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Zakrzewski v. United States

United States District Court, W.D. North Carolina, Charlotte Division

March 14, 2017

MICHAL ZAKRZEWSKI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          FRANK D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on consideration of Respondent's Motion to Vacate, Set Aside or Correct sentence which he filed pro se pursuant to 28 U.S.C. § 2255. The Government has filed a response opposing any relief, and Petitioner has filed a reply. Having considered the record in this matter, the parties' respective positions, and the controlling law, the Court finds that Petitioner has failed to state a claim for relief and his § 2255 Motion to Vacate will be dismissed with prejudice.

         BACKGROUND

         On August 12, 2009, Petitioner entered into a written plea agreement with Respondent, agreeing to plead guilty to two counts in a twenty-three count bill of indictment. Specifically, Petitioner agreed to plead guilty to a charge of conspiracy to defraud the United States, in violation of 18 U.S.C. §§ 371 & 2326 (Count 1), and one count of wire fraud and aiding and abetting the same, in violation of 18 U.S.C. §§ 1343, 2 & 2326 (Count 8). In exchange for Petitioner's guilty plea, Respondent agreed to dismiss the remaining twenty-one wire fraud charges that were filed against him.

         On the same day the plea agreement was filed, Petitioner's Plea and Rule 11 hearing commenced before U.S. Magistrate Judge David S. Cayer and Petitioner was placed under oath. Respondent summarized the elements of Counts 1 and 8, and the potential penalties and fines he faced up conviction, and Petitioner averred that he understood the attendant consequences of pleading guilty. The court explained that Petitioner could plead not guilty, and contest the charges at trial where Respondent would be required to prove each of the elements of Count 1 and 8 beyond a reasonable doubt. Petitioner admitted he understood those rights, but that he had decided to plead guilty because he was in fact guilty of the charged conduct. Petitioner averred that he understood that by entering into the plea agreement and pleading guilty that he would waive, among other things, his right to contest his sentence on appeal or collateral review, except on grounds of ineffective assistance of counsel or prosecutorial misconduct. Petitioner averred that he understood he was waiving these rights, and he agreed that he understood and agreed with each of the other terms of the plea agreement.

         Petitioner next averred that no one had threatened, intimidated or induced him to enter into the plea agreement, and that no one had promised him any leniency in exchange for his plea, other than those promises contained in the plea agreement. Finally, Petitioner stated that he had sufficient time to discuss possible defenses to the conduct charged in Counts 1 and 8 with his counsel, and that he was satisfied with the services of his attorney. After finding that Petitioner's counsel was satisfied that he understood the terms of the plea agreement and the Rule 11 proceedings, the court presented the plea transcript to Petitioner and he signed the transcript, thereby averring that he understood and agreed with all parts of the plea hearing and the answers he had given. The court then concluded the plea was knowing and voluntary and it was therefore accepted and recorded.

         Following the entry of Petitioner's guilty plea, the U.S. Probation Office prepared a presentence investigation report (PSR). In calculating the Guidelines range, the probation officer included a thorough description of the offense conduct involved in the conspiracy which is as follows:

8. Michal Zakrzewski, along with more than four dozen co-conspirators, participated in a sweepstakes fraud that primarily victimized elderly U.S. citizens. The conspirators ran their telemarketing scheme from the San Jose, Costa Rica area. The scheme was brought to Costa Rica by conspirators who had lived in Canada. The conspirators included U.S., Canadian, and Costa Rican nationals. Victims of this scheme were routinely instructed to send insurance fees for sweepstakes prize money to Costa Rica, or Antigua and Barbuda, via Western Union wire transfers. Western Union representatives have confirmed that all Western Union wire transfers are electronically routed and processed in and through Charlotte, NC, prior to being sent to their ultimate destinations.
9. The sweepstakes scheme commenced with a telephone call to a potential victim, or "lead." The "opener" (an employee at a call center who has the initial contact with a victim) informed the victim that he won second prize in a lottery. The initial "prize" typically ranged from $350, 000 to $450, 000. The victim was asked to send several thousand dollars (allegedly to be refunded) via Western Union to "Lloyds of London of Costa Rica" to insure safe delivery of the money. Investigating agents later confirmed that Lloyds of London does not have a Costa Rican office, nor does it insure these types of transactions. The caller told the victim that the insurance was necessary due to the security required since "9/11, " as well as a host of other bogus reasons. The telemarketers usually represented themselves as federal agents of a non-existent agency, such as the "United States Sweepstakes Security Commission" or the "United States Sweepstakes Security Bureau, " both a fictional branch of the Department of Commerce that was allegedly "established during the Reagan Administration to regulate sweepstakes." Victims who demanded proof in writing were faxed a fake history of the Sweepstakes Commission complete with a history of how the commission assisted federal law enforcement in halting phony sweepstakes offers. The faxed document contained an authentic seal of the Bureau of Industry and Security of the Department of Commerce, and a false Washington, D.C. mailing address.
10. Since the calls to victims were initiated in Costa Rica, anyone making the calls to victims understood the assertions made to the victims were false. For example, a typical pitch sheet used by telemarketers, provided the following script:
My name is ___. I am calling from the Sweepstakes Security Commission in Washington, DC. We are a non-profit consumer protection agency, established by the government to monitor and control all activities of the sweepstakes and lotteries; and of course to assist recipients of awards.
If a victim agreed to send money, but failed to do so, a conspirator would call the victim and make the following false representations to the victim:
What do you mean? You remember you gave me your verbal authorization on a recorded conversation with your Federal Government to secure that policy with Lloyd's.
One, if you didn't take care of that, Lloyd's has nothing to assume other than you were expecting to receive the check without a policy on it. That would be insurance fraud, a serious crime. Luckily, the Sweepstakes Security Commission would not let the check be delivered under such circumstances. Failure to take care of your obligation therefore is called "intent to commit insurance fraud, " a misdemeanor.
Two, remember that I am a Federal Agent and your agreement was recorded. You understand that there are laws in place for reasons of national security that prevent citizens from deceiving government employees of my rank. I know you are not a terrorist but we must still apply the law. This crime is called "defrauding a Federal Agent." It is a Federal misdemeanor.
11. Investigators also obtained a copy of a reminder posted in one call center that was operating the fraudulent sweepstakes scheme. The reminder stated: "IF YOU HAVE THE SLIGHTEST SUSPICION THAT YOU ARE SPEAKING WITH SOMEONE SLIGHTLY INTELLIGENT, BEING RECORDED, ON A THREE WAY CALL, BEING TRACED, SPEAKING WITH LAW ENFORCEMENT OF ANY KIND, AND SO ON, DO NOT EVEN ATTEMPT TO USE IT!! THIS COULD KILL AN OFFICE."
12. As part of this investigation, agents tracked several telephone numbers that were used by the conspirators to conduct the sweepstakes fraud and found these numbers were assigned to Vonage, a New Jersey based telecommunication company. These numbers were used via a Voice over Internet Protocol service (VoIP) to telephone the victims of this fraud from San Jose, Costa Rica. VoIP technology, which utilizes a computer to make telephone calls over the Internet, allowed a user to disguise his calling location, making it appear the call originated from another area code. Often participants in the scheme had their VoIP system programmed to display a “202" Washington, D.C. area code number on the victim's caller ID system; thereby reinforcing a victim's belief that the caller was actually located in Washington, D.C. and the sweepstakes was associated with the federal government. The VoIP technology allowed conspirators to persuade victims that the sweepstakes scheme was real. Using the VoIP technology in this manner legitimized the conspirator's claims that sweepstakes money was available and protected by the U.S. Government.
13. Vonage provided investigators with subscriber records identifying the owner of telephone numbers that were being used to perpetrate the sweepstakes scheme. With this information, agents were able to locate and identify the subscriber, who ultimately identified locations where he delivered and installed Vonage equipment, and identified co-conspirators.
14. Once a victim was induced into sending money for the purported insurance fees for second place prize winnings, a conspirator would again call or "load" the victim. A "loader" was a call center employee who took over contact with a victim after the victim made an initial payment as a result of an opener's pitch. This time the telemarketer falsely represented that a mistake had been made and that the victim had actually won first prize (typically over $3 million U.S. dollars), adding that due to the increased amount of the prize, the victim must wire additional money for the purported "insurance fee" and/or "taxes" through Western Union. The conspirators continued to "load" victims as long as the victims continued to wire money, resulting in many victims repeatedly wiring money to conspirators without ever receiving the promised prize money. This type of tactic was also called a "reload."
15. Evidence indicates more than 15 call centers operated the fraudulent sweepstakes scheme in the San Jose area. Call centers were also referred to as "boiler rooms." Agents assert here were many more call centers, but since call centers were frequently shut down and relocated by conspirators, the exact number of call centers was difficult to determine.
16. A law enforcement raid and search took place in Costa Rica on May 16, 2006. This raid involved 150 OIJ agents (Organismo de Investigacion Judicial -Organization of Judicial Investigation - the Costa Rican Equivalent of the FBI), along with about 15 U.S. agents as observers. More than 15 call centers and residences were raided and a massive amount of evidence was seized. In addition, on this same day, five more arrests and searches took place in the United States.
17. Based upon numerous interviews with the identified victims and a review of consumer complaint databases in the United States, agents estimate that victim losses attributable to this fraudulent sweepstakes scheme exceeded $15 million in U.S. currency. Based on rough estimates, the United States believes that the conspirators included in U.S. vs. Giuseppe Pileggi collected about $10, 000, 000, while the conspirators included in U.S. vs. Charles Robert Cummins collected about $5, 000, 000. Agents assert it is extremely difficult to ascertain loss amounts because victims were embarrassed about being fooled and hesitated to admit any involvement in a fraudulent scheme. Victims were also hesitant to believe that investigating agents truly were federal agents having been tricked by telemarketers who falsely represented their status as federal agents in the sweepstakes scheme.
18. Michal Zakrzewski met co-conspirator Giuseppe Pileggi during 2000, while living in Canada. While in Canada, he worked for Pileggi in various capacities, including as a telemarketer promoting a similar sweepstakes scheme as later perpetrated in Costa Rica. Zakrzewski indicated he retained approximately 30% of any monies sent by victims. Zakrzewski stated that he, Pileggi, and co-conspirator Herman Kankrini started the telemarketing fraud calls in Canada around 2001, and continued this scheme until around February 2002. During April 2002, Zakrzewski borrowed money from Kankrini and traveled to Costa Rica where he, Kankrini, Pileggi, and others continued to perpetrate and refine the sweepstakes fraud.
19. After relocating to Costa Rica, Zakrzewski worked as an opener for Pileggi at a call center. He recalled that some of the scripts included text that suggested the telemarketer was affiliated with a non-profit organization established by the U.S. government. Zakrzewski acknowledged he was not particularly successful because of his heavy Polish accent. He estimated he earned about $6, 000 or $7, 000 during 2002.
20. During 2002, Zakrzewski met co-conspirator Michael Mangarella. Mangarella and Pileggi opened a call center together in late 2002, which employed nine or ten employees, including Zakrzewski. Zakrzewski estimated he made an average of $1, 500 per month while working at this call center.
21. During the fall of 2003, Zakrzewski went to work for Pileggi at a new call center where Zakrzewski became a "room boss." This call center was located in the Barrio Mexico section of San Jose and was large enough to require two room managers, one for each floor. The two room managers, Zakrzewski and co-conspirator Ray Bingham, earned a percentage of the center's weekly profits. Zakrzewski and Bingham hand delivered the names of victims who required a "load" or "reload" to either Kankrini or Pileggi. At some point, Bingham told Pileggi that Zakrzewski was stealing from the call center. This led to Zakrzewski leaving the Pileggi center and finding work at another call center managed by co-conspirator Al Duncan. Zakrzewski stated Duncan's call center was better organized and the employees worked longer hours. When Zakrzewski quit working for Duncan after several months, he took scripts and rebuttal sheets with him.
22. During early 2005, Zakrzewski went back to work for Pileggi, bringing with him the scripts and rebuttal sheets he had taken from the Duncan call center. Zakrzewski stated it was at this call center that he first dealt with co-conspirator Trent Nyffeler (Tula), who was a lead list provider from Texas. Zakrzewski stated that while working as a room boss at this call center, he made approximately $70, 000 - $80, 000 over a seven to eight month period (50% of the proceeds generated by the call center). Sometime during May 2005, Zakrzewski had an encounter with Duncan, who had found out Zakrzewski was using the name of "Duncan" or "Al Duncan" when contacting victims. Reports indicate Duncan used a gun to threaten Zakrzewski.
23. Zakrzewski acknowledged that while working the sweepstakes scheme, he could estimate a victim's age based on the sound of their voice, or from examining the handwritten scripts. Zakrzewski stated he had better results with younger victims, which he surmised was due to his heavy accent and elderly people's inability to understand him.
24. Zakrzewski left Pileggi's call center around December 2005. He stated he had approximately $40, 000 in savings, which he used to open a small scooter rental business in Puerto Viejo, Costa Rica. From July 2006, to his arrest on June 25, 2007, Zakrzewski stated he worked as a tourist guide for resort areas in Costa Rica.
25. The Indictment lists numerous overt acts involving telephone calls made to victims between September 2, 2005, and December 7, 2005. The Indictment also lists overt acts where the defendant and other co-conspirators received telephone calls from miscellaneous victims between August 20, 2005, and December 10, 2004. Finally, the Indictment lists 22 overt acts where the defendant and other co-conspirators caused and received Western Union wire transfers between August 30, 2005, and December 16, 2005. Count Eight of the Indictment notes specifically that on October 11, 2005, the defendant committed wire fraud involving a victim located in Detroit Lakes, MN, and a transmittal totaling $1, 789.
26. Both parties agree the amount of loss reasonably foreseeable by Zakrzewski was more than $400, 000, but less than $1, 000, 000.[1]
The probation officer applied the same Guidelines upon which the parties agreed in the plea agreement, to wit:
34. Base Offense Level: The United States Sentencing Commission Guideline for violation of 18 U.S.C. § 371 is found in USSG §2B1.1(a)(1) and calls for a base offense level of 7.
35. Specific Offense Characteristic: Both parties stipulated that the loss amount reasonably foreseeable to the defendant was more than $400, 000, but less than $1, 000, 000. Pursuant to USSG §2B1.1(b)(1)(H), 14 levels are added.
36. Specific Offense Characteristic: The offense involved more than 250 victims. Pursuant to USSG §2B1.1(b)(2)(C), 6 levels are added.
37. Specific Offense Characteristic: The offense involved a misrepresentation that the defendant, and others, were acting on behalf of a government agency. Pursuant to USSG §2B1.1(b)(8)(A), 2 levels are added.
38. Specific Offense Characteristic: A substantial part of the sweepstakes schemes was committed from outside the United States. Pursuant to USSG §2B1.1(b)(9)(B), 2 levels are added.
39. Victim-Related Adjustments: The majority of the victims of this offense were elderly. Since the defendant knew, or should have known, the victims of the conspiracy and scheme to defraud were unusually vulnerable due to age, physical or mental condition, or that they were otherwise particularly susceptible to the criminal conduct, a 2-level increase is appropriate. ...

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