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United States v. Purcell

October 21, 2009

UNITED STATES OF AMERICA
v.
JOHN PURCELL



The opinion of the court was delivered by: Dubois, J.

MEMORANDUM

I. INTRODUCTION

Defendant John Purcell was convicted by a jury trial of one count of conspiracy to manufacture and distribute methamphetamine, in violation of 21 U.S.C. § 846, and one count of manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. At sentencing, the Court imposed a twenty-year sentence, the mandatory minimum sentence for the offenses.

Presently before the Court are two pro se motions*fn1 filed by defendant. The first, a Motion to Vacate, Set Aside, and/or Correct Sentence, and Authority in Support Thereof, Brought in Accordance with 28 U.S.C. § 2255 ("§ 2255 motion"), was filed on January 31, 2008 and raises two ineffective assistance of counsel claims. With regard to the first claim, defendant argues two related issues: (1) that counsel was ineffective for advising him that he would receive a sentence of twenty (20) years or more regardless of whether he pled guilty, which advice was allegedly incorrect to the extent that the government's withholding of an Information under 21 U.S.C. § 851,*fn2 with or without a plea agreement, would have avoided the twenty-year mandatory minimum sentence arising from defendant's prior convictions, and (2) that counsel was ineffective for failing to pursue plea negotiations based on the government's withholding of a § 851 Information.*fn3 Defendant's second claim alleges that counsel was ineffective for failing to communicate with him regarding the filing of a notice of appeal.

On April 8, 2008, following the filing of the government's response to his § 2255 motion, defendant filed the second motion, a pro se Motion for Discovery, Pursuant to Rule 6(a) of the Rules Governing Section 2255 Proceedings ("Discovery Motion"). In the latter motion, defendant requests discovery on other cases in which the government did not file § 851 Informations even though the defendants were eligible for enhanced penalties. On June 2, 2008, defendant, through counsel, filed a Supplemental Memorandum in Support of his Motion for Discovery. In that filing, defendant requested additional discovery, specifically "any and all memoranda, handbooks and other writings detailing the government's policies concerning the filing of § 851 Informations, and any and all memoranda, notes or other writing concerning plea discussions or the filing of § 851 Information in the underlying matter." (Supp. Disc. Memo. 1.)

The Court held a hearing on February 24, 2009. Upon consideration of the evidence presented at that hearing and the arguments of counsel, for the reasons set forth below, the Court denies defendant's §2255 Motion. The Discovery Motion, as supplemented, is granted in part and denied in part. The Discovery Motion is granted with respect to defendant's requests for "any and all memoranda, hand books and other writings detailing the government's policies concerning the filing of 851 Informations" not previously produced and "any and all memoranda, notes or other writings concerning plea discussions or the filing of 851 Information in the underlying matter." The Discovery Motion, as supplemented, is denied with respect to defendant's request for "information concerning the identity of cases in which defendants were eligible for enhancement under 21 U.S.C. §851, but in which such enhancement was withheld."

II. BACKGROUND

On December 14, 2005, defendant was charged in two counts of a three-count Indictment as follows: Count 1 - Conspiracy to manufacture and distribute methamphetamine, in violation of 21 U.S.C. § 846; Count 2 - Manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. Gregory Pagano, Esq., was retained as defense counsel. At his arraignment on December 21, 2005, defendant pled not guilty. Defendant's trial was initially scheduled to commence on February 14, 2006, but was later continued to July 31, 2006.

On July 13, 2006, approximately two weeks before trial, Kenya Mann, the Assistant United States Attorney assigned to prosecute the case, filed an Information pursuant to 21 U.S.C. § 851 ("§ 851 Information"). The Information covered two prior convictions-a November 28, 1988, conviction for distribution of methamphetamine and an October 31, 1989 conviction for conspiracy to distribute P2P and to manufacture methamphetamine. If convicted of the crimes charged in the Indictment-manufacturing or conspiring to manufacture in excess of 500 grams or more of methamphetamine-defendant's prior convictions, as stated in the § 851 Information, would have made him a career offender and subjected him to a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A).

Trial commenced on July 31, 2006. On August 3, 2006, the jury found defendant guilty of the offenses charged in Counts 1 and 2 of the Indictment. The jury further found that defendant was responsible for manufacturing and conspiring to manufacture in excess of five hundred (500) grams of a mixture or substance containing a detectable amount of methamphetamine.*fn4

Prior to sentencing, the United States Probation Office determined that the 1988 and 1989 convictions listed in defendant's § 851 Information were related.*fn5 Because the two convictions were related, defendant did not qualify as a career offender under Section 4B1.1 of the United States Sentencing Guidelines. That provision of the guidelines having been found inapplicable, the Presentence Report ("PSR") calculated a total offense level of 37 and a criminal history category of III, resulting in a guideline imprisonment range of 262 to 327 months. At the sentencing hearing on May 16, 2007, the Court ruled that defendant's prior convictions were related for purposes of the career offender guideline and adopted the guidelines calculations in the PSR. The Court also concluded that the two convictions were related for purposes of the enhanced penalties in 21 U.S.C. § 841(b)(1)(A), resulting in a mandatory minimum sentence of twenty (20) years imprisonment, not life imprisonment. The Court granted defendant's Motion for Downward Departure and sentenced defendant to incarceration for 240 months-the twenty (20) year statutory mandatory minimum. Defendant did not file an appeal.

On September 25, 2007 defendant filed a Pro Se Motion to Modify Sentence, and Authority in Support Thereof, Brought Pursuant to Title 18, U.S.C. § 3582(c)(1)(B). In that motion, defendant argued that 18 U.S.C. § 3582(c)(1)(B) provided the Court with discretion to sentence him below the twenty (20) year statutory mandatory minimum sentence required by 21 U.S.C. § 841(a)(1) in light of defendant's poor health. Defendant also argued that his sentence was improper because the Court did not conduct a colloquy to determine whether he affirmed or denied his prior convictions, as required by 21 U.S.C. § 851(b). Thereafter, on October 15, 2007, defendant filed a Pro Se Motion to Stay Sentence of Imprisonment and for Release on Bond pending the Court's ruling on the Motion to Modify Sentence. The Court denied both motions by Order and Memorandum dated November 29, 2007.

Defendant filed the instant pro se Motion to Vacate, Set Aside, and/or Correct Sentence, and Authority in Support Thereof, Brought in Accordance with 28 U.S.C. § 2255 on January 31, 2008. Upon reviewing the motion, the government's response, pro se defendant's reply, and the government's sur-reply, the Court concluded that an evidentiary hearing would be necessary to resolve the issues raised by defendant, and, by Order dated March 26, 2008, the Court appointed counsel to represent the defendant. Thereafter, on April 8, 2008, defendant filed a pro se Motion for Discovery, Pursuant to Rule 6(a) of the Rules Governing Section 2255 Proceedings.*fn6

Subsequent to the appointment of counsel, both defendant and the government filed a number of supplemental briefs and related documents which fleshed out the issues raised in defendant's pro se motions. The most significant of these filings were two declarations filed on July 8, 2008, one by Kenya Mann and one by Thomas Perricone, Chief of the Narcotics and Dangerous Drugs Section of the United States Attorney's Office for the Eastern District of Pennsylvania. Perricone was also the supervisor on defendant's case.

Counsel participated in several telephone conferences with the Court to discuss defendant's Discovery Motion and whether that motion should be decided prior to any evidentiary hearing. Following those conferences, the Court concluded that, in light of the significant privilege issues raised by the government with respect to the requested discovery, the appropriate course of action would be to proceed with the evidentiary hearing without discovery and determine after that hearing whether further discovery and a second hearing would be necessary.

By Order dated January 14, 2009, the Court scheduled the evidentiary hearing for February 24, 2009. Because the defendant's medical conditions prevented him from appearing at the hearing in person, the Court, by agreement, provided for his participation by video conference. Four witnesses testified at the February 24, 2009 hearing: defendant, Thomas Perricone, Kenya Mann, and Gregory Pagano, defendant's trial and sentencing counsel. At the conclusion of the hearing, the Court deferred ruling on defendant's motions.

III. MOTION TO VACATE, SET ASIDE, AND/OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

Defendant's § 2255 motion, as supplemented, asserts two ineffective assistance of counsel claims. With regard to the first claim, defendant argues two related issues: (1) that counsel was ineffective for advising him that he would receive a sentence of twenty years or more regardless of whether he pled guilty, which advice was allegedly incorrect to the extent that the withholding of an Information under 21 U.S.C. § 851, by the government, with or without a plea agreement, would have avoided the twenty-year mandatory minimum sentence arising from defendant's prior convictions, and (2) that counsel was ineffective for failing to pursue plea negotiations based on the government's withholding of a § 851 Information. Defendant's second claim alleges that counsel was ineffective for failing to communicate with him regarding the filing of a notice of appeal.*fn7

The Sixth Amendment right to effective assistance of counsel attaches at the guilty plea stage to assist a defendant in deciding whether to plead guilty. United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir. 1982) ("[T]he decision to reject a plea bargain offer and plead not guilty is also a vitally important decision and a critical stage at which the right to effective counsel attaches."). The two-part standard of Strickland v. Washington, 466 U.S. 668 (1984), applies to "ineffective-assistance claims arising out of the plea process." Hill v. Lockhart, 474 U.S. 52, 57 (1985).

"Strickland v. Washington supplies the standard for addressing a claim of ineffective assistance of counsel." United States v. Smack, 347 F.3d 533, 537 (3d Cir. 2003) (citing Strickland, 466 U.S. at 687). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. This standard requires a familiar two-part inquiry.

"First, the defendant must show that counsel's performance was deficient," that is, "that counsel's representation fell below an objective standard of reasonableness." Id. at 687--88. The measure for counsel's performance under the first prong of Strickland is "whether counsel's assistance was reasonable considering all the circumstances" including "prevailing professional norms." Id. at 687--88. "Second, the defendant must show that [counsel's] deficient performance prejudiced the defense." Id. at 687. The defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Under Strickland, defendants must establish both prongs of the standard for ineffective assistance of counsel, and an ineffective assistance of counsel claim will fail if either prong is not satisfied. Further, Strickland advises courts to resolve such claims on the prejudice prong lest "ineffectiveness claims . . . become so burdensome to defense counsel that the entire criminal justice system suffers as a result." Id. at 697. "[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id.

A. Claim 1: Erroneous Advice Regarding Defendant's Sentencing Exposure and Failure to Pursue Plea Negotiations

In his pro se § 2255 motion, defendant states that he informed his trial counsel, Gregory Pagano, "that he was interested in disposing of th[e] case without a trial" and that Pagano "advised [him] that, because of his criminal history, a sentence [of] twenty years would result from any plea of guilty, and that petitioner would not likely receive a much longer sentence if he proceeded to trial." (§ 2255 Mot. 3.) Defendant further claims that "[b]ased on this advice, [he] persisted in a plea of not guilty and proceeded to trial." (Id.) According to the defendant's motion, counsel failed to inform him that, absent the filing of a § 851 Information, his sentencing exposure would be lower-a ten year mandatory minimum sentence. Defendant claims that if he had been given this information, he would have pursued a plea agreement prior to the filing of the § 851 Information on July 13, 2006 and would have been eligible for a lower sentence.

Defendant's claim is based on the premise that the government would not have filed a § 851 Information prior to the entry of his plea-either of its own accord or at the request of the defendant as part of a negotiated plea agreement. It is this factual issue which dominated the evidentiary hearing on February 24, 2009 and which gave rise to defendant's related claim of deficient performance concerning trial counsel's failure to pursue plea negotiations.

1. Relevant Background and Evidence

a. Informations Under 21 U.S.C. § 851

Defendant was convicted of manufacturing methamphetamine and conspiring to manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 21 U.S.C. § 846. Section 841(a)(1) states that "it shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense or possess with intent to manufacture, distribute, or dispense, a controlled substance." The penalties for violations of 21 U.S.C. § 841(a)(1) which involve 500 grams or more of a "mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers" are provided in 21 U.S.C. § 841(b)(1)(A). That section sets a mandatory minimum of ten years. 21 U.S.C. § 841(b)(1)(A). If a violation of § 841(a)(1), (b)(1)(A) occurs "after a prior conviction for a felony drug offense has become final," the mandatory minimum is twenty years. Id. The applicable penalty becomes mandatory life imprisonment if the violation of § 841(a)(1), (b)(1)(A) occurs "after two or more prior convictions for a felony drug offense have become final." Id. Defendant's conviction for conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846 exposed him to "the same penalties as those prescribed" in 21 U.S.C. § 841(a)(1), (b)(1)(A).

Under 21 U.S.C. § 851, "[n]o person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless, before trial, or before entry of a plea of guilty, the United States attorney files an information with the court . . . stating in writing the previous convictions to be relied upon." Because defendant was charged with violating sections of the United States Code under the same part as 21 U.S.C. § 851, the government would only have been able to subject defendant to the higher penalties in 21 U.S.C. § 841(b)(1)(A) by filing a § 851 Information before defendant's trial or before the entry of a guilty plea. Under the statute, the decision of whether or not to file a § 851 Information is within the discretion of the United States Attorney.

b. Ashcroft Memorandum

At all times relevant to this case, the United States Attorneys Office for the Eastern District of Pennsylvania followed Department of Justice policy regarding charging decisions. (Perricone Decl. ¶ 2.) That policy is laid out in the Ashcroft Memorandum of September 22, 2003 ("Ashcroft Memorandum"). (Id. ¶ 2 & Ex.)*fn8 According to Thomas Perricone, the Chief of the Narcotics and Dangerous Drugs Section of the United States Attorneys Office for the Eastern District of Pennsylvania who supervised defendant's prosecution, the "memorandum directs federal prosecutors to charge the most serious, readily provable offense supported by the facts of the case, along with all applicable statutory enhancements, including enhancements pursuant to [21 U.S.C. §§ 841(b)(1)(A) and 851]." (Id. ¶ 2; Ashcroft Memo. 2.)

With regard to § 851 Informations, the Ashcroft Memorandum states:

"The use of statutory enhancements is strongly encouraged, and federal prosecutors must therefore take affirmative steps to ensure that the increased penalties resulting from specific statutory enhancements, such as the filing of an information pursuant to 21 U.S.C. § 851 . . . , are sought in all appropriate cases." (Ashcroft Memo. 4.) The memorandum notes that "[i]n many cases, . . . the filing of such enhancements will mean that the statutory sentence exceeds the applicable Sentencing Guidelines range, thereby ensuring that the defendant will not receive any credit for acceptance of responsibility and will have no incentive to plead guilty." (Id.) Under such circumstances, a prosecutor may obtain authorization from designated supervisors*fn9 "to forego the filing of a statutory enhancement." (Id.) However, the memorandum provides that such action is to be taken "only in the context of a negotiated plea agreement, and subject to [certain enumerated] requirements . . . ." (Id. (emphasis in original).)

The Ashcroft Memorandum directs United States attorneys who contemplate withholding a § 851 Information to "careful[ly] consider[] the factors set forth in Section 9-27.420 of the United States Attorneys' Manual [("USAM")]."*fn10 (Ashcroft Memo. 4.) That section of the USAM provides a list of "[c]onsiderations to be [w]eighed" by government attorneys when entering into plea agreements. (USAM § 9-27.420(A).) Relevant considerations include: "[1] The defendant's willingness to cooperate in the investigation or prosecution of others; [2] The defendant's history with respect to criminal activity; [3] The nature and seriousness of the offense or offenses charged; [4] The defendant's remorse or contrition and his/her willingness to assume responsibility for his/her conduct; [5] The desirability of prompt and certain disposition of the case; [6] The likelihood of obtaining a conviction at trial; [7] The probable effect on witnesses; [8] The probable sentence or other consequences if the defendant is convicted; [9] The public interest in having the case tried rather than disposed of by a guilty plea; [10] The expense of trial and appeal; [11] The need to avoid delay in the disposition of other pending cases; and [12] The effect upon the victim's right to restitution." (Id.)

c. Thomas Perricone Testimony

Thomas Perricone supervised defendant's prosecution. (Perricone Decl. ¶ 1.) At the February 24, 2009 hearing, Perricone testified that at the time the § 851 Information was filed in defendant's case he "believed, based on th[e] two prior convictions and based on the amount of drugs that were involved in the case, that [defendant] would be facing a mandatory life sentence." (Hr'g Tr. 47.) When asked if defendant's case was one which would qualify for the Ashcroft Memorandum's exception to the filing requirement for § 851 Informations, Perricone replied, "Not as I saw it, no. . . . [I]t was a substantial amount of methamphetamine . . . possessed by a recidivist. My recollection was he was on some sort of federal supervision for a previous federal conviction for the same type of activity. . . . [H]e was seriously involved; he was not a bit player; he was the supplier of the component chemicals, if my memory is correct. So, there . . . would be no reason to make an exception in this case to filing an 851 [Information]." (Id. at 48, 63-64.)

When asked more specifically about the fact that defendant's presumed sentence- mandatory life imprisonment-was higher than the guidelines range for his offenses, Perricone described his policy in circumstances where the filing of a § 851 Information would result in a life sentence. "[I]f somebody is facing a mandatory life sentence, we will frequently consider and seriously consider and have in the past offered a plea agreement for a plea to twenty years imprisonment, that is, . . . as part of the written negotiated plea agreement we would agree to file an 851 [Information] listing only one of the prior convictions or, if we have previously filed one listing two, we'll file an amended one, so that the mandatory minimum becomes twenty rather than life in prison. . . . We would not go below twenty in those circumstances." (Hr'g Tr. 49.) Perricone said he would have considered applying this policy in defendant's case, but "would not, under any circumstances, based on what [he] kn[ew] about the case either then or [at the time of the hearing] have agreed to a plea to less than twenty years absent cooperation and substantial assistance." (Id. at 50.) In fact, he testified that he has never agreed to less than twenty years in the absence of substantial assistance or a problem with the case, either legal or evidentiary. (Id. at 60, 66.) Perricone could not recall any cases in which a defendant's advanced age or poor health was the basis for the withholding of a § 851 Information, and he stated that he did not consider those factors to be relevant in defendant's case with regard to the filing of a § 851 Information. (Id. at 66.)

According to Perricone, the United States Attorneys under his supervision did not "routinely" withhold the filing of § 851 Informations (either by reducing two convictions to one or by foregoing the filing of a § 851 Information at all). (Hr'g Tr. 56.) To the contrary, "in ninety-nine percent of cases when someone is cooperating [that person has] to, for lack of a better word, eat all their criminal activity." (Id.) This means that even under a cooperating plea agreement, defendants have to plead to the most serious offense, accept responsibility for uncharged conduct, and agree to the filing of a § 851 Information. (Id.) Perricone stated that in some circumstances the prosecutor might agree to set a floor on sentencing exposure by withholding all or part of a § 851 Information and in other circumstances, the government ...


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