Opinion
CRIMINAL NO. 98-187 (CC)
May 24, 2000.
Warren Vázquez, Assistant U.S. Attorney, Appllant Counselors.
Frank D. Inserni, Esq., Appellee Counselors.
REPORT AND RECOMMENDATION
Above defendant has pleaded guilty to Count 2 of the Indictment before Honorable Magistrate Judge Arenas on November 23, 1998. He was therein represented by Attorney Ramon Gonzalez Santiago. The sentencing hearing was originally set for April 29, 1999 (D.E. #56).
Aiding and possessing with intent to distribute approximately 2, 492 grams gross weight of heroin, a Schedule 1 Narcotic Drug Controlled Substance.
Defendant submitted himself to debriefing by government agents on April 22, 1999, in order to benefit from the safety valve provisions. 18 U.S.C. § 3553(f). On April 28, 1999, the government filed an opposition to the application of the safety valve provision as to this defendant (D.E.#70). It was based on claimed contradictory statements given to the agents during the debriefing. Mainly, the defendant "failed to candidly reveal and identify other persons involved in the drug transaction to the government, some of which still remain at large, and opted to provide contradictory and conflicting statements." As such, the government prompted that the defendant should be sentenced to not less than the statutory minimum sentence of one hundred and twenty (120) months instead of the expected Sentencing Guideline upon the departure of the safety valve that would have carried a sentence of imprisonment of 70 through 87 months. The defendant otherwise met all statutory requirements of the safety valve insofar as having no criminal history category over one (1) and being considered a minor participant, no aggravated role..
. . . without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that —
(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense . . .
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
It was claimed defendant indicated he was transported to the hotel to meet the courier in a white two doors Mitsubishi, instead of the white four doors Volvo the agents observed during surveillance.
The government has also raised among a few other issues, that defendant indicated he met codefendant's husband at the time of the arrest, when in fact he was already under custody at MDC facilities. Still, there was an undercover agent at the room posing as said codefendant's husband.
As to whether an aunt of the defendant knew the individual referred to as "Primo" who contracted for the pick up of the drugs or defendant understood knowing in the sense of being acquainted or having seen him once and responding to the agents in the negative, seems of no significant consequence.
At the plea hearing the government had also agreed it will not object at the time of sentencing that defendant be sentenced at the lower end of the applicable guideline, namely, 70 months. Transcript 02-16-00, p. 10.
Upon verification with the Probation Service Department, the defendant has been attributed under the plea the full 2,492 grams of heroin in Count 2, he has no prior record and was considered a minor participant.
In light of the above government's opposition, defendant requested on April 29, 1999, that his sentence be continued in order to adequately respond to the government's motion (D.E. #71). The court allowed the continuance on May 3, 1999, and granted defendant until May 20, 1999, to file a reply. The sentence was reset for June 9, 1999 (D.E. #72). The opposition was timely filed addressing in particular the alleged discrepancies of defendant's statements to the agents during the debriefing session (D.E. #73). The court ordered defendant be submitted to another debriefing in order to afford him an opportunity to comply with the safety valve provision (D.E. #74). The sentencing hearing was then vacated. The government requested on June 28, 1999 (D.E. #75), an extension to reply to defendant's explanatory motion, without indicating if the debriefing ordered had been conducted. The court thus granted the government 15 days to inform (D.E. #76). The government filed such a reply on July 20, 1999 (D.E. #77), again opposing the application of the safety valve provision. Insofar as the second debriefing, the government was to inform the court in writing the results of same once it was carried out. See motion filed July 23, 1999, and therein the government requested the court to hold in abeyance its previous response, pending such second debriefing (D.E. 78). It was granted on July 30, 1999. A seal pleading was filed September 30, 1999, in regard to this defendant (D.E.# 81).
By October 26, 1999, the defendant pro-se filed a Motion for Plea Withdrawal Pursuant to Rule 32(e). (D.E. #87). It is therein stated that defendant did not knowing, intelligently and voluntarily entered his plea. The grounds, among others, was that counsel failed to property advice as to the fact that defendant will be attributed the entire amount of drugs in the conspiracy, which was to be determined as relevant conduct for sentencing purposes, that the presentence report was not discussed with the defendant, and that he was not aware of the full consequences of his plea.
Counsel González requested to withdraw as defendant's legal representative on November 10, 1999 (D.E. #89). Having accepted the resignation of counsel, the court was to conduct an inquiry to appoint new counsel for this defendant (D.E. #90) and the necessary financial affidavit was submitted on December 8, 1999 (D.E. #92). On December 29, 1999, the issue of appointment of counsel was referred to this magistrate (D.E. #98) and a hearing was set for January 5, 2000 (D.E. # 99) wherein the request was granted (D.E. #100). Attorney Frank Inserni was selected at random to represent the defendant.
The motion related to withdrawal of defendant's plea was referred to the magistrate on January 26, 2000 (D.E. #105). Counsel Inserni requested time to amend the pro-se motion for withdrawal of the plea until such time as a transcript of the plea proceedings could be examined (D.E. #110). The transcript was ordered and appeared filed on February 16, 2000 (D.E. #119). Meantime, new counsel was to inform this magistrate if there was a need to supplement defendant's motion (D.E. #111). An additional extension of time requested was granted (D.E. #115, 120) and a final extension was allowed on April 3, 2000 (D.E. #127) wherein counsel Inserni was apprised that the defendant's motion would be considered submitted as filed pro-se (D.E. #127). See also further request for extension (D.E. #128, 129), still without the benefit of new counsel's position.
Thus, the record clearly shows reasonable explanation for what may seem a protracted resolution of defendant's petition to withdraw his plea but all to the benefit of the defendant's pro-se status.
A prisoner's pro-se complaint, however inartfully pleaded, is held to less stringent standards. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594 (1972). See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 (1976).
A perusal of the change of plea hearing indicates the defendant, although advised of the maximum penalties for Count 2, was also informed of the applicable sentencing guideline, considering a base offense level of 32 and the application of the safety valve provisions of Section SC1.2 (Trans. 2-16-00, p. 9-10, 11). The defendant indicated at the time he did not know codefendant, the drug courier from Colombia, was bringing heroin internally in her body because he had just been sent to pick her up by an individual he only knows as "Primo" (Id. p. 14). The courier had by then already expelled, under the medical and law enforcement supervision, some 1,233.5 grams of heroin and had agreed to cooperate with the agents. Once defendant Armstrong entered the female drug courier's room, he was given said codefendant's black purse which contained approximately 30 grams of heroin and mock pellets. He was then arrested.
Although an examination of the available record might allow the sentencing court to rule on the application of the safety valve provision, if defendant's plea is considered voluntary and binding, this magistrate finds the totality of the circumstances warrants that the defendant's plea should be set aside for not being fully knowing and voluntary.
This defendant had admitted and at the Pretrial Service level was verified, he had an alcohol, as well as a heroin and cocaine abuse problem. Most of the inconsistencies in the defendant's debriefing statements were explained and could have been reasonably attributed to his controlled substance abuse at the time of his arrest regarding his recollection of events during the offense.
United States v. Marrero-Rivera, 124 F.3d 342, 348 (1st Cir. 1997).
For a defendant to be allowed to withdraw a plea, the court should consider four elements; the plausibility of the proffered reason, the timing of the attempted retraction, the presence or absence of a protestation of innocence, and whether the circumstances cast serious doubt on the bona fides of the original plea. United States v. Torres Rosa, 2000 WL 298569 (1st Cir. 2000); United States v. Doyle, 981 F.2d 591 (1st Cir. 1992).
The defendant filed his motion to withdraw his guilty plea prior to the imposition of his sentence. The timing has been proper. United States v. Gonzalez-Vazquez, 34 F.3d 19 (1st Cir. 1994). He was prompted by the government's filing opposing application of the safety valve provisions and has presented a showing of a fair and just reason for permitting the retraction.United States v. Parrilla Tirado, 22 F.3d 368 (1st Cir. 1994). See Rule 32(f).
The defendant has presented in his pro-se petition that ineffective assistance of counsel caused his plea to accept attribution of the totality of the drug conspiracy insofar as the 2,492 grams of heroin.
In addition, the defendant could be considered to have been misled insofar as eligibility for sentencing under the safety valve statute. United States v. Hernández-Wilson, 186 F.3d 1 (1st Cir. 1999).
Guilty pleas must be knowing and voluntary with an understanding of the nature of the charge and its consequences. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166 (1969). One of the issues of a Rule 11 hearing is the defendant's full knowledge of the consequences of his plea, to wit, his eligibility to the safety valve provision. United States v. Cotal-Crespo, 47 F.3d 1 (1st Cir. 1995). The reliability of the defendant being credited under the safety valve, and the plausible explanations for the contradictions of statements during debriefing, favors the claim regarding the factors of knowing, voluntary and intelligent nature of the consequences of his plea. To ascertain if a defendant has made a knowingly, voluntary and intelligent plea, it should be considered whether at the time there was an absence of coercion, an understanding of the charges, and a knowledge of the consequences of the plea. United States v. Gray, 63 F.3d 57-60 (1st Cir. 1995).
It is thus recommended that considering the totality of the circumstances in the present case, defendant be allowed to withdraw his plea.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986).
IT IS SO RECOMMENDED.