ORAL ARGUMENT NOT YET SCHEDULED
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
BRIEF OF APPELLANT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
xxxxxxx xxxxxxx xxxxxxx, JR., Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FEDERAL PUBLIC DEFENDER
BEVERLY G. DYER
ASSISTANT FEDERAL PUBLIC DEFENDER
Counsel for Appellant
625 Indiana Avenue, Suite 550
Washington, D.C. 20004
Cr. No. 82-339-01 (TFH)
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
Pursuant to D.C. Circuit Rule 28(a)(1), appellant xxxxxxx xxxxxxx xxxxxxx, Jr., hereby states as follows:
A. Parties and Amici: This appeal arises from a criminal prosecution of defendant-appellant xxxxxxx M. xxxxxxx, Jr., by plaintiff-appellee, the United States of America. There are no intervenors or amici. A co-defendant, xxxxxxx W. xxxxxxx, entered a guilty plea to count one of the indictment.
B. Rulings Under Review: In this appeal, Mr. xxxxxxx seeks an order vacating his guilty plea on several grounds, including (1) the court reporter’s failure to record, certify and file a verbatim record or transcript of the plea hearing held on July 11, 1983, in violation of the Court Reporters Act, 28 U.S.C. § 753(b), and Fed. R. Crim. P. 11(g); (2) defects in the plea colloquy held before the district court (the Honorable Thomas F. Hogan) on July 11, 1983, pursuant to Fed. R. Crim. P. 11, including failure to advise defendant of the elements of, factual basis for, and maximum sentence on count three, failure to assure the plea was voluntary, and failure to state all the terms of the plea agreement on the record in open court or, alternatively, failure to inquire into defense counsel’s conflict of interest; (3) government coercion of the guilty plea through (a) threats to prosecute defendant’s father and brother; (b) threats to prosecute defendant with visa and tax charges prohibited by the extradition treaty between the United States and Australia and the doctrine of specialty; and (c) misrepresentation of the sentence and the government’s proposed allocution; (4) ineffective assistance of counsel including (a) a conflict between defendant’s interests and those of his father and brother; (b) misstatement of the maximum sentence defendant would receive; (c) failure to advise defendant regarding various factual and legal defenses, including merger of several counts in the indictment under the Double Jeopardy Clause; and (d) other ineffectiveness including failure to advise defendant regarding improper government coercion of the guilty plea and regarding a motion to withdraw the plea. Defendant also seeks reversal of his sentence based on violations of due process and Fed. R. Crim. P. 32 and ineffective assistance of counsel at sentencing. [9/26/83 Tr.].
C. Related Cases: In 1983, Mr. xxxxxxx filed an interlocutory appeal seeking pretrial release. See Order, United States v. xxxxxxx, No. 83-1504 (D.C. Cir. June 9, 1983). In 1996, Mr. xxxxxxx filed a 28 U.S.C. § 2255 motion in the district court that has been held in abeyance pending the disposition of this appeal. Order, United States v. xxxxxxx, Cr. No. 82-339, Civ. No 96-550 (D.D.C. May 10, 1999) [A:581]. On May 6, 1999, the district court resentenced Mr. xxxxxxx, he appealed his conviction and sentence, and on September 25, 2000, this Court vacated the new sentence and ordered the district court to reconsider its decision to resentence Mr. xxxxxxx pursuant to Roe v. Flores-Ortega, 528 U.S. 470 (2000). Judgment, United States v. xxxxxxx, D.C. Cir. Case No. 99-3064 (D.C. Cir. September 25, 2000) [A:664-65]. On reconsideration, the district court found ineffective assistance of counsel and again resentenced Mr. xxxxxxx to enable him to note a direct appeal. Order and Judgment, xxxxxxx, Dist. Ct. Cr. No. 82-339 (D.D.C. July 16, 2001) [A:668-78].
In 1994, Mr. xxxxxxx was convicted in a drug trafficking case in the United States District Court for the Middle District of Florida, where his sentence was enhanced based on the conviction in this case pursuant to 18 U.S.C. §§ 841(b)(1)(B) & 851 and the U.S. Sentencing Guidelines. Mr. xxxxxxx is currently seeking a certificate of appealability to appeal the denial of a 28 U.S.C. § 2255 motion in that case. United States v. xxxxxxx, Case No. 94-64-CR-23E, 98-2134-CIV-T-23E (M.D.Fla.).
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
BRIEF OF APPELLANT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
xxxxxxx xxxxxxx xxxxxxx, JR., Defendant-Appellant.
Defendant xxxxxxx xxxxxxx xxxxxxx, Jr., was originally sentenced in this case on September 26, 1983. On July 16, 2001, he was resentenced so that he could pursue a direct appeal. His notice of appeal was filed on July 17, 2001. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
STATUTES AND RULES
Relevant statutes and rules are included in a separately-bound addendum.
ISSUES PRESENTED FOR REVIEW
1. Whether this Court should vacate defendant’s guilty plea based on the court reporter’s failure to record and file a transcript of the plea hearing, in violation of 28 U.S.C. § 753(b) and Fed. R. Crim. P. 11(g), particularly in light of defendant’s claims that the plea was involuntary, unknowing and coerced. 2. Whether defendant’s guilty plea should be set aside under Rule 11 due to (a) failure to advise defendant of the elements of, factual basis for and maximum sentence on count three; (b) failure to ensure that the plea was not coerced; and (c) failure to state all of the terms of the plea agreement in open court, and/or failure to recognize and inquire into defense counsel’s conflict of interest relating to defendant’s father.
3. Whether the government coerced defendant’s plea through (a) improper threats to prosecute xxxxxxx’s father and brother; (b) improper threats to bring visa and tax charges against defendant that were barred by the extradition treaty between the United States and Australia and the doctrine of specialty; and (c) misrepresentation of the sentence to be imposed and the government’s planned allocution at sentencing.
4. Whether the plea should be reversed as a result of ineffective assistance of counsel including (a) defense counsel’s conflict of interest relating to defendant’s father and brother; (b) counsel’s misstatement of the maximum sentence defendant would receive and his parole eligibility, based on failure to determine the status of a prior conviction; (c) counsel’s failure to advise defendant regarding legal and factual defenses to many counts in the indictment, including merger of several counts under the Double Jeopardy Clause; and (d) other ineffectiveness including counsel’s failure to advise defendant regarding improper government coercion and a pre-sentence motion to withdraw the guilty plea.
5. Whether the district court plainly erred in relying on false and unreliable factual information at sentencing, in violation of due process and Fed. R. Crim. P. 32(c)(3)(D), and whether counsel were ineffective for failing to dispute facts alleged by the government at sentencing and failing to keep xxxxxxx informed of those facts.
STATEMENT OF THE CASE
A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below
On November 18, 1982, a federal grand jury returned an indictment charging defendant xxxxxxx M. xxxxxxx, Jr., in count one with a drug trafficking conspiracy in violation of 21 U.S.C. § 846; in counts two through five with drug trafficking in violation of 21 U.S.C. § 841 (alleging, respectively, distribution of 225 grams of cocaine on April 19, 1982, possession with intent to distribute 225 grams of cocaine on April 19, 1982, possession with intent to distribute 56 grams of cocaine on April 19, 1982, and possession of .161 grams of cocaine on April 19, 1982); in counts eight and nine with travel in interstate commerce with the intent to distribute a controlled substance on April 19, 1982, and April 18, 1982, respectively, in violation of 18 U.S.C. § 1952; and in count ten with engaging in a continuing criminal enterprise (“CCE”) in violation of 21 U.S.C. § 848. [A:30-40]. The district court denied defendants’ motion to suppress on July 8, 1983. [A:99-115].
On July 11, 1983, defendant entered a guilty plea to counts one and three. On September 26, 1983, the district court sentenced defendant to two concurrent 5-15 year terms of imprisonment, a $1,000.00 fine on count one, a $5,000.00 fine on count three, and three years special parole on count three. [9/26/83 Tr. 24-26]. On January 24, 1984, the court denied defendant’s motion for reconsideration of his sentence. [A:195-96].
On March 20, 1996, defendant filed a 28 U.S.C. § 2255 motion, which he later supplemented, asserting numerous claims. [A:249-438]. After several extensions of time during which the government attempted to locate the record in the case, the government filed an opposition to that motion on March 28, 1998, [A:439-479], and defendant filed a reply on May 15, 1998. [A:480-579]. The court appointed counsel to represent xxxxxxx on August 5, 1998. [A:580].
Among other errors, xxxxxxx claimed his attorneys failed to advise him of the right to direct appeal. The district court resentenced xxxxxxx on May 6, 1999, with the government’s consent, [5/6/99 Tr. 10-11], and held xxxxxxx’s remaining § 2255 claims in abeyance. [A:581]. xxxxxxx appealed his claims. On September 25, 2000, this Court vacated the new sentence and ordered the district court to reconsider its decision to grant defendant the right to direct appeal pursuant to Roe v. Flores-Ortega, 528 U.S. 470 (2000). [A:664-65]. After briefing and an evidentiary hearing, the district court ruled that defense counsel were ineffective for failing to advise defendant regarding his right to direct appeal. [5/16/2001 Tr. 62-66; A:668-70]. On July 16, 2001, the court resentenced xxxxxxx, issuing a new judgment and commitment order, [A:671-78], and on July 17, 2001, xxxxxxx filed this notice of appeal. [A:679].
B. Statement of Facts
1. The Offense and Extradition
On April 19, 1982, James Bradley, an undercover police officer, negotiated and completed the purchase of approximately eight ounces of cocaine powder from xxxxxxx xxxxxxx. The purchase was negotiated through an intermediary, Robert Finkel, and was completed in the home of xxxxxxx’s parents, where xxxxxxx lived, at 2929 Ellicott Street, N.W. xxxxxxx also resided at 2929 Ellicott Street and was present in the house at the time. Detective Bradley arrested Finkel and xxxxxxx and signaled police officers waiting outside, who entered the house and arrested xxxxxxx.
Finkel told Detective Bradley that xxxxxxx was involved in the negotiations behind the scenes. Both xxxxxxx and xxxxxxx have subsequently stated, however, that xxxxxxx did not have actual or constructive possession of the cocaine sold on April 19, 1982. [A:301; A:321-22]. According to xxxxxxx and xxxxxxx, xxxxxxx obtained that cocaine on consignment from Paul Gerdon, xxxxxxx’s primary cocaine supplier. Id.
After their arrest, xxxxxxx and xxxxxxx were released on personal recognizance and the government dismissed the charges to pursue a grand jury investigation. On November 18, 1982, the grand jury returned the indictment. Both defendants were subsequently extradited from Australia and arraigned on April 18, 1983. [4/18/82 Tr.].
2. The Alleged Conspiracy and Disputes Regarding Its Scope
Throughout its prosecution of this case, the government maintained that the defendants ran a large and sophisticated drug trafficking business. Defendants vehemently contested the government’s allegations of the scope of the conspiracy and the quantity of drugs involved, claiming that they were relatively minor dealers who transacted with friends to support their own cocaine habits. [A:144-47; A:163; A:333]. Defendants also maintained that the case was blown out of proportion by an alleged connection with Capitol Hill, fueled by fabrications provided by Finkel, and that the government’s investigation and prosecution included overreaching and misconduct. [A:145-46; A:149-55; A:173-74; A:178-79; 4/18/83 Tr. 23-24].
The government’s description of the conspiracy, as stated in the “prosecution version” of the offense in the presentence report (PSR) and in the government’s sentencing memorandum, is apparently based on information provided by three witnesses, Robert Finkel, xxxxxxx xxxxxxx, and Michael xxxxxxx. Citing those witnesses, [A:121], for example, the PSR states:
Defendant xxxxxxx reportedly was the “brains” behind the conspiracy and the main drug supplier. xxxxxxx allegedly purchased his cocaine in kilos and during 1979 supplied codefendant xxxxxxx with four to eight ounces per week for resale and use. Between 1980 and 1981, xxxxxxx reportedly supplied xxxxxxx with ten ounces per week for resale and use.
[A:122]. In its sentencing memorandum, the government adds that xxxxxxx said xxxxxxx used an airplane to import drugs, that she helped xxxxxxx count $240,000.00, and that she helped launder money. [A:132-33].
These witnesses’ statements, however, do not support the government’s allegations. xxxxxxx, whose apartment was used to store cocaine, apparently had no knowledge of the scope of defendants’ activities. [A:46-49]. Finkel told xxxxxxx he fabricated allegations that were untrue for the sole purpose of obtaining lenient treatment in his own case, including shortly after the 1982 arrest when “he had already begun tantalizing the prosecutors with names of prominent Capitol Hill figures, who, he would say, had purchased cocaine from him or Mr. xxxxxxx,” according to xxxxxxx’s sentencing memorandum. [A:145-46; see also A:154].
In a 1997 affidavit, xxxxxxx, also named xxxx xxxxxxx, recants statements she made to the government at that time, explaining that she was arrested at night, “interrogated until morning,” threatened with incarceration of her brother who had just had a baby, and told that her life was in danger and that “persons unknown wanted [her] dead.” [A:437]. She was “never more frightened and feared for [her] life.” Id. Out of fear, xxxxxxx agreed with statements made by the government and Finkel that were not true. [A:437-38]. Recanting those statements, she now states for example that she never saw xxxxxxx with as much as a kilogram of cocaine, she never knew of any “money laundering,” she never saw $200,000.00 in her life, and she was unaware of any airplane use by xxxxxxx. Id.
Moreover, a federal magistrate judge, the district court for the Middle District of Pennsylvania, and the Third Circuit found no rational basis for the U.S. Parole Commission’s conclusion that this conspiracy involved more than one kilogram of cocaine, in decisions discrediting the government’s unsupported allegations against xxxxxxx as well as xxxxxxx. xxxxxxx v. Lansing, 839 F.2d 933 (3d Cir. 1988); [A:207-248 (xxxxxxx v. Lansing, Case No. 85-860 (M.D. Pa.) (unpublished district court decisions)). That case involved xxxxxxx’s parole eligibility, which was based on the Commission’s determination that xxxxxxx was responsible for one-to-five kilograms of cocaine. The Commission, ordered to provide evidence supporting its determination, cited xxxxxxx’s PSR and statements by xxxxxxx and Finkel. xxxxxxx, 839 F.2d at 938; [A:226]. xxxxxxx’s PSR contained exactly the same allegations as xxxxxxx’s PSR, stating:
xxxxxxx allegedly purchased his cocaine in kilos and during 1979 supplied xxxxxxx with 4-8 ounces per week for resale and use. Between 1980-1981 xxxxxxx reportedly supplied xxxxxxx with ten ounces per week for resale and use. . . . According to Assistant U.S. Attorney Daniel Bernstein, between 1979-1982 evidence would show that codefendant xxxxxxx was purchasing cocaine in kilos.
[A:217 (citing xxxxxxx PSR)]. The magistrate judge found that the allegations cited by the Commission “presented no minimum indicium of reliability” and, thus, did not provide a rational evidentiary basis for the Commission’s conclusions. [A:221; see also A:217-18]. The district court and the Third Circuit agreed. xxxxxxx, 839 F.2d at 937-39, 942-44; [A:229 (Commission’s finding of more than one kilogram of cocaine “remains founded on rumor and innuendo and made in absence of reliable facts”)]. No additional evidence in xxxxxxx’s case justifies a different conclusion here.
3. Defense Counsel’s Representation of Defendant’s Father and Brother
xxxxxxx’s father, xxxxxxx xxxxxxx, Sr., hired and paid for Stanley Dietz to represent his son. [A:666]. Mr. Dietz told the court that Mr. xxxxxxx, Sr., “has been my client for, I guess, ten years, about ten years or so . . . .” [4/22/83 Tr. 5]. Mr. Dietz had also represented xxxxxxx’s brother. [A:291]. Mr. Dietz represented xxxxxxx xxxxxxx, Sr., in connection with grand jury proceedings in this case, forfeiture proceedings related to this case, and also in connection with his divorce from xxxxxxx’s mother. [A:197-99; A:290; see also 4/22/83 Tr. 25 (“The father has been in the grand jury.”)]. Mr. Dietz was a friend and golfing companion of xxxxxxx’s father and had received personal loans from him. [A:290]. Mr. Dietz thought “very, very highly of xxxxxxx xxxxxxx Senior. He is a very good person. . . he is what I would call a true blue American.” [4/22/83 Tr. 13].
4. The Government Threats, Plea Negotiations and Change of Plea
According to an August 31, 1983, article by Jack Anderson, “xxxxxxx xxxxxxx, 23, for months refused to plead guilty.” [A:328]. That article also states that the prosecutor obtained a guilty plea only by “relentlessly pressuring” xxxxxxx, and that Stanley Dietz, xxxxxxx’s attorney during plea negotiations, told Anderson the prosecutor “threatened to investigate other members of the xxxxxxx family if his client failed to enter a guilty plea.” Id.
According to xxxxxxx’s father, after his son’s arraignment, the prosecutor made a series of phone calls to him at his office to pressure him to convince his son to plead guilty. [A:313; 9/26/93 Tr. 14]. The prosecutor, he states, “threatened to have me and others of my children indicted on related charges and to sic the IRS on us.” [A:313]. These threats and threats to indict xxxxxxx on visa and tax charges were also made to Mr. Dietz, who conveyed them to xxxxxxx’s father. Id. Although xxxxxxx’s parents were separated, his mother was aware of the phone calls and threats, and that her husband felt coerced. [A:317-18].
xxxxxxx’s father interpreted the threats as harassment and the threats convinced him to speak with his son. [A:313]. The prosecutor arranged a meeting in a conference room at the U.S. Attorney’s Office between defendant, who was incarcerated at the time, and his parents. [9/26/83 Tr. 15; A:313-14]. First, the prosecutor met with xxxxxxx’s parents in his office, without Mr. Dietz. [A:313; A:317]. At the original sentencing hearing, xxxxxxx’s father testified about the plea negotiations:
[P]rior to going into the conference room my wife and I sat in Mr. Bernstein’s office, and he ran through the mathematics involved. He said that the odds were very good that [xxxxxxx] will probably get six years, and that being the case under the guidelines, he would really have to serve thirty-six months. And then he ran through the math again where he talked about he has already served so much time in Australia, and here — if you take that off, you do the good behavior and all the rest of it, and so that it ends up, the number that I remember him telling me was twenty-six months.
[9/26/83 Tr. 15-16; see also A:313-14 (prosecutor “said the odds were very good that the maximum sentence [xxxxxxx] would receive would be six years and that he would serve no more than 36 months in all”) (emphasis added)].
According to Mrs. xxxxxxx:
I remember [the prosecutor] saying that our son could be sentenced to fifteen years in prison, but by pleading guilty and accepting responsibility for his actions, he would probably receive considerably less time, and that he, Mr. Bernstein, would be asking for six years, which, with good time and the time that he’d already spent in jail, would mean that our son could be out in as little as two more years, or thirty six months in all.
[A:317]. Both parents acknowledged that the prosecutor told them he could not promise or guarantee the sentence xxxxxxx would receive. [9/26/83 Tr. 17; A:317]. Mrs. xxxxxxx explained:
Although he cautioned us that he could not “promise” what sentence xxxxxxx would get, because to do so would mean the judge would not accept his plea, he made it clear that this was what he intended to ask for.
Mr. Dietz joined the meeting between xxxxxxx and his parents in the conference room near the prosecutor’s office. [A:314]. At the sentencing hearing, Dietz stated about plea negotiations:
[T]his was what I advised Mr. Bernstein as well——and at that time Mr. Bernstein advised me and my client’s father, Mr. xxxxxxx, Sr., that with the time that he had already spent in Australia, and his incarceration here, that this young man would serve about a little less than two years, and that was based upon what we thought would be a sentence of a maximum of approximately six years.
I say this to the court, because I was really shocked when I saw the government’s sentencing memorandum . . . . I was really shocked that the government would be asking for any consecutive sentences, or asking for any sentence that would result in Mr. xxxxxxx’s having to receive a sentence of more than six years, and serve on the bottom line, any more than thirty-six months.
[9/6/83 Tr. 6-7; see also 5/16/01 Tr. 45, 47, 49].
The prosecutor disputed these statements, asserting:
[I]t was Mr. Dietz who said first that he thought his client would get three years.
I told Mr. Dietz, “Well, you can look at the parole guidelines, and you can figure out what the parole guidelines [ ] that does not guarantee what sentence you get. It also does not guarantee what release, or what time he would be released from prison.
[9/26/83 Tr. 17-18].
Based on the threats and the belief that their son faced a sentence of six years with parole eligibility in three years, Mr. Dietz and xxxxxxx’s parents convinced xxxxxxx to plead guilty. [A:313-18]. At the 2001 evidentiary hearing, xxxxxxx explained that “the prosecutor never spoke to me,” that no one “guaranteed” him a particular sentence, and that he was told that the sentence was “up to the judge.” [5/16/01 Tr. 28-29]. Nonetheless, based on what he was told by Mr. Dietz and his parents, xxxxxxx believed pleading guilty would result in a sentence of at most six years, with release on parole in two years with time served. [A:257–59; A:276-77]. Furthermore, Dietz and xxxxxxx’s parents told xxxxxxx——and xxxxxxx understood——that the government had agreed to allocute for a six-year sentence. [A:257-59; A:276].
On July 11, 1983, the docket listing states that xxxxxxx entered a guilty plea to counts one and three. [A:9]. xxxxxxx signed a written waiver of his right to jury trial. [A:116]. The written plea agreement, though docketed, [A:9; A:11], is missing from the court file. The plea hearing is recorded in the docket but no transcript, certified notes or other original records were ever filed. After the original notice of appeal was filed, this case was remanded to the district court to attempt to recreate a record of the plea hearing, but that attempt was unsuccessful. [A:598].
5. The Sentencing Proceedings
Prior to sentencing on September 26, 1983, the parties submitted sentencing memoranda. Defendant’s memorandum states that defendant, “on several occasions and in concert with others, secured cocaine for friends and acquaintances. He knew it was wrong when he did it but had a very severe cocaine habit of his own at that time. He participated in this illegal activity to satisfy his need for drugs and money to support his drug habit.” [A:163]. In addition, defendant’s memorandum attaches a psychiatric report by Erich M. Reinhardt, M.D., explaining that “since age 10 the patient has been more or less steadily under psychiatric care (either as an outpatient or while being hospitalized).” [A:166]. The psychiatrist described his sessions with xxxxxxx in 1983, stating that xxxxxxx’s “attention span is minimal; his thought processes at times are focused and at times totally ‘off the wall.’” He found no evidence of a “thinking disorder” but stated that “[i]t seems impossible to deal with [xxxxxxx] in terms of reality, logic and simple chances.” [A:168-69].
As noted above, government allegations in its sentencing memorandum and in the “prosecution version” of the offense in the PSR included claims that xxxxxxx purchased cocaine in kilogram quantities and sold drugs to customers on Capitol Hill, including an elected politician, [A:121-22], and——based on information received from xxxxxxx——that xxxxxxx used an airplane to import drugs worth hundreds of thousands of dollars, that he “launder[ed] his drug profits” in Atlantic City, N.J., and that he once received drug proceeds in excess of $240,000.00. [A:132-33]. As explained, however, these allegations are not supported by reliable evidence. xxxxxxx recants statements she made and admits she lied, [A:437-38], Finkel told xxxxxxx that he fabricated evidence, [A:145-46, A:154], and xxxxxxx did not have knowledge of the scope of any conspiracy. [A:46-49]; see also xxxxxxx v. Lansing, 839 F.2d at 937-39 (affirming rejection of these allegations as rational basis for factual finding of involvement with more than one kilogram of cocaine).
In its sentencing memorandum, the government requested the maximum sentence of consecutive fifteen-year sentences. [A:136]. Mr. Dietz, as cited above, was “shocked” when he learned of this request. [9/26/83 Tr. 6-7]. Dietz explained to the court at the sentencing hearing that he had erred in believing that a prior North Carolina misdemeanor conviction——with respect to which Dietz had represented xxxxxxx——had been expunged. [9/26/83 Tr. 4-6]. Dietz thought that conviction would be expunged automatically and only “learned that it had not been expunged [when he] saw the probation report.” [9/26/83 Tr. 5]. The misdemeanor conviction “changed Mr. xxxxxxx’s position quite a bit,” because, without it, Dietz and the prosecutor had calculated xxxxxxx’s parole eligibility to be 36 months and told xxxxxxx’s parents and xxxxxxx that the plea would result in a “maximum of approximately six years.” [9/26/83 Tr. 6]. Absent this incorrect advice, Dietz stated, “very frankly, the deal that was made, the plea that was entered, would not have been done . . . .” Id.
At the sentencing hearing, xxxxxxx and his attorneys did not have a copy of the PSR for reference. See infra, section V. Although xxxxxxx had contested facts in the PSR, his attorneys assured him that facts he disputed were either insignificant or would be addressed through his own version of the offense. [A:305]. Dietz stated at the hearing, however, that he and xxxxxxx found the PSR to be “fairly accurate.” [9/26/83 Tr. 4]. xxxxxxx’s attorneys did not show him the government’s sentencing memorandum until five minutes prior to the sentencing hearing. [A:277; A:280; A:305]. In allocution, xxxxxxx stated:
I don’t know exactly what to say about this. I plead guilty to counts 1 and three.
I didn’t plead guilty to everything that they have written about me and all these, the testimony, this is [testimony] I have never seen. This is the first time I have seen it [ ].
It has something, certain things about quantities of money, and all the rest of that.
Unfortunately, by pleading guilty to Counts 1 and 3, I had to plead guilty, or had to accept certain of the things that they said in there.
I didn’t agree with them completely, but as I go through this little, what they call, sentencing memorandum, I had never used an airplane to bring drugs into any place.
I have a minimum like forty or fifty hours in aircraft, and as a student pilot.
No more time than that’s logged. I mean, there are so many things that they say in here that are completely untrue.
[9/26/83 Tr. 12-13].
The district court sentenced xxxxxxx to two concurrent five-to-fifteen year sentences of imprisonment, three years special parole, and $1,000.00 and $5,000.00 fines. [9/26/83 Tr. 24-26]. xxxxxxx, his attorneys, and family members, were “shocked” at the sentence. [5/16/01 Tr. 22, 25, 52-53, 63].
6. Failure to Advise Defendant of Right to Appeal
No appeal was filed. xxxxxxx’s attorneys at sentencing, Stanley Dietz and Plato Cacheris, did not advise xxxxxxx at any time that he had the right to appeal or that he could move to withdraw the guilty plea. [5/16/01 Tr. 62-64]. At the 2001 evidentiary hearing, Mr. Cacheris testified that, in 1983, he was unaware of the claims and allegations available to defendant. [5/16/01 Tr. 35, 38]. Had he been aware of those claims, he “would have told [xxxxxxx] not to enter a guilty plea.” Id. at 41. Mr. Dietz testified that he would have told his client that “[w]hen you [plead] guilty, you give up” and that “you couldn’t appeal from a legal sentence.” Id. at 44.
The district court found that both attorneys were ineffective for failing to advise xxxxxxx of the right to appeal.
I’m going to make a finding that defendant’s counsel should have realized they had issues that they could have advised and should have advised the defendant about regarding appeal; they did not do so, and that the defendant was prejudiced because of that, and I believe the record indicates he would have appealed.
[5/16/83 Tr. 65; see also id. at 62-66 & 19; A:668-70].
SUMMARY OF ARGUMENT
Under 28 U.S.C. § 753(b), Rule 11(g), and the law of this Circuit, the court reporter’s failure to record the plea hearing and file a transcript of the hearing with the clerk of the court requires setting aside the guilty plea, particularly where the defendant alleges prejudice at the plea hearing and claims the guilty plea was unknowing, involuntary and coerced.
The plea colloquy was deficient in several respects. xxxxxxx recalls that the district court never advised him of the elements of or factual basis for count three, including the meaning of constructive possession, or regarding special parole. He also contends the court failed to conduct an adequate inquiry into the voluntariness of the plea and whether the plea resulted from conversations between the government and his attorney, as required by Rule 11(d). In addition, either the plea colloquy was deficient for failure to state all of the terms of the plea agreement in open court or the district court erred in failing to recognize and inquire into defense counsel’s conflict of interest.
Defendant’s plea was coerced by government threats and misrepresentation of the sentence and intended allocution. First, the government coerced the guilty plea through improper threats to prosecute defendant’s father and brother. Second, the plea was coerced through improper threats to indict defendant with visa and tax charges that the government had no authority to prosecute, pursuant to the extradition treaty between the United States and Australia and the doctrine of specialty. Third, the government coerced the guilty plea by misrepresenting the applicable sentence and the government’s intended allocution.
xxxxxxx’s plea was also unknowing, unintelligent and coerced due to ineffective assistance of counsel. Mr. Dietz had an actual conflict of interest with xxxxxxx’s father and brother that adversely affected his advice to xxxxxxx during plea negotiations. Counsel was also ineffective in telling xxxxxxx he would receive a maximum sentence of six years’ imprisonment, and in miscalculating his parole eligibility by failing to learn that the North Carolina misdemeanor conviction had not been expunged. Counsel was ineffective in failing to advise xxxxxxx of valid factual and legal defenses to most of the counts in the indictment, including the merger of several counts under the Double Jeopardy Clause. Counsel’s ineffectiveness, which likely resulted from the conflict of interest, also included failing to advise defendant regarding improper government threats, special parole and a pre-sentence motion to withdraw the guilty plea.
This Court should vacate xxxxxxx’s guilty plea because there is no basis for upholding the plea as voluntary, knowing and uncoerced. Some of xxxxxxx’s claims are supported by the original record, including § 753 violations, coercion of the plea through improper threats of additional visa and tax charges, and ineffectiveness in misrepresenting the sentence. Other claims, based partly on factual assertions in the § 2255 motion, require remand for additional factual inquiry, including improper threats to prosecute family members, government misrepresentation of the sentence and intended allocution, and other ineffectiveness claims. Even though some of defendant’s plea-related claims require expansion of the record, those claims are interwoven with claims supported by the record and there is sufficient evidence in the original record to support vacating the guilty plea here. Moreover, this Court should not remand this case because the plea cannot be upheld as voluntary in the absence of a transcript of the Rule 11 hearing, which cannot be reconstructed. Pursuant to § 753(b), Rule 11, the doctrine of specialty, the extradition treaty with Australia, and Strickland v. Washington, 466 U.S. 668 (1984), this Court should set aside xxxxxxx’s guilty plea.
If this Court does not vacate defendant’s plea, it should remand for factual inquiry concerning the guilty plea. In addition, this Court should reverse the sentence and remand for resentencing. The district court plainly erred in relying at sentencing on false or unreliable factual allegations by the government, in violation of due process and Fed. R. Crim. P. 32. Furthermore, xxxxxxx’s attorneys were ineffective at sentencing for failing to dispute the government’s factual allegations in both the PSR and the sentencing memorandum and for failing to show xxxxxxx the government’s sentencing memorandum more than five minutes before the sentencing hearing.
I. THIS COURT SHOULD SET ASIDE DEFENDANT’S GUILTY PLEA BASED ON THE COURT REPORTER’S FAILURE TO RECORD AND TRANSCRIBE THE PLEA HEARING, AS REQUIRED BY 28 U.S.C. § 753(b) AND FEDERAL RULE OF CRIMINAL PROCEDURE 11(g)
A. The Court Reporter Failed to Comply With § 753(b) and Rule 11(g)
The court reporter listed in the docket as attending xxxxxxx’s plea hearing, Joan Curtis Blair, did not file a transcript, certified shorthand notes, or any other certification or original record of the plea hearing with the clerk of the court. [A:591-92; 10/7/99 Tr. 3; 12/9/99 Tr. 6]. Ms. Blair died shortly after xxxxxxx’s case. [10/7/99 Tr. 3; A:592]. It is clear that no transcript was ever prepared and filed, as opposed to having been filed and later lost or desxxxxxxxed. [A:591-92; A:9 (docket listing 4/18/83 and 4/22/83 transcripts but not 7/11/83 transcript)].
The Court Reporters Act provides in relevant part:
(b) Each session of the court . . . shall be recorded verbatim by shorthand, mechanical means, electronic sound recording, or any other method, . . .
The reporter or other individual designated to produce the record shall transcribe and certify such parts of the record of proceedings as may be required by any rule or order of court, including all arraignments, pleas, and proceedings in connection with the imposition of sentence in criminal cases unless they have been recorded by electronic sound recording as provided in this subsection and the original records so taken have been certified by him and filed with the clerk as provided in this subsection. . . .
The reporter or other designated individual shall promptly deliver to the clerk for the records of the court a certified copy of the transcript so made.
28 U.S.C. § 753(b) (1982) (emphasis added). Fed. R. Crim. P. 11(g) requires that “[a] verbatim record of the proceedings at which the defendant enters a plea shall be made . . . .”
Interpreting an earlier version of § 753(b) containing similar language, this Court explained that it “requires the following as a minimum”:
The court reporter, without charge and as a routine matter, must ‘transcribe and certify’ (i.e. type up from his original shorthand notes and file with the Clerk of the District Court) in every criminal case——whether or not in forma pauperis, appealed or not appealed——the proceedings on the defendant’s pleas and what transpired at sentencing. This transcription is to be performed as soon after the reported proceedings as is practicable. It is the duty of the District Court to see that henceforth the court reporters comply with the provisions of 28 U.S.C. § 753.
Poole v. United States, 250 F.2d 396, 399 (D.C. Cir. 1957). Ms. Blair did not comply with the requirements of § 753(b) or with the minimal instructions set forth in Poole, and nothing in the record suggests that she complied with Rule 11(g). [A:591-92]. In proceedings conducted under Fed. R. App. P. 10(c), the district court reviewed affidavits from counsel and defendant stating that they could not recall the substance of the plea hearing, [A:590; A:595-97], and concluded that it was impossible to reconstruct the record. [A:598].
The court reporter’s failure to transcribe the record is attributable to the district court. See, e.g., United States v. Nolan, 910 F.2d 1553, 1560 (7th Cir. 1990); United States v. Garner, 581 F.2d 481, 488 (5th Cir. 1978); Poole, 250 F.2d at 399. Furthermore, the ineffective assistance of counsel that led to the delay in this appeal is not the cause of the missing records. There is no evidence the court desxxxxxxxed files in connection with this case since, other than the plea agreement, files and transcripts listed in the original docket were retrieved from storage. There is similarly no evidence the court reporter could have produced a timely transcript had an appeal been filed in 1983.
B. Standard of Review
This Court “weigh[s] the burdens and benefits of reversing a conviction due to an incomplete transcript on a case-by-case basis.” United States v. Carrazana, 70 F.3d 1339, 1342 (D.C. Cir. 1995); see also United States v. Johnson, 231 F.3d 43, 49 (D.C. Cir. 2000); United States v. Winstead, 74 F.3d 1313, 1321 (D.C. Cir. 1996). The Court considers “‘(1) the goal of deterring violations of the Court Reporter Act; (2) the ability (and reasonable efforts of the parties) to correct for violations of the Act by reconstructing the record; and (3) the likelihood that reversible error occurred.’” Johnson, 231 F.3d at 49 (citing Carrazana, 70 F.3d at 1342).
C. Defendant’s Guilty Plea Cannot Be Upheld Where the Plea Hearing Transcript is Missing, Defendant Makes Numerous Claims That the Plea Was Unknowing, Involuntary and Coerced, And The Requirements of 28 U.S.C. § 753(b) and Rule 11(g) Remain Poorly Understood by the District Court, the Clerk’s Office and Court Reporters
As explained below, there is overwhelming support for vacating defendant’s plea based on the three critical factors considered by this Court——deterrence, the ability to reconstruct the record, and the likelihood of prejudice. See Johnson, 231 F.3d at 49; Winstead, 74 F.3d at 1321; Carrazana, 70 F.3d at 1342.
With respect to the first factor, reversal in this case would have no deterrent effect on the original court reporter, who is deceased. There are important reasons here, however, for this Court to reiterate the requirements of the Court Reporters Act. Proceedings to reconstruct the transcript revealed that the requirements of § 753(b) are neither well-understood nor being followed by the district court, the clerk’s office, and court reporters. For example, the district court was unaware that § 753(b) requires plea transcripts recorded without sound recording to be prepared and filed with the clerk. [10/7/99 Tr. 5 (“I have never seen that done in the 17 years I have been here, that we take a plea and a transcript is made up of that plea and that is put in the court file.”); id. at 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.”)]. According to Bxxxxxxxt Johnson, Assistant Supervisor in the Clerk’s Office, reporters currently retain their notes for several years, [A:591], in violation of Judicial Conference regulations requiring court reporters to file transcripts of plea hearings with the clerk within 30 days and notes of other proceedings within 90 days. 6 Guide to Judiciary Policies and Procedures §§ 1.3.3 & 17.8.2c. The Chief of the Court Reporter’s Office informed government counsel that in 1987, “there were no clear guidelines for the court reporters to follow and, in fact, they did what they wanted to.” [12/9/99 Tr. 6].
Furthermore, several transcripts prepared during this case after the original appeal was filed required correction, the entry of errata, and a court order requiring Miller Reporting Company, Inc., to produce its original notes of the December 9, 1999, hearing. [A:612-56]. This Court specifically held in Johnson, where Miller Reporting lost a sentencing transcript and the parties identified numerous past errors by Miller in earlier cases, that “our interest in deterring violations of the Court Reporter Act weighs heavily in favor of remanding this case for resentencing.” 231 F.3d at 49. As in Johnson, here, it is imperative for this Court to reiterate the requirements of § 753(b) and the admonitions made in Poole.
With respect to the second factor, the parties and the court were unable to reconstruct any part of a verbatim record of the plea hearing. Defendant does not recall the verbatim record, but recalls that the Court failed to advise him of several critical matters, [A:595-96], as explained below in section II.
With respect to the third factor——the likelihood of reversible error——this Court has “found reversible error where a crucial stage of trial was missing even though the defendant could not allege specific prejudice.” Johnson, 231 F.3d at 50 (citing United States v. Workcuff, 422 F.2d 700, 702 (D.C. Cir. 1970)); see also Carrazana, 70 F.3d at 1343. Other than its alternative, a complete trial, no criminal proceeding is more important than a guilty plea hearing. 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); see also Herron v. United States, 512 F.2d 439, 441 (4th Cir. 1975) (“Rule 11 is implemented by 28 U.S.C. § 753(b)”). Based on the crucial nature of the plea hearing, allegations of prejudice should not be required to vacate defendant’s plea. See, e.g., Johnson, 231 F.3d at 49-51 (remanding for resentencing despite defendant’s inability to allege specific prejudice); Workcuff, 422 F.2d at 702 (reversing conviction where district court provided supplemental instruction to the jury without court reporter present and noting “we have found no cases applying the harmless error rule when the court reporter was absent during such a crucial stage of the trial as instructions to the jury”). This case———because it involves a missing plea transcript——presents even more compelling circumstances for vacating the plea without requiring prejudice than Johnson or Workcuff.
To the extent allegations of prejudice are required, this Court considers “‘the ability of the defendant to allege specific prejudice arising out of an event in the missing portions [of the transcript]; the extent of the missing portions; the significance of the missing portions in a typical trial (e.g., final jury instructions are presumptively more significant than a bench conference); the likely significance of the missing portions in the context of the specific trial in question; and the use of new counsel on appeal.’” Johnson, 231 F.3d at 49 (citing Carrazana, 70 F.3d at 1343). Each of these considerations supports defendant’s claim here. This Court requires at most an allegation, not a demonstration, of prejudice. In the claims set forth below, defendant alleges——and in some instances, demonstrates——extensive prejudice in connection with the guilty plea. No part of the plea hearing in this case could be reconstructed verbatim and defendant recalls errors in the plea colloquy. The plea hearing is a crucial stage of proceedings in both a typical case and this case. Finally, xxxxxxx has new counsel on appeal.
For these reasons, this Court should vacate defendant’s plea due to the missing transcript.
II. THE PLEA COLLOQUY WAS DEFICIENT UNDER RULE 11 FOR FAILURE TO ADVISE DEFENDANT OF THE ELEMENTS OF, FACTUAL BASIS FOR, AND MAXIMUM SENTENCE ON COUNT THREE, FAILURE TO DETERMINE THAT THE PLEA WAS NOT COERCED, AND FAILURE TO STATE ALL OF THE TERMS OF THE PLEA AGREEMENT IN OPEN COURT OR, ALTERNATIVELY, TO INQUIRE INTO DEFENSE COUNSEL’S CONFLICT OF INTEREST
A. Standard of Review
At the time of xxxxxxx’s plea, Rule 11 errors were subject to per se reversal pursuant to McCarthy v. United States, 394 U.S. 459 (1969), or at least a “very lenient” standard of review, United States v. Barker, 514 F.2d 208, 221 (D.C. Cir. 1975) (citing McCarthy). On August 1, 1983, less than a month after the plea hearing in this case, Rule 11 was amended to specifically provide a harmless error standard of review. See Fed. R. Crim. P. 11(h) (1983); United States v. Dewalt, 92 F.3d 1209, 1213 (D.C. Cir. 1996); see also United States v. Vonn, 224 F.3d 1152, 1156 (9th Cir. 2000), cert. granted, No. 00-973 (February 26, 2001). The government bears the burden of showing harmlessness. Dewalt, 92 F.3d at 1214.
This Court should vacate xxxxxxx’s plea of guilty unless it finds, based on the existing record, that the plea was voluntary, knowing, and uncoerced. “Rule 11 cracks open the door behind which plea bargains are struck; appellate review and supervision of guilty pleas is facilitated by the district court’s making a record from which we can discern whether the defendant’s plea was knowing and voluntary.” Dewalt, 92 F.3d at 1213; see also Boykin v. Alabama, 395 U.S. 238, 242-43 (1969) (whether guilty plea was voluntary cannot be presumed from silent record).
B. The District Court Failed to Advise Defendant of the Factual Basis For, Elements Of, and Maximum Sentence On Count Three, in Violation of Rule 11(c)(1) & (f)
As explained, it was impossible to reconstruct a verbatim record of the plea hearing. Recalling the hearing in an affidavit filed in connection with the attempt to reconstruct the hearing pursuant to Fed. R. App. P. 10(c), xxxxxxx stated:
I can say without question [ ] that at no time did the subject of Special Parole come up. There was no mention from any source as to the minimum mandatory of three years, or possible lifetime term; no discussion as to its nature or particulars or that it would be in addition to, and would come after, any other period of regular parole.
. . . I was, as well, not advised by the court, or by any other source, of the essential elements of the second of the two counts to which I then pleaded guilty and upon which the Special Parole term was ultimately imposed, Count Three -- Possession [with] the Intent to Distribute the nearly ten ounces of cocaine that my co-defendant, xxxxxxx xxxxxxx, sold to undercover authorities on the night of April 19, 1982.
[A:595; see also A:269-72; A:348]. xxxxxxx did not understand what was required for the government to prove constructive possession of the cocaine sold on April 19, 1982. [A:300-302].
“[T]he defendant’s understanding of the crime to which he is admitting guilt is one of the ‘core considerations’ of Rule 11, that ‘manifestly must lie at the heart of any respectable system for settling (as opposed to trying) criminal charges.’” United States v. Ford, 993 F.2d 249, 253 (D.C. Cir. 1993) (citation omitted). Failure to advise the defendant of the factual basis for and/or elements of the charge, therefore, violates Rule 11. See, e.g., United States v. Andrades, 169 F.3d 131, 134-36 (2d Cir. 1999) (failure to describe nature of conspiracy charge and factual basis for that charge requires reversal under Rule 11(c)(1) & (f)); Dewalt, 92 F.3d at 1214-15 (lack of evidence in record that defendant was aware of mens rea element or, had he understood, that he would have pled guilty, requires vacating plea); Ford, 993 F.2d at 251-54 (omission at plea hearing of fact that gun was found in defendant’s bedroom requires vacating plea, where defendant later contested possession). This case is similar to Ford, where the defendant did not understand the factual basis for the charge involving the gun at the time of his plea and later asserted his innocence. 953 F.2d at 252. Once xxxxxxx understood what was required to prove constructive possession, he asserted his innocence on count three, explaining that he had neither an ownership interest in the cocaine sold on April 19, 1982, nor any control over it. [A:300-302].
The failure to advise xxxxxxx of the maximum sentence——including special parole——also violates Rule 11. See, e.g., United States v. Thorne, 153 F.3d 130, 133-34 (4th Cir. 1998) (reversing plea for failure to advise of supervised release and its nature, where defendant was advised that maximum was less than total sentence received); United States v. Roberts, 5 F.3d 365, 369-70 (9th Cir. 1993) (same); United States v. Bounds, 943 F.2d 541, 545-46 (5th Cir. 1991) (same); United States v. Watson, 548 F.2d 1058, 1061 (D.C. Cir. 1977) (Rule 11 requires court to inform defendant of special parole term); see also Fed. R. Crim. P. 11(c)(1) advisory committee’s note (1982 amendments). At most, xxxxxxx would have been advised that he faced a maximum of 15 years imprisonment on count three, but he was sentenced to fifteen years plus three years of special parole.
The district court also violated Rule 11 by failing to advise xxxxxxx of the nature and effect of special parole and the fact that, in the event of revocation, he would lose credit for time spent on special parole. [A:270-73; A:595]. See, e.g., United States v. Osment, 13 F.3d 1240, 1243 (8th Cir. 1994) (failure to advise of nature and effect of supervised release violates Rule 11 even where maximum sentence imposed is less than maximum referred to at plea hearing); United States v. Syal, 963 F.2d 900, 905-06 (6th Cir. 1992) (same); United States v. Hekimain, 975 F.2d 1098, 1102-03 (5th Cir. 1992) (same); United States v. Sharon, 812 F.2d 1233, 1234 (9th Cir. 1987) (same); Moore v. United States, 592 F.2d 753, 755-56 (4th Cir. 1979) (same).
xxxxxxx would not have pleaded guilty had he understood the elements of, factual basis for, and maximum sentence on count three. [A:596]. Accordingly, the Rule 11 colloquy was deficient for failure to advise defendant of the nature and factual basis for the offense and the maximum sentence on count three.
C. The District Court Failed to Determine that the Plea was Voluntary Pursuant to Rule 11(d), and Either the Parties Failed to State All of the Terms of the Plea Agreement in Open Court Pursuant to Rule 11(e)(2), Or the Court Failed to Recognize Defense Counsel’s Conflict of Interest
Rule 11(d) states:
The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or his attorney.
Fed. R. Crim P. 11(d). Rule 11(e)(2) requires “disclosure of the [plea] agreement in open court.”
xxxxxxx’s guilty plea was coerced through improper government threats to prosecute xxxxxxx’s brother and father, threats to bring additional charges against xxxxxxx and misrepresentation of the sentence and allocution. The plea also resulted from ineffective assistance of counsel, including a conflict of interest. It was particularly critical for the court to be informed of threats against family members. “[T]he disclosure of the existence of a package plea deal is crucial at the Rule 11 hearing so that the district court may probe as deeply as needed into the possibility that one defendant is pleading guilty against his will in order to make it possible for his co-defendant to obtain the benefit of a favorable plea and sentencing recommendation.” United States v. Abbott, 241 F.3d 29, 34 (1st Cir. 2001); see also United States v. Daniels, 821 F.2d 76, 79-80 (1st Cir. 1987) (failure to disclose wired nature of plea at plea hearing requires vacating guilty plea); United States v. Roberts, 570 F.2d 999, 1005-07 (D.C. Cir. 1977) (reversing for failure to state at plea hearing that government agreed not to request substantial sentence, which was a term of plea agreement). The burden of disclosing the terms of the plea agreement is “shared by defense counsel and the prosecutor.” United States v. Hernandez, 79 F.3d 1193, 1194 (D.C. Cir. 1996). If there is any indication that the plea may not be voluntary, the court has an obligation to conduct a more extensive inquiry into discussions between the parties. Abbott, 241 F.3d at 34 & 35 n.4; United States v. Caro, 997 F.2d 657, 660 (9th Cir. 1993); Daniels, 821 F.2d at 79.
In this case, the record does not support the conclusion that the court conducted an inquiry into plea negotiations sufficient to ensure that the plea was not coerced. In addition, the record does not demonstrate whether the government’s agreement to waive prosecution of family members was revealed at the plea hearing. If that agreement was not revealed then the plea colloquy violated Rule 11(e)(2). If it was revealed, on the other hand, then the district court clearly should have been aware of Mr. Dietz’s conflict of interest.
Accordingly, the Rule 11 colloquy was deficient for failure to assure that the plea was voluntary and for failure to state all of the terms of the agreement on the record or failure to inquire into defense counsel’s actual conflict of interest.
III. DEFENDANT’S GUILTY PLEA WAS COERCED BY GOVERNMENT THREATS TO PROSECUTE MEMBERS OF DEFENDANT’S FAMILY, THREATS TO PROSECUTE DEFENDANT WITH CHARGES BARRED BY THE EXTRADITION TREATY WITH AUSTRALIA AND THE DOCTRINE OF SPECIALTY, AND MISREPRESENTATION OF THE SENTENCE AND INTENDED ALLOCUTION
A. Standard of Review
A coerced guilty plea cannot stand irrespective of whether there was compliance with Rule 11. Fontaine v. United States, 411 U.S. 213, 214 (1973); see also Brady v. United States, 397 U.S. 742, 750 (1970) (“agents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant”). “[I]f a defendant’s guilty plea is not [ ] voluntary and knowing, it has been obtained in violation of due process and is therefore void.” McCarthy, 394 U.S. at 466.
B. The Guilty Plea Was Coerced by Improper Threats To Prosecute xxxxxxx’s Father and Brother
As explained above, the government threatened to prosecute xxxxxxx’s father and brother, unless xxxxxxx agreed to plead guilty, and pressured xxxxxxx’s father to convince his son to enter a guilty plea. [A:313-18; A:328]. Pleas based on lenient treatment for family members are inherently coercive and require close scrutiny on appeal. See Bordenkircher v. Hayes, 434 U.S. 357, 364 n.8 (1978) (plea bargaining involving “adverse or lenient treatment for some person other than the accused . . . might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider” (emphasis in original)); Abbott, 241 F.3d at 34 (“[p]ackage deals pose particular problems with regard to voluntariness”); United States v. Nuckols, 606 F.2d 566, 569 (5th Cir. 1979) (“guilty pleas made in consideration of lenient treatment as against third persons pose a greater danger than purely bilateral plea bargaining,” requiring prosecutors to exercise “high standard of good faith”). The government’s actions here——simultaneously threatening xxxxxxx’s father and insisting he convince his son to plead guilty——improperly coerced the plea. Moreover, the government knew or should have known that defense counsel had a conflict of interest, heightening the improper and highly coercive nature of these threats.
In addition, it was improper for the government to threaten to prosecute family members unless it had probable cause to indict them. See, e.g., United States v. Wright, 43 F.3d 491, 497-99 (10th Cir. 1994); United States v. Pollard, 959 F.2d 1011, 1021 (D.C. Cir. 1992); United States v. Whalen, 976 F.2d 1346, 1348-49 (10th Cir. 1992). There is no evidence, however, that the government had probable cause to prosecute xxxxxxx’s father and brother. The government’s sentencing memorandum alleges only that xxxxxxx was “assisted” by his younger brother in establishing a network of customers and that xxxxxxx exchanged cash for cashier’s checks payable to his father, [A:132-33], strongly suggesting that the government did not have probable cause.
C. The Guilty Plea Was Coerced by Improper Threats To Indict xxxxxxx on Charges Prohibited by the Doctrine of Specialty and the 1974 Extradition Treaty Between the United States and Australia
The government also threatened to indict xxxxxxx with post-extradition visa and tax charges unless he agreed to plead guilty. [A:258; A:313]. The government’s waiver of those charges was apparently an explicit term of the plea agreement. [A:122-23; see also A:97]. Threats of visa and tax charges were improper, however, because the government was barred from prosecuting such offenses under the extradition treaty between the United States and Australia, the extradition documents in this case, and the “doctrine of specialty.”
The extradition treaty with Australia in effect in 1983 provided:
(1) A person extradited under this Treaty may be detained, tried or punished in the territory of the requesting State for any offense mentioned in Article II for which the person could be convicted upon proof of the facts upon which the request for extradition was based.
(2) Except as provided [in] paragraph (1) of this Article, a person extradited under this Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted . . . .
1974 Treaty of Extradition Between the United States and Australia, 27 U.S.T. 957. The offenses listed in Article II of the Treaty do not include visa or tax offenses. Id. Furthermore, there is no indication that the government obtained or even sought extradition for visa and tax charges. [See A:41-65 (affidavits supporting extradition); A:66-67 (document authorizing extradition for xxxxxxx, likely similar to same document for xxxxxxx, which is missing)].
The doctrine of specialty, incorporated in the extradition treaty with Australia, prohibits the government from prosecuting xxxxxxx for any offenses other than those for which Australia agreed to extradite him. See, e.g., United States v. Rauscher, 119 U.S. 407, 424 (1886) (“right conferred upon persons brought from a foreign country” is to “be tried only for the offense for which he is charged in the extradition proceedings, and for which he was delivered up”); United States v. Sensi, 879 F.2d 888, 895 (D.C. Cir. 1989) (“doctrine of specialty requires a correspondence between the charges contained in the indictment and the facts presented to the British magistrate”); see also United States v. Khan, 993 F.2d 1368, 1373 (9th Cir. 1993). It was improper for the government to coerce defendant’s plea by threatening to prosecute visa and tax charges when it had no authority to pursue such charges in the first place. xxxxxxx would not have agreed to plead guilty absent these threats. [A:261-62].
D. The Guilty Plea Was Coerced By Government Representations to Counsel and Defendant’s Parents That the Sentence Would Be Six Years, and That the Government Would Allocute for a Six-Year Sentence
xxxxxxx’s plea should also be reversed because the government led Mr. Dietz and xxxxxxx’s parents to believe the sentence would be six years and that the government would request a six-year sentence, and because they passed that information on to xxxxxxx, who understood that the prosecutor would allocute for a six-year sentence. [A:257-59; A:276-77; A:313-18; 9/26/83 Tr. 6-7 & 15-18]; see McAleney v. United States, 539 F.2d 282, 284 (1st Cir. 1976) (affirming plea reversal where counsel told defendant government promised to allocute for particular sentence even if government did not make that promise); see also United States v. Watley, 987 F.2d 841, 847-48 (D.C. Cir. 1993) (misunderstanding that minimum and maximum sentences were both ten years required reversing plea); United States v. Russell, 686 F.2d 35, 41 (D.C. Cir. 1982) (prosecutor’s misrepresentation that plea to misdemeanor would not subject defendant to deportation required reversal of guilty plea). Alternatively, this case should be remanded to resolve a factual dispute about what xxxxxxx was told about the sentence and the government’s allocution. See, e.g., Machibroda v. United States, 368 U.S. 487, 493-94 (1962) (remanding for factual inquiry into allegations of prosecutor’s promises and threats made to induce plea); Hernandez-Hernandez v. United States, 904 F.2d 758, 761-63 (1st Cir. 1990) (remanding for factual inquiry into whether defense counsel, based on conversation with prosecutor, advised client that sentence would be ten years).
xxxxxxx would not have agreed to plead guilty had he not been misadvised regarding the applicable sentence, or absent the threats. [9/26/83 Tr. 6; A:257; A:261-62].
IV. DEFENSE COUNSEL HAD A SERIOUS, ACTUAL CONFLICT OF INTEREST AND WAS INEFFECTIVE IN CONNECTION WITH THE GUILTY PLEA BY MISREPRESENTING THE SENTENCE, FAILING TO PROVIDE PROPER ADVICE, AND FAILING TO ADVISE DEFENDANT REGARDING A MOTION TO WITHDRAW THE GUILTY PLEA
A. Standard of Review
To show ineffective assistance of counsel, xxxxxxx must demonstrate “that counsel’s representation fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
In reviewing ineffectiveness resulting from a conflict of interest, “[p]rejudice is presumed [ ] if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’” Strickland, 466 U.S. at 692 (citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)); see also Hill v. Lockhart, 474 U.S. 52, 57-59 (1985); United States v. Weaver, 2001 WL 1172685, *2 (D.C. Cir. October 5, 2001); Perillo v. Johnson, 205 F.3d 775, 781-82 (5th Cir. 2000); United States v. Taylor, 139 F.3d 924, 930 (D.C. Cir. 1998).
To challenge a guilty plea based on ineffective advice of counsel the defendant must show, consistent with Strickland, (1) “that counsel’s representation fell below an objective standard of reasonableness,” and (2) “that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 57-59 (1985); see also United States v. McCoy, 215 F.3d 102, 107-08 (D.C. Cir. 2000).
B. Defense Counsel Had An Actual, Severe Conflict of Interest With Defendant’s Father and Brother
Mr. Dietz had a severe conflict of interest between xxxxxxx and xxxxxxx’s father and brother, who were being threatened with indictment if xxxxxxx did not plead guilty. [A:197-99; A:290-91; A:313-14; A:328; A:666; 4/22/83 Tr. 5, 13, 25]. Mr. Dietz violated his professional responsibility by continuing to represent xxxxxxx in plea negotiations after he learned the government would waive prosecution of xxxxxxx’s father and brother in exchange for xxxxxxx’s plea. See, e.g., Griva v. Davison, 637 A.2d 830, 838 (D.C. 1994) (multiple representation involving different interests permitted “only if (1) it is ‘obvious’ that the attorney can adequately represent the interests of each [client] and (2) ‘each consents’ to the representation (3) after ‘full disclosure.’” (citing D.C. Code of Professional Responsibility (applicable before 1991))). Here, Mr. Dietz neither disclosed the conflict of interest nor withdrew from representation. Mr. Dietz also had a conflict of interest resulting from the fact that xxxxxxx’s father was paying his attorney’s fees. [A:666]; Wood v. Georgia, 450 U.S. 261, 271-72 (1981); Lipson v. United States, 233 F.3d 942, 946 (7th Cir. 2000); Amiel v. United States, 209 F.3d 195, 198-99 (2d Cir. 2000).
This conflict of interest adversely affected xxxxxxx, who was pressured to plead guilty by Dietz and his parents. For example, xxxxxxx’s first substantial meeting with Mr. Dietz took place approximately three weeks after the April 18, 1983, arraignment. [A:293]. At that meeting, Dietz told xxxxxxx about government threats against himself, his father and his brother and advised xxxxxxx to plead guilty to count ten, the CCE charge, but xxxxxxx “refused, telling [Dietz] that there was no way that he would ever do so, because he was absolutely not guilty of that offense.” Id. In addition, Mr. Dietz persuaded xxxxxxx to plead guilty, misrepresented the sentence, failed to advise xxxxxxx of numerous legal and factual claims, failed to advise xxxxxxx that he could move to withdraw his plea, failed to advise xxxxxxx of the right to appeal, and provided ineffective assistance at sentencing. His conflict of interest thus had a severe adverse effect on his representation of xxxxxxx.
C. Defense Counsel Misrepresented the Sentence Defendant Would Receive in Exchange for Pleading Guilty, Based on His Failure to Learn that a Prior North Carolina Misdemeanor Conviction Had Not Been Expunged
Mr. Dietz told xxxxxxx he would receive a six-year sentence. [A:257, A:276-77; 9/26/83 Tr. 6; 5/16/01 Tr. 45, 47, 49]. Dietz also told xxxxxxx he would be eligible for parole in 36 months, or two years counting time served. [9/26/83 Tr. 6]. These errors resulted from Dietz’s ineffective failure to learn that xxxxxxx’s prior North Carolina misdemeanor conviction——with respect to which Dietz had represented xxxxxxx——had not been expunged. [9/26/83 Tr. 5]. In addition, Dietz failed to predict the government would hold xxxxxxx responsible for more than one kilogram of cocaine. Mr. Dietz also told xxxxxxx the government had agreed to allocute for a six-year sentence, [A:257, A:277], and believed himself the government intended to allocute for six years. [9/26/83 Tr. 7 (expressing “shock” at government request for consecutive maximum sentences)]. xxxxxxx would not have pleaded guilty had he understood the applicable sentence or had he known the government intended to allocute for fifteen-year consecutive sentences. [A:259; A:262; A:288; A:298-99]. Dietz stated on the record that, had he not miscalculated the sentence, “the deal that was made, the plea that was entered, would not have been done.” [9/26/83 Tr. 6].
Mr. Dietz’s failure to learn the status of the North Carolina conviction and his advice that xxxxxxx would be eligible for parole in three years and receive a sentence of no more than six years was ineffective and requires reversal of the plea. This case is similar to the circumstances in Hill v. Lockhart, 474 U.S. 52, 57-59 (1985), where defense counsel was found to be ineffective for advising the defendant he would be eligible for parole after one-third of his sentence, when applicable law required service of one-half the sentence because the defendant had a prior conviction. See Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir. 1990) (en banc), affirming 877 F.2d 698 (8th Cir. 1989); see also United States v. Russell, 221 F.3d 615, 623 (4th Cir. 2000) (counsel ineffective in failing to learn status of prior convictions); United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (counsel ineffective in underestimating sentence exposure).
D. Defense Counsel Failed to Advise Defendant Regarding Merger of Several Counts In the Indictment Under the Double Jeopardy Clause, and Factual Defenses to Several Counts in the Indictment
Mr. Dietz was also ineffective in failing to advise xxxxxxx of valid legal challenges to some counts of the indictment and factual defenses to others. Dietz should have advised xxxxxxx that the conspiracy and CCE charges, counts one and ten of the indictment, merge under the Double Jeopardy Clause. See, e.g., Rutledge v. United States, 517 U.S. 292, 300 (1996) (§ 846 conspiracy is lesser included offense of § 848 CCE); Jeffers v. United States, 432 U.S. 137, 150 (1977) (same). Dietz also failed to advise xxxxxxx that counts two and three of the indictment should merge, since possession with intent to distribute is a lesser included offense of distribution under 21 U.S.C. § 841, unless the government proves facts distinguishing the two counts. See, e.g., United States v. Gore, 154 F.3d 34, 43 (2d Cir. 1998) (collecting cases); see also United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999); United States v. Sepulveda, 102 F.3d 1313, 1317 (1st Cir. 1996). In addition, he failed to advise xxxxxxx that counts three through five constitute one offense because they involved a single act of possession of several quantities of cocaine recovered from 2929 Ellicott Street on April 19, 1982. See, e.g., United States v. Johnson, 909 F.2d 1517, 1519 (D.C. Cir. 1990) (“Where . . . defendant possessed the same controlled substance in the same place at the same time, he committed only one act of possession.”)
Furthermore, Dietz failed to advise xxxxxxx of the elements of count three and the requirement that, to show possession, the government must prove xxxxxxx had dominion and control over the cocaine. [A:300-302]. Once he understood the meaning of constructive possession, xxxxxxx asserted his innocence of the charges in count three. Id. A valid factual defense to count three would also apply to counts two through five and eight and nine——each of which involved the April 19, 1982, transaction, activities leading up to that transaction, or drugs recovered from 2929 Ellicott Street——leaving only counts one and ten, the conspiracy and CCE counts which, as explained above, merge.
xxxxxxx thus agreed to plead guilty on the basis of a bargain that did not take into account the likely dismissal of several counts of the indictment and the strength of his legal and factual position at trial. If successful, xxxxxxx’s defenses would have left the government with a single count of conspiracy or CCE. xxxxxxx would have refused to plead guilty to two counts of the indictment had he known he might successfully have defended himself against all but one count. See, e.g., United States v. Loughery, 908 F.2d 1014, 1018-19 (D.C. Cir. 1990) (counsel’s failure to advise defendant of recent Supreme Court precedent precluding government from obtaining conviction on nine counts in indictment, which government dismissed in exchange for guilty plea, was ineffective and required reversal of plea); United States v. Streater, 70 F.3d 1314, 1321-22 (D.C. Cir. 1995) (counsel’s erroneous legal advice regarding consequences of client’s testimony at suppression hearing, causing defendant to waive trial, required reversing guilty plea).
E. Additional Ineffective Assistance of Counsel
Mr. Dietz was also ineffective in failing to advise xxxxxxx that government threats to indict family members and to bring visa and tax charges were improper, [A:258-59], and regarding the three-year term of special parole. Defense counsel were ineffective in failing to advise xxxxxxx he could move to withdraw his guilty plea prior to sentencing, particularly after Dietz admitted error regarding the North Carolina conviction and stated that the plea would not have been entered absent that error. [9/26/83 Tr. 4-7]. As explained below, xxxxxxx received ineffective assistance of counsel at sentencing. The district court found that counsel was ineffective in failing to advise xxxxxxx of the right to direct appeal. [A:668-70]. Yet another conflict of interest arose, therefore, between defendant’s interests and counsel’s interest in avoiding the disclosure of earlier ineffectiveness. See, e.g., United States v. Taylor, 139 F.3d 924, 932-33 (D.C. Cir. 1998) (failure to advise client of “advice of counsel defense” constitutes actual conflict of interest); Manning v. Foster, 224 F.3d 1129, 1134-35 (9th Cir. 2000) (failure to preserve client’s right to habeas corpus proceeding raising ineffectiveness constitutes “clear conflict” in light of “[lawyer’s] interest in protecting himself from the damage [a successful] outcome would do to his professional reputation and from exposure to potential malpractice liability or bar discipline”). Had he been correctly advised, xxxxxxx would have not pleaded guilty. [A:285; A:288; A:525; A:528].
Considered individually, some of xxxxxxx’s claims of coercion and ineffectiveness would normally require remand for factual inquiry. However, improper coercion of the plea through threats of visa and tax charges and Mr. Dietz’s ineffectiveness in misrepresenting the sentence are established by the original record on direct appeal. Here, where there is no plea transcript and where the claims supported by the record are sufficient to require setting aside the guilty plea, this Court should reverse without remanding.
V. THIS COURT SHOULD VACATE THE SENTENCE, WHICH WAS BASED ON FALSE AND UNRELIABLE INFORMATION IN VIOLATION OF DUE PROCESS AND FEDERAL RULE OF CRIMINAL PROCEDURE 32, AND RESULTED FROM INEFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH SENTENCING
A. Standard of Review
Rule 32 and due process were not argued at sentencing. Therefore, the district court’s decision is reviewable for plain error, or error that is clear, prejudicial, and affects the “fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732-37 (1993). This Court requires a “less exacting” showing of prejudice to find plain error at sentencing. United States v. Saro, 24 F.3d 283, 287-88 (D.C. Cir. 1994). Ineffective assistance of counsel at sentencing, like other ineffectiveness, is reviewed pursuant to Strickland v. Washington, 466 U.S. 668 (1984).
B. The District Court Plainly Erred At Sentencing In Failing to Resolve Factual Disputes and Relying On Disputed Government Allegations, In Violation of Due Process and Federal Rule of Criminal Procedure 32(c)(3)(D)
xxxxxxx has a right under Fed. R. Crim. P. 32(c)(3)(D) not to be sentenced on the basis of inaccurate facts. That rule was amended effective August 1, 1983, shortly before xxxxxxx’s sentencing, to provide:
If the comments of the defendant and his counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. . . .
Rule 32(c)(3)(D) (1983) (emphasis added). The August, 1983, amendments to Rule 32 contained significant changes including granting——for the first time——the right to defense counsel and defendant to read the presentence report. See Rule 32 advisory committee’s note (1983 amendments). Defendants at that time still did not have the right, however, to obtain a copy of that report.
In addition to his rights under Rule 32, xxxxxxx has a due process right to be sentenced without reliance on false and unreliable allegations. See, e.g., United States v. Mannino, 212 F.3d 835, 845-46 (3d Cir. 2000) (“beyond dispute” that sentence “based on legal and/or factual error” violates due process); United States v. Chaikin, 960 F.2d 171, 174-75 (D.C. Cir. 1992) (pre-Guidelines Rule 32 protects “‘a defendant’s due process rights to be sentenced on the basis of accurate information’” (citations omitted)); United States v. Lemon, 723 F.2d 922, 932-33 (D.C. Cir. 1983) (due process requires that sentence “not be based on ‘improper or inaccurate information’” (citations omitted)).
At sentencing, as explained above, the government submitted factual allegations that were false and unreliable. The PSR cited speculative and unsupported allegations by xxxxxxx, Finkel and xxxxxxx, and by the prosecutor, stating only that xxxxxxx “reportedly” was the brains behind the conspiracy and that he “allegedly” purchased cocaine in kilogram quantities. [A:122]. In its sentencing memorandum, the government repeats those assertions and adds claims made then by xxxxxxx, who now recants her statements. The assertions repeated in both documents are unsupported by evidence and strenuously contested by xxxxxxx. In addition, the government incorrectly cited the PSR as stating that xxxxxxx “has been involved in drug dealing for at least ten years,” and incorrectly claimed that xxxxxxx was convicted in North Carolina of possessing half a pound of cocaine. [A:134-35; 9/26/83 Tr. 18-19; see A:334 (guilty plea to misdemeanor possession of “less than 1 gram” of cocaine)]. After his attorneys failed to dispute the government’s unreliable allegations, xxxxxxx——who had only seen the government’s sentencing memorandum five minutes before sentencing and did not have a copy of the PSR——contested those facts to the best of his ability, stating for example: “I didn’t plead guilty to everything they have written about me” and “there are so many things they say in here that are completely untrue.” [9/26/83 Tr. 12-13].
The district court was or should have been aware that xxxxxxx did not have a copy of the PSR and that he suffered from psychiatric problems, and should have taken those circumstances into consideration in considering xxxxxxx’s allocution. The government’s sentencing memorandum relied on the PSR, [A:130; A:134-35], and the PSR, which stated only the prosecution version of the offense, relied in turn on significant information from the prosecutor. [A:120-22]. xxxxxxx’s comments and the defendant’s version of the offense call into question allegations made in both documents——allegations federal courts in Pennsylvania rejected as a rational basis for factual findings when cited by the Parole Commission. xxxxxxx v. Lansing, 839 F.2d at 937-39.
Instead of resolving factual disputes and determining the reliability of the government’s allegations, the district court relied on the PSR and the government’s sentencing memorandum in imposing sentence. [9/26/83 Tr. 20 (“I have reviewed the sentencing memorandum filed by the United States Government”); 23 (“I have no question that the Government has shown that you are engaged in substantial dealings in cocaine”); 24 (basing sentence on “the nature and extent of the distribution of cocaine in this case [and] the allegations in the pre-sentence report and the background”)]. The court heard Mr. Dietz admit that he miscalculated the sentence because he failed to determine the status of the North Carolina misdemeanor conviction, and that the plea would not have been entered absent that error. The court was or should have been aware by the time of sentencing that counsel had a conflict of interest. The court’s error in failing to resolve the disputes and in relying on facts alleged by the government that were disputed by xxxxxxx violates Rule 32 and due process. See, e.g., United States v. Graham, 83 F.3d 1466, 1477 (D.C. Cir. 1996); Chaikin, 960 F.2d at 175; Lemon, 723 F.2d at 942-43. As this Court stated in United States v. Lemon, 723 F.2d 922, 933 (D.C. Cir. 1983), “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.’” 723 F.2d at 933 (citing United States v. Bass, 535 F.2d 110, 118 (D.C. Cir. 1976)). In this case the government’s allegations were false and unreliable and the court’s error was plain, prejudicial, and should be corrected to preserve the integrity of judicial proceedings.
C. xxxxxxx’s Attorneys Were Ineffective in Failing to Dispute Facts Alleged by the Government at Sentencing and In Failing to Keep xxxxxxx Informed of Those Facts
xxxxxxx’s attorneys were ineffective in failing to dispute the government’s statement of facts in the presentence report and in the government’s sentencing memorandum. Mr. Dietz erroneously represented to the court that he and his client found the presentence report to be “fairly accurate.” [9/26/83 Tr. 4]. Mr. Cacheris similarly did not specifically dispute allegations in the PSR and the government’s sentencing memorandum. Id. at 10-12. Counsel were ineffective in advising xxxxxxx to submit a very brief version of the offense that did not specifically dispute facts in the presentence report. The attorneys were also ineffective in failing to show xxxxxxx the sentencing memorandum earlier than five minutes before the sentencing hearing and failing to seek a continuance to permit xxxxxxx to dispute government allegations effectively. Furthermore, his attorneys were ineffective in failing to dispute the PSR’s calculation of xxxxxxx’s parole eligibility based on application of a category six offense for one-to-five kilograms of cocaine.
In United States v. Pinkney, 551 F.2d 1241 (D.C. Cir. 1976), this Court outlined the requirements for effective representation at sentencing. Those requirements include familiarization with all available presentence reports and summaries, an attempt to verify information contained in such reports, and a challenge to that information based on “any ground which will assist in reaching a proper disposition favorable to the accused.” Id. at 1250-51. Effective representation also requires counsel to consult with the client before sentencing, keep the client fully informed, and utilize the client’s “knowledgeable participation.” Id.; see also Arredondo v. United States, 178 F.3d 778, 788 (6th Cir. 1999) (failure to dispute presentence report was ineffective). Compounding the ineffectiveness associated with plea negotiations, failure to advise xxxxxxx of the right to appeal and the right to seek pre-sentence withdrawal of the defective plea, xxxxxxx’s attorneys failed to provide effective assistance at sentencing. There is a reasonable probability that, had counsel provided effective representation, defendant would have received a lower sentence.
For the reasons stated above, defendant respectfully requests that this Court vacate his plea of guilty or, if the plea is not vacated, to remand this case for factual inquiry and resentencing.
FEDERAL PUBLIC DEFENDER
Beverly G. Dyer
ASSISTANT FEDERAL PUBLIC DEFENDER
Counsel for Appellant
625 Indiana Avenue, NW
Washington, D.C. 20004
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(B)
I hereby certify that this brief contains 13,993 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 October 26, 2001, two copies of the foregoing brief for appellant xxxxxxx xxxxxxx xxxxxxx, Jr., and one copy of the accompanying Appendix were served by hand on John R. Fisher, Chief, Appellate Division, United States Attorney's Office, 555 Fourth Street, N.W., Room 8104, Washington, D.C. 20001.
Beverly G. Dyer