Elvirа Umali Gumangan, Appellant, v. United States of America, Appellee.
No. 00-2642WM
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: March 26, 2001; Filed: June 19, 2001
Before RICHARD S. ARNOLD, FAGG, and BOWMAN, Circuit Judges.
On Appeal from the United States District Court for the Western District of Missouri.
Elvira Gumangan appeals from the District Court‘s1 order denying her motion for habeas relief, in which she claimed that her conviction, entered upon a guilty plea for conspiring to commit bank fraud, was the result of ineffective assistance of counsel. We affirm.
Ms. Gumangan was born in the Phillippines and came to the United States in 1988 at the age of 14 with her parents. In December 1995, she was employed as a payroll clerk at a company from which she stole 22 blank checks. She made 21 of these checks payable to her boyfriend, Aaron Rule, with whom she lived, or to one of three of Mr. Rule‘s relatives, and signed the checks as the authorized signer. From December 12, 1995, to March 14, 1996, these individuals cashed the fraudulent checks for a total amount of approximately $23,000. This money was given to Mr. Rule, who paid $200 to the individual cashing a check. Mr. Rule gave Ms. Gumangan approximately $500 for her part in the scheme. Two of the checks were cashed without Mr. Rule‘s involvement. Ms. Gumangan shаred in the proceeds from one of them. She made the remaining check payable to herself for approximately $1,300, cashed it, and kept the proceeds.
The theft of the checks was discovered, and on March 29, 1997, Ms. Gumangan gave a statement to federal agents admitting her criminal activity. She stated that Mr. Rule asked her to steal the first check, and after it was negotiated he asked her to steal more сhecks. She told him she did not want to, and he told her that if she did not, he would tell her boss that she was stealing checks and would do damage to her and her car. She stated that she agreed to steal more checks for Rule because she was afraid of his threats. This statement was included in the government‘s investigative report. On May 14, 1997, Ms. Gumangan, Mr. Rule, and the three other individuals who were involved were charged with conspiracy to commit bank frаud in violation of
On that same day, Ms. Gumangan and Mr. Rule and one of the other conspirators appeared, with the same retained counsel representing them all, before a magistrate judge. Counsel stated thаt he had discussed joint representation with his
According to the Presentence Report (PSR), Ms. Gumangan‘s offense level of 8 (which included a two-point reduction for acceptance of responsibility), and criminal history category of I, yielded a sentencing range of 0 to 6 months or 6 to 12 months depending upon whether an enhancement for more than minimal planning was to be applied. The PSR noted Ms. Gumangan‘s alien status and that an agent of the Immigration and Naturalization Service indicated that deportation proceedings might be initiated against her as a result of the instant offense. At sentencing, Ms. Gumangan stated that she had read the PSR. She and hеr attorney told the Court that her main concern was to avoid prison so she could care for her newborn son. The Court sentenced Ms. Gumangan to five years’ probation, with six months’ home detention. Because this conviction was for fraud exceeding $10,000, Ms. Gumangan became subject to deportation pursuant to
II.
In this post-conviction action, filed under
Ms. Gumangan аlso claimed that counsel was ineffective because of a conflict of interest arising from his representing both her and Mr. Rule. This conflict, according to Ms. Gumangan, prevented counsel from seriously considering a duress defense for her because it would have prejudiced Mr. Rule. Lastly, she claimed that her plea was involuntary because counsel did not inform her that she would be subject to mandatory deportation upon pleading guilty. Rather, she alleged, counsel misadvised her that if she pleaded guilty she had a good chance of successfully contesting deportation.
The government submitted the affidavit of Ms. Gumangan‘s counsel аttesting that he discussed the question of deportation with her and told her that she needed to consult with an immigration lawyer about the matter. He attested that he told Ms. Gumangan that an immigration judge might consider her circumstanсes and allow her to stay, but that he never told her that she could successfully contest deportation proceedings. He also said that he saw no evidence and was never told by anyone that Ms. Gumangan was battered, abused, or acting under duress when she committed the crimes.
III.
The District Court rejected Ms. Gumangan‘s argument that counsel should have known of her alleged abuse from reading the government‘s investigative report. Furthermоre, the Court held, a duress defense had little chance of success. The Court noted that Ms. Gumangan stole several checks without Mr. Rule‘s involvement or knowledge, indicating that her motive was not just fear, but her own benefit. The Court also concluded that even had Ms. Gumangan been advised of a potential duress
Thе District Court held that Ms. Gumangan‘s waiver of the right to separate counsel was knowing, voluntary, and intelligent. The Court rejected the argument that her waiver was not voluntary because Mr. Rule was present during the hearing beforе the magistrate judge.
On the deportation issue, the Court held that even if, as Ms Gumangan alleged, counsel affirmatively misrepresented to her the likelihood of her deportation after conviction, she did not show a reasonable probability that she would not have pleaded guilty had counsel properly informed her of her likely deportation. Furthermore, the record showed that Ms. Gumangan understood that deportatiоn was a possibility. The Court denied the motion, and this appeal followed.
IV.
To prevail on a claim of ineffective assistance of counsel where there has been a guilty plea, petitioner must show thаt counsel‘s representation fell below an objective standard of reasonableness, and that “there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would hаve insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). If the claimed error is counsel‘s failure to notify the petitioner of a potential defense, the inquiry “will largely depend on whether the affirmative defense likely would have succeeded at trial.” Id.
We agree with the District Court that counsel was not ineffective for failing to advise Ms. Gumangan that she had a viable defense based on duress or coercion and battered women‘s syndrome. We feel confident that such a defense was not likely to succeed had Ms. Gumangan gone to trial. “In order to successfully raise the defense
As the District Court noted, the fact that Ms. Gumangan forged and negotiated three checks without Mr. Rule‘s involvement or knowledge militates strongly in favor of concluding that a duress defense was not likеly to succeed.
A criminal defendant‘s right to effective assistance of counsel includes the right to be represented by counsel free of conflict. United States v. Haren, 952 F.2d 190, 195 (8th Cir. 1991). A defendant, however, may waive her right “to the assistancе of an attorney unhindered by a conflict of interests.” United States v. Brekke, 152 F.3d 1042, 1045 (8th Cir. 1998) (quoted case omitted). Where one attorney jointly represents more than one defendant,
The last issue on appeal concerns Ms. Gumаngan‘s counsel‘s advice to her regarding her deportability. Several circuits have held that failure to advise a defendant of the prospect of deportation does not constitute ineffective assistance of counsel. See, e.g., United States v. Banda, 1 F.3d 354, 355 (5th Cir. 1993); United States v. Yearwood, 863 F.2d 6, 7 (4th Cir. 1988). Here, even if counsel mistakenly told Ms. Gumangan that she might successfully contest deportation, we perceive no prejudice in her pleading guilty instead of going to trial. The evidence of Ms. Gumangan‘s guilt was overwhelming, and we have already held that a duress defense would not have succeeded. Ms. Gumangan would have faced deportation upon conviction by a jury, just as she does now.
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.