United States v. Gail Bilyeu
473 F. App'x 753
9th Cir.
2012
Check Treatment
Docket

UNITED STATES of America, Plaintiff—Appellee, v. Gail BILYEU, Defendant—Appellant.

No. 11-10076

United States Court of Appeals, Ninth Circuit

May 30, 2012

Argued and Submitted May 17, 2012.

480 F. App‘x 753

Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.

Brian Pugh, Assistant U.S., Robert Lawrence Ellman, Esquire, Assistant U.S., Daniel D. Hollingsworth, Esquire, Office of the U.S. Attorney, Las Vegas, NV, for Plaintiff—Appellee.

Brenda Weksler, Esquire, Assistant Federal Public Defender, Jason F. Carr, Esquire, Assistant Federal Public Defender’s Office, Las Vegas, NV, for Defendant—Appellant.

MEMORANDUM *

Gail Bilyeu appeals the criminal forfeiture order and the term of supervised release imposed by the district court. We affirm. Because the parties are familiar with the factual and procedural history of this case, we need not recount it here.

I

When proper notice is given and forfeiture is authorized by statute, “the district court must impose criminal forfeiture in the amount of the ‘proceeds’ of the crime.” . The “proceeds” of a “fraudulently obtained loan equal the amount of the loan” and, in a conspiracy, the “proceeds” “equal the total amount of the loans obtained by the conspiracy as a whole.” .

Despite the fact that the government listed three forfeiture statutes in the indictment, Bilyeu had proper notice of the forfeiture because the indictment listed specific forfeiture allegations, including the specific amount of the requested money judgment.

Bilyeu also argues the district court erred by defining the “proceeds” of her offense as the total amount of loans she and her co-conspirator fraudulently borrowed. However, Bilyeu’s interpretation of the term “proceeds” is foreclosed by .

Sufficient evidence in the record supports the factual basis of the $2,654,000 criminal forfeiture order. Bilyeu agreed with the amounts alleged in the indictment at her change of plea hearing. The government also supported its requested forfeiture amount by filing evidentiary exhibits with the district court.

II

The district court did not plainly err by misstating Bilyeu’s possible term of supervised release during the Rule 11 colloquy. “[A] defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea.” . Bilyeu has not demonstrated that the district court plainly erred because the record does not show a “reasonable probability” that she would not have entered the plea but for the error.

AFFIRMED.

UNITED STATES of America, Plaintiff—Appellee, v. Pius AILEMEN, Defendant—Appellant.

No. 09-15892

United States Court of Appeals, Ninth Circuit

May 31, 2012

Submitted May 15, 2012.*

480 F. App‘x 754

Before: REINHARDT, CLIFTON, and N.R. SMITH, Circuit Judges.

Timothy Joseph Lucey, Assistant U.S., Office of the U.S. Attorney, San Francisco, CA, for Plaintiff—Appellee.

Pius Ailemen, Sandstone, MN, pro se.

Kari Elisabeth Hong, Law Offices of Kari E. Hong, Redlands, CA, for Defendant—Appellant.

MEMORANDUM **

Pius Ailemen appeals the district court’s denial of his petition for habeas corpus filed pursuant to 28 U.S.C. § 2255. Ailemen was convicted by a jury of conspiracy to distribute heroin, engaging in a continuing criminal enterprise, and one count of distribution of heroin. Proceeding pro se, Ailemen argues that he was denied his Sixth Amendment right to effective assistance of counsel based on allegations that (a) counsel deprived him of his right to testify; (b) counsel made a promise to the jury in their opening statement that they failed to support by evidence; and (c) the hostility between defense counsel themselves and between them and the court resulted in prejudice. This court reviews de novo a district court’s denial of a § 2255 motion and for clear error any factual findings made by the district court. . We affirm the denial of Ailemen’s habeas petition.

During 1991 and into early 1992, Ailemen headed a large international drug conspiracy. The federal investigation that led to Ailemen’s indictment and eventual conviction included various surveillance techniques, including wiretaps and an undercover agent posing as a drug trafficker. Prior to trial, Ailemen filed a motion to suppress the wiretap evidence, which was granted. Even without the suppressed wiretaps, the government levied substantial evidence against Ailemen, including the testimony of four of his couriers, the undercover agent involved in the investigation, as well as the intermediary who dealt with the government agent.

To prevail on a claim of ineffective assistance of counsel, a petitioner must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. . Further, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” . Ailemen first argues that his counsel denied him his right to testify on his own behalf due to their disorganization and general lack of preparation. Although this argument is undermined by several statements made by counsel at trial that the reason Ailemen did not testify was for fear of impeachment, even if we assume that Ailemen was prevented from testifying by his attorneys, he has failed to show that he could have overcome the overwhelming evidence against him. Ailemen further ar-

Notes

*
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
**
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.