UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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NOS.  AND xxx,

CONSOLIDATED

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UNITED STATES OF AMERICA,



Appellee,



v.



xxxxxxxxxxx,



Appellant.

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BRIEF FOR APPELLANT

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STATUTES, RULES, AND GUIDELINES



Pursuant to Fed. R. App. P. 28(f) and Circuit Rule 28(a)(5), pertinent statutesm rules, and Sentencing Guidelines are set forth in the Addendum hereto.

JURISDICTION

The District Court had jurisdiction under 18 U.S.C. 3231 and 28 U.S.C. 2255. Notices of appeal having been timely filed, this Court has jurisdiction pursuant to 28 U.S.C. 1291.

ISSUES PRESENTED

1. Whether Mr. xxxxxxxxxxx's presentence motion to withdraw his guilty plea should have been granted because the plea did not result from an adequately informed choice between alternative courses, because he had not specifically admitted possession of the drugs in the plea colloquy and he denied it in the context of the motion, and because the motion was timely and the Government did not claim that it would be prejudiced if the motion were granted.

2. Whether Mr. xxxxxxxxxxx's right to the effective assistance of counsel was violated (a) by his attorney's patent inattention to his case, particularly in his admitted failure to determine mr. xxxxxxxxxxx's potential sentences before the trial date and (b) by the attorney's continued representation of mr. xxxxxxxxxxx at the plea withdrawal hearing and sentencing despite his actual conflict of interest.

STATEMENT OF THE CASE

Procedural Background

In a three-count indictment filed on February 18, 1993, appellant Ernest xxxxxxxxxxx was charged, respectively, with possession of 50 grams or more of cocaine base with intent to distribute (21 U.S.C. 841(a)(1) and 841(b)(1)(A)(iii)), with possession of a detectable amount of cocaine with intent to distribute (21 U.S.C. 841(a)(1) and 841(b)(1)(C)), and with possession of a detectable amount of heroin with intent to distribute (21 U.S.C. 841(a)(1) and 841(b)(1)(C))). On April 20, 1993, the scheduled date of trial, prior to a scheduled suppression hearing, Mr. xxxxxxxxxxx pleaded guilty to the first count of the indictment. On June 28, 1993, a hearing was held on the motions to vacate the plea that had been made by Mr. xxxxxxxxxxx pro se and by his counsel, and the motions were orally denied. On July 13, 1993, Mr. xxxxxxxxxxx was sentenced as a career offender to 262 months in prison, to be followed by a five-year term of supervised release, and to a $50 special assessment. Mr. xxxxxxxxxxx subsequently made a motion to vacate the judgment pursuant to 28 U.S.C. 2255 and a mation to supplement the record, and both motions were denied without a hearing in a memorandum filed on February 28, 1994. The appeals on the judgment and on the denial of the post-sentence motion have been consolidated by this Court.

The Government's Evidence, as Presented at the Preliminary Hearing

A preliminary and detention hearing concerning Mr. xxxxxxxxxxx's case was held on January 27, 1993. Detective William Buss, MPD, testified that at about 1:45 p.m. on January 23, 1993, he and other officers approached Mr. xxxxxxxxxxx on a train stopped in Union Station that was en route from New York City to Florida (1/27 3-5). (1) The police had been informed by an Amtrak Police detective that Mr. xxxxxxxxxxx was traveling from New York to Raleigh-Durham, N.C., under a false name, and that he was scheduled to arrive on Saturday night and return Monday morning (1/27 5). Mr. xxxxxxxxxxx had allegedly first made a reservation under the name K. Bryant, but had missed the train and had made a new reservation under the name Welcome (1/27 5). According to Buss, Investigator Cook, who talked to Mr. xxxxxxxxxxx, determined that he "was traveling under an assumed name" and that his claim of being on a trip that would take a "long period of time" was false (1/27 6). (2)

The railroad car was about half full, containing about 40 passengers (1/27 8, 20). One person was sitting immediately behind Mr. xxxxxxxxxxx, and there were bags behind Mr. xxxxxxxxxxx's seat (1/27 8). Mr. xxxxxxxxxxx admitted ownership of, and gave police permission to search, a green duffel bag that was at the other end of the car (1/27 14). He also admitted ownership of a coat above his seat, but he denied ownership of the brown tote bag underneath that coat (1/27 6, 8, 15). All the other passengers on the car also denied ownership of the brown bag (1/27 8).

Initially, nothing incriminating was found in Mr. xxxxxxxxxxx's green duffel bag (1/27 6, 12, 14, 17). In the subsequent search of the brown bag, however, the police found a plastic bag containing 120 grams of crack, a plastic bag containing 17 grams of powder cocaine, 174 small yellow paper bags of heroin, and a block of a heroin cutting agent (1/27 7, 9, 14). The green duffel bag was then searched again, and inside some clothing it held, the police came upon an unspecified number of empthy yellow bags like those containing heroin that had been found in the brown bag (1/27 9). In addition, a search after Mr. xxxxxxxxxxx's arrest revealed a rolled-up dollar bill containing some heroin in his sock, as well as a small straw, believed to be narcotics paraphernalia, in a cigarette pack in his shirt pocket (1/27 9-10).

Buss had no information that Mr. xxxxxxxxxxx had been seen touching or even reaching toward either piece of luggage (1/27 11). Buss did not know how long Mr. xxxxxxxxxxx had been in the seat where he was found, and, the witness acknowledged, there was "a good possibility" he had changed his seat (1/27 19-20). Nevertheless, when the police "felt" that Mr. xxxxxxxxxxx was the brown bag's owner, they ceased efforts to link it to anyone else (1/27 15).

The Arraignment With Stand-in Defense Counsel

At Mr. xxxxxxxxxxx's arraignment, on March 3, 1993, the attorney appearing on Mr. xxxxxxxxxxx's behalf, an associate of Mr. xxxxxxxxxxx's retained attorney, Arthur Reynolds, Jr., advised the judge that he was not familiar enough with the case to assess the possibility of a plea agreement, but from what he understood, he doubted that one would be reached (3/3 3). During the discussion of whether Mr. xxxxxxxxxxx's detention should be continued, the prosecutor asserted that it appeared Mr. xxxxxxxxxxx had more than two prior felony convictions, and if he did, it "would subject him to a life imprisonment charge in this case" (3/3 6-7). The judge responded,

It might. It might. It depends on the nature of it and whether they're considered a violence [sic], and a number of other factors. But he may well be, with his past record, considered a career criminal.

(3/3 7) The prosecutor then said, "There's also, I believe, the statutory enhancement because of the over 50 grams and possibly two prior felony convictions," and he told the judge the Government would be filing papers in that regard (3/3 7-8). Defense counsel did not engage in this colloquy.

Before the proceeding concluded, the judge complained to defense counsel that Mr. Reynolds had not returned calls from her chambers concerning another case, and counsel indicated that Mr. Reynolds had been on trial in Superior Court since the previous week (3/3 9).

The Status Hearing With No Defense Counsel

Mr. Reynolds failed to appear for the status hearing in this case that was scheduled for March 22, 1993 (3/22 3-5). Mr. xxxxxxxxxxx asked the judge if he could have a copy of the discovery documents provided by the Government, and the judge told him it was his counsel's duty to share such information and "keep in touch" with him about the case (3/22). Later that day, she issued an order to Mr. Reynolds to show cause why he should not be held in contempt or referred for counseling under Local Rule 711 (A. 12). In his written response, Mr. Reynolds claimed that law-office failure had resulted in the non-entry in his calendar of the status hearing date noted at arraignment by his associate (A. 14-19).

The Aborted Suppression Motion and the Entry of Mr. xxxxxxxxxxx's Guilty Plea

A hearing, on Mr. xxxxxxxxxxx's motion to suppress physical evidence and statements, and trial were scheduled for April 20, 1993. However, several other pretrial issues were initially addressed on that date. First, the prosecutor unsuccessfully sought permission, without prior notice, to introduce evidence of prior bad acts under Fed. R. Evid. 404(b) and to obtain a hair sample from Mr. xxxxxxxxxxx. The prosecutor emphasized his contention that the hair sample would be "potentially very relevant" as a link between Mr. xxxxxxxxxxx and the bag in which the drugs were found, but the judge denied the request, not only because the defense would have been prejudiced if the test were permitted so late in the case, but because the outcome of a test was too uncertain to support a finding of probable cause to take the sample (4/20 16-17). (3)

The prosecutor also indicated that the Government was about to file a "notice" of "prior convictions"--his "understanding" being that Mr. xxxxxxxxxxx had "two prior drug felonies"--which under 21 U.S.C. 841 would entail a mandatory life sentence without parole (4/20 19). In conjunction with this statement, the prosecutor offered Mr. xxxxxxxxxxx a guilty plea to the first count of the indictment, possession of more than 50 grams of cocaine base with intent to distribute (4/20 19). The offer contemplated that the "repeat papers" would not be filed, but the prosecutor was "not sure exactly how the criminal history would play out" (4/20 19). Defense counsel Reynolds informed the judge that this was the first he had heard of the plea offer, which he characterized as "a matter of extreme importance to Mr. xxxxxxxxxxx," and he indicated a desire to discuss it with his client (4/20 23). (4) The prosecutor protested that he had been trying to call Mr. Reynolds for five days to discuss the offer, among other things, and the judge concurred that her chambers had found Mr. Reynolds "hard to get hold of" (4/20 24-25). Mr. Reynolds explained that he had been hospitalized with an infection following oral surgery (4/20 25). He did not explain why the messages concerning this case, with trial impending, did not reach him. The proceeding was recessed from 10:45 a.m. until 1:57 p.m. (4/20 25).

Following the recess, the prosecutor asserted the Government's position that "if the Government declines to file a notice of prior convictions under 21 U.S.C. 851, the defendant cannot be sentenced to increased penalties" (4/20 26-27). He also stated that it appeared that Mr. xxxxxxxxxxx was a career offender, and that with a three-level reduction for acceptance of responsibility, to which the Government would not object, his adjusted offense level would be 34 and his criminal history category VI, which would result in an imprisonment range of 262 to 327 months (4/20 27). Finally, the prosecutor noted that if the suppression hearing began, the offer would be withdrawn (4/20 29).

Defense counsel Reynolds stated that Mr. xxxxxxxxxxx would accept the plea offer and plead guilty

. . . in reliance upon the Government's assertion that the plea of guilty, in the absence of enhancement papers, does not automatically subject Mr. xxxxxxxxxxx to a sentence of life without parole. It is in reliance upon the Government's view of the law that Mr. xxxxxxxxxxx is prepared to go forward with this plea.

(4/20 29-30) Mr. xxxxxxxxxxx was then sworn, and after the judge read the first count of the indictment to him and asked, "Are you pleading guilty to that count because you are guilty of that offense or are you pleading guilty for any other reason whatsoever?", he answered, "Because I'm guilty" (4/20 33). When the judge asked Mr. xxxxxxxxxxx if he was pleading guilty voluntarily, he replied affirmatively, and he indicated that he understood the plea agreement as the judge stated it and that he had been made no other promises (4/20 37-38).

When the judge recited to Mr. xxxxxxxxxxx the Government's estimate of the range of his prospective prison term, he did not answer--Mr. Reynolds did (4/20 38-39). Counsel registered his disagreement with the career criminal classification and made the following statement about Mr. xxxxxxxxxxx's Guideline range:

Yes. Your Honor, we discussed with Mr. xxxxxxxxxxx a level 34, and the criminal history category -- and we believed that we may be able to get the level 34 reduced to a level 32 or 31 with an acceptance of responsibility reduction. And then the level 32 would have a criminal history category of V -- possibly V or VI. The level 32 with a criminal history category of VI would expose Mr. xxxxxxxxxxx to a Guideline range of 210 to 262 months. If there is a three-point reduction for acceptance of responsibility, which would put Mr. xxxxxxxxxxx at a level 31 and a Guideline range of V or VI -- criminal history of V or VI, a criminal history of VI, offense level 31, is 188 months to 235 months. And what we would be opposing at the time of sentencing is the Government's contention that Mr. xxxxxxxxxxx should have a career criminal assessment.

(4/20 39-40)

The judge summarized the possibilities by informing Mr. xxxxxxxxxxx that the sentence would be "substantially more than ten years" and that the "best" to "worst" estimates of the lawyers was 188 to 327 months, commenting that the Government "may well be correct" about the career criminal classification, with a minimum of 262 months and a maximum of 327 months, all of which Mr. xxxxxxxxxxx indicated he understood (4/20 40-42). Mr. xxxxxxxxxxx also responded affirmatively to the judge's questions whether he was satisfied with Mr. Reynolds' services and had had enough time to discuss the case and the plea with him (4/20 43).

Mr. xxxxxxxxxxx acknowledged that the prosecutor's ensuing recitation of the "factual predicate" for the plea was (in the judge's words) "true" and "what happened" (4/20 47). That recitation included not only Mr. xxxxxxxxxxx's past admission of ownership of the green bag, which was found to contain traces of heroin and cocaine and "a quantity" of yellow paper packets identical to those containing heroin in the brown bag, but also his contemporaneous denial of owning the brown bag (4/20 45). The prosecutor noted, too, that "another passenger on the train indicated that he observed the defendant in possession of the brown totebag," that Mr. xxxxxxxxxxx possessed the heroin found in his sock and train tickets indicating a return time at odds with what he told the interdiction officer, and that he was not traveling under his true name (4/20 45-47). However, the prosecutor did not assert as fact, and thus Mr. xxxxxxxxxxx did not explicitly admit, either that he ever actually or constructively possessed the brown bag or the drugs in it, or that he had any intent to distribute the drugs. The judge found that the guilty plea was being entered voluntarily, with full knowledge of the possible maximum and minimum sentences, and she accepted the plea (4/20 47-48). The sentencing date was set for July 13, 1993 (4/20 48-49).

The Presentence Motions to Withdraw the Guilty Plea

Both Mr. xxxxxxxxxxx, acting pro se, and Mr. Reynolds prepared and filed plea withdrawal motions about five weeks after the guilty plea was entered, when sentencing was still about six weeks away. Mr. xxxxxxxxxxx's motion, consisting of a "Notice of Motion to Vacate Judgement [sic] and Plea" dated June 1, 1993, and a supporting affidavit notarized on May 25, 1993, was received and ordered filed by the judge on June 7, 1993 (See Motion, A. 30; order of June 17, 1993, A. 38-39). Mr. Reynolds' motion on Mr. xxxxxxxxxxx's behalf was filed on June 1, 1993 (A. 20), and on the same day the judge ordered that a hearing on the motion be held on June 28, 1993. The judge ordered on June 17, 1993 that Mr. xxxxxxxxxxx's further pro se filings on June 11 and 14, 1993 not be filed and be returned to him on the ground that Mr. Reynolds had not withdrawn from the case and Mr. xxxxxxxxxxx had not requested his withdrawal (A. 38-39). (5)

Mr. xxxxxxxxxxx's May 25 affidavit reads as follows:

I, Ernest xxxxxxxxxxx, do hereby give this statement in an effort to assist myself, I wish to rescind my guilty plea for the following reasons. First, I must make the Court aware of the distressing news of my wife's illness, that came about from my being locked up and attending trial. Second, this had an ill effect on my own state of mind as well as my own physical being for I myself became ill do [sic] to the fast and confusing turn of events. However, my attorney, the Assistant United States Attorney, and the Court, recommended that I plead guilty. This I feel was unfair, and a miss [sic] judgement [sic] not only on the part of my lawyer but myself as well. Third, I feel the police miss [sic] used their authority by insisting that I submit to their will, this is plainly a violation of my rights. So, I the defendant ask for an order vacating the plea of guilty and setting aside the judgement [sic] of conviction.

(A. 30) This affidavit was also attached to and incorporated by reference in Mr. Reynolds' June 1, 1993 plea withdrawal motion (A. 24-25). Mr. Reynolds' motion, made pursuant to Fed. R. Crim. P. 32(d), included the following paragraphs:

3. On April 20, 1993, the case came before the Court for trial and hearing on defendant's motion to suppress evidence. On the morning of the trial date, counsel for the Government extended a plea offer which would dispose of the entire case. The plea offer exposed defendant to a guideline sentence range which exceeded twenty (20) years. Government counsel indicated that if defendant rejected the plea offer and proceeded to trial, defendant would be exposed to a mandatory sentence of life imprisonment, without parole, upon conviction. Government counsel refused defendant's request to have the plea offer remain open until after hearing on defendant's motion to suppress physical evidence.

4. Defendant requested an opportunity to consider the plea offer announced by the Government on the morning of the trial date. Defendant was allowed to consider the plea offer for a period of approximately ninety (90) minutes. Defendant requested an opportunity to discuss the plea offer with his wife and other family members who had traveled from New York and were present in court. The deputy marshals refused defendant's request to consult with his family due to court security policies. Defendant finally felt compelled to enter a plea of guilty pursuant to the plea offer, because of the fear and anxiety generated as a result of the Government announcement that a life imprisonment without parole sentence would be imposed if defendant had proceeded to trial and was convicted and from the confusion resulting from the brief time period during which the defendant was forced to make such an important decision.

5. Defendant's plea of guilty was not voluntary. Defendant did not have sufficient time to fully consider the Government's plea offer. Defendant was not able to consult with his family and loved ones in making a decision on the plea offer. Defendant was placed in an extreme state of fear by the prospect of life imprisonment without parole. Defendant's fear prevented him from being able to adequately weigh the plea offer extended, and the alternatives to pleading guilty which were available. The pressure imposed upon defendant by the untimely plea offer; the short period available for consideration of the plea offer; and, the consequences to be balanced while considering the plea offer, was so great that defendant was unable to make a voluntary and informed decision.

(A. 21-22)

The Government filed an opposition to the plea withdrawal motion (A. 31). The Government asserted that defense counsel had made no request for a plea offer prior to the day of trial and that the motion had failed to provide a "fair and just reason" for plea withdrawal under Rule 32(d) (A. 32 n.3, 35). Although the Government acknowledged that it was "not certain" that it had been prejudiced by the "delay" in the motion and that its witness to Mr. xxxxxxxxxxx's alleged possession of the bag containing the drugs would still be available, it opposed the motion as tardy and as "a back door means of achieving a day-of-trial continuance" (A. 34 n.5, 36 n.7). The Government also asserted that Mr. xxxxxxxxxxx had not claimed that his counsel was ineffective, and it countered Mr. xxxxxxxxxxx's claim of having been too afraid and rushed to make a voluntary decision with the following argument:

That claim is simply not credible. Defendant knew or should have known well before the day of trial that he was facing a statutory mandatory-life-without-parole sentence under 21 U.S.C. 841(a)(1) and (b)(1)(A). The indictment and the information about his criminal record provided in the pretrial services report made that clear. It certainly should not have come as any surprise when government counsel mentioned the mandatory life sentence the morning of trial.

(A. 35)

On June 28, 1993, however, during the hearing on the motion, when the judge asked Mr. Reynolds whether he had advised Mr. xxxxxxxxxxx before the day of the plea that a conviction after trial could result in the mandatory life sentence, counsel responded as follows:

Your Honor, I will quite candidly tell the Court I never told Mr. xxxxxxxxxxx. And indeed, I had not been aware until the morning that we came in and Government counsel announced it that life without parole was the sentence to which he would be exposed, because it had not really been -- since there had been no plea offer, sentence was really not something with which I wanted to concern myself. And I hadn't looked at the Guidelines or gone through Mr. xxxxxxxxxxx's entire record. So the first time I knew for a fact that he was exposed to life without parole was the morning of trial, when Government counsel said it. And I presume that Mr. xxxxxxxxxxx had no greater knowledge than me about what his sentence would ultimately be.

And it was upon Government counsel's announcement that life without parole was the sentence that would flow from a conviction at trial that I confess that I urged vigorously Mr. xxxxxxxxxxx to accept the plea offer, because I was concerned that he may be found guilty and might be sentenced to a period of life imprisonment without parole.

(6/28 8-9) (6) Mr. Reynolds went on to summarize the motion he had filed and he asked, in light of Mr. xxxxxxxxxxx's pro se motion, that his client be permitted to address the court himself (6/28 9-10).

Mr. xxxxxxxxxxx was duly sworn, and under questioning by the judge, who did not suggest to him that he might have a right to another attorney, he said he wanted Mr. Reynolds to continue representing him (6/28 10-11). Concerning his claims, he acknowledged that the judge had advised him to correct any misstatements of fact by the prosecutor, but he explained that because of his fear, he felt he had no choice but to agree "with whatever the prosecutor was saying" (6/28 11-12). Asked what he meant when he referred to evidence that "wasn't correct because, you know, I know exactly what happened," he said there had been no cocaine and heroin in the bag he admitted possessing, and that when the prosecutor had talked about the vacuuming of the bag, he concluded that "the deck is stacked against me; they're not playing fair, you know" (6/28 11-12). He proceeded to tell the judge that on a previous occasion, in North Carolina, he also had pleaded guilty because of fear to a crime he did not commit (6/28 12-13). He said that after one conviction, "you just think they're going to convict you every time if you go to trial" (6/28 13). He declined to accuse the prosecutor of any "recommendation" other than the plea offer in the existing circumstances, and he denied any intent to accuse the judge herself of recommending the plea (6/28 13-14). He added,

. . . I just didn't have enough time to even, you know, consider a decision of such a magnitude like that. I couldn't even talk to my wife, you know. And then after talking to wife [sic] and family that know I wasn't doing what they say I was doing, they're saying you're crazy for taking a plea like that, you know.

(6/28 15; emphasis added) Mr. xxxxxxxxxxx also explained that in asserting that the police violated his rights on the train, he meant, "You know, they seized me right then and there. I specifically told them I didn't want them to search my green duffel bag nor me" (6/28 14).

The judge's oral decision denying the motion, which occupies about 12 transcript pages (6/28 19-31), consists largely of a review of the transcript of the plea proceeding, which does not require detailed reiteration here. The judge did note that in the plea proceeding Mr. xxxxxxxxxxx did not dispute the prosecutor's statement of the alleged facts, acknowledged having had sufficient time to consult with counsel, and said he was satisfied with counsel's services (6/28 24-25). She concluded that he "was fully satisfied then and continues to be satisfied with" "an adequate legal counsel" (6/28 29).2

Referring to the criteria stated in this Court's recent decisions in United States v. Horne, 987 F.2d 833 (D.C. Cir. 1993), and United States v. Ford, 993 F.2d 249 (D.C. Cir. 1993), the judge opined that in the motion to withdraw the plea, Mr. xxxxxxxxxxx had not actually made a claim that he was innocent, but had "waffled on some of the matters in this case" and had "taken some difference with the factual message of the plea that the Government has presented here" (6/28 26, 28). The judge then acknowledged that granting the motion would not evidently prejudice the Government, but she referred to appellate decisions stating the proposition that "permitting withdrawal of a guilty plea undermines confidence in the integrity of our procedures, increases the volume of judicial work, [and] inevitably delays and impairs the orderly administration of justice" (6/28 29). See Horne, 987 F.2d at 837 and cases cited therein. And finally, the judge found that Mr. xxxxxxxxxxx's acknowledgements at the plea proceeding of acting voluntarily were decisive (6/28 29-30). She suggested, in light of Mr. xxxxxxxxxxx's prior experience with the criminal justice system, that he knew "how to utilize the system when he wishes to do so" (30).

The Sentencing



On July 13, 1993, Mr. xxxxxxxxxxx appeared for sentencing, still represented by Mr. Reynolds. At the outset, the judge demanded an explanation for Mr. Reynolds' failure to file a receipt and acknowledgement form concerning the presentence report ("PSR"), and Mr. Reynolds responded that he and Mr. xxxxxxxxxxx were not ready to proceed "today" (7/13 2-3). In the ensuing colloquy, he claimed that he had been unable to visit Mr. xxxxxxxxxxx at the jail late the previous evening to discuss the PSR because, according to a guard, Mr. xxxxxxxxxxx had refused the legal visit, but that apparently the guard had been mistaken, a fact which Mr. xxxxxxxxxxx confirmed (7/13 3-4). Without stating why, Mr. Reynolds asserted that he had not had an opportunity to fully discuss the PSR with Mr. xxxxxxxxxxx--as he felt he had to do in light of Mr. xxxxxxxxxxx's claim that Mr. Reynolds had coerced him into pleading--and file the receipt and acknowledgement earlier, between the PSR's issuance on June 9, 1993 and the eve of sentencing, July 12, 1993 (7/13 5-7). The judge granted a one-hour continuance (7/13 6-7).

When the proceeding resumed, Mr. Reynolds stated that he and Mr. xxxxxxxxxxx had found no material factual inaccuracies in the PSR (7/13 8). Then, however, he advised the judge that Mr. xxxxxxxxxxx wanted to address her concerning his claims against Mr. Reynolds (7/13 8). Before permitting Mr. xxxxxxxxxxx to speak, the judge prevailed on Mr. Reynolds and Mr. xxxxxxxxxxx to sign the form disclaiming factual inaccuracies (7/13 8-9). Immediately thereafter, Mr. xxxxxxxxxxx asked the judge for a continuance because he wanted to obtain a fee refund from Mr. Reynolds, whom he avowedly felt had been "ineffective in my defense," and hire a new attorney (7/13 9). Questioned by the judge, Mr. xxxxxxxxxxx explained that he had been dissatisfied with Mr. Reynolds since before the plea withdrawal hearing, but that he had expected to be allowed to withdraw his guilty plea, and he "would have used him at trial because he was, you know, telling me that he would fight the case" (7/13 10). Mr. xxxxxxxxxxx attributed his statement at the hearing that he wanted to keep Mr. Reynolds to the fact that "it's hard to get rid of an attorney that's paid" (7/13 10).

Mr. xxxxxxxxxxx went on to assert that Mr. Reynolds had "coerced" his plea despite his protest that he was innocent (7/13 11). Mr. Reynolds had "insisted" that he take the plea because the Government purportedly had witnesses to his possession of the bag with the drugs, even though he told Mr. Reynolds that that was impossible because he had never touched any bag other than his own (7/13 11-12). He said that Mr. Reynolds' advice to plead guilty "put me under extreme duress," that Mr. Reynolds told him he could not obtain a postponement for consultation with his family, and that the marshal told him to "hurry up" "because the judge was getting ready to take the bench" (7/13 12). He also accused Mr. Reynolds of misrepresenting to the court: (1) that he had previously discussed with Mr. xxxxxxxxxxx a plea offer seeking his cooperation, and (2) that he (Mr. Reynolds) had ferried messages between Mr. xxxxxxxxxxx and his wife (7/13 12-13). And Mr. xxxxxxxxxxx asserted that Mr. Reynolds had not acted in Mr. xxxxxxxxxxx's "best interest," and that the attorney had relied on the prosecutor's evidence rather than conducting an independent investigation (7/13 13). He concluded that Mr. Reynolds' deficiency was due to an excessive caseload and "a lack of knowledge due to a lack of communication" (7/13 13).

Returning to his fee dispute with Mr. Reynolds, Mr. xxxxxxxxxxx said Mr. Reynolds had told him that he would refund part of the retainer, but had not done so, and he was thus unable to hire another attorney (7/13 13). (7) He explained that his pro se plea withdrawal motion had been delayed because he had waited to hear from Mr. Reynolds and because he was only permitted one hour a week in the law library (7/13 13). He reminded the judge that she had told him at the status hearing when Mr. Reynolds was absent that counsel was being paid to communicate with him, and perhaps he should find other counsel (7/13 13-14). (8) Finally, he asked the judge to appoint another attorney to represent him, because he could not retain one (7/13 14).

The prosecutor opined that the Government's evidence was strong and that Mr. Reynolds had not been ineffective in advising Mr. xxxxxxxxxxx to plead guilty (7/13 15-16). The judge asked the prosecutor if the Government suggested going ahead with sentencing or delaying it and appointing counsel to consult with Mr. xxxxxxxxxxx about whether filing a "2255" would be "appropriate" (7/13 16). The prosecutor responded that "these issues" had been "fully aired" and that "the timeliness [sic] of this request doesn't require the Court to put off sentencing" (7/13 16).

Without soliciting Mr. Reynolds' views on the state of his relationship with Mr. xxxxxxxxxxx, the judge proceeded with sentencing. Referring to Mr. xxxxxxxxxxx's statement at the plea withdrawal motion hearing that he wanted to go ahead with Mr. Reynolds, she impliedly rejected the statements of dissatisfaction that Mr. xxxxxxxxxxx had just made, and indicated that Mr. Reynolds would continue to represent him (7/13 16-17). She invited Mr. xxxxxxxxxxx to speak regarding sentencing, and he said,

I'm not guilty of that crime. That's all I got to say. I would just like a chance to prove my innocence instead of being scared into taking a plea.

(7/13 17) Also invited to speak, Mr. Reynolds then requested that the judge impose the shortest prison sentence in the guideline range stated by the PSR--262 months (7/13 18).

Before imposing sentence, the judge commented that she found "nothing to indicate ineffective assistance of counsel," and she commented, concerning Mr. Reynolds,

He has been by your side, he has counseled you. How many times he has seen you is not as important as the quality of the information that he imparts to you.

(7/13 19) She reiterated her view that Mr. xxxxxxxxxxx had taken the plea voluntarily, and she asserted that he had told her he did so "because you were guilty of the offense and which you have maintained ever since until a moment ago" (7/13 19).

The sentence of 262 months the judge then imposed was based on a career offender finding, which made the offense level 37, from which the judge subtracted three levels for acceptance of responsibility, for an adjusted level of 34, and the criminal history category of VI (7/13 20-21).

Mr. xxxxxxxxxxx's Motion to Vacate His Conviction Pursuant to 28 U.S.C. 2255.

On January 3, 1994, Mr. xxxxxxxxxxx, represented by new counsel, filed a motion pursuant to 28 U.S.C. 2255 to vacate the guilty plea and the sentence on the grounds that his Sixth Amendment right to the effective assistance of counsel had been violated by Mr. Reynolds' acts and omissions (A. 42). Mr. xxxxxxxxxxx maintained that his plea had been involuntary, and he newly alleged, among other things, that Mr. Reynolds had abused cocaine over a period that encompassed his representation of Mr. xxxxxxxxxxx, that he had not revealed his addiction to Mr. xxxxxxxxxxx and that if he had, Mr. xxxxxxxxxxx would not have retained him, that Mr. Reynolds never had interviewed the prosecution witness who had allegedly seen Mr. xxxxxxxxxxx in possession of the bag holding the drugs, that he did not visit Mr. xxxxxxxxxxx in the period immediately before the scheduled trial and discuss the sentence he faced, that he implicitly and explicitly admitted his ineffectiveness in the context of the plea withdrawal motion, and that he therefore had a conflict of interest which precluded him from continuing to represent Mr. xxxxxxxxxxx at the motion hearing and at sentencing (A. 42-53).

On January 21, 1994, the Government filed its opposition to the 2255 motion, claiming, among other things, that Mr. Reynolds did not have a conflict of interest, but if he did, Mr. xxxxxxxxxxx waived it, that Mr. Reynolds was not derelict in his responsibilities, that he was correct in telling his client that he had little hope for acquittal, and that his alleged drug use was irrelevant (A. 62-63, 65, 67).

On January 26, 1994, the judge issued an order scheduling a hearing on the motion for March 14, 1994 (A. 70). On January 31, 1994, Mr. xxxxxxxxxxx's reply was filed (A. 72). And on February 9, 1994, Mr. xxxxxxxxxxx's counsel filed on his behalf a motion to supplement the record with the presentence report recently issued to the United States District Court for the Eastern District of Virginia in a contempt case against Mr. Reynolds, supported by a newspaper article and asserting that the presentence report would establish, as the news article indicated had been found, that Mr. Reynolds was still using drugs (A. 77).

In a 17-page memorandum opinion and order filed on February 28, 1994, the judge denied the motion to supplement the record, cancelled the hearing, and denied the motion to vacate the judgment (A. 80-96). Much of the memorandum reviewed the proceedings already discussed here and reiterated the judge's prior conclusions. In commenting on Mr. Reynolds' effectiveness, the judge did not question the allegation that he had been abusing drugs, but she opined that he had not appeared to her to be under the influence of drugs or to have failed to meet "the standards of competent counsel," and she concluded,

In fact, given the strength of the government's case, the absence of any defense, and the fact that Mr. xxxxxxxxxxx faced life without parole if convicted, Mr. Reynolds['] advice that Mr. xxxxxxxxxxx plea[d] was undeniably competent.

(A. 93) The judge called Mr. xxxxxxxxxxx's claim that he was unaware of the potential sentence "patently ridiculous" in light of her discussion of the guideline range with him (A. 93). The judge did not mention Mr. Reynolds' admission at the hearing that before the prosecutor's in-court offer on the brink of trial, he had not himself realized, and hence had not advised Mr. xxxxxxxxxxx of, the potential mandatory life sentence.

SUMMARY OF ARGUMENT


ARGUMENT



POINT I



MR. xxxxxxxxxxx'S PRESENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA SHOULD HAVE BEEN GRANTED BECAUSE THE PLEA DID NOT RESULT FROM AN ADEQUATELY INFORMED CHOICE BETWEEN ALTERNATIVE COURSES, BECAUSE HE HAD NOT SPECIFICALLY ADMITTED POSSESSION OF THE DRUGS IN THE PLEA COLLOQUY AND HE DENIED IT IN THE CONTEXT OF THE MOTION, AND BECAUSE THE MOTION WAS TIMELY AND THE GOVERNMENT DID NOT CLAIM THAT IT WOULD BE PREJUDICED IF THE MOTION WERE GRANTED.



The Standard of Review



The Court reviews the denial of a presentence motion to withdraw a guilty plea for abuse of discretion. United States v. Ford, 993 F.2d 249, 251 (D.C. Cir. 1993).

The Judge's Abuse of Discretion in Denying the Motion

It is well-settled that a guilty plea is only valid if it "represents a voluntary and intelligent choice among the alternative courses open to the defendant." Hill v. Lockhart, 474 U.S. 52, 56 (1985), citing, inter alia, North Carolina v. Alford, 400 U.S. 25, 31 (1970). "Knowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty." United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992). In the instant case, Mr. xxxxxxxxxxx's plea should have been found involuntary most fundamentally because he was deprived of a reasonable opportunity to learn about and balance the possible alternative sentences that would result from a conviction after trial and from pleading guilty.

It was only after Mr. xxxxxxxxxxx went to court on the scheduled date of his suppression hearing and trial that he was told for the first time that if he litigated his Fourth Amendment claim and the indictment's charges, he would risk a mandatory life sentence without parole, and that the alternative, which he had to choose or lose immediately, was to plead guilty and possibly receive a career offender sentence of almost 22 years. The extraordinary unfairness of this situation--in which Mr. xxxxxxxxxxx believed be had to pick one of these extremely high-stakes alternatives during the three-hour recess--was ignored in the judge's extensive reviews of the plea proceeding and of Mr. xxxxxxxxxxx's claims. This needlessly intense pressure, together with certain deficiencies in what Mr. xxxxxxxxxxx was told, necessarily constituted a "fair and just reason" for permitting plea withdrawal under Fed. R. Crim. P. 32(d) and made the judge's denial of the motion an abuse of discretion.

In United States v. Watley, 987 F.2d 841 (D.C. Cir. 1993), this Court found that where the defendant had been misinformed of the minimum sentence his guilty plea would entail, his choice to plead had to be deemed involuntary. Here, the problem was primarily with the information Mr. xxxxxxxxxxx received about the sentence for a conviction after trial, which he needed in order to make a meaningful choice of the consequences of pleading. While the prosecutor here apparently was correct in declaring in court that Mr. xxxxxxxxxxx would be "looking at," or risking, a mandatory life sentence if he went to trial and were convicted (4/20 19), such a sentence was not necessarily unavoidable, as the prosecutor, Mr. Reynolds, and the judge evidently assumed.

The prior drug felony information required by 21 U.S.C. 851(a)(1) was never filed, and the prosecutor did not specify the prior convictions he had in mind, so they must be deduced. According to Mr. xxxxxxxxxxx's presentence report ("PSR"), he had only one prior conviction--in North Carolina on June 13, 1988, resulting in a three-year sentence (see PSR, submitted separately herewith, at 8)--that qualified on its face as a prior "felony drug offense" under the enhancement provision of 21 U.S.C. 841(b)(1)(A). (9) Moreover, Mr. xxxxxxxxxxx claimed at the plea withdrawal hearing that he had been innocent of the North Carolina charges (6/28 12-13). Thus, he might successfully have challenged that conviction's validity before sentencing, as permitted by 21 U.S.C. 851(c). The other apparent felony-drug-offense candidate in Mr. xxxxxxxxxxx's PSR was a 1983 conviction for heroin possession in New York, for which Mr. xxxxxxxxxxx received six months in "jail" and a five-year probation term that was terminated after less than three years, which was not self-evidently a felony sentence (see PSR at 7). Thus, Mr. xxxxxxxxxxx may not properly have been subject to a mandatory life sentence for a conviction after trial, and, like the defendant in Watley, he clearly was not provided with the information he needed to make a reasoned choice between his alternatives. (10)

In several other recent decisions, this Court has articulated three factors that are "particularly relevant to any inquiry whether the trial court abused its discretion in denying a motion to withdraw" filed before sentencing. United States v. Ford, 993 F.2d 249, 251 (D.C. Cir. 1993), citing, inter alia, United States v.Horne, 987 F.2d 833, 837 (D.C. Cir. 1993), and United States v. Mathis, 963 F.2d 399, 410 (D.C. Cir. 1992). The first consideration is whether the defendant asserted "a viable claim of innocence," the second is whether the Government's ability to prosecute the case was "substantially prejudiced" by the delay before the motion, and the third is whether, usually as evidenced by the inquiry under Fed. R. Crim. P. 11, "the guilty plea was somehow tainted." Ford, 993 F.2d at 251. Mr. xxxxxxxxxxx's motion met all three criteria, so it clearly should not have been denied. While a defendant is not entitled to plea withdrawal as "a matter of right," presentence motions to withdraw should be "liberally granted." Id.

The Government contended and the judge found below that Mr. xxxxxxxxxxx had not met the first criterion for withdrawal, assertion of his innocence. That conclusion is clearly contradicted by the record. Although Mr. xxxxxxxxxxx's written presentence motions did not explicitly claim he was innocent, at the plea withdrawal hearing, he testified that his family criticized his plea because they "know I wasn't doing what they say I was doing" (6/28 15). This can only be understood as a claim that he did not possess the drugs. And, given the Government's evidence as presented at the preliminary hearing, this defense was "viable."

The Government's case was completely circumstantial. Mr. xxxxxxxxxxx allegedly denied to police that he owned the bag containing the drugs. About 40 other passengers also denied ownership, and one of them could have been lying. Detective Buss testified that he had no information that anyone had seen Mr. xxxxxxxxxxx with the bag (1/27 11). The prosecutor's contrary claim of having a witness to Mr. xxxxxxxxxxx's possession had not yet been supported by any evidence. Mr. xxxxxxxxxxx's guilt of the charges was not proven by the presence of some empty yellow packets in his duffel bag and his personal possession of a straw and of a small amount of heroin in a dollar bill in his sock; these facts were fully consistent with his having been merely a heroin user who had bought drugs to use on the train from the owner of the brown bag that held more drugs. Besides denying "doing what they say I was doing," Mr. xxxxxxxxxxx told the judge that, contrary to the prosecutor's assertion about the FBI's finding trace amounts of cocaine and heroin in his duffel bag, "there was no cocaine and heroin in that bag" (6/28 11-12). Obviously, he might have bought some yellow packets of heroin from the brown bag's owner, emptied their contents into the dollar bill for consumption during his long train ride, and then put the packets in his bag for future disposal.

It is significant, too, that Mr. xxxxxxxxxxx asserted, both in his motion papers and orally, that the police had violated his Fourth Amendment rights. He had as much right to litigate this constitutional claim--that he had not consented to the search of his bag (6/28 14)--as he had to rest on the presumption of innnocence and go to trial, so it weighed in favor of granting his motion to withdraw the plea.

The second criterion for permitting plea withdrawal, lack of prejudice to the Government, was indisputably met. The Government admittedly foresaw no prejudice to its case, and the judge found none. In choosing instead to quote an appellate characterization of plea withdrawal ostensibly at odds with the "liberal" presentence withdrawal policy discussed above (6/28 29: "permitting withdrawal of a guilty plea . . . inevitably impairs the orderly administration of justice"), the judge did not convert this part of her analysis into a sound exercise of discretion.

Finally, the criterion that "the guilty plea was somehow tainted" was clearly met. As discussed above, there was a surprise threat of a mandatory life sentence, and Mr. xxxxxxxxxxx was given inadequate information and time to deal rationally with it. Beyond that, the Rule 11 inquiry failed to elicit from Mr. xxxxxxxxxxx an explicit admission that he had possessed the drugs in question with the intent to distribute them.

In Ford, supra, where the defendant entered guilty pleas both to possession of a controlled substance with intent to distribute and to possession of firearm while under indictment for a felony, the Court held that the mere recital by the judge of the charges to which the defendant had agreed to plead guilty and the elicitation of his acknowledgement of having read the indictment, "without informing the defendant of the the material details of the charges against him," failed to constitute substantial compliance with Rule 11(c)(1)'s requirement that the judge ascertain that the defendant understands the nature of the charges. 993 F.2d at 252-254. The Court there pointed out that the Government's factual proffer had omitted the fact that a gun was found in Ford's bedroom, and it thus concluded that the judge also had failed to establish a factual basis for the plea as required by Rule 11(f). Id. at 253. In the instant case, similarly, the prosecutor's recital of the alleged facts included Mr. xxxxxxxxxxx's denial of owning the bag holding the drugs and did not assert, contrary to that denial, that he in fact possessed the bag, actually or constructively, knowing that it contained the drugs and intending to distribute them (4/20 45-47). The factual gap was not filled by the prosecutor's passing assertion that another passenger had "indicated that he observed" Mr. xxxxxxxxxxx in possession of the bag (4/20 45). At most, Mr. xxxxxxxxxxx's general acknowledgement of the factual predicate's accuracy (4/20 47) implied a concession that the prosecutor did have a witness who had accused him of handling the bag. He did not admit that someone actually saw him possessing it, let alone that he had the right and intent to distribute it. (11) Objectively, it was quite possible that someone other than Mr. xxxxxxxxxxx owned the bag and exercised exclusive dominion over its contents. As the Court observed in Ford,

[I]n cases in which contraband or firearms are discovered in a place occupied by more than one person, the Government must establish "the likelihood that in some discernible fashion the accused had a substantial voice vis-a-vis" the items in question.

993 F.2d at 252 (citations omitted, emphasis in quotation). The judge's failure to recognize the factual deficiency here, either during the plea or later, confirms the conclusion that she abused her discretion in denying the presentence plea withdrawal motion.

POINT II

MR. xxxxxxxxxxx'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED (A) BY HIS ATTORNEY'S PATENT INATTENTION TO HIS CASE, PARTICULARLY IN HIS ADMITTED FAILURE TO DETERMINE MR. xxxxxxxxxxx'S POTENTIAL SENTENCES BEFORE THE TRIAL DATE AND (B) BY THE ATTORNEY'S CONTINUED REPRESENTATION OF MR. xxxxxxxxxxx AT THE PLEA WITHDRAWAL HEARING AND SENTENCING DESPITE HIS ACTUAL CONFLICT OF INTEREST.

The Standard of Review

The Court reviews de novo the denial of a post-sentence motion to vacate a guilty plea on based on an asserted violation of the right to counsel established by the Sixth Amendment to the United States Constitution. See United States v. Loughery, 908 F.2d 1014, 1017-1020 (D.C. Cir. 1990).

A. Mr. Reynolds' Failure to Meet the Standard of Competence for Criminal Defense Attorneys, and the Consequences of that Failure

In denying both the presentence plea withdrawal motion and the motion pursuant to 28 U.S.C. 2255 that Mr. xxxxxxxxxxx filed with the assistance of new counsel after he was sentenced, the judge ignored the most shocking fact that emerged during the court proceedings: Mr. Reynolds admittedly let his client reach the day of trial without determining that he might receive life in prison without parole (6/28 8-9)--the severest sentence short of death. It has been argued above that Mr. xxxxxxxxxxx's lack of adequate prior information at this critical juncture meant that his guilty plea was induced primarily by the sudden pressure to which he was unnecessarily subjected, and that a sound exercise of judicial discretion required a finding, upon Mr. xxxxxxxxxxx's presentence motion, that the plea was involuntary. In the event that the Court finds no abuse of discretion, it still must order the judgment vacated because Mr. xxxxxxxxxxx did not receive the effective assistance of counsel in entering the plea.

In United States v. Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990), this Court found no abuse in discretion in the judge's denial of the defendant's presentence plea withdrawal motion, but it reversed the denial of the post-sentence motion, which had claimed ineffective assistance of counsel, writing,

A plea is not voluntary or intelligent if the advice given by defense counsel on which the defendant relied in entering the plea falls below the level of reasonable competence such that the defendant does not receive effective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 56-60 (1985); Tollett v. Henderson, 411 U.S. 258, 267 (1973).

The Court went on in Loughery to note that under Strickland v. Washington, 474 U.S. 668, 688-689 (1984), and the ABA Standards for Criminal Justice (2d Ed. 1980)("The Defense Function") cited therein, the "prevailing norms of practice" for attorneys include counsel's duties to "'inform himself . . . fully on the facts and the law,' and thoroughly advise the client '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); see Strickland, 468 U.S. at 688." 908 F.2d at 1014.

Defense counsel's conduct in Loughery was found deficient because he had failed to read or act upon a Supreme Court decision invalidating the counts of the indictment to which the defendant did not plead guilty, which meant that the defendant "received nothing of value in exchange for her plea." Id. In order for counsel to advise a client adequately as to whether to go to trial or to seek and/or accept a plea offer, counsel obviously must take care to become as well informed about potential sentences as about the validity of the charges. See United States v. Reed, 825 F. Supp. 323, 326-327 (D.D.C. 1993) (plea found involuntary where counsel failed to calculate defendant's Guideline sentencing range before plea). In Iaea v. Sunn, 800 F.2d 861, 864-865 (9th Cir. 1986), the court found incompetent representation in counsel's erroneous advice on the sentence likely after going to trial and "gross mischaracterization" of the probable sentence after the plea.

Mr. Reynolds' inaction here was no more excusable. His failure to inform himself about the possible sentences before the trial date and discuss them with Mr. xxxxxxxxxxx, aggravated by his failure in the days before that key date to make sure that he would receive telephone messages about the case,

. . . evinces 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 performance. See 2 W. LaFave & J. Israel, [Criminal Procedure], 11.10(c), at 44.

Loughery, supra, 908 F.2d at 1019. If Mr. Reynolds had merely returned one of the prosecutor's telephone calls in the days before trial, he would have learned sooner about the plea offer, and he could have taken appropriate steps to advise and protect Mr. xxxxxxxxxxx before the trial date. And even when the prosecutor's offer in court on that day forced Mr. Reynolds to start thinking about sentencing, he might have clearly explained his lapse to the judge and pleaded for adequate time for thorough research and consultation, or he might have sought to withdraw as counsel so that Mr. xxxxxxxxxxx would not suffer for his negligence. But Mr. Reynolds did neither. Instead, he accepted the prosecutor's unexpected threat of life without parole at face value, he whistled in the dark about opposing a career offender sentence, and than he "urged vigorously" that Mr. xxxxxxxxxxx plead guilty (6/28 9). As a result, Mr. xxxxxxxxxxx received a career offender sentence of nearly 22 years. Mr. xxxxxxxxxxx might as well have had no counsel at all.

A defendant seeking to withdraw a guilty plea on the ground of ineffective assistance of counsel "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 v. Lockhart, 474 U.S. 52, 59 (1985). Mr. xxxxxxxxxxx claimed at sentencing, without contradiction, that he had felt coerced by Mr. Reynolds' insistence that he plead guilty despite his protest that he was innocent (7/13 11-12). As discussed in Point I, supra, the Government's circumstantial evidence was far from overwhelming, the facts were consistent with a plausible defense, and it appears possible that Mr. xxxxxxxxxxx's prior offenses might not have mandated the threatened life sentence if he were convicted. If he had just one prior drug felony, going to trial would have entailed a risk only of a 20-year minimum sentence and he would have had relatively little to gain (presumably only the credit for acceptance of responsibility) by pleading guilty. 21 U.S.C. 841(b)(1)(A). Accordingly, it must be found, as it was in Loughery, that there is "at least a reasonable probability--sufficient to undermine any confidence to the contrary," 908 F.2d at 1019, that with adequate information about his prospects and a reasonable amount of time to consider it, Mr. xxxxxxxxxxx would have elected to go to trial.

B. The Judge's Error in Letting Mr. Reynolds Continue as Counsel at the Hearing on the Plea Withdrawal Motion and at Sentencing

As is manifest on the record and as Mr. xxxxxxxxxxx asserted in his post-sentence motion, Mr. Reynolds, in admitting at the plea withdrawal hearing his negligent failure to concern himself with sentencing before the trial date (6/28 8-9), revealed an actual conflict of interest between himself and Mr. xxxxxxxxxxx. Mr. Reynolds' personal interest thenceforth was to protect himself from a malpractice claim by Mr. xxxxxxxxxxx and/or from sanctions by the Bar, and his in-court acknowledgement of the lapse, though an improvement on the factual statement in the motion he filed (A. 21-22), did not change that reality. In fact, the lack of a clear admission in that motion exemplifies the danger of representation by attorneys with conflicts of interest.

Mr. xxxxxxxxxxx's first interest, once he realized he had been improperly influenced to plead guilty, was to persuade the judge to let him withdraw his plea. That effort would have been strengthened by Mr. Reynolds' sworn representation that he had been unprepared for the events that took place on the scheduled trial date. But Mr. Reynolds pulled that punch in the pleading, and the Government therefore felt justified in arguing, in its opposition to the motion, that Mr. xxxxxxxxxxx had not claimed his counsel was ineffective and that Mr. xxxxxxxxxxx "knew or should have known well before the day of trial" that the statute under which he was charged and his record combined to require a life sentence (A. ). Of course Mr. xxxxxxxxxxx should have known of the extent of his jeopardy, but his counsel failed to tell him. Mr. Reynolds also failed to perceive (or to advise Mr. xxxxxxxxxxx) that under the case law discussed in Point I, supra, Mr. xxxxxxxxxxx should state in the withdrawal motion the claim of innocence he had earlier made to Mr. Reynolds.

Thus, at the time of the hearing, Mr. xxxxxxxxxxx had multiple potential grievances against Mr. Reynolds, and the lawyer indisputably had a conflict of interest. The judge may have recognized this problem when she initiated the following exchange immediately after Mr. Reynolds admitted his primary neglect:

The Court: Mr. xxxxxxxxxxx, you filed an affidavit that I have in front of me on June 7th with the Court, and you filed it -- you called yourself pro se. You do not want the services of Mr. Reynolds?

The Defendant: Yes.

The Court: I think he's retained counsel. Are you not, Mr. Reynolds?

Mr. Reynolds: I am, your Honor.

The Court: Not a CJA attorney. You don't want his services, or you just wanted to put your --

The Defendant: Yes, I want his services, but we hadn't been in touch and I wanted to file that motion.

The Court: All right. So you want me to consider this in addition to what Mr. Reynolds has said?

The Defendant: Yes.

The Court: Is that your position, Sir?

The Defendant: Yes.

The Court: All right. You're sure of that.

The Defendant: Yes.

The Court: All right.

(6/28 10-11) In its opposition to Mr. xxxxxxxxxxx's post-sentence motion to vacate the judgment, the Government argued that this exchange meant that Mr. xxxxxxxxxxx was "satisfied" with Mr. Reynolds' services, that Mr. Reynolds thus had no conflict, and that even if he did, Mr. xxxxxxxxxxx "waived any objection to it" (A. 62).

The Government's position is unsupportable. Where an attorney's interests diverge from those of his client, his "fealty to the client is compromised," which is "the same core problem presented in the multiple representation cases." United States v. Fulton, 5 F.3d 605, 609 (2d Cir. 1993); see Mathis v. Hood, 937 F.2d 790, 795-796 (1st Cir. 1991) (counsel's delay of appeal gave counsel an interest in affirmance, because reversal would expose him to liability). A defendant's Sixth Amendment right to counsel encompasses the right to conflict-free counsel. Wood v. Georgia, 450 U.S. 261, 271 (1981); United States v. Vaquero, 997 F.2d 78, 89 (5th Cir. 1993). At this point in the plea withdrawal hearing, the circumstances imposed on the judge an absolute duty to conduct a thorough inquiry as to whether Mr. xxxxxxxxxxx wished to waive his right to be represented by a different attorney. See, e.g., Wood, 450 U.S. at 272 n.18; Vaquero, 997 F.2d at 89-91, and cases cited therein. "To waive the right to conflict-free representation, defendant must be provided sufficient information or advice to provide a choice between meaningful options." United States v. Ellison, 798 F.2d 1102, 1108 (7th Cir. 1986). At least, Mr. xxxxxxxxxxx should have been informed that, given Mr. Reynolds' admission, a conflict of interest existed, that "continuing with counsel under the onus of a conflict" could have adverse consequences, and that he had a right to other counsel. Gray v. Estelle, 616 F.2d 801, 804 (5th Cir. 1980).

The judge's questions and Mr. xxxxxxxxxxx's answers did not even come close to establishing a waiver of his right to an attorney with undivided loyalty. The judge did not explain to Mr. xxxxxxxxxxx that Mr. Reynolds' neglect created a conflict of interest which might tend to inhibit his advocacy, and the judge failed to advise Mr. xxxxxxxxxxx that he had a right to other counsel despite Mr. Reynolds' status as retained counsel. (12) The Supreme Court has noted that Cuyler v. Sullivan, 446 U.S. 343, 347 (1980), "mandates a reversal when the trial court has failed to make an inquiry even though it "knows or reasonably should know that a particular conflict exists." Wood v. Georgia, supra, 450 U.S. at 272 n.18 (emphasis in original). The inquiry here was not constitutionally meaningful, so a Sixth Amendment violation must be found.

--The Significance of Mr. Reynolds' Drug Abuse

In denying both Mr. xxxxxxxxxxx's motion to supplement the record with the PSR from Mr. Reynolds' current Virginia contempt case and Mr. xxxxxxxxxxx's motion pursuant to 28 U.S.C. 2255, the judge found Mr. Reynolds' reported drug abuse irrelevant because he had not appeared to her to be under the influence of drugs in court and because she concluded that he had performed competently. The judge totally ignored, not only Mr. Reynolds' admitted inattention before the trial date to the potential sentence Mr. xxxxxxxxxxx faced, but also the pattern of absence, inaccessibility, and failure to communicate that Mr. Reynolds had established on the record of the instant case.

Mr. Reynolds did not appear at the arraignment on March 3, 1993, and his associate patently knew little about the case. No one appeared for Mr. xxxxxxxxxxx at the status hearing on March 22, 1993, when he indicated that he had not received copies of discovery documents from Mr. Reynolds. The judge consequently ordered Mr. Reynolds to show cause why he should not be held in contempt or referred for counseling (the latter of which, under Local Rule 711, might have dealt with "apparent abuse of alciohol or drugs"). Mr. Reynolds avoided a sanction with an excuse: due to law-office failure he had never been informed of the date of the status hearing. But even after that, in the month before the trial date, Mr. Reynolds failed to inform himself about Mr. xxxxxxxxxxx's potential sentence, and he missed hearing about the plea offer before the trial date because he went into the hospital without taking steps necessary to receive and return the prosecutor's telephone calls about the case. After the plea, he again failed to stay closely in touch with Mr. xxxxxxxxxxx, as evidenced by Mr. xxxxxxxxxxx's pro se motion. And finally, it was not until late the night before the sentencing that Mr. Reynolds got around to trying (unsuccess-fully) to consult with Mr. xxxxxxxxxxx about the PSR, so he had to ask the judge for time to do that at the beginning of the sentencing proceeding.

It hardly requires an expert on substance abuse to perceive that such a pattern of behavior, in combination with authoritative reports of drug abuse both before and after the establishment of the pattern, may well signify instability due to addiction. According to a recent news report of a disciplinary decision by the District of Columbia Court of Appeals, Mr. Reynolds was held in contempt for non-appearances in court in 1989 and 1990, was ordered to get drug treatment, was subsequently found to have violated his probation by using cocaine and was sentenced to six months, and was eventually ordered by the Maryland Court of Appeals to undergo treatment and monitoring for two years. Legal Times, November 14, 1994, "Ethics Log," p. 20. According to the news article submitted in support of Mr. xxxxxxxxxxx's February 9, 1994 motion to supplement the record, Mr. Reynolds had recently tested positive again, for both cocaine and heroin (A. 79).

There should be no question, given the foregoing arguments, that Mr. xxxxxxxxxxx is entitled to vacatur of his conviction and withdrawal of his guilty plea. It should not be necessary in this case to explore further the tragedy of Mr. Reynolds' drug abuse. However, assuming arguendo that the Court finds the record somehow insufficient to support vacatur and plea withdrawal, there clearly should be a remand of the case for a further hearing, with conflict-free counsel, as to all the circumstances bearing on the quality of Mr. Reynolds' representation and the voluntariness of Mr. xxxxxxxxxxx's decision to forego trial and plead guilty.

CONCLUSION

The judgment should be vacated and the case remanded with an order that Mr. xxxxxxxxxxx be allowed to withdraw his guilty plea or, alternatively, that a further hearing be conducted as to his claims that his plea was involuntary and his attorney was ineffective.

Respectfully submitted,



A. J. KRAMER

FEDERAL PUBLIC DEFENDER







________________________________

Allen E. Burns

Assistant Federal Public Defender

625 Indiana Avenue, N.W. Suite 550

Washington, D.C. 20004

(202) 208-7500









CERTIFICATE AS TO LENGTH OF BRIEF

I HEREBY CERTIFY that the foregoing brief contains no more than the number of words allowed by Circuit Rule 28(d).



_________________________________

Allen E. Burns


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on January 17, 1995, two copies of the foregoing brief for defendant-appellant and one copy of the accompanying appendix were served by United States Mail, first-class postage paid, upon the United States Attorney's Office, Att'n: A.U.S.A. John R. Fisher, 555 Fourth Street, N.W., Room 10-435, Washington, D.C. 20001.

________________________________

Allen E. Burns


1. Transcripts of the six District Court proceedings in this case, all of which took place in 1993, are designated in page citations by numerical prefixes corresponding to the days and months when they took place.

2. Buss testified that Investigator Cook told him that his conversation with Mr. xxxxxxxxxxx convinced him that the reservations by Messrs. Welcome and Bryant were made by the same person, "traveling to the same area" (1/27 19). Cook avowedly believed that tickets in both names had been recovered from Mr. xxxxxxxxxxx (1/27 19).

3. The prosecutor was successful in his additional request for permission to introduce the recently obtained evidence that the FBI had vacuumed the green bag and found traces of cocaine and heroin in the dust extracted from it (4/20 18, 24).

4. See Mr. Reynolds' June 28, 1993 admission, set forth below at 13-14, that he had not concerned himself with Mr. xxxxxxxxxxx's poten-tial sentence and was surprised by the Government's announcement that Mr. xxxxxxxxxxx could receive a mandatory life sentence (6/28 8-9).

5. The judge also noted that District Court Local Rule 106(b) prohibits the mailing of correspondence to chambers (A. 39).

6. Earlier in the colloquy, Mr. Reynolds had repeated his allegation that the Government had rejected his request to keep the plea offer open until resolution of the motion to suppress evidence, and that this circumstance had put "increased pressure" on Mr. xxxxxxxxxxx to plead guilty (6/28 5-6).

7. On September 20, 1994, the Attorney/Client Arbitration Board of the District of Columbia Bar issued an award to Mr. xxxxxxxxxxx in his fee dispute with Mr. Reynolds.

8. Mr. xxxxxxxxxxx apparently was referring to the March 22, 1993 status call when no counsel appeared on his behalf. The judge did not actually suggest to him then that he consider finding other counsel, but, as noted above, she did advise him that counsel had a duty to "keep in touch" with him about matters in the case, including the discovery documents Mr. xxxxxxxxxxx wanted (3/22 5). And she ordered Mr. Reynolds to show cause why he should not be held in contempt or referred for counseling under Local Rule 711 for his non-appearance (A. 12).

9. That provision requires two or more such convictions for a mandatory life sentence; one prior felony drug offense entails a mandatory minimum of 20 years.

10. This case is additionally analogous to Watley in that Mr. Reynolds held out to Mr. xxxxxxxxxxx in open court at the plea proceeding, with no conceivable basis but without contradiction by the prosecutor or the judge, the false hope that he could challenge and avoid career offender status and receive a sentence as relatively short as 188 months (4/20 39-40). Manifestly, Mr. xxxxxxxxxxx's federal bank robbery conviction (PSR at 7) and the North Carolina drug felony conviction were sufficient to require a career offender finding under U.S.G.G. 4B1.1, so there was no possibility that Mr. xxxxxxxxxxx's sentence would be less than 262 months. Notwithstanding the prosecutor's and the judge's post-recess warnings about sentences of that length or longer, Mr. xxxxxxxxxxx's choice was very likely swayed by his attorney's bravado.

11. At the sentencing proceeding, Mr. xxxxxxxxxxx testified that he told Mr. Reynolds at the time of the plea offer that he could he could not have been seen in possession of the bag because he never touched it (7/13 11-12).

12. At sentencing, Mr. xxxxxxxxxxx told the judge that, despite his dissatisfaction with Mr. Reynolds, he would have kept him as counsel if the plea withdrawal motion had been granted, because Mr. Reynolds had said he would "fight the case," and Mr. xxxxxxxxxxx explained his asserted desire to stay with Mr. Reynolds at the withdrawal hearing by commenting that "it's hard to get rid of an attorney that's paid" (7/13 10). Of course, he did then request appointment of another attorney on the ground that he could not retain one because Mr. Reynolds had not kept his promise to refund part of his fee (7/13 13). The judge compounded her earlier error by failing at this juncture either to inquire further of both Mr. Reynolds and Mr. xxxxxxxxxxx about their relationship or, even though she explicitly considered it, to delay sentencing and appoint new counsel (7/13 16-17).