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United States v. Velazquez

United States Court of Appeals, Seventh Circuit

November 20, 2014

EDWARD R. VELAZQUEZ, Defendant-Appellant

Argued: October 1, 2014.

Page 789

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:08-cr-00372-1 -- James B. Zagel, Judge.

For United States of America, Plaintiff - Appellee (14-1153, 14-1034): Brian Hayes, Attorney, Office of The United States Attorney, Chicago, IL.

For Edward R. Velazquez, Defendant - Appellant (14-1153, 14-1034): Daniel J. Hillis, Attorney, Office of The Federal Public Defender, Springfield, IL; John C. Taylor, Attorney, Office of The Federal Public Defender, Urbana, IL.

Before WOOD, Chief Judge, and RIPPLE and TINDER, Circuit Judges.


Page 790

Tinder, Circuit Judge.

While we presume many criminal defendants are less than enthused about attending their own court proceedings, Edward R. Velazquez's aversion to the inside of a courtroom was extraordinary. Velazquez, who had been indicted on various charges related to a fraudulent investment scheme, violated his bond just prior to his scheduled trial date and remained a fugitive for six months. Velazquez was eventually apprehended, and he then opted to plead guilty to a single count of mail fraud. Despite pleading guilty and thereafter being continuously in custody, Velazquez refused to be brought to court for seven consecutive hearings in the case. Finally, pursuant to a " drag order" by the district court, marshals forcibly brought Velazquez to court, and Velazquez sustained injuries in the process. The district court declined to enter another drag order, and Velazquez refused to appear for sentencing.

Page 791

The district court denied a motion to withdraw as counsel filed by Velazquez's retained lawyer and sentenced Velazquez in absentia.

Velazquez appeals, contending that the district court erred during the sentencing hearing by (1) denying counsel's motion to withdraw, (2) finding Velazquez to be voluntarily absent, and (3) failing to consider Velazquez's cooperation as a basis for a reduced sentence. We affirm.

I. Background

On May 8, 2008, a grand jury indicted Velazquez on charges of mail fraud, wire fraud, and transporting fraudulently obtained funds via interstate commerce. The indictment alleged that, in his role as president of V-Tek Capital, Inc., Velazquez devised and participated in a scheme to defraud investors by knowingly making materially false and fraudulent representations regarding V-Tek's " unique risk-averse" investment programs, which were " guaranteed" and " not subject to market risk" because a portion of the investment capital would be used to purchase United States Treasury " Zero-Coupon Bonds." The indictment alleged that Velazquez purchased no United States Treasury bonds, and instead misappropriated a substantial portion of investors' funds for his own personal use and benefit, and for the benefit of his girlfriend. The indictment alleged that Velazquez's scheme resulted in investor losses of $1,600,000.

On May 12, 2008, Velazquez, who was represented by retained counsel, was arraigned and then released on an own-recognizance bond.

On October 21, 2008, Velazquez's first counsel filed a motion to withdraw, attaching as an exhibit a letter from Velazquez terminating his representation. The district court granted the motion on November 4, 2008. On November 10, 2008, a federal defender filed an appearance on behalf of Velazquez. On March 24, 2009, the district court scheduled Velazquez's jury trial to begin on November 16, 2009.

On November 5, 2009, Velazquez failed to report to pretrial services as required by the conditions of his bond. On November 16, 2009, the district court vacated the trial date. On December 9, 2009, after pretrial services reported that it was unable to contact Velazquez, the district court issued a bench warrant for Velazquez's arrest. Nearly six months later, on June 2, 2010, Velazquez was located and, after refusing to obey the commands of deputy marshals, was restrained and arrested through the use of force. The district court then ordered Velazquez to be detained pending trial.

On October 12, 2010, Velazquez's third attorney, James Marcus (a retained attorney), was granted leave to file his appearance in the case, and Velazquez's second counsel was allowed to withdraw.

On February 23, 2011, two weeks before the reset trial date, Velazquez entered into a written plea agreement whereby he agreed to plead guilty to a single count of mail fraud. In the agreement, Velazquez acknowledged the truth of a detailed factual basis for his plea of guilty. The agreement contemplated that Velazquez would meet with the government in an attempt to provide substantial assistance in exchange for consideration at sentencing, and the agreement stated that the decision to move for a substantial-assistance reduction was within the sole discretion of the government.

On February 23, 2011, Velazquez engaged in a plea colloquy with the district court concerning his decision to enter into the plea agreement and plead guilty. While under oath, Velazquez said the following:

Page 792

he was satisfied with his attorney's advice and efforts on his behalf; the factual basis for the plea was true; no agreements or promises were made to him that were not contained in the plea agreement; and his decision to plead guilty was entirely voluntary. The district court accepted Velazquez's plea of guilty.

On February 3, 2012, the government reported to probation (for inclusion in the presentence investigation report) that Velazquez had met with the government on a number of occasions, but the government did not deem Velazquez to be a useful witness, and he had not provided substantial assistance to the government.

On May 31, 2012, defense counsel filed a motion to continue the sentencing date. The district court conducted a hearing on the motion on June 5, 2012. Attorney Marcus advised the district court that he was having difficulty communicating effectively with Velazquez. The district court vacated the sentencing date and set a status hearing for June 28, 2012, in order to learn whether Marcus was " able to solve the problem of communication."

On June 22, 2012, Marcus filed a motion to withdraw as counsel, citing " irreconcilable differences and defendant's refusal to speak and/or meet with [Marcus]." The district court conducted a hearing on the motion on June 28, 2012. Velazquez was not present for the hearing. Marcus stated that he prepared an order for Velazquez to be transported from the Metropolitan Correctional Center (" MCC" ) to court for the hearing. The judge said that it was " important ... to know whether he decided not to come over himself or whether [the marshal] just didn't bring him over," so the judge reset the hearing on the motion to withdraw for July 24, 2012.

On July 24, 2012, Velazquez again did not appear in court. The judge received information from the marshal's service that Velazquez was on the prisoner production list but he refused to come to court. The judge remarked that Marcus was Velazquez's third counsel, and told Marcus: " I hate to impose this upon you, but I'm going to set this for another day ... because I want to hear ...

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