Opinion
09 Cr. 1016 (DLC).
November 3, 2010
Zachary Feingold, Assistant United States Attorney, U.S. Attorney's Office, New York, NY, Attorney for the United States of America.
Stanislao A. Germán, New York, NY, Attorney for the defendant.
OPINION ORDER
On September 16, 2010, Anthony Velez moved to withdraw his plea of guilty. For the following reasons, the motion is denied.
BACKGROUND
On September 22, 2009, Velez was arrested while driving from New York to New Jersey. Inside his car, the agents found 200 grams of cocaine and three guns, two of which were loaded with ammunition. Velez's telephone had been intercepted pursuant to a wiretap ordered by a New Jersey state court, and intercepted calls were described in the arrest complaint filed against Velez.
Velez was indicted with three co-conspirators on April 13, 2010, in a three count second superceding indictment. That indictment charged Velez with participating in a conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A); distribution and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(b)(1)(C); and possession of a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(i). His three co-defendants were only named in the first count of the indictment. Trial was scheduled to begin on July 19, 2010.
On June 2, Velez pleaded guilty to the drug conspiracy charged in Count One of the indictment pursuant to a plea agreement ("Agreement") with the Government. The Agreement included the Government's commitment to dismiss open counts at the time of sentence and not to file a prior felony offender information in connection with the defendant's state drug conviction in September 1992. The plea was entered before Magistrate Judge Theodore Katz, and accepted by this Court on June 15.
At his plea allocution, Velez was placed under oath and advised of the penalties that applied to Count One, including its mandatory minimum sentence of ten years. Velez informed the court that he was satisfied with the services of his attorney and that he understood his right to go to trial and its associated rights. He acknowledged that he understood that the court had the discretion to impose sentence, including one that was higher than the sentencing guidelines, and told the court that no threats had been made to him by anyone to cause him to plead guilty. As for the Agreement, Velez explained that he had read it, discussed it with his attorney, understood it and had signed it. He acknowledged understanding that he had waived his right to appeal any sentence below 135 months' imprisonment. He also told the magistrate judge that he understood he could not withdraw his plea if the sentencing judge imposed a sentence more severe than 135 months' imprisonment. After this portion of the allocution and the court's inquiry whether Velez "still wish[ed] to plead guilty to Count 1 of the superseding indictment," Velez answered yes and also indicated that the plea was voluntary and of his "own will."
The Agreement provided that Velez had waived a right to appeal any sentence at or below 135 months' imprisonment.
In pleading guilty, Velez advised the court that he had agreed with others to distribute cocaine between 2007 and September 2009, that the purpose was to distribute at least five kilograms of cocaine, and that he knew what he did was wrong and against the law. At the end of the allocution, Velez and his counsel confirmed that pursuant to the Agreement, Velez had agreed that he would not seek a sentence outside the stipulated sentencing guidelines range of 108 to 135 months' imprisonment. Judge Katz found that the plea was entered voluntary and knowingly.
As the court advised Velez and as is reflected in the Agreement, the mandatory minimum sentence for Velez was 120 months' imprisonment, which made his effective guidelines range 120 to 135 months' imprisonment.
In a letter received on July 12, Velez advised the Court that he wished to withdraw his plea of guilty based on ineffective assistance of counsel. According to Velez, his attorney had advised him in error that the Government could file a prior drug felony information. The Court provided copies of the letter to counsel, the Government responded in a letter of July 15, and the issues raised by Velez were discussed in detail at a conference on July 20. During the conference, the difference between the sentencing guidelines calculation, and the statutory sentencing schemes that provide for mandatory minimum sentences for various drug violations and for the filing of a prior felony information were explained. Among other things, the Government explained why Velez's prior New Jersey conviction qualified as a prior drug felony under the federal statutory scheme. The Government also explained that it was entitled to file a prior felony offender information against Velez, and recounted that it had advised his attorney that it intended to do so during a conversation about three weeks before trial. The Government added that it was the practice of the United States Attorneys Office to forego the filing if a defendant pleads guilty sufficiently in advance of trial so that the Government does not have to expend resources in preparing for trial. If the information had been filed, Velez would have faced a twenty-year mandatory minimum sentence instead of a ten-year mandatory minimum sentence.
At the July 20 conference, the defendant persisted in asserting that the New Jersey conviction did not qualify as a prior felony drug conviction. Given his complaints about counsel, the Court arranged for the assignment of new counsel to represent him and instructed the Government to obtain the judgment of conviction for the New Jersey conviction to confirm that it qualified as a predicate for the filing of a prior felony offender information.
The judgment entered in the New Jersey criminal proceeding, and supporting papers, are attached in the Government's opposition to Velez's motion. To the extent that Velez persists with any argument that the conviction does not qualify for the filing of a prior felony offender information, that argument is rejected.
On July 16, Velez filed a formal motion to withdraw his plea. In a supporting affidavit Velez asserts that he asked his prior counsel to file motions challenging the wiretap, venue, and the admissibility of the guns recovered from his vehicle. He complains that she did not do so, never responded to his emails, only visited him in prison four or five times, and always encouraged him to plead guilty. On October 12, the Court received a supplemental filing by Velez himself.
DISCUSSION
Velez moves to withdraw his plea as involuntary due to the Government's threat to file a prior felony offender information if Velez did not plead guilty and his counsel's ineffective assistance. Neither assertion is sufficient to allow Velez to withdraw his plea.
A guilty plea may be withdrawn only if "the defendant can show a fair and just reason for requesting the withdrawal." Fed.R.Crim.P. 11(d)(2)(B).
To determine whether a defendant has met this burden, a court should consider: (1) whether the defendant has asserted his or her legal innocence in the motion to withdraw the guilty plea; (2) the amount of time that has elapsed between the plea and the motion (the longer the elapsed time, the less likely withdrawal would be fair and just); and (3) whether the government would be prejudiced by a withdrawal of the plea. The district court can also rely on a defendant's in-court sworn statements that he understood the consequences of his plea, had discussed the plea with his attorney, and knew that he could not withdraw the plea.United States v. Carreto, 583 F.3d 152, 157 (2d Cir. 2009) (citation omitted). "Where a motion to withdraw a plea is premised on involuntariness, the defendant must raise a significant question about the voluntariness of the original plea. A defendant's bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea." United States v. Doe, 537 F.3d 204, 211 (2d Cir. 2008) (citation omitted).
Velez has shown that the Government advised his former counsel that it would file a prior felony offender information against Velez if he proceeded to trial instead of pleading guilty. That statement does not constitute a threat that would permit Velez to withdraw his plea. It is, instead, a statement reflecting both the Government's and the defendant's options. The Government was entitled to file a prior felony offender information, and Velez was entitled to choose between proceeding to trial or entering a plea of guilty. The options, as unpalatable as they may have seemed to Velez, do not constitute coercive threats that invalidate a plea. The Agreement advised Velez that the Government would not file the prior felony offender information if he entered the plea, and with his decision to plead guilty Velez chose to receive that and other benefits. At his plea and while under oath, Velez advised the court that he was entering the plea voluntarily and not as a result of any threats. He has not shown that that statement should be disregarded because he had been informed that a decision to proceed to trial would risk the imposition of a substantially longer sentence.
"A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void." Machibroda v. United States, 368 U.S. 487, 493 (1962). "It does not follow, however, that all inducements for a defendant to plead guilty render either a plea or the consequent waiver of the right to trial by jury involuntary." Doe, 537 F.3d at 211 (citation omitted). "`Voluntary' for purposes of entering a lawful plea to a criminal charge has never meant the absence of benefits influencing the defendant to plead." Id. (citation omitted). Rather, a guilty plea "must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes)." Brady v. United States, 397 U.S. 742, 755 (1970) (citation omitted). "The question is not whether his decision reflected a wholly unrestrained will, but rather whether it constituted a deliberate, intelligent choice between available alternatives." Doe, 537 F.3d at 212.
In the second prong to his motion, Velez contends that he is entitled to withdraw his plea because his counsel at the time of the plea provided him with ineffective assistance. Velez states that his attorney advised him to plead guilty, only visited him four or five times, did not respond to his emails, and did not file motions that he asked her to file. Velez has not shown that his attorney did not provide him with adequate advice and counsel.
It is assumed for purposes of this motion that Velez has accurately described his interaction with his counsel.
An attorney has the responsibility to decide what motions should be filed, see United States v. Bayless, 201 F.3d 116, 130 (2d Cir. 2000), and Velez has not shown that any of the motions he lists had any merit or would have been granted. Any attorney would be wary of providing an incarcerated client in a criminal case with legal advice by email, assuming that prisoners have access to electronic communications from counsel. In any event, Velez has failed to identify any information or advice that his counsel failed to give him and that he needed in order to understand the charges against him and the options open to him. For this same reason, Velez has not shown that more visits to prison by his attorney deprived him of adequate representation. In particular, while the decision to enter a plea must be the defendant's, a criminal defense attorney has an obligation to advise her client of the course of action the attorney believes it is in the client's interest to follow. Purdy v. United States, 208 F.3d 41, 45 (2d. Cir. 2000). Velez has not shown that counsel was ineffective in advising him to plead guilty. Velez was faced with substantial evidence against him and risked receiving a far higher sentence if he proceeded to trial. Velez advised the court at the time of his plea that he was satisfied with his representation by his attorney, and he has shown no reason to believe that that statement under oath to the court was not reliable. United States v. Torres, 129 F.3d 710, 716 (2d Cir. 1997).
CONCLUSION
Velez's September 16 motion to withdraw his plea is denied.
SO ORDERED: