Attorney Grievance Commission v. Wingerter

BELL, C.J. Rex B. Wingerter, the respondent, 1 was convicted, following the tender of a guilty plea in the United States District Court ²¹⁷ for the Eastern District of Virginia, of misprision of a felony. 2 In consideration of the plea of guilty, the United States Government dismissed the remaining counts of a multi-count Indictment that earlier had been filed against him. The respondent was thereafter sentenced to a period of imprisonment, a year of supervised release, community service and a fine. Subsequently, Bar Counsel, acting on behalf, and with the approval, of the petitioner, the Attorney Grievance Commission of Maryland, filed in this Court, pursuant to Maryland Rules 16-751 3 and 16-771, 4 a Petition for Disciplinary or ²¹⁸ Remedial Action. In that petition, referencing the respondent’s conviction and, indeed relying on it, the respondent was charged with violating Rule 8.4, Misconduct, 5 of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812.

We referred the case, pursuant to Rule 16-752(a), 6 to the Honorable Richard H. Sothoron, Jr., of the Circuit Court for Prince George’s County, for hearing pursuant to Rule 16-757(c). 7 Following that hearing, Judge Sothoron found facts, by clear and convincing evidence, as follows: ²¹⁹ “1. Respondent Rex B. Wingerter, a member of the Maryland Bar since 1986, entered a plea of guilty in the United States District Court for the Eastern District of Virginia (Judge Ellis) on August 26, 2005, by way of a criminal information, to ‘misprision of a felony,’ in violation of 18 U.S.C., Section 4 . “2. The charge of ‘misprision of a felony’ is a felony under Federal law and carries a penalty of not more than three years, in addition to being fined. “3. That the transcript of the August 26, 2005, plea proceedings clearly reflected the voluntariness of the Respondent’s plea and the fact that he was represented by competent and experienced counsel. “4.

That the written plea agreement and related statements of facts entered into the record on August 26, 2005, clearly and concisely described the nature and extent of Respondent’s criminal culpability in committing a misprision of a felony, the time frame of which covered a period from 2000-2004. “5. That the statement of facts is unambiguous in describing dishonest, fraudulent and deceitful conduct by the Respondent over a time frame from 2000 to 2004 while Respondent was employed as in-house counsel for Global Recruitment and Immigration Services, Inc. (GRIS) based in Falls Church, Virginia. “6. That the conduct referenced in paragraph 5 included but was not limited to: “a. Respondent’s awareness that his signature on various immigration documents was being forged. “b.

Respondent’s awareness that the signatures of immigrant clients of GRIS were being forged. “c. Respondent’s awareness that a light box was being utilized to forge signatures. “d. Respondent’s awareness that hundreds of ETA 750 applications were submitted on behalf of Cleaners of America (a potential employer of immigrant clients of ²²⁰ GRIS) even though Cleaners of America did not have the capacity to hire such large numbers of immigrants. “e. Respondent’s awareness that he was not, in his capacity as GRIS’ in house legal counsel, the attorney of record for the applicants referenced in paragraph d. “f.

Respondent’s awareness that GRIS was under investigation by the Federal government regarding the submission of hundreds of ETA 750 forms on behalf of immigrant clients. “g. Respondent’s awareness [that] GRIS was misinforming its immigrant clients regarding the status of their ETA 750 applications. “h. Respondent’s awareness of GRIS charging its immigrant clients fees to prepare ETA 750 forms. “7. That the conduct referred to in paragraph 6 and its subparts was never reported in any manner to law enforcement authorities by the Respondent. “8.

That Respondent was sentenced by [Judge Ellis, consistent with the plea agreement and as the hearing court had earlier reported III, and that] this sentence was within the Federal guideline range and much more lenient than sentences imposed as to other GRIS principals.” “9. That as of the date of the November 8, 2006, Attorney Grievance hearing before this Court, Respondent had successfully completed serving his six months of incarceration in Cumberland, Maryland, and was currently serving his six months of community confinement in Rockville, Maryland.” The hearing court concluded that the charge of misprision of a felony, while not a crime in Maryland “qualifies as a serious crime in accord with Maryland [Rule] 16.701(k)(3).” It concluded further that it was supported by “the unequivocal and unambiguous statement of facts” offered as the factual basis for the plea and that the conduct establishing that charge “constituted misconduct as defined by Rule 8.4(b) and (c), Maryland Rules of Professional Conduct.” Indeed, the hearing court expressly determined, by clear and convincing evidence, that “Respondent committed a criminal act involving ²²¹ dishonesty, fraud and misrepresentation, which reflected adversely on his honesty, trustworthiness and fitness as a lawyer.” Rule 8.4 (b) and (c) proscribe, respectively, criminal acts which call into question a lawyer’s honesty or trustworthiness and conduct “involving dishonesty, fraud, deceit or misrepresentation.” In determining that misprision of a felony was a proper predicate for those misconduct charges, to which the respondent was called to answer, the hearing court relied on the factual basis for the respondent’s plea, as indicated. It also relied on the plea agreement itself, noting that, in that agreement, the respondent indicated that he was pleading guilty “because [he was] in fact guilty of the charged offense,” that he “admitted] the facts set forth in the statement of facts filed with this plea agreement and agree[d] that those facts establish guilt of the offense charged beyond a reasonable doubt.” With regard to the factual basis for the plea, significantly, the respondent, having acknowledged the existence, timing and details of, and the participants engaged in, the conspiracy to commit immigration fraud, making false statements and encouraging aliens to enter the United States unlawfully, identified by the government, confessed that he not only “did not notify federal judicial or law enforcement authorities of the fraud [or] take steps to stop the fraud[, he] took at least two steps to conceal the crime. First, [he] instructed employees at Global to start writing their initials next to his signature whenever they forged it, but further instructed the same employees to refrain from marking their initials whenever they forged an immigrant’s or an employer’s signature on an ETA 750 application[ 8 ] (or related documents). [He] instructed the employees so because he was ²²² concerned that if the employees began to initial the forged signatures of the immigrants and employers on the ETA 750 applications, the initials would expose the fact that the signatures were in fact forgeries.

Second, [he] repeatedly informed the Department of Labor and certain immigrant clients that certain of the employer sponsors had decided to abandon certain ETA 750 applications for economic reasons when in fact he knew or should have known that it was because the government was investigating Global.” Statement of Facts, Paragraph 8. As significantly, the respondent acknowledged, in paragraph 9 of the statement of facts, that he “abused a position of public trust in the commission of his offense,” and, in paragraph 11, that the actions in which he engaged and which were recounted in. the statement of facts “were in all respects knowing and deliberate, and were not committed by mistake, accident, or other innocent reason.” In addition, the hearing court determined that the plea and sentencing proceedings are confirmatory. The respondent admitted during the plea proceedings that he was aware of the conspiracy, that “he saw acts that should have led [him] to understand and realize that the ... there was a conspiracy to fraudulently bring in non-citizens into the United States.” That conspiracy consisted of forging signatures of the aliens and reporting false job offers and job descriptions. Moreover, having heard the recitation of the statement of facts by the Assistant United States Attorney, who, in addition to reiterating the facts surrounding the fraud conspiracy, repeated, detailing the specifics, the respondent’s admission that he took “active steps to ... conceal the fraud, and not to report it to competent authorities,” the respondent responded, “Yes, your Honor,” to the trial judge’s inquiry as to its truth and accuraey.

Consistently, the respondent, at the sentencing proceeding, in allocution, advised the trial court: “... I am before this Court to be sentenced for misprision of a felony, for failing to report what I believed to be fraudulent contact—to be fraudulent conduct at my former ²²³ place of employment, Global Recruitment and Immigration Services. “I make no excuses for my conduct. I made a series of bad choices during my tenure at Global and I and my family have suffered tremendously from my actions.” The hearing court also made findings with regard to the respondent’s testimony in mitigation. They are: “13.

That the Respondent, by way of his testimony presented at the November 8, 2006, attorney grievance hearing, contradicted the unambiguous statement of facts that served as the factual basis of his plea. Specifically, the Respondent: “a. disputed the time frame as to when he became aware of any wrongdoing by. GRIS principals; “b. disputed committing any fraudulent conduct; “c. disputed possessing any criminal intent; “d. attributed his actions to bureaucratic sloppiness. “14. That the Respondent’s testimony on November 8, 2006, focused upon minimizing his criminal culpability as outlined in the unambiguous statement of facts referenced herein.

Further, this position contradicted Respondent’s admission, without excuse, of guilt before Judge Ellis at both the plea and sentencing proceedings of August 26 and November 18, 2005, respectively. “15. That Respondent’s testimony on November 8, 2006, reflected little, if any, remorse regarding his conduct as in house counsel for GRIS and the resulting plea and sentencing for misprision of a felony. “16. That the character evidence presented at the November 8, 2006, hearing, in addition to prior character references provided at the sentencing hearing on November 18, 2005, all confirmed, as did the pre sentence investigation, that the Respondent enjoyed a well earned reputation as a respected member of the bar (prior to his employment with GRIS), specializing in immigration law, a community activist, a provider of pro bono services, and devoted husband and father of two teenage children. ²²⁴ “17. That other than the findings set forth in paragraph 16, the Respondent has failed to prove by preponderance of evidence, any additional mitigating factors.” The same factors—the plea agreement, the statement of facts in support, the respondent’s responses during the plea and sentencing proceedings—that supported the Rule 8.4 findings and conclusion, the hearing court found undermined and, indeed, all but negated, the respondent’s mitigation testimony.

Accordingly, it rejected that testimony. The respondent, unlike the petitioner, that took no exceptions to either the hearing court’s findings of fact or conclusions of law, filed Exceptions of Rex B. Wingerter, Respondent, To The Findings And Conclusions Of The Hearing Judge And Opposition To The Recommendation Of Petitioner. In that pleading, he took three exceptions to the findings of facts made by the hearing court and the conclusions it drew and offered his reasons for urging this Court to reject the recommendation of disbarment made by the petitioner. The thrust of the first exception, to Paragraph 4, was to dispute the clarity and conciseness with which his criminal conduct was described.

Thus, noting that he was not alleged to have been “a direct co-conspirator,” only “that he was present at Global Recruitment and Immigration Service, Inc. ... at the time in question as in-house counsel, and that during that time, and based on his activities, he came to have an awareness that the conspirators were committing the immigration crimes in question,” and that there was no specific allegation, either in the plea agreement or the statement of facts in support of that agreement, of a definite time frame when the respondent became aware of those crimes, the respondent argues that “Paragraph 4 of the Hearing Judge’s Findings of Fact and Conclusions of Law is erroneous when it concludes that the Statement of Facts and Plea Agreement clearly and concisely ‘described the nature and extent of the Respondent’s criminal culpability in committing a misprision of a felony.” Necessarily, he submits, therefore, that “his testimony at the November 8, 2006 hearing is very relevant as ²²⁵ to what he knew and when he knew it in judging his culpability” The respondent’s second exception is to paragraphs 5 and 6 of the Findings of fact and Conclusions. Like the first, he decries the manner in which the respondent’s conduct is described and characterized, and the time frame during which that conduct occurred, arguing that the factual basis for the plea “does not unambiguously describe dishonest, fraudulent or deceitful conduct by Respondent over a time frame from 2000-2004.” To make the point, the respondent directs our attention to the Statement of Facts, Paragraph 7, which, he maintains, “fails to specifically state when, during the course of the conspiracy perpetuated by others, ... Respondent became aware of their actions.” That, he submits, contradicts Paragraph 5 and, in fact, renders it clearly erroneous. With regard to the Sixth Paragraph, the respondent maintains that his subjective understanding of the facts enumerated in Paragraph 7 of the Statement of Facts is relevant and critical to the determination of his culpability.

In that regard, he refers us to the evidence addressing each of the statements made in the Statement of Facts, which, he asserts, is both significant and relevant. That evidence, he explained, illuminated his subjective understanding of the facts, which was in each instance, contrary to that acquired by the hearing court from the plea agreement and the statement of facts in support of the plea. For example, conceding that he knew, and, indeed, permitted his signature to be signed on “pro forma” documents, the respondent argues that his signature was not a forgery and that he “had no fraudulent intent when he authorized employees of Global to sign his name to the routine appearance of counsel on immigration forms.” Similarly, he denied knowing that his signature had been signed to hundreds more documents than he authorized until “after the indictment.” To like effect, the respondent explained that, although he was aware that the signatures of aliens and corporate sponsors were being signed to documents by persons other than the alien and subject corporate sponsor, he ²²⁶ trusted the representation of Global’s management that it had permission to do so. The respondent complains that, rather than accept his subjective understanding of the facts, “[t]he Hearing Judge focused solely on the broad record of conviction and concluded that the Respondent’s behavior at Global was ‘unambiguous ... dishonest, fraudulent and deceitful’ ... [and] inferred that the Respondent’s explanations almost to be an extension of his offense by construing that Respondent ‘repeatedly attempted to excuse or minimize his criminal culpability.’ ” Further, he argues: “It is certain that particular facts within the broad plea agreement did not comport with the Respondent’s specific, subjective understanding of his understanding of events.

But the Respondent certainly did not endorse, and there is nothing in the record to support, the embellished dialogue between the Assistant U.S. Attorney and Judge Ellis where they assume the Respondent ‘knew he was complicit in fraud, and he knew it for a long time, and even offered a suggestion on how it could be concealed, is that right?’ ” Thus, the respondent submits that the hearing court’s reliance on the plea and sentencing proceedings contradicting his contentions, and disregarding his subjective understanding of the facts “is totally wrong.” By so relying, he says, the hearing court “mistakenly interpreted] the Respondent’s admission that he knew of Global’s wrongdoing, which was the basis of the plea to misprision of a felony, to mean that the Respondent took part and was complicit in the substantive offenses of the co-defendants.” To the respondent, considered in light of his testimony at the disciplinary hearing and the subjective understanding of the facts it conveyed, “[t]here was no evidence presented by the Assistant U.S. Attorney that the Respondent engaged in the dishonest, fraudulent and deceitful conduct embodied in the underlying, substantive offenses.” With respect to the allegations in Paragraph 8 of the Statement of Facts, the respondent explained his failure to ²²⁷ inform the proper authorities of the fraudulent immigration activities by stating that he became aware of the information only after “the indictments had been issued” and “Concerning the two steps ‘to conceal the crime,’ first, Respondent understood Global employees had authorization to sign the names of immigrant’s or employer’s signatures on the forms. Second, Respondent insisted in plea negotiations that the phrase ‘knew or should have known ’ be inserted because the government insisted on declaring that certain applications were withdrawn solely on account of their investigation, which Respondent firmly believed was not true.” The respondent’s third exception relates to the nature of the offense of misprision of a felony. He maintains that that offense “is not a criminal act involving dishonesty, fraud and misrepresentation” and his conduct constituting the offense “does not evidence dishonesty, fraud or misrepresentation.” The factor critically important to the respondent’s position is that “[t]he Respondent’s testimony and the Statement of Facts supporting the conviction of misprision of a felony do not establish conduct that embodied dishonesty, fraud or deceit under Maryland disciplinary law.” Thus, stressing that he was not charged as a co-conspirator and that his admissions of acquiring knowledge of fraud being committed by Global and the named individuals and not reporting it supported his conviction of the offense of misprision of a felony—he argues on the theory of willful blindness, citing United States v. Messer, 139 F.3d 895 , 1998 WL 112532 (4th Cir.1998) 9 —the ²²⁸ respondent maintains that he “never possessed or ever admitted to having the mens rea to commit those [substantive] crimes.” He argues further that, because “[h]e never participated in the offenses of his co-defendants[, h]e can not be, and he was not, held responsible as a co-conspirator for the crime he failed to report.” Acknowledging and conceding, as he must, that paragraph 8 of the statement of facts in support of the plea agreement states that, in addition to having knowledge of the crimes, the immigration fraud and false statements, he took at least two steps to conceal the crimes, the respondent proffers, nevertheless, that his admission in that paragraph “reasonably satisfied” the concealment element and, in any event, any steps aimed at concealment did not rise to the level of deceit, intentional dishonesty or misrepresentation. More particularly, he argues: “In the Respondent’s circumstances, he agreed that he ‘concealed’ purported forged names for individuals who he subjectively believed had authorized their signing.

Similarly, he consented to ‘concealing’ the truth about abandoned applications because the paragraph specifically included a negligent, ‘should have known’ standard.” Aware that concealment may have a more sinister motivation, the respondent denies, that his conduct in this case could be equated with “the more egregious offenses of making false statements or purposefully deceiving a government authority” or involved moral turpitude. Rather; he argues that “[t]here simply was no proof by clear and convincing evidence that Respondent committed a criminal act involving dishonesty, fraud or misrepresentation or that he had any intent whatsoever to engage in such acts.” That is confirmed, the respondent submits, by the fact that he “did not make any financial gain as a result of his conduct or from the underlying conduct of the co-defendants.” ²²⁹ It is well settled that we review the conclusions of law drawn by the hearing court de novo. Rule 16—759(b)(1). 10 See Attorney Grievance Comm’n v. Goff, 399 Md. 1, 27-28 , 922 A.2d 554, 569-70 (2007); Attorney Grievance Comm’n v. Mahone, 398 Md. 257, 265-66 , 920 A.2d 458, 463 (2007); Attorney Grievance Comm’n v. Mba-Jonas, 397 Md. 690, 700 , 919 A.2d 669, 675 (2007); Attorney Grievance Comm’n v. Hodgson, 396 Md. 1, 6-7 , 912 A.2d 640, 644 (2006); Attorney Grievance Comm’n v. McLaughlin, 372 Md. 467, 493 , 813 A.2d 1145, 1160 (2002); Attorney Grievance Comm’n v. Joehl, 335 Md. 83, 88 , 642 A.2d 194, 196 (1994) (noting that the ultimate decision as to whether an attorney has engaged in professional misconduct rests with this Court). When the factual findings are not clearly erroneous and the conclusions drawn from them are supported by the facts found, exceptions to conclusions of law will be overruled.

Mba-Jonas, 397 Md. at 700 , 919 A.2d at 675 ; Attorney Grievance Comm’n v. Manger, 396 Md. 134, 146-147 , 913 A.2d 1, 8 (2006). Moreover, a hearing court’s findings of fact will not be overruled unless we determine that they are clearly erroneous. Mahone, 398 Md. at 265 , 920 A.2d at 463 ; Attorney Grievance Comm’n v. Guido, 391 Md. 33, 50 , 891 A.2d