Argued December 2, 2014.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:09-cr-00247-1 -- John F. Grady, Judge.
For United States of America, Plaintiff - Appellee: Christopher R. McFadden, Attorney, Office of The United States Attorney, Chicago, IL.
For Siamak S. Fard, Defendant - Appellant: Rosa A. Eliades, Attorney, Eliades Law, Pllc, Chicago, IL.
Before WOOD, Chief Judge, and WILLIAMS and TINDER, Circuit Judges.
Williams, Circuit Judge.
Siamak S. Fard pled guilty to one count of wire fraud pursuant to a blind plea. He later sought to withdraw his plea, alleging that it was not knowingly and voluntarily entered. The district judge conducted an evidentiary hearing to determine whether Fard's plea was based upon a representation by Fard's original defense counsel that the government had promised to dismiss the indictment if Fard pled guilty and cooperated. At the hearing, counsel denied having made such a statement. Rejecting Fard's testimony, the district judge
credited counsel's testimony and denied Fard's motion to withdraw his guilty plea. At sentencing, the judge increased Fard's guideline sentence, finding that he had obstructed justice by lying at the evidentiary hearing. He also denied Fard's motion for an acceptance of responsibility reduction, because Fard falsely denied his leadership role in the scheme. Now, Fard seeks to withdraw his guilty plea and challenges certain aspects of his sentence. We find that Fard's guilty plea was not knowing and voluntary, vacate his plea, and remand the case. Because we vacate Fard's plea, we will not address the arguments regarding his sentence.
On March 17, 2009, a federal grand jury in the Northern District of Illinois returned a three-count indictment charging Fard and two co-defendants with wire fraud in violation of 18 U.S.C. § 1343. Fard entered a plea of not guilty, and the government filed a superseding indictment on May 19, 2009, charging two additional co-defendants and three additional counts of wire fraud. In total, Fard was charged in four of the counts and again entered a plea of not guilty. A second superseding indictment was filed on May 25, 2010, after the district court granted a co-defendant's motion to dismiss for vagueness, but the new counts did not pertain to Fard.
The indictments were based upon an alleged mortgage fraud scheme where the defendants obtained money and property from mortgage lenders by means of false representations. Fard and his co-defendants allegedly obtained nearly thirty loans in the names of nominees by submitting false and fraudulent documents to the lenders. The nominees would not have qualified for the loans if their applications had been truthful. They usually did not live in the houses which were purchased in their names and funds acquired by the defendants were at times used to pay for improvements on different properties from the ones for which they were disbursed.
Over the course of two and a half years, the trial date was continued several times. In April 2011, Fard's original counsel filed a motion requesting that the district court appoint him to continue representing Fard under the Criminal Justice Act, 18 U.S.C. § 3006A, since Fard could no longer afford to pay him. The district court denied the motion, but we could find no record of why the motion was denied.
Trial was eventually set for October 18, 2011, but on October 17, defense counsel asked the court to continue the trial for sixty days, because both the defense and the government thought that Fard could provide significant cooperation and were hoping to reach an agreement. The judge refused to continue the trial beyond November 7, his next available date. After giving counsel that date, the judge called for a recess to allow the government, defense counsel, and Fard to confer.
After the break, defense counsel stated, " We are going to change our plea to Count 3 with no agreement with the government at this time. We are entering, I guess we would call it a blind plea to Count 3 of the indictment, Judge." The judge proceeded to read portions of the second superseding indictment and primary allegations. Then the following exchange occurred:
Court: Do you follow me so far?
Fard: Yes, I do.
Court: And so far do you agree that you did all this?
Defense Counsel: Judge, he agrees that he participated in the scheme and he had knowledge of the scheme.
The judge pressed Fard about the extent of his " knowledge" by questioning defense counsel, to which counsel responded,
" [Fard] had knowledge of Nationwide submitting these, permitting and submitting these phony applications, and he knew it was going on, but he did nothing about it, he just participated in the scheme as it went along." ...