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Long v. United States

Court of Appeals of Columbia District

September 14, 2017

Mark Long, Appellant,
v.
United States, Appellee.

          Argued March 23, 2017

         Appeal from the Superior Court of the District of Columbia (CF2-15615-14) (Hon. Anita Josey-Herring, Trial Judge)

          Charles E. Wagner for appellant.

          Elizabeth Gabriel, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman and Chrisellen R. Kolb, Assistant United States Attorneys, were on the brief, for the government.

          Before Blackburne-Rigsby, Chief Judge, and Fisher and Easterly, Associate Judges.

          Blackburne-Rigsby, Chief Judge.

         This case stems from the government's prosecution of appellant Mark Long for his alleged role in a conspiracy to hide excessive campaign contributions to a mayoral campaign during the 2010 District of Columbia mayoral election. Appellant pleaded guilty to one count of conspiracy to defraud the District of Columbia and the District of Columbia's Office of Campaign Finance ("OCF"), in violation of D.C. Code § 22-1805a (a)(1) (2013 Supp.). On appeal, appellant argues that the trial court abused its discretion in denying his pre-sentence motion to withdraw his guilty plea. He claims that the Super. Ct. Crim. R. 11 ("Rule 11") inquiry was defective because the trial court failed to inform him of the correct maximum sentence or confirm that the factual proffer was sufficient. He also argues that the trial court should have allowed him to withdraw his guilty plea in the interest of justice. We affirm the trial court's decision for the reasons that we discuss below.

         I. Factual Background

         A. The Plea Deal

         Appellant agreed to plead guilty to one count of conspiracy to defraud the District and OCF in exchange for his cooperation with the government in its continued investigation of the mayoral campaign. The plea offer letter informed appellant that this charge carried a maximum sentence of five years imprisonment, a fine of $10, 000, and a maximum of three years of supervised release.

         Appellant agreed to plead guilty to allegations that "[f]rom at least in or about May 2010 through in or about October 2010" appellant conspired with two others, Jeffrey E. Thompson and Eugenia Harris, to defraud the District and OCF "by funding and concealing and by attempting to fund and conceal contributions to MAYORAL CAMPAIGN A for purposes of electing MAYORAL CANDIDATE A in excess of those permitted, " "thereby obstruct[ing] and imped[ing] the due administration of the campaign finance laws." See District of Columbia Campaign Finance Reform and Conflict of Interest Act of 1974, Pub. L. No. 93-376, 88 Stat. 454, repealed by D.C. Law 19-124 (2012) ("Campaign Finance Reform Act").[1]Under the Campaign Finance Reform Act, the maximum amount that a person or business may contribute to a mayoral campaign is $2, 000.

         The complaint alleged two overt acts in furtherance of the conspiracy to support Mayoral Candidate A's campaign through excess, off-the-book contributions.[2] Appellant also signed a Statement of Offense, which explained the conspiracy in greater detail. The Statement of Offense alleges as the first overt act in furtherance of the conspiracy:

From in or about May 2010 through in or about September 2010, using funds provided by THOMPSON and his companies to DETAILS [i.e., Details International, Inc., a company owned by Harris], defendant MARK LONG received a salary from DETAILS in his capacity as a consultant to DETAILS to provide services to MAYORAL CAMPAIGN A, which included serving as the official campaign driver for MAYORAL CANDIDATE A.

         The Statement of Offense stated that appellant knew that Thompson and Harris intended to conceal from OCF his salary as Mayoral Candidate A's driver as a contribution of services to Mayoral Campaign A. The Statement of Offense alleges as the second act in furtherance of the conspiracy:

In or about August 2010, defendant MARK LONG and HARRIS discussed a request from MAYORAL CANDIDATE A to arrange a secret meeting between MAYORAL CANDIDATE A and MAYORAL CANDIDATE C. Defendant MARK LONG knew from his discussions with HARRIS that the purpose of the meeting, as directed by MAYORAL CANDIDATE A, was to attempt to arrange a secret agreement by which MAYORAL CANDIDATE C would drop out of the election for Mayor of the District of Columbia and endorse MAYORAL CANDIDATE A in exchange for a thing of value.

         Appellant secured a residence in Maryland to hold the meeting. The Statement of Offense stated that appellant knew that Mayoral Candidate A intended to conceal from OCF "any payment of a thing of value to [Mayoral Candidate C] in exchange for dropping out . . . and endorsing [Mayoral Candidate A]."

         B. Trial Court Proceedings

         On September 5, 2014, appellant pleaded guilty to one count of conspiracy to defraud before the trial court. Before appellant pleaded guilty, the trial court conducted a Rule 11 inquiry to ensure that appellant was knowingly and voluntarily pleading guilty, and to ensure there was a factual basis for the plea. First, the government recited the conspiracy charge appellant would plead guilty to, including the maximum five year prison term, in exchange for his cooperation. The court asked appellant whether that was his "understanding" of the offer, to which appellant answered, "Yes." Next, the trial court informed appellant of his right to go to trial and related rights that he was giving up by pleading guilty and asked appellant if he understood, which appellant acknowledged that he did. The court also asked appellant whether he was "under the influence of drugs or alcohol or anything that would affect [his] ability to know what [he was] doing here today, " which appellant answered "[n]o, " and whether he was satisfied with his attorney, Mr. William Martin, [3] which appellant answered "[y]es." Finally, the trial court asked the government to recite the factual basis for the plea as stated in the Statement of Offense. Following the proffer, the trial court asked appellant whether the proffer was "correct or incorrect, " to which appellant answered that it was "[c]orrect." Appellant thereafter pleaded guilty to one count of conspiracy, and the trial court found that appellant "knowingly and intelligently waived his rights to trial and that there [was] a factual basis for his plea."

         On March 2, 2016, nearly eighteen months after appellant pleaded guilty but before sentencing, appellant sought to withdraw his guilty plea, with assistance from new counsel, Charles E. Wagner. Appellant argued that (1) he was factually innocent of conspiracy because he did not contribute money to Mayoral Campaign A directly and did not assist Thompson and Harris in concealing his salary; (2) even assuming he had engaged in wrongdoing, the Rule 11 inquiry was defective because the maximum penalty under the conspiracy statute under which he was charged was six months, not five years; and (3) he should be allowed to withdraw his guilty plea in the interest of justice because his plea counsel was ineffective for failing to advise him and help him receive similar plea deals as Thompson and Harris, who he claims received better plea deals.[4] The government opposed appellant's motion to withdraw.

         On June 3, 2016, the trial court denied appellant's motion to withdraw the guilty plea after considering the pleadings, filed affidavits, and arguments raised by counsel during the hearings.[5] The trial court concluded that, while appellant asserts his innocence, appellant is not contesting that he received a salary to drive Mayoral Candidate A. He also does not challenge the government's assertion that he knew the "goal" of the conspiracy. Further, the court concluded that appellant does not contest his culpability in committing the second overt act in furtherance of the conspiracy by helping to arrange the meeting between Mayoral Candidate A and Mayoral Candidate C. Therefore, the court could not find that appellant was "not complicit in the conspiracy."

         The court next concluded that appellant knew that he was pleading to a felony, as stated in the plea offer, "so [the court did not] really understand or see how this assertion that [appellant] was pleading to a misdemeanor has any merit . . . ." The trial court also found that his former counsel Mr. Martin was competent, based on Mr. Martin's submitted affidavit, because he made attempts to secure appellant a misdemeanor plea, but that the government declined to offer appellant a misdemeanor plea.[6] The court further concluded that the fact that Thompson and Harris may have been exposed to less time was not dispositive to appellant's plea as "every circumstance is obviously different." ...


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