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UNITED STATES v. SMITH

April 8, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
ERSKINE SMITH, II, Defendant.



The opinion of the court was delivered by: MAURICE B. COHILL, JR.

 Presently before the Court is the pro se motion of defendant Erskine Smith, II, to withdraw his guilty plea, filed on February 25, 1993. On March 30, 1993 we held a hearing on the matter and for the following reasons, we will deny the motion.

 I. Background

 The grand jury charged defendant Erskine Smith, II with: (1) two counts of unlawful possession with intent to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(a)(iii); (2) two counts of unlawful possession with intent to distribute less than five grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); (3) two counts of unlawful possession with intent to distribute less than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(C); and (4) one count of unlawfully conspiring to distribute and possessing with intent to distribute less than five grams of cocaine base in violation of 21 U.S.C. 846; and (5) one count of unlawful distribution and possession with intent to distribute less than five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

 Six of the eight counts in the indictment arose from charges which originally arose in state court and were nol prossed. Counts seven and eight arose after a Drug Enforcement Administration (DEA) investigation of Mr. Smith, involving a confidential informant, Warren "Butch" Parrott. Parrott wore a body recorder and transmitter while he purchased crack cocaine from Mr. Smith in one of many cars owned by Mr. Smith. Co-defendant Michael Vaughn was in the car at the time of the purchase.

 On November 13, 1992, weeks prior to Mr. Smith's guilty plea, the government sent a letter to Mr. Smith's attorney, in which the government estimated that with a three-level decrease in the base offense due to acceptance of responsibility credit, the defendant would be subject to a sentence ranging from 108 to 135 months imprisonment. Def. Ex. 1 at 1. The letter further advises, "the above calculations are arrived at by assuming Mr. Smith has a Criminal History Category of I (0-1 prior convictions)." Def. Ex. 1 at 2.

 Prior to the guilty plea, and at the request of Mr. Smith's attorney, the Assistant United States Attorney and the investigating DEA agent twice visited Mr. Smith at the Butler County jail, where he was being detained. Mr. Smith testified that he does not remember requesting either meeting, and the DEA agent did not recall if Mr. Smith requested to speak with the government about entering a plea of guilty. The agent believes that he was contacted by Mr. Smith's attorney, Bruce Carsia.

 DEA Agent Rotter testified that on the first visit to Butler County jail, the Assistant United States Attorney outlined the case, told Mr. Smith what evidence the government had against him, and told Mr. Smith and attorney Carsia to contact them if he wanted to cooperate. At some point there was a three-way phone call between Mr. Smith, Mr. Carsia, and agent Rotter, during which agent Rotter explained that the government would want Mr. Smith's full cooperation in testifying against Michael Vaughn as a condition to the government requesting a reduction of Mr. Smith's sentence. At the second meeting at the Butler County jail, Mr. Smith indicated that he was willing to cooperate even though Michael Vaughn is a friend of his; he said that he understood that the government could not make him any promises regarding his eventual sentencing.

 It was not until New Year's Eve, three days before the January 4, 1993 trial date, that Mr. Smith decided to plead guilty.

 On January 4, 1993, the date set for trial, Mr. Smith pleaded guilty to all eight counts in the indictment. We conducted a lengthy colloquy at the time of Mr. Smith's guilty plea. During the colloquy, Mr. Smith stated to the court that he understood all the terms of the plea agreement (Tr. 20) and what his possible statutory sentence could be (Tr. 14-16). He now claims that he was "told to say that." He also testified that he had discussed pleading guilty with his parents (T. at 23) but denied this at the instant hearing. His parents also testified at the instant hearing that he had not discussed it with them.

 The defendant and the government entered into a plea agreement, which we admitted into the record. Def. Ex. 2. The plea agreement states that Mr. Smith "will assist law enforcement agencies in investigating violations of federal narcotics laws, during the period from 1990 to the present, allegedly committed by Michael C. Vaughn and others." Def. Ex. 2 at P A2. Mr. Smith further agreed to "provide all information within his knowledge concerning the investigation. All information will be full, complete, accurate and truthful." Def. Ex. 2 at P A4.

 The agreement further states that "in consideration of and entirely contingent upon the foregoing" the government would recommend a reduction in the offense level by three levels for acceptance of responsibility. Def. Ex. 2 at P B3 (emphasis added). If Mr. Smith is deemed not to have cooperated with the government, "the obligations of the United States Attorney under this agreement are terminated. . . . Any plea of guilty previously entered will stand, however, and Erskine Smith, II, will not have the right to withdraw the plea of guilty by virtue of his breach of this agreement." Def. Ex. 2 at P C6.

 At the time of the guilty plea, Smith was represented by Bruce Carsia, Esq., who withdrew from this case on March 12, 1993 after Smith alleged ineffective assistance of counsel. He is now represented by Joel Johnston, Esq.

 Immediately after Mr. Smith's guilty plea, DEA agent Rotter attempted to elicit information from Mr. Smith regarding various alleged drug transactions between Mr. Smith and others, including co-defendant Michael Vaughn. Mr. Smith refused to cooperate with the ...


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