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U.S. v Muhammad

Case No. 13-5040 (C.A. 10, Apr. 9, 2014)

Defendant Sevgi Muhammad was indicted in the United States District Court for the Northern District of Oklahoma on 24 counts of mail fraud under 18 U.S.C. § 1341, two counts of making a false statement under 18 U.S.C. § 1001(a)(2), and one count of stealing public money under 18 U.S.C. § 641. All the charges arose out of Defendant’s obtaining housing assistance through the Housing Choice Voucher Program of the United States Department of Housing and Urban Development (HUD). She pleaded no contest to one count of making a false statement. At the outset of her sentencing hearing, however, she moved to withdraw her plea. The district court later held an evidentiary hearing, denied the motion, and sentenced Defendant to serve three years of probation and pay $1,698 in restitution.

On appeal Defendant argues that her plea was not knowing and voluntary and that the district court erred when it denied her motion to withdraw the plea. She argues that her plea was not valid because she did not know (1) that a no-contest plea would have the same “attendant consequences” as a finding of guilt, Aplt. Br. at 9; (2) that the plea would result in a felony conviction and a finding of guilt; (3) that the conviction would make it difficult to obtain credit, employment, federal financial aid, and Section 8 housing; and (4) that the conviction would preclude her from firearm ownership and render her testimony in court suspect. But the law does not require a defendant to be informed of the collateral consequences of a plea, and the district court properly found that she knew that her plea would lead to a finding of guilt of the offense charged. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND



A. Indictment



Defendant came to the United States from Turkey, and has a son who was born here. According to the indictment, from May 2004 to August 2009 Defendant received HUD rent subsidies based on her false statements in a written application and recertification forms that she was not receiving any income from any source. The indictment stated that she improperly received $8,351 in subsidies.
 

 

Judge(s): Harris Hartz
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Related Categories: Contracts , Criminal Justice , Employment , Government / Politics , Immigration , International , Torts
 
Circuit Court Judge(s)
Harris Hartz
Jerome Holmes
Terrence O’Brien

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Leena Alam U.S. Department of Justice
Dennis Fries U.S. Department of Justice
Danny Williams, Sr. U.S. Department of Justice

 
Defendant Lawyer(s) Defendant Law Firm(s)
Fred Lynn

 

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Click the maroon box above for a formatted PDF of the decision.
repeating them. and every time mr. widell was, you the court: mr. widell [defense counsel], given the expedited nature id. at 185. the court also found persuasive that defendant clearly understood the morever, upon accepting her he had advised defendant to enter a conditional plea, allowing her to appeal the ruling. that she did not understand the meaning of a term in the petition or used during the plea gone over the entire plea petition and that you understood it? english better than she had indicated. her 2003 asylum petition stated that she was fluent the defendant: yes. nature of the federal sentence are not direct consequences.” united states v. hurlich, 293 her by her attorney and that she did not know what the word “fluent” meant. also, an render her testimony in court suspect. but the law does not require a defendant to be a: that’s right. even though they took an oath that they would? united states court of appeals clerk of court the northern district of oklahoma on 24 counts of mail fraud under 18 u.s.c. § 1341, other counts.” id. at 56. stealing public money under 18 u.s.c. § 641. all the charges arose out of defendant’s out what she told me. of guilt could be drawn from [her] decision,” and that if she chose to have a jury trial she q: you told the court that you had gone over the petition with your section 8 housing and federal financial aid, and that her conviction would preclude her 7 2 that the “no-contest plea would result in a finding of guilt to a felony.” id. at 173. but 12 petition and you understood it? plea. a defendant is allowed to withdraw her plea before sentencing if she “‘can show a a: whatever i understood, i said yes to it. the court: do you understand the nature of the charge to which you guilt,” the government would “not object to a probated sentence” and would “dismiss all civil-service job and conviction was for a felony); see also united states v. youngs, 687 a: i didn’t read anything. i just understood whatever the interpreters that are by their nature improper as having no proper relationship to the finding of guilt. same “attendant consequences” as a finding of guilt, aplt. br. at 9; (2) that the plea discretion, and “[a]lthough a motion to withdraw a plea prior to sentencing should be the defendant: yes. had been filled out by a friend. finally, the probation officer who worked with defendant sevgi muhammad was indicted in the united states district court for counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial we affirm defendant’s conviction and sentence. defendant to prepare her presentence report testified that he spoke to her entirely in ground “that it wasn’t knowingly made,” id. at 38, because she did not understand that have gone over” with defendant the portions of the petition that the witness had not gone april 9, 2014 colloquy. the witness then said that she did not “remember one way or the other” 1271, 1273 (10th cir. 2009) (quoting fed. r. crim. p. 11(d)(2)(b)). to determine a. indictment tenth circuit other interpreter, to interpret the plea petition for the c. evidentiary hearing just reason” for permitting withdrawal. fed. r. crim. p. 11(d)(2)(b); see garcia, 577 r., vol. 2 at 162–63. “[t]here is no requirement that a defendant be advised of all potential collateral application for food stamps indicated she spoke english, but defendant claimed that form prosecutor, she responded as follows: as trial was set to begin on november 19, 2012, defendant’s attorney informed claim that she was not informed that as a result of her plea, she would have a felony have to pay, so her main questions were those. she kept defendant came to the united states from turkey, and has a son who was born hud rent subsidies based on her false statements in a written application and q: you had told the court that you had gone over the entire plea turning to defendant’s challenge to her plea, we first address her undisputed correct and complete? the district court that she “[was] indicating that she [did] not wish to go to trial and united states court of appeals omitted). during the plea colloquy defendant responded that she could read, write, and defendant and we were told to read the plea petition to her, supreme court has declared: wherein the petition states that the government will dismiss all other counts now— him about any defenses and any information available to” her, and that she was questions were put to mr. widell about a finding of guilt, but it’s clear that the district court denied defendant’s motion to withdraw her plea, stating: know, within reach, we asked him. was waiving, including that “if [she] decided not to take the witness stand, no inference crossed out in several places and replaced by “no contest,” and the form’s blank lines resources.” id. at 1273–74 (internal quotation marks omitted). we review for abuse of courtroom or came back near us. but at no point she was . . . . petition, that you had read it, and understood the entire petition. (“accuracy and completeness”), 8 (“assessing and reporting impediments to withdraw defendant’s plea. her testimony on direct examination by defense counsel supported before hartz, o’brien, and holmes, circuit judges. 8 are pleading no contest? (revocation of pilot’s license); united states v. campusano, 947 f.2d 1, 4–5 (1st cir. a: whatever i understood, i’d like to talk about it now. serve up to five years in prison and pay a fine of up to $250,000. and she stated that she finding of guilt, but he was not sure if he explained in any other way that a no-contest 5 f.3d at 1274–75. oklahoma, for plaintiff – appellee. attorney, the entire petition. do you remember doing that? the defendant: yes. jury,” and that the government would dismiss the other charges against her “upon f.3d 1268, 1279 (10th cir. 2013) (brackets and internal quotation marks omitted). as the also during the plea colloquy, the district court verified that defendant was familiar with b. refusal to allow withdrawal of plea defendant “sat down with the interpreters and we went through [the plea petition] line by her plea was not valid because she did not know (1) that a no-contest plea would have the leena alam, assistant united states attorney, (danny c. williams, sr., united states punishment as if i had pleaded ‘not guilty,’ stood trial, and been convicted by a the defendant: yes. would result in a felony conviction and a finding of guilt; (3) that the conviction would completely satisfied with his services. id. at 21. told her that the court would find her guilty. directions and answer[ed] his questions appropriately.” id. at 88. orientation-manual.pdf (last revised jan. 14, 2014). and understood everything. understand english “[a] little,” id., vol. 2 at 20, and two turkish interpreters were except you don’t have to say that you did anything wrong.” r., vol. 2 at 120. and the not told that this would be found guilty. she was just told plea of no contest, this court finds her guilty as charged . . . .” id. at 33. it set sentencing court, defendant waived them and we need not consider them further. see united states you in its entirety? fred randolph lynn, tulsa, oklahoma, for defendant – appellant. acceptance of plea & finding of guilt.” r., vol. 1 at 56.1 be untrue). accordingly, we review the factual record in the light most favorable to the to guilt. filed issue may depend on fact finding. and we review the district court’s findings of “could not be convicted unless all 12 members of the jury agreed that [her] guilt of the read to her in full. when first questioned about the matter on cross-examination by the testified that when she pleaded no contest she did not know that the plea would result in a hartz, circuit judge. [prosecutor]: you had indicated that you were left alone, you and the [interpreter]: we tried our best. recertification forms that she was not receiving any income from any source. the said that he had. id. at 169. the cross-examination concluded with her testimony that conviction. if the motion was granted, he was prepared to go to trial; but if it was denied, to prepare, the court conducted the plea proceeding, complying fully with fed. r. crim. courts, federal court interpreter orientation manual and glossary, federal court 6 of these consequences was necessary for a plea to be knowing. and courts have ruled intelligent.” id. at 1296. “consequences of a guilty plea unrelated to the length and several of those she names. see united states v. nicholson, 676 f.3d 376, 382 (4th cir. defendant also challenges the district court’s denial of her motion to withdraw her line.” id. at 125. when they went over the section that referenced a finding of guilt, he [interpreter]: the legal wording can be very confusing for everyone and publish the defendant: yes. 2011) (contention that plea was invalid was based on assertion that district court found to plaintiff - appellee, q: did your interpreters go over the plea petition with you? acceptance of that plea, that there will be a finding of guilt. “had enough time to fully confer” with her counsel, that she had “fully conferred with counsel to withdraw from the case and said that a hearing would be scheduled later. id. at 24, 30–31. defendant expressed her understanding that she could be sentenced to make it difficult to obtain credit, employment, federal financial aid, and section 8 standards_for_performance.pdf (last visited mar. 25, 2014); admin. office of the u.s. historical fact for clear error. see united states v. soto, 660 f.3d 1264, 1268 (10th cir. “to be valid, a guilty plea must represent a voluntary and intelligent choice among 4 petition read to [defendant]? contrary to the statement contained on page 2 of the written petition the validity of the plea “is generally a question of law subject to de novo review.” the district court accepted the plea and concluded, “based upon [defendant’s] defendant and could not “doubt or not doubt” whether mr. widell was correct when he f.3d 56, 61(2nd cir. 2012) (possibility of civil commitment after serving criminal a: whatever that was that they told me, i listened to it. if they didn’t plea petition was on a printed form for pleas of guilty. in handwriting, “guilty” was the district court erred when it denied her motion to withdraw the plea. she argues that performance”), http://www.uscourts.gov/ uscourts/federalcourts/interpreter/ on appeal defendant argues that her plea was not knowing and voluntary and that that she knew that her plea would lead to a finding of guilt of the offense charged. b. plea bargain one of the interpreters at the plea hearing also testified at the hearing on the motion to id. at 75–76. (d.c. no. 4:12-cr-00162-gkf-1) states department of housing and urban development (hud). she pleaded no contest did not understand that it would result in a finding of guilt and because she did not a: i don’t speak english that well; somebody has to guide me. told me whatever my attorney told them. ask my interpreter to find defendant’s position. she said: we see no abuse of discretion in the district court’s ruling. there was no “fair and probation and to dismiss the other charges. further, she responded affirmatively that she read and explain the plea petition to [defendant]? plea and a guilty plea would have the same consequences. see id. at 120–21. he and ii. discussion f.3d 1223, 1231 (10th cir. 2002). from owning a firearm and would subject her future testimony to impeachment. in our prevented raising the argument below.” (internal quotation marks omitted)). defendant - appellant. q: you had the opportunity to talk about it then, did you not? 13 [defense counsel]: to be clear, are you saying that mr. widell did not understand some of the language: that? . . . . q: ma’am, my question to you is—has nothing to do with the no informed of the collateral consequences of a plea, and the district court properly found obtaining housing assistance through the housing choice voucher program of the united didn’t understand what ‘no contest’ was. and we had to there were many sentences we didn’t understand, but her that there would be a finding of guilt. see id. at 185–87. brady v. united states, 397 u.s. 742, 755 (1970) (emphasis added) (internal quotation construing the evidence in the light most favorable to the decision below, we does not appear, if the recollection of [the interpreter] is correct, that any [interpreter]: that’s right. [prosecutor]: did you do that? that defendants do not need to be aware of collateral consequences similar or identical to court finds her guilty as charged . . . ,” id., vol. 2 at 33, yet there was no objection to this 1 innocence—was attenuated because her prior no-contest plea itself essentially claimed and we didn’t understand some parts of it. i definitely the primary issue here is whether the plea was knowing and voluntary, and two counts of making a false statement under 18 u.s.c. § 1001(a)(2), and one count of having worked in state and federal courts, and that she never indicated to the district court 1991) (use in evidence in federal trial of defendant’s guilty plea in state prosecution); 10 the court: have you received a copy of the indictment pending against you? the interpreter: i’m sorry? read me everything, they didn’t read it to me. you can ask my including the actual value of any commitments made to him by the court, defendant; is that correct? housing; and (4) that the conviction would preclude her from firearm ownership and omitted). but she was unwilling to assert under oath that the plea petition had not been raised for the first time on appeal unless a party demonstrates an impediment which fair and just reason for requesting the withdrawal.’” united states v. garcia, 577 f.3d present. she said that it had been her intent to go to trial, but that morning she had court interpreters in the federal courts, federal court interpreters on u.s. courts, ¶¶ 1 plea, the district court announced, “based upon [defendant’s] plea of no contest, this marks omitted). “by using the word ‘direct,’ the court excluded collateral id. at 66–67. later the matter arose again: a. whether defendant’s plea was knowing and voluntary consequences.” united states v. krejcarek, 453 f.3d 1290, 1297 (10th cir. 2006). english, that she seemed to understand what he was saying, and that she “follow[ed] the united states of america, her son, would she go to prison, and how much she would the contention made by the defendant here is that she did not know that by iii. conclusion 14 that the plea petition was not read to the defendant by the interpreters. it innocence. defendant’s brief on appeal argues that all the factors weighed in her favor. elisabeth a. shumaker (including unfulfilled or unfulfillable promises), or perhaps by promises for march 5. on that date defense counsel orally moved to withdraw her plea on the the indictment and her plea petition: freely allowed, we will not reverse a district court’s decision unless the defendant can united states v. crowley, 529 f.2d 1066, 1072 (3rd cir. 1976) (defendant would lose tenth circuit the defendant: yes. translation was the interpreter’s assertion that she did not know the meaning of “no the district court considered the seven relevant factors and ruled that (1) all but a: they read me part of it. she had “interpreted correctly to the court when [defendant] told the court that she had something wrong,” so he suggested that she enter a no-contest plea instead. id. at 117. p. 11(b). defendant pleaded no contest to one count of making a false statement. the the handwritten portions was the statement that “upon acceptance of plea & finding of not want to wait until a ruling on the motion in limine. the interpreters were present for consequences of a guilty plea in order for that plea to be voluntary, knowing, and and pay $1,698 in restitution. conclude that defendant’s plea of no contest was knowing and voluntary. upon acceptance of plea and finding of guilt. there is no contention here the court: have you read it or had it read to you in turkish? hearing, denied the motion, and sentenced defendant to serve three years of probation a: no. everyone was rushing that day. whether there is a fair and just reason, the court examines seven factors: “(1) whether the q: did you tell the court at the change-of-plea hearing that you had . . . . understand the difference between a plea of no contest and a plea of guilty. but her http://www.uscourts.gov/uscourts/federalcourts/interpreter/federal-court-interpreter- that contention, and the only issue raised by defendant regarding the accuracy of the the u.s. courts, standards for performance and professional responsibility for contract here. according to the indictment, from may 2004 to august 2009 defendant received defendant. but there was no evidence (not even defendant’s own testimony) to support wishe[d] to accept the government’s offer.” r., vol. 2 at 11. after giving counsel time upon entering a no-contest plea she would be found guilty. the court allowed defense were filled in with the description of the plea agreement. id., vol. 1 at 55‒59. among the court: very well. [defendant], has the petition been read to you was not relying on any promise besides the government’s promise not to oppose interpreter. gone over the entire plea petition,” id. at 171, and that the other interpreter “may well 15 2012) (loss of federal benefits); kratt v. garvey, 342 f.3d 475, 485 (6th cir. 2003) essential elements of the crime had been proven by beyond a reasonable doubt.” id. at [interpreter]: me and the other interpreter were left alone with the v. the court: are all of the statements contained in that petition true, contest.” of course, it would be a gross dereliction of duty for an interpreter not to insist united states v. vidal, 561 f.3d 1113, 1118 (10th cir. 2009). but resolution of the legal a plea of guilty entered by one fully aware of the direct consequences, in english, although she testified that she had just copied from a document filled out for a: i don’t believe that they were wrong—wrongdoing of anything. a: i would— here of the plea, have we had time to have the entire he explained to her that “[a] no contest plea is the same thing as a guilty plea, except you [prosecutor]: when you say you tried your best, what do you mean by the first weighed against defendant and (2) the favorable weight of the first—assertion of translating the entire petition to which she could attest was that the interpreters did not (possible life commitment as a sexually dangerous person is collateral consequence). id. at 164. the prosecutor further elicited that the witness was an experienced interpreter, show that the court acted unjustly or unfairly.” id. at 1274 (internal quotation marks 22–23. that she would not have to stand before the judge and admit at the hearing the government also presented evidence that defendant understood would grant a motion in limine to exclude evidence of defendant’s previous foreign 11 for the northern district of oklahoma on cross examination, however, the interpreter clarified that the only shortcoming in q: so now you’re saying your interpreters failed to read you everything and it was a few pages, i can’t remember how many pages, whether defense counsel went over the handwritten portions of the petition with guilty plea, but mr. widell thought she was “unlikely to admit that she had done to one count of making a false statement. at the outset of her sentencing hearing, the petition itself states that upon her plea of no contest, and the court’s on clarification of the meaning of a term that was to be translated. see admin. office of on the morning set for trial, however, she told him that she did not want a trial and did appeal from the united states district court q: now you’re telling us that you only went over part of it? [defense counsel]: we have, your honor. q: at the time you told the court that you had read the entire plea have told me. they told me. sentence is collateral consequence); steele v. murphy, 365 f.3d 14, 18 (1st cir. 2004) there was no evidence that any other specific language had been difficult to translate. here that the plea petition was not read to the defendant by the interpreters,” r., vol. 2 at view, these consequences of her plea are collateral consequences that she need not know v. moland, 996 f.2d 259, 261 (10th cir. 1993) (“we will not consider issues which are 9 no. 13-5040 he said the following: on the day of trial he first wanted to see whether the district court however, she moved to withdraw her plea. the district court later held an evidentiary district court’s ruling. see united states v. cruz, 58 f.3d 550, 553 & n.3 (10th cir. over, id. at 172. on redirect, defense counsel elicited that the witness did not understand potential sentence she could receive under the plea, which implied that she understood entering a plea of no contest that she would be found guilty. that is to enter a valid plea. defendant cites no case where a court found that knowledge of any simply said, “just say ‘no contest’ and trust me.” id. at 55 (internal quotation marks a: whatever my interpreters told me i said yes. just my interpreters attorney testified that he told her that “a no-contest plea is the same thing as a guilty plea, the district court may have overstated the point by saying that there was “no contention this conversation between counsel and client. defendant was originally going to enter a defendant next argues that her plea was not knowing and voluntary because she mark the questions and ask them when he came back in the promises to discontinue improper harassment), misrepresentation don’t have to say that you did anything wrong.” id. at 120. he told her there would be a the court: and it is a rather long indictment. have you had it read to plea was knowing and voluntary. by not raising arguments on the other factors in district 185, because defense counsel did contend that not all of the petition was read to prosecutor’s business (e.g. bribes.). the testimony of defendant’s original attorney, william widell, did not help her. the alternative courses of action open to the defendant.” united states v. dunbar, 718 [interpreter]: yes, sir. attorney, and dennis a. fries, assistant united states attorney, on the brief), tulsa, prosecutor, or his own counsel, must stand unless induced by threats (or in turkish? plea petition itself states that if she pleads no contest, “the court may impose the same they just followed my attorney. whatever my attorney told them . . . . indictment stated that she improperly received $8,351 in subsidies. 1995). but her district-court brief, although citing the seven factors, discussed only whether her 3 conviction, she would have difficulty in obtaining credit, securing employment, obtaining q: you told the court that you did go over everything, that you had read march 22, 2013. the evidentiary hearing was held on april 2. at the hearing defendant defendant has asserted [her] innocence, (2) prejudice to the government, (3) delay in contest right now, it has to do with the plea petition. interpreters on u.s. courts, ch. 3 § iv (“accuracy of performance”), sevgi q. muhammad, felony conviction. she asserted that her attorney did not explain her punishment and filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of i. background exercising jurisdiction under 28 u.s.c. § 1291, we affirm. defendant, represented by new counsel, filed a motion to withdraw her plea on decided to enter a plea to one count. she further said that she understood the rights she main question was would she be deported, would she lose


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