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Torzala v. United States

September 19, 2008


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 04 C 813-Rudolph T. Randa, Chief Judge.

The opinion of the court was delivered by: Williams, Circuit Judge.


Before RIPPLE, MANION, and WILLIAMS, Circuit Judges.

Christopher Torzala pled guilty to one count of obstruction of justice in violation of 18 U.S.C. § 1503. He then filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, arguing that his conduct did not constitute a crime. Because we find that Torzala knowingly and voluntarily entered into his guilty plea and that he received effective assistance of counsel, we affirm the district court's denial of Torzala's motion.


Christopher Torzala was a licensed real estate broker operating Torzala Realty in Milwaukee, Wisconsin. Through a mutual acquaintance, he met Kirk Polinske, a loan originator at Bayshore Mortgage. Bayshore Mortgage arranged financing through out-of-state lenders.

Torzala had a portfolio of around thirty investment properties that he sought to sell. Polinske told Torzala he could help him sell the properties but that Torzala would need to pay him $5,000 for every property that closed. Polinske also told Torzala that the deals would have to be "structured," meaning that Torzala had to bring his own funds to the closing to cover the costs traditionally paid by the buyer, including closing costs, down payments, and second mortgages. These contributions would not be reflected on the closing documents.

On June 14, 2002, an FBI agent interviewed Torzala. Torzala later admitted making several false statements during that interview, including that he had never provided funds to a buyer at closing in order to falsify equity in a deal. And although Torzala stated during the interview that he did not know any of the participants in ongoing mortgage fraud at Bayshore, he later acknowledged that he knew that Polinske and others at Bayshore had engaged in fraud during a number of real estate transactions, including those involving Torzala. Torzala also later admitted that he knew at the time he spoke with the FBI agent that the FBI was investigating Polinske and Torzala's own transactions.

Three months after Torzala spoke with the FBI agent, a grand jury indicted Daniel Wichman, the head of Bayshore Mortgage, on counts of fraud and money laundering. Bayshore employees John McGowan and Todd McGowan had been indicted in 2000 and pled guilty the following year. Polinske received immunity from the government for his cooperation.

In Torzala's case, the government filed a one-count information in federal court alleging that he obstructed justice in connection with an investigation of "property flipping and other fraudulent real estate practices," in violation of 18 U.S.C. § 1503. The charge further alleged that the investigation was part of ongoing judicial proceedings, "including grand jury and other criminal proceedings," and that Torzala endeavored to obstruct justice by lying to the FBI about his knowledge of property flipping activity. That same day, the parties filed a plea agreement in which Torzala agreed to plead guilty to the single charge. He later formally entered his guilty plea and eventually received a sentence of eighteen months' imprisonment and two years' supervised release. The government had initially suggested a lower sentence, but after Torzala showed up at the Milwaukee airport two days before his sentencing ready to board a flight to New Zealand with over $13,000 in cash, a cashier's check for $10,000, more than twenty credit cards, and thirty-eight blank checks in hand-all while under order not to leave the state-the government changed its sentencing recommendation.

Torzala did not take a direct appeal. Instead, he filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Torzala did not submit any affidavits in support of his motion, and the district court denied the motion without holding a hearing. Torzala appeals.


Torzala seeks relief under 28 U.S.C. § 2255, which allows "[a] prisoner in custody" to seek relief. That Torzala is no longer in custody or on supervised release, and had neither status at the time the district court denied his motion, does not preclude our review. Torzala was in custody when he filed the motion, and that is all that is required to be "in custody" under the statute. See Spencer v. Kemna, 523 U.S. 1, 7 (1998); Virsnieks v. Smith, 521 F.3d 707, 717-18 (7th Cir. 2008) (discussing "in custody" requirement). Moreover, we presume collateral consequences from his criminal conviction. See Spencer, 523 U.S. at 12; A.M. v. Butler, 360 F.3d 787, 790 n.4 (7th Cir. 2006). Torzala asserts, and the government does not dispute, that he continues to suffer adverse consequences from his conviction in, for example, the inability to possess firearms lawfully. See 18 U.S.C. § 922(g)(1) (prohibiting felons from possessing firearms); Gentry v. Deuth, 456 F.3d 687, 695 (6th Cir. 2006). As a result, the matter is not moot, and we proceed to review Torzala's claim. In doing so, we review the district court's findings of law de novo and its findings of fact for clear error. Bethel v. United States, 458 F.3d 711, 716 (7th Cir. 2006).

Torzala argues that he "was induced to plead guilty by his defense attorney, the prosecutor and the presiding judge" because they "convinced him that he was guilty" of committing obstruction of justice in violation of 18 U.S.C. ยง 1503. Although Torzala contends that the record contains insufficient proof that he was guilty of the crime to which he pled, he does not maintain that he is actually innocent of obstructing justice. Cf. Davis ...

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