Cir. 2018). In doing so, however,

the court is ʺ not required to follow any particular formula, ʺ Lloyd

, 901 F.3d at 120,

because Rule 11 does ʺ not

. . . tell [the district court] precisely how ʺ to ʺ inform ʺ and

ʺ determine ʺ the requisite information, United States v. Maher

, 108 F.3d 1513, 1520

‐ 21 (2d

Cir. 1997).

Because Terry raised no Rule 11 objection below, we review his plea for

plain error. United States v. Vonn

, 535 U.S. 55, 59 (2002). To successfully challenge a

guilty plea conviction based on a Rule 11 violation, a defendant ʺ must establish that the

violation constituted a constitutional or jurisdictional error, or establish that the error

resulted in a complete miscarriage of justice, or in a proceeding inconsistent with the

rudimentary demands of fair procedure. ʺ Zhang v. United States

, 506 F.3d 162, 168 (2d

Cir. 2007) (internal quotation marks omitted). We evaluate whether a plea complied

with Rule 11 by looking to the ʺ totality of the relevant circumstances ʺ under which the

plea is taken. Hanson v. Phillips

, 442 F.3d 789, 798 (2d Cir. 2006).

The elements of tax evasion are ʺ (1) willfulness; (2) the existence of a tax

deficiency; and (3) an affirmative act constituting the evasion or attempted evasion of4 the tax. ʺ United States v. Klausner

, 80 F.3d 55, 61 (2d Cir. 1996) (quoting United States v.

DiPetto

, 936 F.2d 96, 97 (2d Cir. 1991)). Count Two of the indictment charged Terry with

nine affirmative acts, including (1) cashing over $500,000 worth of checks that

represented income to avoid levy collection by the IRS and (2) creating and utilizing a

checking account in the name of a corporate nominee to conceal such income and avoid

levy by the IRS.

Terry ʹ s plea complied with the requirements of Rule 11. After

determining that Terry

‐‐ a lawyer

‐‐ was ʺ perfectly capable ʺ of entering a plea, App ʹ x at

15

‐ 16, and that he understood the rights he was waiving by pleading guilty, id. at 18

‐ 20,

the district court asked Terry to describe ʺ what [he] did with respect to

. . . tax evasion, ʺ

id. at 20. Although Terry admitted to seven of the nine overt acts listed in the

indictment

‐‐ any one of which was sufficient to satisfy the elements of tax evasion

‐‐ the

Court engaged in a lengthy colloquy with Terry and his counsel over two of the alleged

acts. Specifically, Terry stated that he could not admit to cashing checks ʺ to avoid levy

collection by the IRS, ʺ id. at 32, and Terry ʹ s counsel informed the court that Terry used a

corporate nominee but could not admit that the purpose was to avoid levy by the IRS,

id. at 33. Nevertheless, Terry subsequently confirmed to the court that he willfully

committed these acts, that they were not by mistake, and that the purpose of the acts

ʺ was to avoid the payment of taxes, ʺ id. at 34. Thus, Terry ʹ s plea demonstrates that he

pled to each element of the crime charged: he stated that he (1) knowingly, willfully,5 and deliberately, id. at 21, 23, 34, (2) in the face of a significant tax deficiency that

spanned over a decade, id. at 20

‐ 21, (3) committed a number of affirmative acts for the

purpose of ʺ avoid[ing] the payment of taxes, ʺ id. at 34.

While the district court did not explicitly explain the elements of tax

evasion, all three elements were discussed in detail, and the record certainly does not

indicate that a miscarriage of justice has occurred. See Zhang

, 506 F.3d at 168. Any error

on the part of the district court was therefore harmless. See Fed. R. Crim. P. 11(h).

Furthermore, Terry fails to articulate how his purported failure to understand the

nature of tax evasion contributed to his decision to plead guilty. He thus fails to ʺ show

a reasonable probability that, but for the error, he would not have entered the plea. ʺ

United States v. Dominguez Benitez

, 542 U.S. 74, 76 (2004). He therefore cannot

demonstrate plain error. We note that the plea colloquy in this case was not a model of

clarity. District courts can avoid error, or the appearance of error, by using ʺ a standard

script for accepting guilty pleas, which covers all of the required information. ʺ United

States v. Pattee

, 820 F.3d 496, 503 & n.3 (2d Cir. 2016).

We have considered Terry ʹ s remaining arguments and find them to be

without merit. For the reasons set forth above, we AFFIRM the district court ʹ s

judgment.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk of Court