United States v. Rothstein

746 F. Supp. 748, 1990 U.S. Dist. LEXIS 5056, 1990 WL 151113
CourtDistrict Court, N.D. Illinois
DecidedApril 30, 1990
DocketNos. 89 C 4530, 87 CR 810
StatusPublished

This text of 746 F. Supp. 748 (United States v. Rothstein) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rothstein, 746 F. Supp. 748, 1990 U.S. Dist. LEXIS 5056, 1990 WL 151113 (N.D. Ill. 1990).

Opinion

MEMORANDUM OPINION

BRIAN BARNETT DUFF, District Judge.

On May 9, 1988, Harold Rothstein appeared before Judge Nicholas J. Bua of this district and entered pleas of guilty to one count of wire fraud and one count of fraudulent use of a credit card, in violation of 18 U.S.C. § 1343 (1982) and 15 U.S.C. § 1644(a), respectively. Rothstein came to court with counsel. As part of a plea agreement which Rothstein signed in open court, Rothstein acknowledged that he was pleading guilty freely and voluntarily. He stated further that he was guilty of the two charges, and that no one had made promises to him other than those in the [749]*749plea agreement in order to induce him to plead guilty. The government’s chief promise to Rothstein was to dismiss the original indictment against him. The government expressly reserved the right to recommend a sentence, which had the potential of being fifteen years imprisonment and a $251,000 fine.

Judge Bua reviewed these elements of the plea agreement with Rothstein in open court, and Rothstein reaffirmed his understanding of each of them. Rothstein acknowledged his guilt and the court’s power to sentence him to the maximum term described above. Rothstein was bothered by one matter, however. At the time of his plea hearing, Rothstein faced the possibility that the U.S. Parole Commission would revoke his parole on an earlier conviction. When Judge Bua asked Rothstein whether he believed he would get credit for the time which Rothstein was serving pending sentencing, Rothstein interrupted, and expressed his understanding that “the time is running concurrent, and, therefore, protects me from any consecutive sentence to my original sentence_” Judge Bua acknowledged the government’s representation that Rothstein would receive credit for time served pending sentencing, then continued:

THE COURT: Other than that, has your attorney made any promise to you in any other phase of the sentencing?
ROTHSTEIN: No, sir.
THE COURT: Very well. Has any person assured you or led you to believe that you would be placed on probation or be given a light sentence in return for your plea of guilty?
ROTHSTEIN: No, sir.
THE COURT: Has any person used any threats, force, pressure or intimidation to make you plead guilty?
ROTHSTEIN: No, sir.
THE COURT: Finally, is this plea of guilty voluntarily made and of your own free will and accord?
ROTHSTEIN: Yes, your Honor.

Plea Hearing Transcript 9-10.

Rothstein appeared before this court for sentencing on June 10, 1988, again with counsel present. The government recommended that the court impose a prison term of fifteen years. Rothstein’s counsel urged the court to put Rothstein in a treatment program. The court ended up sentencing Rothstein to five years imprisonment followed by five years probation. Neither counsel, however, questioned the impact of the court’s sentence on Roth-stein’s existing parole. Indeed, the court expressed its uncertainty as to what influence its sentence would have. See Sentencing Transcript 58, 60.

Rothstein did not appeal the court’s acceptance of his guilty pleas or its sentence. He did move under the prior version of Rule 35(b), Fed.R.Crim.Pro., for a reduction in and/or correction of his sentence. In that motion, Rothstein asked the court to make his probation term run concurrently with his five-year prison term, and to correct certain alleged errors in the victim impact statement filed in this matter. Rothstein did not attack the validity of his plea or charge the government with breaking any promises to him in his motion, however. This court subsequently denied Rothstein’s motion.

On March 23, 1989, Rothstein learned from the Parole Commission that it had revoked his parole. The Commission further determined that Rothstein’s sentence on the charges to which he pleaded guilty in this court would run consecutively, rather than concurrently, with his prior sentence. Rothstein thus moved under 28 U.S.C. § 2255 (1982) to vacate this court’s sentence, or alternatively to withdraw his plea of guilty. Rothstein argues that the government broke a promise that his old and new sentences would run concurrently, and that his plea was constitutionally defective because he did not fully understand the consequences of it.

The government rightly points out that Rothstein never attacked his guilty plea or asserted a promise from the government by direct appeal from this court’s sentence or by way of his Rule 35(b) motion. Accordingly, Rothstein may maintain his present grounds for relief under § 2255 only if he can demonstrate good cause and [750]*750actual prejudice from not having raised them on appeal. See Williams v. United States, 805 F.2d 1301, 1303-04, 1306-07 (7th Cir.1986). Good cause in a habeas proceeding “ordinarily turn[s] on whether the prisoner can show some objective factor external to the defense” which impedes that defense. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (petition for habeas corpus under 28 U.S.C. § 2254). Actual prejudice exists when the alleged defect in the proceeding so infected it “that it resulted in a fundamental miscarriage of justice.” U.S. v. Kovic, 830 F.2d 680, 685 (7th Cir.1987).

If Rothstein believed at the time he entered his pleas that his new sentence would run concurrently with his prior sentence,

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Bluebook (online)
746 F. Supp. 748, 1990 U.S. Dist. LEXIS 5056, 1990 WL 151113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rothstein-ilnd-1990.