ORAL ARGUMENT NOT YET SCHEDULED
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
BRIEF OF APPELLANT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
xxxxxxx xxxxxxx xxxxxxx, JR. Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FEDERAL PUBLIC DEFENDER
BEVERLY G. DYER
ASSISTANT FEDERAL PUBLIC DEFENDER
Counsel for Appellant
625 Indiana Avenue, Suite 550
Washington, D.C. 20004
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
BRIEF OF APPELLANT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
xxxxxxx xxxxxxx xxxxxxx, JR. Defendant-Appellant.
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.
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.
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.
“[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:
(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 for ineffective failure to advise the defendant of recent Supreme Court precedent. That precedent precluded the government from obtaining conviction on one of the counts in the indictment to which the defendant did not plead guilty. The Court held that the failure to advise the defendant of applicable law was below the standard of care and that there was a reasonable probability that, but for counsel’s failure to advise her of applicable law, the defendant would not have pleaded guilty. 908 F.2d at 1018-19. Thus, this case also presents identical circumstances to those in Loughery, since Mr. Dietz failed to advise Mr. xxxxxxx that several counts in the indictment could not be maintained under the Double Jeopardy Clause or that the government’s threats of additional charges against Mr. xxxxxxx and his family were barred by the doctrine of specialty or were otherwise improper. Similarly, in United States v. Streater, 70 F.3d 1314, 1321-22 (D.C. Cir. 1995), this Court held that counsel’s erroneous legal advice regarding the consequences of the defendant’s testimony at the suppression hearing required reversing the guilty plea, given the reasonable probability that the defendant would not have pleaded guilty absent the incorrect advice.
Here, Mr. Dietz failed to advise Mr. xxxxxxx correctly on numerous legal and factual matters, as explained above. Had he been correctly advised, Mr. xxxxxxx would have not pleaded guilty. [A:207; A:210; A:448; A:451]. In fact, Mr. xxxxxxx refused to plead guilty prior to being coerced by threats and persuaded by his father and attorney in his father’s and brother’s best interests. [A:180; A:250]. Moreover, a reasonable person would not have pleaded guilty to two counts out of eight when there was a valid defense to, or legal claim for dismissal of, all but one of those counts. Consistent with Hill, Loughery and Streater, this Court should set aside Mr. xxxxxxx’s plea.
D. The Factors Considered by This Court Under 28 U.S.C. § 753(b) and Other Applicable Law Require the Reversal of Mr. xxxxxxx’s Guilty Plea
As explained above, three factors are relevant to this Court’s review of § 753(b) violations -- deterrence, the ability to reconstruct the record, and the likelihood of prejudice. See Winstead, 74 F.3d at 1321; Carrazana, 70 F.3d at 1342. These factors overwhelmingly support Mr. xxxxxxx’s claims.
Considering the first factor, this Court has expressed doubt whether reversal effectively deters court reporters from reporting errors. See Carrazana, 70 F.3d at 1343. However, circumstances in this case suggest that the requirements of § 753(b) are not well-understood today. Two of three 1999 transcripts of hearings before the district court in this case contained serious errors. In the proceedings to reconstruct the record, it was evident that the requirements of § 753(b), emphasized in Poole in 1957, remain unclear to court reporters decades later. [12/9/99 Tr. 6 (Chief of Court Reporter’s Office informed government that in 1987, “there were no clear guidelines for the court reporters to follow and, in fact, they did what they wanted to.”)]. In the course of those proceedings, the Assistant Supervisor in the Clerk’s Office submitted an affidavit stating that reporters currently engage in the practice of retaining their notes for several years. [A:510]. This practice is in direct conflict with regulations promulgated by the Judicial Conference of the United States, which require court reporters to file transcripts of plea hearings with the clerk within 30 days, and notes of other proceedings within 90 days. See 6 Guide to Judiciary Policies and Procedures §§ 1.3.3 & 17.8.2c. (copy in addendum). Moreover, the district court was not aware that Poole and § 753(b) require plea transcripts 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”); see also id. at 9-10]. These examples indicate that it may be necessary for this Court to reconfirm the requirements of § 753(b) and the admonitions made in Poole.
With respect to the second factor, as explained, the parties and the court were unable to reconstruct any part of a verbatim record of the plea hearing.
To determine a likelihood of reversible error, the third factor, this Court considers “the ability of the defendant to allege specific prejudice arising out of an event in the missing portions; 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.” Carrazana, 70 F.3d at 1343.
Mr. xxxxxxx makes numerous and substantial allegations of specific prejudice above, though such allegations are not required where “the court reporter failed to record a ‘crucial stage’ of the trial . . . .” Id. (citing United States v. Workcuff, 422 F.2d 700, 702 (D.C. Cir. 1970)). In Workcuff, this Court reversed the defendant’s conviction where the district court provided a supplemental instruction to the jury without a court reporter present, stating “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.” 422 F.3d at 702; see also Herron v. United States, 512 F.2d 439, 441 (4th Cir. 1975) (strict compliance with § 753(b) required in connection with plea hearings, based on McCarthy, also noting “Rule 11 is implemented by 28 U.S.C. § 753(b)”).
Clearly, a plea hearing is a crucial stage of criminal proceedings, both in the typical case and in the context of this case. A plea hearing is significantly more critical than the bench conferences and other “housekeeping” matters reviewed in Winstead and Carrazana. In light of Mr. xxxxxxx’s numerous allegations of error, this case is also distinguishable from United States v. Kelly, 167 F.3d 436, 438 (8th Cir. 1999), in which the court declined to set aside a guilty plea after records of the plea hearing were desxxxxxxxed by fire because the defendant “failed to allege, let alone demonstrate, that his ability to perfect an appeal was prejudiced by the lack of the guilty plea transcript.” Finally, Mr. xxxxxxx has new counsel on appeal, to the extent this Court still considers that factor to be relevant. See Carrazana, 70 F.3d at 1344-45.
Under this Court’s interpretation of the Court Reporter’s Act, Mr. xxxxxxx has alleged far more prejudice than required to support setting aside his plea. Mr. xxxxxxx’s claims support reversal of the plea even in the absence of the § 753(b) violation, based on Rule 11 violations, improper government threats, misrepresentation of the applicable sentence and parole eligibility, and Mr. Dietz’s ineffectiveness and conflict of interest. As this Court has stated, “where the defendant has shown his plea was taken in violation of Rule 11, we have never hesitated to correct the error.” United States v. Cray, 47 F.3d 1203, 1207 (D.C. Cir. 1995) (citing Watley, 987 F.2d at 848). Here, where there is no record of the plea hearing, this Court cannot uphold Mr. xxxxxxx’s plea as knowing and voluntary.
II. MR. xxxxxxx WAS INCOMPETENT AND SHOULD HAVE RECEIVED A COMPETENCY HEARING
A. Standard of Review
A procedural competency claim, i.e., a claim that the district court should have conducted a competency hearing, requires this Court to review whether “the evidence raises a “bona fide doubt” as to a defendant’s competence to stand trial . . . .” Pate v. Robinson, 383 U.S. 375, 385 (1966); see also United States v. Weissberger, 951 F.2d 392, 395 (D.C. Cir. 1991) (“any significant doubt as to the defendant’s competency requires a competency evaluation”). A substantive claim, i.e., that Mr. xxxxxxx was in fact incompetent, depends on “‘whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding–and whether he has a rational as well as factual understanding of the proceedings against him.’” Dusky v. United States, 362 U.S. 402, 403 (1960) (citation omitted). “[I]t is not enough for the district judge to find that ‘the defendant [is] oriented to time and place and [has] some recollection of events’ . . . .” Id. at 402-03 (citation omitted); see also Vogt v. United States, 88 F.3d 587, 590 (8th Cir. 1996) (explaining distinction between procedural and substantive claims).
B. The District Court Erred in Failing to Conduct a Competency Hearing Based on Bona Fide Evidence and Reasonable Cause
On August 10, 1983, Erich M. Reinhardt, M.D., a psychiatrist who treated Mr. xxxxxxx prior to sentencing, reported that Mr. xxxxxxx had been given psychiatric treatment almost continuously since the age of 10 and had been institutionalized for several years of his life. [A:92]. During his teenage years, Mr. xxxxxxx was “unmanageable” and experienced “unpredictable dangerous and angry outbursts.” Id. “Despite medication these outbursts continued and erratic thinking (that probably included hallucinatory experiences) compromised the effectiveness” of hospitalization. Id. Mr. xxxxxxx had been diagnosed with latent schizophrenia and then passive-aggressive personality. [A:93]. He “lived in a world of fantasy, to a great deal enhanced by drugs, and eventually became convinced that this imaginary world was his real world.” Id.
With respect to Mr. xxxxxxx’s psychological state in July and August, 1983, Dr. Reinhardt reported:
Our sessions [are] erratic . . . [and] characterized with hefty explosions, wild utterings (covering the range from rotten society, to great strides for the country; from racial epitaphs to religious fanaticism; from suicidal depressive moods to extreme elation because of momentary adventures; from ideas of grandeur to feelings of total worthlessness; from the desire to be punished for his evil to being railroaded as an innocent bystander.)
His attention span is minimal; his thought processes at times are focused and at times totally ‘off the wall.’ However I do not see evidence of a thinking disorder, of delusions or hallucinations. There is nothing to point to an organic disorder.
. . .It seems impossible to deal with him in terms of reality, logic and simple chances. . . .
His diagnosis of a personality disorder remains. I still consider him to have a passive-aggressive personality disorder (301.81) which more and more changes to an inadequate personality disorder (301.82).
[A:94]. Dr. Reinhardt’s report was attached to Mr. xxxxxxx’s memorandum in aid of sentencing, which also described Mr. xxxxxxx’s history of institutionalization, psychological problems and drug abuse, and noted “the precarious state of his mental health . . . .” [A:142]. At the sentencing hearing, counsel stated “as you have seen through the probation report, and through the psychological reports, he has some severe psychological problems, in our judgment -- I think they are documented.” [9/26/83 Tr. 11].
The district court was provided with Dr. Reinhardt’s report at the time of sentencing but failed to order a competency hearing, even though the court recognized that Mr. xxxxxxx had drug abuse and emotional problems and ordered post-sentencing psychiatric evaluation. [9/26/83 Tr. 20, 23, 25]. Mr. xxxxxxx’s attorneys were also ineffective in failing to request a competency hearing prior to the plea hearing and prior to sentencing.
In Drope v. Missouri, 420 U.S. 162 (1975), the Court found that a competency hearing was required based on a pre-trial psychiatric report stating that the defendant did not have “‘delusions, illusions, hallucinations . . .,’ was ‘well oriented in all spheres,’ and ‘was able, without trouble, to answer questions testing judgment,’” but also that he “‘had difficulty in participating well,’ ‘had a difficult time relating,’ and that he ‘was markedly circumstanctial and irrelevant in his speech,’” and additional evidence suggesting incompetence at trial, including testimony from the defendant’s wife that he had tried to choke her just before trial and the fact that the defendant attempted suicide while trial was ongoing. Id. at 175-79. The Court did not decide whether the psychiatric report and the defense attorney’s request for further psychiatric examination, without the additional evidence, required a hearing. Id. at 177-78. It noted, however, that “evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that any one of these factors standing alone may, in some circumstances, be sufficient.” Id. at 180.
Dr. Reinhardt’s conclusions are substantially similar to the statements in the pretrial report considered by the Court in Drope. While the decisions in both Drope and Robinson turned on more evidence of incompetency than the evidence before the district court in this case, the district court had “bona fide” evidence of incompetency here and should have conducted a competency hearing before sentencing. A competency hearing was also required by 18 U.S.C. § 4244 (1983), which required the government to request “a judicial determination of [the] mental competency of the accused” whenever there is “reasonable cause to believe that a person charged with an offense against the United States may be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense . . . .” Dr. Reinhardt’s report and defendant’s sentencing memorandum established the requisite reasonable cause. Moreover, this case should be remanded for an inquiry into whether Mr. xxxxxxx was in fact incompetent at the time of his plea and sentencing and whether his attorneys were ineffective in failing to request a competency hearing.
III. ALTERNATIVELY, THIS COURT SHOULD REMAND THIS CASE FOR RESENTENCING
A. This Court Should Remand this Case to Correct Errors in the Judgment and Commitment Order
The indictment in this case charged Mr. xxxxxxx with conspiracy in count one, in violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine in count three, in violation of 21 U.S.C. § 841. [A:26-33]. However, the district court sentenced Mr. xxxxxxx to distribution in count three, instead of possession with intent to distribute. [9/26/83 Tr. 23-24]. The judgment and commitment order stated erroneously that Mr. xxxxxxx was convicted of distribution in count one and possession with intent to distribute in count three, each in violation of 28 U.S.C. § 841. [A:150].
In addition, the court sentenced Mr. xxxxxxx to a $1,000.00 fine on count one. [9/26/83 Tr. 24-25]. However, the judgment and commitment order recorded the fine on count one as $5,000.00. [A:150]. Where the two differ, the oral sentence controls over the written one. See, e.g., United States v. Chavez, 204 F.3d 1305, 1316 (11th Cir. 2000); United States v. Faulks, 201 F.3d 208, 211 (3d Cir. 2000); United States v. Lewis, 626 F.2d 940, 953 (D.C. Cir. 1980). Accordingly, the judgment and commitment order should be corrected to reflect a fine of $1,000.00 on count one.
The 1999 judgment and commitment order issued at resentencing reflects the same errors as the 1983 order, and one additional error. In 1999, the clerk added the fines on counts one and three for a total fine of $10,000.00. [A:549]. However, in 1983, the government imposed the two fines concurrently, requiring payment of a total of $5,000.00. Mr. xxxxxxx paid the fine of $5,000.00 in full in 1993. [A:539]. In resentencing Mr. xxxxxxx, the district court intended to impose the same sentence that was imposed in 1983. [5/9/99 Tr. 9].
This Court should remand this case for resentencing to reflect the correct offenses and fines, namely conspiracy and a $1,000.00 fine on count one, and possession with intent to distribute cocaine and a $5,000.00 fine on count three, resulting in a total aggregate fine of $5,000.00.
B. This Court Should Remand This Case For the Resolution of Disputed Issues of Fact at Sentencing
The presentence report and government’s sentencing memorandum contain numerous factual assertions disputed by Mr. xxxxxxx. The presentence report contains a lengthy “prosecution version” of the offense stating several erroneous facts, including that Mr. xxxxxxx purchased cocaine in kilogram quantities and sold drugs to customers on Capitol Hill, including an elected politician. [A:98-100]. These allegations were never substantiated. [E.g., A:160]. The government’s sentencing memorandum repeats these allegations and also alleges that Mr. xxxxxxx used an airplane to import drugs worth hundreds of thousands of dollars, that Mr. xxxxxxx “launder[ed] his drug profits” in Atlantic City, N.J., and that he once received drug proceeds in excess of $240,000.00. [A:108-11]. The government acknowledged, however, that xxxxxxx was the source of most of this information. [A:110-111]. As explained, xxxxxxx/xxxxxxx has recanted these statements. [A:356-357]. In addition, xxxxxxx told xxxxxxx that he fabricated evidence, [A:123-124, A:132], and xxxxxxx/xxxxxxx admits that she falsely “agreed with much of what the government said and with the testimony of Bob xxxxxxx . . . .” [A:357].
When Mr. xxxxxxx saw the presentence report he disputed its contents but his attorneys assured him the disputes were insignificant or would be addressed through his own version of the offense. [A:227]. Mr. xxxxxxx was not shown the government’s sentencing memorandum until five minutes prior to the sentencing hearing. [A:199; A:202; A:227]. Not having had time to prepare after his attorneys failed to dispute contested facts, Mr. xxxxxxx stated in allocution at sentencing:
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].
1. Mr. xxxxxxx’s Attorneys Were Ineffective in Failing to Dispute Facts Alleged by the Government at Sentencing and In Failing to Keep Mr. xxxxxxx Informed of Those Facts
Mr. xxxxxxx’s attorneys were ineffective in failing to dispute the government’s statement of facts in the presentence report and in the government’s sentencing memorandum. They were also ineffective in advising Mr. xxxxxxx to submit a very brief version of the offense that failed to identify disputed facts in the presentence report. In addition, the attorneys were ineffective in failing to show Mr. xxxxxxx the sentencing memorandum earlier than five minutes before the sentencing hearing and in failing to request a continuance in order to prepare evidence to dispute those facts. In United States v. Pinkney, 551 F.2d 1241, 1250-51 (D.C. Cir. 1976), this Court outlined the requirements for effective representation at sentencing, noting that they include familiarization with all available presentence reports and summaries, an attempt to verify information contained in such reports, and a challenge to that information based on “any ground which will assist in reaching a proper disposition favorable to the accused.” Effective representation also requires counsel to consult with the client before sentencing, keep the client fully informed, and utilize the client’s “knowledgeable participation.” Id. at 1250-51; see also Arredondo v. United States, 178 F.3d 778, 788 (6th Cir. 1999) (failure to dispute presentence report was ineffective). Mr. xxxxxxx’s attorneys failed to comply with this requirement.
2. The District Court Plainly Erred in Relying on Disputed Government Allegations to Sentence Mr. xxxxxxx and in Failing To Resolve Disputed Issues of Fact at Sentencing, as Required By Due Process and Federal Rule of Criminal Procedure 32(c)(3)(D)
At the time of Mr. xxxxxxx’s sentencing, Fed. R. Crim. P. 32(c)(3)(D) (1983) provided:
If the comments of the defendant and his counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission.
Due process also requires courts to resolve disputed facts at sentencing. See, e.g., United States v. Chaikin, 960 F.2d 171, 174-75 (D.C. Cir. 1992) (pre-Guidelines Rule 32 protects “‘a defendant’s due process rights to be sentenced on the basis of accurate information’” (citations omitted)); United States v. Lemon, 723 F.2d 922, 932-33 (D.C. Cir. 1983) (due process requires that sentence “not be based on ‘improper or inaccurate information’” (citations omitted)). In this case, Mr. Dietz erroneously represented to the court that he and his client found the presentence report to be “fairly accurate.” [9/26/83 Tr. 4]. In his allocution, Mr. xxxxxxx clearly disputed facts stated in the presentence report and the government’s sentencing memorandum. Instead of resolving the factual disputes, the court appeared to rely on the government’s sentencing memorandum and the presentence report in sentencing Mr. xxxxxxx. [9/26/83 Tr. 20 (“I have reviewed the sentencing memorandum filed by the United States Government . . .”); 23 (“I have no question that the Government has shown that you are engaged in substantial dealings in cocaine.”); 24 (basing sentence on “the nature and extent of the distribution of cocaine in this case [and] the allegations in the pre-sentence report and the background . . .”). This Court reviews plain error at sentencing under a less exacting standard than review of trial errors and defendant must show that the trial judge was “‘derelict in countenancing’” the error. In re Sealed Case, 204 F.3d 1170, 1172 (D.C. Cir. 2000) (citation omitted). Here, the court’s error in failing either to resolve these disputes or state that it did not rely on the disputed facts violated Rule 32 and due process. See, e.g., United States v. Graham, 83 F.3d 1466, 1477 (D.C. Cir. 1996); Chaikin, 960 F.2d at 175; Lemon, 723 F.2d at 942-43. In imposing sentence, the court evidently relied on facts alleged by the government that were disputed by Mr. xxxxxxx, prejudicing Mr. xxxxxxx. This error was plain under controlling law.
For the reasons stated above, Mr. xxxxxxx respectfully requests that this Court set aside his plea of guilty and find that the district court erred in failing to conduct a competency hearing or, in the alternative, remand this case for a competency hearing, resentencing, and/or additional factual inquiry.
FEDERAL PUBLIC DEFENDER
Beverly G. Dyer
ASSISTANT FEDERAL PUBLIC DEFENDER
Counsel for Appellant
625 Indiana Avenue, NW
Washington, D.C. 20004
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(B)
I hereby certify that this brief contains 13,950 words in compliance with Fed. R. App. P. 32(a)(7)(B) and D.C. Circuit Rule 32(a)(2).
Beverly G. Dyer
CERTIFICATE OF SERVICE
I hereby certify that on May 26, 2000, two copies of the foregoing brief for appellant xxxxxxx xxxxxxx xxxxxxx, Jr., and one copy of the accompanying Appendix were served by hand on John R. Fisher, Chief, Appellate Division, United States Attorney's Office, 555 Fourth Street, N.W., Room 8104, Washington, D.C. 20001.
Beverly G. Dyer