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U.S. v. WILKES

October 13, 2005.

UNITED STATES OF AMERICA
v.
ALTIMONT WILKES.



The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge

MEMORANDUM

Presently before the court is defendant's motion to withdraw his guilty plea (Doc. 72). Defendant asserts that he has "fair and just reasons" for withdrawing his guilty plea — namely, ineffective assistance of counsel. (Doc. 73 at 1, 3.) At a plea colloquy, the court informed and questioned defendant regarding the ramifications of a plea of guilty. (Docs. 66, 67.) Defendant's responses demonstrated that he understood his legal rights as well as the consequences of a guilty plea. The court concluded that defendant's plea was informed and voluntary, supported by an independent and adequate factual basis. (Docs. 66, 67). The court is not persuaded to change its conclusion based upon the instant motion. Defendant will not be permitted to withdraw his guilty plea.

I. Factual and Procedural Background

  On August 25, 2004, defendant was indicted on six counts involving the sale of crack cocaine — four counts charging defendant with the use of a communication facility to facilitate the distribution of crack cocaine in violation of 21 U.S.C. § 843(b) and two counts charging defendant with possession with intent to distribute five grams or more of a mixture or substance containing a detectable amount of crack cocaine in violation of 21 U.S.C. § 841(a)(1). (Doc. 1.) On October 12, 2004, defendant appeared before a magistrate judge and entered a plea of not guilty. (Doc. 9.)

  After several continuances (see Docs. 24, 29, 32, 34, 36), on April 18, 2005, defendant filed a motion (Doc. 37) ("Speedy Trial Act motion") to dismiss the indictment, claiming a violation of the Speedy Trial Act, 18 U.S.C. § 3161. The court denied this motion. (Doc. 40.)

  In order to address defendant's interest in preserving his Speedy Trial Act issues, the government offered to defendant a conditional plea agreement containing the following provision:
12A. Pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, with the approval of the court and the consent of the government, the defendant enters a conditional plea to the charges described in the Plea Agreement while reserving the right on appeal to review the adverse determination by the district court of the defendant's motion to dismiss the Indictment for an alleged violation of the Speedy Trial Act. The parties acknowledge that the defendant shall be allowed to withdraw any plea of guilty if the defendant prevails on appeal.
(Doc. 46 ¶ 12A.) Defendant's court-appointed attorney, Christopher A. Ferro ("Attorney Ferro"), informed defendant in a letter, dated April 26, 2005, that the above-quoted provision "indicates that the Plea Agreement is conditional and reserves us the right to appeal the District Court's decision on our previously filed Motion to Dismiss." (Doc. 73, Ex. A.) Defendant points to this letter, and the plea colloquy, to establish that Attorney Ferro gave him the erroneous advice that "all of [his] claims averred in the motion to dismiss were protected for appellate review." (Doc. 73 at 2.) The plea agreement also contains the following paragraph which is material to the court's disposition of the instant motion:
27. The defendant agrees not to pursue or initiate any civil claims or suits against the United States of America, its agencies or employees, whether or not presently known to the defendant, arising out of the investigation, prosecution or cooperation covered by this agreement, including but not limited to any claims for attorneys' fees and other litigation expenses arising out of the investigation and prosecution of this matter. By the defendant's guilty plea in this matter the defendant further acknowledges that the government's position in this litigation was taken in good faith, had a substantial basis in law and fact and was not vexatious.
(Doc. 46 ¶ 27)

  On June 1, 2005, defendant entered a conditional plea of guilty (Doc. 60) to two counts in the superseding information (Doc. 44), charging defendant with Interstate Travel in Aid of Racketeering in violation of 18 U.S.C. § 1952(a)(3). Prior to accepting the conditional plea, the court conducted two colloquies with defendant on May 2, 2005 and June 1, 2005.*fn1 During the course of these colloquies, defendant confirmed that Attorney Ferro had explained all of the terms of the plea agreement and explained the charges to which defendant was pleading guilty. (Doc. 66 at 14, 17). Defendant stated that he understood the nature of the charges against him, the offenses to which he was pleading guilty, the possible maximum sentences involved, the limitation on his right to appeal, and the waiver of certain constitutional rights, including the right to a jury trial and the right of confrontation. (Doc. 66 at 13-16, 29-33).

  During the May 2, 2005 plea colloquy, the government, at the court's request, summarized the essential terms of the plea agreement. In doing so, the government summarized paragraph 12A and stated the following regarding paragraph 27:
There is one provision in there that said [defendant] waives his right to pursue any civil actions, and I think with the sole exception of his wanting to pursue the return of this vehicle that been mentioned by [Attorney] Ferro, I don't have a problem with that. If it was taken improperly and he's got a basis to pursue it, that's fine.
(Doc. 66 at 19.)
  Defendant questioned the court several times regarding his appellate rights under paragraph 12A — the conditional provision — and his right to file civil claims. Specifically, defendant asked whether the plea agreement preserved his rights regarding his claim of a denial of a pre-transfer hearing in Maryland under the Uniform Criminal Extradition Act, and he indicated that he wanted to file a § 1983 claim on the issue. (Doc. 66 at 9, 20, 23, 26-27.) The court responded as follows:
This plea agreement addresses your Speedy Trial Act appellate issues and allows you to pursue that on consent of the government and the court, and I have no problem with you pursuing that on appeal, which makes this a conditional plea, and you'll be entitled to withdraw your plea if for some reason the Third Circuit reverses my decision and determines that there was a Speedy Trial Act violation. . . .
[P]aragraph 27 would operate to bar any claim against the government for actions taken in connection with your arrest and prosecution, but [the government] is saying that to the extent you wish to make a claim for your vehicle, . . . you may do so.
(Doc. 66 at 21-22.) [Your claim that you did not have a pre-transfer hearing under the Uniform Criminal Extradition Act is] not an issue that I can tell you is preserved for appellate review, because frankly it isn't.
 (Doc. 66 at 24.)
 
If there is an issue that you didn't raise, it's probably going to be deemed to be waived. If there is an issue that you raised . . . within the context of your motion for dismissal based upon Speedy Trial Act violations, what would reasonably fall within the four corners of that motion is preserved for appellate review.*fn2
(Doc. 66 at 27-28.)

  After the court responded to his questions and concerns, defendant acknowledged that he understood the court and defendant did not object to proceeding with the guilty plea hearing.*fn3 During the June 1, 2005 plea colloquy,*fn4 the court asked defendant if he had any questions regarding the plea agreement or anything that was covered during the initial plea colloquy. (See Doc. 67 at 11.) Defendant responded that he was "fully informed." (Doc. 67 at 11.) Attorney Ferro then verified the understanding from the initial plea colloquy regarding paragraph 12A — the retention of defendant's appellate rights on the Speedy Trial Act motion — and paragraph 27 — retention of a civil claim only with respect to defendant's vehicle. (Doc. 67 at 11-12.) Following this verification, defendant did not raise any objections and he pleaded guilty. (Doc. 67 at 12.) The court found that defendant was capable of entering an informed plea and that his plea was knowing and voluntary. (Doc. 67 at 13.)

  Nearly three months later, before sentencing, defendant filed a motion (Doc. 71) to proceed pro se and the instant motion (Doc. 72) to withdraw his guilty plea. After a hearing, the court found that defendant knowingly, intelligently, and voluntarily waived his right to representation*fn5 and granted the motion to proceed pro se. (Doc. 82.)

  In the instant motion, defendant claims that ineffective assistance of counsel is a "fair and just reason" to withdraw the guilty plea. (Doc. 73 at 1, 3.) Defendant alleges that Attorney Ferro erroneously advised him that claims in the Speedy Trial Act motion would be preserved. He also contends that Attorney Ferro painted a grim picture of the outcome of a jury trial and erred by advising him that the alleged violations of the Federal Extradition Act and the Uniform Criminal Extradition Act were not defenses to the charges of the indictment.*fn6 (Doc. 73 at 1, 4.) Attorney Ferro responded to defendant's claims by distinguishing the case law relied upon by defendant and by explaining why defendant's claims did not provide a defense. (Doc. 73, Exs. B, C.)

  After initially opposing defendant's motion to withdraw his guilty plea (Doc. 77), the government filed a supplemental response, stating that it no longer opposes the motion because the government's case is substantial and the ...


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