Opinion
S12 98 Cr. 1316 (RWS)
February 13, 2001
HONORABLE MARY JO WHITE, United States Attorney for the Southern District of New York, Attorney for United States of America, New York, NY, By: AITAN D. GOELMAN, AUSA Of Counsel.
DAWN M. CARDI ASSOCIATES, Attorney for Defendant, New York, NY, By: DAWN M. CARDI, ESQ., Of Counsel.
OPINION
Pursuant to Federal Rule of Criminal Procedure 32(e), defendant David Carraballo ("Carraballo") has moved to withdraw his plea of guilty to three counts of making telephone calls in facilitation of a conspiracy to distribute and possess with intent to distribute heroin. For the reasons stated below, the motion is denied.
Facts
Carraballo was arrested on November 20, 1998 after a one-count indictment was issued charging him with participating in a heroin distribution conspiracy. He retained attorneys David J. Goldstein ("Goldstein") and Barry Weinstein ("Weinstein") of the law firm, Goldstein, Weinstein Folk, to represent him. Between the date of Carraballo's arrest and June 15, 1999, when Goldstein and Weinstein withdrew as counsel, Carraballo's attorneys contacted the prosecutor several times seeking discovery material and exploring disposition options. Discovery provided during that period included property invoices, laboratory reports, 48 videotapes, four audiotapes, and surveillance photographs.
A superseding, multi-defendant indictment was filed on January 13, 2000, charging Carraballo as the leader of a conspiracy to distribute and possess with intent to distribute heroin from in or about 1996 up to and including October 1998. Robert Koppelman ("Koppelman") substituted as counsel pursuant to the Criminal Justice Act on July 15, 1999. Although Carraballo prepared and forwarded to Koppelman numerous motions, including motions to dismiss the indictment, for grand jury minutes, discovery, Rule 404 evidence, a bill of particulars, and Jencks Act material, no pretrial motions were filed. Carraballo had made no statements at the time of his arrest, and had no standing to challenge search warrants executed in connection with the investigation that led to his arrest.
Carraballo alleges that, although he consistently professed his innocence, Koppelman neither sought additional discovery from the government nor conducted any independent investigation into the charges against him. Although Carraballo forwarded to Koppelman typed and notarized affidavits from five of his co-defendants stating that Carraballo "did not unlawfully, intentionally, and knowingly combined, conspired, confederated, distributed or possessed any narcotics to violate the UNITED STATES narcotics laws, . . . nor did he engage in any other unlawful criminal acts [sic]," Koppelman sought neither to make use of these affidavits nor to interview Carraballo's co-defendants. Def. Mtn. Ex. G. Instead, according to Carraballo, Koppelman ignored his protestations of innocence and exerted unrelenting pressure on him to plead guilty due to the unlikelihood of success at trial, and the sentencing benefit to be gained by accepting responsibility.
Carraballo began contacting the Court directly rather than through counsel, submitting pro se motions seeking discovery and inspection of grand jury minutes, as well as speedy trial requests. He submitted a pro se motion to sever and for transcripts to Koppelman, who did not file them. As all of the co-defendants have pled guilty, the motion to sever was moot.
At a meeting with counsel and the Assistant United States Attorney on March 31, 2000, Carraballo was shown photographs of himself at a funeral in the company of his co-defendants. When Carraballo protested that this evidence did not reveal any unlawful conduct, Koppelman allegedly responded that the photographs proved his association with the co-defendants and that he would "most likely be found guilty." Def. Mtn. Ex. A at 1-2. The Court provided Carraballo with ten days in which to decide whether to plead guilty or test the government's evidence at trial. Koppelman continued to recommend that Carraballo plead guilty.
On April 5, 2000, pursuant to a written plea agreement, Carraballo pled guilty to a three-count superseding information before the Honorable Andrew J. Peck, Magistrate Judge. During the plea colloquy, Judge Peck asked Carraballo all of the questions required by Fed.R.Crim.P. 11 to establish that he was competent to enter a guilty plea, that he had chosen to do so voluntarily, and that there was a factual basis for the plea. Carraballo acknowledged that he had spoken to Koppelman about the charges in the information, understood the maximum penalties applicable on each count, and that he had the right (1) to a trial by jury at which he would be presumed innocent and where the jury would decide whether the government proved its case beyond a reasonable doubt; (2) to be represented by counsel free of charge; (3) to confront and cross-examine witnesses and to call witnesses on his own behalf and to compel their attendance by subpoena; (4) to testify if he so chose or to remain silent and not incriminate himself; and (5) the fact that if he pleaded guilty he would receive no trial and that he was waiving any defenses he might have to the charges against him, including any potential claims that his constitutional rights had been violated. Gov't Resp. Ex. C at 6-8. In addition, Carraballo acknowledged that he had discussed with Koppelman how the Sentencing Guidelines might apply to his case after pleading guilty. Id. Ex. C at 8.
Most importantly for the purposes of this motion, Carraballo stated that he had chosen to enter a plea of guilty of his own volition, and that, other than the plea agreement, nobody had induced him to plead guilty through promises or coercion. Id. Ex. C. at 10-11. Koppelman confirmed that he had discussed the charges and consequences of pleading guilty with Carraballo, and believed that Carraballo was entering a guilty plea freely and voluntarily. Id. Ex. C at 12. In response to questioning from Magistrate Judge Peck regarding each of the three counts in the superseding information, Carraballo stated that he had made telephone calls in the Bronx to facilitate a conspiracy to distribute one kilogram and more of heroin. Id. Ex. C at 12-15. This Court accepted Magistrate Judge Peck's recommendation to accept the plea on November 20, 2000.
The Probation Department issued a presentence report on or about June 1, 2000, which assessed the offense level at 32, and his Criminal History Category at II, for a proposed sentence of 135 to 144 months. In a letter dated June 24, 2000, Carraballo sought to withdraw his plea. In the letter, Carraballo alleged that Koppelman's representation had been constitutionally ineffective and that, although Carraballo had not yet received the presentence report, Koppelman had notified the Probation Department that there were no objections to it. Carraballo sent additional letters reiterating his desire to withdraw his guilty plea and seeking the appointment of new counsel on July 18, 2000 and July 23, 2000 ("Motion Notice of Ineffective Assistance of Counsel").
The applicable range under the United States Sentencing Guidelines sentence was calculated to be 135 to 168 months. However, because the statutory maximum consecutive term of imprisonment for the three counts to which Carraballo pled guilty was 12 years, see 21 U.S.C. § 843 (b), the presentence report recommended a Guidelines range of 135 to 144 months, see U.S.S.G. § 5G1.1(c)
Carraballo contends that he had not yet received the presentence report from Koppelman, and therefore was not aware of its sentencing recommendation, at the time he sent the June 24, 2000 letter seeking to withdraw his plea, because Koppelman dropped the presentence report in the inmate mail slot at the Metropolitan Correctional Center for him on June 17, 2000.
Carraballo's letters were treated as a pro se motion for the appointment of counsel for assistance in submitting a motion to withdraw his guilty plea. The government opposed the motion by letter brief of August 21, 2000. Carraballo replied by letter of August 24.
By order of August 28, 2000, Carraballo was assigned new counsel for the purpose of bringing a motion to withdraw his guilty plea and any further proceedings. Carraballo again wrote to the Court on November 2, 2000, acknowledging that he had met with his new attorney, Dawn Cardi ("Cardi"), and expressing concern that she had not yet filed a motion to withdraw his plea as of one week before his scheduled sentencing. By letter of November 9, 2000, Cardi sought to adjourn Carraballo's sentencing date and requested an extension until November 20, 2000 to file a motion to withdraw his plea. This request was granted, as was her second request.
On December 27, 2000, Cardi filed a motion to supplement Carraballo's pro se motion to withdraw his guilty plea on the grounds of ineffective assistance of counsel and coercion. The government responded on January 23, 2001. Oral argument was heard on January 31, 2001, whereupon the motion was deemed fully submitted.
Discussion
I. Legal Standard for Withdrawing a Guilty Plea
A criminal defendant has "no absolute right to withdraw his plea of guilty." United States v. Williams, 23 F.3d 629, 634 (2d Cir.), cert. denied, 513 U.S. 1045 (1994). Nonetheless, Federal Rule of Criminal Procedure 32(e) allows a defendant to withdraw a guilty plea prior to sentencing for a "fair and just reason." Fed.R.Crim.P. 32(e); see United States v. Reyes, 13 F.3d 638, 639 (2d Cir. 1994).
A defendant seeking to withdraw his guilty plea has the burden of proving that there are valid grounds for relief. See e.g., United States v. Avellino, 136 F.3d 249, 261 (2d Cir. 1998) (citing United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997)). That the defendant disagrees with the sentencing recommendation in the presentence report is not a fair and just reason to withdraw the plea. See United States v. Grimes, 225 F.3d 254, 259 (2d Cir. 1999). Moreover, "[t]he fact that a defendant has a change of heart prompted by his reevaluation of either the Government's case against him or the penalty that might be imposed is not a sufficient reason to permit withdrawal of the plea." United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992); accord United States v. Figueroa, 757 F.2d 466, 475 (2d Cir.), cert. denied, 474 U.S. 840 (1985).
A defendant must raise "a significant question about the voluntariness of the original plea" in order to prevail in a Rule 32 motion. Torres, 129 F.3d at 715. Bare assertions "that simply contradict" the allocution do not meet this standard, and are insufficient grounds on which to hold a hearing or to grant the Rule 32 motion. Id. see also Gonzalez, 970 F.2d at 1100. In addition, a district court must consider: (1) the lapse of time between the guilty plea and the motion to withdraw; and (2) any prejudice the government would suffer as a result of withdrawing the plea. Id., 225 F.3d at 259; Fed.R.Crim.P. 32(e), Advisory Committee Notes. The absence of prejudice to the government is immaterial where the defendant has failed to demonstrate sufficient grounds for permitting plea to be withdrawn. See, e.g., Torres, 129 F.3d at 715.
The policy underlying the standard for withdrawal of pleas is that "[s]ociety has a strong interest in the finality of guilty pleas, and allowing withdrawal of pleas "undermined confidence in the integrity of our [judicial] procedures. increas[es] the volume of judicial work, [and] delays and impairs the orderly administration of justice.'" United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989) (quoting United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979)); see also Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In sum, when considering a motion to withdraw a guilty plea, a district court must closely scrutinize the grounds raised and the record of the defendant's allocution so as not to "degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess."United States v. Hyde, 520 U.S. 670, 677 (1997).
II. Carraballo Has Raised Insufficient Grounds for Withdrawing His Plea
Carraballo first sought to withdraw his plea approximately seven weeks after pleading guilty, on the grounds that (1) his lawyer was constitutionally ineffective for failing to conduct adequate pretrial investigation or preparation; and (2) his plea was involuntary because his attorney coerced him and misadvised him as to the underlying elements of the crimes charged. However, under the standards set forth above, Carraballo's claim of innocence — first raised some seven weeks after he admitted his guilt for the record — fails to show that his guilty plea was involuntary or not grounded in fact.
First, Carraballo's sworn inculpatory statements at the allocution carry a strong presumption of veracity. Blackledge v. Allison, 431 U.S. 63, 74 (1977); Torres, 129 F.3d at 715. Under specific questioning from Magistrate Judge Peck, Carraballo clearly stated that he had conferred with his attorney, understood the charges against him, voluntarily chose to plead guilty, and admitted that he had made telephone calls in support of a criminal conspiracy to possess and distribute heroin. Unlike more difficult and lengthy allocutions, the unremarkable plea colloquy in Carraballo's case belies his claim that the plea was involuntary. Cf. Guzman v. Sabourin, 124 F. Supp.2d 828, 831 (S.D.N.Y. 2000) (remanding habeas case for factual hearing on motion to withdraw plea because "allocution was not a model of clarity," where defendant initially denied charges, interrupted the hearing repeatedly to confer with counsel, and stated that he did not know the weapon with which he had committed the crime, admitting to "whatever they have.").
Claims of innocence, without more, are insufficient to undermine the presumption that the statements in the plea colloquy were truthful. See United States v. Hughes, 325 F.2d 789, 792 (2d Cir.), cert. denied, 377 U.S. 907 (1964); United State v. Fernandez, 734 F. Supp. 599, 604 (S.D.N.Y. 1994) ("A mere assertion of innocence is per se insufficient to support a motion to withdraw a guilty plea."), aff'd, 932 F.2d 956 (2d Cir. 1991). Carraballo has presented nothing other than recantations to counteract his admission that he was involved in a conspiracy to distribute heroin in the vicinity of Crotona Avenue in the Bronx from in or about 1996 through October of 1998. As such, his claim of innocence does not present a ground for invalidating his plea. See, e.g., Gonzalez, 970 F.2d at 1101 (affirming denial of motion to withdraw guilty plea without a hearing where post-plea allegations merely contradicted sworn allocution)
The fact that he waited seven weeks before raising this claim also supports the view that this motion was spurred by a reaction to the recommended sentence rather than by the fact that his plea was involuntary at the time it was entered. See, e.g., United States v. Spencer, 836 F.2d 236, 239 (6th Cir. 1987) (five weeks not prompt enough to warrant withdrawal); United States v. Carr, 740 F.2d 339, 345 (5th Cir. 1984) (22 days too long to warrant withdrawal), cert. denied, 471 U.S. 1004 (1985). Cf. United States v. Fernandez, 734 F. Supp. 599, 603 (S.D.N.Y. 1990) (motion to withdraw made within days after plea may indicate plea was entered in haste or confusion), aff'd, 932 F.2d 956 (2d Cir. 1991). Having pled guilty more than once before, Carraballo knew the consequences of doing so and could easily have raised this issue earlier if his plea had in fact been coerced.
Mr. Koppelman's role in Carraballo's defense is no more reason to withdraw the plea. Defendants pleading guilty have the right to effective assistance of counsel, and part of that right encompasses counsel's informed opinion as to the advisability of pleading guilty. See Boria v. Keane, 99 F.3d 492, 497 (2d Cir. 1996). Therefore, ineffective assistance of counsel, if proven, is a valid ground for withdrawing a guilty plea.See Fed.R.Crim.P. 32(e); Boria, 99 F.3d 492. A defendant asserting ineffective assistance must show (1) that his counsel's performance was deficient and fell below the range of objectively reasonable representation; and (2) that there is a reasonable probability that counsel's deficient performance affected the outcome of the plea process. Hill v. Lockhart, 474 U.S. 52 (1985); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The fact that Koppelman, using his professional judgment, recommended that Carraballo plead guilty, is an insufficient basis on which to find that the plea was coerced. See United States v. Buckles, 843 F.2d 469, 472 (11th Cir. 1988) (because all guilty pleas are to some extent the result of pressure on defendants' minds, claim of attorney coercion is not credited where attorney used professional judgment to recommend the guilty plea), cert. denied, 490 U.S. 1099 (1989). Carraballo specifically stated that he was pleading guilty of his own volition, and was not under the influence of any promises or coercion. As stated above, this contention stands unless refuted by more than Carraballo's mere assertion at this late date.
Defense counsel have a "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 690-91. Courts must grant considerable deference to defense counsel, who may limit their investigations depending on the evidence already available and interactions with their clients in exercising strategic judgments. Id. Where, as here, "the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence," the Supreme Court has held that "the determination whether the error `prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial." Hill, 474 U.S. at 59.
Carraballo has failed to show that Koppelman was constitutionally ineffective. Although Carraballo argues that Koppelman should have interviewed his co-defendants regarding their exculpatory affidavits, he would have been ethically barred from interviewing them without the consent of their lawyers. See, e.g., Grievance Committee For Southern Dist. of New York v. Simel, 48 F.3d 640, 642 (2d Cir. 1995) (recognizing that Disciplinary Rule 7-104(A)(1) of the American Bar Association's Code of Professional Responsibility bars defense attorneys from contacting represented parties without prior consent from counsel). Moreover, the affidavits themselves have no indicia of reliability; they merely mimic the language in the information and provide no specific exculpatory information. Certainly, it was beyond the personal knowledge of the co-defendants whether Carraballo had committed "any other unlawful criminal acts." Def. Mtn. Ex. G. As such, the use of these affidavits would likely have compromised both Carraballo's defense and the co-defendants' plea agreements, and resulted in sentencing enhancements for obstruction of justice. See, e.g., United States v. Shumway, 112 F.3d 1413 (10th Cir. 1997) (affirming sentencing enhancement for defendant who perjuriously exculpated his codefendant who later pled guilty).
Even if Carraballo could show that Koppelman did not undertake any investigation, and that this decision "fell below an objective standard of reasonableness" under the circumstances, Strickland, 466 U.S. at 691, he would still have not met his burden to show prejudice, namely that if Koppelman had conducted a thorough investigation, he would have discovered enough exculpatory evidence to dissuade Carraballo from pleading guilty. Hill, 474 U.S. at 57; Torres, 129 F.3d at 716.
At the time he pled guilty, Carraballo had received notice of the charges against him in the complaints, indictments and information. Prior to the appointment of Mr. Koppelman, Carraballo's retained attorneys had received a significant amount of evidence the government planned to introduce against him, including videotapes, photographic surveillance, and laboratory reports. Carraballo has presented nothing to suggest either what exculpatory evidence would have been discovered through a more thorough defense investigation, nor that a rational factfinder would have found him not guilty of heroin conspiracy charges in that event. As such, he has not met his burden to show that his attorney's representation was constitutionally ineffective. See, e.g., Mitchell v. Scully, 746 F.2d 951, 954-55 (2d Cir. 1984) (rejecting ineffective assistance of counsel claim where attorney failed to inform defendant of available defense because defense had "exceedingly little likelihood" of success and would have had greater chance of exposing defendant to more severe punishment than just pleading guilty); Brown v. United States, Nos. 95 Civ. 4368 (AGS), 93 Cr. 291 (AGS), 1996 WL 479248, *7 (S.D.N.Y. Aug. 23, 1996) (rejecting ineffective assistance of counsel claim in plea context where defendant failed to allege what specific investigation should have been conducted or any favorable evidence that might have been uncovered).
Conclusion
For the foregoing reasons, the motion to withdraw the guilty plea is denied. Objections to the presentence report, if any, are to be submitted within one week of sentencing.
It is so ordered.