ORAL ARGUMENT NOT YET SCHEDULED
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
NO. 99-3064
BRIEF OF APPELLANT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
xxxxxxx xxxxxxx xxxxxxx, JR. Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
BEVERLY G. DYER
ASSISTANT FEDERAL PUBLIC DEFENDER
Counsel for Appellant
625 Indiana Avenue, Suite 550
Washington, D.C. 20004
(202) 208-7500
District Court
Cr. No. 82-339-01 (TFH)
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
Pursuant to D.C. Circuit Rule 28(a)(1), appellant xxxxxxx xxxxxxx xxxxxxx, Jr. hereby states as follows:
A. Parties and Amici: This appeal arises from a criminal prosecution of defendant-appellant xxxxxxx M. xxxxxxx, Jr. by plaintiff-appellee, the United States of America. There are no intervenors or amici. A co-defendant, xxxxxxx W. xxxxxxx, pleaded guilty to count one of the indictment.
B. Rulings Under Review: In this appeal, Mr. xxxxxxx seeks an order vacating his guilty plea on several grounds, including (1) the court reporter’s failure to record the plea hearing verbatim and to file a transcript or record of the plea hearing in violation of the Court Reporters Act, 28 U.S.C. § 753(b), and Fed. R. Crim. P. 11(g); (2) failure of the district court (the Honorable Thomas F. Hogan) to comply with Fed. R. Crim. P. 11; (3) misrepresentation by defense counsel and the government of the applicable sentence and parole eligibility in plea negotiations; (4) the government’s improper threats to indict Mr. xxxxxxx on additional charges and his family on related charges; (5) Mr. xxxxxxx’s lack of competency at the plea hearing; and (6) Mr. xxxxxxx’s attorney’s conflict of interest and numerous instances of ineffective assistance of counsel. Mr. xxxxxxx also seeks review of the district court’s failure to conduct a competency hearing prior to sentencing and his attorneys’ failure to request such a hearing. In addition, Mr. xxxxxxx seeks remand for resentencing due to errors in the judgment and commitment order, his attorneys’ failure to dispute facts at sentencing, and the district court’s failure to resolve disputed facts at sentencing. [9/26/83 Tr. 1-26].
C. Related Cases: In 1983, Mr. xxxxxxx filed an interlocutory
appeal seeking pretrial release. See Order, United States v. xxxxxxx,
No. 83-1504 (D.C. Cir. June 9, 1983). Mr. xxxxxxx has a 28 U.S.C. §
2255 motion pending in the district court, which has been held in
abeyance pending the disposition of this appeal. See Order, United
States v. xxxxxxx, Cr. No. 82-339, Civ. No 96-550 (D.D.C. May 10,
1999) [A:506].
In 1994, Mr. xxxxxxx was convicted in a drug
trafficking case in the United States District Court for the Middle
District of Florida, where his sentence was enhanced based on the
conviction in this case pursuant to 18 U.S.C. §§ 841(b)(1)(B) & 851
and the U.S. Sentencing Guidelines. He has a 28 U.S.C. § 2255
motion challenging the enhancement of his sentence pending in that
court. United States v. xxxxxxx, Case No. 94-64-CR-23E, 98-2134-CIV-T-23E (M.D.Fla.).
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
NO. 99-3064
BRIEF OF APPELLANT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
xxxxxxx xxxxxxx xxxxxxx, JR. Defendant-Appellant.
JURISDICTION
Mr. xxxxxxx was originally sentenced in this case on September 26, 1983. On May 6, 1999, he was resentenced to grant him the right to direct appeal. He filed a timely notice of appeal on May 7, 1999. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
STATUTES AND RULES
Relevant statutes and rules are included in a separately-bound addendum.
ISSUES PRESENTED FOR REVIEW
1. Whether this Court should set aside Mr. xxxxxxx’s guilty plea because the court reporter failed to record the plea hearing verbatim and failed to prepare and file a transcript of the plea hearing, as required by 28 U.S.C. § 753(b) and Fed. R. Crim. P. 11(g), and because the plea was involuntary, unknowing and coerced as a result of (1) failure by the court in violation of Rule 11 and by defense counsel and the government to advise Mr. xxxxxxx of the elements of count three, the factual basis for count three, the applicability of special parole and its nature and effect, and the applicable sentence and parole eligibility; (2) improper threats to bring additional charges against Mr. xxxxxxx that were barred by the doctrine of specialty; (3) improper threats to prosecute Mr. xxxxxxx’s father and brother; (4) Mr. xxxxxxx’s lack of competency at the plea hearing; and (5) Mr. xxxxxxx’s attorneys’ conflict of interest and ineffective assistance of counsel, including his attorneys’ failure to: (a) prevent the coercion of Mr. xxxxxxx’s plea through improper threats; (b) advise Mr. xxxxxxx that several counts in the indictment should merge; (c) advise Mr. xxxxxxx that, based on the requirements for possession with intent to distribute narcotics, Mr. xxxxxxx had a valid factual defense to counts two through five and eight and nine of the indictment; (d) request a competency hearing; and (e) advise Mr. xxxxxxx correctly regarding the applicable sentence, his eligibility for parole, and the status of an earlier North Carolina conviction.
2. Whether the district court erred in failing to conduct a competency hearing, whether Mr. xxxxxxx’s attorneys were ineffective in failing to request a competency hearing and whether Mr. xxxxxxx was in fact incompetent at the time of his plea and sentencing.
3. Whether this case should be remanded for resentencing to correct errors in the judgment and commitment order, because Mr. xxxxxxx’s attorneys were ineffective in failing to dispute facts at sentencing and in failing to keep Mr. xxxxxxx informed of facts asserted by the government prior to the sentencing hearing, and because the district court plainly erred in failing to resolve factual disputes as required by Fed. R. Crim. P. 32(c)(3)(D).
STATEMENT OF THE CASE
A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below
On November 18, 1982, a federal grand jury returned an
indictment charging defendant xxxxxxx M. xxxxxxx, Jr. in count one with
a drug trafficking conspiracy from September 1, 1978, to April 19,
1982, in violation of 21 U.S.C. § 846; in counts two through five
with drug trafficking in violation of 21 U.S.C. § 841 (alleging,
respectively, distribution of 225 grams of cocaine on April 19,
1982, possession with intent to distribute 225 grams of cocaine on
April 19, 1982, possession with intent to distribute 56 grams of
cocaine on April 19, 1982, and possession of .161 grams of cocaine
on April 19, 1982); in counts eight and nine with travel in
interstate commerce with the intent of distributing a controlled
substance in violation of 18 U.S.C. § 1952 (alleging, respectively,
violations on April 19, 1982, and April 18, 1982); and in count ten
with engaging in a continuing criminal enterprise (“CCE”) in
violation of 21 U.S.C. § 848. [A:26-36].
The defendants moved to suppress evidence. A suppression hearing was held on June 9 and 10, 1983, and the motion was denied on July 8, 1983. [A:73-89].
On July 11, 1983, Mr. xxxxxxx pleaded guilty to counts one and
three. On September 26, 1983, the district court sentenced Mr.
xxxxxxx to two concurrent 5-15 year terms of imprisonment. The court
also sentenced Mr. xxxxxxx to a $1,000.00 fine on count one, a
$5,000.00 fine on count three, and three years special parole on
count three. [9/26/83 Tr. 24-26].
Mr. xxxxxxx was released from
prison on parole on July 11, 1988, paid his total fine by July 1,
1993, completed his fifteen year sentence on August 11, 1993, and
completed his term of special parole on December 8, 1996. [A:539-544].
On March 20, 1996, Mr. xxxxxxx filed a pro se 28 U.S.C. § 2255 motion in the district court, which he later supplemented, asserting numerous claims. [A:171-360]. On March 28, 1998, the government filed an opposition to that motion (following several extensions of time to permit the government to locate the record in the case), arguing in large part that defendant’s motion should be denied because of delay and because of missing records and files. [A:361-402]. On May 15, 1998, Mr. xxxxxxx filed a reply. [A:403-502]. On August 5, 1998, the court appointed counsel from the Federal Public Defender’s office to represent Mr. xxxxxxx. [A:503]. Among other errors, Mr. xxxxxxx claimed he was not advised of his right to direct appeal. In response to that claim, with the government’s consent, the district court resentenced Mr. xxxxxxx on May 6, 1999. [May 6, 1999 Tr. 10-11]. On May 7, 1999, Mr. xxxxxxx filed a notice of appeal. [A:504]. The remaining § 2255 claims have been held in abeyance pending this appeal. [A:506].
B. Statement of Facts
1. The Offense and Extradition
On
April 19, 1982, James Bradley, an undercover police officer, negotiated and
completed the purchase of approximately eight ounces of cocaine powder from
xxxxxxx xxxxxxx. The purchase was negotiated through an intermediary, Robert
xxxxxxx, and was completed in Mr. xxxxxxx’s residence at xxxxx xxxxxx
Street, N.W. Mr. xxxxxxx also resided at xxxxxxx Street and was present
in the house at the time. Detective Bradley arrested xxxxxxx and xxxxxxx and
signaled police officers waiting outside, who entered the house and arrested
xxxxxxx. Mr. xxxxxxx, who was granted “use” immunity for his testimony
at the suppression hearing, told Detective Bradley that Mr. xxxxxxx was involved
in the negotiations behind the scenes. Mr. xxxxxxx disputes xxxxxxx’s
testimony and states that he was not involved in this transaction. [A:191, A:223-224].
xxxxxxx and xxxxxxx were released on personal recognizance and the government dismissed the charges in order to pursue a grand jury investigation. On November 18, 1982, when the grand jury returned the indictment, both defendants were out of the country. They were subsequently extradited from Australia and arraigned on April 18, 1983. [4/18/82 Tr.].
Throughout its prosecution of this case, the government
maintained that the defendants ran a large and sophisticated drug
trafficking business. [E.g., A:108-111]. In contrast, both
defendants contested the scope of the conspiracy and the quantity
of drugs involved, stating that they were relatively minor dealers
who transacted with friends to support their own cocaine habits.
[A:122-125; A:141; A:255]. The defendants also maintained that the
case was blown out of proportion by a possible connection with
Capital Hill, fueled by fabrications provided to the government by
Robert xxxxxxx, and that the government’s investigation and
prosecution included overreaching and misconduct. [A:123-124
(xxxxxxx told xxxxxxx he lied to prosecutors about Capital Hill
connection); A:127-133].
On appeal, Mr. xxxxxxx continues to dispute
the government’s characterization of this offense.
2. The Plea Negotiations and Change of Plea
In June and early July, 1983, the prosecutor made several phone calls to Mr. xxxxxxx’s father, requesting that he speak to his son to convince him to plead guilty. [A:235]. In these phone calls, the prosecutor also threatened to indict Mr. xxxxxxx’s father and brother if Mr. xxxxxxx did not plead guilty. Id. These threats, as well as threats to indict Mr. xxxxxxx on additional charges, were also conveyed to Mr. xxxxxxx’s attorney, Stanley Dietz, who relayed them to Mr. xxxxxxx’s father. Id. Mr. xxxxxxx’s father interpreted these threats as harassment. The threats convinced him to speak with his son. Id. Mr. xxxxxxx’s mother was aware of the phone calls and threats, and that her husband felt coerced. [A:239-240]. Sometime in early June, the prosecutor arranged for Mr. xxxxxxx’s parents to meet with their son, joined part way through by Mr. Dietz, in a room near the prosecutor’s office. [A:235-236]. Immediately prior to that meeting, the prosecutor met with Mr. xxxxxxx’s parents in his office without Mr. Dietz or Mr. xxxxxxx present. [A:235; A:238; 9/26/83 Tr. 15-16].
During the two meetings, the prosecutor and Mr. Dietz told or led Mr. xxxxxxx’s parents to believe that Mr. xxxxxxx was facing a sentence of six years with parole eligibility in three years. [A:199-200; A:235-236; A:239]. According to Mrs. xxxxxxx, the prosecutor “made it clear” that “he, [the prosecutor], would be asking for six years.” [A:239]. According to Mr. xxxxxxx, Sr., the prosecutor “said the odds were very good that the maximum sentence would . . . be six years and that [xxxxxxx] would serve no more than 36 months in jail.” [A:235-236; see also 9/26/83 Tr. 16]. Mr. Dietz advised Mr. xxxxxxx and his parents that the maximum sentence would be six years, based in part on information from the prosecutor. [9/26/83 Tr. 6]. Mr. xxxxxxx understood through his parents and attorney that the government would be requesting a sentence of six years. [A:199].
Based on the threats and what they were told about the applicable sentence, Mr. xxxxxxx’s parents advised Mr. xxxxxxx to plead guilty. [A:236; A:239]. Prior to this series of meetings, Mr. xxxxxxx had refused to plead guilty. [A:180; A:250]. Shortly after these meetings, however, Mr. xxxxxxx and Mr. Dietz signed a written plea offer. [A:71-72]. Mrs. xxxxxxx believed her son would not have agreed to plead guilty had she and her husband not persuaded him to do so. [A:239].
On July 11, 1983, Mr. xxxxxxx pleaded guilty to counts one and
three. The plea hearing is recorded in the docket but no
transcript was ever filed and the written plea agreement, though
docketed, is missing from the court file. [A:9; A:11].
Mr. xxxxxxx
signed a written waiver of his right to jury trial. [A:90]. Plato
Cacheris, who apparently attended the plea hearing in addition to
Mr. Dietz, entered an appearance on Mr. xxxxxxx’s behalf that day.
[A:91].
3. The Sentencing Hearing
Prior to sentencing, the government submitted a memorandum requesting that Mr. xxxxxxx be sentenced to two consecutive 15-year terms, or 30 years imprisonment. [A:108-118]. That memorandum also recited inflammatory facts strenuously disputed by Mr. xxxxxxx. [A:108-115; A:200-206]. Mr. xxxxxxx was not shown that memorandum until five minutes before the sentencing hearing, [A:199; A:202; A:227], and at the hearing he made an effort to dispute the facts in allocution. [9/26/83 Tr. 12-13 (see infra section III-B)]. Mr. xxxxxxx also disputed facts in the presentence report but was assured by his attorneys that the facts were either insignificant or would be addressed through his own version of the offense. [A:227]. Through his attorneys, Mr. xxxxxxx submitted the following version of the offense:
On one or more occasions, I, in the company of others, secured cocaine for friends and acquaintances. I knew it was wrong when I did it. However, I had a very severe cocaine habit at the time. I needed drugs and cash to satisfy my habit.
[A:255].
At the sentencing hearing, held on September 26, 1983, Mr. Dietz acknowledged that he mistakenly believed that a prior North Carolina misdemeanor conviction, with respect to which Dietz represented Mr. xxxxxxx, had been expunged. [9/26/83 Tr. 6]. Without this mistake, he explained, “very frankly, the deal that was made, the plea that was entered, would not have been done . . . .” He also stated “Mr. Bernstein informed me and my client’s father, Mr. xxxxxxx, Sr., that with the time that he had already spent since his arrest in Australia, and his incarceration here, that this young man would serve a little less than two years, and that was based upon what we thought would be a sentence of a maximum of approximately six years.” Id. “I say this to the Court, because I was really shocked when I saw the Government sentencing memorandum in this case for the first time on Friday afternoon.” Id. “I was really shocked that the Government would be asking for any consecutive sentences, or asking for any sentence that would result in Mr. xxxxxxx’s having to receive a sentence of more than six years, and serve on the bottom line, any more than thirty-six months.” Id. at 7.
The district court sentenced Mr. xxxxxxx to two concurrent prison terms of 5-15 years, a $1,000.00 fine on count one, a $5,000.00 fine on count three, and three years special parole on count three. [9/26/83 Tr. 24-25]. The court also requested psychiatric evaluation. Id. at 23, 25. On January 24, 1984, the court denied Mr. xxxxxxx’s motion for reconsideration of his sentence. [A:169-170].
SUMMARY OF ARGUMENT
Under 28 U.S.C. § 753(b), Rule 11(g), and the law of this Circuit, the court reporter’s failure to record the plea hearing and file a transcript of the hearing with the Clerk of the court requires setting aside the guilty plea, particularly where the defendant alleges prejudice at the plea hearing or in connection with the guilty plea. In this case, Mr. xxxxxxx asserts numerous claims of prejudice, including that his guilty plea was improperly induced or was otherwise invalid because (1) he was not informed at the plea hearing of the elements of, or factual basis for, count three, nor was he informed of the maximum sentence, including special parole and the effect and nature of special parole, and the government and defense counsel misrepresented the applicable sentence and parole eligibility in plea negotiations; (2) the government improperly threatened to bring charges against Mr. xxxxxxx that were barred by the doctrine of specialty; (3) the government improperly threatened to prosecute Mr. xxxxxxx’s father and brother; (4) Mr. xxxxxxx was incompetent at the plea hearing; and (5) Mr. Dietz, who was paid by Mr. xxxxxxx’s father and had represented Mr. xxxxxxx’s father for ten years and had represented Mr. xxxxxxx’s brother, had a conflict of interest and was also ineffective in (a) failing to protect Mr. xxxxxxx’s right not to be coerced into pleading guilty through improper threats to prosecute his father and brother and threats of charges barred by the doctrine of specialty; (b) failing to move for a competency hearing; (c) failing to advise Mr. xxxxxxx of the elements and factual basis required to prove count three and of a factual defense to count three that also applied to other counts in the indictment; (d) failing to advise Mr. xxxxxxx of various arguments that several counts in the indictment should merge; and (e) understating the maximum sentence and the time in which Mr. xxxxxxx would be eligible for parole, in part based on failure to learn that a prior North Carolina misdemeanor conviction had not been expunged.
Mr. xxxxxxx would not have pleaded guilty had he been properly advised by the court, defense counsel and the government, and had he not been threatened with additional charges against himself and his family. Under controlling precedent, Mr. xxxxxxx has several independent and overlapping legal grounds for vacating his guilty plea, based on § 753(b), Rule 11, and Mr. xxxxxxx’s Sixth Amendment right to effective assistance of counsel. In light of the court reporter’s failure to transcribe the plea hearing and file a transcript with the court and Mr. xxxxxxx’s numerous claims of prejudice at the plea hearing and in plea negotiations, the guilty plea must be set aside.
Furthermore, based on the record, including a psychiatrist’s report, the district court erred in failing to conduct a competency hearing sua sponte prior to sentencing and Mr. xxxxxxx’s attorneys were ineffective in failing to request such a hearing.
Mr. xxxxxxx also requests a remand for resentencing. The judgment and commitment order in this case must be revised to reflect the correct charges in counts one and three, a $1,000.00 fine in count one, and a total aggregate fine of $5,000.00. Mr. xxxxxxx’s attorneys were ineffective in failing to dispute facts stated by the government in the presentence report and in the government’s sentencing memorandum, including such prejudicial allegations as the contention that Mr. xxxxxxx distributed several kilograms of cocaine. His attorneys were also ineffective in failing to show Mr. xxxxxxx the government’s sentencing memorandum more than five minutes before the sentencing hearing, so that he did not have enough time to prepare to dispute the erroneous facts in allocution. The district court plainly erred in failing to resolve the factual disputes at sentencing, pursuant to Fed. R. Crim. P. 32 and due process.
ARGUMENT
I. THIS COURT SHOULD SET ASIDE MR. xxxxxxx’S PLEA OF GUILTY
A. The Court Reporter Failed to Transcribe the Plea Hearing As Required by 28 U.S.C. § 753(b) and Federal Rule of Criminal Procedure 11(g)
The Court Reporters Act provides in relevant part:
(b) Each session of the court . . . shall be recorded verbatim by shorthand, mechanical means, electronic sound recording, or any other method, . . . . Proceedings to be recorded under this section include (1) all proceedings in criminal cases had in open court; . . .
The reporter or other individual designated to produce the record shall transcribe and certify such parts of the record of proceedings as may be required by any rule or order of court, including all arraignments, pleas, and proceedings in connection with the imposition of sentence in criminal cases unless they have been recorded by electronic sound recording as provided in this subsection and the original records so taken have been certified by him and filed with the clerk as provided in this subsection. . . .
The reporter or other designated individual shall promptly deliver to the clerk for the records of the court a certified copy of the transcript so made.
28 U.S.C. § 753(b) (1982) (emphasis added). Interpreting an earlier version of this statute containing similar language, this Court explained that it “requires the following as a minimum”:
The court reporter, without charge and as a routine matter, must ‘transcribe and certify’ (i.e. type up from his original shorthand notes and file with the Clerk of the District Court) in every criminal case -- whether or not in forma pauperis, appealed or not appealed -- the proceedings on the defendant’s pleas and what transpired at sentencing. This transcription is to be performed as soon after the reported proceedings as is practicable. It is the duty of the District Court to see that henceforth the court reporters comply with the provisions of 28 U.S.C. § 753.
Poole v. United States, 250 F.2d 396, 399 (D.C. Cir. 1957). Similarly, Fed. R. Crim. P. 11(g) requires that “[a] verbatim record of the proceedings at which the defendant enters a plea shall be made . . . .”
The court reporter present at Mr. xxxxxxx’s plea hearing, Joan
Curtis Blair, did not file a transcript or any other record of the
plea hearing with the clerk of the court. [A:510-511; 10/7/99 Tr.
3; 12/9/99 Tr. 6].
It is clear that no transcript was ever
prepared and filed, as opposed to having been filed and later lost
or desxxxxxxxed. [A:510-511; A:9 (docket listing 4/18/83 and 4/22/83
transcripts but not 7/11/83 transcript)]. Thus, Ms. Blair did not
comply with the requirements of § 753(b) or with the minimal
instructions set forth in Poole and nothing in the record suggests
that she complied with Rule 11(g). [A:510-511]. Ms. Blair died
shortly after Mr. xxxxxxx’s case. [10/7/99 Tr. 3; A:511]. After
receiving affidavits from counsel who were present and the
defendant stating that they could not recall the substance of the
plea hearing, [A:509; A:514-516], the district court concluded that
it was impossible to reconstruct the record. [A:517].
The court reporter’s failure to transcribe the record is
attributable to the district court. See, e.g., United States v.
Nolan, 910 F.2d 1553, 1560 (7th Cir. 1990); United States v. Garner,
581 F.2d 481, 488 (5th Cir. 1978); Poole, 250 F.2d at 399. Mr. xxxxxxx
bears no responsibility for the missing transcript. Furthermore,
Mr. xxxxxxx is not responsible for the delay in filing this appeal,
which was caused by his attorney’s ineffective failure to advise
him of the right to appeal. [A:270-273].
To the contrary, Mr.
xxxxxxx was prejudiced by the delay in his appeal and the missing
transcript, increasing the difficulty of demonstrating procedural
and substantive errors and violating his right to due process.
See, e.g., Simmons v. Beyer, 44 F.3d 1160, 1169-70 (3d Cir. 1995)
(13-year delay in direct appeal attributable to ineffective
assistance of counsel and resulting in lost records prejudiced
defendant and violated due process); see also United States v.
Wilson, 16 F.3d 1027, 1030 (9th Cir. 1994); United States v. Mohawk,
20 F.3d 1480, 1485-86 (9th Cir. 1994); Rheuark v. Shaw, 628 F.2d
297, 303-303 & n.8 (5th Cir. 1980).
B. Standard of Review
A violation of § 753(b) does not require per se reversal; instead this Court “weigh[s] the burdens and benefits of reversing a conviction due to an incomplete transcript on a case-by-case basis.” United States v. Carrazana, 70 F.3d 1339, 1342 (D.C. Cir. 1995); see also United States v. Winstead, 74 F.3d 1313, 1321 (D.C. Cir. 1996). The Court considers “‘(1) the goal of deterring violations of the Court Reporter Act; (2) the ability (and reasonable efforts of the parties) to correct for violations of the Act by reconstructing the record; and (3) the likelihood that reversible error occurred.’” Winstead, 74 F.3d at 1321 (citing Carrazana, 70 F.3d at 1342).
This Court should vacate Mr. xxxxxxx’s plea of guilty unless it finds, based on the existing record, that the plea was voluntary, knowing, and uncoerced, and no error occurred. “Prejudice is found when a trial transcript is so deficient that it is ‘impossible for the appellate court to determine if the district court has committed reversible error.’” United States v. Huggins, 191 F.3d 532, 537 (4th Cir. 1999) (citing Nolan, 910 F.2d at 1560), cert. denied, ___ S. Ct. ___, 2000 WL 575156 (May 15, 2000); see also Boykin v. Alabama, 395 U.S. 238, 242-43 (1969) (whether guilty plea was voluntary cannot be presumed from silent record); Wilson, 16 F.3d at 1031(“we cannot say that Wilson’s appeal lacked merit, or that his conviction would have been affirmed had the court reporter done her job properly and promptly. . . . We cannot determine without reviewing the transcript whether he had a fair trial.”)
Mr. xxxxxxx’s claims also arise directly under Rule 11. At the time of Mr. xxxxxxx’s plea, Rule 11 errors were subject to per se reversal pursuant to McCarthy v. United States, 394 U.S. 459 (1969), or at least a “very lenient” standard of review. United States v. Barker, 514 F.2d 208, 221 (D.C. Cir. 1975) (citing McCarthy). On August 1, 1983, Rule 11 was amended to specifically provide for a harmless error standard of review. See Fed. R. Crim. P. 11(h) (1983); United States v. Dewalt, 92 F.3d 1209, 1213 (D.C. Cir. 1996); United States v. Lyons, 53 F.3d 1321, 1322 n.1 (D.C. Cir. 1995). Moreover, the burden of showing harmlessness falls on the government. See Dewalt, 92 F.3d at 1215 (“the Government has the burden of persuading us that the Rule 11 error did not affect the outcome . . .”). This Court should apply the same standard of review to Mr. xxxxxxx’s assertions of errors during plea negotiations because “Rule 11 cracks open the door behind which plea bargains are struck; appellate review and supervision of guilty pleas is facilitated by the district court’s making a record from which we can discern whether the defendant’s plea was knowing and voluntary.” Dewalt, 92 F.3d at 1213.
Finally, to show ineffective assistance of counsel, Mr. xxxxxxx must demonstrate “that counsel’s representation fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). To the extent that Mr. xxxxxxx’s claims of ineffective assistance of counsel (made in connection with all three issues raised on appeal) require additional factual inquiry, Mr. xxxxxxx respectfully requests that they be remanded to the district court.
C. Mr. xxxxxxx Was Prejudiced in Plea Negotiations and at the Plea Hearing
1. Mr. xxxxxxx Was Not Correctly Advised at the Plea Hearing Regarding the Factual Basis and Elements of Count Three or Regarding the Maximum Sentence
As explained, there is no verbatim record of the plea
hearing.
Mr. xxxxxxx recalled:
I can say without question [ ] that at no time did the subject of Special Parole come up. There was no mention from any source as to the minimum mandatory of three years, or possible lifetime term; no discussion as to its nature or particulars or that it would be in addition to, and would come after, any other period of regular parole.
As I have before stated in my pro se pleadings in the § 2255 portion of this case, I was, as well, not advised by the court, or by any other source, of the essential elements of the second of the two counts to which I then pleaded guilty and upon which the Special Parole term was ultimately imposed, Count Three -- Possession [with] the Intent to Distribute the nearly ten ounces of cocaine that my co-defendant, xxxxxxx xxxxxxx, sold to undercover authorities on the night of April 19, 1982.
[A:514].
Mr. xxxxxxx’s recollection is undisputed. Mr. xxxxxxx further
stated:
[H]ad I known then what I know today, in particular about Special Parole and the legal elements associated with my guilty-plea to Count Three, Possession with the Intent to Distribute Cocaine, I absolutely would not have pleaded guilty to that particular offense.
[A:515].
“[T]he defendant’s understanding of the crime to which he is admitting guilt is one of the ‘core considerations’ of Rule 11, that ‘manifestly must lie at the heart of any respectable system for settling (as opposed to trying) criminal charges.’” United States v. Ford, 993 F.2d 249, 253 (D.C. Cir. 1993) (citation omitted). Failure to advise the defendant of the factual basis for and/or elements of the charge, therefore, violates Rule 11. See, e.g., Dewalt, 92 F.3d at 1214-15 (lack of evidence in record that defendant was aware of mens rea element or, had he understood, that he would have pleaded guilty, requires vacating plea); Ford, 993 F.2d at 251-54 (omission of fact that gun was found in defendant’s bedroom at plea hearing, where defendant contested possession, requires vacating plea); United States v. Syal, 963 F.2d 900, 904-05 (6th Cir. 1992) (“district court must be satisfied, after discussion with the defendant in open court, that the defendant understands the elements of the offense”). As in Ford, where the defendant did not understand the requirements for gun possession at the time of his plea and later asserted his innocence, 953 F.2d at 252, in this case, once Mr. xxxxxxx understood what was required to show possession with intent to distribute narcotics, he asserted his innocence on that charge. [A:222-224].
The failure to advise Mr. xxxxxxx of the maximum sentence --
including special parole -- also violates Rule 11.
See, e.g.,
United States v. Thorne, 153 F.3d 130, 133-34 (4th Cir. 1998)
(reversing plea for failure to advise of supervised release and its
nature, where defendant was advised that maximum was less than
total sentence received); United States v. Roberts, 5 F.3d 365,
369-70 (9th Cir. 1993) (same); United States v. Bounds, 943 F.2d
541, 545-46 (5th Cir. 1991) (same); United States v. Watson, 548
F.2d 1058, 1061 (D.C. Cir. 1977) (Rule 11 requires court to inform
defendant of special parole term); see also Fed. R. Crim. P.
11(c)(1) advisory committee’s note (1982 amendments). Furthermore,
the district court violated Rule 11 by failing to advise Mr. xxxxxxx
of the nature and effect of special parole and the fact that, in
the event of revocation, he would lose credit for time spent on
special parole. See, e.g., United States v. Osment, 13 F.3d 1240,
1243 (8th Cir. 1994) (failure to advise of supervised release
violates Rule 11 even where maximum sentence imposed is less than
maximum referred to at plea hearing because of consequences of
revocation); Syal, 963 F.2d at 905-06 (same); United States v.
Hekimain, 975 F.2d 1098, 1102-03 (5th Cir. 1992) (same); United
States v. Sharon, 812 F.2d 1233, 1234 (9th Cir. 1987) (same).
In addition, Mr. xxxxxxx received incorrect advice and
information from both the prosecutor and Mr. Dietz, as conveyed by
his parents and attorney, regarding the applicable sentence of
imprisonment and his parole eligibility on both counts. As
explained above, Mr. Dietz believed that the maximum sentence was
six years, in part based on information from the prosecutor.
[9/26/83 Tr. 6]. Mr. Dietz also thought that the North Carolina
misdemeanor conviction had been expunged and was “shocked” at the
government’s request for a thirty-year sentence.
Mr. xxxxxxx’s
parents understood from both the prosecutor and Mr. Dietz that Mr.
xxxxxxx faced a sentence of six years with parole eligibility in three
years and convinced their son to plead guilty on that basis.
[A:235-239]. Based on all of the information he received, Mr. xxxxxxx
thought he faced a six-year sentence with parole eligibility in
three years. [A:179-181; A:198-199].
Mr. xxxxxxx would not have pleaded guilty had he understood the
applicable sentence. [A:181; A:184; A:220-221]. Accordingly, the
plea must be vacated because it was based on an incorrect
understanding of the sentence. See, e.g., United States v. Watley,
987 F.2d 841, 847-48 (D.C. Cir. 1993) (misunderstanding that
minimum and maximum sentences were both ten years required
reversing plea); United States v. Russell, 686 F.2d 35, 41 (D.C.
Cir. 1982) (prosecutor’s misrepresentation that plea to misdemeanor
would not subject defendant to deportation required reversal of
guilty plea).
Furthermore, Mr. Dietz’s failure to correctly
advise Mr. xxxxxxx of the applicable sentence and parole eligibility
date was ineffective and requires reversal of his plea. See, e.g.,
United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998)
(counsel’s underestimate of sentence exposure was ineffective and
prejudicial).
2. The Plea Agreement Was Coerced by Improper Threats To Indict Mr. xxxxxxx on Charges Prohibited by the Doctrine of Specialty and the 1974 Extradition Treaty Between the United States and Australia
In negotiating a plea agreement with Mr. xxxxxxx, the government
threatened to indict him on post-extradition visa and tax charges
if he did not agree to plead guilty. The plea offer signed by Mr.
xxxxxxx requested the government “[t]o abstain from prosecuting any
criminal income tax violations of the Defendant . . .” and “[t]o
abstain from prosecuting any violations of the Defendant relating
to his obtaining any false passport and visa.” [A:271].
The
presentence report also stated these terms in its description of
the plea agreement. [A:101]. The government’s threats were
improper because the government was barred from prosecuting these
offenses under the extradition treaty with Australia, the
extradition documents in this case, and the “doctrine of
specialty.”
The extradition treaty with Australia in effect in 1983 provided:
Article XIV
(1) A person extradited under this Treaty may be detained, tried or punished in the territory of the requesting State for any offense mentioned in Article II for which the person could be convicted upon proof of the facts upon which the request for extradition was based.
(2) Except as provided [in] paragraph (1) of this Article, a person extradited under this Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted . . . .
1974 Treaty of Extradition Between the United States and Australia, 27 U.S.T. 957 (copy in addendum). The offenses listed in Article II of the Treaty do not include visa or tax offenses. Id.
Under the doctrine of specialty, incorporated in the
extradition treaty with Australia, the government did not have
authority to prosecute Mr. xxxxxxx for any offenses other than those
for which Australia agreed to extradite him. See, e.g., United
States v. Rauscher, 119 U.S. 407, 419-20 (1886) (under
international law, “the country receiving the offender against its
laws from another country had no right to proceed against him for
any other offense than that for which he had been delivered up”);
United States v. Sensi, 879 F.2d 888, 895 (D.C. Cir. 1989)
(“doctrine of specialty requires a correspondence between the
charges contained in the indictment and the facts presented to the
British magistrate”); see also United States v. Khan, 993 F.2d
1368, 1373 (9th Cir. 1993) (discussing doctrine of specialty).
Furthermore, the affidavits supporting extradition in this
case do not cite facts that establish probable cause for visa or
tax offenses. [A:37-60]. The document authorizing extradition
for Mr. xxxxxxx is missing from the records but the comparable
document for Mr. xxxxxxx lists only offenses stated in the
indictment, [A:62],
and nothing in the record suggests that visa
or tax offenses were listed in the document authorizing Mr. xxxxxxx’s
extradition.
It was improper for the government to induce a plea by promising not to prosecute visa and tax charges that it did not have authority to prosecute. It was also ineffective for Mr. xxxxxxx’s counsel to fail to advise Mr. xxxxxxx that the government could not prosecute those charges. In addition, it is not clear that those terms were stated in open court at the plea hearing and a failure to do so would require reversal of the plea. See, e.g., United States v. Roberts, 570 F.2d 999, 1006-07 (D.C. Cir. 1977) (reversing for failure to state terms of plea agreement regarding government allocution at plea hearing). Mr. xxxxxxx would not have pled guilty absent these threats. [A:183-184].
3. The Plea Agreement Was Coerced by Improper Threats To Prosecute Mr. xxxxxxx’s Father and Brother
During plea negotiations, the government also threatened to indict Mr. xxxxxxx’s father and brother on related charges if he refused to plead guilty. [A:235; A:180-181]. These threats were improper unless the government had probable cause to indict family members at the time. See, e.g., United States v. Wright, 43 F.3d 491, 497-99 (10th Cir. 1994); United States v. Pollard, 959 F.2d 1011, 1021 (D.C. Cir. 1992); United States v. Whalen, 976 F.2d 1346, 1348-49 (10th Cir. 1992). Here, there is no evidence that the government had probable cause or had even opened an investigation into actions by Mr. xxxxxxx’s father and brother. The government’s sentencing memorandum alleges only that Mr. xxxxxxx was “assisted” by his younger brother in establishing a network of customers and that Mr xxxxxxx exchanged cash for cashier’s checks payable to his father, [A:110-111], strongly suggesting that the government did not have probable cause.
In addition, pleas based on lenient treatment for family members are inherently coercive and should receive closer scrutiny on appeal. See Bordenkircher v. Hayes, 434 U.S. 357, 364 n.8 (1978) (plea bargaining involving “adverse or lenient treatment for some person other than the accused . . . might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider” (emphasis in original)); United States v. Nuckols, 606 F.2d 566, 569 (5th Cir. 1979) (guilty pleas made in consideration of “lenient treatment as against third persons pose a greater danger than purely bilateral plea bargaining,” requiring prosecutors to exercise “high standard of good faith”).
Furthermore, Rule 11 requires that the entire plea agreement be stated in open court. See, e.g. United States v. Daniels, 821 F.2d 76, 79-80 (1st Cir. 1987) (failure to disclose wired nature of plea at plea hearing requires vacating guilty plea); Roberts, 570 F.2d at 1006-07; see also United States v. Farley, 72 F.3d 158, 164 n.5 (D.C. Cir. 1995) (“district court should be informed” because “wired plea presents a greater risk of coercion” but finding harmless error). It is highly unlikely that the threats against family members were discussed at the plea hearing as part of the plea agreement, since they were not mentioned in any other court proceedings or records or in the description of the terms of the plea described in the presentence report. [A:190-191].
Mr. xxxxxxx would not have pled guilty absent these threats. [A:179; A:183-184].
4. Mr. xxxxxxx May Have Been Incompetent at the Time of the Plea Hearing
Approximately one month after the plea hearing, a psychiatrist who treated Mr. xxxxxxx on a weekly basis at the time of the plea hearing stated that Mr. xxxxxxx’s visits throughout that time period were characterized by “hefty explosions [and] wild utterings” and that at times, his thought processes were “totally ‘off the wall,’” though there was no evidence of “a thinking disorder, delusions or hallucinations.” [A:194]. In connection with his § 2255 motion, Mr. xxxxxxx submitted affidavits from his brother and Mr. xxxxxxx stating that, on July 9th or 10th, 1983, a day or two before the plea hearing, xxxxxxx consumed so much cocaine that he suffered from convulsions, similar to “an epileptic seizure,” following which he was unconscious for several minutes and then disoriented. [A:241-242; A:244]. He was “not himself the next day,” [A:242], was “noticeably impaired” the day of the plea hearing, [A:246], and also apparently suffered from strain and depression. [A:241-242; A:246-248].
Absent a record, there is nothing to show that the Court established that Mr. xxxxxxx was competent to enter a plea at the plea hearing. Cf. Sanders v. United States, 373 U.S. 1, 19-20 (1963) (petitioner given narcotics by prison authorities may have been unable to knowingly waive constitutional rights at time of plea); United States v. Damon, 191 F.3d 561, 564-66 (4th Cir. 1999) (district court erred in failing to determine whether antidepressant medication could have rendered defendant incompetent to enter plea). The evidence suggests that Mr. xxxxxxx in fact may not have been competent to enter a plea and therefore, that the lack of a record establishing competency was not harmless.
5. Mr. xxxxxxx’s Attorney Was Ineffective and Had a Conflict of Interest
Mr. xxxxxxx’s father hired Mr. Dietz to represent his son. In
1983, Mr. Dietz had represented Mr. xxxxxxx’s father for ten years.
[4/22/83 Tr. 5]. Mr. Dietz represented Mr. xxxxxxx, Sr. in connection
with grand jury proceedings in this case, forfeiture proceedings
related to this case, and also in connection with his divorce from
Mr. xxxxxxx’s mother, which was ongoing at the time of this case.
[A:212]. Mr. Dietz had also represented Mr. xxxxxxx’s brother.
[A:213]. Mr. Dietz was a friend and golfing companion of Mr.
xxxxxxx’s father and had received personal loans from him. [A:212].
Once Mr. Dietz learned of government threats to indict Mr.
xxxxxxx’s father and brother on related charges if Mr. xxxxxxx did not
plead guilty, he violated his professional responsibility by
continuing to represent Mr. xxxxxxx. See, e.g., Griva v. Davidson,
637 A.2d 830, 838 (D.C. 1994) (multiple representation that “‘would
be likely to involve . . . representing different interests,’”
permitted “only if (1) it is ‘obvious’ that the attorney can
adequately represent the interests of each [client] and (2) ‘each
consents’ to the representation (3) after ‘full disclosure.’”
(citing D.C. Code of Professional Responsibility (applicable before
1991))). Instead of disclosing the conflict of interest and
withdrawing from representation, Mr. Dietz met with Mr. xxxxxxx, told
him of the threats made by the government and advised Mr. xxxxxxx to
plead guilty to count ten of the indictment, a CCE violation.
[A:215]. Mr. xxxxxxx refused to do so because he was innocent of
that charge. Id. With the assistance of Mr. xxxxxxx’s parents, Mr.
Dietz was ultimately successful in convincing Mr. xxxxxxx to plead
guilty to counts one and three.
In showing ineffectiveness resulting from a conflict of
interest, “[p]rejudice is presumed [ ] if the defendant
demonstrates that counsel ‘actively represented conflicting
interests’ and that ‘an actual conflict of interest adversely
affected his lawyer’s performance.’” Strickland, 466 U.S. at 692
(citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)); see also
Perillo v. Johnson, 205 F.3d 775, 781-82 (5th Cir. 2000); United
States v. Taylor, 139 F.3d 924, 930 (D.C. Cir. 1998). Mr. Dietz
had an actual conflict of interest in persuading Mr. xxxxxxx to plead
guilty while at the same time representing the interests of his
father and brother in avoiding indictment through Mr. xxxxxxx’s guilty
plea. Mr. Dietz also had an actual conflict resulting from the
fact that Mr. xxxxxxx’s father, who was himself being threatened with
indictment, was paying his attorney’s fees. See, e.g., Wood v.
Georgia, 450 U.S. 261, 271-72 (1981); Amiel v. United States, 209
F.3d 195, 198-99 (2d Cir. 2000).
This conflict adversely affected
Mr. Dietz’s performance in Mr. xxxxxxx’s case when he urged Mr. xxxxxxx
to plead guilty and when he failed effectively to represent Mr.
xxxxxxx’s interests in negotiating with the government and failed to
advise Mr. xxxxxxx of legal and factual claims, as explained below.
Mr. Dietz provided ineffective advice in connection with the
plea negotiations regarding several matters. Mr. Dietz failed to
advise Mr. xxxxxxx that counts two and three of the indictment should
merge, since possession with intent to distribute is a lesser
included offense of distribution under 21 U.S.C. § 841, unless the
government proves facts distinguishing the two counts. See, e.g.,
United States v. Gore, 154 F.3d 34, 43 (2d Cir. 1998) (collecting
cases); see also United States v. Randall, 171 F.3d 195, 210 (4th
Cir. 1999); United States v. Sepulveda, 102 F.3d 1313, 1317 (1st
Cir. 1996). He also failed to advise Mr. xxxxxxx that counts three
through five should constitute one offense because they involved a
single act of possession of several quantities of cocaine recovered
from xxxxxxx Street on April 19, 1982. See, e.g., United
States v. Johnson, 909 F.2d 1517, 1519 (D.C. Cir. 1990) (“Where .
. . defendant possessed the same controlled substance in the same
place at the same time, he committed only one act of possession.”)
Mr. Dietz was ineffective in failing to advise Mr. xxxxxxx of the
elements of count three or the requirement that, to prove
possession, he must have exercised dominion and control over the
cocaine. [A:222-224]. Thus, Mr. xxxxxxx was unaware of a valid
factual defense to count three.
Furthermore, any valid factual
defense to count three would also apply to counts two through five
and eight and nine, each of which involved the April 19, 1982,
transaction, activities leading up to that transaction, or drugs
recovered from xxxxxxx Street, leaving only the conspiracy
and CCE counts. Mr. Dietz was ineffective in failing to advise Mr.
xxxxxxx that the conspiracy and CCE charges, counts one and ten of the
indictment, merged. See, e.g., Rutledge v. United States, 517 U.S.
292, 300 (1996) (§ 846 conspiracy is lesser included offense of §
848 CCE); Jeffers v. United States, 432 U.S. 137, 150 (1977)
(same).
Thus, Mr. xxxxxxx agreed to plead guilty on the basis of a
bargain that did not take into account the likely dismissal of
several counts of the indictment and the strength of his legal and
factual position at trial. Had he successfully made these
challenges, he would have faced a single count of conspiracy or
CCE.
In sum, in the course of plea negotiations, Mr. Dietz (1)
failed to withdraw from representation in the face of a direct
conflict of interest and urged Mr. xxxxxxx to plead guilty,
representing his father’s and brother’s interests to the detriment
of Mr. xxxxxxx’s interests; (2) failed to advise Mr. xxxxxxx that the
government could not bring visa and tax claims under the doctrine
of specialty; (3) failed to advise Mr. xxxxxxx that the government
could not use threats to indict family members in plea negotiations
without probable cause; (4) failed to advise Mr. xxxxxxx that at least
two counts in the indictment could not be sustained under the
Double Jeopardy Clause; (5) failed to advise Mr. xxxxxxx that he had
a valid factual defense to counts two through five and eight and
nine; (6) failed to advise Mr. xxxxxxx correctly regarding the
applicable sentence, parole eligibility, and that his North
Carolina misdemeanor conviction had not been expunged; and (7)
failed to request a competency hearing.
It is probable that, to
a large degree, Mr. Dietz’s ineffectiveness resulted from his
conflict of interest.
These allegations of ineffectiveness
satisfy both the standard for prejudice generally applied to claims
of ineffectiveness under Strickland and the more liberal standard
set forth in Cuyler, as well as standards applicable for prejudice
under § 753(b) and Rule 11.
In Hill v. Lockhart, 474 U.S. 52, 57-59 (1985), the Supreme Court held that to challenge a guilty plea based on ineffective advice of counsel the defendant must show, consistent with Strickland, (1) “that counsel’s representation fell below an objective standard of reasonableness,” and (2) “that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” In Hill, defense counsel advised the petitioner that he would be eligible for parole after one-third of his sentence, when applicable law provided that offenders with prior sentences would be eligible instead after one-half their sentences. On remand from the Supreme Court, the petitioner succeeded in showing ineffectiveness. See Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir. 1990) (en banc), affirming 877 F.2d 698 (8th Cir. 1989). This case presents identical circumstances in that Mr. Dietz, unaware of the status of the North Carolina conviction, advised Mr. xxxxxxx he would be eligible for parole in three years and Mr. xxxxxxx would not have pleaded guilty absent that advice.
In United States v. Loughery, 908 F.2d 1014 (D.C. Cir. 1990), this Court set aside a guilty plea f