CONCLUSION
For the reasons stated above, Piotr Misiolek, has failed to present a fair and just reason to

withdraw his plea of guilty, Accordingly, Defendant’s Motion to Withdraw Plea of Guilty is denied.

ome Much ay 200f QL arta
JOHN) W. DARRAH
itetl States District Court Judge

14


The Court:

The Defendant:
The Court:

The Defendant:
The Court:

The Defendant:
The Court:

The Defendant:
The Court:

The Defendant:
The Court:

The Defendant:
The Court:

The Defendant:

Following a review of the factual bases of Counts 1, 2 and 3, Defendant stated that he did not

disagree with the summary and, in fact, was guilty of Counts 1, 2 and 3. Sentencing of Defendant

was scheduled for August 4, 2004.

Mr. Misiolek, has anyone forced you in any
way to cause you to plead guilty?

No.

Has anyone threatened you to cause you to
plead guilty?

No.

Apart from this plea agreement, have there
been any promises made to you as to what the
sentence will be or any other promises that
have caused you to plead guilty?

No.

Is the decision to plead guilty entirely
voluntary on your part after discussing this
matter with [Defense Counsel], your lawyer?
Yes.

Have any promises been made to you by
[Defense Counsel] or anyone else in that
regard as to what the sentence will be other
than what we’ve discussed here?

No,

You realize, Mr. Misiolek, it must be your
decision and your decision alone to plead
guilty regardless of any advice you have been
given. Do you understand that?

Yes.

And you understand that it will be my final
decision what the punishment will be, what
the sentence will be under the statute and
guidelines, and you'll be bound by that
decision. Do you understand that?

Yes.



The reason a court engages in a Rule 11 colloquy is to establish that a plea is knowingly and
voluntarily made. See United States v, Standiford, 148 F.3d 864, 868 (7th Cir. 1998) (Standiford).
The record that is created at a Rule 11 hearing is accorded a “presumption of verity”. United States
y, Truss, 961 F.2d 685, 689 (7" Cir. 1992). A district court judge must be able to rely on the
defendant’s sworn testimony at the Rule 11 proceeding. See United States v. Gwiazdzinski, 141 F.3d
784, 788 (7" Cir. 1998). Accordingly, “a defendant who files a motion to withdraw his plea on
grounds that his plea was not knowing and voluntary, contrary to his assertions at the Rule 11
proceeding, faces a heavy burden of persuasion.” Standiford, 148 F.3d at 868-69.

During the plea, the Court engaged in an extensive Rule 11 colloquy to make certain that
Defendant’s guilty plea was knowing, intelligent, and voluntary. Defendant answered all of the
questions posed by the Court in a manner that indicated he clearly understood each question and the
significance of his answer. Defendant affirmed that he understood the charges against him, that he
was not forced to plead guilty by anyone and that he was not threatened by anyone to plead guilty;
that other than the terms and the conditions of the plea agreement, no other promises were made to
induce him to plead guilty; and that he understood the decision to plead guilty was his alone.

As to the possible sentencing, the Government clearly stated the possible sentences as to
each count in the presence of the Defendant, The Court repeated those possible sentences and
specifically asked Defendant if he understood those possible sentences, to which the Defendant
answered “Yes.” The Court further informed Defendant that he could not withdraw his plea if he
later disagreed with the sentence imposed by the Court, to which the Defendant stated he understood.
Thus, Defendant was informed of the possible sentences twice during the plea colloquy. The

possible sentences discussed during the plea colloquy did not include any reference of a possible

10



told him that if he signed the plea agreement, he would receive a seven-to-ten year sentence. Prior

to August 4, 2004, Defendant did not know he would be sentenced to twenty years’ incarceration.
Based on his discussions with his attorney, Defendant believed that if he signed the plea agreement,
he would be sentenced from seven to ten years’ incarceration. Defendant answered the Court’s
questions regarding his signing the plea agreement because that was “how the process” worked as
it was explained by his attomey. Defendant did not have any other experience with the judicial
system. If Defendant knew he was not going to receive a sentence of between seven and ten years’
incarceration, he would not have signed the plea agreement. Defendant fled the country after the
August 4 hearing because he then realized that he would receive a sentence of at least twenty years’
incarceration, and his attorney told him there was nothing that could be done at that time,

On cross-examination, Defendant admitted that in December 2003, he went to the Polish
consulate in Chicago, Illinois, and received a new passport in violation of the conditions of his bond,
which included home confinement and surrender of his passport. In applying for the new passport,
Defendant lied, stating that he lost his passport, Defendant testified that he needed the passport to
sell his home. Defendant also conceded that he lied in an affidavit regarding money that was seized
from him in an attempt to get the money back. Defendant also possessed a false driver’s license and
credit cards in the name of Piotr Uciolek.

Defendant’s previous counsel also testified at the hearing as follows: He has been a member
of the bar since November 1972. In 1985, he began working as a sole practitioner, first as a general
practitioner and then limiting his practice to criminal defense work, He speaks Polish fluently and
spoke Polish with Defendant approximately one percent of the time, speaking in English ninety-nine

percent of the time. In May 2003, he and Defendant engaged in proffer conferences with the


Sentencing Hearing

On August 24, 2004, the Court reviewed the Defendant’s guideline calculations. The
Defendant did not object to the possible sentences that were again discussed (the same as discussed
during the plea hearing) and did not raise any issue that he believed his sentence would be otherwise.
Issues arose regarding the forfeiture of certain property and whether consecutive or concurrent
sentences applied; and the sentencing hearing was continued to September 7, 2004, so these issues
could be addressed.

Prior to September 7, 2004, Defendant fled the United States. In August 2006, Defendant
was captured in the Czech Republic and returned to the United States. In May 2007, Defendant, with
new counsel, moved to vacate his guilty plea, arguing that his previous attorney told him that ifhe
did not plead guilty, he would most likely receive a sentence of life imprisonment and promised him
that if he did plead guilty, he would be sentenced between seven and ten years’ incarceration.

Motion Hearing

On January 23, 2008, a hearing was held on Defendant's motion to withdraw his guilty plea.

Defendant testified as follows: “At the beginning” when he spoke with his attorney, his
attorney told him that it was possible he would receive a sentence of seven to ten years’
incarceration. Defendant’s counsel also informed Defendant that he should plead guilty after
Defendant informed his counsel that he did not have additional funds for trial. Defendant met with
his counsel to discuss the plea agreement, at his counsel’s office, at which time Defendant indicated
that he did not agree with the original drug quantity. Defense counsel told Defendant that “it didn’t
make any difference at this point.” Defense counsel told Defendant that the maximum penalty would

bea life sentence and that he would receive this sentence ifhe went trial, However, defense counsel


ANALYSIS

A defendant does not have an absolute right to withdraw his guilty plea. See
United States v. Pike, 211 F.3d 385, 388 (7th Cir. 2000) (Pike). Prior to sentencing, the court may
penmit a defendant to withdraw his plea if he presents a “fair and just” reason for doing so. See
Fed. R. Crim. P. 32(e). A plea that is not voluntary may constitute a fair and just reason for
withdrawing a guilty plea. See United States v. Ellison, 835 F.2d 687, 692-93 (7th Cir. 1987). The
burden of justifying such rests with the defendant. Pike, 211 F.3d at 288.

Factors considered in determining whether a defendant has demonstrated a fair and just
reason to withdraw a guilty plea include: (1) the timeliness of the defendant's attempted plea
withdrawal, (2) whether the defendant has asserted or maintained his innocence, and (3) the
voluntariness of the plea. See United States v. Pluta, 144 F.3d 968, 973 (6th Cir. 1998);

United States v, Vlamakis, 872 F, Supp. 533, 538 (N.D. Ill. 1995) (Viamakis); Fed. R. Crim. P. 32(d)
Advisory Notes (1983 Amendment).

The timeliness of Defendant's attempt to withdraw his plea weighs against Defendant.
Defendant pled guilty on May 4, 2004, but did not move to withdraw his guilty plea until
May 11, 2007, and only after he violated the terms of his bond and absconded from the United
States, In addition, Defendant does not assert that he is actually innocent.

With the first two factors weighing heavily against Defendant, Defendant argues that his
guilty plea should be vacated because it was not entered knowingly because he was denied
fundamental information that was necessary to make an informed decision about whether to plead
guilty and because the plea agreement and plea colloquy did not include language of the actual

sentencing ranges.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED SATES OF AMERICA )
) No. 03 CR 0251
)
v. ) Judge John W. Darrah
)
PIOTR MISIOLEK. )
)
RRANDUM OPINI' IRDER

On May 5, 2004, pursuant to written plea agreement, Defendant, Piotr Misiolek, pled guilty
to one count of conspiracy to distribute 3,4 methylenedioxymethamphetamine, in violation of
21 U.S.C § 846; one count of conspiracy to engage in money laundering to promote the controlled
substance business, in violation of 18 U.S.C, § 1956(h); and one count of conspiracy to traffic in
stolen vehicles, in violation of 18 U.S.C. § 371. Presently before the Court is Defendant’s Motion
to Withdraw Plea of Guilty.

BACKGROUND
Change of Plea Hearing

At the beginning of the May 5, 2004 plea hearing, the Court asked the Defendant numerous
questions to ascertain whether Defendant was competent to change his plea and enter a plea of
guilty. The Court informed Defendant that if he wished to speak with his attorney at any time, he
could simply tell the Court he wanted to speak with his attorney, and the proceedings would be
stopped so he and his attorney could speak in private. Defendant answered that he understood.
Defendant’s counsel and the United States District Attorney also stated that they believed that

Defendant was competent to change his plea.

fan



Defendant has not demonstrated that the issue of contesting the drug quantity was not
discussed or analyzed in determining whether to plead guilty. To the contrary, Defendant’s previous
counsel testified that possibly pleading guilty was discussed because of the number of co-defendants
that were pleading guilty that would likely be testifying against Defendant as to his leadership role
and drug quantity.

Ironically, Defendant attempts to use the fact that he violated bond and fled the United States
as evidence that he did not knowingly plead guilty. Defendant asserts that his departure from the
United States after the August 24 sentencing hearing demonstrates he was misled by his prior
attomey that he was going to be sentenced to seven to ten years’ incarceration. He argues that he
fled when he learned for the first time at this hearing of possible sentences of up to twenty years’
incarceration as to Counts | and 2, which were discussed at the August 24 hearing. However, these
same possible sentences were discussed at length during the plea colloquy on May 25; and Defendant
affirmed at that time that he understood the possible sentences (as discussed above), Furthermore,
the Defendant's assertion in this regard is contradicted by Government's Exhibit 7, which
demonstrates that at least a week prior to August 24, 2004, Misiolek intended to flee the
United States. Exhibit 7 is a Polish customs declaration form used by Polish residents in the United
States to notify the Polish government of their intent to “finalize their stay in the USA in order to
resettle in Poland.” On or about August 17, 2004, Misiolek and his father completed this form,

notifying the Polish authorities that they had been in the United States since approximately

12


sentence of seven to ten years’ imprisonment; and Defendant did not, even though given the
opportunity to do so, indicate that the sentences discussed were contrary to what he was informed
by his attomey. Furthermore, the Court specifically asked the Defendant if there were any promises
made to him as to what the sentences would be that caused Defendant to plead guilty, to which
Defendant stated “No.” The Court went even further, specifically asking Defendant whether his
attomey made any promises to him regarding his sentences, to which Defendant answered “No.”

The substance of the plea colloquy is directly contrary to Defendant’s testimony at the
evidentiary hearing on Defendant’s motion to withdraw his guilty plea, at which time Defendant
testified his attorney told him that if he pled guilty, he would receive a seven-to-ten year sentence
and that if he went to trial, he could receive a life sentence.

Moreover, Defendant's testimony during the hearing on the motion to withdraw the guilty
plea was not credible nor persuasive. Rather, his willingness to be untruthful when it was to his
benefit was readily apparent.' Further, Defendant’s previous counsel adamantly denied telling
Defendant he would likely receive a sentence of seven to ten years’ incarceration. Contrary to
Defendant’s testimony, his previous counsel’s testimony was credible and persuasive.

Defendant further argues that his plea was not knowingly made because his previous counsel
did not discuss the possibility of entering a blind plea and contesting certain issues, such as drug
quantity. However, Defendant's previous counsel did not testify that he did not discuss a blind plea;
instead, he testified that a blind plea was not discussed “in those terms.” In other words, the phrase

“blind plea” was not used.

‘Defendant’s present counsel, Beau B. Brindley, admits, “There is no question about the
fact that Mr. Misiolek has credibility problems.” (Arguments on Motion to Withdraw Plea of
Guilty, p. 19).

i


Government. The Government did not find the proffer conferences useful because the information
received was insignificant, was already known, or was deemed fictitious. After prior defense
counsel received notice that multiple co-defendants were pleading guilty, he informed Defendant of
the pleas and that these co-defendants were likely agreeing to testify against Defendant. Thus,
Defendant’s odds of prevailing at trial were significantly reduced. Prior defense counsel suggested
that Defendant give consideration to some type of plea arrangement with the Government. He also
informed Defendant that, based on what he knew of the case, the Defendant did not have much
leeway with the guidelines and suggested that Defendant provide the Government information so
that the Government may change their posture. He spoke with Defendant on several occasions about
the sentencing guidelines, including telling him about various factors in aggravation and mitigation.

Defense Counsel provided Defendant a copy of the plea agreement shortly after it was
received and reviewed the plea agreement with Defendant. After reviewing the plea agreement,
prior defense counsel “had no question in [his] mind” that Defendant understood the terms of the
plea agreement. He could “say with absolute certainty” that the numbers “seven and ten were never

part of any conversation” he had with Defendant and his possible sentence. He never told Defendant

that he negotiated a “side deal” with the Government. He reviewed the sentencing guidelines with

Defendant before the plea and reviewed the presentence investigation report with Defendant prior

to August 2004. He did not speak with Defendant about a “blind plea in those terms.”



The Defendant:
The Court:

The Defendant:

The Court:

The Defendant:
The Court:
The Defendant:
The Court:
The Defendant:
The Court:

The Defendant:
The Court:
The Defendant:
The Court:

The Defendant:
The Court:

The Defendant:
The Court:

Defense Counsel:

Yes,

Do you understand also that I am not bound
by the terms and conditions in the plea
agreement, that I can sentence you to the
maximum amount permitted under the statute
and the sentencing guidelines even though
your recommendations may disagree with that,
and even though you disagree with the
sentence or the amount of the sentence you're
still bound by the sentence and could not
withdraw your plea of guilty? Do you
understand that?

Yes.

ed

Mr. Misiolek, I have a ten-page document
entitled Plea Agreement. On the last page
there’s a line. Under the line is typed the
words Piotr Misiolek. Above it is a signature.
Is that your signature?

Yes.

Did you sign this?

Yes.

Did you read this before you signed it?

Yes.

Did you discuss this with [your defense
counsel] before you signed it?

Yes.

Did [your defense counsel] answer all your
questions regarding the terms and conditions
of this plea agreement?

Yes.

Did he answer those questions before you
signed this?

Yes.

Is there anything about this agreement, Mr.
Misiolek, you do not understand?

No.

(Defense Counsel], from your discussions
with your client, do you believe he
understands the terms and conditions of the
plea agreement?

Yes, Ido, Your Honor.



and any restitution ordered by the court.

ee
So I believe the total of that, Your Honor,
would be a term of imprisonment on the total
of the three counts would be 45 years’
imprisonment, a fine of the greater of 1.75
million dollars or 1 million dollars plus twice
the amount of funds laundered in connection
with Count 2 added to twice the gross gain or
loss caused by the offense in Count 3, plus the
terms of supervised release,

eek

Do you understand that as to Count 1 you
could be sentenced up to a period of 20 years
in the custody of the Bureau of Prisons, you
could be fined in the sum of one million
dollars, and upon your release from the
Bureau of Prisons you would be placed —
could be placed on a period of supervision up
to three years, and you would be required to
pay a special assessment of one hundred
dollars?
As to Count 2, you could be sentenced to
custody in the Bureau of Prisons up to 20
years, you could be fined in the amount of
$500,000 or two times the amount of funds
laundered, whichever is greater, you could be
placed on a period of supervision after release
from prison up to three years, and you would
be required to pay a special assessment of one
hundred dollars.
As to Count 3, you would be placed in a —
placed in the Bureau of Prisons for a period of
confinement up to five years, you could be
fined in the sum of $250,000 or two times the
gross gain or loss from the criminal enterprise,
whichever is greater, you would be placed on
a period of supervision for three years after
your release from custody, and you would be
required to pay a one hundred dollar
assessment.
Do you understand that’s the possible
punishment under the statute?



The Court continued questioning Defendant, in pertinent part, as follows:

The Court:

The Defendant:

The Court:

The Defendant:

The Court:

Mr. Anderson:

And if you plead guilty and if you're found
guilty based on your plea or your admission of
guilt, there will not be a trial in this
proceeding and all that will remain to be done
will be to proceed to the sentencing phase of
these proceedings, that is to enter a sentence
based on your plea of guilty, Do you
understand that?

Yes,

‘That will occur after I hear from your lawyer
as to whatever recommendations you believe
is appropriate in sentencing, after I hear from
the government regarding their
recommendations as to the appropriate
sentence, after I consider a presentence
investigation report that’s prepared by the
probation department regarding you and your
background and matters that are relevant and
germane to the appropriate sentence, then
finally after I hear from you in the courtroom
here if you choose to make a statement. But
that’s all that will remain to be done if you
plead guilty. Do you understand that?

Yes,

Counsel, can I ask you to outline the statutory
maximum penalty for...

There are three counts to which the defendant
is entering a plea of guilty. The first count of
the indictment carries a maximum penalty of
20 years’ imprisonment, a maximum fine of
one million dollars, and a term of supervised
release of at least three years.

Count 2 of the indictment carries a maximum
penalty of 20 years’ imprisonment, a
maximum fine of the greater of $500,000 or
twice the amount of funds laundered, and a
term of supervised release of up to three years.
Count 3 carries a maximum penalty of five
years’ imprisonment, a maximum fine of
$250,000 of twice the gross gain or loss
caused by the offense, whichever is greater,



November 4, 1990, and that they intended to leave the United States and return to Poland by

September 30, 2004. Defendant signed the document, which included the following language
directly below his signature:

I give this affidavit with full understanding of article 233 & 1 of
Criminal Code.

“Whoever gives a testimony that is being used as an exhibit in a court

case or other case that is pursuant to the legal proceedings code,

which is untrue or not disclosing the truth, is liable to imprisonment

for up to 3 years.”
Based on the above, Defendant has failed to demonstrate that his plea of guilty was not knowing,
intelligent, and voluntary.

Lastly, Defendant argues that a fair and just reason exists to vacate Defendant’s guilty plea
because Defendant lacked the requisite knowledge to plead guilty and because of the plea
agreement’s purportedly disadvantageous terms. Defendant’s alleged lack of knowledge is fully
addressed above. Moreover, Defendant’s argument that the plea agreement was of no benefit to the
Defendant ignores his poor bargaining position in negotiating a plea agreement in light of the weight
of the evidence against the Defendant and the fact that several co-defendants intended to plead guilty
and were likely going to testify against Defendant if he elected to proceed to trial. Furthermore, the
plea agreement did not foreclose Defendant from arguing certain possible sentence reductions, for

example, concurrent versus consecutive sentences, a reduction for cooperation with the Government,

and a reduction for acceptance of responsibility.

Contrary to Defendant’s argument, the plea agreement left open the possibility of arguing
a sentence reduction for acceptance of responsibility; and Defendant’s own conduct of violating
his bond and fleeing the country greatly reduced the strength of Defendant's argument that he
deserves such a reduction.

13