Pittsfield builder awaits court decision: Jail sentence or trial?

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SPRINGFIELD — One of Greylock Federal Credit Union's most famous borrowers will learn soon whether the government must prove he engaged in a $4 million conspiracy.

U.S. District Court Judge Mark G. Mastroianni heard arguments Wednesday for and against an effort by Pittsfield builder Jeffrey Pierce to withdraw a guilty plea he entered 11 months ago.

Such attempts are considered rare, given the detailed warnings that defendants receive from judges before they are allowed to enter guilty pleas, including cautions that they cannot change their minds later.

But in a strange turn of events, Pierce claims that he only recently came to fully realize he was duped by former Greylock executive Michael DiCenzo and should not have admitted, as he did last year, to conspiring to defraud the institution in connection with loans granted more than a decade ago that cost Greylock an estimated $3.55 million.

The judge gave no indication when he would rule.

If Mastroianni grants the motion, Pierce could face additional charges in a new indictment, Assistant U.S. Attorney Steven H. Breslow suggested, including perhaps a count of money laundering. The plea agreement offered to Pierce included concessions to his benefit, the prosecutor said, even though the government later recommended a sentence of 46 months in jail.

Breslow told Mastroianni that Pierce had plenty of time to grasp the terms of the plea agreement he accepted last June and that case law suggests that Pierce has no grounds for his claim.

"This is the thinnest motion to withdraw a guilty plea," Breslow told the court. "There is not a single new fact that this defense has in support of its motion."

Instead, the prosecutor argued, Pierce's motion to withdraw part of his guilty plea is simply a matter of having second thoughts — a position that has not moved courts in the First Circuit.

"I'm having a second thought about my state of mind," Breslow said, characterizing what he viewed as Pierce's argument, advanced by his lawyer, Lori H. Levinson, of Great Barrington.

If Pierce is allowed to withdraw his plea, Breslow told the judge, then any defendant could make a similar claim.

"That's just not enough," Breslow said of the case Pierce is making. "The First Circuit standard would be rendered meaningless. Our argument is that this is entirely insufficient."

The question of whether Pierce believes he is innocent of conspiracy is now before the court, Breslow argued, only because his attorney made a play for leniency in a pre-sentencing memo.

The prosecutor suggested that Mastroianni "misapprehended" the strategy Levinson was pursuing in the memo to shorten the government's recommended sentence. "It wasn't to make a real play for innocence," Breslow said of Levinson's memo.

But on that, the judge pushed back. "The defense did not dissuade me from my interpretation," Mastroianni said.

Levinson told the court that Mastroianni has the ability to grant the motion to withdraw the guilty plea if he concludes that Pierce has a "fair and just reason" to seek such a change.

"I believe there is a way for your honor to grant relief," she said. That trigger, she said, is a credible claim of innocence.

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"That is a legitimate reason for withdrawing the guilty plea," Levinson said. "He should be allowed to proceed to trial."

As she has before, Levinson argued that Pierce was out of his league in his dealings with DiCenzo, who was the first to be charged with defrauding his former employer in loans he approved from 2005 to 2008. DiCenzo entered guilty pleas in 2014 but has yet to be sentenced.

"Mr. Pierce was terrified beyond your wildest dreams," she said of her client's reaction to his legal troubles.

Pierce sat beside her in the Springfield courtroom, dressed in a blue button-down shirt and tie and khakis. At times, he shook his head gently at statements made by the prosecutor, including when Breslow told the judge that he and DiCenzo "hatched a cover-up plan."

"From Day One to this moment he's been confused about what he did," Levinson said of Pierce. At one point in Wednesday's hearing, Pierce asked her for a break in the proceedings because he was having trouble keeping up with them.

To that, the judge said Pierce is hardly the first criminal defendant to be overwhelmed by intricate legal arguments beyond the experience of nonlawyers.

Levinson explained again, as she did at a preempted sentencing hearing April 5, that she and her client accepted the plea offer last year because the government made a compelling case that it would be able to win conviction at trial, on even more charges.

Sessions memo

If Mastroianni allows Pierce to change his plea on the charge of conspiring with DiCenzo to defraud Greylock, a second charge remains of making false statements after a probe of the loans began.

Breslow said he needed to review the issue with the U.S. Attorney's Office, but indicated that he anticipated the government would bring the strongest case possible against Pierce at trial.

When the plea agreement was struck last June, one factor for the defense, it emerged in court Wednesday, was the possibility that under policy changes advanced by former Attorney General Jeffrey Sessions, any future offer might not be as generous.

In a memo to U.S. attorneys, Sessions had instructed them to seek convictions on "the most serious, readily provable charges" in cases, Breslow explained in court.

Mastroianni asked the attorneys about the timing of a possible trial, if he were to grant the motion to change the plea.

Though the judge indicated he thought the case could be tried on existing information compiled regarding Pierce's behavior, Breslow said the government would be entitled to present a grand jury with as many legal theories, and possible charges against Pierce, as it wishes.

Near the end of Wednesday's hourlong hearing, Mastroianni asked Levinson whether her client, who was represented by another attorney at first, had received adequate representation.

She demurred, citing her discomfort in discussing attorney-client relations.

"I'm uncomfortable, too," the judge said. "This is an uncomfortable situation."

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter and 413-496-6214.


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