STATUTES AND RULES

Pertinent statutes and rules are set forth in the addendum to this brief.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1291 over this direct appeal of a final judgment in a criminal case. The district court had jurisdiction over the case pursuant to 18 U.S.C. § 3231.

ISSUES PRESENTED

I.Whether the district court erred in denying defendant's post-sentence motion to withdraw his guilty plea where defense counsel's erroneous advice on which defendant relied in entering the plea deprived him of effective assistance of counsel and rendered the plea involuntary and unintelligent.

II.Whether the district court abused its discretion in denying defendant's post-sentence motion to withdraw his guilty plea where the plea was not entered knowingly and voluntarily under FED. R. CRIM. P. 11.

III.Whether the district court erred in denying the defendant's motion to suppress evidence seized during a warrantless search of his car where the court's probable cause finding was based upon police testimony that was inherently incredible.

STATEMENT OF THE CASE

A.Nature of the Case, Course of Proceedings,

and Disposition in the Court Below

On or about April 4, 1991, a federal grand jury sitting in the District of Columbia returned a three-count indictment charging Mr. xxxxxxx with possession with the intent to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B)(iii) (Count One), possession with the intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count Two), and possession with the intent to distribute dilaudid, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count Three). [A. ]

On September 12 and 16, 1991, the district court conducted a hearing on appellant's motion to suppress evidence seized during a warrantless search of his car. At the conclusion of the hearing, the court denied the motion. (9/16/91 Tr. 17-18) After the denial of his suppression motion and immediately prior to the commencement of jury selection on September 16, 1991, Mr. xxxxxxx entered a conditional guilty plea to Count One, with the remaining counts to be dismissed at sentencing.

On November 8, 1991, the district court sentenced Mr. xxxxxxx to 210 months in prison, to be followed by a term of 5 years on supervised release, and a special assessment of $50.00. [A. ] On November 15, 1991, Mr. xxxxxxx filed a timely notice of appeal and this appeal ensued. [A. ] Thereafter, on November 2, 1992, Mr. xxxxxxx filed a motion to hold his appeal in abeyance pending the filing and disposition of a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. On November 6, 1992, this Court granted the motion and ordered the appeal held in abeyance.

On April 4, 1993, Mr. xxxxxxx filed in the district court his § 2255 motion. [A. ] The government filed its response in opposition to the motion on July 30, 1993, [A. ] and Mr. xxxxxxx filed a reply to the response on September 17, 1993. [A. ] Thereafter, on November 6, 1993, and December 28, 1994, Mr. xxxxxxx filed two supplements to the § 2255 motion. [A. ] After conducting an evidentiary hearing on February 8, 1995, the district court denied the motion. (2/8/95 Tr. 89-101). On February 14, 1995, Mr. xxxxxxx filed a timely notice of appeal from the denial of his § 2255 motion. Several days later, on February 17, 1995, this Court returned case No. 91-3299 to its active docket and consolidated it with case No. 95-3020.

B.Statement of Facts

1.The Suppression Hearing

(a)The Government's Evidence

The government presented its case through two police witnesses, Officers Dwayne Corbett and Harry Campbell. Officer Corbett testified that on March 8, 1991, at approximately 8:00 p.m., he and Officer Myers, both of whom were acting in an undercover capacity at the time, walked into the 1500 block of 11th Street, N.W., Washington, D.C., to investigate general complaints of drug activity in that area. (9/12/91 Tr. 4-7) At that time, Corbett observed an individual he later identified as Mr. xxxxxxx seated in the driver's seat of a red car parked in that block, while another individual was sitting on the passenger's side. (9/12/91 Tr. 6-7) After standing there for only a couple of seconds, Corbett observed the person on the driver's side pass the other individual a brown paper bag. (9/12/91 Tr. 7-8) Corbett then observed the other individual remove from the brown paper bag 3 or 4 bundles of ziplocks containing white powder, and begin counting them. (9/12/91 Tr. 8) A few seconds later, Corbett observed the person sitting on the driver's side counting money. (9/12/91 Tr. 9)

Although Corbett testified that he believed at the time that he had just witnessed a drug transaction inside the car (9/12/91 Tr. 9), neither he nor Myers immediately placed the occupants under arrest or radioed for assistance by the arrest team. Instead, Corbett asked an unidentified individual who was at that time standing outside the car and looking into it, whether he was "working," i.e., selling drugs. (9/12/91 Tr. 9) The individual responded affirmatively and directed him to go to the corner. (9/12/91 Tr. 9)

Corbett and Myers then walked to the corner of 11th and P Streets, N.W., where, after staying there for a minute or two, they observed the man whom they had seen in the passenger seat of the parked car. (9/12/91 Tr. 9-10) Instead of arresting him, the officers approached him and asked if "anybody was working." (9/12/91 Tr. 10) He responded that "no one was out there." (9/12/91 Tr. 10)

At that point, Corbett and Myers began walking back to the parked car and saw the man with whom they had just spoken at the corner also returning to the car. (9/12/91 Tr. 10) As the man approached the car, he started screaming and the driver drove off with the man running behind the car. (9/12/91 Tr. 11) The officers then returned to their vehicle and finally broadcast a lookout for the driver, the other man, and the car. (9/12/91 Tr. 11) The unidentified man, who allegedly was the purchaser of the drugs in the car, was not apprehended by the police. (9/12/91 Tr. 14-15)

Officer Campbell's version of the incident differed from that of Officer Corbett. Campbell did not observe the alleged drug transaction in the car but did participate in Mr. xxxxxxx's arrest later that evening. (9/12/91 Tr. 19-20) In response to the lookout descriptions broadcasted by the undercover officers, Officers Campbell and Baptista responded to the area of the 1100 block of Rhode Island Avenue, N.W. (9/12/91 Tr. 21) Whereas Corbett testified that he observed Mr. xxxxxxx drive off after the alleged drug transaction had occurred in the 1500 block of 11th Street, Campbell testified that he responded to Corbett's subsequent lookout broadcast and observed Mr. xxxxxxx walk back to his car parked in the very same location, get in, and drive northbound on 11th Street. (9/12/91 Tr. 20-21,28-30) Campbell also testified that before he came into the area in response to the undercover officers' broadcast, another officer, Simpson, saw Mr. xxxxxxx exit his car in the 1500 block of 11th Street, take a bag or "something" out of the trunk, and walk away. (9/12/91 Tr. 26-27) Campbell surmised that when he first observed Mr. xxxxxxx, he (xxxxxxx) was returning to his car after Simpson had observed him walking away from it.

According to Campbell, Mr. xxxxxxx turned left onto the 1100 block of R Street and parked his car on the southside of the street near the intersection of Vermont Avenue and R Street (9/12/91 Tr. 21,30) Mr. xxxxxxx then exited his car and began to walk southbound on Vermont Avenue. (9/12/91 Tr. 21) When another police car pulled up into that block, Mr. xxxxxxx began to run north on Vermont Avenue. (9/12/91 Tr. 22-23) Campbell exited his car and gave chase. (9/12/91 Tr. 23) During the chase, Campbell "heard" Mr. xxxxxxx toss some keys against the side of a van and then saw him throw some money to the ground. (9/12/91 Tr. 23-24) Campbell stopped Mr. xxxxxxx and placed him under arrest in the 1100 block of Rhode Island Avenue. (9/12/91 Tr. 24)

After Mr. xxxxxxx was in police custody, Campbell retraced his steps from the chase and recovered the discarded car keys. (9/12/91 Tr. 24) He then returned to Mr. xxxxxxx's parked car in the 1100 block of R Street. (9/12/91 Tr. 24) Standing outside the car and shining a flashlight through the front windshield on the driver's side, Campbell observed on the transmission hump a white cup sitting inside a cup holder. (9/12/91 Tr. 24) He testified that inside the white cup he saw "a bundle that looked like a white powdered substance inside of a piece of brown paper." (9/12/91 Tr. 24) Believing that the bundle contained drugs, Campbell entered the car and seized from inside the cup two ziplock bags containing powdered and rock-like substances, respectively, which field-tested positive for cocaine. (9/12/91 Tr. 25-26) He also found beneath one of the cups in the cup holder twenty-three yellow pills with the marking "K-4", which indicated to him that they were dilaudid. (9/12/91 Tr. 26) Campbell did not search the car's interior but did find some currency there. (9/12/91 Tr. 45) According to Campbell, Officer Simpson subsequently searched the trunk of the car and found a large bag containing additional currency and drugs. (9/12/91 Tr. 27,45)

(b)The Defense Evidence

The defense called three witnesses to testify at the suppression hearing. Vernon Taylor, a defense investigator, testified that on July 11, 1991, he went out to the police impoundment lot at Blue Plains and located Mr. xxxxxxx's car there. (9/12/91 Tr. 48-50) After locating the car, Mr. Taylor conducted an experiment in which he placed fourteen little rocks of sugar or flour in a ziplock bag, put the ziplock in a brown paper bag, put the brown paper bag in a plastic cup, and placed the cup between the driver's and passenger's seats on the console or transmission hump. (9/12/91 Tr. 51-52,57,63) Then, standing outside the car and using a flashlight, Taylor attempted to look inside to determine whether he could see the contents of the ziplock bag. (9/12/91 Tr. 52-53) When Taylor shined the flashlight through the front windshield on the driver's side, he could not see the plastic cup on the floor between the front seats because the steering wheel obstructed his view. (9/12/91 Tr. 53,58-60) It was only when Taylor shined the flashlight through the passenger side of the front windshield that he could see the cup. (9/12/91 Tr. 54,60-61) In his opinion, even if he had shifted his position or had stood on a stool or something to heighten his vantage point, he still would not have been able to see the cup from the driver's side of the front windshield. (9/12/91 Tr. 59-60) Although Taylor conducted the experiment at night, the lighting in the lot was "real bright" and he used a flashlight that he had borrowed from a police officer at the lot. (9/12/91 Tr. 53-54)

The next defense witness, Sanethera Price, testified that at about 4:00 p.m. on March 8, 1991, she and Mr. xxxxxxx left her house at 1829 13th Street, N.W., and entered his car which was parked in the 1400 block of 11th Street, N.W. (9/12/91 Tr. 64,73) Between 4:30 and 5:30 p.m., they were joined by Ms. Price's friend, Theresa Brown, and another friend, a man named "Chip." (9/12/91 Tr. 66-67,74,76) Although the sequence and timing of events are unclear, it appears that Price, Brown, Chip, and Mr. xxxxxxx were together in the car at approximately 8:00 p.m. (9/12/91 Tr. 66-67)

During the time they were sitting in the car, Ms. Price did not see Mr. xxxxxxx pass anything to Chip. (9/12/91 Tr. 68-69) She also did not see two black men or anyone else approach and stand near the car. (9/12/91 Tr. 67-68) Chip left the car first and walked towards O Street. (9/12/91 Tr. 69) Price did not see anyone talk to him at that time. (9/12/91 Tr. 69) As Price and Brown got out of the car, Price's son, Stanley Green, came to the car and asked her for some money. (9/12/91 Tr. 70) Green then got into the car with Mr. xxxxxxx, while Price and Brown walked up toward the corner of 11th and P Streets. (9/12/91 Tr. 71) After she exited the car, Price did not see two men standing around it and did not see Mr. xxxxxxx go into the trunk at any time. (9/12/91 Tr. 72) She also did not see Mr. xxxxxxx in possession of drugs at any time. (9/12/91 Tr. 72) After Green got out of the car, it pulled away. (9/12/91 Tr. 71-72)

Stanley Green essentially corroborated Ms. Price's testimony regarding the events leading up to the time that he entered Mr. xxxxxxx's car. (9/12/91 Tr. 80-82) After entering the car, Green asked Mr. xxxxxxx for some money and xxxxxxx gave him $8.00. (9/12/91 Tr. 82) During that time, Green did not see any men standing around or looking into the car but did see a man drive by slowly in a brown car and look into xxxxxxx's car. (9/12/91 Tr. 82-83) Green did not see Mr. xxxxxxx in possession of anything that appeared to be drugs. (9/12/91 Tr. 83)

After Green's testimony, the defense rested. (9/12/91 Tr. 87) At the conclusion of the testimony, the district court continued the suppression hearing and directed the government to have Mr. xxxxxxx's car at the courthouse for a demonstration to assist the court in determining whether it was possible for Officer Campbell to have observed through the front windshield the cup containing the drugs located on the floor between the front seats. (9/12/91 Tr. 88)

(c)The Court's Examination of the Car

In accordance with the court's directive, Mr. xxxxxxx's car was brought to the courthouse garage to be examined by the district judge in the presence of the parties. (9/16/91 Tr. 3-4) With Officer Campbell's assistance, the prosecutor set up the demonstration by "positioning the car where it [could] be viewed under the conditions that Officer Campbell viewed it . . .." (9/16/91 Tr. 4) Before the demonstration began, the defense argued that Campbell had tampered with the car by changing the location of the plastic cup holder that had been on the transmission hump. (9/16/91 Tr. 5) In response, the district court stated that the defense could put Campbell back on the stand and cross-examine him on that point. (9/16/91 Tr. 5)

After examining the car, the district court found that to the extent that the windows were tinted at all, they were not so tinted as to prevent someone from observing activity occurring within the car. (9/16/91 Tr. 5-6) The judge further found that, at 6 feet tall, he could see through the driver's side of the windshield into the area between the two front seats. (9/16/91 Tr. 6) Shining a flashlight into the car from that vantage point, the court found that, even in the semi-dark conditions of the garage, it was possible to see the console or armrest between the two seats and anything that was located there. (9/16/91 Tr. 6) The court then stated for the record that it observed a cup holder immediately beneath the dashboard and that the floor area on the passenger's side was visible, as well. (9/16/91 Tr. 6) At that point, in response to the prosecutor's questions, Officer Campbell represented that the position of the cup holder referred to by the court was "approximately the same" as the position it was in when Campbell observed it on the night of Mr. xxxxxxx's arrest. (9/16/91 Tr. 6-7) Defense counsel indicated that he expected that the simulation would include the actual bag of drugs to determine whether the court could see inside the bag, as Campbell had testified that he had been able to do. (9/16/91 Tr. 7) Without explanation, the court responded that the defense could "simulate" that "experiment" in the courtroom. (9/16/91 Tr. 7)

After the parties adjourned to the courtroom, Officer Campbell retook the stand. (9/16/91 Tr. 8) On recross-examination, Campbell testified for the first time that the bundle of white-powdered substance he observed inside the cup was sitting on top, rather than inside, of the brown paper bag that was just inside of the cup. (9/16/91 Tr. 11-12)

(d)The Court's Ruling

The district court credited the testimony of Officers Campbell and Corbett. (9/16/91 Tr. 17) Therefore, the court found that the events leading up to and following Mr. xxxxxxx's arrest occurred "approximately" as described by the officers. (9/16/91 Tr. 17) On that basis, the court concluded that the police had probable cause to arrest Mr. xxxxxxx and that the subsequent search of his car was "appropriate in connection with" his arrest. (9/16/91 Tr. 17) Accordingly, the court denied the suppression motion. (9/16/91 Tr. 17-18)

2.The Guilty Plea Proceeding

After announcing its ruling on the suppression motion, the court deferred jury selection until 2:00 p.m. that afternoon. (9/16/91 Tr. 18) When the court suggested that defense counsel confer with Mr. xxxxxxx, counsel informed the court that a guilty plea was likely and that they would only need about "ten or fifteen minutes" to decide. (9/16/91 Tr. 18) Indicating that it would be available to take the plea, the court recessed the morning proceedings. (9/16/91 Tr. 18) At the afternoon session, after clarifying the court's suppression ruling (9/16/91 Tr. 19), defense counsel made the following representations on the record:

Mr. Johnson: Now, my second matter preliminarily is

the government has offered a plea. I have recommended

to my client that he take the plea, and in my

professional judgment, I have expressed to him my

concern that he should, because it is my professional

judgment that to take the plea would be in his best

interest.

The Court: All right sir.

Mr. Johnson: And the third issue is that I have explained to him on numerous occasions that United

States versus Salvucci, which is at 468 United States

Supreme Court [sic], decided June 25, 1980, stands for

the proposition that a defendant has either a right of

privacy, a primary [sic] interest, or a constitutional

right in terms of motions to suppress and proceeding

with the Fourth Amendment exclusion proffer.

* * *

Therefore, if the motion is denied and the court rules

in the government's favor, the defendant cannot then

come to trial and take the position that he was totally

unaware of the drugs' presence.

* * *

I made that clear to Mr. xxxxxxx and I just wanted the

record to reflect that he has been so advised.

The Court: All right. The record will so reflect.

(9/16/91 Tr. 19-20)

Shortly thereafter, defense counsel advised the court that Mr. xxxxxxx had "reconsidered" his position and had decided to plead guilty. (9/16/91 Tr. 22) The parties agreed that in return for Mr. xxxxxxx's conditional guilty plea to Count One of the indictment, preserving the right to appeal the denial of the suppression motion, the government would dismiss the other two counts and agree not to proceed on any other charge arising from the seizure of the drugs in the car. (9/16/91 Tr. 22-23) During the plea colloquy pursuant to FED. R. CRIM. P. 11, the following colloquy occurred:

The Court: And do you understand that subject to your

reservation of your right to appeal my ruling on your

motion to suppress, you will have to waive your right

not to incriminate yourself, since I am going to ask

you what you did with respect to ascertaining whether

there is evidence sufficient to find you guilty as

charged on Count One of the indictment?

The Defendant: I will have to do what?

The Court: You are going to have to acknowledge that

your are guilty of the charge in Count One of the

indictment for purposes of my accepting your plea,

although you are reserving your right to appeal my

finding with respect to your motion to suppress.

* * *

(Defendant conferring with his attorney.)

* * *

The Court: Mr. xxxxxxx, I am not going to take a

guilty plea from a guy who says he is not guilty of

a charge. And if you feel that you are not guilty,

then you are entitled to your trial.

* * *

The only thing I am going to ask you is whether or not

the evidence is sufficient to find you guilty of the

charge of Count One in your judgment.

The Defendant: In my judgment, no.

The Court: Mr. Johnson, why don't you talk to Mr. xxxxxxx for a few minutes. I will take a recess and

we will pick this up where we left off.

(9/16/91 Tr. 26-27)

After a recess was taken, the court explored with counsel the

possibility of Mr. xxxxxxx entering an "Alford plea," by which he would not admit guilt but simply would agree that the government's evidence was sufficient to convict him. (9/16/91 Tr. 27-28) However, when the prosecutor expressed his reluctance to accept the plea under those conditions, defense counsel indicated that Mr. xxxxxxx was prepared to go forward under the original plea agreement. (9/16/91 Tr. 28) At that time, the Rule 11 colloquy was completed and Mr. xxxxxxx's guilty plea was accepted by the court. (9/16/91 Tr. 28-33) Although the court advised Mr. xxxxxxx during the Rule 11 proceeding that parole had been abolished, it failed to inform him that his sentence would include a mandatory period of supervised release and did not explain the effect on his sentence of any supervised release term. (9/16/91 Tr. 31)

3.The § 2255 Evidentiary Hearing

(a)Mr. xxxxxxx's Testimony

At the hearing on his motion to withdraw his guilty plea on the grounds of ineffective assistance of counsel and a Rule 11 violation, Mr. xxxxxxx testified that prior to entering the guilty plea, he had intended to go to trial and raise the defense that he had no knowledge that the drugs were located inside his car. (2/8/95 Tr. 28-29) Mr. xxxxxxx intended to call three defense witnesses at trial. Ms. Price and Mr. Green, both of whom testified at the suppression hearing, as well as Ms. Brown. (2/8/95 Tr. 29) According to Mr. xxxxxxx, the three witnesses would have testified that he was with him at the time the drug transaction allegedly occurred. (2/8/95 Tr. 29) Moreover, Ms. Price would have testified that she had borrowed his car for approximately an hour or so the night before this incident occurred and Ms. Brown would have testified that immediately prior to Mr. xxxxxxx's arrest, he had loaned his car to the individual named "Chip." (2/8/95 Tr. 29-30)

In his testimony, Mr. xxxxxxx explained that he did not change his mind and decide to plead guilty until after the denial of his suppression motion when his counsel, Mr. Johnson, advised him that because he had asserted his right to challenge the search of his car, he could not proceed to trial and raise the defense that he lacked knowledge that the drugs were in his car. (2/8/95 Tr. 30-31) Although xxxxxxx initially doubted the accuracy of this advice, when Johnson repeated it on the record in court, xxxxxxx felt that he had to accept it. (2/8/95 Tr. 31) Therefore, he decided to plead guilty because there was no use in going to trial if he could not raise his only viable defense. (2/8/95 Tr. 31) xxxxxxx testified that it was this advice from his counsel that caused him to plead guilty and that otherwise he would have gone to trial. (2/8/95 Tr. 32)

Mr. xxxxxxx also testified that at the time he entered the plea he did not understand that he was facing a mandatory term of supervised release. (2/8/95 Tr. 32) Instead, it was his understanding that he would not have to serve any time on parole after completing his term of imprisonment in this case. (2/8/95 Tr. 32) If he had known that he was facing a mandatory term of supervised release, it would have affected his decision to plead guilty because of the parole restrictions that would be applicable to him. (2/8/95 Tr. 32-33) Moreover, Mr. xxxxxxx had no understanding at the time of his plea of the consequences of violating a period of supervised release. (2/8/95 Tr. 33)

On cross-examination, Mr. xxxxxxx testified that when this case began he was on parole on other cases until the year 2009 and understood that he faced "back-up time" if he was convicted. (2/8/95 Tr. 41-42) Prior to the suppression hearing, he did not discuss with Mr. Johnson whether he should testify at the hearing and did not recall Johnson explaining to him the consequences of giving inconsistent testimony at the suppression hearing and at trial. (2/8/95 Tr. 42-43)

xxxxxxx understood from Johnson that he was facing five to forty years if he went to trial. (2/8/95 Tr. 47) He testified that Johnson told him that the district court had agreed to impose a sentence of eighty to one hundred months if he pled guilty. (2/8/95 Tr. 47-48) Johnson did not advise Mr. xxxxxxx against testifying at the suppression hearing but, instead, told him that because he had asserted his right to challenge the search of his car, he could not present a no-knowledge at trial. (2/8/95 Tr. 49-50)

Finally, xxxxxxx testified that he did not realize that Johnson's advice about not being able to raise a lack of knowledge defense was incorrect until he was so informed by his appellate counsel. (2/8/95 Tr. 54) He also explained that he never intended to testify at the suppression hearing but did intend to testify at trial. (2/8/95 Tr. 54-55) At the time of his plea, Mr. xxxxxxx was under the misunderstanding that the statutory minimum and maximum -- five to forty years -- was the applicable sentencing guideline range. (2/8/95 Tr. 56)

(b)Mr. Johnson's Testimony

Mr. Johnson testified that he was retained to represent Mr. xxxxxxx and saw him approximately twenty times during the course of his representation. (2/8/95 Tr. 58) Because xxxxxxx appeared to keep up with the law and asked Johnson many questions, Johnson anticipated that xxxxxxx would file a claim against him unless he was acquitted of all charges. (2/8/95 Tr. 59-60) According to Johnson, xxxxxxx indicated his interest in testifying at the suppression hearing and Johnson told him that if he testified that there were drugs in the car in order to establish standing, he could not then testify at trial that he did not know that the drugs were in his car. (2/8/95 Tr. 60-61)

Johnson claimed that after the suppression motion was denied, he advised Mr. xxxxxxx that because the government had a strong case, it would be in his best interest to plead guilty. (2/8/95 Tr. 63) During that discussion, Johnson informed xxxxxxx that if he was convicted after a trial, the government would ask for the high end of the sentencing guidelines and that he would be facing 21 to 28 years in prison, while if he pled guilty, he was likely to receive 17 years imprisonment. (2/8/95 Tr. 64-65)

Johnson explained that his reference on the record to the advice he gave Mr. xxxxxxx based upon his reading on the Salvucci decision was intended to inform him "that he couldn't take the stand at the motions hearing and then at some subsequent time testify at a trial that he had no knowledge that the drugs existed." (2/8/95 Tr. 66,77-78) However, on cross-examination, Johnson admitted that that was not what he had said in court immediately prior to the plea proceeding and that in his representation to the court at that time he did not even use the word "testify." (2/8/95 Tr. 78-79) He also confirmed that in his affidavit attached to the government's opposition to Mr. xxxxxxx's § 2255 motion, Johnson reiterated that his advice to xxxxxxx was that he could not assert standing and then raise a no-knowledge defense at trial. (2/8/95 Tr. 80-81)

Although Johnson claimed familiarity with the Sentencing Guidelines, he did not know the requirements of the career offender provisions of the guidelines and did not remember the factors that had made Mr. xxxxxxx a career offender. (2/8/95 Tr. 58,82-83) He further testified that he never told Mr. xxxxxxx that his sentence would be between 80 to 100 months. (2/8/95 Tr. 70) Although Johnson did not remember whether he first learned that Mr. xxxxxxx was a career offender by reading the presentence report, he didn't know how else he would have known that unless someone had "put [him] on notice that was where he qualified under the guidelines." (2/8/95 Tr. 84)

At the conclusion of Johnson's testimony, the district court asked him whether his advice to Mr. xxxxxxx simply was that he would discredit himself in front of the jury if his trial testimony was inconsistent with his testimony at the suppression hearing, rather than that xxxxxxx did not have the legal right to testify inconsistently at trial. (2/8/95 Tr. 88) Johnson responded that "[i]t would be madness for [him] to sit and let a client put himself in that kind of situation." (2/8/95 Tr. 88)

(c)The District Court's Ruling

The court made a finding of fact that Johnson's advice regarding the Salvucci decision was not incorrect but perhaps was "inartfully phrased." (2/8/95 Tr. 90) It further found that the advice was practical advice that was "entirely correct," although Mr. xxxxxxx might have understood it otherwise. (2/8/95 Tr. 90-91) Thus, the court concluded that Johnson's advice did not constitute ineffective assistance of counsel. (2/8/95 Tr. 91)

Although the court acknowledged that it had "technically" erred in failing to advise Mr. xxxxxxx during the Rule 11 proceeding about the mandatory supervised release term, it found that it was of no consequence in xxxxxxx's decision to plead guilty because of his potential parole back-up time and the lengthy sentence he was facing if convicted after trial. (2/8/95 Tr. 91-92) Accordingly, the court found that its Rule 11 error was harmless and, therefore, denied xxxxxxx's motion to withdraw his guilty plea. (2/8/95 Tr. 93) Finally, the court stated that it could not make a finding that Mr. xxxxxxx had understood that he had the legal right to testify at trial, given Johnson's inartful advice and his failure at the § 2255 hearing to repudiate the way in which he expressed that advice to Mr. xxxxxxx. (2/8/95 Tr. 98-100)

SUMMARY OF ARGUMENT

ARGUMENT

I.THE DISTRICT COURT ERRED IN DENYING DEFENDANT'S POST-SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA WHERE DEFENSE COUNSEL'S ERRONEOUS ADVICE ON WHICH DEFENDANT RELIED IN ENTERING THE PLEA DEPRIVED HIM OF EFFECTIVE ASSISTANCE OF COUNSEL AND RENDERED THE PLEA INVOLUNTARY AND UNINTELLIGENT

A guilty plea is valid only if voluntarily and intelligently made, "with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970). A plea is not voluntary or intelligent if the advice given by counsel on which the defendant relies in entering the plea falls below an objective standard of reasonable competence such that the defendant does not receive effective assistance of counsel to which he is entitled under the Sixth Amendment. United States v. Loughery, 908 F.2d 1014, 1018 (D.C. Cir.1990) (citing Hill v. Lockhart, 474 U.S. 52, 56-60 (1985)); Tollett v. Henderson, 411 U.S. 258, 267 (1973)).

The Loughery Court adopted the Supreme Court's two-part test to determine whether the advice of counsel on which the defendant relies in entering his plea constitutes ineffective assistance of counsel. Loughery, 908 F.2d at 1018. First, "`the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Hill, 474 U.S. at 57 (quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1994)). Second, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. The Strickland Court defined a reasonable probability as "a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694.

In the instant case, defense counsel's erroneous advice to Mr. xxxxxxx that he could not raise a certain trial defense because he litigated a Fourth Amendment suppression motion clearly fell below an objective standard of reasonableness. Moreover, the record below supports the conclusion that but for counsel's deficient performance, a reasonable probability exists that Mr. xxxxxxx would not have pled guilty and would have insisted on going to trial. Therefore, the district court should have granted his post-sentence motion, filed pursuant to 28 U.S.C. § 2255, to withdraw his guilty plea.

A.Standard of Review

The district court must grant a post-sentence motion to withdraw a guilty plea upon a showing of "manifest injustice." United States v. Watley, 987 F.2d 841, 847 (D.C. Cir. 1993).

A post-sentence motion to withdraw a plea of guilty must be filed under 28 U.S.C. § 2255. FED. R. CRIM. P. 32(e). This Court reviews the district court's factual determinations in its § 2255 ruling under the clearly erroneous standard, while its legal conclusions are reviewed de novo. United States v. Pollard, 959 F.2d 1011, 1023 (D.C. Cir.), cert. denied, 113 S. Ct. 322 (1992).

B.Counsel Erroneously Advised Mr. xxxxxxx

That He Could Not Present a Trial Defense

of Lack of Knowledge That Drugs Were in His

Car Because He Had Asserted Standing to

Challenge the Search of the Car

Mr. xxxxxxx filed a pretrial motion on Fourth Amendment grounds to suppress the drugs seized from his car, asserting that the police lacked probable cause to arrest him and to search the car. In order to establish standing to challenge a search and seizure, an accused must show that he had a reasonable expectation of privacy in the place searched or the items seized. United States v. Rakas, 439 U.S. 128, 134 (1978). Although Mr. xxxxxxx did not testify at the suppression hearing held in this case, he did establish, through the testimony of a defense witness, that he (xxxxxxx) owned the car from which the police claimed to have recovered drugs. (9/12/91 Tr. 65) In fact, most likely because Mr. xxxxxxx acknowledged ownership of the car, the government did not contest at the hearing his standing to challenge its search. Since a reasonable expectation of privacy in the place searched is a sufficient basis under the applicable caselaw for the granting of standing, there was no need for Mr. xxxxxxx, having established his ownership of the car, to admit possession of the drugs allegedly found in the car to establish standing. See, e.g., Katz v. United States, 389 U.S. 347, 361 (1967) (enunciating two-part test to determine legitimacy of person's privacy expectation).

Apparently, Mr. xxxxxxx's counsel, Gene Johnson, fundamentally misunderstood the applicable standing law and thought that Mr. xxxxxxx had to admit knowledge of the drugs in the car in order to establish standing to move to suppress them. Based upon this erroneous premise, counsel then concluded that Mr. xxxxxxx's assertion of standing to challenge the search of the car precluded him from presenting a "no knowledge" defense at trial.

After the district court denied the suppression motion, Mr. Johnson advised Mr. xxxxxxx that, having asserted standing to challenge the car search, he could not present at trial a defense that he lacked knowledge of the drugs in the car. (2/8/95 Tr. 30) Mr. xxxxxxx's testimony on this point is corroborated by the record of the guilty plea proceeding in which defense counsel informed the district court of the advice that he had given to his client. After stating that it was his opinion that Mr. xxxxxxx should accept the government's plea offer, Mr. Johnson explained on the record that having asserted his standing to challenge the search of the car, Mr. xxxxxxx could not "then come to trial and take the position that he was totally unaware of the drugs' presence. I made that clear to Mr. xxxxxxx and I just wanted the record to reflect that he has been so advised." (9/16/95 Tr. 20) When his counsel repeated this advice on the record before the district court, Mr. xxxxxxx concluded that it must be correct. (2/8/95 Tr. 30-31) Because Johnson's advice effectively precluded Mr. xxxxxxx from presenting at trial his only viable defense, xxxxxxx decided that it would be useless for him to go to trial and agreed to plead guilty. (2/8/95 Tr. 31) Under these circumstances, Mr. xxxxxxx's guilty plea was not voluntary or intelligent.

(1)The District Court Clearly Erred in

Crediting Defense Counsel's Testimony

at the § 2255 Hearing

In its opposition to Mr. xxxxxxx's § 2255 motion, the government conceded that "Mr. Johnson provided constitutionally adequate advice to his client in all but one instance . . .." [A. (Gov. Opp. at 28)] The "one instance" was Johnson's advice that Mr. xxxxxxx could not raise a "no knowledge" defense at trial because he had asserted standing to challenge the search of his car. [A. (Gov. Opp. 28)] Although the government acknowledged that this advice was "incorrect," it argued that the district court's Rule 11 inquiry cured the error before the plea was entered. [A. (Gov. Opp. 28-29)] The government attached to its opposition an affidavit executed by Mr. Johnson in which he reiterates the advice he gave to Mr. xxxxxxx ("I advised him that, by my reading of the Salvucci case, he could not assert a privacy interest in the automobile and then, if the evidence was not suppressed, assert at trial that he did not know the drugs were there.") [A. (Johnson affidavit at 1)]

Notwithstanding its previous concession on this critical point, the government changed its litigation position at the § 2255 hearing. In this regard, Johnson testified at the hearing that he did not advise Mr. xxxxxxx that he was precluded completely from raising at trial a lack of knowledge defense, but, instead, that he could not testify that the drugs were in his car in order to establish a "proprietary interest" in the property to be suppressed and then testify inconsistently at trial that he was unaware of the presence of the drugs. (2/8/95 Tr. 60-61) According to Johnson, his statement on the record of the advice he had given to Mr. xxxxxxx was intended to confirm that he had told his client that he could not testify one way at the suppression hearing and then testify differently at the trial. (2/8/95 Tr. 66,87)

On cross-examination at the § 2255 hearing, Johnson confirmed the statement that he made on the record prior to the entry of Mr. xxxxxxx's guilty plea on September 16, 1991, but testified that he did not mean what he, in fact, had said. (2/8/95 Tr. 77-78) Instead, Johnson had intended to state for the record that he had explained to Mr. xxxxxxx that he could not take "differing positions" at a suppression motion and then at trial. (2/8/95 Tr. 78) Johnson acknowledged that that was not what he had said in court and admitted that he had not used the word "testify" at all when he repeated for the record the advice he had given to Mr. xxxxxxx. (2/8/95 Tr. 78-79)

The district court's factual finding that Johnson did advise Mr. xxxxxxx against testifying inconsistently at trial and that the advice, "as a practical matter," was "entirely correct" (2/8/95 Tr. 90-91), is clearly erroneous for several reasons. First, the court's finding flies in the face of the clear import of Johnson's statement on the record prior to the guilty plea proceeding, at a time when, according to his own testimony, Johnson was "tr[ying] to be as careful as [he] possibly could be." (2/8/95 Tr. 74) Second, the court's finding is inconsistent with Johnson's sworn affidavit attached to the government's opposition to the

§ 2255 motion. [A. (Johnson Affidavit at 1)]

Finally, the court's premise underlying its finding -- that Johnson's advice related to whether Mr. xxxxxxx would testify at the suppression hearing and claim an ownership interest in the car and "presumably" in the drugs in order to assert standing (2/8/95 Tr. 90) -- is faulty because there was no reason for Mr. xxxxxxx to have testified at the suppression hearing that he owned the drugs since he was able to establish that the car belonged to him. As explained above, this was sufficient to establish standing. (See discussion at pp. ___, supra) Simply put, given that he was able to establish standing through the testimony of defense witnesses at the suppression hearing, Mr. xxxxxxx had no reason to testify at that hearing. This conclusion is supported by xxxxxxx's own testimony at the § 2255 hearing to the effect that he never intended to testify at the suppression hearing. (2/8/95 Tr. 54-55) The fact that the government never contested standing at the suppression hearing and that xxxxxxx did not testify at that hearing, corroborates xxxxxxx's testimony on this point and undermines Johnson's credibility. For these reasons, the district court clearly erred in crediting Johnson's testimony.

(2) Counsel's Advice was Objectively

Unreasonable

The erroneous advice that counsel gave Mr. xxxxxxx as to the interplay between an assertion of standing and the right to present a "no knowledge" defense at trial indicates that counsel lacked the full understanding of the distinction between a legal position taken to establish standing to raise a Fourth Amendment claim, on the one hand, and subsequent trial strategies, on the other. Certainly, this distinction is well understood by reasonably competent criminal defense attorneys. Counsel's advice to Mr. xxxxxxx on this critical issue fell below the minimum reasonable standard of competence required of criminal defense attorneys practicing in federal court and cannot be considered reasonable under prevailing professional norms, such as those reflected in the Standards for Criminal Justice Promulgated by the American Bar Association ("ABA Standards"). Under the ABA Standards, counsel must "inform [ ] himself . . . fully on the facts and the law," thoroughly advise clients "concerning all aspects of the case," and "keep the client informed of . . . developments in the case." ABA Standards 4-3.8, 4-5.1(a) (2d ed. 1980).

This case does not involve the question of whether defense counsel's advice to Mr. xxxxxxx was sound litigation strategy because under the circumstances here, there was no legal or practical bar to raising the lack of knowledge trial defense on the basis of Mr. xxxxxxx's assertion of standing to challenge the search of his car. Thus, this is not a case where defense counsel made a tactical decision that in hindsight was ill-advised. Instead, counsel's erroneous advice deprived Mr. xxxxxxx of his fundamental right to present a defense. See Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388 U.S. 14 (1967). In determining ineffective assistance of counsel claims, "[c]ourts will far more readily find incompetency where there has been an abdication -- not an exercise -- of professional judgment." 2 W. LeFave & J. Israel, Criminal Procedures § 11.10(c) at 44 (Supp. 1990) (internal quotes omitted). For these reasons, the district court's conclusion that counsel's advice was not ineffective (2/8/95 Tr. 91), should be reversed.

The instant case is controlled by this Court's decision in United States v. Loughery, where the defendant argued that her guilty plea to a single count of conspiracy to violate the Arms Export Control Act, arising out of a ten-count indictment that also charged mail and wire fraud, was not intelligently made because her counsel had failed to inform her of a recent Supreme Court decision (McNally v. United States, 483 U.S. 350 (1987)), which rendered the fraud counts invalid. Although the district court denied Ms. Loughery's presentence and post-sentence motions to withdraw her guilty plea, this Court reversed her conviction and held that defense counsel's failure to apprise the defendant of the import of the McNally decision violated her right to effective assistance of counsel and entitled her to withdraw her guilty plea. Loughery, 908 F.2d at 1018-1020.

As in the instant case, defense counsel's failure in Loughery was not a strategic decision. Rather, as this Court found, there was no justification for counsel's failure to inform his client of the McNally decision and its implications on her decision to accept the government's plea offer to dismiss the nine mail and wire fraud counts in return for her guilty plea to the one remaining count of the indictment. Id. at 1019. Thus, the Court concluded that counsel's conduct "evince[d] an abdication of his responsibility to his client, and it is in such cases that courts most typically find that counsel's performance was below the requisite level of competence." Id. (citation omitted).

As in both Loughery and in this case, defense counsel failed to give competent legal advice on a critical issue that informed the defendant's ultimate decision to plead guilty. As in Loughery, counsel's conduct in this case constituted an "abdication of his responsibility" to Mr. xxxxxxx and clearly fell below the minimum reasonable standard of competence required by the Sixth Amendment.

(3)A Reasonable Probability Exists that

Counsel's Incompetent Advice Caused

Mr. xxxxxxx to Plead Guilty

As in Loughery, there is also in this case a reasonable probability that but for counsel's failure to correctly inform Mr. xxxxxxx of his right to present a "no knowledge" defense, he would not have pleaded guilty but, rather, would have exercised his constitutional right to trial. The evidence at the § 2255 hearing clearly established that Mr. xxxxxxx had intended to go to trial until Johnson advised him that he could not present his only viable defense. (2/8/95. Tr. 30-32) Johnson's testimony at the hearing on this point is not credible. Although Johnson testified consistently with xxxxxxx that the decision to plead guilty was made after the suppression hearing (2/8/95 Tr. 61), Johnson also testified that the plea decision was based upon an assessment of the strength of the government's case. (2/8/95 Tr. 63) However, given xxxxxxx's active participation in his case, it is likely that assessment would have been made before the suppression hearing. Moreover, the record clearly establishes that xxxxxxx had rejected previous plea offers and only agreed to plead guilty after Johnson told him he could not raise his intended trial defense. (Id. at 45,63) Therefore, it is more reasonable to conclude that Johnson's erroneous advice caused him to reconsider his position and decide to plead guilty. Thus, but for counsel's deficient advice, Mr. xxxxxxx intended to proceed to trial on a "no knowledge" defense, to be presented through his own testimony, as well as that of three defense witnesses. (2/8/95 Tr. 29-30) Since counsel's erroneous advice eviscerated Mr. xxxxxxx's planned defense, it went to the very heart of his decision to plead guilty.

At the conclusion of the § 2255 hearing, the prosecutor attempted to persuade the court to make a finding that even if Mr. xxxxxxx did not understand from Johnson's advice that he had a right to proceed to trial and testify, he did not suffer any prejudice because the plea agreement he entered into was "a good deal." (2/8/95 Tr. 98-101) However, the court rejected the prosecutor's efforts, stating:

I am not sure what you are asking me to find. Make a finding to the effect that Mr. xxxxxxx knew that he had a legal right to testify at trial? . . . I don't think on the basis of what I've heard here I could make a finding that Mr. xxxxxxx understood that . . . but the point is that Mr. Johnson did not testify in so many words that he repudiated the way in which he expressed the advice that he gave.

(2/8/95 Tr. 99-100) Thus, after hearing all of the evidence, the district court concluded that it could not make a finding that Mr. xxxxxxx understood that he had the right to testify at trial. In the absence of such a finding, the guilty plea could not have been knowing and voluntary. Therefore, because under the totality of the circumstances, counsel's ineffective representation caused Mr. xxxxxxx to enter a guilty plea that was neither knowing nor voluntary, the district court's denial of his post-sentence motion to withdraw his plea should be reversed.

II.THE DISTRICT COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S POST-SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA WHERE THE PLEA WAS NOT ENTERED KNOWINGLY AND VOLUNTARILY UNDER FED. R. CRIM. P. 11

A guilty plea must be entered into knowingly and voluntarily. In Kercheval v. United States, 274 U.S. 220, 223-24 (1927), the Supreme Court recognized that a guilty plea is not valid "unless made voluntarily after proper advice and with full understanding of the consequences." In subsequent cases, the Court has stressed the importance of assuring that a defendant does not enter a guilty plea without a full understanding of the charges and the law in relation to the facts of the case, as well as the possible consequences of the plea. See Parke v. Raley, 113 S. Ct. 517, 522-23 (1992) (a guilty plea must be both knowing and voluntary); Boykin v. Alabama, 395 U.S. 238, 243-44 (1969) (guilty plea unconstitutional because no record of whether plea made knowingly and voluntarily); McCarthy v. United States, 394 U.S. 459, 466-67 (1969) (guilty plea invalid under FED. R. CRIM. P. 11 because court did not individually address defendant to determine voluntariness). Accordingly, a guilty plea which is not voluntary and knowing offends due process and therefore is void. Id. at 466. Moreover, the failure to ensure that a guilty plea is knowing and voluntary also violates Rule 11. Id. at 463-65.

In the instant case, Mr. xxxxxxx's guilty plea was not knowing and voluntary for several reasons. First, the plea was induced by his counsel's erroneous advice, some of which was sanctioned by the district court. Therefore, even if this Court concludes that counsel's improper advice does not rise to the level of ineffective assistance under the Sixth Amendment (see Argument Point I, supra), it still rendered Mr. xxxxxxx's plea unknowing and involuntary under the totality of the circumstances. Second, when Mr. xxxxxxx entered his plea, he did not understand the application of the guidelines to his case, including the fact that he would be sentenced as a career offender. Finally, the district court failed during the guilty plea proceeding to inform Mr. xxxxxxx that his sentence would include a mandatory term of supervised release. Therefore, the plea violated Rule 11(c)(1). Given the totality of the circumstances, the court should have permitted Mr. xxxxxxx to withdraw his plea.

A.Standard of Review

The district court must grant a post-sentence motion to withdraw guilty plea upon a showing of "manifest injustice." United States v. Watley, 987 F.2d 841, 847 (D.C. Cir. 1993).

B.Mr. xxxxxxx's Guilty Plea Was Not Knowing

and Voluntary Because it Was Induced by His

Counsel's Erroneous Advice, Some of Which

Was Ratified by the Court

Mr. xxxxxxx's plea was unknowing and involuntary because it was based on the erroneous advice of his counsel that because he had asserted his standing to challenge the search of his car from which drugs were seized, he was precluded from presenting at trial a defense that he lacked knowledge that the drugs were in his car. See Argument Point I, supra. Almost immediately before advising the court that Mr. xxxxxxx had "reconsidered" and decided to enter a guilty plea (9/16/91 Tr. 22), his counsel informed the court, on the record, of the improper advice that he had given to his client. (9/16/91 Tr. 20) However, the district court did not correct counsel's statement, and, in fact, appeared to confirm it by indicating that, "[t]he record will so reflect." (9/16/91 Tr. 20) As a result, Mr. xxxxxxx mistakenly believed that if he went to trial he would not be permitted to present a lack of knowledge defense to the jury. Thus, his guilty plea did not "represent [ ] a voluntary and intelligent choice among the alternatives available to [him]." North Carolina v. Alford, 400 U.S. 25, 31 (1970).

The district court has the duty under Rule 11(d) to determine before accepting a guilty plea that it is being entered knowingly and voluntarily. See United States v. Ford, 993 F.2d 249, 253 (D.C. Cir. 1993). Although the court's failure to correct counsel's erroneous advice to Mr. xxxxxxx technically did not occur during the Rule 11 proceeding, because the advice was stated on the record shortly before the entry of the plea and directly influenced the defendant's decision to plead guilty, the court had the responsibility to correct or clarify the erroneous information to ensure that Mr. xxxxxxx was entering a knowing and voluntary plea. Cf. United States v. Horne, 987 F.2d 833, 838 (D.C. Cir.) ("if the information given by the court at the Rule 11 hearing corrects or clarifies the earlier erroneous information given by the defendant's attorney and the defendant admits to understanding the court's advice, the criminal justice system must be able to rely on the subsequent dialogue between the court and the defendant") (quoting United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992) (en banc)), cert. denied, 114 S. Ct. 153 (1993)).

Because the district court failed to correct either at the time counsel's erroneous advice was placed on the record or during the subsequent guilty plea colloquy, Mr. xxxxxxx's mistaken belief that he could not present a lack of knowledge trial defense, Rule 11(d)'s essential voluntariness requirement was not met. See United States v. Watley, 987 F.2d at 845-46 (defendant's guilty plea rendered involuntary under Rule 11(d) by incorrect information regarding likely sentence given by defense counsel at and prior to plea hearing and reinforced by court); United States v. Cortez, 973 F.2d 764, 768-69 (9th Cir. 1992) (defendant's belief, based on misrepresentations of counsel, prosecutor, and court, that his unconditional guilty plea allowed him to appeal selective prosecution claim, rendered plea involuntary). Under these circumstances, it is clear that Mr. xxxxxxx did not voluntarily agree to forego a trial and plead guilty. Therefore, his guilty plea and sentence must be vacated.

At the conclusion of the § 2255 hearing, the district court found that counsel's advice, even if intended to explain the "practical" consequences of giving trial testimony that is inconsistent with suppression hearing testimony, was so inartfully phrased that the court could not find that Mr. xxxxxxx understood that he had a constitutional right to proceed to trial and testify in his own behalf. (2/8/95 Tr. 99-100) Therefore, the district court implicitly found that Mr. xxxxxxx had pled guilty without fully understanding that he had the alternative right to testify at trial. Therefore, because his plea was not truly voluntary, this Court should permit that it be withdrawn to correct a "manifest injustice."

C.Mr. xxxxxxx's Guilty Plea Was Not Knowing

and Voluntary Because He Did Not Understand

the Application of the Guidelines to His

Case

Upon his guilty plea to one count of possession with intent to distribute 5 grams or more of cocaine base, Mr. xxxxxxx faced a mandatory minimum sentence of five years and a maximum sentence of forty years imprisonment. He testified at the § 2255 hearing that at the time of the plea he believed that the five to forty years was his sentencing guideline range, rather than the statutory minimum and maximum. (2/8/95 Tr. 56) Although Johnson testified that he had calculated the guidelines and discussed them with Mr. xxxxxxx prior to his plea (2/8/95 Tr. 69-70), the district court failed to make a finding on this point. However, because Mr. xxxxxxx's offense level was determined on the basis of the total quantity of drugs involved under U.S.S.G. § 3D1.2(d), including those relating to the dismissed counts, his base offense level would have been the same even if he had gone to trial and been convicted on all three counts of the indictment. Moreover, because he was a career offender, his adjusted offense level was increased to 34 and his criminal history category was VI, resulting in a guideline sentencing range ("GSR") of 262-327 months. [A. (Gov. Ex. 4)] Thus, the only real benefit Mr. xxxxxxx received from the plea was a two-point reduction for acceptance of responsibility, which was not guaranteed given the lateness of his plea. This reduction resulted in a GSR of 210-262 months. Because the top of the reduced range was the same as the bottom of the original range (262 months), xxxxxxx could have received the same sentence had he gone to trial. Under these circumstance, the district court's finding that Mr. xxxxxxx's guilty plea was motivated by a desire to minimize his potential period of incarceration (2/8/95 Tr. 92), is clearly erroneous.

Moreover, Mr. xxxxxxx's counsel failed to inform him that because of his prior convictions, the career offender provisions of the guidelines would significantly enhance his sentence. In this regard, although Johnson testified at the § 2255 hearing that he had calculated Mr. xxxxxxx's guideline before the plea, on cross-examination, he could not remember when or how he realized Mr. xxxxxxx was a career offender. (2/8/95 Tr. 83-84) In fact, Johnson had no understanding at the hearing of the requirements of the career offender provisions of the guidelines and did not even know what factors made Mr. xxxxxxx a career offender. (2/8/95 Tr. 83) When asked on cross-examination whether it was likely that he learned through the presentence report that Mr. xxxxxxx was a career offender, Johnson testified that he did not remember but that "somebody would have had to put [him] on notice that that was where [Mr. xxxxxxx] qualified under the guidelines." (2/8/95 Tr. 84) Mr. xxxxxxx's lack of knowledge regarding the application of the guidelines and, in particular, his counsel's failure to explain that he would be sentenced as a career offender, rendered his guilty plea unknowing and involuntary. See United States v. Watley, 987 F.2d at 847 (defendant's guilty plea involuntary where based upon incorrect information about possible sentence and failure to advise him about peculiar interplay of guidelines and statutory penalties).

D.Mr. xxxxxxx's Guilty Plea Was Not Knowing and

Voluntary Under Rule 11(c)(1) Because the

District Court Failed to Inform Him That His

Sentence Would Include a Mandatory Period

of Supervised Release

Rule 11(c)(1) expressly requires that the court inform the defendant before accepting the guilty of the "maximum penalty provided by law, including the effect of any . . . supervised release." The rule specifically requires explanation of supervised release as part of the sentence not only because it constitutes a further restraint on a person's liberty, but also because the revocation of supervised release can result in a lengthier period of incarceration than a sentence of imprisonment originally imposes. See 18 U.S.C. § 3583(e)(3) (setting out circumstances under which court may revoke supervised release term and impose additional period of incarceration). It is clear that the failure to notify a defendant of supervised release before accepting the guilty plea is error. United States v. Scott, 987 F.2d 261, 265 (5th Cir. 1993); United States v. Syal, 963 F.2d 900, 906 (6th Cir. 1992); United States v. Reed, 825 F. Supp. 323, 327 (D.D.C. 1993). In this case, Mr. xxxxxxx faced a mandatory term of at least four years supervised release under the applicable statute and a term up to five years under the appropriate guideline. The district court ultimately imposed a term of five years supervised release. However, the court failed during the Rule 11 proceeding even to mention supervised release, much less explain its effect on the sentence to be imposed. At the conclusion of the § 2255 hearing, the district court found that its failure to advise Mr. xxxxxxx of the mandatory supervised release term was "a matter of no consequence whatsoever to Mr. xxxxxxx in his decision to enter his plea of guilty" because he was at that time on parole, which was scheduled to expire in 2009, and therefore faced a substantial amount of "backup time." (2/8/95 Tr. 91-92) This finding is clearly erroneous because Mr. xxxxxxx's substantial rights were affected by the supervised release term.

Mr. xxxxxxx testified at the § 2255 hearing that he did not know at the time of his plea that he was facing a mandatory period of supervised release. (2/8/95 Tr. 32) Johnson's silence on this point indicates that he never discussed supervised release with Mr. xxxxxxx before he entered the plea. Thus, since neither his counsel nor the court mentioned supervised release to him before he pled guilty, it is clear that Mr. xxxxxxx did not understand the significance of the supervised release term being included in his sentence. See United States v. Tuangmaneeratmun, 925 F.2d 797, 803 (5th Cir. 1991) ("supervised release has unique characteristics that might not be readily apparent to a lay person").

The district court's reliance on the amount of Mr. xxxxxxx's parole backup time in finding that its Rule 11 error was harmless, is misplaced because the supervised release term would extend beyond the expiration of his parole backup sentence. Therefore, the supervised release term would constitute a further restraint on his liberty beyond his period of incarceration. Moreover, given a worst case scenario, if Mr. xxxxxxx's supervised release was revoked at the very end of his five-year term and he was then returned to prison for three years, pursuant to

§ 3583(e)(3), without receiving any credit for his time on supervised release, his liberty could be severely restrained for an additional eight years after the completion of his parole backup time. Under these circumstances, the court's finding that its Rule 11 error was harmless is clearly erroneous.

E.Mr. xxxxxxx's Guilty Plea Was Not Knowing and

Voluntary Under the Totality of the Circumstances

The record of these proceedings establishes that Mr. xxxxxxx's guilty plea was induced by his counsel's erroneous and inadequate advice. Clearly, Mr. xxxxxxx would not have pled guilty if he had understood that he could present -- through his own testimony, if necessary -- a lack of knowledge defense at trial. Moreover, he would not have pled guilty if he had understood that he would be sentenced as a career offender to an enhanced period of incarceration followed by a mandatory term of supervised release. Because his plea was based upon erroneous advice and a lack of knowledge regarding the length and restrictions of his sentence, it was not knowing and voluntary. Therefore, Mr. xxxxxxx has shown that his plea and sentence in this case constitute a "manifest injustice." For these reasons, the district court erred in denying his motion to withdraw his plea.

III.THE DISTRICT COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED DURING A WARRANTLESS SEARCH OF HIS CAR WHERE THE COURT'S PROBABLE CAUSE FINDING WAS BASED UPON POLICE TESTIMONY THAT WAS INHERENTLY INCREDIBLE

Mr. xxxxxxx moved to suppress the evidence seized in his car on the grounds that his arrest and the subsequent warrantless search of the car were illegal because they were conducted without probable cause. The government argued in support of the search and seizure that the police had probable cause to arrest Mr. xxxxxxx and to search his car when officers observed him engaged in a drug transaction inside of the car. The prosecution presented at the suppression hearing two police witnesses to testify concerning the facts and circumstances surrounding Mr. xxxxxxx's arrest and the subsequent search of his car. Because of the serious inconsistencies in the officer's testimony and the incredibility of their version of events, the district court should have rejected their testimony and granted the suppression motion. Mr. xxxxxxx now asks this Court to invoke the doctrine of inherent incredibility to reverse the district court's findings which were based upon the inherently incredible police testimony.

A.Standard of Review

In reviewing a denial of a suppression motion, this Court reviews the district court's factual findings under a clearly erroneous standard and its legal conclusions de novo. United States v. Taylor, 997 F.2d 1551, 1553 (D.C. Cir. 1993); United States v. Garrett, 959 F.2d 1005, 1007 (D.C. Cir. 1992).

B.The District Court's Finding That the Police

Testimony Was Credible is Clearly Erroneous

This Court has long recognized that although it normally accepts the testimony of police officers and other witnesses credited by the district court, it is not compelled to do so. Jackson v. United States, 353 F.2d 862, 866 (D.C. Cir. 1965) (reversing drug conviction based upon inconsistent police testimony); Kelly v. United States, 194 F.2d 150, 154-156 (D.C. Cir. 1952) (reversing solicitation conviction based upon testimony of single officer). In conjunction with this recognition, the Court more closely scrutinizes police testimony in cases involving warrantless arrests. Rouse v. United States, 359 F.2d 1014, 1016 (D.C. Cir. 1966); Jackson, 353 F.2d at 868 n.15. In cases where police testimony was internally inconsistent and contrary to common experience, this Court has rejected it under the doctrine of inherent incredibility. See, e.g., Jackson, 353 F.2d at 867; Farrar v. United States, 275 F.2d 868, 869 (D.C. Cir. 1959). Because these elements are present in this case, the district court should have discredited the officers' testimony.

The testimony of the police witnesses at the suppression hearing -- undercover officer Dwayne Corbett and arrest team member Harry Campbell -- was contradictory on several crucial points. In fact, when taken together, their testimony establishes an impossible sequence of events, given the inconsistencies relating to time and place. Moreover, Corbett's testimony, taken by itself, contains internal contradictions and is contrary to common knowledge of the nature of drug transactions and of drug enforcement techniques. Notwithstanding these defects in the evidence, the district court credited the police testimony. (9/16/91 Tr. 17)

In this regard, Corbett testified that the drug transaction allegedly involving Mr. xxxxxxx occurred in his car in plain view. (9/12/91 Tr. 4-9) According to Corbett, the participants made no attempt to conceal their transaction as he observed the buyer openly counting bundles of ziplocks containing white powder, while the seller openly counted his money. (9/12/91 Tr. 7-8) Moreover, Corbett claimed that three individuals -- he, Officer Myers, and an unidentified man -- were standing outside the car and looking into it while the drug deal was being consummated. (9/12/91 Tr. 9) It is not believable or consistent with common experience that individuals would conduct a drug deal in a car parked on a public street and be so oblivious as to be unaware that they were being observed by three persons peering into the car.

Corbett's testimony concerning the events that occurred after he witnessed what he believed to be a drug transaction also makes little sense. Although he and Myers had observed a drug deal occur in their presence, neither one immediately radioed for assistance by the arrest team. Instead, Corbett inexplicably asked the unidentified man standing outside the car whether he was selling drugs. (9/12/91 Tr. 9) Then, rather than signalling the arrest team, the undercover officers walked to the corner. (9/12/91 Tr. 9-10) According to Corbett, after remaining there for a minute or two, he saw standing at the corner the person who, only moments ago, had purchased the drugs in the car. Instead of arresting him, the undercover officers approached him and asked him if "anybody was working," i.e., selling drugs. (9/12/91 Tr. 10) His supposed response -- that "no one was out there" (9/12/91 Tr. 10) -- also makes no sense if, in fact, he had just purchased bundles of drugs from Mr. xxxxxxx. Finally, Corbett's testimony that as he and Myers began walking back to the parked car, he saw that same individual return to the car, start screaming, and then pursue it as the driver drove off (9/12/91 Tr. 11), has no apparent connection to the earlier events described by Corbett. Thus, based upon its internal incredibility alone, Corbett's testimony should be rejected.

In addition to the internal problems with Corbett's testimony, when considered in conjunction with the other evidence in the case, such as Officer Campbell's testimony at the detention and suppression hearings and Officer Myers's affidavit (commonly referred to as a "Gerstein affidavit"), it becomes clear that the events could not have occurred in the manner in which Corbett recounted them. First, the officers directly contradicted each other as to the location of the alleged drug transaction. Contrary to Corbett's testimony that the alleged drug exchange inside Mr. xxxxxxx's car occurred in the 1500 block of 11th Street, N.W., Campbell testified at the detention hearing in this case that the transaction occurred in the area of 1050 O Street, N.W., and that after the transaction, Mr. xxxxxxx drove away and parked in the 1500 block of 11th Street, N.W. (3/15/91 Tr. 5) Campbell's testimony on this point also is inconsistent with the Gerstein affidavit, in which Myers stated that after the alleged drug transaction, xxxxxxx drove away from the 1500 block of 11th Street, N.W., and initially parked his car in the 1100 block of R Street, N.W. [A. Gerstein aff.]

In addition to the fundamental inconsistencies as to the location of the alleged drug transaction, portions of Campbell's suppression hearing testimony cast further doubt on Corbett's claim that he saw Mr. xxxxxxx engage in a drug exchange in the 1500 block of 11th Street, N.W. For example, although Corbett testified that he and Myers did not broadcast the lookout until after the transaction had occurred and the seller had driven away from the 1500 block of 11th Street, N.W. (9/12/91 Tr. 11), Campbell testified that he responded to the lookout and first saw Mr. xxxxxxx walking back to his car parked in that exact location. (9/12/91 Tr. 20-21) Obviously, Campbell could not have made this observation before the drug transaction occurred because he was responding to the lookout that was not broadcast until after the deal was completed. Moreover, Campbell could not have observed Mr. xxxxxxx walk back to his car and drive off after the alleged drug exchange because Corbett testified that when xxxxxxx drove away from the 1500 block of 11th Street, N.W., he was pursued by the other individual allegedly involved in the transaction. If Campbell had observed this, he would have corroborated Corbett's testimony on this point. Instead, Campbell's testimony directly contradicts that of Corbett on this critical issue. Taken together, their testimony renders impossible the sequence of events and compels the conclusion that their testimony is inherently incredible.

Campbell's testimony regarding his observation of Mr. xxxxxxx in the 1500 block of 11th Street, N.W., also contradicts other evidence in this case. Myers's affidavit states that another officer, Investigator Simpson, observed xxxxxxx take a bag out of the trunk of his car in the 1500 block of 11th Street, N.W., before Corbett and Myers arrived in that location. However, Campbell testified at the suppression hearing that Simpson observed xxxxxxx go into his trunk after Corbett and Myers already had witnessed the alleged drug transaction. (9/12/91 Tr. 26-27) In fact, Campbell testified that when he first saw xxxxxxx walking back to his car in the 1500 block of 11th Street, N.W., it must have been after Simpson observed him going into his trunk. (9/12/91 Tr. 27) However, Simpson could not have seen Mr. xxxxxxx take a bag out of his trunk after the alleged drug transaction because Corbett testified that he saw xxxxxxx drive away from the location where the drug exchange allegedly occurred. If the Corbett had seen xxxxxxx go into his trunk before driving off, he would have included that significant observation in his testimony. The only logical conclusion that can be drawn from these differing versions is that the police officers either fabricated their testimony or misidentified Mr. xxxxxxx as the person who was distributing drugs in that location at that time. Given the impossibility of the sequence of events as testified to by Corbett and Campbell, the government failed to prove that Simpson observed Mr. xxxxxxx take a bag out of the trunk of his car. Therefore, the district court erred in finding that the police had probable cause to search the trunk.

Campbell's testimony in this case that he observed drugs in plain view inside the passenger compartment of Mr. xxxxxxx's car

also contains internal inconsistencies. First, he testified at the detention hearing that the drugs were "inside" a brown paper bag that was contained in a cup on the floor of the front seat. (3/15/91 Tr. 7-8) During the initial portion of the suppression hearing, Campbell again testified that the drugs seized from the cup were "inside" a brown paper bag. (9/12/91 Tr. 24) Given the conflicting evidence on this point, the district court directed the prosecutor to conduct a demonstration to determine whether the drugs seized from the passenger compartment actually had been in Campbell's plain view. (9/12/91 Tr. 88)

When the demonstration was conducted in the courthouse garage a few days later, the district judge made clear the significance he attached to the demonstration by stating that, "it would seem to me that if the officer could not have seen what he testified to as having observed, which gave rise to the whole sequence of events that ensued, that ends the matter right here." (9/16/91 Tr. 4) The district judge then shined a flashlight through the car windshield and found that the cup holder beneath the dashboard was visible from that vantage point. (9/16/91 Tr. 6) Campbell, who had set up the demonstration, then testified that the cup holder was in approximately the same position as it was when he first saw it on the night of xxxxxxx's arrest. (9/16/91 Tr. 6-7) Although defense counsel argued that Campbell had changed the location of the cup holder and that the simulation had not included placing the actual bag of drugs in the cup holder to determine whether the court could see them because "the drugs were in the bag," the court responded that counsel could cross-examine Campbell on these points when they returned to the courtroom. (9/16/91 Tr. 7)

However, upon resuming his cross-examination, Campbell testified for the first time that the drugs were on top of, rather than inside, the brown paper bag. (9/16/91 Tr. 12) Thus, Campbell changed his testimony on this critical point when he apparently realized the significance the court was placing on it and after the court had granted counsel permission to conduct an in-court simulation to determine whether Campbell actually could have seen inside the bag. In light of this glaring inconsistency in Campbell's testimony on this crucial issue, the district court should have discredited Campbell's testimony that the drugs were in plain view. See United States v. Best, 563 F. Supp. 1075, 1079 (D.D.C. 1983) (rejecting police officer's suppression hearing testimony that he saw pistol while looking through open car door, which contradicted his preliminary hearing testimony that he saw pistol while peering through car windshield).

This Court has recognized that, "[i]n some cases police testimony, like other testimony, will simply be too weak and too incredible, under the circumstances, to accept." Jackson, 353 F.2d at 867. In that case, the district court found probable cause for the defendant's arrest based upon a police officer's testimony that a reliable informant had provided information that the defendant was in possession of heroin. However, this Court rejected as clearly erroneous the finding that the officer had received detailed information from the informant. Id. at 864. Concluding that the officer's testimony "contain[ed] internal contradictions and [was] contrary to human experience," the Court refused to credit it and, therefore, reversed the conviction. Id. at 867-68.

Similarly, in Rouse v. United States, 359 F.2d at 1015-16, this Court reversed the denial of a suppression motion where it found numerous inconsistencies in the police testimony regarding the circumstances surrounding the defendant's arrest and subsequent search. In words particularly applicable to the instant case, the Court commented that because the prosecution has the burden of establishing the validity of a warrantless arrest, the police "must take all reasonable steps to assure that their testimony accurately reflects what occurred." Id. at 1016.

In the instant case, the police officers' suppression hearing testimony contains inconsistencies on significant points, such as the location of the alleged drug transaction. Moreover, their testimony contradicts other evidence in the case. Finally, Campbell's testimony regarding the critical issue of the location of the drugs inside the car is internally inconsistent. For these reasons, the district court's finding that the police testimony was credible, is clearly erroneous. See Jackson, 353 F.2d at 865 ("A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.") (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).

Given the inherent incredibility of the police testimony, the court should have concluded that probable cause did not exist either for Mr. xxxxxxx's arrest or for the subsequent search of his car. Therefore, because the seizure of drugs from the passenger compartment and trunk of the car was made in violation of Mr. xxxxxxx's Fourth Amendment rights, the district court's denial of the suppression motion must be reversed and the evidence excluded in this case.