Opinion
CASE No. 5:06cr00029-6.
October 3, 2006
REPORT AND RECOMMENDATION
In accordance with the provisions of Title 28 U.S.C. § 636(b)(3) and upon the defendant's informed and written consent, this case was referred to the undersigned for the purpose of conducting a plea hearing.
The Grand Jury previously returned a multiple count Indictment charging the defendant in Count One with conspiracy to distribute more than fifty (50) grams of cocaine base ("crack") in violation of Title 21, United States Code, Sections 841(b)(1)(A) and 846; and in Count Eight with participation on or about April 13, 2006 in the unlawful distribution of cocaine base in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C) and Title 18, United States Code, Section 2. The defendant had been previously arraigned and entered pleas of Not Guilty to each of these charges. A Superseding Indictment was thereafter returned by the Grand Jury on September 27, 2006, which charged this defendant with the identical charges in the same numbered counts.
All references hereinafter to the "Indictment" are intended to refer to the Superseding Indictment, copies of which had been proved to the defendant and to defendant's counsel by the U. S. Attorney's Office prior to this hearing.
The plea hearing was conducted before the undersigned on October 2, 2006. The defendant was present in person and with his counsel, Rhonda Quagliana. The United States was represented by Donald R. Wolthuis, Assistant United States Attorney. The proceedings were recorded by a court reporter. See Rule 11(g). After the undersigned made a Rule 11 inquiry and the Government presented evidence for the purpose of establishing an independent basis for the plea, the defendant entered a plea of guilty to Count One of the Indictment, and the Government agreed to dismiss the remaining Indictment count against the defendant upon acceptance of the plea.
A. DEFENDANT'S RESPONSES TO RULE 11 INQUIRY
At this hearing, the defendant was placed under oath and addressed personally in open court. He expressly acknowledged that he understood that he was obligated to testify truthfully in all respects under penalty of perjury and that he understood the government's right, in a prosecution for perjury or false statement, to use against him any statement given under oath by him. See Rule 11(b)(1)(A).
The defendant testified concerning the following personal information: his full legal name is Jerry Wayne McCorkle, II; he is twenty-four (24) years of age; he completed the 12th grade; he has no medical condition, either physical or mental, which might interfere with his ability to understand and participate fully in the proceedings; he is using no alcoholic beverage, medication or drug which might impair his ability to understand and participate fully in the proceedings; his mind was clear; and he understood that he was in court for the purpose of entering a plea of guilty which he could not later withdraw. The defendant's attorney represented to the court that she had no reservations about the defendant's competency to change his plea and to enter a plea of guilty.
The defendant testified that he had received a copy of the indictment, that he had discussed the charges in detail with his attorney, that he understood each of the charges against him, that he understood each charge to be a felony, that he had been given adequate time to prepare any defenses he might have to the charges contained in the Indictment, that he was fully satisfied with the services of his attorney, and that it was his intention and desire change his prior plea and to enter a plea of guilty to one of the charges against him.
The attorney for the government informed the court that the defendant's proposed plea was to be made pursuant to a written plea agreement. The government's understanding of the plea agreement was then stated in some detail, including the agreement for the government to dismiss Count Eight of the Indictment upon acceptance of defendant's plea of guilty to Count One of the Indictment (¶¶ 2-3), the terms of the agreement's acceptance of responsibility provision (¶ 6), the defendant's obligation to pay a mandatory $100.00 assessment (¶ 7). the sentencing recommendation terms (¶ 5), the agreement's evidence proffer terms (¶ 8)), the defendant's obligation to provide a financial statement (¶ 9), the defendant's waiver of his right to appeal any sentence and waiver of his right to jury determination of any guidelines issues (¶ 4), the defendant's waiver of any right to appeal sentencing guideline issues (¶ 10), the defendant's waiver of any right to make any 28 U.S.C. § 2255 attack on the judgment or any part of the sentence in this case (¶ 11), the terms of the agreement's substantial assistance provision (¶ 16), and the substance of the agreement's other terms (¶¶ 12-15 and 17-21).
After which, the defendant was again addressed in open court, and he stated his understanding to be the same as that set forth by the government's attorney. Counsel for the defendant also represented that her understanding of the plea agreement was the same as that set forth by the government's attorney, and she further represented that she had reviewed each of the terms of the plea agreement with her client and she was satisfied that the defendant understood all of its terms.
The defendant was then shown the original of the plea agreement; and he affirmed it to be his signature on the document. He further testified that no one had made any other, different or additional promise or assurance of any kind in a effort to induce him to enter a plea of guilty in this case and that no one had attempted in any way to force him to plead guilty in this case. The plea agreement was then received, filed and made a part of the record, and the undersigned noted for the record that the written Plea Agreement constituted the best statement of its terms, and as such it "speaks for itself."
The defendant testified that he understood and acknowledged that he was proposing to plead guilty to the felony of participating in a criminal conspiracy to distribute more than fifty (50) grams of crack cocaine in violation of 21 U.S.C. § 846. See Rule 11(b)(1)(G). After the attorney for the government informed the defendant of the mandatory minimum penalty provided by law for the offense charged in Count One of the Indictment, the defendant acknowledged unequivocally that he understood ten (10) years imprisonment to be the mandatory minimum penalty which the court would be required to impose if his plea of guilty was accepted to Count One. See Rule 11(b)(1)(I). The attorney for the Government further informed the defendant of the maximum possible penalty provided by law for the offense charged Count One of the Indictment, and the defendant expressly acknowledged that he understood the maximum possible penalty provided by law for conviction of the felony set forth in Count One of the Indictment to be confinement in a Federal penitentiary for the remainder of his life and a $4,000,000.00 fine. See Rule 11(b)(1)(H). The defendant again testified that he fully understood the charge to which he proposed to plead guilty, that he knew it was a felony; that he knew and understood both the minimum and maximum penalties, including the mandatory special assessment he faced if convicted, and that his plea, if accepted, would result in him being adjudged guilty of the offense which may deprive him of valuable civil rights, such as the right to vote, the right to hold public office, the right to serve on a jury, and the right to possess any kind of firearm.
The defendant was informed that he could be sentenced to less than ten years imprisonment if the government makes a motion pursuant to 18 U.S.C. § 3553(e) on his behalf, or if he qualifies for the "safety valve" set forth in 18 U.S.C. § 3553(f).
The defendant testified that he and his attorney: had talked about how the Sentencing Commission Guidelines might apply to his case, including the obligation of the court to consider these Guidelines and the court's discretion to depart from them under certain circumstances and in accordance with applicable decisions Federal appellate courts. See Rule 11(b)(1)(M); and United States v. Booker, 543 U.S. 220 (2005). He stated that he understood that the court will not be able to determine the sentence for his case until after the presentence report had been completed and he and the government each had an opportunity to challenge the facts reported by the probation officer.
The defendant was informed, and he expressly acknowledged, that the court's determination of his sentence would include consideration of multiple factors, including: the nature and circumstances of the offense; the defendant's history and characteristics; any congressionally established objectives of sentencing, the need to protect the public, the need for any sentence which might be imposed to reflect the seriousness of the offense, the need to promote respect for the law, the need to provide for a just punishment, the need to afford adequate deterrence, the need to protect the public, any need provide the defendant with educational or vocational training, medical care or other correctional treatment in the most efficient manner; the kinds of available sentences; the pertinent sentencing guidelines and policy statements; the need to avoid unwanted sentence disparities; and any need to provide restitution.
He acknowledged that he understood that the court may order him to make full restitution to any victim and may require him to forfeit certain property to the Government. See Rule 11(b)(1)(J)-(K). He stated that he knew that he would be required to pay the mandatory One Hundred Dollar ($100.00) special assessment. See Rule 11(b)(1)(L).
The defendant expressly acknowledged that, by pleading guilty to Count One, he was waiving his right to have a jury determine beyond a reasonable doubt the facts alleged therein, including those related to sentencing. He, likewise, expressly acknowledged that pursuant to the plea agreement (¶¶ 10 and 11) he was waiving his right to appeal his conviction, his right to appeal any guideline sentencing issues, his right to appeal any sentence of the court within the guideline range on the ground that the sentence is unreasonable, and his right to challenge his conviction and/or sentence in any post-conviction proceeding.
Each of the defendant's procedural rights surrendered on a plea of guilty was also explained, including: his right to persist in his previous pleas of not guilty to the offenses charged against him; his attendant right to a trial by jury and right to be represented and to have the assistance of counsel at trial and at every other stage of the proceeding; his right at trail to see, to hear, to confront and to have cross-examined all adverse witnesses; his right to be protected from compelled self-incrimination; his right to testify and to present evidence in his defense; his right to the issuance of subpoenas, or compulsory process, to compel the attendance of witnesses to testify in his defense; his presumption of innocence; the obligation of the government to prove his guilt beyond a reasonable doubt; the right on his part to decline to testify unless he voluntarily elected to do so in his own defense; and his right to have a unanimous guilty verdict. See Rule 11(b)(1)(B)-(E).
The defendant testified that he understood his right to persist in his plea of not guilty and the attendant rights that he would waive by pleading guilty. See Rule 11(b)(1)(F). He stated that he understood by entering a guilty plea there would be no trial and, if accepted, there would be only one more hearing where the District Judge would determine whether there was a factual basis for his plea and what sentence to impose.
He acknowledged that he knew his entry of a guilty plea constituted an admission of all of the elements of a formal felony charge. He acknowledged that he knew, irrespective of any sentence imposed by the court, he would have no right to withdraw his plea of guilty, that he knew parole had been abolished, that he knew he would not be released on parole, that he knew any sentence of incarceration would include a period of "supervised release," and that he knew any violation of the terms or conditions of "supervised release," which typically would last at least five years in his case, could result in his being returned to prison for an additional period of time.
The defendant further testified that he was pleading guilty because he was in fact guilty of the crime charged Count One of the Indictment.
To permit the court to determine that a factual basis exists for the pleas, counsel for the government called DEA Special Agent Kenneth R. Rosel as a witness. After being duly sworn, SA Rosel testified that as part of his official duties he participated in the investigation that led to the arrest and prosecution of the defendant. After reviewing a document entitled "Government's Summary of Evidence," SA Rosel testified that it accurately summarized the evidence which had been developed during the investigation and which the government was prepared to present at trial. A copy of this six-page written summary of the government's evidence was then filed, without objection, and made a part of the record. See Rule 11(b)(3). Both the defendant and his counsel confirmed the accuracy of the facts relevant to the offense set forth by the government in its evidentiary proffer.
After testifying that he had heard and understood all parts of the proceeding and that he still desired to plead guilty, the defendant consulted with his attorney and made a knowing and voluntary waiver of the reading of the charge. Asked separately how he wished to plead to each of the charges against him in the Indictment, the defendant then entered a plea of GUILTY to Count One of the Indictment alleging his violation of Title 21, United States Code, Section 846, and he entered a plea of NOT GUILTY to the charge alleged against him in Count Eight. The clerk then read the written guilty plea form to the defendant. After acknowledging it to be correct, the defendant executed the document, and it was filed and made a part of the record.
After entering his plea as aforesaid and after a independent basis for the plea had been established, the defendant was informed that the undersigned would recommend acceptance of his plea. He then reconfirmed that his decision to plead guilty was fully voluntary and that it did not result from any promises of leniency or inducement of any kind (other than that expressly set forth in the plea agreement). ( See Rule 11(b)(2). The defendant, likewise, reiterated his full satisfaction with the assistance of his attorney.
The defendant was then continued on his prior bond and conditions of release pending completion of a presentence report.
B. GOVERNMENT'S EVIDENCE
To establish a factual basis for the defendant's pleas, the government presented the sworn testimony of DEA Special Agent Kenneth R. Rosel and presented a six-page written evidentiary proffer, a copy of which had been previously provided to the defendant and to defendant's counsel. SA Rosel testified that he was involved in the investigation of illegal drug activities in the Western District of Virginia that resulted in the indictment and arrest of the defendant and a number of other individuals on drug-related charges, including participation in a criminal conspiracy to distribute more than fifty (50) grams of "crack" cocaine. SA Rosel further testified that the six-page written evidentiary statement prepared by the U.S. Attorney's Office fairly and accurately summarized and set forth the evidence the government was prepared to introduce at trial to establish inter alia the existence of the conspiracy, its purpose to distribute a mixture or substance containing more than fifty (50) grams of "crack," a schedule II controlled substance and the defendant's participation in the conspiracy. In addition, SA Rosel testified to the defendant's full acceptance of responsibility. See Guideline §§ 3El.l(a) and 3E1.1(b). A copy of the government's evidentiary summary was filed as part of the hearing record, and it is incorporated herein by reference.
C. FINDINGS OF FACT
Based on the evidence, representations of counsel, and defendant's sworn testimony presented as part of the hearing, the undersigned submits the following formal findings of fact, conclusions and recommendations:
1. The defendant is fully competent and capable or entering an informed plea;
2. The defendant is fully aware of the nature of the charge and the consequences of his plea;
3. The defendant is fully informed, and he understands, the applicable items enumerated in Rule 11(b)(1)(A)-(N);
4. Before entering his plea, the defendant and the government reached a written plea agreement which provides, inter alia, for the government to dismiss Count Eight of the Indictment upon acceptance of the defendant's plea of guilty to Count One;
5. Defendant's entry into the plea agreement and his tender of a plea of guilty to Count One were both made with the advice and assistance of counsel;
6. The defendant's entry of a plea of guilty to Count One was make with his full knowledge and an understanding both of the nature of the offense and the full range of punishment which might be imposed, including both the mandatory minimum sentence and the mandatory special assessment;
7. The defendant's plea of guilty is fully voluntary and did not result from any force, threats, or promises other the promises expressly set forth in the written plea agreement;
8. The plea agreement complies with the requirements of Rule 11(c)(1); and
9. The evidence presents an independent basis in fact containing each essential element of the offense to which the defendant is pleading guilty.
D. RECOMMENDED DISPOSITION
Based on the above findings of fact, the undersigned RECOMMENDS that the court accept defendant's plea of guilty to Count One of the Indictment, that the defendant be adjudged guilty of that said offense, that a sentencing hearing be scheduled before the presiding District Judge on December 12, 2006 at 3:00 p.m., and that the government's motion to dismiss Count Eight be granted.E. NOTICE TO PARTIES
Notice is hereby given to the provisions of 28 U.S.C. § 636(b)(1)(c): within ten (10) days after being served with a copy of this Report and Recommendation, any party may serve and file written objections to such proposed findings and recommendations as provided by the rules of court. The presiding District Judge shall make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made. The presiding District Judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the undersigned. The presiding District Judge may also receive further evidence or recommit the matter to the undersigned with instructions.
Failure to file timely file written objections to these proposed findings and recommendations within ten (10) days could waive appellate review. At the conclusion of the ten-day period, the Clerk is directed to transmit the record in this matter to the presiding United States District Judge.
The clerk is directed to transmit copy of this Report and Recommendation to all counsel of record.