ORAL ARGUMENT NOT YET SCHEDULED
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
NO. 01-3088
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, entered a guilty
plea 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, certify and file a verbatim
record or transcript of the plea hearing held on July 11, 1983, in
violation of the Court Reporters Act, 28 U.S.C. § 753(b), and Fed.
R. Crim. P. 11(g); (2) defects in the plea colloquy held before the
district court (the Honorable Thomas F. Hogan) on July 11, 1983,
pursuant to Fed. R. Crim. P. 11, including failure to advise
defendant of the elements of, factual basis for, and maximum
sentence on count three, failure to assure the plea was voluntary,
and failure to state all the terms of the plea agreement on the
record in open court or, alternatively, failure to inquire into
defense counsel’s conflict of interest; (3) government coercion of
the guilty plea through (a) threats to prosecute defendant’s father
and brother; (b) threats to prosecute defendant with visa and tax
charges prohibited by the extradition treaty between the United
States and Australia and the doctrine of specialty; and (c)
misrepresentation of the sentence and the government’s proposed
allocution; (4) ineffective assistance of counsel including (a) a
conflict between defendant’s interests and those of his father and
brother; (b) misstatement of the maximum sentence defendant would
receive; (c) failure to advise defendant regarding various factual
and legal defenses, including merger of several counts in the
indictment under the Double Jeopardy Clause; and (d) other
ineffectiveness including failure to advise defendant regarding
improper government coercion of the guilty plea and regarding a
motion to withdraw the plea. Defendant also seeks reversal of his
sentence based on violations of due process and Fed. R. Crim. P. 32
and ineffective assistance of counsel at sentencing. [9/26/83
Tr.].
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). In 1996, Mr. xxxxxxx filed a 28
U.S.C. § 2255 motion in the district court that has been held in
abeyance pending the disposition of this appeal. Order, United
States v. xxxxxxx, Cr. No. 82-339, Civ. No 96-550 (D.D.C. May 10,
1999) [A:581].
On May 6, 1999, the district court resentenced Mr.
xxxxxxx, he appealed his conviction and sentence, and on September 25,
2000, this Court vacated the new sentence and ordered the district
court to reconsider its decision to resentence Mr. xxxxxxx pursuant to
Roe v. Flores-Ortega, 528 U.S. 470 (2000). Judgment, United States
v. xxxxxxx, D.C. Cir. Case No. 99-3064 (D.C. Cir. September 25, 2000)
[A:664-65]. On reconsideration, the district court found
ineffective assistance of counsel and again resentenced Mr. xxxxxxx to
enable him to note a direct appeal. Order and Judgment, xxxxxxx,
Dist. Ct. Cr. No. 82-339 (D.D.C. July 16, 2001) [A:668-78].
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. Mr. xxxxxxx is currently seeking a certificate
of appealability to appeal the denial of a 28 U.S.C. § 2255 motion
in that case. 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. 01-3088
BRIEF OF APPELLANT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
xxxxxxx xxxxxxx xxxxxxx, JR., Defendant-Appellant.
JURISDICTION
Defendant xxxxxxx xxxxxxx xxxxxxx, Jr., was originally sentenced in
this case on September 26, 1983. On July 16, 2001, he was
resentenced so that he could pursue a direct appeal. His notice of
appeal was filed on July 17, 2001. 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 vacate defendant’s guilty plea
based on the court reporter’s failure to record and file a
transcript of the plea hearing, in violation of 28 U.S.C. § 753(b)
and Fed. R. Crim. P. 11(g), particularly in light of defendant’s
claims that the plea was involuntary, unknowing and coerced. 2. Whether defendant’s guilty plea should be set aside under
Rule 11 due to (a) failure to advise defendant of the elements of,
factual basis for and maximum sentence on count three; (b) failure
to ensure that the plea was not coerced; and (c) failure to state
all of the terms of the plea agreement in open court, and/or
failure to recognize and inquire into defense counsel’s conflict of
interest relating to defendant’s father.
3. Whether the government coerced defendant’s plea through
(a) improper threats to prosecute xxxxxxx’s father and brother; (b)
improper threats to bring visa and tax charges against defendant
that were barred by the extradition treaty between the United
States and Australia and the doctrine of specialty; and (c)
misrepresentation of the sentence to be imposed and the
government’s planned allocution at sentencing.
4. Whether the plea should be reversed as a result of
ineffective assistance of counsel including (a) defense counsel’s
conflict of interest relating to defendant’s father and brother;
(b) counsel’s misstatement of the maximum sentence defendant would
receive and his parole eligibility, based on failure to determine
the status of a prior conviction; (c) counsel’s failure to advise
defendant regarding legal and factual defenses to many counts in
the indictment, including merger of several counts under the Double
Jeopardy Clause; and (d) other ineffectiveness including counsel’s
failure to advise defendant regarding improper government coercion
and a pre-sentence motion to withdraw the guilty plea.
5. Whether the district court plainly erred in relying on
false and unreliable factual information at sentencing, in
violation of due process and Fed. R. Crim. P. 32(c)(3)(D), and
whether counsel were ineffective for failing to dispute facts
alleged by the government at sentencing and failing to keep xxxxxxx
informed of those facts.
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 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 to distribute a
controlled substance on April 19, 1982, and April 18, 1982,
respectively, in violation of 18 U.S.C. § 1952; and in count ten
with engaging in a continuing criminal enterprise (“CCE”) in
violation of 21 U.S.C. § 848. [A:30-40].
The district court
denied defendants’ motion to suppress on July 8, 1983. [A:99-115].
On July 11, 1983, defendant entered a guilty plea to counts
one and three. On September 26, 1983, the district court sentenced
defendant to two concurrent 5-15 year terms of imprisonment, 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].
On January 24, 1984, the court denied defendant’s motion for
reconsideration of his sentence. [A:195-96].
On March 20, 1996, defendant filed a 28 U.S.C. § 2255 motion,
which he later supplemented, asserting numerous claims. [A:249-438].
After several extensions of time during which the
government attempted to locate the record in the case, the
government filed an opposition to that motion on March 28, 1998,
[A:439-479], and defendant filed a reply on May 15, 1998. [A:480-579]. The court appointed counsel to represent xxxxxxx on August 5,
1998. [A:580].
Among other errors, xxxxxxx claimed his attorneys failed to
advise him of the right to direct appeal. The district court
resentenced xxxxxxx on May 6, 1999, with the government’s consent,
[5/6/99 Tr. 10-11], and held xxxxxxx’s remaining § 2255 claims in
abeyance. [A:581]. xxxxxxx appealed his claims. On September 25,
2000, this Court vacated the new sentence and ordered the district
court to reconsider its decision to grant defendant the right to
direct appeal pursuant to Roe v. Flores-Ortega, 528 U.S. 470
(2000). [A:664-65]. After briefing and an evidentiary hearing,
the district court ruled that defense counsel were ineffective for
failing to advise defendant regarding his right to direct appeal.
[5/16/2001 Tr. 62-66; A:668-70]. On July 16, 2001, the court
resentenced xxxxxxx, issuing a new judgment and commitment order,
[A:671-78], and on July 17, 2001, xxxxxxx filed this notice of appeal.
[A:679].
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 Finkel, and was
completed in the home of xxxxxxx’s parents, where xxxxxxx lived,
at 2929 Ellicott Street, N.W. xxxxxxx also resided at 2929 Ellicott
Street and was present in the house at the time. Detective Bradley
arrested Finkel and xxxxxxx and signaled police officers waiting
outside, who entered the house and arrested xxxxxxx.
Finkel told Detective Bradley that xxxxxxx was involved in the
negotiations behind the scenes. Both xxxxxxx and xxxxxxx have
subsequently stated, however, that xxxxxxx did not have actual or
constructive possession of the cocaine sold on April 19, 1982.
[A:301; A:321-22]. According to xxxxxxx and xxxxxxx, xxxxxxx
obtained that cocaine on consignment from Paul Gerdon, xxxxxxx’s
primary cocaine supplier. Id.
After their arrest, xxxxxxx and xxxxxxx were released on
personal recognizance and the government dismissed the charges to
pursue a grand jury investigation. On November 18, 1982, the grand
jury returned the indictment. Both defendants were subsequently
extradited from Australia and arraigned on April 18, 1983.
[4/18/82 Tr.].
2. The Alleged Conspiracy and Disputes Regarding Its
Scope
Throughout its prosecution of this case, the government
maintained that the defendants ran a large and sophisticated drug
trafficking business. Defendants vehemently contested the
government’s allegations of the scope of the conspiracy and the
quantity of drugs involved, claiming that they were relatively
minor dealers who transacted with friends to support their own
cocaine habits. [A:144-47; A:163; A:333]. Defendants also
maintained that the case was blown out of proportion by an alleged
connection with Capitol Hill, fueled by fabrications provided by
Finkel, and that the government’s investigation and prosecution
included overreaching and misconduct. [A:145-46; A:149-55; A:173-74; A:178-79; 4/18/83 Tr. 23-24].
The government’s description of the conspiracy, as stated in
the “prosecution version” of the offense in the presentence report
(PSR) and in the government’s sentencing memorandum, is apparently
based on information provided by three witnesses, Robert Finkel,
xxxxxxx xxxxxxx, and Michael xxxxxxx. Citing those witnesses, [A:121],
for example, the PSR states:
Defendant xxxxxxx reportedly was the “brains”
behind the conspiracy and the main drug
supplier. xxxxxxx allegedly purchased his
cocaine in kilos and during 1979 supplied
codefendant xxxxxxx with four to eight ounces
per week for resale and use. Between 1980 and
1981, xxxxxxx reportedly supplied xxxxxxx with
ten ounces per week for resale and use.
[A:122]. In its sentencing memorandum, the government adds that
xxxxxxx said xxxxxxx used an airplane to import drugs, that she helped
xxxxxxx count $240,000.00, and that she helped launder money. [A:132-33].
These witnesses’ statements, however, do not support the
government’s allegations. xxxxxxx, whose apartment was used to store
cocaine, apparently had no knowledge of the scope of defendants’
activities. [A:46-49]. Finkel told xxxxxxx he fabricated
allegations that were untrue for the sole purpose of obtaining
lenient treatment in his own case, including shortly after the 1982
arrest when “he had already begun tantalizing the prosecutors with
names of prominent Capitol Hill figures, who, he would say, had
purchased cocaine from him or Mr. xxxxxxx,” according to
xxxxxxx’s sentencing memorandum. [A:145-46; see also A:154].
In
a 1997 affidavit, xxxxxxx, also named xxxx xxxxxxx, recants statements she made
to the government at that time, explaining that she was arrested at night, “interrogated
until morning,” threatened with incarceration of her brother who had just
had a baby, and told that her life was in danger and that “persons unknown
wanted [her] dead.” [A:437]. She was “never more frightened and
feared for [her] life.” Id.
Out of fear, xxxxxxx agreed with statements made by the government and Finkel
that were not true. [A:437-38]. Recanting those statements, she now states for
example that she never saw xxxxxxx with as much as a kilogram of cocaine, she
never knew of any “money laundering,” she never saw $200,000.00
in her life, and she was unaware of any airplane use by xxxxxxx. Id.
Moreover, a federal magistrate judge, the district court for
the Middle District of Pennsylvania, and the Third Circuit found no
rational basis for the U.S. Parole Commission’s conclusion that
this conspiracy involved more than one kilogram of cocaine, in
decisions discrediting the government’s unsupported allegations
against xxxxxxx as well as xxxxxxx. xxxxxxx v. Lansing, 839 F.2d
933 (3d Cir. 1988); [A:207-248 (xxxxxxx v. Lansing, Case No. 85-860 (M.D. Pa.) (unpublished district court decisions)). That case
involved xxxxxxx’s parole eligibility, which was based on the
Commission’s determination that xxxxxxx was responsible for one-to-five kilograms of cocaine. The Commission, ordered to provide
evidence supporting its determination, cited xxxxxxx’s PSR and
statements by xxxxxxx and Finkel. xxxxxxx, 839 F.2d at 938;
[A:226]. xxxxxxx’s PSR contained exactly the same allegations as
xxxxxxx’s PSR, stating:
xxxxxxx allegedly purchased his cocaine in kilos
and during 1979 supplied xxxxxxx with 4-8
ounces per week for resale and use. Between
1980-1981 xxxxxxx reportedly supplied xxxxxxx
with ten ounces per week for resale and use. .
. . According to Assistant U.S. Attorney
Daniel Bernstein, between 1979-1982 evidence
would show that codefendant xxxxxxx was
purchasing cocaine in kilos.
[A:217 (citing xxxxxxx PSR)].
The magistrate judge found that
the allegations cited by the Commission “presented no minimum
indicium of reliability” and, thus, did not provide a rational
evidentiary basis for the Commission’s conclusions. [A:221; see
also A:217-18]. The district court and the Third Circuit agreed.
xxxxxxx, 839 F.2d at 937-39, 942-44; [A:229 (Commission’s finding
of more than one kilogram of cocaine “remains founded on rumor and
innuendo and made in absence of reliable facts”)]. No additional
evidence in xxxxxxx’s case justifies a different conclusion here.
3. Defense Counsel’s Representation of Defendant’s
Father and Brother
xxxxxxx’s father, xxxxxxx xxxxxxx, Sr., hired and paid for Stanley
Dietz to represent his son. [A:666].
Mr. Dietz told the court
that Mr. xxxxxxx, Sr., “has been my client for, I guess, ten years,
about ten years or so . . . .” [4/22/83 Tr. 5]. Mr. Dietz had
also represented xxxxxxx’s brother. [A:291]. Mr. Dietz represented
xxxxxxx 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 xxxxxxx’s mother. [A:197-99; A:290;
see also 4/22/83 Tr. 25 (“The father has been in the grand
jury.”)]. Mr. Dietz was a friend and golfing companion of xxxxxxx’s
father and had received personal loans from him. [A:290]. Mr.
Dietz thought “very, very highly of xxxxxxx xxxxxxx Senior. He is a very
good person. . . he is what I would call a true blue American.”
[4/22/83 Tr. 13].
4. The Government Threats, Plea Negotiations and
Change of Plea
According to an August 31, 1983, article by Jack Anderson,
“xxxxxxx xxxxxxx, 23, for months refused to plead guilty.” [A:328].
That article also states that the prosecutor obtained a guilty plea
only by “relentlessly pressuring” xxxxxxx, and that Stanley Dietz,
xxxxxxx’s attorney during plea negotiations, told Anderson the
prosecutor “threatened to investigate other members of the xxxxxxx
family if his client failed to enter a guilty plea.” Id.
According to xxxxxxx’s father, after his son’s arraignment, the
prosecutor made a series of phone calls to him at his office to
pressure him to convince his son to plead guilty. [A:313; 9/26/93
Tr. 14]. The prosecutor, he states, “threatened to have me and
others of my children indicted on related charges and to sic the
IRS on us.” [A:313]. These threats and threats to indict xxxxxxx on
visa and tax charges were also made to Mr. Dietz, who conveyed them
to xxxxxxx’s father. Id. Although xxxxxxx’s parents were separated, his
mother was aware of the phone calls and threats, and that her
husband felt coerced. [A:317-18].
xxxxxxx’s father interpreted the threats as harassment and the
threats convinced him to speak with his son. [A:313]. The
prosecutor arranged a meeting in a conference room at the U.S.
Attorney’s Office between defendant, who was incarcerated at the
time, and his parents. [9/26/83 Tr. 15; A:313-14]. First, the
prosecutor met with xxxxxxx’s parents in his office, without Mr.
Dietz. [A:313; A:317]. At the original sentencing hearing, xxxxxxx’s
father testified about the plea negotiations:
[P]rior to going into the conference room my
wife and I sat in Mr. Bernstein’s office, and
he ran through the mathematics involved. He
said that the odds were very good that [xxxxxxx]
will probably get six years, and that being
the case under the guidelines, he would really
have to serve thirty-six months. And then he
ran through the math again where he talked
about he has already served so much time in
Australia, and here — if you take that off,
you do the good behavior and all the rest of
it, and so that it ends up, the number that I
remember him telling me was twenty-six months.
[9/26/83 Tr. 15-16; see also A:313-14 (prosecutor “said the odds
were very good that the maximum sentence [xxxxxxx] would receive would
be six years and that he would serve no more than 36 months in
all”) (emphasis added)].
According to Mrs. xxxxxxx:
I remember [the prosecutor] saying that our
son could be sentenced to fifteen years in
prison, but by pleading guilty and accepting
responsibility for his actions, he would
probably receive considerably less time, and
that he, Mr. Bernstein, would be asking for
six years, which, with good time and the time
that he’d already spent in jail, would mean
that our son could be out in as little as two
more years, or thirty six months in all.
[A:317]. Both parents acknowledged that the prosecutor told them
he could not promise or guarantee the sentence xxxxxxx would receive.
[9/26/83 Tr. 17; A:317]. Mrs. xxxxxxx explained:
Although he cautioned us that he could not
“promise” what sentence xxxxxxx would get,
because to do so would mean the judge would
not accept his plea, he made it clear that
this was what he intended to ask for.
[A:317].
Mr. Dietz joined the meeting between xxxxxxx and his parents in
the conference room near the prosecutor’s office. [A:314]. At the
sentencing hearing, Dietz stated about plea negotiations:
[T]his was what I advised Mr. Bernstein as
well——and at that time Mr. Bernstein advised
me and my client’s father, Mr. xxxxxxx, Sr., that
with the time that he had already spent in
Australia, and his incarceration here, that
this young man would serve about 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.
I say this to the court, because I was really
shocked when I saw the government’s sentencing
memorandum . . . . 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.
[9/6/83 Tr. 6-7; see also 5/16/01 Tr. 45, 47, 49].
The prosecutor disputed these statements, asserting:
[I]t was Mr. Dietz who said first that he
thought his client would get three years.
I told Mr. Dietz, “Well, you can look at the
parole guidelines, and you can figure out what
the parole guidelines [ ] that does not
guarantee what sentence you get. It also does
not guarantee what release, or what time he
would be released from prison.
[9/26/83 Tr. 17-18].
Based on the threats and the belief that their son faced a
sentence of six years with parole eligibility in three years, Mr.
Dietz and xxxxxxx’s parents convinced xxxxxxx to plead guilty. [A:313-18]. At the 2001 evidentiary hearing, xxxxxxx explained that “the
prosecutor never spoke to me,” that no one “guaranteed” him a
particular sentence, and that he was told that the sentence was “up
to the judge.” [5/16/01 Tr. 28-29]. Nonetheless, based on what he
was told by Mr. Dietz and his parents, xxxxxxx believed pleading
guilty would result in a sentence of at most six years, with
release on parole in two years with time served. [A:257–59; A:276-77]. Furthermore, Dietz and xxxxxxx’s parents told xxxxxxx——and xxxxxxx
understood——that the government had agreed to allocute for a six-year sentence. [A:257-59; A:276].
On July 11, 1983, the docket listing states that xxxxxxx entered
a guilty plea to counts one and three. [A:9].
xxxxxxx signed a
written waiver of his right to jury trial. [A:116]. The written
plea agreement, though docketed, [A:9; A:11], is missing from the
court file. The plea hearing is recorded in the docket but no
transcript, certified notes or other original records were ever
filed. After the original notice of appeal was filed, this case
was remanded to the district court to attempt to recreate a record
of the plea hearing, but that attempt was unsuccessful. [A:598].
5. The Sentencing Proceedings
Prior to sentencing on September 26, 1983, the parties
submitted sentencing memoranda. Defendant’s memorandum states that
defendant, “on several occasions and in concert with others,
secured cocaine for friends and acquaintances. He knew it was
wrong when he did it but had a very severe cocaine habit of his own
at that time. He participated in this illegal activity to satisfy
his need for drugs and money to support his drug habit.” [A:163].
In addition, defendant’s memorandum attaches a psychiatric report
by Erich M. Reinhardt, M.D., explaining that “since age 10 the
patient has been more or less steadily under psychiatric care
(either as an outpatient or while being hospitalized).” [A:166].
The psychiatrist described his sessions with xxxxxxx in 1983, stating
that xxxxxxx’s “attention span is minimal; his thought processes at
times are focused and at times totally ‘off the wall.’” He found
no evidence of a “thinking disorder” but stated that “[i]t seems
impossible to deal with [xxxxxxx] in terms of reality, logic and
simple chances.” [A:168-69].
As noted above, government allegations in its sentencing
memorandum and in the “prosecution version” of the offense in the
PSR included claims that xxxxxxx purchased cocaine in kilogram
quantities and sold drugs to customers on Capitol Hill, including
an elected politician, [A:121-22], and——based on information
received from xxxxxxx——that xxxxxxx used an airplane to import drugs
worth hundreds of thousands of dollars, that he “launder[ed] his
drug profits” in Atlantic City, N.J., and that he once received
drug proceeds in excess of $240,000.00. [A:132-33]. As explained,
however, these allegations are not supported by reliable evidence.
xxxxxxx recants statements she made and admits she lied, [A:437-38],
Finkel told xxxxxxx that he fabricated evidence, [A:145-46,
A:154], and xxxxxxx did not have knowledge of the scope of any
conspiracy. [A:46-49]; see also xxxxxxx v. Lansing, 839 F.2d at
937-39 (affirming rejection of these allegations as rational basis
for factual finding of involvement with more than one kilogram of
cocaine).
In its sentencing memorandum, the government requested the
maximum sentence of consecutive fifteen-year sentences. [A:136].
Mr. Dietz, as cited above, was “shocked” when he learned of this
request. [9/26/83 Tr. 6-7]. Dietz explained to the court at the
sentencing hearing that he had erred in believing that a prior
North Carolina misdemeanor conviction——with respect to which Dietz
had represented xxxxxxx——had been expunged. [9/26/83 Tr. 4-6]. Dietz
thought that conviction would be expunged automatically and only
“learned that it had not been expunged [when he] saw the probation
report.” [9/26/83 Tr. 5]. The misdemeanor conviction “changed Mr.
xxxxxxx’s position quite a bit,” because, without it, Dietz and the
prosecutor had calculated xxxxxxx’s parole eligibility to be 36 months
and told xxxxxxx’s parents and xxxxxxx that the plea would result in a
“maximum of approximately six years.” [9/26/83 Tr. 6]. Absent
this incorrect advice, Dietz stated, “very frankly, the deal that
was made, the plea that was entered, would not have been done . .
. .” Id.
At the sentencing hearing, xxxxxxx and his attorneys did not have
a copy of the PSR for reference. See infra, section V. Although
xxxxxxx had contested facts in the PSR, his attorneys assured him that
facts he disputed were either insignificant or would be addressed
through his own version of the offense. [A:305]. Dietz stated at
the hearing, however, that he and xxxxxxx found the PSR to be “fairly
accurate.” [9/26/83 Tr. 4]. xxxxxxx’s attorneys did not show him the
government’s sentencing memorandum until five minutes prior to the
sentencing hearing. [A:277; A:280; A:305]. In allocution, xxxxxxx
stated:
I don’t know exactly what to say about
this. I plead guilty to counts 1 and three.
I didn’t plead guilty to everything that
they have written about me and all these, the
testimony, this is [testimony] I have never
seen. This is the first time I have seen it [
].
It has something, certain things about
quantities of money, and all the rest of that.
Unfortunately, by pleading guilty to
Counts 1 and 3, I had to plead guilty, or had
to accept certain of the things that they said
in there.
I didn’t agree with them completely, but
as I go through this little, what they call,
sentencing memorandum, I had never used an
airplane to bring drugs into any place.
I have a minimum like forty or fifty
hours in aircraft, and as a student pilot.
No more time than that’s logged. I mean,
there are so many things that they say in here
that are completely untrue.
[9/26/83 Tr. 12-13].
The district court sentenced xxxxxxx to two concurrent five-to-fifteen year sentences of imprisonment, three years special parole,
and $1,000.00 and $5,000.00 fines. [9/26/83 Tr. 24-26]. xxxxxxx, his
attorneys, and family members, were “shocked” at the sentence.
[5/16/01 Tr. 22, 25, 52-53, 63].
6. Failure to Advise Defendant of Right to Appeal
No appeal was filed. xxxxxxx’s attorneys at sentencing, Stanley
Dietz and Plato Cacheris, did not advise xxxxxxx at any time that he
had the right to appeal or that he could move to withdraw the
guilty plea. [5/16/01 Tr. 62-64]. At the 2001 evidentiary
hearing, Mr. Cacheris testified that, in 1983, he was unaware of
the claims and allegations available to defendant. [5/16/01 Tr.
35, 38]. Had he been aware of those claims, he “would have told
[xxxxxxx] not to enter a guilty plea.” Id. at 41. Mr. Dietz
testified that he would have told his client that “[w]hen you
[plead] guilty, you give up” and that “you couldn’t appeal from a
legal sentence.” Id. at 44.
The district court found that both attorneys were ineffective
for failing to advise xxxxxxx of the right to appeal.
I’m going to make a finding that defendant’s
counsel should have realized they had issues
that they could have advised and should have
advised the defendant about regarding appeal;
they did not do so, and that the defendant was
prejudiced because of that, and I believe the
record indicates he would have appealed.
[5/16/83 Tr. 65; see also id. at 62-66 & 19; A:668-70].
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 and claims the
guilty plea was unknowing, involuntary and coerced.
The plea colloquy was deficient in several respects. xxxxxxx
recalls that the district court never advised him of the elements
of or factual basis for count three, including the meaning of
constructive possession, or regarding special parole. He also
contends the court failed to conduct an adequate inquiry into the
voluntariness of the plea and whether the plea resulted from
conversations between the government and his attorney, as required
by Rule 11(d). In addition, either the plea colloquy was deficient
for failure to state all of the terms of the plea agreement in open
court or the district court erred in failing to recognize and
inquire into defense counsel’s conflict of interest.
Defendant’s plea was coerced by government threats and
misrepresentation of the sentence and intended allocution. First,
the government coerced the guilty plea through improper threats to
prosecute defendant’s father and brother. Second, the plea was
coerced through improper threats to indict defendant with visa and
tax charges that the government had no authority to prosecute,
pursuant to the extradition treaty between the United States and
Australia and the doctrine of specialty. Third, the government
coerced the guilty plea by misrepresenting the applicable sentence
and the government’s intended allocution.
xxxxxxx’s plea was also unknowing, unintelligent and coerced due
to ineffective assistance of counsel. Mr. Dietz had an actual
conflict of interest with xxxxxxx’s father and brother that adversely
affected his advice to xxxxxxx during plea negotiations. Counsel was
also ineffective in telling xxxxxxx he would receive a maximum
sentence of six years’ imprisonment, and in miscalculating his
parole eligibility by failing to learn that the North Carolina
misdemeanor conviction had not been expunged. Counsel was
ineffective in failing to advise xxxxxxx of valid factual and legal
defenses to most of the counts in the indictment, including the
merger of several counts under the Double Jeopardy Clause.
Counsel’s ineffectiveness, which likely resulted from the conflict
of interest, also included failing to advise defendant regarding
improper government threats, special parole and a pre-sentence
motion to withdraw the guilty plea.
This Court should vacate xxxxxxx’s guilty plea because there is
no basis for upholding the plea as voluntary, knowing and
uncoerced. Some of xxxxxxx’s claims are supported by the original
record, including § 753 violations, coercion of the plea through
improper threats of additional visa and tax charges, and
ineffectiveness in misrepresenting the sentence. Other claims,
based partly on factual assertions in the § 2255 motion, require
remand for additional factual inquiry, including improper threats
to prosecute family members, government misrepresentation of the
sentence and intended allocution, and other ineffectiveness claims.
Even though some of defendant’s plea-related claims require
expansion of the record, those claims are interwoven with claims
supported by the record and there is sufficient evidence in the
original record to support vacating the guilty plea here.
Moreover, this Court should not remand this case because the plea
cannot be upheld as voluntary in the absence of a transcript of the
Rule 11 hearing, which cannot be reconstructed. Pursuant to §
753(b), Rule 11, the doctrine of specialty, the extradition treaty
with Australia, and Strickland v. Washington, 466 U.S. 668 (1984),
this Court should set aside xxxxxxx’s guilty plea.
If this Court does not vacate defendant’s plea, it should
remand for factual inquiry concerning the guilty plea. In
addition, this Court should reverse the sentence and remand for
resentencing. The district court plainly erred in relying at
sentencing on false or unreliable factual allegations by the
government, in violation of due process and Fed. R. Crim. P. 32.
Furthermore, xxxxxxx’s attorneys were ineffective at sentencing for
failing to dispute the government’s factual allegations in both the
PSR and the sentencing memorandum and for failing to show xxxxxxx the
government’s sentencing memorandum more than five minutes before
the sentencing hearing.
ARGUMENT
I. THIS COURT SHOULD SET ASIDE DEFENDANT’S GUILTY PLEA BASED ON
THE COURT REPORTER’S FAILURE TO RECORD AND TRANSCRIBE THE PLEA
HEARING, AS REQUIRED BY 28 U.S.C. § 753(b) AND FEDERAL RULE OF
CRIMINAL PROCEDURE 11(g)
A. The Court Reporter Failed to Comply With § 753(b) and
Rule 11(g)
The court reporter listed in the docket as attending xxxxxxx’s
plea hearing, Joan Curtis Blair, did not file a transcript,
certified shorthand notes, or any other certification or original
record of the plea hearing with the clerk of the court. [A:591-92;
10/7/99 Tr. 3; 12/9/99 Tr. 6]. Ms. Blair died shortly after xxxxxxx’s
case. [10/7/99 Tr. 3; A:592]. It is clear that no transcript was
ever prepared and filed, as opposed to having been filed and later
lost or desxxxxxxxed. [A:591-92; A:9 (docket listing 4/18/83 and
4/22/83 transcripts but not 7/11/83 transcript)].
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, . . .
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). Fed. R. Crim. P. 11(g)
requires that “[a] verbatim record of the proceedings at which the
defendant enters a plea shall be made . . . .”
Interpreting an earlier version of § 753(b) 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). 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:591-92]. In proceedings conducted under Fed. R. App. P. 10(c), the
district court reviewed affidavits from counsel and defendant
stating that they could not recall the substance of the plea
hearing, [A:590; A:595-97], and concluded that it was impossible to
reconstruct the record. [A:598].
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.
Furthermore, the ineffective assistance of counsel that led to the
delay in this appeal is not the cause of the missing records.
There is no evidence the court desxxxxxxxed files in connection with
this case since, other than the plea agreement, files and
transcripts listed in the original docket were retrieved from
storage. There is similarly no evidence the court reporter could
have produced a timely transcript had an appeal been filed in 1983.
B. Standard of Review
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. Johnson, 231 F.3d 43, 49 (D.C.
Cir. 2000); 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.’” Johnson, 231 F.3d at 49 (citing
Carrazana, 70 F.3d at 1342).
C. Defendant’s Guilty Plea Cannot Be Upheld Where the Plea
Hearing Transcript is Missing, Defendant Makes Numerous
Claims That the Plea Was Unknowing, Involuntary and
Coerced, And The Requirements of 28 U.S.C. § 753(b) and
Rule 11(g) Remain Poorly Understood by the District
Court, the Clerk’s Office and Court Reporters
As explained below, there is overwhelming support for vacating
defendant’s plea based on the three critical factors considered by
this Court——deterrence, the ability to reconstruct the record, and
the likelihood of prejudice. See Johnson, 231 F.3d at 49;
Winstead, 74 F.3d at 1321; Carrazana, 70 F.3d at 1342.
With respect to the first factor, reversal in this case would
have no deterrent effect on the original court reporter, who is
deceased. There are important reasons here, however, for this
Court to reiterate the requirements of the Court Reporters Act.
Proceedings to reconstruct the transcript revealed that the
requirements of § 753(b) are neither well-understood nor being
followed by the district court, the clerk’s office, and court
reporters. For example, the district court was unaware that §
753(b) requires plea transcripts recorded without sound recording
to be prepared and filed with the clerk. [10/7/99 Tr. 5 (“I have
never seen that done in the 17 years I have been here, that we take
a plea and a transcript is made up of that plea and that is put in
the court file.”); id. at 6 (“I know since I have been here I have
never been aware that there are transcripts or Court recordings
available of every plea that has been taken in Court unless the
Court has directed it be done.”)]. According to Bxxxxxxxt Johnson,
Assistant Supervisor in the Clerk’s Office, reporters currently
retain their notes for several years, [A:591], in violation of
Judicial Conference regulations requiring court reporters to file
transcripts of plea hearings with the clerk within 30 days and
notes of other proceedings within 90 days. 6 Guide to Judiciary
Policies and Procedures §§ 1.3.3 & 17.8.2c. The Chief of the Court
Reporter’s Office informed government counsel that in 1987, “there
were no clear guidelines for the court reporters to follow and, in
fact, they did what they wanted to.” [12/9/99 Tr. 6].
Furthermore, several transcripts prepared during this case
after the original appeal was filed required correction, the entry
of errata, and a court order requiring Miller Reporting Company,
Inc., to produce its original notes of the December 9, 1999,
hearing. [A:612-56].
This Court specifically held in Johnson,
where Miller Reporting lost a sentencing transcript and the parties
identified numerous past errors by Miller in earlier cases, that
“our interest in deterring violations of the Court Reporter Act
weighs heavily in favor of remanding this case for resentencing.”
231 F.3d at 49. As in Johnson, here, it is imperative for this
Court to reiterate the requirements of § 753(b) and the admonitions
made in Poole.
With respect to the second factor, the parties and the court
were unable to reconstruct any part of a verbatim record of the
plea hearing. Defendant does not recall the verbatim record, but
recalls that the Court failed to advise him of several critical
matters, [A:595-96], as explained below in section II.
With respect to the third factor——the likelihood of reversible
error——this Court has “found reversible error where a crucial stage
of trial was missing even though the defendant could not allege
specific prejudice.” Johnson, 231 F.3d at 50 (citing United States
v. Workcuff, 422 F.2d 700, 702 (D.C. Cir. 1970)); see also
Carrazana, 70 F.3d at 1343. Other than its alternative, a complete
trial, no criminal proceeding is more important than a guilty plea
hearing. To plead guilty, a defendant must personally waive
several constitutional rights in open court, including the right to
jury trial, to proof beyond a reasonable doubt, to assistance of
counsel at trial, against compelled self-incrimination, and to
confront and cross-examine witnesses. See, e.g., Boykin v.
Alabama, 395 U.S. 238, 242-44 (1969) (listing constitutional rights
and reversing for lack of adequate record of voluntary nature of
plea); McCarthy v. United States, 394 U.S. 459, 466 (1969)
(describing nature of guilty plea); see also Herron v. United
States, 512 F.2d 439, 441 (4th Cir. 1975) (“Rule 11 is implemented
by 28 U.S.C. § 753(b)”). Based on the crucial nature of the plea
hearing, allegations of prejudice should not be required to vacate
defendant’s plea. See, e.g., Johnson, 231 F.3d at 49-51 (remanding
for resentencing despite defendant’s inability to allege specific
prejudice); Workcuff, 422 F.2d at 702 (reversing conviction where
district court provided supplemental instruction to the jury
without court reporter present and noting “we have found no cases
applying the harmless error rule when the court reporter was absent
during such a crucial stage of the trial as instructions to the
jury”). This case———because it involves a missing plea
transcript——presents even more compelling circumstances for
vacating the plea without requiring prejudice than Johnson or
Workcuff.
To the extent allegations of prejudice are required, this
Court considers “‘the ability of the defendant to allege specific
prejudice arising out of an event in the missing portions [of the
transcript]; the extent of the missing portions; the significance
of the missing portions in a typical trial (e.g., final jury
instructions are presumptively more significant than a bench
conference); the likely significance of the missing portions in the
context of the specific trial in question; and the use of new
counsel on appeal.’” Johnson, 231 F.3d at 49 (citing Carrazana, 70
F.3d at 1343). Each of these considerations supports defendant’s
claim here. This Court requires at most an allegation, not a
demonstration, of prejudice. In the claims set forth below,
defendant alleges——and in some instances, demonstrates——extensive
prejudice in connection with the guilty plea. No part of the plea
hearing in this case could be reconstructed verbatim and defendant
recalls errors in the plea colloquy. The plea hearing is a crucial
stage of proceedings in both a typical case and this case.
Finally, xxxxxxx has new counsel on appeal.
For these reasons, this Court should vacate defendant’s plea
due to the missing transcript.
II. THE PLEA COLLOQUY WAS DEFICIENT UNDER RULE 11 FOR FAILURE TO
ADVISE DEFENDANT OF THE ELEMENTS OF, FACTUAL BASIS FOR, AND
MAXIMUM SENTENCE ON COUNT THREE, FAILURE TO DETERMINE THAT THE
PLEA WAS NOT COERCED, AND FAILURE TO STATE ALL OF THE TERMS OF
THE PLEA AGREEMENT IN OPEN COURT OR, ALTERNATIVELY, TO INQUIRE
INTO DEFENSE COUNSEL’S CONFLICT OF INTEREST
A. Standard of Review
At the time of 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, less than a month after the plea
hearing in this case, Rule 11 was amended to specifically provide
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); see also United States v. Vonn, 224 F.3d 1152, 1156 (9th Cir.
2000), cert. granted, No. 00-973 (February 26, 2001). The
government bears the burden of showing harmlessness. Dewalt, 92
F.3d at 1214.
This Court should vacate xxxxxxx’s plea of guilty unless it
finds, based on the existing record, that the plea was voluntary,
knowing, and uncoerced. “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; see also Boykin v.
Alabama, 395 U.S. 238, 242-43 (1969) (whether guilty plea was
voluntary cannot be presumed from silent record).
B. The District Court Failed to Advise Defendant of the
Factual Basis For, Elements Of, and Maximum Sentence On
Count Three, in Violation of Rule 11(c)(1) & (f)
As explained, it was impossible to reconstruct a verbatim
record of the plea hearing.
Recalling the hearing in an affidavit
filed in connection with the attempt to reconstruct the hearing
pursuant to Fed. R. App. P. 10(c), xxxxxxx stated:
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.
. . . 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:595; see also A:269-72; A:348]. xxxxxxx did not understand what
was required for the government to prove constructive possession of
the cocaine sold on April 19, 1982. [A:300-302].
“[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., United States v. Andrades, 169 F.3d 131, 134-36 (2d Cir.
1999) (failure to describe nature of conspiracy charge and factual
basis for that charge requires reversal under Rule 11(c)(1) & (f));
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 pled guilty, requires vacating plea); Ford, 993 F.2d
at 251-54 (omission at plea hearing of fact that gun was found in
defendant’s bedroom requires vacating plea, where defendant later
contested possession). This case is similar to Ford, where the
defendant did not understand the factual basis for the charge
involving the gun at the time of his plea and later asserted his
innocence. 953 F.2d at 252. Once xxxxxxx understood what was
required to prove constructive possession, he asserted his
innocence on count three, explaining that he had neither an
ownership interest in the cocaine sold on April 19, 1982, nor any
control over it. [A:300-302].
The failure to advise 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). At most, xxxxxxx would have been
advised that he faced a maximum of 15 years imprisonment on count
three, but he was sentenced to fifteen years plus three years of
special parole.
The district court also violated Rule 11 by failing to advise
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. [A:270-73; A:595]. See, e.g., United States v.
Osment, 13 F.3d 1240, 1243 (8th Cir. 1994) (failure to advise of
nature and effect of supervised release violates Rule 11 even where
maximum sentence imposed is less than maximum referred to at plea
hearing); United States v. Syal, 963 F.2d 900, 905-06 (6th Cir.
1992) (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); Moore v. United States, 592 F.2d 753, 755-56 (4th
Cir. 1979) (same).
xxxxxxx would not have pleaded guilty had he understood the
elements of, factual basis for, and maximum sentence on count
three. [A:596]. Accordingly, the Rule 11 colloquy was deficient
for failure to advise defendant of the nature and factual basis for
the offense and the maximum sentence on count three.
C. The District Court Failed to Determine that the Plea was
Voluntary Pursuant to Rule 11(d), and Either the Parties
Failed to State All of the Terms of the Plea Agreement in
Open Court Pursuant to Rule 11(e)(2), Or the Court Failed
to Recognize Defense Counsel’s Conflict of Interest
Rule 11(d) states:
The court shall not accept a plea of guilty or
nolo contendere without first, by addressing
the defendant personally in open court,
determining that the plea is voluntary and not
the result of force or threats or of promises
apart from a plea agreement. The court shall
also inquire as to whether the defendant’s
willingness to plead guilty or nolo contendere
results from prior discussions between the
attorney for the government and the defendant
or his attorney.
Fed. R. Crim P. 11(d). Rule 11(e)(2) requires “disclosure of the
[plea] agreement in open court.”
xxxxxxx’s guilty plea was coerced through improper government
threats to prosecute xxxxxxx’s brother and father, threats to bring
additional charges against xxxxxxx and misrepresentation of the
sentence and allocution. The plea also resulted from ineffective
assistance of counsel, including a conflict of interest. It was
particularly critical for the court to be informed of threats
against family members. “[T]he disclosure of the existence of a
package plea deal is crucial at the Rule 11 hearing so that the
district court may probe as deeply as needed into the possibility
that one defendant is pleading guilty against his will in order to
make it possible for his co-defendant to obtain the benefit of a
favorable plea and sentencing recommendation.” United States v.
Abbott, 241 F.3d 29, 34 (1st Cir. 2001); see also 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); United States v. Roberts, 570 F.2d 999, 1005-07 (D.C. Cir.
1977) (reversing for failure to state at plea hearing that
government agreed not to request substantial sentence, which was a
term of plea agreement). The burden of disclosing the terms of the
plea agreement is “shared by defense counsel and the prosecutor.”
United States v. Hernandez, 79 F.3d 1193, 1194 (D.C. Cir. 1996).
If there is any indication that the plea may not be voluntary, the
court has an obligation to conduct a more extensive inquiry into
discussions between the parties. Abbott, 241 F.3d at 34 & 35 n.4;
United States v. Caro, 997 F.2d 657, 660 (9th Cir. 1993); Daniels,
821 F.2d at 79.
In this case, the record does not support the conclusion that
the court conducted an inquiry into plea negotiations sufficient to
ensure that the plea was not coerced. In addition, the record does
not demonstrate whether the government’s agreement to waive
prosecution of family members was revealed at the plea hearing. If
that agreement was not revealed then the plea colloquy violated
Rule 11(e)(2). If it was revealed, on the other hand, then the
district court clearly should have been aware of Mr. Dietz’s
conflict of interest.
Accordingly, the Rule 11 colloquy was deficient for failure to
assure that the plea was voluntary and for failure to state all of
the terms of the agreement on the record or failure to inquire into
defense counsel’s actual conflict of interest.
III. DEFENDANT’S GUILTY PLEA WAS COERCED BY GOVERNMENT THREATS
TO PROSECUTE MEMBERS OF DEFENDANT’S FAMILY, THREATS TO
PROSECUTE DEFENDANT WITH CHARGES BARRED BY THE
EXTRADITION TREATY WITH AUSTRALIA AND THE DOCTRINE OF
SPECIALTY, AND MISREPRESENTATION OF THE SENTENCE AND
INTENDED ALLOCUTION
A. Standard of Review
A coerced guilty plea cannot stand irrespective of whether
there was compliance with Rule 11. Fontaine v. United States, 411
U.S. 213, 214 (1973); see also Brady v. United States, 397 U.S.
742, 750 (1970) (“agents of the State may not produce a plea by
actual or threatened physical harm or by mental coercion
overbearing the will of the defendant”). “[I]f a defendant’s
guilty plea is not [ ] voluntary and knowing, it has been obtained
in violation of due process and is therefore void.” McCarthy, 394
U.S. at 466.
B. The Guilty Plea Was Coerced by Improper Threats To
Prosecute xxxxxxx’s Father and Brother
As explained above, the government threatened to prosecute
xxxxxxx’s father and brother, unless xxxxxxx agreed to plead guilty, and
pressured xxxxxxx’s father to convince his son to enter a guilty plea.
[A:313-18; A:328]. Pleas based on lenient treatment for family
members are inherently coercive and require close 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)); Abbott, 241
F.3d at 34 (“[p]ackage deals pose particular problems with regard
to voluntariness”); 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”). The government’s actions
here——simultaneously threatening xxxxxxx’s father and insisting he
convince his son to plead guilty——improperly coerced the plea.
Moreover, the government knew or should have known that defense
counsel had a conflict of interest, heightening the improper and
highly coercive nature of these threats.
In addition, it was improper for the government to threaten to
prosecute family members unless it had probable cause to indict
them. 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). There is no evidence, however, that the government had
probable cause to prosecute xxxxxxx’s father and brother. The
government’s sentencing memorandum alleges only that xxxxxxx was
“assisted” by his younger brother in establishing a network of
customers and that xxxxxxx exchanged cash for cashier’s checks payable
to his father, [A:132-33], strongly suggesting that the government
did not have probable cause.
C. The Guilty Plea Was Coerced by Improper Threats To Indict
xxxxxxx on Charges Prohibited by the Doctrine of Specialty
and the 1974 Extradition Treaty Between the United States
and Australia
The government also threatened to indict xxxxxxx with post-extradition visa and tax charges unless he agreed to plead guilty.
[A:258; A:313]. The government’s waiver of those charges was
apparently an explicit term of the plea agreement. [A:122-23; see
also A:97].
Threats of visa and tax charges were improper,
however, because the government was barred from prosecuting such
offenses under the extradition treaty between the United States and
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. The offenses listed in Article II of the Treaty do
not include visa or tax offenses. Id. Furthermore, there is no
indication that the government obtained or even sought extradition
for visa and tax charges. [See A:41-65 (affidavits supporting
extradition); A:66-67 (document authorizing extradition for
xxxxxxx, likely similar to same document for xxxxxxx, which is
missing)].
The doctrine of specialty, incorporated in the extradition
treaty with Australia, prohibits the government from prosecuting
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, 424 (1886) (“right conferred upon persons brought from a
foreign country” is to “be tried only for the offense for which he
is charged in the extradition proceedings, and for which he was
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). It was improper for the
government to coerce defendant’s plea by threatening to prosecute
visa and tax charges when it had no authority to pursue such
charges in the first place.