ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 14, 2000



UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT





NO.





REPLY BRIEF OF APPELLANT



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxx, JR., Defendant-Appellant.





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA













A.J. KRAMER

FEDERAL PUBLIC DEFENDER



BEVERLY G. DYER

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel for Appellant

625 Indiana Avenue, Suite 550

Washington, D.C. 20004



(202) 208-7500



District Court

Cr. No. 82-339-01 (TFH)

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

NO. xxxxxxx

REPLY BRIEF OF APPELLANT



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



TROY MITCHELL xxxxx, JR. Defendant-Appellant.



SUMMARY OF ARGUMENT

This Court should vacate and set aside Mr. xxxxx's guilty plea instead of remanding this case to the district court, as the government requests. In arguing for remand, the government concedes that there is no legal basis for affirming the guilty plea on appeal. The government also explicitly concedes that the court reporter's failure to preserve a record of the plea hearing violates the Court Reporters Act, 28 U.S.C. 753(b). Brief for Appellee ("Gov't Br.") at 19. Under 753(b), this Court should reverse without additional factual inquiry because the plea hearing is a crucial stage of the proceedings. Even if the plea hearing were a non-crucial stage of proceedings, Mr. xxxxx would be required to show only a probability of reversible error. Mr. xxxxx's numerous allegations of prejudice are supported by evidence in the record and clearly demonstrate either reversible error or a high probability of that error. This Court should also reverse for violations of Fed. R. Crim. P. 11, for improper government threats and for ineffective assistance of counsel.

In reviewing this case on appeal, this Court should not accept the government's factual description of the underlying offense. Gov't Br. at 6-8. Mr. xxxxx disputed that version of the offense at sentencing and the district court failed to resolve the factual disputes. The government relies primarily on the presentence report to support its version of the alleged conspiracy. The same allegations from the presentence report, when cited by the U.S. Parole Commission in determining Mr. xxxxx's co-defendant's parole eligibility, have been rejected as a rational basis for factual findings by a federal court. xxxxxxx v. Lansing, 839 F.2d 933, 936-39, 942-44 (3d Cir. 1988).

If Mr. xxxxx's guilty plea is set aside, this Court need not reach Mr. xxxxx's competency and sentencing claims. If the Court remands for factual inquiry into the guilty plea, it should find that the district court erred in failing to conduct a competency hearing and plainly erred in failing to resolve factual disputes at sentencing. As the government agrees, this Court must also remand for resentencing and inquiry into ineffective assistance of counsel associated with the sentencing proceedings. The Court should also remand for review of Mr. xxxxx's competency claims and ineffectiveness in connection with those claims.

REPLY TO COUNTERSTATEMENT OF THE CASE

The government's statement of the factual basis for the charges is based primarily on the "Prosecution Version" of facts in the presentence report. Gov't Br. 6-8. (1) As explained below (part III), Mr. xxxxx disputed these allegations at sentencing and the district court failed to resolve those disputes. Among other statements, (2) Mr. xxxxx disputes the government's description of the overall conspiracy, including that "beginning in 1979, appellant and codefendant Douglas xxxxxxxx were involved 'in a daily business of selling cocaine to their friends and associates for profit,'" that appellant was "'the "brains" behind the conspiracy and the main drug supplier,'" and that "'[b]etween 1980 and 1981, appellant supplied xxxxxxx with 10 ounces a week for resale and use.'" Gov't Br. at 6-7 (citing presentence report). (3)

The same assertions were made in an essentially identical portion of Mr. xxxxx's co-defendant xxxxxxx's presentence report and rejected as a basis for factual findings by a federal magistrate judge and federal district court, in decisions upheld by the Third Circuit. xxxxxxx v. Lansing, 839 F.2d 933 (3d Cir. 1988) (affirming unpublished district court decisions in relevant part). The issue before those courts was whether, in calculating xxxxxxx's parole eligibility, the U.S. Parole Commission had a rational basis for attributing to xxxxxxx more than one kilogram of pure cocaine during the entire course of this conspiracy from 1979 to 1982. The Parole Commission relied on a section of xxxxxxx's presentence report which stated (like xxxxx's presentence report, [A:100]):

Codefendant xxxxx was allegedly the 'brains' behind the conspiracy and the main drug supplier. xxxxx allegedly purchased his cocaine in kilos and during 1979 supplied xxxxxxx with 4-8 ounces per week for resale and use. Between 1980-1981 xxxxx reportedly supplied xxxxxxx with ten ounces per week for resale and use. According to the Indictment in this case defendant xxxxxxx and codefendant xxxxx were involved in the distribution and sale of cocaine from at least September 1979 through April 1982.

According to Assistant U.S. Attorney Daniel Bernstein, between 1979-1982 evidence would show that codefendant xxxxx was purchasing cocaine in kilos. He and defendant xxxxxxx would then 'cut' the cocaine and sell it in lesser quantities. They possessed very good quality cocaine.

xxxxxxx v. Lansing, Case No. 85-860, (M.D. Pa. September 25, 1985) (Report) (Smyser, Magistrate Judge) [S.A.:33]. (4) Reviewing this section of xxxxxxx's presentence report, the Magistrate Judge found that "the Parole Commission could not rationally have based such a finding on these statements alone, without knowing the underlying evidentiary basis for such an assertion." [S.A.:33-34]. (5) The Magistrate Judge's decision was upheld by the United States District Court for the Middle District of Pennsylvania and the Third Circuit, which also rejected the Parole Commission's subsequent statement of reasons disagreeing with the Magistrate Judge and continuing to attribute one to five kilograms of cocaine to xxxxxxx. xxxxxxx, 839 F.2d at 937-39, 942-44.

In this case, the government relies on many of the same statements in Mr. xxxxx's presentence report. Gov't Br. at 6-7. This Court should not consider these assertions on appeal, because Mr. xxxxx disputed them at sentencing and the district court failed to resolve those disputes and because they have been rejected by other federal courts.

ARGUMENT

I. THIS COURT SHOULD SET ASIDE MR. xxxxx'S PLEA OF GUILTY

II. Under 28 U.S.C. 753(b), Mr. xxxxx is Not Even Required To Allege, Much Less Prove, Reversible Error

The government concedes that the court reporter violated 28 U.S.C. 753(b) in this case. Gov't Br. at 19-20. (6) When a crucial stage of proceedings is not preserved in violation of 753(b), this Court will reverse a defendant's conviction without requiring the defendant to allege prejudice. United States v. Workcuff, 422 F.2d 700, 702 (D.C. Cir. 1970); see also United States v. Carranza, 70 F.3d 1339, 1343 (D.C. Cir. 1995); United States v. Winstead, 74 F.3d 1313, 1322 (D.C. Cir. 1996). The government argues that reversal is not required for "minor matters" and that "the possibilities of error [at a plea hearing] are far more limited than at a trial." Gov't Br. at 22-23. If a plea hearing were "minor," however, there would be no reason for Rule 11's detailed, mandatory requirements. Rule 11(c)-(h). There also would be no reason to single out plea hearings, along with arraignments and sentencings, for heightened protection under 753(b). To plead guilty, a defendant must personally waive several constitutional rights in open court, including the right to jury trial, to proof beyond a reasonable doubt, to assistance of counsel at trial, against compelled self-incrimination, and to confront and cross-examine witnesses. See, e.g., Boykin v. Alabama, 395 U.S. 238, 242-44 (1969) (listing constitutional rights and reversing for lack of adequate record of voluntary nature of plea); McCarthy v. United States, 394 U.S. 459, 466 (1969) (describing nature of guilty plea). For these reasons, a plea hearing is clearly "crucial." (7)

The government also asserts that "any error at a plea hearing may be rendered harmless by evidence outside that hearing." Gov't Br. at 23. However, the strict procedural requirements at plea hearings noted above are required to avoid exactly the kind of factual inquiry the government requests this Court to order on remand. See, e.g., Boykin, 395 U.S. at 244 (adequate record for review "forestalls the spin-off of collateral proceedings that seek to probe murky memories"); see also McCarthy, 394 U.S. at 465.

Even where the missing transcript involves a noncritical stage of proceedings, this Court requires only an allegation -- not a demonstration -- of specific prejudice. See Carranza, 70 F.3d at 1343 (listing relevant considerations including "ability of the defendant to allege specific prejudice" (emphasis added)). (8) As explained below, Mr. xxxxx cites substantial factual support for his numerous allegations of prejudice. xxxxx Br. at 20-39. (9) Several of those claims support a finding of reversible error without reference to 753(b), including Rule 11 errors, government threats prohibited by the doctrine of specialty, conflict of interest, and various claims of ineffectiveness. All of Mr. xxxxx's allegations undermine confidence in the voluntariness of his plea and clearly show a likelihood of reversible error.

The other factors considered by this Court in Carranza and Winstead, deterrence and failure to reconstruct the record, also support reversal in this case. With respect to deterrence, as Mr. xxxxx explained, xxxxx Br. at 40-41 & n.33, problems with the missing plea hearing transcript were compounded by problems with 1999 transcripts of the hearings to reconstruct the record. One of the 1999 transcripts was partially unintelligible and materially incorrect and the court reporting company's refusal to make original stenographic notes available to counsel, [A:594-95], violated applicable law. See Smith v. United States District Court Officers, 203 F.3d 440, 441-42 (7th Cir. 2000) (upholding public right of access to original reporters' records). In addition, during the proceedings to correct the record, the district court and court personnel were unfamiliar with applicable law and regulations. (10) Obviously, reversal would have no deterrent effect on the original court reporter, who is deceased, but a reiteration of reporting requirements would benefit others and could deter the type of errors Mr. xxxxx was required to litigate this year. [A:592-635]. (11)

As the district court found, it was impossible to reconstruct the plea hearing. Without a record of that hearing, it is impossible for this Court to review the plea on appeal, as the government acknowledges by calling for a remand. Compliance with 753(b) is the court's responsibility, see, e.g., 753(c), and Mr. xxxxx should not be required to prove that his plea was involuntary. (12)

III. Mr. xxxxx's Numerous Allegations of Prejudice Show More Than a Probability of Reversible Error, and His Plea Should Be Set Aside, Not Remanded

IV. The Plea Should Be Reversed Based on Errors at the Plea Hearing

The government argues that Mr. xxxxx's claims of Rule 11 violations at the plea hearing do not support reversal because any error may have been harmless. Gov't Br. at 31-32. As explained above, at most, Mr. xxxxx need only show a probability that his substantial rights may have been affected. In any event, under Rule 11, the government bears the burden of showing harmless error. See United States v. Dewalt, 92 F.3d 1209, 1215 (D.C. Cir. 1996). The government does not meet that burden here and, without a transcript, would be unable to do so on remand. (13)

Mr. xxxxx claims that he was not advised and did not understand the elements or the factual basis for count three. His affidavit states:

It is my recollection that both the Court and, almost immediately thereafter, the assistant U.S. attorney, in his recitation of a supposed factual basis for my two pleas, concentrated exclusively on an extensive account of the conspiracy alleged in Count one. At no time did either the Court or A.U.S.A., or anyone else, inform me of the essential, legal requirements that I have actual or constructive possession of the specific quantity of cocaine [involved], and that I have some say as to what was done with it.

[A:514]. In his 2255 motion, Mr xxxxx explained that he had neither an ownership interest in the cocaine sold on April 19, 1982, nor any control over it, and that at the time he pleaded guilty, he did not understand what was required to prove constructive possession. [A:223-224].

The government argues that, in explaining the charges, the district court is not required to explicitly state all elements, and that "possession with intent to distribute cocaine practically spells out the elements in its name." Gov't Br. at 29. (14) However, even the government's version of facts against Mr. xxxxx required a showing of constructive possession -- a significantly less obvious concept than actual possession. Mr. xxxxx contends that he did not understand constructive possession at the plea hearing and the district court failed to explain it to him, in which case he should be permitted to withdraw his plea. See, e.g. United States v. Ford, 993 F.2d 249, 252-53 (D.C. Cir. 1993) (reversing guilty plea due to failure to explain and establish factual basis for constructive possession).

The government also argues that, in finding a factual basis for the plea, the district court is entitled to rely on facts outside the plea hearing such as the presentence report, even if those facts are not presented to the district court until sentencing. Gov't Br. at 29-30. This argument is incorrect and unsupported by the cases relied on by the government. Id. The district court may rely on the presentence report to support the guilty plea only if that report has already been prepared at the time of the plea hearing. Cf. United States v. Roberts, 570 F.2d 999, 1006 (D.C. Cir. 1977) (full details of plea bargain must be presented to court at time of plea hearing, not later). The government also asserts that the court could have relied on facts asserted at the suppression hearing, but there is no transcript of that hearing and the court's factual findings on suppression do not establish constructive possession. (15)

Mr. xxxxx also claims that he was never advised of his maximum sentence on count three, including the applicability and effect of special parole. xxxxx Br. at 20-23. In response, the government argues that the court must have advised Mr. xxxxx that the two 15-year sentences on counts one and three could be imposed consecutively, totaling 30 years imprisonment. Gov't Br. at 32. Since the court imposed the sentences to run concurrently, according to the government, or if Mr. xxxxx otherwise understood the applicability and effect of special parole, any error may have been harmless. Gov't Br. at 32-33. Mr. xxxxx had a right, however, to be advised of the maximum sentence on each count, as well as the nature and effect of special parole. The government cites no case suggesting otherwise. Furthermore, nothing in the record shows that the district court advised Mr. xxxxx that the two sentences could be imposed to run consecutively. Since the government bears the burden of proof under Rule 11, this argument should be rejected. (16)

The government also blames Mr. xxxxx for the delay in appealing his case and, indirectly, for the court reporter's violation and difficulties litigating this case now. Gov't Br. at 2, 16, 34-35. The delay, however, resulted from the ineffective advice of counsel. Mr. xxxxx was not aware of his right to direct appeal prior to 1996, when he began actively pursuing that right. [A:271-72]. Mr. xxxxx has been prejudiced -- as has the government -- by the delay. (17) The government consented to the district court's renewal of Mr. xxxxx's right to appeal and there is no legal basis for that right to be diminished by speculation about what might have happened in an earlier-filed appeal. See, e.g., Chessman v. Teets, 354 U.S. 156, 162, 165 (1957) (ex parte reconstruction of record after death of court reporter violates due process; "Evidently it also needs to be repeated that the overriding responsibility of this Court is to the Constitution of the United States, no matter how late it may be that a violation of the Constitution is found to exist. . . . We must be deaf to all suggestions that a valid appeal to the Constitution . . . comes too late . . . .").

V. The Plea Should Also Be Reversed Because it Was Not Intelligent and Knowing Due To Ineffective Assistance of Counsel, Improper Government Threats And Incompetency

In his brief on appeal, Mr. xxxxx makes several claims based on matters outside the record of the plea hearing, including ineffective assistance of counsel, conflict of interest, improper government threats, and lack of competency. Like his allegations of Rule 11 error, these claims establish a likelihood that his guilty plea was not knowing and intelligent. The government argues with respect to these claims that, if the plea transcript existed, it might help the government's position on appeal but "would not have bolstered appellant's own arguments." Gov't Br. at 23. The fact that a plea hearing was held, however, does not demonstrate that Mr. xxxxx entered a voluntary plea at that hearing. See Boykin, 395 U.S. at 242 ("Admissibility of a confession must be based on a 'reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant.' . . . 'Presuming waiver from a silent record is impermissible.'" (citations omitted)). Just as the voluntariness of the plea can only be established through Rule 11, appellate review can only take place when recording requirements are followed. See, e.g. McCarthy, 394 U.S. at 465 (purpose of Rule 11 is to assist trial judge in establishing that plea is voluntary and to produce complete record).

Mr. xxxxx claims that he was misadvised regarding the applicable sentence. See xxxxx Br. at 8-11, 23-24. (18) This claim is supported by Mr. Dietz's acknowledgment at the sentencing hearing that he erred in failing to learn that the North Carolina sentence had not been expunged and in miscalculating Mr. xxxxx's sentence and parole eligibility. [9/26/83 Tr. 6]. Mr. Dietz also confirmed that Mr. xxxxx would not have pleaded guilty had he been correctly advised. Id. This error constitutes ineffective assistance of counsel. See United States v. McCoy, 2000 WL 768518 (D.C. Cir. June 23, 2000) (reversing guilty plea for ineffectiveness where counsel incorrectly estimated applicable sentence range under Guidelines); xxxxx. Br. at 24-25, 37-38 (citing additional cases). The government states that "[d]espite this statement, appellant did not seek to withdraw his guilty plea." Gov't Br. at 13; see also id. at 42 n.21. However, Mr. xxxxx argues that counsel was also ineffective in failing to move to withdraw the plea prior to sentencing. xxxxx. Br. at 36 n.32; [A:229-230]; see also Tolliver v. United States, 563 F.2d 1117, 1120-21 (4th Cir. 1977) (counsel ineffective in failing to identify erroneous advice in motion to withdraw plea before sentence "at the very time when the equities of withdrawal were clearly in Tolliver's favor").

Mr. xxxxx claims that the government threatened to prosecute him with visa and tax charges prohibited by the doctrine of specialty and the extradition treaty with Australia. xxxxx Br. at 25-28. The government does not dispute that such threats were prohibited but disputes whether they were made. Gov't Br. at 37-38. In addition to the factual support showing that the threats were made cited in Mr. xxxxx's opening brief, see xxxxx Br. at 25-26 & n.17, (19) the government also stated in two 1983 pleadings regarding pretrial release that the visa allegations had been submitted to a grand jury. [S.A.:9; S.A.:18-19]. The prosecutor's presentation of evidence of new charges to a grand jury and the reference to those allegations as "other crimes" strongly suggests that the threat of those charges was also used in plea negotiations to obtain the guilty plea. There is no reason, as suggested by the government, Gov't Br. at 38, that Mr. xxxxx would have initiated a plea agreement clause prohibiting visa and tax charges if he had not genuinely feared those charges due to government threats. In any event, his attorneys' failure to advise him of the doctrine of specialty was ineffective. The apparent fact that the clause was important enough to include in the written plea agreement supports Mr. xxxxx's claim that he would not have pleaded guilty without it. (20)

Mr. xxxxx claims that his attorneys were ineffective in failing to advise him of legal and factual defenses to several counts in the indictment. xxxxx Br. at 34-35. The government does not dispute that counts one and ten of the indictment merge and concedes that counts four and five merge. Gov't Br. at 42 n.22. The government distinguishes the cocaine alleged in count three from that alleged in counts four and five because, according to the government, it was located at a different address on an earlier date. Id. At the time of the arrest, however, all three packages of drugs were in the same house. Therefore, there is no basis for distinguishing counts three, four and five under United States v. Johnson, 909 F.2d 1517, 1519 (D.C. Cir. 1990) (possession of "the same controlled substance in the same place at the same time" is "one act of possession"). Mr. xxxxx also had a strong argument that counts two and three merged and a valid factual defense to counts two through five and eight and nine. Mr. xxxxx's attorneys' failure to advise him of valid defenses to all but one count in the indictment was ineffective. A reasonable person who had been correctly advised of these defenses would not have pleaded guilty to two counts. See, e.g., United States v. Loughery, 908 F.2d 1014, 1019 (D.C. Cir. 1990) (defendant "received nothing of value in exchange for her plea" to one count, where nine dismissed counts were legally invalid).

Mr. xxxxx's claims that his plea was coerced by improper threats to indict his father and brother, that he was incompetent at the plea hearing, and that his attorneys had a conflict of interest and were ineffective in other ways are also supported by record evidence from both his 2255 motion and other parts of the district court record. Mr. xxxxx agrees that, in a more typical case with no 753(b) violation, some of these claims could be more effectively reviewed on appeal following a remand for factual inquiry by the district court. In this case, however, all of these claims contribute to the likelihood of reversible error. Any one of the errors asserted by Mr. xxxxx would justify vacating the guilty plea under 753(b). Considered cumulatively, they overwhelmingly compel reversal.

VI. THE PSYCHIATRIST'S REPORT CREATED REASONABLE CAUSE TO DOUBT MR. xxxxx'S COMPETENCE, REQUIRING A COMPETENCY HEARING

As the government agrees, the district court was required to hold a competency hearing if there was "any significant doubt" about Mr. xxxxx's competency. United States v. Weissberger, 951 F.2d 392, 395 (D.C. Cir. 1991). (21) The government argues that "[n]othing in the record before the district court raises any doubt about appellant's competency," because the contemporaneous psychiatrist's report found no evidence of a "thinking" or "organic" disorder. Gov't Br. at 44. However, that report also stated that "[i]t seems impossible to deal with [Mr. xxxxx] in terms of reality [and] logic . . ." and that his thought processes are "at times totally 'off the wall.'" [A:94]. These statements, among others, created doubt and called for further inquiry into Mr. xxxxx's competency and whether he understood the proceedings and was able to consult with his attorneys at the time. Mr. xxxxx's allocution at sentencing does not "undercut[ ]" his claim that he was not competent, Gov't Br. at 45, because Mr. xxxxx was unable at sentencing to identify each disputed fact alleged by the government or to dispute his attorney's representation regarding the presentence report. Considering his attorneys' conflict of interest and other ineffectiveness, their failure to request a competency hearing does not support a finding that Mr. xxxxx was competent, as the government argues. Gov't Br. at 46. Instead, their failure to do so was also ineffective.

At the time of Mr. xxxxx's sentencing hearing, the applicable statute was 18 U.S.C. 4244 [Addendum of Appellant ("Addendum") 1]. In contrast to 4241(a) (which later replaced 4244), 4244 placed primary responsibility on the United States Attorney to request a competency hearing if there was reasonable cause to believe a defendant may be incompetent. This Court should find that the prosecutor had "reasonable cause" under 4244 to request a competency hearing and that the district court erred in failing to conduct such a hearing sua sponte. In addition, the Court should remand for inquiry by the district court into whether Mr. xxxxx's attorneys were ineffective for failing to request a competency hearing and whether a retrospective determination of competency is still possible. See United States v. Renfroe, 825 F.2d 763, 766-68 (3d Cir. 1987) (finding reasonable cause to question competency of habitual cocaine user and remanding for determination of whether meaningful hearing on competency is still possible).

VII. THE DISTRICT COURT PLAINLY ERRED IN FAILING TO RESOLVE DISPUTED FACTS AT SENTENCING



Mr. xxxxx claims that the district court failed to resolve factual disputes at sentencing, based on his allocution and as required by due process and Fed. R. Crim. P. 32. xxxxx Br. at 53-55. (22) The government argues that the district court had a right to rely on Mr. Dietz's representation that Mr. xxxxx did not dispute facts alleged in the presentence report and that Mr. xxxxx, in allocution, only disputed one fact in the government's sentencing memorandum. Gov't Br. at 50-51. However, Mr. xxxxx's comments -- including: "I didn't plead guilty to everything they have written about me and all [this testimony], this is the first time I have seen it;" "there are so many things that they say in here that are completely untrue;" and specific comments about quantities of money, airplane trips, and government witness Davon Dupres -- were sufficient to inform the court that Mr. xxxxx disputed the accuracy of both the government's sentencing memorandum and the presentence report. (23)

The government also relies on the current version of Rule 32(c)(1) instead of the version in effect in 1983. Under amendments to Rule 32 that took effect on August 1, 1983, just prior to Mr. xxxxx's sentencing, the amended Rule stated for the first time:

If the comments of the defendant and his counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence report or summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing.

Rule 32(c)(3(D) [Addendum 22]; see also advisory committee's note to 1983 amendments [Addendum 28]; United States v. Lemon, 723 F.2d 922, 417 (D.C. Cir. 1983) (McGowan, J., concurring) (Lemon is "exactly the kind of case that prompted amendment of the Rule"). In contrast, today's version of Rule 32(c)(1) provides that "the court must afford counsel for the defendant . . . an opportunity to comment . . . and must rule on any unresolved objections to the presentence report." The differences between the two versions are relevant here because the 1983 rule explicitly applies to "comments of the defendant," not just to those of defense counsel, and requires resolution of comments that "allege any factual inaccuracy in the presentence report," not just specific "unresolved objections" to the report.

Furthermore, in the 1983 version of Rule 32, Mr. xxxxx and his attorneys did not have a right to their own copy of the presentence report. (24) Prior to the 1983 amendments, defense counsel and the defendant did not even have the right to read the report. See Rule 32 advisory committee's note (1983 amendments). (25) Without a copy of the presentence report at the sentencing hearing, Mr. xxxxx was unable to refer to specific disputed allegations in that report. In addition, Mr. xxxxx was not shown the government's sentencing memorandum until five minutes before the sentencing hearing. [A:199; A:202; A:227].

In this case, the sentencing memorandum relied on the presentence report, [A:108; A:112-113], and the presentence report, which stated only the prosecution version of the offense, relied on significant information from the prosecutor. [A:98-100]. As explained above, essentially the same allegations that Mr. xxxxx disputed and the court relied on at sentencing were repeatedly rejected by federal courts in xxxxxxx's case as a basis for factual findings. In addition to his rights under Rule 32, Mr. xxxxx has a due process right not to have his sentence based on "improper or inaccurate information." United States v. Lemon, 723 F.2d at 933. In Lemon, which also involved disputed allegations in a government sentencing memorandum, this Court stated that "courts must be concerned not merely when a sentencing judge has relied on demonstrably false information, but 'when the sentencing process created a significant possibility that misinformation infected the decision.'" Id. (citing United States v. Bass, 535 F.2d 110, 118 (D.C. Cir. 1976)).

In determining Mr. xxxxx's sentence, the district court relied on both the presentence report, as the government agrees, Gov't Br. at 15, 51, and the government's sentencing memorandum. [9/26/83 Tr. 2, 20, 23, 24]. In the circumstances here, under the plain language of Rule 32 and due process, the district court plainly erred in failing to resolve disputed allegations based on Mr. xxxxx's comments.

CONCLUSION

For the reasons stated above and in his brief on appeal, Mr. xxxxx respectfully requests that this Court vacate his guilty plea. Alternatively, Mr. xxxxx requests that this Court find that the district court erred in failing to conduct a competency hearing and

in failing to resolve factual disputes at sentencing and remand this case for resentencing and factual inquiry into other claims.



Respectfully submitted,

A.J. KRAMER,

FEDERAL PUBLIC DEFENDER







Beverly G. Dyer

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel for Appellant

625 Indiana Avenue, NW

Suite 550

Washington, D.C. 20004



(202) 208-7500

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(B)





I hereby certify that this brief contains 6,960 words in compliance with Fed. R. App. P. 32(a)(7)(B) and D.C. Circuit Rule 32(a)(2).



Beverly G. Dyer







CERTIFICATE OF SERVICE

I hereby certify that on July 19, 2000, two copies of the foregoing reply brief for appellant Troy Mitchell xxxxx, Jr., were served by hand on John R. Fisher, Chief, and Elizabeth H. Danello, Assistant United States Attorney, Appellate Division, United States Attorney's Office, 555 Fourth Street, N.W., Room 8104, Washington, D.C. 20001.









Beverly G. Dyer

1. In addition to the presentence report, the government cites affidavits from three witnesses prepared in connection with extradition. Gov't Br. at 8. Those three witnesses, in turn, provided most of the information used in the presentence report to describe the overall conspiracy alleged by the government. [A:99-100]. Those witnesses are not credible because all of them received favorable treatment by the government in exchange for giving evidence against Mr. xxxxx and Mr. xxxxxxx and two of them admitted lying to the government in connection with this case. See Brief for Appellant ("xxxxx Br.") at 6-7 & n.7.

2. Mr. xxxxx disputes numerous other statements including the government's version of events leading up to the arrest on April 19, 1982, and the assertion that Mr. xxxxx "supplied" the cocaine sold by xxxxxxx to Detective Bradley on April 19, 1982. Gov't Br. at 2. Moreover, this Court should not credit the prosecutor's assertion regarding "20 co-conspirators," see Gov't Br. at 9, because the prosecutor never repeated that assertion after the bond review hearing and nothing in the record supports it.

3. If the defendants had exchanged ten ounces per week for a year as the government asserts, they would have been responsible for more than fourteen kilograms of cocaine in one year. (Ten ounces is approximately 280 grams of cocaine.)

4. "S.A." refers to Appellant's supplemental appendix, which is paginated consecutively from pages 1 to 38, filed with this brief.

5. Of the 650 grams of pure cocaine attributed to xxxxxxx by the Magistrate Judge, [S.A.:31-32], approximately 490 grams of pure cocaine (two pounds of cocaine with additives) are attributable to xxxxxxx alone, leaving only 160 grams of pure cocaine (280 grams of cocaine with additives) that could even arguably be attributed to Mr. xxxxx -- assuming the government proved constructive possession of the cocaine recovered on April 19, 1982.

6. The government makes speculative assertions about the circumstances of the court reporter's failure to comply with 753(b). Gov't Br. at 20 ("Appellant does not dispute that the court reporter took shorthand notes. The reporter thus did record 'verbatim' the proceedings at the hearing."); 21 ("it was [the court reporter's] death, and the loss of notes that followed, that made it impossible now to transcribe the hearing"). Mr. xxxxx disputes both the accuracy and the relevance of these assertions. There is no evidence that the reporter took or kept shorthand notes and no entry in the log book of court reporters' notes corresponding to Mr. xxxxx's plea hearing. [A:510-511]. The date of her death is not in the record. Even if the reporter took shorthand notes of the plea hearing, she violated 753(b) not only by failing to file a transcript or sound recording but also by failing to certify her shorthand notes and file the notes with the Clerk. In sum, there is no evidence that, under some other set of circumstances, a transcript of the plea hearing would be available.

7. At a minimum, the standard of review applicable to 753(b) violations involving plea hearings must be lower than the harmless error standard of Rule 11(h), because an equivalent or higher standard of review would render 753(b) meaningless in the context of plea hearings.

8. The standard for a probability of reversible error under 753 should be lower than the standard for a "reasonable probability" of a different outcome required under Strickland v. Washington, 466 U.S. 668, 694 (1984), which may be established even where the outcome "seems unlikely." United States v. McCoy, 2000 WL 768518, *6 (D.C. Cir. June 23, 2000) (Henderson, J., concurring).

9. The government argues that Mr. xxxxx relies on facts, such as affidavits and exhibits to his 28 U.S.C. 2255 motion, outside the record. Gov't Br. at 36, 38. However, the 2255 pleadings were certified by the district court clerk and made a part of the record on appeal. See District Court No. 82-CR-339, docket entry 53 (May 14, 1999) (transmitting preliminary record on appeal); Fed. R. App. P. 10(a) (defining record on appeal). Even if the government had sought and obtained exclusion of the 2255 documents from the record on appeal, several of Mr. xxxxx's claims would still be supported by the record, including at least (1) the 753(b) violation; (2) the Rule 11 violations; (3) Mr. Dietz's miscalculation of the applicable sentence; (4) government threats barred by the doctrine of specialty; and (5) ineffectiveness in failing to advise Mr. xxxxx that certain counts in the indictment merge.

10. As the government notes, Gov't Br. at 20-22, court reporters are authorized to file either transcripts or sound recordings of plea hearings with the Clerk. However, the affidavit submitted by Mr. Johnson of the Clerk's Office does not mention sound recordings and fails to distinguish between requirements associated with transcripts of pleas, arraignments and sentencings and requirements associated with other criminal proceedings. [A:510-511]. Mr. Johnson's affidavit also states that many court reporters violate applicable law by retaining their shorthand notes for several years. [A:510]; see xxxxx Br. at 40. Similarly, the district court demonstrated lack of knowledge of the requirements applicable to pleas, including those authorizing the filing of sound recordings in lieu of transcripts. [10/6/99 Tr. 6 ("I know since I have been here I have never been aware that there are transcripts or Court recordings available of every plea that has been taken in Court unless the Court has directed it be done.")].

11. This Court's statements in Poole v. United States, 250 F.2d 396, 399 (D.C. Cir. 1957), should be repeated with updating to also refer to the filing of fully certified sound recordings in lieu of plea transcripts.

12. An additional four years have passed since Mr. xxxxx filed his 2255 motion seeking the right to appeal. A remand to the district court for factual inquiry would require substantial investigation and lead to further delay, but would not add any new information to the record of the plea hearing. Very likely, given the number and nature of Mr. xxxxx's claims, a remand would require the expenditure of more judicial resources than a trial.

The government suggests, as an alternative to remand, that this Court hold Mr. xxxxx's appeal in abeyance pending resolution of his 2255 claims. Gov't Br. at 18, 35, 42. However, 2255 is not a substitute for remand. Mr. xxxxx bears a significantly greater burden of proof under 2255 than on direct appeal. See, e.g., United States v. Timmreck, 441 U.S. 780, 784 (1979) (claim for technical violation of Rule 11 may be raised on direct appeal but not on collateral attack); United States v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir. 1992) (defendant must show "a good deal more" under 2255 than on direct appeal). In addition, 2255 imposes more onerous procedural requirements such as the need for a certificate of appealability. See, e.g., Slack v. McDaniel, 120 S.Ct. 1595, 1600 (2000) (certificate of appealability required under Antiterrorism and Effective Death Penalty Act even where petition was filed before effective date of act).

13. The government relies for factual support on the district court's standard plea format. Gov't Br. at 10-11; 27-28. That format provides no basis for upholding the plea because -- even if followed -- it does not show that the district court established a factual basis for the charges, explained constructive possession, or advised Mr. xxxxx of the maximum sentence. [A:519-528]. Nor does it show that Mr. xxxxx waived any constitutional rights. The term "special parole" in that format is in parentheses and has been crossed out and replaced with the term "supervised release." [A:525]. Furthermore, the district court specifically did not recall whether Mr. xxxxx was advised regarding special parole, [10/7/99 Tr. 11], and the judge's handwritten notes do not mention special parole. [A:530]. The court's standard plea format has clearly been updated since the time of Mr. xxxxx's plea. Even if the record contained a written plea agreement, that document would not provide a substitute for a record of the plea hearing. See, e.g., United States v. Medina-Silverio, 30 F.3d 1, 3 (1st Cir. 1994).

14. It is not clear that Mr. xxxxx was even advised of possession with intent to distribute since, according to the presentence report, the plea in count three was to distribution. [A:97].

15. In addition, the government asserts that Mr. xxxxx did not object to the presentence report in this case, that he was aware of the government's allegations against him in connection with the April 19, 1982 events, and that if he were otherwise aware of the elements of the offense or its factual basis, any Rule 11 violation would be harmless. Gov't Br. at 30-31. Mr. xxxxx clearly disputes the first assertion, which is an issue on appeal. He does not dispute that he was aware of the government's allegations, only that he was aware of what was required to show constructive possession. As he stated in his 2255 motion, his attorneys never advised him regarding constructive possession. [A: 222-224].

16. The government suggests that Mr. xxxxx's attorneys were experienced and would have advised him regarding the elements of the charges and special parole. Gov't Br. at 33. As noted above, however, Mr. xxxxx states that they did not do so. Furthermore, even the most diligent attorneys are more likely to overlook omissions than overt errors.

In addition, the government asserts that Mr. Cacheris's statement that he was not involved in plea negotiations is "less convincing" than the prosecutor's statement to the contrary and that there was no reason to hire Cacheris "just to endorse Dietz's judgment." Gov't Br. at 40 n.20. This Court should not credit one recollection over the other and, as Mr. xxxxx explained in his 2255 motion, Mr. xxxxx's father hired Mr. Cacheris in the hope that he would help convince the Department of Justice not to prosecute Mr. xxxxx's father and brother, [A:472], suggesting another factual basis for a conflict of interest.

17. Had he known of his right to appeal, Mr. xxxxx certainly would have asserted it before completing his sentence.

18. Mr. xxxxx does not claim, see Gov't Br. at 36, 41, that the prosecutor promised him a six-year sentence. This Court need not reach his claim that the prosecutor misrepresented the applicable sentence, which is disputed and requires further factual inquiry.

19. Mr. xxxxx cited (1) his plea offer, containing a clause waiving the right to bring such charges [A:71]; (2) the presentence report, mentioning such a clause in the plea agreement [A:100-101]; and (3) the government's citation to visa and tax allegations in its response to pretrial motions as evidence of "other crimes" [A:67].

20. The issue here is whether Mr. xxxxx was induced to plead guilty by the threat of visa and tax charges that the government did not have authority to prosecute. Mr. xxxxx's standing under the doctrine of specialty would be at issue only if he had rejected the plea, risked the additional charges, and eventually faced indictment on them. See xxxxx Br. at 27 n. 18 (discussing standing); Gov't Br. at 38 n. 19 (same). There is no reason for this Court to reach the question of standing here, where a finding of no standing would be equivalent to allowing the government to ignore the doctrine of specialty.

21. The government argues that this Court should review Mr. xxxxx's procedural competency claim for abuse of discretion. Gov't Br. at 43. That standard applies to a district court's denial of a motion for a competency hearing, however, not to the question of whether the court should have ordered such a hearing sua sponte.

22. As the government agrees, Gov't Br. at 48-49, this Court should remand to correct the judgment and commitment order and for factual review of Mr. xxxxx's claims that his attorneys provided ineffective assistance of counsel at sentencing.

23. Furthermore, the transcript of the sentencing hearing suggests that Mr. xxxxx was interrupted mid-sentence and may not have had a chance to complete his allocution. [9/26/83 Tr. 14].

24. In contrast, the rule in effect today requires that defense counsel and the defendant receive a copy of the presentence report within 35 days of sentencing, and that the parties state any objections in writing within 14 days of sentencing. See Rule 32(b)(6).

25. There is no evidence here that Mr. Cacheris ever read the presentence report.