nether end of a criminal caption, one assumes the risk that not every little tete-a-tete with that client will be all peaches and cream. One just has to overcome that and get across the salient facts, necessary for that client to make an intelligent decision. The client has a right not to be left in the foggy dark.
From the proposed agreement, one would tend to be lulled into thinking that one was, at most, looking at five years. Thirty years is a distinction with a difference -- something that can make a significant dent in the remainder of a 45-year-old's life. His attorneys' failure to inform Mr. Kates about his actual sentence exposure was unreasonable. Absent that vital, bottom-line information, he could not make an intelligent decision about whether to stand trial or accept the government's offer. The caselaw teaches that where an attorney has incorrectly or insufficiently advised a defendant regarding the plea agreement, such that the defendant could not make an intelligent decision about whether to accept it or not, then counsel has failed to provide effective assistance. United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992). The defendant's knowledge of the comparative sentence exposure between going to trial and accepting a plea agreement may be central to this decision. I find, therefore, that Mr. Kates has satisfied his burden of proving unreasonableness, the first prong of Strickland.
As for actual prejudice, Strickland's second prong, Mr. Kates must show that there is a reasonable probability that he would have accepted the government's plea agreement.
Day, 969 F.2d at 45 n.8. A defendant can prove reasonable probability by: (1) testifying that he would have accepted the plea, (2) proving that the proposed plea agreement was much more favorable than the actual sentence, and (3) proving that at trial he followed counsel's advice not to testify in light of his criminal history. Day, 969 F.2d at 46 (citing Williams v. State, 326 Md. 367, 605 A.2d 103 (Md. 1992)). I consider the evidence in the context of this tripartite test.
Mr. Kates testified at the § 2255 hearing that had he known that he faced a mandatory minimum of sentence of 30 years, he would have taken the deal. The government suggests that this is but a post-conviction effort to eat his cake and have it, to grab the benefit of a deal which he had spurned, having already put the government to the test of trial. Judge Waldman has characterized this as sandbagging. Day, 969 F.2d at 46 n.9.
Mr. Kates is an adamant man, full of fighting fervor. He felt the intensity of his cause as few that I have seen. But just as he is adamant, neither is he dumb.
He says that had he known he would have been looking at a possible five years or less,
as opposed to a certain (assuming conviction) 30 years to life, that drastic difference would have been a sufficiently persuasive influence to cause him to change his plea and cooperate. Mr. Kates's credibility is not an easy nut to crack. The vigor of his repeated professions of innocence has always seemed so unshakable. But I have seen many a defendant, seemingly utterly intransigent as to the possibility of pleading guilty, finally cave in when confronted with the ugly reality of what probably would happen to him if he did not. I conclude that Mr. Kates falls within this category. At least, suffice it to say that I do find as a fact that there is a reasonable probability that he would have accepted the government's plea agreement. Thus, I conclude that Mr. Kates has been denied his Sixth Amendment right to effective assistance of counsel.
I turn now to the relief to which Mr. Kates is entitled for the deprivation of his Sixth Amendment rights. The remedy for such a violation "should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests." United States v. Morrison, 449 U.S. 361, 364, 66 L. Ed. 2d 564, 101 S. Ct. 665 (1981). Day collects some examples of possible remedies for this type of Sixth Amendment violation. One option is to give Mr. Kates a second opportunity to accept the plea agreement previously offered and to be resentenced accordingly. 969 F.2d at 47 (citing Williams, 605 A.2d at 110-11). He testified, however, that he has had no contact with and no longer knows the whereabouts of the people with whom he associated before his arrest in 1990 (Trans. at 49) and the parties concede that Mr. Kates's cooperation would no longer be valuable to the government. He no longer has any quid for the government's quo.
Another option might be to reinstate the plea negotiations and order a new trial if these negotiations fail. Day, 969 F.2d at 47 (citing Commonwealth v. Napper, 254 Pa. Super. 54, 385 A.2d 521 (Pa. Super. 1978)). That obviously would not work; as mentioned, he no longer has information of value to the government. Nothing is so stale as yesterday's news. It's a little bit like trying to renegotiate, or draw straws, for positions in the starting gate at Churchill Downs, after the garland of roses has already been draped. Nobody cares. There is nothing now to negotiate, at least insofar as Mr. Kates's cooperation might tend to sweeten his deal. Further, the government's case might no longer be so strong. Witnesses disappear; witnesses die; memories fade. This might strengthen Mr. Kates's hand, enabling him to strike a better bargain. But that seems neither fair, nor just. There is no perfect remedy, yet there must nevertheless be some remedy.
Balancing the equities, the competing pros and cons, I conclude that the least unjust resolution would be to resentence Mr. Kates upon his conviction, but without the career-offender finding under § 4B1.1. It is that provision that stuck him with a mandatory 30-year minimum, and it was that provision and his various attorneys' failure to let him in on it, to let him know of its devastating looming presence in his case, that made their assistance ineffective. I recognize that this tends to penalize the government, whisking away from its grasp in this case a significant sentencing enhancer, a factor that I have already found to be borne out by the facts and the law. This will, however, tend to allay at least some of the real harm to Mr. Kates caused by his attorneys' failure to inform him about the true range of his sentence exposure.
Perhaps we are coming to the point in the federal law of sentencing where a pre-colloquy colloquy is needed. About half the cases in this district entail 5K motions. With cases of cooperating guilty pleaders, if the government were to take a more assertive role in spelling out, on paper, not only its offers, but also the specific, possible consequences of not accepting those offers (such as the prospect of a mandatory 30 years to life), such after-the-fact misunderstandings and mutually unsatisfactory consequences as have occurred here could be avoided.
I shall resentence Mr. Kates consistent with the above opinion.
An Order follows.
AND NOW, this 24th day of May, 1996, it is hereby ordered that:
1. petitioner's Motion, pursuant to 28 U.S.C. § 2255, to Vacate, Set Aside or Correct the Criminal Sentence is GRANTED, and his previous sentence is VACATED;
2. petitioner shall be brought in for resentencing.
BY THE COURT:
Robert S. Gawthrop, III, J.