Lawyer defends new claim of innocence in Greylock fraud case
A claim of innocence ought to carry weight in a courtroom, even at the 11th hour.
That's the gist of what could be the last legal filing before a U.S. District Court judge decides whether to allow a Pittsfield builder accused of defrauding Greylock Federal Credit Union to withdraw part of his guilty plea.
On Friday, Great Barrington attorney Lori H. Levinson responded to the government's argument, a week earlier, that Jeffrey Pierce should not be allowed to step away from part of the guilty plea he entered nearly a year ago in the Greylock conspiracy.
This Wednesday, U.S. District Court Judge Mark G. Mastroianni is scheduled to consider whether to allow Pierce to withdraw his acceptance of guilt for conspiring with former Greylock executive Michael DiCenzo to cheat the credit union out of $3.55 million.
Pierce is now ready, Levinson wrote, "to test the government's evidence against him at trial."
Though Pierce was to be sentenced April 5, Mastroianni raised questions about his guilty pleas, after Levinson argued in a memo for leniency and said DiCenzo, not her client, engineered the fraud.
DiCenzo entered a guilty plea in 2014 but has not yet been sentenced. He faces a court date Wednesday.
When Pierce appeared last month in the Springfield court, accompanied by a dozen friends and family members, he expected to learn whether Mastroianni would back the government's call for him to go to jail for 46 months.
Instead, Mastroianni expressed concern about sentencing an innocent man, despite the fact that Pierce had voluntarily entered two guilty pleas last June. The judge's hesitation brought protests from Assistant U.S. Attorney Steven H. Breslow.
Breslow got the first say this month, arguing in a 27-page motion that Pierce can't change only one part of his plea and that his new claim of innocence is "implausible inconsistent with the undisputed facts, based upon no new evidence, and supported only by the affirmation of his attorney."
Breslow cited First Circuit cases that have taken a skeptical view of defendants who move to withdraw guilty pleas, particularly many months later.
But in her reply, Levinson makes the case that Mastroianni himself noted Pierce did not appear comfortable with his decision to enter guilty pleas in court June 27, 2018. When it came time for the judge to quiz the defendant about his pleas last year, in the process known as the "colloquy," Mastroianni asked: "Any hesitation, sir? I am sensing from your body language that you are uncomfortable right now."
The judge brought up similar questions April 5, which Levinson says led her client to rethink his pleas.
"It was only as a result of the Court's inquiry and meetings with counsel and his family that Pierce made the decision to formally move to withdraw his guilty plea," Levinson wrote in Friday's court filing.
Levinson contends that her client agreed to plead guilty to a conspiracy count because he was persuaded the government could prove its case against him at trial. He is not seeking with withdraw his guilty plea to a count that he made false statements.
"Indeed, Pierce was hesitant because even up until the time of his plea, he didn't quite understand why he was guilty ," Levinson wrote.
In her latest filing, the lawyer reprises arguments from her presentencing memo, in which she noted that an independent probe by an accounting firm, Sobel & Co., blamed DiCenzo as the controlling actor in the fraud. "Pierce became a victim of DiCenzo and his victimization continued even after DiCenzo left Greylock ." the firm said in its report. "We have concluded that DiCenzo exercised dominion and control over Pierce and the loans ."
Levinson argues that the court should find that there is "a fair and just reason for requesting the withdrawal."
If Mastroianni allows Pierce to withdraw his guilty plea, the government would have to prepare to try him on the charge.
In his opposition to the plea withdrawal, Breslow argued that such a change would place a burden on the government to build its prosecution, in part because of the passage of time and the possibility that witnesses might not be available. The loans that DiCenzo approved for Pierce were made between March 1, 2005, and Sept. 5, 2008.
Levinson counters that the government is the party that let time pass, after first notifying Pierce in 2012 that he was a target of its inquiry.
"The government dragged its feet for years," she wrote. "In other words, the government has prejudiced itself for taking years to proceed with any kind of prosecution against Pierce."
Larry Parnass can be reached at email@example.com, at @larryparnass on Twitter and 413-496-6214.
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