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SILVA v. U.S.

November 24, 1999

TONY SILVA, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Bucklo, District Judge.

  MEMORANDUM OPINION AND ORDER

Tony Silva pled guilty to conspiring to smuggle wildlife and filing a false tax return, and was sentenced to a term of imprisonment of 82 months. Mr. Silva now moves for habeas corpus pursuant to 28 U.S.C. § 2255. For the following reasons, Mr. Silva's petition for habeas corpus is denied.

Background

Tony Silva is internationally recognized as an expert on rare birds. In 1996, Mr. Silva pled guilty to a conspiracy involving smuggling birds in violation of various wildlife laws, and to filing a false tax return. According to the facts admitted in the plea agreement, between 1986 and 1991 Mr. Silva conspired with Gila Daoud (his mother) and several other co-conspirators to smuggle protected birds into the United States. Many of the smuggled birds were obtained illegally in South America by a co-conspirator and sold to another co-conspirator, who would mingle the birds with legally obtained birds and ship them to the United States. At a quarantine station, Mr. Silva and a co-conspirator would remove the illegally obtained birds while the United States Department of Agriculture employee was distracted. Subsequently Mr. Silva would sell the illegally obtained birds.

In the plea agreement Mr. Silva also admitted that between 1986 and 1988, he used other exporters in South America to smuggle various birds into the United States. In 1989, Mr. Silva purchased numerous Hyacinth Macaws that a co-conspirator captured in the wild, and he provided the funds for the macaws to be brought to Mexico. Mr. Silva moved to the Canary Islands to serve as curator at a private bird sanctuary in 1989, but until 1991 he continued his efforts to import into the United States the macaws being held in Mexico. Mr. Silva further admitted, for the purposes of relevant conduct for sentencing, selling various birds between 1989 and 1991. The government and Mr. Silva agreed to disagree on the application of the sentencing guidelines.

A sentencing hearing was held, and after three days of testimony from co-conspirators and a government informant, James Mackman, Mr. Silva moved to withdraw his guilty plea. Mr. Silva argued that when he moved to the Canary Islands in 1989 his participation in the conspiracy ceased. According to Mr. Silva, he only pretended to continue to participate so that his birds would not be abandoned. Mr. Silva's motion to withdraw his guilty plea was denied, and the denial was upheld by the Seventh Circuit on appeal. United States v. Silva, 122 F.3d 412 (7th Cir. 1997). Ultimately Mr. Silva was sentenced to 82 months in prison. Mr. Silva now moves for habeas corpus review pursuant to 28 U.S.C. § 2255 on two grounds, ineffective assistance of counsel and the government's failure to disclose exculpatory material.

Ineffective Assistance of Counsel

To prevail on his ineffective assistance of counsel claim. Mr. Silva must establish both "that counsel's representation fell below an objective standard of reasonableness" and that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove the second prong, prejudice, with respect to his guilty plea, Mr. Silva must demonstrate "that there is a 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, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

Mr. Silva was represented by David Schippers throughout his plea negotiations, sentencing, and direct appeal. The grounds alleged by Mr. Silva for his ineffective assistance of counsel claim can be divided into seven categories: 1) Mr. Schippers incorrectly advised Mr. Silva about the statute of limitations; 2) Mr. Schippers failed to move for a bill of particulars on the conspiracy count; 3) Mr. Schippers worked under a conflict of interest; 4) Mr. Schippers coerced Mr. Silva into pleading guilty; 5) Mr. Schippers forced Mr. Silva to meet with government agents and to appear before the grand jury; 6) Mr. Schippers failed to investigate the case properly; and 7) Mr. Schippers failed to develop a theory of defense.

A. Statute of Limitations

According to Mr. Silva, Mr. Schippers incorrectly advised him that the statute of limitations on the conspiracy claim went back 10 years rather than 5 years. Mr. Silva argues that, if he had known the statute of limitations only went back 5 years, he would not have pled guilty to the conspiracy count. Pursuant to 18 U.S.C. § 3282, an indictment must be returned within five years of the commission of the offense. Count one of the indictment, to which Mr. Silva pled guilty, charges Mr. Silva with a conspiracy against the United States under 18 U.S.C. § 371. "Conviction requires proof `that the conspiracy still subsisted within the [five] years prior to the return of the indictment, and that at least one overt act in furtherance of the conspiratorial agreement was performed within that period.'" United States v. Nowak, 448 F.2d 134, 139 (7th Cir. 1971) (quoting Grunewald v. United States, 353 U.S. 391, 396, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957)).

The crucial question is "the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy." Grunewald, 353 U.S. at 397, 77 S.Ct. 963. Count one of the indictment charges that the conspiracy began on or about July 1985 and continued through January 1992. The indictment containing count one was returned in December 1994. of the 50 overt acts charged, 25 occurred within five years of December 1994, from April 1990 until January 1992. In an affidavit Mr. Schippers states that he was aware of the five-year statute of limitations in conspiracy cases, and that he explained to Mr. Silva that if the government established an overt act within that period, the government could go back to the beginning of the conspiracy and introduce evidence relating to events that may have occurred ten or more years earlier. (Schippers Aff. at ¶ 16). If Mr. Schippers told Mr. Silva that the government "can go back 10 years," as Mr. Silva alleges, Mr. Silva cannot establish prejudice, because in the context of this case the government could have gone back 10 years (or more) at trial. One-half of the overt acts charged by the government occurred within five years of the return of the indictment.

Mr. Silva also argues that the statute of limitations waiver he signed on August 16, 1994 is invalid. According to Mr. Silva, Mr. Schippers agreed to the waiver to allow the government to have Mr. Silva indicted on counts outside the statute of limitations. The waiver extended the five-year limitations period until November 30, 1994. On November 30, Mr. Silva was charged in a one-count indictment with a violation of 16 U.S.C. ยง 3372 (a)(1) and 3373(d)(1) involving the August 24, 1989 sale of two Queen of Bavaria Conures, a protected species. Without the statute of limitations waiver, the government could not have brought that charge. In December 1994 a grand jury returned a 15-count superseding indictment, which includes the conspiracy count to which Mr. Silva pled guilty. Mr. Silva did not plead guilty to the count involving the Queen of Bavaria Conures. In addition, the conspiracy count as charged in the ...


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