United States v. Wolf

44 F. App'x 16
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 21, 2002
DocketNo. 01-3560
StatusPublished
Cited by3 cases

This text of 44 F. App'x 16 (United States v. Wolf) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Wolf, 44 F. App'x 16 (7th Cir. 2002).

Opinion

ORDER

Barry J. Wolf pleaded guilty to twelve counts of mail fraud, in violation of 18 U.S.C. §§ 2 and 1341, and one count of commodity fraud, in violation of 7 U.S.C. §§ 6o (1) and 13(a)(2), and was sentenced to concurrent terms of 60 months’ imprisonment. Wolf appeals, and his counsel moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he is unable to discern any nonfrivolous issue for appeal. Our review is limited to the potential issues discussed in counsel’s thorough Anders brief and in Wolfs response filed pursuant to Circuit Rule 51(b) (which generally tracks counsel’s brief). See United States v. Tabb, 125 F.3d 583, 584 (7th [18]*18Cir.1997) (per curiam). For the reasons set forth below, we grant counsel’s motion to withdraw and dismiss this appeal.

The facts presented during Wolfs change-of-plea colloquy, which he admitted were true, establish the following. Between September 1995 and March 1997, Wolf utilized a fraudulent commodities-trading scheme to defraud over 175 investors. Wolf, a commodity trading advisor, solicited investors throughout the country to open managed commodity trading accounts with his firms, Barry Wolf Company and Wolf Commodity Corporation a/k/a Wolf Commodities Corporation. Wolf used misleading radio advertisements that promised investors large returns on their investments from seasonal increases in the prices of heating oil and unleaded gasoline. He delivered a misleading sales pitch to investors who responded to the advertisements, including lying to them about his investment prowess and the fact that he had made clients millionaires. Although he touted instances in which his clients had made significant returns, none actually realized a profit and most suffered catastrophic losses due to Wolfs speculative trading decisions.

Wolf also misled potential customers by falsely stating that he was a millionaire, falsely stating the size of his investment companies, and falsely promising that he could prevent losses to customers by utilizing a device called a “stop-loss order” — an order placed with the broker to sell when a commodity reaches a certain price. Wolf also had many of his customers execute powers of attorney that authorized him to make all trading decisions on their accounts. As a result of trades executed on behalf of investors, Wolf earned more than $900,000 in commissions. With respect to the twelve mail fraud counts, Wolf, in executing his scheme, sent via Fed Ex packages of misleading promotional materials to potential investors; investors, in turn, sent him checks and account-opening documents. With respect to the commodity fraud count, Wolf made materially misleading statements in a November 1995 telephone call to an investor regarding the risks associated with additional investment in an account managed by Wolf Commodity Corporation.

In October 2000 Wolf was indicted in the Northern District of Illinois. In May 2002 he entered, pursuant to a written plea agreement, guilty pleas to all of the charges against him. Wolf was sentenced to concurrent terms of 60 months’ imprisonment and three years’ supervised release on each count and ordered to pay restitution of $2,966,591.30.

Counsel first examines whether Wolf could challenge his guilty pleas on the basis that the district court failed to comply with Fed.R.Crim.P. 11, and we agree that any such challenge would be frivolous. We note that Wolf has not evidenced, either in the district court or in his Rule 51(b) response in this court, a desire to challenge the district court’s compliance with Rule 11; as such, counsel did not need to raise this issue in his Anders brief. United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). In any event, the district court substantially complied with Rule 11, which is all that we require. See United States v. Schuh, 289 F.3d 968, 975 (7th Cir.2002). While the court failed to explain to Wolf that any false answers he gave during his change-of-plea colloquy could subject him to prosecution for perjury, see Rule 11(c)(5), that omission was harmless because there is no suggestion that Wolf is subject to a current or prospective prosecution for perjury. United States v. Graves, 98 F.3d 258, 259 (7th Cir.1996). Additionally, while the court did not explain to Wolf the effect of a term of supervised release, see Rule 11(c)(1), [19]*19that was harmless error because the maximum sentence Wolf could face if his supervised release were revoked (eight years) is less than the maximum sentence of imprisonment Wolf could have received (and of which he was informed) for all of his counts of conviction if the sentences were imposed consecutively (65 years). See 18 U.S.C. § 3584 (court may impose sentences concurrently or consecutively); Schuh, 289 F.3d at 975; see also United States v. Prado, 204 F.3d 843, 846 (8th Cir.) (failure to inform defendant of effect of supervised release harmless error because there was no evidence he would not have pleaded guilty if he had been properly informed), cert, denied, 531 U.S. 1042, 121 S.Ct. 638, 148 L.Ed.2d 544 (2000).

Counsel next examines whether Wolf could argue that the district court ■ abused its discretion by denying his motion to withdraw his guilty plea. After he pleaded guilty but before he was sentenced, Wolf moved to withdraw his guilty pleas purportedly because he had received ineffective assistance of counsel, had pleaded guilty for reasons other than his factual guilt, and the government had breached the plea agreement. The district court denied the motion, finding that the government had not breached the agreement and that Wolf had not received ineffective assistance or proved that he was innocent of the charges against him. Counsel first considers whether Wolf could argue that his plea was not knowing and voluntary due to the fact that he pleaded guilty solely because he believed that he was not receiving adequate medical attention at the Metropolitan Correctional Center and thought that he would get better treatment if he pleaded guilty and was transferred to another facility. But the fact that a defendant pleaded guilty because he believed he would receive better medical treatment if he did so does not constitute a “fair and just reason” for allowing him to withdraw his plea. See Fed.R.Crim.P. 32(e); United States v. Black, 201 F.3d 1296, 1299-1300 (10th Cir.2000).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth, Aplt. v. Carrasquillo, J.
115 A.3d 1284 (Supreme Court of Pennsylvania, 2015)
Tyra, Lemuel v. United States
270 F. App'x 410 (Seventh Circuit, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
44 F. App'x 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wolf-ca7-2002.