Opinion
Criminal No. 99-672-05 (JBS).
January 10, 2002
ROBERT S. CLEARY, United States Attorney, By: Stephen J. Taylor, Assistant U.S. Attorney, United States Attorney's Office, Newark, New Jersey, ISABEL McGINTY, ESQUIRE, Hightstown, New Jersey, Attorney for Defendant.
OPINION
I. INTRODUCTION
The defendant, Rasheed Smith, entered a plea of guilty on January 14, 2000 to conspiracy to distribute and possess with intent to distribute more than five grams of crack cocaine, contrary to 21 U.S.C. § 841(a)(1), in violation of 21 U.S.C. § 846. His plea agreement was a cooperating agreement, in which he promised to testify at the trial of his conspirators if requested to do so, and to render truthful substantial assistance to the government. On the eve of trial of the few remaining co-conspirators, Smith declined to further cooperate or to testify against his friends. The three remaining defendants (Corey Kelly, Robert David, and Bernard Winston) were tried before a jury for four weeks and were convicted of various charges of crack cocaine distribution on May 11, 2000. More than six months after trial of his co-conspirators, and after his own sentencing had been adjourned to permit new counsel to become familiar with the case, defendant Smith filed the present motion on November 28, 2000. He now seeks to withdraw his plea of guilty, pursuant to Rule 32(e), Fed.R.Crim.P., alleging that his decision to plead guilty was not knowing and intelligent and that his former retained defense attorney, Samuel Asbell, Esquire was inadequate in his legal representation due to a conflict of interest and due to insufficient familiarity with the Sentencing Guidelines. The United States opposes the motion, and the Court conducted several days of hearings and arguments.
The convictions and sentences of Kelly, David, and Winston were affirmed by the United States Court of Appeals for the Third Circuit on October 26, 2001. United States v. Corey Kelly, et al., App. Nos. 00-2705, 00-2849 00-3688 (3d Cir. Oct. 26, 2001), subsequently published in part in United States v. Kelly, 272 F.3d 622 (3d Cir. 2001).
For the reasons now discussed, the Court finds that defendant Rasheed Smith's decisions to enter a plea of guilty and thereafter to cease cooperating were knowing and voluntary and with the effective assistance of his former counsel, Mr. Asbell. Although Asbell had a potential conflict of interest arising from his former representation of a potential trial witness if Smith had decided to go to trial, Smith's decision to plead guilty and waive his trial rights was formed with adequate knowledge of these circumstances and uninfluenced by Asbell's potential conflict, under the circumstances of this case.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant Rasheed Smith was released from state custody in May 1998, having served a two-year juvenile confinement for assault with a deadly weapon. According to the Government, he quickly became active in the distribution of crack cocaine in the McGuire Gardens community of Camden, where he lived. Smith was observed during government surveillances in the investigation in June 1998, and strong evidence linked him to the crack cocaine distribution scheme led by Thurston Harris (who later died) and which included Smith's mother (co-defendant Thelma Smith) and father (co-defendant Gerry Nichols) and others.
On November 10, 1999, a seven-count Indictment charged Rasheed Smith, Corey Kelly, Shareef Jackson, Gerry Nichols, Carlton Sims, Thelma Smith, Eugene Robert Thomas, and Bernard Winston with conspiracy to distribute more than five grams of crack cocaine from January 1998 to August 1998 in violation of 21 U.S.C. § 846, contrary to 21 U.S.C. § 841(a)(1). Rasheed Smith was named in Count One (conspiracy) and Count Six (distribution of 11.28 grams of crack cocaine on June 19, 1998).
Rasheed Smith was arrested on these charges on November 17, 1999, together with his mother, Thelma, who was accused of permitting the storage and bagging of crack cocaine for distribution in their home in violation of 21 U.S.C. § 856(a)(2). Rasheed Smith was taken to the FBI Office, given his Miranda rights and signed a waiver of rights form. He responded to interrogation and gave detailed and fully inculpatory statements about his role (and that of others) in the conspiracy. (Gov't Br. 12/6/00 at Ex. A; FBI Form 302, dictated on 11/22/99 and transcribed 11/23/99.) Smith also identified photographs of various individuals on November 17, 1999, including Robert David, Bernard Winston, Anthony Catoe, Corey Kelly, Gerry Nichols, Devin Pritchett, Shareef Jackson, and Rasheed Martin. (Id.) He also described the activities of his father (Gerry Nichols) and Carlton Sims in bagging up the crack cocaine in the Smith residence at the time of the initial search on June 19, 1998. (Id.)
Later in the day on November 17, 1999, he appeared before U.S. Magistrate Judge Robert B. Kugler, who appointed attorney Isabel McGinty from the Court's Criminal Justice Act Panel to represent Smith. Ms. McGinty represented Rasheed Smith from November 17th until November 28th, when she received a call from Mr. Asbell who informed her that he had been retained as defendant's counsel. Ms. McGinty, on November 17th, had appeared in court for the initial appearance and bail hearing, and she discussed the case briefly with AUSA Stephen Taylor, learning that Smith had given authorities a statement after his arrest. (McGinty Supp. Aff. ¶ 4.) There was no agreement or plan for Smith to cooperate at that time, and there were no actual plea discussions between her and the prosecution. (Id.)
Meanwhile, the arraignment was set for November 30, 1999.
Mr. Smith's sister, Jacquetta Smith, contacted Mr. Asbell on November 22, 1999, according to Asbell's testimony. (Tr. 12/20/00 at 176:1-4.) She was the paramour of convicted drug dealer, Philip Robinson, whom Asbell had represented. She indicated in substance that the family wanted Asbell to speak with Smith and to represent him because they had been pleased with his representation of Robinson the previous year on Robinson's federal drug charges. As a result of that conversation, Asbell visited Rasheed Smith in the Camden County Jail in late November 1999, speaking for about an hour, according to Asbell's testimony. (Id. at 176:10-21.) Asbell testified that Smith told him he had already given a statement to the government at the time of his arrest, and that he wished to cooperate with the government to help his mother. (Id. at 176:22 to 177:21.) Asbell agreed to speak with the government about further cooperation, determining that it was in Smith's best interests. (Id. at 177:9-14; 177:22 to 178:1.)
A. Defendant's Decision to Cooperate and Plead Guilty
Mr. Asbell spoke with AUSA Taylor before the arraignment, and Taylor informed Asbell of "a potential conflict of interest, since Robinson was a potential witness, albeit, an historical one, in the prosecution of Smith and the other indicted defendants." (Taylor Aff. ¶ 7.) Asbell indicated to AUSA Taylor that he would withdraw as counsel in the event Smith went to trial, due to the conflict of attempting to cross-examine Robinson, a former client. (Id. at ¶ 8.) Asbell also told AUSA Taylor he would discuss the potential conflict with Smith. (Id.) Asbell told Smith's sister, Jacquetta, at the arraignment on November 30, 1999, that Robinson had cooperated with the authorities in this case. In response, Jacquetta Smith broke off her relationship with Robinson, who was the father of her child, and who by that time was serving a 46-month sentence imposed by the Honorable Mary L. Cooper of this District in Trenton in 1998. Rasheed Smith, too, was aware of Asbell's prior representation of Robinson early in the case, and he knew from Asbell that Robinson had given information against Smith and other defendants, and knew specifically of Robinson's 46-month sentence and hoped to obtain the same for himself through cooperation efforts yielding a downward departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), according to Rasheed Smith's own Affidavit. (R. Smith Aff. filed 11/28/00 at ¶¶ 5-7.)
Meanwhile, Asbell informed AUSA Taylor that Smith wished to cooperate further in the case because he was concerned about his mother's well-being. (Taylor Aff. ¶ 9.) Proffer sessions were held on December 8, 1999 and December 29, 1999, pursuant to proffer agreement letters which Smith had reviewed with Asbell. (Id. at ¶ 10; Tr. 12/20/00 at 180:5 to 182:11.) Smith repeatedly explained his concern about his mother's prosecution as a motivation for his cooperation. (Taylor Aff. ¶ 13.) By the time of the second proffer session, a proposed plea agreement had emerged from AUSA Taylor dated December 20, 1999, and at the December 29th proffer meeting, the § 5K1.1 mechanism was explained to Smith. (Id. at ¶ 15; Tr. 12/20/00 at 182:12-24). On January 4, 2000, after consulting further with Asbell, Smith signed the plea agreement letter and the Rule 11 hearing was scheduled for 10 days later. Asbell forwarded the signed plea agreement to AUSA Taylor on January 5, 2000. (Tr. 12/20/00 at 183:13 to 184:4; Ex. F.)
The thorough Rule 11 hearing in this case on January 14, 2000, lasted about 60 minutes encompassing 36 pages of transcript (See Tr. 1/14/00). The written cooperating plea agreement dated December 20, 1999 and signed January 4, 2000 was entered into the record (Ex. C-1 at hearing of 1/14/00). Prior to the hearing, Smith and Asbell completed the defendant's "Application for Permission to Enter Plea of Guilty," dated and signed on January 14, 2000 (Ex. C-2 at hearing of 1/14/00). Smith answered all questions under oath, concerning all aspects of his decision to plead guilty. At elaborate length, he was questioned and indicated that he understood everything and could ask for clarification and speak with his attorney at any time. (Tr. 1/14/00 at 7:14-23.) He understood his testimony was under penalty of perjury. (Id. at 7:9-13.) He acknowledged reading and completing the application to enter his guilty plea and all the information on it including the guilty plea proceedings, his Constitutional rights, and the Sentencing Guidelines, which he said he understood and signed. (Id. at 8:20 to 9:13.) He corrected one item of information about having a GED diploma, indicating he failed it and only went to 10th grade. (Id. at 9:17-24.)
Indeed, the Court encouraged him to ask for such clarification if needed:
THE COURT: So if there is anything that's unclear, don't be embarrassed, don't be hesitant about asking for clarification or a better explanation if you don't, you know, have the information you need. Because I'll [be] glad to provide what information I can to make sure that you understand so that you can make a knowing and intelligent decision about whether to plead guilty or whether to go to trial, okay?
THE DEFENDANT: Yes.
Tr. 1/14/00 at 8:5-13.
He indicated that he read and understood the indictment containing the charge against him, that he had carefully gone over it with his attorney Mr. Asbell, and that he believed himself guilty of the charge of conspiracy to distribute crack cocaine. (Id. at 10:3-19.)
Against the background, the Court credits Smith's testimony at the Rule 11 hearing that his decision to plead guilty was knowing, voluntary, and with careful preparation. The Court disbelieves his subsequent assertions, for purposes of this motion, in his affidavits and in the hearing testimony, that he did not read the indictment, that he did not know what an indictment is, that he did not know what was going on, and that he did not understand the sentencing jeopardy for a conviction for this crime.
At the Rule 11 hearing, Asbell represented to the Court, and certified in the "application" form (Ex. C-2 at 1/14/00 hearing) that he had assisted Smith and performed all the critical duties required of defense counsel. (Tr. 1/14/00 at 4:18-24.) He verified that the written plea agreement was complete, together with the acknowledged understandings regarding cooperation. (Id. at 5:1-11.) Asbell reviewed with Smith his constitutional trial rights and the preparation of his defense if the case went to trial. (Id. at 5:12-19.) Asbell indicated his belief that Smith's decisions to give up his trial rights and to enter into the plea of guilty was knowing and voluntary. (Id. at 5:20-25.) Asbell believed Smith understood the charge against him and the jeopardy he was placing himself in of being sentenced up to the maximum penalties provided by law. (Id. at 6:1-7.) Asbell reviewed the Sentencing Guidelines with Smith and Smith understood, in general terms, how they work. (Id. at 6:8-11.) Asbell witnessed Smith's signature on the plea agreement on January 4th. (Id. at 6:15-21.)
Under oath on January 14, 2000, Smith understood that he could consult with Asbell at any time if there was anything he didn't understand. (Id. at 7:18-23.) He also understood that if he pled guilty, he could not "come back another day and say, Judge, I changed my mind or, Judge, I didn't know what I was doing back on January 14th when I entered the plea of guilty." (Id. at 8:1-3.)
Smith read and completed the "Application" form with the assistance of his attorney, including reading the information on that form about guilty plea procedures, Constitutional trial rights, and the Sentencing Guidelines, all of which he understood. (Id. at 8:20-9:10.)
Although Smith completed only 10th grade in school, he is able to read English, and he read and understood the indictment against him. (Id. at 9:17 to 10:7.) Smith specifically understood he was charged with agreeing with the other named defendants to distribute crack cocaine from May to August, 1998, in violation of federal law, for which he believed himself to be guilty. (Id. at 10:11-19.)
Smith responded at length about his plea agreement, indicated he had read it and reviewed it with Asbell, who answered any questions he had, and that he understood, signed, and accepted it. (Id. at 10:20 to 12:4.) Smith had enough time to consult with Asbell, and to weigh "the pluses and minuses of pleading guilty versus going to trial." (Id. at 12:5-14.) Smith understood that he had a right to go to trial, and that due to his guilty plea there would be no trial, if that was his choice. (Id. at 12:15-21.)
Smith was satisfied with his communications with Asbell and with Asbell's services. (Id. at 12:23 to 13:3.) He was pleading guilty of his own free will without force or threats, and the only promises were those in his plea agreement. (Id. at 13:4-24.)
Smith was questioned at length on his Constitutional rights, which were explained in simple comprehensive terms, including the right to trial by jury, the right to a unanimous jury, the government's burden of proof beyond a reasonable doubt based only on evidence that is presented in the courtroom, the right to be represented by his attorney, the right to cross-examine witnesses, and the right to compel people, documents or other things to be produced in the courtroom if it will aid the defense, among others. (Id. at 14:3 to 15:1.)
Smith understood the presumption of innocence and absence of any burden upon him at trial. (Id. at 15:2-13.) He understood his right to silence and the right to testify at trial in his own behalf if he chose to do so. (Id. at 15:14-25.) He understood he was giving up all of these rights and that he was admitting his guilt on Count One. (Id. at 16:1-10.)
Smith understood the consequences of pleading guilty, including the fact that this was a felony conviction and that he could never claim he was not guilty of this charge. (Id. at 16:6-19.) He knew that only his sentencing would remain and that it would be scheduled after completion of his co-defendants' trial. (Id. at 16:20 to 17:3.) The Court explained in detail the mechanics of the preparation of the Presentence Investigation Report ("PSR") by the Probation Department, and the procedures for correcting any errors or omissions in the PSR. (Id. at 17:3-13.)
Regarding sentencing, he understood that the maximum penalty is 40 years in federal prison and that the mandatory minimum is five years, as indicated by Smith in the plea colloquy (Id. at 17:22 to 18:8), the plea agreement letter (Ex. C-1), and the "Application Form" (Ex. C-2). He knew that the Sentencing Guidelines would also be used to determine his actual sentence within the 5 to 40 year range, and he confirmed he had discussed the Guidelines with Asbell and was familiar, in general, with how they work. (Id. at 19:5-15.) The Court also then repeated an explanation of how the Sentencing Guideline range is determined from the Total Offense Conduct Score and the Criminal History Category. (Tr. 19:16 to 22:2.) Among other things, the Court reminded Smith that a primary consideration for Guidelines purposes is "the quantity of drugs that's involved in your offense and what type of drug it is." (Id. at 20:1-2.) The Court advised Smith that "[t]his is a plea to crack cocaine and the penalties for crack cocaine tend to be much more severe than the penalties for regular cocaine." (Id. at 20:2-4.) He knew that the various Guideline calculations are "a way of measuring how serious this crime is and how serious your participation in it was." (Id. at 20:22-25.)
Smith also understood that his criminal history category would be computed, and that the Probation Department would examine his record, and would determine which convictions should receive a score, assign the points, and add up to determine the criminal history category. (Id. at 21:1-18.)
The Court stated incorrectly the view that juvenile convictions would be listed in the Pre-Sentence Investigation (PSI)Report "but I don't think that they result in any score if they were actually presented as juvenile convictions." (Id. at 21:9-12.) Unfortunately, while special guidelines apply to some aspects of juvenile convictions, it appears that Smith has juvenile convictions that received criminal history points in the proposed PSR Report dated July 28, 2000. The proposed PSI Report also indicates that two juvenile convictions and an adult conviction do not receive criminal history points because U.S.S.G. § 4A1.1(c) provides that a maximum of four criminal history points can be applied to this category. (PSI Report, 7/28/00 at ¶ 122.) The Court has not ruled upon any sentencing issue at this time, and the possibility exists that some or all of Smith's juvenile convictions will not receive criminal history points if an estoppel is warranted by the Court's error and the failures of the AUSA and defense counsel to offer a correction during the plea hearing. Instead, Smith claims that Asbell did not tell him that a criminal record could have any effect on sentence, and that he did not understand the Court when the Court advised him that his criminal history would be examined and would be used to determine his sentence. (R. Smith Aff. filed 11/27/00 at ¶ 40.) Smith's assertion that he did not understand that his criminal history is a factor in determining his sentence is not credible. Indeed, Smith acknowledged at the Rule 11 hearing that he understood the Court's explanation and that his criminal history would be used in computing his guideline range (Tr. 1/14/00 at 21:9 to 22:2.)
Smith confirmed he had looked at the Guidelines chart with Asbell. (Id. at 22:3-5.) Asbell verified this as well at the hearing on this motion (Tr. 12/20/00 at 67:7-14), testifying that soon after the time of the arraignment, in late November 1999, Asbell realized that the quantity of crack cocaine attributable to Smith was at least 1.5 kilograms, and this figure came up during the December proffer sessions, all correlating to Level 38 on the Guidelines chart from the drug quantity table. (Tr. 12/20/00 at 66:17 to 67:6; 110:8-14; 111:25 to 112:14; 113:10-17; 114:2-7; 119:9-25; 128:6-16.) Asbell testified repeatedly that he advised Smith about the potential of a Level 38 sentence (Id.), and that he had shown him and explained the Sentencing Guideline chart itself. (Id. at 66:17 to 67:14; 167:13-24.)
The plea colloquy included extensive dialogue about the cooperation aspect of Smith's plea agreement, with which he understood and agreed. (Tr. 1/14/00 at 22:6 to 24:6.) Asbell verified that on numerous occasions before the Rule 11 hearing, including during the proffer sessions in December and the January 4th meeting when Smith signed the plea agreement, and again on the morning of January 14th before the hearing, as well as in early April when Smith refused to testify at trial, Asbell had explained to Smith the stark difference between likely sentences for cooperating versus not cooperating. (Tr. 12/20/00 at 69:17 to 70:4; 124:17 to 125:1; 161:14 to 162:19.)
Smith acknowledged that he accepted the stipulations of his plea agreement and that he agreed with the facts stated in them. (Id. at 24:7 to 25:1.) He understood that the Court was not bound to accept these stipulations and that the Court would hold a hearing before it could find different facts or reject any of the stipulations. (Id. at 25:2 to 26:12.) He explicitly understood that he would not be permitted to withdraw his plea of guilty on the grounds that the Guidelines Range turns out to be different from what he hoped for or expected, or because the Court rejects one or more of the stipulations, or because the sentence received is different from what he hoped for or expected. (Id. at 26:8-22.) All of these admonitions repeated the contents of the plea agreement letter itself. (Ex. C-1.)
The defendant's waiver to right to appeal and to collaterally attack the sentence was also placed upon the record and added to the written plea agreement and initialed by Smith, Asbell, and AUSA Norv McAndrew at the Rule 11 hearing. (Id. at 26:25 to 32:19.)
Defendant Smith then answered detailed questions about the factual basis for his guilty plea, and Smith was encouraged to give any explanation that he wished if a Yes or No answer would be incomplete. (Id. at 33:7-14.) He admitted his agreement to distribute crack cocaine from May through August, 1998, with his named co-conspirators, including Corey Kelly, Thurston Harris, Eugene Robert Thomas, Bernard Winston, Gerry Nichols, Carlton Sims, and Shareef Jackson. (Id. at 33:16-24.) He admitted that he and Corey Kelly obtained quantities of crack cocaine on a regular basis in May and June of 1998. (Id. at 33:25 to 34:4.) He admitted that he, Nichols, and Sims, among others, would package the crack cocaine at various locations, including his mother Thelma Smith's home at 2037 Berwick Street, for sale to others on the streets of Camden. (Id. at 34:5-11.) He admitted that he, Kelly, and others delivered the packs of crack cocaine or caused them to be delivered to Thomas, Winston, Jackson, Nichols, and Sims, to sell on Camden's streets. (Id. at 34:12-18.) He admitted collecting money from these sales of cocaine base and using the money to purchase additional cocaine base. (Id. at 34:19-23.) He admitted paying the street-level sellers and lookouts for their selling efforts. (Id. at 34:24 to 35:2.) He did all of these things knowingly and intentionally, with the knowledge and intent to further the agreement to distribute the crack cocaine. (Id. at 35:3-7.)
B. Defendant's Decision to Refuse to Cooperate
In light of Smith's ongoing cooperation, the record was temporarily sealed because in the government's view, "the safety of the defendant, among others, could be jeopardized if people were to realize who is pleading in this matter at this point." (Id. at 37:8-23.)
Meanwhile, Smith's cooperation continued as the government prepared its case for trial against Smith's remaining co-defendants. A superseding indictment was returned against the remaining alleged co-conspirators. Gerry Nichols, Carlton Syms, and Shareef Jackson entered pleas of guilty by April 6, 2000, and the trial against Kelly, David, and Winston was scheduled to begin on April 10, 2000.
Shortly before trial, Rasheed Smith changed his mind about cooperating but made no attempt to withdraw his plea of guilty. After being further debriefed by federal agents, Smith said he heard that a member of a co-defendant's family made threatening remarks about Smith's family. (R. Smith Aff. filed 11/28/00 at ¶¶ 44-46.) He now asserts that he was allegedly too afraid to cooperate any further. (Id. at ¶ 46.) He now testifies that he believed, in any event, that if he didn't cooperate, his sentence would be only 60 months, since that was allegedly indicated to him by Asbell. This is untrue.
In fact, Smith refused to cooperate, and refused the strong advice of Asbell to continue cooperating, because he simply didn't want to testify against his friends. Thelma Smith (who had entered her cooperating plea agreement on the same day as her son, Rasheed) had indeed been confronted in March 2000 by a relative of Corey Kelly, namely his aunt, who indicated that she knew Thelma and Rasheed were prepared to testify against Kelly. This situation had been promptly investigated by DEA Special Agent Tony Campbell. (Taylor Aff. ¶ 7.) Thelma Smith did not report any threat to Agent Campbell when he spoke with her, nor did she take any protective measures against any perceived threats. According to the testimony of FBI Special Agent James Smith, HUD offered to relocate Thelma Smith and her family as a precaution, and she declined. (Tr. 12/22/00 at 91:3-20.) Special Agent Smith had specifically discussed this with Rasheed Smith, who appeared to understand that there was no serious threat and that basically the Kelly relative was just "venting." (Id. at 91:13-20.) Defendant Smith indicated no reluctance to testify because of the perceived threats, according to Special Agent Smith, who had met with him three times in preparation for his trial testimony. (Id. at 91:21 to 92:2.)
Special Agent Smith testified that it was not until April 7, 2000, in a pretrial preparation session at the U.S. Attorney's Office in Camden, that Rasheed Smith first indicated his change of heart about testifying. Defendant Smith told Agent Smith and the others present that he wouldn't testify "against his friends," and that he "had to take it like a man." (Id. at 92:20 to 93:2; 94:16-21.) He never indicated, during the course of an hour's discussion, that the perceived threats to his family played any role. (Id. at 93:3-94:16-21.) After Rasheed Smith continually expressed his reluctance to cooperate and his desire to "take it like a man" to Special Agents Smith and Campbell on April 7th, AUSA Taylor was summoned to speak with him, and Rasheed Smith confirmed to Taylor that he would not testify. (Id. at 93:20-23.)
The Agents then pointed out to Smith that it would jeopardize or eliminate his cooperation, and that if he stopped cooperating he would not be able to get a break at sentencing from what would be "a very lengthy sentence." (Id. at 94:4-15.) Agent Smith shared with defendant his guess that he would be receiving a sentence of "twenty years or more" and would be so old when he got out of prison that he would not have seen his young children grow up. (Id. at 94:23 to 95:15.) He said he felt sorry for him making such a poor decision and encouraged him to speak to his mother and his attorney before coming to a conclusion. (Id. at 95:16-24; 100:17 to 101:23.) When Rasheed Smith remained resolute in refusing to testify, Mr. Asbell was summoned on April 7th. (Id. at 100:17 to 101:23.)
Asbell had previously discussed and attended detailed proffer sessions with Smith, as discussed above, and he had explained that in the absence of cooperation, his sentence would be determined by Level 38 of the Sentencing Guidelines due to the quantity of crack cocaine, with adjustments up or down from that level. (Tr. 12/20/00 at 66:8-16, 66:21 to 67:6, 69:17 to 70:4; 109:15-23; 113:10-17.) This level, of course, was the appropriate sentencing enhancement for 1.5 kilograms of crack cocaine, as defendant had stipulated in his plea agreement, above. Asbell had also explained how, with cooperation, Smith could still seek to earn a downward departure, albeit with no guarantees, perhaps even below the statutory mandatory minimum of 60 months. (Id. at 110:20 to 111:18.)
On April 7th, Asbell spoke with Smith at the court house and again advised him that it would be in his best interest to continue to cooperate. (Id. at 70:5-12; 160:22 to 161:7.) Asbell was surprised by Smith's new posture. (Id. at 70:14-21.) He recalled that Smith had indicated previously that there were threats to his family and that the government was not protecting them. (Id.) Those past threats, however, were not the reasons for Smith's change of tactics. Asbell stated that Smith said he would not testify because he wanted to "be a man" and he did not "want to testify against my friends." (Id. at 73:1-10.) Asbell again reminded Smith of the jeopardy into which he would place himself by refusing to cooperate, and again told him that he would face "at least 20 years." (Id. at 161:14-25; 164:5-21.) Asbell was convinced that Smith was adamant about refusing to testify, and he then informed AUSA Taylor that he had told Smith that Smith's withdrawal of cooperation and refusal to testify would have severe ramifications including a probable sentence of 20 years in prison. (Id. at 162:8-16; Taylor Aff. ¶ 21.)
The Court generally credits Asbell's testimony on this and other important points, based upon his consistency and demeanor, as well as his candor. Defense counsel attempted to impeach Asbell with his previous two-year suspension from the New Jersey Bar, which arose from his filing a knowingly false police report about an attempt on his life that never occurred. In re Asbell, 135 N.J. 446 (1994). Following a prescribed course of psychological treatment, Asbell was fully restored to the practice of law in 1996. In re Asbell, 144 N.J. 580 (1996). This Court's heightened concern about Asbell's credibility was well-satisfied by his testimony and the overall record in this case.
It is clear that Rasheed Smith withheld cooperation on the eve of trial, despite knowing that he would likely face a sentence of 20 years or more, and up to the statutory maximum of 40 years, which was the point driven home to him by Agents Smith and Campbell and, more importantly, by Mr. Asbell, as discussed above. He also knew, as Asbell had repeatedly told him, that his sentence could likely be substantially reduced, perhaps down to the five year level, if he rendered truthful substantial assistance. I find further that the reason for his last-minute refusal to testify was his reluctance to testify against his friends who were going to trial and his desire to take his punishment like a man, as he told both Agent Smith and Mr. Asbell at the time. I find he was not motivated by fear of threats against his family, as that situation had been cleared up to his family's satisfaction, and as explained to defendant Smith by the Agents and by Asbell. His decision to cease cooperation was knowing and voluntary and despite the effective assistance of counsel.
C. Defendant's Alleged Lack of Understanding and Intellectual Capacity
After receiving the draft Presentence Report dated June 19, 2000, Rasheed Smith became unhappy with his retained attorney, Mr. Asbell, and Smith asked the Court to replace him due to dissatisfaction, which was done in mid-July 2000 when attorney Isabel McGinty was reappointed in Asbell's place. The draft PSR calculated the Total Offense level as 39, with Criminal History Category of IV, rendering a Guideline Range of 360 months to life. Because the statutory maximum is 480 months, the proposed range became 360-480 months. (McGinty Aff. of 11/27/00 at ¶¶ 6-7.) Defendant asserts that he saw the Draft PSR and did not agree with much of it, yet Asbell raised no objections. (Smith Aff of 11/27/00 at ¶¶ 54-58.)
Of course, all objections to the PSR raised by new counsel will be considered in connection with defendant's sentencing hearing, presently scheduled for February 13, 2002.
Defendant Smith and his attorney now claim that Smith didn't understand what he was being told about this case, his guilty plea, and his options to cooperate or go to trial. He dropped out of school in the second year of high school, where he had been in a special education program. (R. Smith Aff. ¶ 10; McGinty Aff. Ex. 7, consisting of Camden Child Study Team records from 1992-93.) As of January 18, 1995, when Smith was 15 years old — his date of birth is December 3, 1979 — his classification was "Perceptually Impaired" but his adaptive behavior was found to bring him closer to his appropriate age level, although he was still "extremely vulnerable to peer pressure due to his poor judgment and limited intellect." (McGinty Aff. Ex. 7, p. 1.) The classification of "Educable Mentally Retarded" had been established in September 1993, at age 13, when he was functioning at only a third or fourth grade level, according to those records. (Id.) Today, he claims to have a hard time reading and comprehending the words that lawyers use and he claims to need more time than Asbell gave him to understand his circumstances, choices, and decisions. (R. Smith Aff. at ¶¶ 13-15.)
Since those evaluations at ages 13 and 15, Smith has had repeated contact with the juvenile and adult criminal justice systems.
His record, as disclosed in the Final PSR dated July 28, 2000, includes juvenile adjudications on January 13, 1995 (defiant trespassing); February 23, 1995 (possession of 20 bags of crack cocaine); July 27, 1995 (possession of marijuana with Thurston Harris, above); June 14, 1995 (loitering, suspected of crack dealing); June 24, 1996 (possession of 20 bags of crack cocaine); September 11, 1996 (operating a stolen motor vehicle); June 9, 1997 (aggravated assault with a deadly weapon, firing shots at Gerard Jackson, sentenced to two years confinement). On April 30, 1999, he was sentenced as an adult for resisting and eluding, which occurred July 9, 1998, having entered a plea of guilty to the Indictment in Superior Court, Camden County.
A more recent battery of psychological tests of defendant Smith was performed by Allan Tepper, J.D., Psy. D., on December 13, 2000, memorialized in Dr. Tepper's "Psychological Evaluation" Report of the same date. (McGinty Letter to Court dated December 15, 2000.) Dr. Tepper evaluated Mr. Smith's cognitive and intellectual functioning through various testing protocols and review of his past school records. (Tepper Report of 12/13/00 at 1.) After recapitulating and interpreting the test results, Dr. Tepper opined that "Mr. Smith possesses intellectual scores ranging from the upper end of the Mentally Retarded range of intelligence to the lower end of the Borderline Mentally Retarded range of intelligence." (Id. at 4.)
Dr. Tepper wrote:
In summary, Mr. Smith possesses extremely limited and modest intellectual skills and resources upon which he can draw to interact with people and events in his environment. Although Mr. Smith is capable of engaging in a one-to-one dialog, he presently functions between the Mentally Retarded and the Borderline Mentally Retarded range of intelligence. In this regard, it would be necessary, when conveying information to Mr. Smith, to simplify and present this information in a manner consistent with Mr. Smith's cognitive functioning. In this way, there would be a higher probability that Mr. Smith would be able to comprehend the information in a manner consistent with his intellectual capacities. [Tepper Rep. of 12/13/00 at 4.]
Notwithstanding Mr. Smith's intellectual limitations, however, he did not appear to have any difficulty understanding the Court, his attorney, and the Assistant U.S. Attorney during his Rule 11 hearing on January 14th. He gave appropriate responses and at one point corrected Asbell's mistaken assertion that Smith had completed a GED. Similarly, during his testimony in this motion, spanning over 80 pages of direct and cross-examination, Mr. Smith exhibited little or no confusion or lack of understanding of any questions or terms. (Tr. 12/22/00 at 4-89.) He did sometimes pause in answering some questions before giving a responsive answer, as noted by Ms. McGinty and the Court. (See, e.g.,id. at 21:17-25.) When a question was itself confusing, rephrasing it resulted in Mr. Smith's responsive answer. (See, e.g., id. at 32:18 to 34:15.) Mr. Smith also testified that he does not write well, so he had a fellow inmate, Kyle Peed, write various letters to the Court and to AUSA Taylor, in which he volunteered to renew cooperation, among other things. Id. at 34:21 to 35:25; 38:11 to 39:6; 50:2 to 51:4.)
Mr. Smith, although sometimes slow to respond to questions posed by AUSA Taylor, had no difficulty answering his own attorney at the December 22nd hearing. He impressed as an individual who is familiar with court jargon and procedures, but who is attempting to portray himself as not understanding the meaning of common terms such as "indictment," "prosecution," "sentence to be imposed," and the like. Smith's assertions of such ignorance, given his experience in the criminal justice system and his responsiveness in hearings on January 14th and December 22nd, is not credible. Similarly, Smith's assertions that he is not good with quantitative thinking and calculations, while not untrue, has little bearing upon the issues here. He has never claimed he did not understand the difference between the possible sentences such as 5 years, 20 years, and 40 years, all of which he knew were possible outcomes if he pled guilty.
His intellectual capacities were clearly sufficient to give detailed accounts of his criminal activity to the Special Agents and to AUSA Taylor, beginning at the time of his arrest and continuing in proffer sessions with his attorney present and eventually (after January 14th) without his attorney present, all as discussed above. Until ceasing cooperation in April 2000, on the eve of his co-defendants' trial, the prosecution team regarded him as a valuable potential trial witness with good recollection of events, people and places of the drug distribution conspiracy, and they were eager to use him at trial. This is not the mark of an individual who lacks the knowledge and intelligence to voluntarily choose to enter a plea of guilty. Neither Mr. Asbell nor the FBI Special Agents in this case had difficulty in these essential communications with Mr. Smith. The record of his participation in his defense and in those proffer sessions was elaborate and it undermines his belated assertion that he did not understand much when he entered his guilty plea.
D. Asbell's Prior Representation of Phillip Robinson
Samuel Asbell formerly represented Rasheed Smith's friend, Phillip Robinson, in defending Robinson against federal drug charges in Trenton in 1998. Rasheed Smith testified that he asked his family in November 1999, to arrange for Asbell to become his lawyer in this case because he thought Asbell had done a good job for Robinson. (Tr. 12/22/00 at 13:13 to 14:7.) Smith knew that Robinson had pled guilty to a federal offense and "that he had made out all right." (Id. at 14:8 to 15:9.) He knew this information prior to meeting Asbell because his sister had told him she and Robinson had had a baby together. (Id. at 15:10-15.) Asbell met with Smith and confirmed that Robinson had cooperated and received a reduced sentence as a result. (Id. at 15:16-24.)
Asbell's representation of Robinson had concluded a year before Smith asked Asbell to represent him. It was on December 21, 1998 that Asbell represented Robinson at his sentencing on the charge of possession with intent to distribute more than five grams of crack cocaine. Robinson's guideline range was 57 to 71 months, based on Total Offense Level 23, Criminal History Category III. (U.S. v. Robinson, Tr. 12/21/98 at 5:3-10.) His mandatory minimum term was 60 months, so the resulting range became 60-71 months. Judge Cooper granted the Government's motion for downward departure under U.S.S.G. § 5K1.1 for Robinson's substantial assistance. Asbell confirmed to Judge Cooper that Robinson had given prosecutors information about "some other drug organizations in the City of Camden that he knew about." (Id. at 8:1-15.) Judge Cooper departed downward and gave Robinson a sentence of 46 months incarceration. (Id. at 11:5 and 12:10-14.)
Robinson had indeed provided information about the illegal activities of the Thurston Harris drug organization at McGuire Gardens in June 1998, when Rasheed Smith had resumed his drug dealing. Notes of Robinson's debriefings contain references to Rasheed Smith and to many others, including Bernard Winston, Robert David, Corey Kelly, Shareef Jackson, and Devin Pritchett. The government produced the investigators' notes of any statements by Robinson mentioning Smith, as ordered by the Court during this hearing. (McGinty Supp. Aff. Ex. 3.) For example, Robinson advised Special Agent James Smith on June 12, 1998, of information that was already known to law enforcement, namely, that Rasheed Smith had been detained for questioning on that date about drug trafficking, during which he was shown lists of names. (Id.) On June 17, 1998, Robinson told Special Agent Smith that Rasheed Smith had not been the person selling the crack cocaine that led to his questioning on June 12th, but that an associate, Anthony Catoe, was the individual; Robinson added, however, that Rasheed Smith did sell narcotics in the McGuire Apartments vicinity on a regular basis at the time. (Id.) On July 1, 1998, Robinson examined photographs identifying the groups of 7-10 individuals pictured, including Rasheed Smith. (Id.) Also, on July 10, 1998, Robinson relayed to Special Agent Smith some information about the car chase that led to Rasheed Smith's arrest for eluding police, including allegedly discarding a firearm or firearms during the chase. (Id.)
About a year after Robinson was sentenced, the government indicted Rasheed Smith and his co-defendants. Asbell at first did not recollect that Robinson had given information about Smith and others during the course of his cooperation more than a year earlier. Around the time of Asbell's appearance in the case in late November 1999, both AUSA Taylor and withdrawing attorney Isabel McGinty spoke with Asbell about the potential for conflict if Robinson were to be called upon to testify against Smith at trial. (See McGinty Supp. Aff. ¶¶ 10-11; AUSA Taylor Aff. ¶¶ 6-8.) Since Smith quickly decided to enter a plea of guilty and cooperate with the government, it was clear at the time of his plea on January 14, 2000 that Robinson would not be testifying against Smith, since Smith himself was not going to trial. Later on, three months after Smith's plea of guilty, the government indicated it intended to use Robinson as a witness at trial against Kelly, Winston and David, with AUSA Taylor making a detailed proffer of Robinson's testimony under Rule 404(b), Fed.R.Evid. (Tr. 4/6/00 at 14:11 to 17:5.) As to those remaining defendants, Robinson would have testified about their roles in selling crack cocaine and supervising others in the Thurston Harris organization a few months before the period covered by the indictment, on the theory that their conduct and roles were largely unchanged after Harris' death when the organization devolved into the charged conspiracy. (Id.) Robinson had also given specific information about Smith's drug dealings in this conspiracy in McGuire Gardens covering the May-July 1998 time period of the indictment, but no government proffer was made about Smith in particular since he would not be on trial. Asbell also recognized that, if the case against Smith had gone to trial with Robinson as a witness for the prosecution, he would have a conflict in his duties to his past client and his present client, being unable to effectively cross-examine Robinson.
That situation never arose, nor (for that matter) did Robinson even testify at the trial of the remaining co-defendants. Thus, Asbell would have had no conflict even if Smith had gone to trial, so long as Robinson's testimony was not adduced against Smith or his alleged co-conspirators.
It appears that the government did not need Robinson's testimony as a historical witness at trial, whether or not Smith would have gone to trial. Numerous witnesses at the Corey Kelly trial mentioned Rasheed Smith and identified him at the heart of the crack cocaine distribution scheme even though he was not on trial. These witnesses included special agents, an undercover informant, and cooperating witnesses.
Conversely, the government would have sought to disqualify Asbell if Robinson had been called as a witness against Smith because of AUSA Taylor's concern that Asbell may have been knowledgeable about any vulnerabilities in Robinson's testimony. Smith had the advantage of learning early of the contours of the government's evidence, since Smith knew of Robinson's cooperator status.
The defense has argued that Asbell's conflict materialized by the time of Smith's Rule 11 hearing, and that Asbell did not fully discuss this situation with Smith to obtain his informed consent to having Asbell continue as his attorney notwithstanding his prior representation of the potential adverse witness.
Thus, the Court must determine whether Asbell's situation impaired his effectiveness as counsel during the period leading to Smith's plea retraction on January 14, 2000, as well as Smith's decision to cooperate in proffer sessions from December 1999 through March 2000, and his eventual decision to withhold cooperation on or about April 7, 2000, as discussed above.
As a threshold matter, this Court made no inquiry into Asbell's status as Robinson's former attorney at the Smith plea retraction hearing, as the Court had no knowledge of Asbell's prior representation of Robinson nor of Robinson's role as a potential witness against Smith. It is acknowledged that there is a duty for the court to inquire into a potential conflict of interest on the part of a defendant's attorney, where the court is aware, or should be aware, of the conflict, to determine whether the defendant is aware of, and waives, this conflict.United States v. Marelli, 169 F.3d 798, 812 (3d Cir. 1990)cert. denied, 528 U.S. 820 (1990); United States v. Pungitore, 910 F.2d 1084, 1143 (3d Cir. 1990) cert. denied, 500 U.S. 915 (1991). In this case, however, the Court was unaware of Asbell's prior representation of Robinson until the present motion was filed in November 2000, so no earlier court-initiated inquiry could have been made. In the present case, the Court nonetheless directed counsel to address this issue of Asbell's situation, even though Asbell's alleged conflict of interest had not been raised as a ground to vacate the guilty plea originally. (Tr. 12/22/00 at 121:5-22.) The Court has now fully explored these issues.
Defendant Smith alleges that his decision to waive trial on January 14, 2000 entailed an actual conflict of interest because at that point, "the attorney's and the defendant's interest `diverged with respect to a material factual or legal issue or to a course of action.'" (Def. Post-Hearing Mem. at 23, quotingCuyler v. Sullivan, 446 U.S. 335 n. 3 (1980) (Marshall, J., concurring in part). The defendant posits that Asbell could not properly advise Smith that Robinson gave the Government information about the Thurston Harris drug operation at the very time that the Government was attributing one or more drug distribution acts to Smith. (Id. at 23.) Smith argues that Asbell's duties to Robinson precluded him from helping Smith to weigh the significance of Robinson's evidence, and that this rose to the level of an actual conflict, the "simultaneous representation of conflicting interests against which the Sixth Amendment protects a defendant." Id., quoting Cuyler v. Sullivan, 446 U.S. at 356 (Marshall, J., concurring in part). Where such a conflict arises, the defendant will prevail in a claim of ineffective assistance if he shows that a "lapse in representation" resulted from the conflict. Strickland v. Washington, 466 U.S. 692, 693 (1984).
In this case, Asbell's representation was multiple but not joint — he ceased representing Robinson about a year before he represented Smith, and the two were not alleged co-defendants. In this situation, Third Circuit precedent teaches:
In order to establish an actual conflict the petitioner must show two elements. First, he must demonstrate that some plausible alternative defense strategy or tactic might have been pursued. He need not show that the defense would have been successful if it had been used, but that it possessed sufficient substance to be a viable alternative. Second, he must establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988)cert. denied 492 U.S. 906 (1989); see United States v. Morelli, 169 F.3d 798 (3d Cir.) cert. denied, 528 U.S. 820 (1999); see also United States v. Malpiedi, 62 F.3d 465, 469 (2d Cir. 1995).
Here, defendant alleges that the alternative defense strategy would have involved "scrutiny of any Miranda issues" impairing Smith's post-arrest statements to FBI agents, and to refrain from waiving his rights to go to trial, or at least to pursue a more favorable plea agreement in terms of the quantity of drugs attributable to Smith (1.5 kg. of crack cocaine). See Def. Post-Hearing Mem. at 26-29. Defendant Smith argues that Asbell was dissuaded from pursuing these strategies because they could result in a trial and bring about a conflict in duties owed to Robinson and to Smith.
While such courses of action are always "plausible" (in the sense that every defendant can choose to go to trial, contest the admissibility of post-arrest statements, or seek a more favorable plea agreement), the record does not reveal that any of these tactics had "sufficient substance to be viable," nor that they were not undertaken due to Asbell's loyalties to Robinson.
On November 17, 1999, 10 days prior to Asbell's entry into the case, Smith had given an extremely inculpatory confession to Special Agents of the FBI, and he had begun cooperating by identifying photographs and providing information about the other defendants, as discussed above. Special Agent Smith read the defendant his Miranda rights and also had Smith read the "Interrogation/Advice of Rights" form to himself and to sign it if he wished to waive those rights and give a statement. (See FBI Form 302, dictated 11/22/99, at Ex. A of Govt's Br. of 12/6/00.) Smith signed the form indicating his knowing waiver, as witnessed by S/A Smith and HUD S/A Higgins. (Id.)
At the hearing, Smith acknowledged his signature and that he understood his rights, that no one forced him to give a statement, and that he made the statements attributed to him. (Tr. 12/22/00 at 6:10-8:2.) Where Smith himself admitted his non-coerced and knowing waiver, and the paperwork confirms this, there simply was no basis for Asbell to raise a Miranda or voluntariness issue. His advice to Smith to continue his cooperation and to plead guilty was the product of the facts of his client's case, and not some manifestation of Asbell's alleged conflict. Asbell's conduct was thus motivated by his loyalty to Smith alone, and to no other interest, hoping to salvage a favorable plea arrangement from a very bleak situation.
Defendant has likewise not shown how Asbell's negotiation of a plea agreement stipulating to an amount of drugs of 1.5 kg. may have been motivated by some divided loyalty or self-interest. In any event, Smith's own statement showed a clear understanding of the drug distribution conspiracy of which he was an important member, and how he began selling crack cocaine for this organization upon his return from prison in early May 1998. Each quarter-ounce of crack would be sufficient for 300 bags, bundled 20 at a time, sold for $100 per bundle. A street-level seller or "trapper" received $20 per bundle and made $200 to $300 per 8-hour shift, meaning sales of 10-15 bundles (1/4 ounce) per "trapper" per shift. There were three shifts per day and often multiple sellers per shift. He himself sold about a half ounce of crack per week, according to his statement, and he also bagged the substance for sales by others. His deep and intensive involvement, both self-confessed and observed by the government's undercover informant and surveillance, did not make a trial a "plausible alternative defense strategy" for Rasheed Smith. Moreover, there was evidence from Smith's own confession to support the quantity of drugs in the stipulation and to avoid being saddled with a much greater quantity, and in any event there is simply no logical nexus between Asbell's prior representation of Robinson and his assistance to Smith in stipulating to the Level 38 guideline associated with distribution of 1.5 kg. of cocaine base.
Although these facts compel rejection of the notion that Asbell's prior representation of Robinson gave rise to any conflict of interest in his assistance to Smith, it should also be noted that there is no testimony, after two days of hearings, that Smith ever wanted to go to trial, or that Asbell somehow diverted Smith from exercising his right to trial. Neither Smith nor his present counsel, Isabel McGinty, Esquire, has indicated that Smith had or has any plausible trial defense that Asbell failed to explore, let alone that Asbell's prior representation of Robinson played some role in Asbell's failure to act, as Smith now asserts.
In summary, the Court finds that attorney Asbell's prior representation of potential government witness Phillip Robinson did not impair or render Asbell less than effective in Asbell's representation of Smith during the entry of Smith's guilty plea and ongoing cooperation, and it presents no basis for setting aside Smith's plea of guilty.
III. CONCLUSIONS OF LAW
Under Rule 32(e), Fed R. Crim. P., the Court may permit a defendant to withdraw a plea of guilty for any fair and just reason. Three factors are considered in evaluating a motion to withdraw: (1) whether the defendant asserts his innocence; (2) whether the government would be prejudiced by the withdrawal; and (3) the strength of the defendant's reason to withdraw the plea.United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001);United States v. Huff, 873 F.2d 709, 711 (3d Cir. 1989). The Third Circuit has also made clear that "[a] shift in defense tactics, a change of mind, or the fear of punishment are not adequate reasons to impose on the government the expense, difficulty and risk of trying a defendant who has already acknowledged his guilt by pleading guilty." Brown, supra, 250 F.3d at 815, (quoting United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992), superseded by statute on other grounds as stated in, United States v. Roberson, 194 F.3d 408, 417 (3d Cir. 1999)).The first factor, whether the defendant asserts his innocence, is not implicated here. Smith has never alleged that he is not guilty of the offense to which he pled guilty. His allocution under oath at the Rule 11 Hearing not only admitted guilt, but gave a detailed factual basis for each element of his guilt. (Tr. 1/14/00 at 33-35.) His declaration of guilt and acceptance of responsibility were reported to the Probation Office in the presentence interview process. See PSR at 17, ¶ 80 (noting that the defendant "merits a guideline reduction pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility"). Finally, Smith's present motion itself admits: "Mr. Smith's motion does not implicate the first factor." (Def. Mem. in Support at 19.) Absent a credible assertion of innocence and strong reasons to withdraw, a motion to withdraw should be denied. United States v. Jones, 979 F.2d at 318; United States v. Harris, 44 F.3d 1206, 1210 n. 1 (3d Cir.), cert. denied, 514 U.S. 1088 (1995).
The second factor, whether the government would be prejudiced by the withdrawal, likewise strongly militates against granting Smith's motion. Smith waited until months after the trial of his co-defendants was concluded to move to withdraw his guilty plea. The government was put to its proofs of this conspiracy in a four-week trial, resulting in convictions and sentences of co-defendants Kelly, David and Winston, which have all been affirmed on appeal. The government has necessarily revealed its witnesses and other evidence which would similarly apply to Rasheed Smith if he were now to go to trial on these same charges. Furthermore, the cooperating co-defendant, Carlton Syms, who testified at trial, had also been sentenced by the Court on October 30, 2000. This prejudice to the United States from having to retry this case if Rasheed Smith were permitted to change his plea, would be real, substantial and unfair.
United States v. Corey Kelly, et al., App. Nos. 00-2705, 00-2849 and 00-3688 (3d Cir. Oct. 26, 2001) (unpublished), published in part at 272 F.3d 622 (3d Cir. 2001).
A second cooperator who testified at trial, namely Devin Pritchett, has been sentenced by the Hon. Joseph H. Rodriguez in Cr. No. 99-632, on April 25, 2001, upon a downward departure under § 5K1.1, according to the Court's records.
The third factor, the strength of the defendant's reasons to withdraw his guilty plea, has been examined above in detail. This Court finds no merit to Defendant's claims that his plea of guilty was not done knowingly, voluntarily, and with the effective assistance of counsel. Smith understood his written plea agreement. As found above, counsel explained to Smith his options of going to trial, pleading guilty and extending further efforts of cooperation with the government. He explained, as did the Court, the consequences of pleading guilty and the jeopardy into which he would be placing himself if he pled guilty, and Smith well knew that he risked a sentence of 5 to 40 years. Smith further well understood that a likely sentence in the absence of substantial cooperation could be 20 years or more. Smith also understood that there was no promise made regarding what his sentence would be, either with cooperation or without, because his sentence remained to be determined in the presentence and sentencing phases. To the extent that Smith now claims that Asbell improperly assured him that his sentence would be only 5 years in the absence of cooperation, Smith's testimony is false. Asbell advised Smith, as did the Court, that his risk was much greater.
Further, the contention that Asbell may have underestimated Smith's eventual Guideline Range, and was thus ineffective, is rejected for several reasons. First, the Court has not yet determined what the Guideline Range at sentencing will be. Second, defense counsel is not required to predict with unfailing accuracy what the eventual Guideline Range will be. The Third Circuit has made clear that "all the law requires is that the defendant be informed of his/her exposure in pleading guilty. The law does not require that a defendant be given a reasonably accurate `best guess' as to what his/her sentence will be; nor could it, given the vagaries and variables of each defendant's circumstances and offending behavior." United States v. Mike Mustafa, 238 F.3d 485, 492 n. 5 (3d Cir., Feb. 1, 2001) (citingUnited States v. Cleary, 46 F.3d 307, 311 (3d Cir. 1995)). Moreover, Asbell's discussions with Smith prior to the plea agreement were largely premised upon Smith's then-ongoing cooperation with the prosecution, following several productive proffer sessions. Smith's thinking may have been focused upon his hopes of earning the possibility of a downward departure below the 5-year mandatory minimum through the mechanism of 18 U.S.C. § 3553(e), as mentioned in the "Cooperation" portion of his written plea agreement. The government, the defendant and defense counsel, by accepting and subscribing the plea agreement, all acknowledged this possibility.
Further, as found above, Smith's prior attorney, Samuel Asbell, Esquire, had no actual conflict of interest in representing Smith, and the potential conflict that Asbell's former client Phillip Robinson might be a government witness at trial did not influence Asbell's performance and advice to Smith, nor did it deprive Smith of the effective assistance of counsel. Smith has failed to demonstrate that some plausible defense strategy or tactic might have been pursued, and that the alternative strategy or tactic was inherently in conflict with, or not undertaken, due to Attorney Asbell's loyalties or interests arising from having represented Robinson, as required by United States v. Gambino, supra, 864 F.2d at 1070.
Finally, it was Smith's own decision to cease cooperation, against the reasonable and responsible advice of Asbell, on the eve of his co-defendants' trial in April 2000, that deprived Smith of the possibility of a reduced sentence by way of the § 3553(e) departure, supra. Asbell is not to blame for Smith's decision, and Smith well knew, as Asbell and even the case agents repeatedly advised him, that his likely sentence would be 20 years or more in the absence of cooperation. It was not until Smith saw the reality of the draft PSR in June 2000, and the proposed Guideline Range calculations therein, that he first expressed any dissatisfaction with Asbell and requested new counsel in July 2000, as discussed above. The fact that the defendant abruptly changed his mind about giving cooperation through testimony at trial is not sufficient to allow withdrawal of the plea. See United States v. Isaac, 141 F.3d 477, 485 (3d Cir. 1998). Smith's sense of loyalty to his former co-conspirators is a matter of his own choice, but so is the consequence. His present fear of a potentially substantial sentence — a change of mind arising from fear of punishment — is not an adequate reason to overturn his knowing, intelligent and voluntary plea of guilty. United States v. Jones, 979 F.2d at 318; United States v. Huff, 873 F.2d at 712; United States v. Harris, 44 F.3d at 1210 (finding no abuse of discretion in district court's denial of motion on ground that defendant sought to change plea because he "had a change of heart after reading the presentence report and contemplating the possible sentence").
For the foregoing reasons, defendant's motion to withdraw his plea of guilty is denied. The accompanying Order is entered.
ORDER
THIS MATTER came before the Court upon Motion of Defendant, Rasheed Smith, for leave to withdraw his plea of guilty; andThe Defendant having appeared through his attorney, Isabel McGinty, Esquire, and the United States having appeared through Stephen J. Taylor, AUSA; and
The Court having considered all submissions and arguments of counsel, together with the testimony and evidence presented at the hearing upon this Motion; and
The Court having concluded, for reasons stated in its Opinion of today's date, that Defendant's Motion should be denied;
IT IS on this 10th day of January, 2002, hereby ORDERED and ADJUDGED that Defendant's Motion to withdraw his plea of guilty shall be, and it hereby is, DENIED.