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United States v. Siwek

United States District Court, D. Connecticut

July 12, 2018



          Michael P. Shea, U.S.D.J.

         Defendant Michael Siwek, who is currently incarcerated, filed a petition for a writ of coram nobis challenging the restitution order entered as part of his sentence after he was convicted of conspiracy to defraud the United States, bribery, and tax evasion. (ECF No. 59.) Siwek argues that the Court fundamentally erred by entering the restitution order. He also seeks to prevent the government from enforcing the restitution order by garnishing a portion of the annuity payments he is currently receiving from the State of Connecticut as part of his pension.

         Because I find no error, the petition for a writ of coram nobis is DENIED.

         I. Background

         Siwek, a former Executive Director of the West Haven Housing Authority (“WHHA”), waived indictment and pled guilty to a three-count Information charging him with conspiracy, bribery, and tax evasion in violation of 18 U.S.C. §§ 371 and 666(a)(1)(B), and 26 U.S.C. § 7201, for receiving corrupt payments in exchange for awarding WHHA contracts, and for willfully failing to report the receipt of those payments to the Internal Revenue Service (“IRS”). (See Stipulation of Offense Conduct, ECF No. 4 at 15-16.)

         The Court held a hearing on September 4, 2014, pursuant to Federal Rule of Criminal Procedure 11, at which Siwek was represented by the Federal Defender's Office, [1] and at which Siwek signed a plea agreement and entered his guilty plea. In addition to describing the maximum and minimum penalties applicable to the offenses, the plea agreement provided that Siwek would be subject to mandatory restitution for the conspiracy and bribery counts under 18 U.S.C. § 3663A. (ECF No. 4 at 4.) A Rider Concerning Restitution attached to the plea agreement set forth the scope and effect of the order of restitution for those counts. The plea agreement stated that restitution would be payable immediately unless otherwise ordered by the Court. (Id.) The plea agreement also stated that, “[r]egardless of restitution that may be ordered by the Court . . ., the defendant agrees to make restitution in the amount of $1, 503, 096.91” and that the “defendant agrees to make such restitution as ordered by the Court.” (Id.) With respect to the tax evasion count, the plea agreement stated that Siwek agreed to pay restitution to the IRS in the total amount of $363, 781.70 under 18 U.S.C. § 3663(a)(3).[2] The parties reserved their respective rights to appeal the sentence imposed by the Court. (ECF No. 4 at 10.)

         During the Rule 11 hearing, the Court canvassed Siwek on his understanding of the rights he would give up by waiving indictment and pleading guilty, his ability to communicate with his attorney, and his understanding of the plea agreement. (See, e.g., ECF No. 74 at 10-15.). Siwek stated that he was satisfied with his attorney's representation. (Id. at 10.) The Court made express findings that Siwek was fully competent and capable of entering an informed plea, and that he entered his guilty plea knowingly and voluntarily. (Id. at 42.)

         Counsel for the government described the rider concerning restitution during the Rule 11 hearing, including that restitution for the conspiracy and bribery counts would be owed “to the victim of the crime, that is, the West Haven Housing Authority, ” and that for the tax evasion count, restitution would be owed to the IRS. (Id. at 16.) Counsel for the government also stated that Siwek and the government had “agreed to certain figures” for the purpose of restitution, as set forth in the plea agreement. (Id. at 16.) In explaining the maximum and minimum penalties applicable to the offenses, the Court explained that it was required to impose an order of restitution in this case. (Id. at 23, 24, 25.)

         The Pre-Sentence Report (“PSR”) prepared in advance of sentencing stated that Siwek “agree[d] to make restitution in the amount of $1, 503, 096.91 for his conduct in Counts One and Two, the conspiracy and bribery counts.” (ECF No. 15 ¶¶ 5, 98.) Siwek submitted no objections to this statement before sentencing.

         During sentencing on July 19, 2016, Siwek raised no objections to the factual statements made in the PSR, which the Court adopted. (ECF No. 75 at 8.) The Court noted, also without objection from the parties, that Siwek faced an amount of restitution, and that the parties had agreed to restitution in the plea agreement. (Id. at 9.) The Court proceeded to discuss restitution with the parties in depth, and proposed, because the amount owed to the IRS appeared to be a “moving target, ” that the Court would include in the restitution order only restitution to be paid to the WHHA, in the amount agreed in the plea agreement, $1, 503, 096.91. (Id. at 13.) The Court would then address payments to be made to the IRS as a condition of supervised release. (Id.) Counsel for Siwek indicated that there was no objection to this proposal, as the Court's suggested plan would simplify restitution, and as Siwek understood that he had obligations to both the IRS and the WHHA. (Id. at 14.) Defense counsel also informed the Court of pending litigation that could have impacted Siwek's annuity income going forward. (Id. at 15.) The Court reiterated when imposing sentence that the sentence would include an order of restitution to the WHHA. (Id. at 32.) Counsel for the WHHA spoke at sentencing and submitted a Victim Impact Statement, which the Court considered in connection with sentencing. (Id. at 3.)

         The Court imposed a sentence of 48 months of imprisonment on each count, to run concurrently, and 36 months of supervised release on each count, also to run concurrently.[3] (ECF No. 47.) The Court imposed restitution payable to the WHHA for the conduct in Counts One and Two in the amount of $1, 503, 096.91, and waived any interest. (ECF No. 47; ECF No. 48; ECF No. 75 at 35.) The Court ordered that Siwek would pay any restitution within 30 days after the commencement of the term of supervised release at a rate of $400 per month. (ECF No. 48 at 3-4.) The Court also ordered that the monthly payment schedule could be adjusted based on Siwek's ability to pay as determined by the Probation Office and approved by the Court. (ECF No. 48 at 5; ECF No. 75 at 34.) Siwek did not appeal his sentence.

         The government moved to modify the restitution payment schedule on November 6, 2017. (ECF No. 51.) The government argued that Siwek's economic circumstances had materially changed, as he continued to receive monthly annuity payments from the State. Because he had no cost-of-living expenses while incarcerated, the government argued that Siwek's ability to make restitution payments had improved. The government also filed an application for a writ of garnishment, seeking to garnish 25 percent of Siwek's monthly annuity payments. (ECF No. 52.) The Court granted the motion to modify the payment schedule under 18 U.S.C. § 3664(k) on November 16, 2017, but provided Siwek 21 days in which he could seek reconsideration of the order. (ECF No. 56.) The Clerk of Court issued the writ of garnishment, which was later served on the Office of the State Comptroller. (ECF No. 57, 58.)

         Rather than seeking reconsideration within 21 days, Siwek, now appearing pro se, filed the petition for a writ of coram nobis, which he also styled as a motion for reduction in restitution, on February 6, 2018. (ECF No. 59.) Siwek argues in the petition that the restitution order violated the Mandatory Victim Restitution Act (“MVRA”), 18 U.S.C. § 3663A, by providing restitution to the WHHA, which Siwek argues did not suffer a loss as a result of his conduct. Siwek argues that imposing restitution was plain error and affected his substantial rights. He also argues that his attorney's ineffective assistance caused him to enter into the plea agreement that contained an agreement to pay restitution. The government and the WHHA each opposed Siwek's petition. (ECF Nos. 66, 67.)

         Siwek also requested a hearing to challenge the garnishment of his annuity payments.[4] The Court attempted to hold such a hearing on April 24, 2018, but the correctional institution where Siwek is housed failed to produce him for a video-conference at the scheduled time. The Court nonetheless notified Siwek that he could raise any other arguments he wished in response to the government's opposition, after which the Court would rule. (ECF No. 78.) Siwek filed a reply brief and several exhibits in response to the ...

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