Third Circuit Rejects Concert Promoter’s Challenge To Guilty Plea And Sentence

Posted On Monday, February 5, 2018

What Happened?

The Third Circuit has affirmed the conviction and 78 month prison sentence of concert promoter Mark Hubbard, who had been convicted after pleading guilty to wire fraud for his role in the fraudulent sale of investments in a concert promotion business – rejecting Hubbard’s claims that his plea guilty was not voluntary, and that the District Court had committed numerous errors in the conduct of his sentencing hearing.

The Rundown

Mark Hubbard was convicted in the U.S. District Court for the Eastern District of Pennsylvania on one count of conspiracy to commit wire fraud and several individual counts of wire fraud, and sentenced to 78 months in prison. The charges stemmed from Hubbard’s fraudulent sale of investments in his concert promotion business, including the use of fraudulent documents in making his sales pitch, where, among other things, he promised 25% – 30% returns and falsely assured investors that their investments were secured by a $10 million security bond.

In his appeal, Hubbard claimed that the District Court should not have accepted his guilty plea because (1) it was entered with the faulty expectation that his sentencing guideline range would be 33-41 months; and (2) he pleaded guilty reluctantly. He argued further that his sentence of 78 months should be reversed because the District Court (1) erroneously considered his guilty plea for similar conduct in a case pending in the District Court of Hawaii; (2) failed to seal the courtroom, purportedly curtailing his presentation of information to mitigate his sentence; and (3) effectively denied him the right to allocute by repeatedly interrupting him.

Applying a plain error standard, the Court found that Hubbard, who entered his plea without a plea agreement, had demonstrated that he was fully aware of his potential sentence, which included a maximum penalty of 160 years in prison. In disposing of Hubbard’s argument that he expected a lower sentence because the government led him to believe his sentencing guideline range could be as low as 33-41 months, the Court specifically rebuffed Hubbard’s reliance on the Second Circuit’s decision in U.S. v. Palladino, 347 F.3d 29 (2nd Cir. 2003). In Palladino, the Second Circuit found that the government’s pursuit of a 6 point enhancement at sentencing was inconsistent with the language and spirit of the parties’ plea agreement, and invalidated the plea. In contrast, Hubbard had agreed to plead guilty without an agreement. As a result, any representation by the government regarding what sentence it believed Hubbard would likely receive was irrelevant. The Court illustrated this point, noting the District Court’s unequivocal statement to Hubbard during sentencing that there were no guarantees as to sentence, and that the court could sentence him to the maximum.

The Court also rejected Hubbard’s reluctant guilty plea argument, finding that the District Court sufficiently explored his claimed anxiety disorder. Again, the Court noted the record of the change of plea hearing, where Hubbard indicated that though he had been injured in an electrocution accident seven years prior to his guilty plea, the only condition from which he continued to suffer was anxiety. When questioned further by the District Court about his anxiety, Hubbard told the District Court that he was absolutely fine.

Regarding Hubbard’s claims of sentencing error, the Court began by rejecting his claim that the Court erred in considering Hubbard’s plea of guilty to similar charges in the District Court in Hawaii just one week before his sentencing. The Court found that it was appropriate, and certainly not plain error, to consider that plea of guilty under the rubric of the 18 U.S.C. § 3553(a) factors, particularly in light of the fact that those charges also related to fraudulent concert promotion.

The Court also found no basis for Hubbard’s claim that the District Court should have sealed the courtroom because of the presence of another individual who had been in some way involved in the scheme, and against whom Hubbard claims that he had cooperated. Although the record indicated that the government confirmed that Hubbard had participated in surveillance and communications with that individual, the District Court found that the individual was also a victim, with the right to be present and participate in the hearing. Nonetheless, the District Court did allow Hubbard’s counsel to present evidence regarding Mr. Hubbard’s cooperation at side bar, away from the hearing of any other individuals within the courtroom. Ultimately, Hubbard’s counsel at sentencing agreed that it would be worse for the defendant to seal the courtroom with the individual there.

Finally, the Third Circuit rejected Hubbard’s claim that he was denied meaningful allocution at sentencing based on his allegation that the District Court interrupted and questioned him. The Third Circuit found that Hubbard’s reliance on the Second Circuit’s decision in U.S. v. Li, 115 F.3d 125 (2nd Cir. 1997), was unavailing – pointing out that in Li, the sentencing judge was dismissive of the defendant throughout his allocution, ultimately ending the allocution by stating that if the appeals court disagreed with his conduct, they could send it back to me and tell me how long I have to listen. In contrast to Li, the Court found that at Hubbard’s sentencing, the District Court’s interjection into his attempt at allocution demonstrated that the Court was seeking clarification of Hubbard’s explanations, and exploring the veracity of the justification of his conduct – all of which the Court found to be appropriate.

For the Record

Hubbard claims that his plea was neither knowing nor voluntary because the Government led him to believe that his sentencing guideline range could be as low as 33-41 months. “However, all that the law requires is that the defendant be informed of his/her exposure…[T]he law does not require that a defendant be given a reasonably accurate ‘best guess’ as to what his/her sentence will be; nor could it, given the vagaries and variables of each defendant’s circumstances and offending behavior.” U.S. v. Mark Hubbard, (3rd Cir. slip op., No. 16-397, January 29, 2018), quoting U.S. v. Dixon, 308 F.3d 229, 234 (3rd Cir. 2002).

The Takeaway

Appellate challenges to the voluntariness of a guilty plea will more than likely be summarily dismissed when the defendant proceeds without a written agreement, and fails to raise concerns regarding the decision to plead guilty at the time of the change of plea hearing. In addition, objections to the manner in which a district court is conducting a sentencing hearing, particularly at the time of allocution, must be raised and preserved at the time of sentencing. 

A full copy of the Court’s non-precedential decision and opinion can be found here.