The U.S. Court of Appeals for the Third Circuit has upheld a $350,000 restitution order against a lawyer who was convicted in a scheme to defraud his law firm and its clients.
Arobert Tonagbanua, a former shareholder in the Haddonfield, New Jersey, office of Dickie, McCamey & Chilcote, pleaded guilty in 2014 to a scheme to pad his billings to the tune of $1 million by altering court complaints to add names of firm clients to already-filed asbestos injury suits. He altered documents in more than 100 asbestos injury cases from 2008-2012, then undertook representation of those clients, according to prosecutors.
Tonagbanua, who was sentenced in May 2016 to 24 months in prison by U.S. District Judge Noel Hillman of the District of New Jersey, sought to reduce the $350,000 restitution order stemming from his guilty plea on one count of wire fraud. But the appeals court ruled Tuesday that Hillman properly rejected his petition. The appeals court said Tonagbanua waived the right to appeal when he entered his guilty plea, and the writ of error coram nobis he filed was encompassed in that waiver. The appeals court also said that Tonagbanua’s claim about his lawyer, that he should have given closer examination to the amount of restitution imposed at sentencing, does not rise to the level of error required to obtain relief under a coram nobis petition, the appeals court said.
Dickie McCamey put its loss at $1.2 million from Tonagbanua’s actions. At sentencing, Tonagbanua was ordered to reimburse his former firm for $110,000 in fees it paid to forensic accountants and ethics attorneys; $140,000 in cost reimbursements related to the case, such as travel to depositions and copying costs; and $100,000 in settlement funds charged to three fraudulent files, for a total of $350,000. He was represented at sentencing by Michael Miller of Helmer, Conley & Kasselman of Turnersville. Tonagbanua’s sentence of 24 months was at the bottom of the guidelines range. Because he had already paid $118,000 in restitution to the firm, at sentencing he was ordered to pay $232,000.
Tonagbanua, who was self-represented at this point, filed an appeal of his sentence to the Third Circuit, arguing that Miller gave ineffective assistance because he failed to investigate the $100,000 settlement portion of the restitution order. The U.S. attorney moved to enforce the appellate waiver, and the appeals court granted the government’s motion and dismissed the appeal.
Tonagbanua, who was represented by attorney Michael Confusione of Hegge & Confusione in Mullica Hill, filed a petition in December 2016 for writ of error coram nobis pursuant to 28 U.S.C. 1651(a). He argued that the restitution order should be reduced by $100,000 because that portion of the restitution order went to files that were not subject to fraud. He argued that a writ of coram nobis can be used to attack a restitution order. The government replied that coram nobis relief was not proper under the circumstances of Tonagbanua’s case, and Hillman denied the coram nobis petition on April 3.
On appeal, Judges Theodore McKee, Kent Jordan and L. Felipe Restrepo said a writ of coram nobis is generally used to attack allegedly invalid convictions that have continuing consequences when the petitioner has served his sentence and is no longer in custody. Tonagbanua, who is still in custody, used it here because courts have held that a restitution order cannot be attacked through other means.
The judges, in an unsigned opinion, said Hillman correctly found that the appellate waiver ruled out a writ of coram nobis. The writ is used to correct errors for which there was no remedy at trial and where sound reasons exist for failing to seek relief earlier, the court said. Here, Tonagbanua could have challenged his restitution order on direct appeal if he had not waived the right to appeal his sentence. The appellate judges also agreed with Hillman that the error being alleged is not fundamental in nature.
The appeals court said it is “not inclined to relieve Tonagbanua of the consequences of his knowing and voluntary collateral appeal waiver by allowing him now to pursue through coram nobis a challenge to a restitution order whose validity he did not challenge on direct appeal.”
The Pittsburgh-based firm says it discovered Tonagbanua’s criminal activity in April 2012 and promptly fired him and notified the FBI, the New Jersey Office of Attorney Ethics and the affected clients. Tonagbanua was disbarred by the state Supreme Court in April 2013.
Tonagbanua, a native of the Philippines who came to the United States as a child, is a 1996 Temple University School of Law graduate. Before joining Dickie McCamey, he was with Margolis Edelstein in Mount Laurel from 1998 to 2006. He divided his practice between immigration law and toxic tort litigation, including asbestos and silicosis cases.
Miller said he was pleased with the Third Circuit ruling. Confusione was on vacation, his firm said. A Dickie McCamey partner and executive committee member, W. Alan Torrance Jr., said the firm is “gratified by today’s decision of the United States Court of Appeals for the Third Circuit” but otherwise had no comment.