In the

United States Court of Appeals

For the Seventh Circuit

No. 06-2972

CHRISTOPHER M. TORZALA,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 04 C 813—Rudolph T. Randa, Chief Judge.

ARGUED FEBRUARY 8, 2007—DECIDED SEPTEMBER 19, 2008

Before RIPPLE, MANION, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Christopher Torzala pled

guilty to one count of obstruction of justice in violation of

18 U.S.C. § 1503. He then filed a motion to vacate, set

aside, or correct his sentence under 28 U.S.C. § 2255,

arguing that his conduct did not constitute a crime.

Because we find that Torzala knowingly and voluntarily

entered into his guilty plea and that he received effective

assistance of counsel, we affirm the district court’s denial

of Torzala’s motion.
2 No. 06-2972

I. BACKGROUND

Christopher Torzala was a licensed real estate broker

operating Torzala Realty in Milwaukee, Wisconsin.

Through a mutual acquaintance, he met Kirk Polinske, a

loan originator at Bayshore Mortgage. Bayshore Mortgage

arranged financing through out-of-state lenders.

Torzala had a portfolio of around thirty investment

properties that he sought to sell. Polinske told Torzala he

could help him sell the properties but that Torzala would

need to pay him $5,000 for every property that closed.

Polinske also told Torzala that the deals would have to be

“structured,” meaning that Torzala had to bring his own

funds to the closing to cover the costs traditionally paid

by the buyer, including closing costs, down payments, and

second mortgages. These contributions would not be

reflected on the closing documents.

On June 14, 2002, an FBI agent interviewed Torzala.

Torzala later admitted making several false statements

during that interview, including that he had never provided funds to a buyer at closing in order to falsify equity

in a deal. And although Torzala stated during the interview that he did not know any of the participants in

ongoing mortgage fraud at Bayshore, he later acknowledged that he knew that Polinske and others at Bayshore

had engaged in fraud during a number of real estate

transactions, including those involving Torzala. Torzala

also later admitted that he knew at the time he spoke

with the FBI agent that the FBI was investigating Polinske

and Torzala’s own transactions.
No. 06-2972 3

Three months after Torzala spoke with the FBI agent,

a grand jury indicted Daniel Wichman, the head of

Bayshore Mortgage, on counts of fraud and money laundering. Bayshore employees John McGowan and Todd

McGowan had been indicted in 2000 and pled guilty the

following year. Polinske received immunity from the

government for his cooperation.

In Torzala’s case, the government filed a one-count

information in federal court alleging that he obstructed

justice in connection with an investigation of “property

flipping and other fraudulent real estate practices,” in

violation of 18 U.S.C. § 1503. The charge further alleged

that the investigation was part of ongoing judicial proceedings, “including grand jury and other criminal proceedings,” and that Torzala endeavored to obstruct

justice by lying to the FBI about his knowledge of property

flipping activity. That same day, the parties filed a plea

agreement in which Torzala agreed to plead guilty to the

single charge. He later formally entered his guilty plea

and eventually received a sentence of eighteen months’

imprisonment and two years’ supervised release. The

government had initially suggested a lower sentence, but

after Torzala showed up at the Milwaukee airport two

days before his sentencing ready to board a flight to

New Zealand with over $13,000 in cash, a cashier’s

check for $10,000, more than twenty credit cards, and

thirty-eight blank checks in hand—all while under order

not to leave the state—the government changed its sentencing recommendation.

Torzala did not take a direct appeal. Instead, he filed

a motion to vacate, set aside, or correct his sentence
4 No. 06-2972

pursuant to 28 U.S.C. § 2255. Torzala did not submit any

affidavits in support of his motion, and the district court

denied the motion without holding a hearing. Torzala

appeals.

II. ANALYSIS

Torzala seeks relief under 28 U.S.C. § 2255, which allows

“[a] prisoner in custody” to seek relief. That Torzala is no

longer in custody or on supervised release, and had

neither status at the time the district court denied his

motion, does not preclude our review. Torzala was in

custody when he filed the motion, and that is all that is

required to be “in custody” under the statute. See Spencer

v. Kemna, 523 U.S. 1, 7 (1998); Virsnieks v. Smith, 521 F.3d

707, 717-18 (7th Cir. 2008) (discussing “in custody” requirement). Moreover, we presume collateral consequences

from his criminal conviction. See Spencer, 523 U.S. at 12;

A.M. v. Butler, 360 F.3d 787, 790 n.4 (7th Cir. 2006). Torzala

asserts, and the government does not dispute, that he

continues to suffer adverse consequences from his conviction in, for example, the inability to possess firearms

lawfully. See 18 U.S.C. § 922(g)(1) (prohibiting felons from

possessing firearms); Gentry v. Deuth, 456 F.3d 687, 695

(6th Cir. 2006). As a result, the matter is not moot, and

we proceed to review Torzala’s claim. In doing so, we

review the district court’s findings of law de novo and

its findings of fact for clear error. Bethel v. United States,

458 F.3d 711, 716 (7th Cir. 2006).

Torzala argues that he “was induced to plead guilty by

his defense attorney, the prosecutor and the presiding
No. 06-2972 5

judge” because they “convinced him that he was guilty”

of committing obstruction of justice in violation of

18 U.S.C. § 1503. Although Torzala contends that the

record contains insufficient proof that he was guilty of

the crime to which he pled, he does not maintain that he

is actually innocent of obstructing justice. Cf. Davis v.

United States, 417 U.S. 333, 346-47 (U.S. 1974) (actual

innocence supports collateral relief under § 2255).

It is not easy to vacate a guilty plea in a collateral proceeding like this one. First, relief under § 2255 is available

only when the “sentence was imposed in violation of

the Constitution or laws of the United States,” the court

lacked jurisdiction, the sentence was greater than the

maximum authorized by law, or it is otherwise subject

to collateral attack. Moreover, a defendant who knowingly and voluntarily enters a guilty plea admits not

simply that he committed the acts charged in the indictment; it is an “admission that he committed the crime

charged against him.” Young v. United States, 124 F.3d 794,

797 (7th Cir. 1997) (citing North Carolina v. Alford, 400

U.S. 25, 32 (1970)); see United States v. Broce, 488 U.S. 563,

570-71 (U.S. 1989). Because “[a] guilty plea operates as a

waiver of important rights,” it is constitutionally valid

“only if done voluntarily, knowingly, and intelligently,

‘with sufficient awareness of the relevant circumstances

and likely consequences.’ ” Bradshaw v. Stumpf, 545 U.S.

175, 183 (2005) (citing Brady v. United States, 397 U.S. 742,

748 (1970)).

Nonetheless, “even the voluntariness and intelligence

of a guilty plea can be attacked on collateral review only

if first challenged on direct review.” Bousley v. United
6 No. 06-2972

States, 523 U.S. 614, 621 (1998). By failing to take a direct

appeal, Torzala procedurally defaulted the argument

that he appears to raise here—that he did not knowingly

and voluntarily enter his plea of guilty. A claim that

has been procedurally defaulted ordinarily may only be

raised in a § 2255 proceeding if the defendant demonstrates that he is “actually innocent,” or that there is

“cause” and actual prejudice. Id. at 622. Because the

government did not assert procedural default as a

defense in this action but instead chose to respond on

the merits, however, the government has waived the

procedural default. Buggs v. United States, 153 F.3d 439, 444

(7th Cir. 1998). And because Torzala’s arguments ultimately have no merit, as in Buggs, we “believe that considerations of judicial efficiency counsel that we address

the merits.” See id.

“A plea agreement is constitutionally valid if it ‘represents a voluntary and intelligent choice among the alternative courses of action open to the defendant,’ ” Hays v.

United States, 397 F.3d 564, 570 (7th Cir. 2005) (citations

omitted), and we look to all of the relevant circumstances

surrounding the plea when determining whether this

standard has been met, Virsneiks, 521 F.3d at 714. A defendant does not enter a plea voluntarily, knowingly, and

intelligently if he pleads guilty to a crime without knowledge of the crime’s essential elements. Stumpf, 545 U.S. at

183 (citing Henderson v. Morgan, 426 U.S. 637 (1976)). And

if “neither [the defendant], nor his counsel, nor the court

correctly understood the essential elements of the crime

with which he was charged,” a plea is constitutionally

invalid as well. Bousley, 523 U.S. at 619; see also United
No. 06-2972 7

States v. Davis, 212 F.2d 264, 267 (7th Cir. 1954). In United

States v. Bradley, 381 F.3d 641 (7th Cir. 2004), for example,

we granted a defendant’s motion to withdraw his

guilty plea when he admitted only to possessing marijuana. The indictment, however, charged the defendant

with trafficking in cocaine base, and the prosecutor incorrectly suggested at the plea hearing that to sustain the

conviction, the government needed only to prove that

the defendant had possessed illegal drugs. Id. at 644.

Although Bradley did not come to us in a collateral proceeding, we reasoned that it presented not only a violation of the requirement in Federal Rule of Criminal Procedure 11 that a guilty plea have a factual basis, but a

constitutional violation as well. Id. at 647 n.4.

The record in this case, in contrast, belies Torzala’s

suggestion that his plea was not knowing and voluntary.

Torzala pled guilty to obstruction of justice in violation of

the “catchall” clause in 18 U.S.C. § 1503, which provides

that a crime occurs when a person “corruptly . . . influences, obstructs, or impedes, or endeavors to influence,

obstruct, or impede, the due administration of justice.” The

broadly-worded catchall is not without limits. To sustain

a conviction under this provision, the government must

prove: (1) a judicial proceeding was pending; (2) the

defendant knew of the proceeding; and (3) the defendant

corruptly intended to impede the administration of that

proceeding. United States v. Macari, 453 F.3d 926, 936

(7th Cir. 2006); United States v. Fassnacht, 332 F.3d 440, 447

(7th Cir. 2003).

In this case, the charging information accurately set

forth each of these elements, as did the plea agree-
8 No. 06-2972

ment Torzala signed. In addition, at the change of plea

hearing, the district court read Torzala each of the

crime’s elements, and Torzala affirmed that he understood

that they constituted the elements of the offense. Cf.

Henderson, 426 U.S. at 647 (affirming grant of habeas

relief on basis that guilty plea was not voluntary where

neither counsel nor court informed defendant that intent

to cause victim’s death was essential element of seconddegree murder).

In particular, Torzala admitted there was a “pending

judicial proceeding” within the scope of § 1503 at the

time he gave his false statements to the FBI. A grand jury

investigation constitutes a “pending judicial proceeding”

for purposes of 18 U.S.C. § 1503. United States v. Aguilar,

515 U.S. 593, 600-01 (1995); Macari, 453 F.3d at 936. Although an investigation by the FBI, in contrast, does not

always suffice, Aguilar, 515 U.S. at 600; Macari, 453 F.3d

at 936, such an investigation falls within section 1503’s

purview when the FBI undertakes an investigation with

the intention of presenting evidence before the grand jury.

See Aguilar, 515 U.S. at 600-01; United States v. Maloney,

71 F.3d 645, 657 (7th Cir. 1995).

At Torzala’s plea hearing, the prosecutor stated that

the government had an ongoing investigation into individuals associated with Bayshore Mortgage and that Torzala

knew Polinske was under investigation when Torzala

spoke with the FBI. Seizing on these statements, Torzala

points out that an investigation alone is insufficient to

establish that a judicial proceeding was pending at the

time. Torzala’s argument, however, ignores the other
No. 06-2972 9

We also note that the grand jury indicted Wichman on 1

September 10, 2002. That Wichman’s indictment came only a

few months after Torzala made his false statements to the FBI

is consistent with the existence of an ongoing grand jury

investigation at the time Torzala made his false statements.

evidence in the record. The plea agreement he signed states

that the investigation “was part of ongoing official proceedings in the Eastern District of Wisconsin, including

grand jury and other criminal proceedings” (emphasis

added). The district court then stated at the change of plea

hearing that an element of the offense was “that there were

judicial proceedings pending; criminal cases and Grand

Jury investigation into real estate fraud,” and Torzala

acknowledged that he understood the elements of the

offense. All of this was consistent with the information’s

charge that the investigation was part of “ongoing official

proceedings, including grand jury and other criminal

proceedings.” Although Torzala is correct that a “mere”

government investigation does not necessarily equate to

a judicial proceeding punishable under § 1503, Torzala

acknowledged multiple times that he was pleading

guilty to making false statements while an investigation

related to grand jury proceedings was pending.1

Next, it is true that demonstrating a defendant’s awareness of an FBI investigation is not sufficient to establish

a § 1503 violation; rather, the defendant must be aware

of an investigation related to judicial proceedings. Aguilar,

515 U.S. at 599. Again, however, the record is clear that

all involved proceeded with this understanding. Torzala
10 No. 06-2972

said at the plea hearing that he knew there was an ongoing

investigation by the FBI when he made the false statements. Alone, that statement might not be enough, but the

district court also told Torzala at the hearing that the

offense required proof that he knew of pending judicial

proceedings, namely grand jury investigations and criminal cases, when he made the false statements. In addition,

the plea agreement Torzala signed states he understood

that to sustain the crime charged, the government

needed to prove that “there were judicial proceedings (i.e.,

criminal cases and grand jury investigations into real

estate fraud)” and that he “was aware of the proceedings.”

In short, the indictment, plea agreement, and exchange

during the change of plea hearing all demonstrate that

Torzala “pleaded guilty after being correctly informed as

to the essential nature of the charge against him.” Bousley,

523 U.S. at 619. Torzala’s plea was knowing and voluntary.

The essence of Torzala’s arguments suggests that he

believes the government failed to prove he violated § 1503

or that Federal Rule of Criminal Procedure 11(b)(3)’s

requirement that the court establish a factual basis before

accepting a plea was not met. But Torzala gave up the

ability to hold the government to its proof when he

entered his plea of guilty. See Broce, 488 U.S. at 571. And a

violation of Rule 11, even of Rule 11(b)(3), does not alone

require relief from a conviction. See United States v.

Timmreck, 441 U.S. 780, 783-84 (1979) (violation of Rule 11

does not mandate collateral relief); United States v.

Dominguez Benitez, 542 U.S. 74, 83 (2004) (defendant who

raises Rule 11 violation for first time on direct appeal

after entering plea must show that but for the error, he
No. 06-2972 11

would not have entered the plea); United States v. Arenal,

500 F.3d 634, 637 (7th Cir. 2007) (Dominquez Benitez applies

to challenges to Rule 11(b)(3) factual basis for plea). As

we have said before, “the Constitution ‘does not require

the establishment in all cases of a factual basis for a guilty

plea.’ ” Higgason v. Clark, 984 F.2d 203, 208 (7th Cir. 1993)

(quoting United States v. Johnson, 612 F.2d 305, 309 (7th

Cir. 1980)). Of course, “ ‘where it is impossible to find

guilt from the facts stated as the factual basis for the plea,’

the court is apt to find the plea involuntary,” id., but on

this record, it is not impossible to find guilt.

Torzala also contends that his counsel was ineffective.

Although he did not directly appeal his conviction, an

ineffective assistance of counsel claim may be raised for the

first time in a § 2255 proceeding as Torzala did here.

Massaro v. United States, 538 U.S. 500, 509 (2003). To succeed

on a claim that an attorney rendered ineffective

assistance of counsel when a defendant entered a guilty

plea, the defendant must show: (1) counsel’s performance

fell below an objective standard of reasonableness; and

(2) there is a reasonable probability that but for counsel’s

errors, the defendant would not have pled guilty and

would have insisted on proceeding to trial. Bethel, 458

F.3d at 716. Torzala alleges that his attorney failed to

advise him that his conduct did not amount to a violation

of § 1503 and failed to tell him that elements required to

prove such a violation were not present. But as we have

discussed, the indictment, plea agreement, and the district

court judge all correctly set forth the elements required

to prove a § 1503 violation and related those elements to

his case, and Torzala admitted in his plea agreement and

at the change of plea hearing that he was guilty of the
12 No. 06-2972

offense charged. Torzala’s additional claim that his attorney promised he would only receive probation if he

pled guilty is, first of all, inconsistent with the plea agreement he signed that lists an expected guideline sentencing range of six to twelve months. Moreover,

Torzala’s arrest two days before his sentencing, on his

way to board a flight to New Zealand in violation of his

conditions of release, doomed any chance he had for a

lenient sentence. Torzala’s counsel’s performance did not

fall below an objective standard of reasonableness.

We address Torzala’s remaining arguments briefly. First,

the district court did not abuse its discretion when it

decided Torzala’s § 2255 motion without holding a

hearing. Torzala did not submit any affidavits in support of his motion, and the district court “has discretion

to deny an evidentiary hearing where the motion, files,

and records of the case conclusively show that the

prisoner is entitled to no relief.” Cooper v. United States,

378 F.3d 638, 641-42 (7th Cir. 2004). That is the case here.

Finally, our decision in McReynolds v. United States,

397 F.3d 479 (7th Cir. 2005), forecloses Torzala’s argument that he should receive the benefit of United States

v. Booker, 543 U.S. 220 (2005), in this collateral challenge.

III. CONCLUSION

The judgment of the district court is AFFIRMED.

9-19-08