Opinion
00 Civ. 8700 (LBS), S2 99 Cr. 333 (LBS).
December 20, 2000
MEMORANDUM AND ORDER
At the time of his sentence, Petitioner Leonicio Restituyo urged that this Court follow the precedent established by Judge Martin in United States v. Fernandez, 2000 WL 534449 (S.D.N.Y. May 3, 2000) and impose a lighter sentence because of the inadequacy of representation Restituyo allegedly received from his prior counsel. This Court noted at the time of sentencing that Judge Martin took such action only after a hearing had been held before him, and so the more appropriate way to proceed in the instant case was for the Court to proceed to sentence Restituyo, of course without prejudice to the commencement of a motion pursuant to 28 U.S.C. § 225 alleging inadequate representation and seeking a hearing. That motion is now before the Court after the holding of an evidentiary hearing.
I BACKGROUND AND PROCEDURE
Before turning to the merits of the claim, it is useful to note the factual differences between this case and Fernandez. In the case before Judge Martin, the court found that Fernandez was not adequately represented because his attorney failed to discuss with his client the opportunity to cooperate with the Government and the ensuing benefits that would have accrued to Fernandez. Judge Martin was able to conclude that if Fernandez had been adequately represented, he would have cooperated. Judge Martin was also able to calculate what sentence he would have imposed on defendant had he cooperated and imposed sentence on Fernandez at this lower amount.
Here Petitioner's claim is that he was told by his former counsel not to disclose to the Government certain prior serious federal criminal conduct during his proffer sessions with the Government. He claims that he fully disclosed this conduct to his counsel and expressed a desire to "come clean" and disclose this prior conduct to the Government, but was told by counsel not to do so. The Petitioner did, however, tell the Government of his extensive prior sales of narcotics, not otherwise known to the Government.
The Petitioner had been arrested for selling 300 grams of heroin which would have subjected him to a maximum sentence of 40 years. He disclosed to the Government, and acknowledged in his plea agreement, sales of ten kilos of drugs and the use of firearms, which subjected him to a maximum sentence of life imprisonment. The Petitioner pleaded to a superseding Information alleging the greater quantities of narcotics that he had admitted having sold.
The Petitioner did not disclose the other non-narcotic criminal conduct. The Government did learn of this conduct, however, from other sources. As a consequence, the Government withheld a motion under sentencing guideline 5K1.1 because Petitioner had violated the provision in his cooperation agreement requiring disclosure of all prior criminal conduct. Absent a 5K1.1 motion, Petitioner was subject to a mandatory minimum sentence of ten years' imprisonment, which was the sentence, in fact, imposed by this Court.
Petitioner's prior counsel had sought a "safety value" downward departure pursuant to U.S.C.G. § 5C1.2 and 18 U.S.C. § 3553(f). However, Defendant's admission to possession of a firearm in connection with the offense rendered that provision inapplicable.
The Petitioner thus had the worst of all possible outcomes: (1) his disclosures resulted in an increase, indeed a doubling, of the mandatory minimum sentence; and (2) he received no benefit from his attempts to cooperate.
Unlike Fernandez where Judge Martin was able with considerable exactitude to determine what would have occurred had defendant been adequately represented, no such precision exists here. If Petitioner's prior counsel had adequately advised him of the consequences of not making a full disclosure and urged him to tell all (which Petitioner claims did not occur):
(1) Petitioner might not have cooperated and either pleaded guilty or gone to trial on the original 300 gram charge.
(2) Petitioner might have disclosed all of his prior criminal conduct and as a consequence, as a matter of the standard practice followed by the United States Attorney's Office in the Southern District of New York, would have been required to plead to this additional criminal conduct. The sentencing guideline range would then have gone up, but a motion under 5K1.1 would have enabled imposition below the guideline or mandatory minimum.
Thus, the conditions which enabled Judge Martin to determine an appropriate sentence are not present here. We do not know what option Petitioner would have chosen. We do not know what the guideline range would have been or the likely sentence the Court would have imposed — indeed at Petitioner's request we do not know the nature of the undisclosed criminal conduct except for a stipulation that it was a serious, non-narcotics federal crime.
The relief sought by the present motion under § 2255 is for a vacation of the previously imposed sentence and a resentencing of Petitioner. But it is clear that, assuming arguendo that Petitioner prevailed on the merits, this relief would not be available. Where a client receives inadequate advice from counsel, the proper remedy is to restore the client to the status he occupied prior to making the ill-advised decision. Here the appropriate remedy would be to enable the guilty plea to be withdrawn. Such relief is not sought by this motion.
II The Merits
Petitioner was arrested in March 1999 and was represented initially by court-assigned counsel. He told his first counsel only about the facts of his present case and did not disclose to him his prior criminal conduct. While represented by his first counsel, Petitioner commenced discussion with the Government.
After having engaged in some discussions with the Government, Petitioner, still intending to pursue cooperation with the Government, retained Jack Sachs. Petitioner testified that at first he did not tell Sachs of his prior criminal conduct (other than drug dealing) but that he did do so on July 19, 1999. Prior to this occasion, at one or two proffer sessions with the Government, he was asked about prior criminal conduct and said nothing.
Here the versions told by Petitioner and Sachs, both of whom testified at the hearing, are critically different. Petitioner claims that questioning by the Government led him to tell Sachs, on July 19, 1999, about the previously undisclosed conduct and that Sachs told him not to say anything of this to the Government, giving no reasons for this advice. Petitioner states that he had further meetings with the Government after July 19th, at which Sach was present, when he was asked about prior criminal conduct and denied such conduct. Petitioner contends that he repeatedly told Sachs that he wanted to make this disclosure and that Sachs said "no," or that it was "not convenient" or "the right time" to do so.
In November, the Government met with Petitioner to prepare him for testimony he was to give at a trial of someone Petitioner had implicated. Petitioner had agreed that Sachs did not have to be present at this meeting. During that meeting, Petitioner testified he told the Government attorneys that he had something to tell them, but that his attorney had to be present. The attorneys attempted to reach Sachs, but he was out of his office and Petitioner returned to prison without making any disclosure. Sachs thereafter visited Petitioner who told him that he wanted to talk and "be clean," but Sachs told him to be calm and that it was not the "right time" for disclosure.
At a subsequent and final meeting with the Government, at which Sachs was present, the Government confronted Petitioner with evidence of his prior conduct. The Petitioner did not immediately admit this conduct but conferred privately with Sachs after which he admitted to the Government that he had engaged in the prior conduct.
Jack Sach's version of the events is quite different. An experienced criminal defense attorney, he testified that he was fully conversant with the guidelines and the practices of the United States Attorney's office in the Southern District. These require that a cooperator must reveal all prior criminal conduct so that the Government is not taken by surprise if defense counsel seek to impeach him when he appears as a cooperating witness at trial. Also, if there is full disclosure, the cooperating defendant can get the benefit of having all conduct included in the 5K1.1 motion. Sachs testified that, in his experience, defendants who voluntarily disclose serious criminal conduct, of which the Government has no prior knowledge, fare better at sentencing than if they had not made such disclosures. This Court's experience with sentencing is consistent with this testimony.
Sachs testified that when he and Petitioner first began discussing cooperation, he advised Petitioner that everything had to be disclosed although he did not discuss with Petitioner what he had in fact done in the past.
Sachs, who speaks Spanish, read to Petitioner in Spanish (Petitioner's native tongue) the cooperation agreement which specifically requires full disclosure. Sachs recalls no discussion with Petitioner on that subject. Sachs asserts that the first time he learned of the undisclosed prior conduct was sometime after the cooperation agreement had been signed when Petitioner was questioned "forcefully" by a detective and Petitioner admitted the conduct.
Thus, in the end, the issue becomes one of the credibility of the two witnesses and we accept the testimony of Sachs for a number of reasons, of which witness demeanor is one. We agree with Sachs that it is advantageous to a cooperating defendant to make a complete disclosure. The benefits of such disclosure are real and, as this case sadly illustrates, the dangers of incomplete disclosure are great. We do not believe that Sachs would sit quietly at a proffer session knowing that his client was deliberately giving false answers to questions about his prior conduct.
Sachs told Petitioner, Petitioner admits, to disclose all of his prior drug dealings, even though doing so doubled the mandatory minimum sentence to which he was subject. The entire object of the cooperation was to obtain the 5K1.1 letter — a goal which non-disclosure would have jeopardized.
Sachs read to Petitioner the language of the cooperation agreement requiring all disclosure and it seems unlikely that that would not trigger some comment from Petitioner had the two been aware that Petitioner was engaged in conscious withholding of information.
The Government asked Petitioner if it was not the case that he learned on November 12th that one of the participants in the undisclosed conduct had turned himself in to the police and Petitioner denied that this was the case. There is, therefore, no evidence that this, in fact, occurred. But what seems clear is that Petitioner's deliberate withholding of information from the Government was the result of his own misguided beliefs as to what was in his best interest, and not because of any advice he received from counsel. Petitioner admits that he did not tell his first court-assigned counsel of the prior conduct, even though his discussion with the Government began prior to Sach's retention. We find that he also did not tell this to his second counsel.
We find that there is no basis to conclude that Petitioner received inadequate representation throughout these proceedings.
The motion is denied.
SO ORDERED.