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Criminal Defense Attorneys

Ineffective Assistance of Counsel Claim Rejected

To establish ineffective assistance of counsel under the two-part Strickland v. Washington test, one must show: (1) that his counsel’s advice to plead guilty was not “within the range of competence demanded of attorneys in criminal cases;” and (2) “that there is no reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart (1985) 474 U.S. 52, 56-58 (citing Strickland v. Washington (1984) 466 U.S. 668).

The following case summary involves an appeal to the U.S. Ninth Circuit Court of Appeals from a ruling by Virginia Phillips in the Central District.

Gregory Silveira appealed the denial of his motion under 28 U.S.C. § 2255 to vacate his conviction and sentence for money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i).  In his motion to vacate, Silveira argued that due to ineffective assistance of counsel, his guilty plea was not knowing and voluntary.  Judge Phillips denied Silveira’s motion, finding he failed to make such a showing.

A bit of factual background is helpful to understanding the framework of the appeal to the U.S. Ninth Circuit Court of Appeals in Pasadena.

Since at least February 2010, Silveira participated in the operation of an illegal gambling operation, which accepted and placed bets on sporting events.  In late March 2010, Silveira received into once of his bank accounts a wire transfer of approximately $2.75 million that he knew represented proceeds from illegal sports betting.  On March 29, 2010, he transferred those funds, in two transactions, into a second bank account that he controlled , and the next day, he transferred most of those funds into a third account that he also controlled.

After his plea colloquy under Federal Rule of Criminal Procedure 11, the district court found that there was an adequate factual basis for the plea and that the plea was knowingly and voluntarily made.

Prior to sentencing, Silveira obtained new counsel and sought to withdraw his guilty plea.  The district court denied the motion, as well as Silveira’s motion for reconsideration.  He was then sentenced to federal prison for 12 months and one day.

Silveira then appealed the denial of his motion to vacate his conviction and withdraw his plea to the U.S. Ninth Circuit.  Silveira argued that his attorney never discussed with him the meaning “of the word proceeds,” but had simply told him that the “funds received from the gambler were tainted and that the transfer of those funds was money laundering.”  Silveira contends that he could not have engaged in illegal gambling without knowing about a separate underlying criminal offense. i.e., the betting.  Instead, Silveira was accepted the money, not knowing the money was “proceeds” from betting.

The reader will, at this point, perhaps ask oneself rhetorically, “well, if he did not know where $2.75 million arose from, why did not he ask and why then did he transfer the money to other accounts that he controlled?”

The court of appeals noted that California law applied to the underlying gambling activity in this case, imposes criminal punishment on anyone, who inter alia, “receives, holds, or forwards . . . any money, thing or consideration of value, . . . staked, pledged, bet or wagered, or to be staked, pledged, bet or wagered, or offered for the purpose of being staked, pledged, bet or wagered, upon the result, or purported result,” of any “contest . . . of skill” or “any lot, chance, casualty, unknown or contingent event whatsoever.”  See Cal. Penal Code § 337a(a)(3).

Consequently, since Silveira conceded that he received money he knew to be in payment of a sports gambling debt, he “received” money that was to be paid over as funds “bet or wagered” on a “contest . . . of skill,” and so he violated Penal Code § 337a(a)(3) upon receiving that money. 

And by knowingly receiving these funds as a “conduit from the gambler for forwarding to the bookmaking operation, Silveira thereby “conducted part of an illegal gambling business in violation of 18 U.S.C. § 1955(a).  See Sanabria v. United States (1978) 437 U.S. 54, 70 n. 26 (“Numerous cases have recognized that 18 U.S.C. § 1955 proscribes any degree of participation in an illegal gambling business except participation as a mere bettor.”).  In other words, Silveira acted as a financial intermediary between the gambler and the bookmaker, he is not a mere bettor.  On the contrary, such a person plays an integral part in the maintenance of illegal gambling and is therefore included within the scope of § 1955.  United States v. Sacco (9th Cir., 1974) 491 F. 2d 995, 1003.

Therefore, the Ninth Circuit affirmed the district court’s denial of the motion for reconsideration.

While illegal gambling rarely is prosecuted in either state court or federal court, we offer this short summary to exemplify how closely the appellate court will consider the case facts, as it did here.

For more information about ineffective assistance of counsel (IAC), please click on the following articles:
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