UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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NO. 94-3137

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

xxxxxxx xxxxxxx,

Defendant-Appellant.

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REPLY BRIEF FOR APPELLANT

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SUMMARY OF ARGUMENT

In his opening brief, Mr. xxxxxxx contended that the district court abused its discretion by denying his Motion to Withdraw Guilty Plea, inasmuch as the Motion was filed prior to sentencing, triggering the liberal standard of Fed.R.Crim.P. 32(d), the plea was not a knowing and voluntary one, Mr. xxxxxxx subsequently asserted his innocence and the government made no showing that it would be prejudiced by withdrawal of the plea. The government argues in its brief that Mr. xxxxxxx's claim of innocence is not credible since it is contradicted by the government's evidence, that his claim of innocence was belated, and that the claim of innocence in unsupported. Further, the government disputes the district court's conclusion that no prejudice was demonstrated by the goverment in its opposition to the Motion, now claiming that the government may not be able to procure one of its witness should the plea be withdrawn and the case be set down for trial. Finally, the government challenges Mr. xxxxxxx's showing that his plea was not knowing and voluntary, arguing that Mr. xxxxxxx is fully competent in the English language, that Mr. xxxxxxx's responses during the Rule 11 inquiry undermine his position, and that counsel for Mr. xxxxxxx "blocked" (Gov.Br. 26, n. 20 ) the testimony of David Muraskin which would have completed the record on the issue of voluntariness.

Contrary to the government's arguments, Mr. xxxxxxx's efforts to withdraw his guilty plea and protestations of innocence were timely. The credibility of his assertions of innocence is not undermined by government evidence of inculpatory statements by Mr. xxxxxxx. The government's claim, on appeal, that it would be prejudiced by withdrawal of the guilty plea was waived because it was specifically eschewed in the district court. The government did not contest the district court's ruling excluding the testimony of David Muraskin, and the evidence is therefore uncontradicted that Mr. xxxxxxx's guilty plea was induced by retained counsel's coercive tactics. For these reasons, the relief prayed for in his opening brief should be granted.

ARGUMENT

Claim of Innocence .

The government points to five supposed instances when Mr. xxxxxxx admitted his guilt of the charged offense, claiming that these admissions all operate to undermine his claim of innocence. Specifically, the government cites evidence that Mr. xxxxxxx made inculpatory statements to the police at the time of his arrest, that he signed an affidavit which was appended to a motion to suppress tangible evidence and statements filed by his counsel, and that his counsel made inculpatory admissions in the motion and at the hearing on the motion. However, three of these five instances of Mr. xxxxxxx's alleged admissions of guilt are directly attributable to his counsel, not to him. Muraskin prepared the motion to suppress and made certain oral representations at the hearing on the motion which were not adopted by Mr. xxxxxxx. In fact, Muraskin's concessions that Mr. xxxxxxx had standing to litigate the suppression motion because the luggage in which the drugs were found belonged to him form the basis for one of Mr. xxxxxxx's chief complaints against Muraskin.

As for the affidavit accompanying the suppression motion, at the hearing on the motion to withdraw the plea, Mr. xxxxxxx explained at length about the affidavit and how it came to bear his signature. He related that Mr. Muraskin sent him the affidavit, that he called Muraskin, and that through his Spanish-speaking secretary, Mr. Muraskin told him to sign the affidavit, have it notarized and send it to him. 5/25/94 Tr. p. 26 (App. 65). Mr. xxxxxxx is not literate in English and the secretary did not read the affidavit to him. Id. He testified that if he had known the contents of the affidavit, he would not have signed it. When the affidavit was translated into Spanish for him, he realized that "it said that I was affirming that everything that the police said was true and that the luggage was mine and I never told Mr. Muraskin that." Id., pp. 28-29 (App. 66-67).

Also at the hearing, Mr. xxxxxxx explained that he did not make the admissions that the police officers claimed. He testified that the officers came on the train and asked to see his ticket and his identification. Id., p. 42 (App. 81). He got the ticket from Ms. Caseris, his traveling companion, and gave it to the police. The police officer did not ask him where his bag was, and he did not remember the officer showing him a bag, and asking him if it was his. The only other conversation he had with the police was to ask why the police were searching his companion's bag. Id., pp. 43-44 (App. 82-83). He denied telling the police that he had made three trips to Washington and that he was paid $1,000 per trip for transporting drugs, and that his companion was not involved: "I had no reason to say such a thing. To say that she was not involved, it would have been better to defend myself." Id., p. 44 (App. 83).

The government also argues that Mr. xxxxxxx's claim of innocence was not timely and was unsupported. The government correctly notes that in his opening brief, Mr. xxxxxxx erroneously states that the first of his letters to the court about the guilty plea was written within a week of the plea. Gov. Br. 8, n. 6. In fact, the first letter was written within about a month of the entry of the plea; the plea proceeding was held on December 7, 1993 (App. 9) and the letter is dated January 14, 1994 (Gov. Br. 20).

However, the government's contention that this was not a timely effort by Mr. xxxxxxx to withdraw his plea is plainly wrong. The government contends that not until undersigned counsel filed the Motion to Withdraw Guilty Plea on April 28, 1994 did Mr. xxxxxxx assert his innocence. This contention ignores the fact that Mr. xxxxxxx told Michelle Merrett, the probation officer assigned to write the presentence report, that neither the drugs nor the suitcase in which the drugs were found were his and that he pled guilty on advice of counsel. See record material filed under seal with appellant's opening brief, paragraph 7. The government recites that this report is dated January 28, 1994. Obviously, the interview with Mr. xxxxxxx would have preceded the report by at least the time which would have been required for its preparation. The interview would likely have occurred at around the same time Mr. xxxxxxx sent his letter to the court.

Again, the government is wrong that Mr. xxxxxxx did not assert his innocence in these letters to the court. A fair reading of the content of these three letters can only lead to the conclusion that Mr. xxxxxxx was claiming his innocence. In the January 14 letter, he states:

Dear honorable Judge Oliver Gasch, I, Vicente xxxxxxx, plead

guilty before you on Dec. 7, 1993. My lawyer told me that

we were coming to court only for the motions hearing.

I had no idea that it was time for trial. I was informed

in the courtroom that I must start trial immediately or plea

guilty. I never intended to plea guilty but I also wasn't

prepared for trial that instant. My lawyer talked me into

pleaing guilty so that he could go back to New York quickly.

I respectfully ask that the court allow me to take my plea back and appoint me a lawyer so that I may have my trial in this case. Respectfully, Vicente xxxxxxx. (Emphasis added).

The other letters are in a similar vein. Record Material for Appellee, Sections C, D and E. Mr. xxxxxxx testified at the hearing on the Motion to Withdraw Guilty Plea that these letters were written by inmates who were assisting him, who spoke both Spanish and English, but that he told the inmates what to say. 5/25/94 Tr. pp. 29-30 (App. 68-69).

Mr. xxxxxxx's letters to the court and his statements to the presentence writer make it clear that shortly after the guilty plea, he asserted his innocence and sought to withdraw the plea. Mr. xxxxxxx demonstrated the "swift change of heart [that] is itself strong indication that the plea was entered in haste and confusion. . . ." United States v. Barker, 514 F.2d 208, 222 (D.C. Cir. 1975).

Mr. xxxxxxx's claim of innocence is not, as the government claims, unsupported. The test if clearly articulated in United States v. Barker, 514 F.2d at 220:

If the movant's factual contentions, when accepted as

true, make out no legally cognizable defense to the

charges, he has not effectively denied his culpability,

and his withdrawal motion need not be granted. . . .

On the other had, where the motion does assert legal

innocence, presentence withdrawal should be rather

freely allowed. . . . (Citations omitted).

Mr. xxxxxxx told the presentence writer that neither the suitcase nor the bag were his. He reiterated that position under oath at the hearing on the motion. If true, that would certainly make him innocent of the charge to which he pled guilty. Nothing more is required to demonstrate legal innocence.

The government characterizes as "dispositive" that Mr. xxxxxxx told the judge at the plea proceeding that he had had time to confer with counsel and was satisfied with his services. Gov. Br. p. 21. If the government's characterization was correct, no one could withdraw a guilty plea because the questions put to Mr. xxxxxxx during the plea proceeding regarding his counsel's performance are standard. What the government ignores here is that Mr. xxxxxxx's testimony that he was coerced into pleading by his counsel is unrebutted. When asked on cross-examination at the motion hearing why he did not tell the court the problems he was having with his counsel, he stated:

Q: And you recall being asked if you were fully

satisfied with your attorney and you recall\

answering yes, isn't that true?

A: I answered yes, but I answered within what was

happening because I didn't want to contradict

what was going on. . . .

Q: Well, sir, you understood on December 7, 1993,

that you could go to trial if you wanted,

isn't that true?

A: Yes. But I asked the judge to give me a date,

because I did not want to go to trial with a man who

is declaring me guilty before we went to trial.

Q: You didn't tell the judge that, did you?

A: No. That was the argument that we had back there.

Q: So, you didn't tell the judge that, did you?

A: No. I didn't think I had to.

5/25/94 Tr. p. 48 (App. 87).

As Mr. xxxxxxx explained, Mr. Muraskin told him that he had to

plead guilty and that he had no other option. Id., p. 36 (App. 75). When Mr. xxxxxxx asked the court for additional time, he meant to find another attorney to represent him. Id., p. 50 (App. 89). When that request was denied, he pled guilty out of despair. Mr. xxxxxxx's unrebutted sworn testimony as to the circumstances surrounding the entry of the plea provides compelling justification for his failure to assert his innocence at the time the plea was entered.

Prejudice.

The government's eleventh-hour claim of prejudice should be disregarded. In its Opposition to a Post-Hearing Memorandum in Support of Motion to Withdraw Guilty Plea, the government specifically stated that, ". . . while not relying on this claim, the government notes for the record that it may be, contrary to

defendant's assertion, prejudiced by a withdrawn plea." The possibility that the witness to whom the government referred, Mr. xxxxxxx's traveling companion, might have returned to her native country was not sufficiently compelling for the government to assert a claim of prejudice below. The district court found that there was no information before it to suggest that the government would have difficulty proceeding with the prosecution of Mr. xxxxxxx. Memorandum at 6 (App. 119). The assertion of a claim of prejudice at this juncture should be disregarded.

The plea was involuntary.

The government misapprehends Mr. xxxxxxx's reliance on his limited English-speaking abilities to support the involuntariness of the plea. Mr. xxxxxxx does not contend that he did not understand the plea proceedings, and indeed, those proceedings were conducted with the aid of an interpreter. Rather, Mr. xxxxxxx testified at the motion hearing that he had never had a conversation prior to December 7, 1993, wherein Mr. Muraskin explained to him the prospect of a guilty plea. 5/25/94 Tr. pp. 20, 24. The sketchy conversations he had with Mr. Muraskin were in English. Id. On two occasions, Mr. Muraskin's secretary, who was not a lawyer, acted as an interpreter. Id., p. 21. She never mentioned to Mr. xxxxxxx anything about a guilty plea. Id., pp. 24-25. The problem which Mr. xxxxxxx described for the court was that he did not get from his attorney any meaningful explanation of the choice between trial and plea, but was simply coerced into pleading by his attorney's insistence that he had no other option. His attorney never even broached the subject of a guilty plea until just before the plea was entered. Id., p. 23.

None of this testimony was contradicted by the government. The record amply demonstrates that the reason Mr. xxxxxxx plead guilty was because his attorney coerced him to do so. The plea could not be voluntary, given that fact. Therefore, he should be permitted to withdraw the plea, because "[i]t should go without saying that the standard is very lenient when the plea was entered unconstitutionally or contrary to Rule 11 procedures." United States v. Barker, 514 F.2d at 221.

CONCLUSI0N

For these reasons, and those advanced in his opening brief, Mr. xxxxxxx respectfully requests that this case be remanded so that he can plead anew.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

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Reita Pendry

Assistant Federal Defender

625 Indiana Avenue, N.W. #550

Washington, D. C. 20004

(202)208-7500

CERTIFICATE OF SERVICE

I certify that I have served a copy of this Reply Brief by hand-delivery and by mail, postage prepaid, upon Cynthia M. Alksne, Esq., Assistant United States Attorney, Office of the United States Attorney, Appellate Section, 555 4th Street, N.W., Washington, D. C. 20001, this 2nd day of March, 1995.

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Reita Pendry