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United States v. Sacksith

June 3, 2010

UNITED STATES OF AMERICA
v.
XANG SACKSITH



The opinion of the court was delivered by: Gene E.K. Pratter, J.

MEMORANDUM AND ORDER

INTRODUCTION

Xang Sacksith confounded his counsel in 2004 because of his insistence on pleading guilty to a three-count indictment charging him with drug distribution crimes*fn1 even though that plea was certain to result in a mandatory life imprisonment sentence, given Mr. Sacksith's refusal to cooperate with the Government's investigation of others. Mr. Sacksith's superficially puzzling actions have continued to frustrate various defense counsel who, seriatim, have taken on the challenges of representing him. The latest endeavor on his behalf is the pending Amended Petition For Habeas Corpus Relief Pursuant to 28 U.S.C. §2255 (Doc. No. 163), which, for the reasons discussed in this memorandum, the Court denies.

BACKGROUND

In large measure the extensive procedural history of this case, with the attendant safeguards demonstrably made available to Mr. Sacksith, mandates denial of the pending petition. Therefore, it is appropriate to recount in some detail the background of this case.

Mr. Sacksith came to the United States from his native Laos in 1989 as a very young teenager. He attended public school in America through his early high school years. By his own account, and according to public records, he illegally used drugs and engaged in various illicit felony drug trafficking offenses, including two he committed in his early 20's for which he was convicted in the Court of Common Pleas of Philadelphia County.*fn2 In the normal course of governmental processes, Mr. Sacksith was ordered deported to Laos following these convictions, but the Laotian government's failure to respond to the deportation communiques resulted in Mr. Sacksith being released by the Immigration and Naturalization Service on or about February 24, 2003, subject to an order of supervision. Thus, he remained in the United States.

On June 10, 2004 Mr. Sacksith was arrested by DEA agents in Philadelphia as he attempted to broker the sale of approximately 10,000 ecstacy pills to a cooperating government witness for $65,000 from which Mr. Sacksith hoped to clear $10,000 for himself. Immediately prior to the arrest, a DEA cooperating witness had discussed with Mr. Sacksith the likelihood of making such a purchase. Mr. Sacksith had assured the putative purchaser that he could provide 10,000 pills as requested and proceeded to contact his co-defendant, Thanh Nguyen, to obtain the pills.

The day prior to his arrest Mr. Sacksith had given the cooperating witness three sample pills, and the two men struck a deal for the $65,000 purchase price for 10,000 pills. The pills were actually secured through the machinations of Mr. Sacksith's co-defendants, Mr. Nguyen, Duong Vu, and Toan Kim of the Benjamin Ton Drug Trafficking Organization. On the day of the actual transaction, Mr. Sacksith joined the other three in their car to drive to the appointed meeting place, a particular Dunkin' Donuts establishment that was located within 1,000 feet of a school. Mr. Sacksith accompanied Mr. Vu, who was physically carrying the pills in his backpack, into the donut shop to meet with the purchaser, who was secretly wearing a recording and transmitting device. Once DEA agents received the purchaser's signal, they arrested Messrs. Vu and Sacksith. A search of the backpack revealed a number of plastic bags containing various different colored pills, all of which were subsequently counted, measured, weighed, and analyzed under appropriate conditions.

On July 7, 2004, Messrs. Sacksith and Duong Vu were charged in a three-count indictment. The case was assigned to the docket of Honorable Marvin Katz*fn3. Mr. Sacksith qualified for representation by the Federal Defender, and by June 17, 2004, the first of Mr. Sacksith's three very able, experienced and dedicated counsel entered an appearance on his behalf.

As of the time of the initiation of this prosecution, if eventually Mr. Sacksith was convicted of the crimes charged, the applicable Sentencing Guidelines placed him at an offense level 34 and criminal history category VI, resulting in a guideline range of incarceration for between 262 and 327 months. When he was arrested, Mr. Sacksith was 28 or 29 years old.

Reportedly, from the start of this prosecution Mr. Sacksith acknowledged his guilt and expressed an intention and desire to plead guilty. Proffer sessions, pursuant to an executed proffer letter, aimed at reaching a cooperation plea agreement were arranged and undertaken. Those efforts were ultimately to no avail because the Government personnel perceived that Mr. Sacksith was not telling them the complete truth. In particular, investigators concluded that Mr. Sacksith materially misled them concerning the relative conduct and culpability of co-defendants Vu and Nguyen, contrary to the information these co-defendants themselves imparted during their own proffer sessions and guilty plea hearings.

After the Sacksith proffers came to naught, and Mr. Sacksith disavowed any interest in cooperating with law enforcement officials, the Government filed an information notice on October 26, 2004, delineating the Government's intention to invoke 21 U.S.C. §851 for a mandatory life sentence due to Mr. Sacksith's two prior convictions. Presumably, the §851 notice was expected to encourage Mr. Sacksith to rethink his abandonment of cooperation activities and to return to making an effort to be helpful to the Government and himself. Contrary to those expectations, however, Mr. Sacksith remained intent upon pleading guilty without cooperating, even though he faced a certain mandatory life sentence. He so informed his then counsel, Edson Bostic. By the same token, Mr. Sacksith also informed Mr. Bostic that he would accept a "C plea" for a 20-year sentence in lieu of a life sentence if his counsel could secure the Government's agreement to such a proposal. Not surprisingly, the Government would not agree to a C plea in the absence of Mr. Sacksith's cooperation.

Accordingly, by the end of 2004 Mr. Sacksith had the choice to (1) go to trial on the charges, (2) enter a guilty plea without having cooperated with the Government which would lead to a mandatory life sentence against the strenuous advice of his counsel but which option Mr. Sacksith then reportedly favored, or (3) plead guilty having cooperated with the Government as a predicate to securing the Government's motion for a lesser sentence, a choice Mr. Sacksith eschewed but which his lawyer urged.

With a change of plea hearing necessarily looming, on November 16, 2004, Mr. Bostic filed a motion to withdraw as Mr. Sacksith's counsel. Judge Katz convened a hearing to address the motion on November 30, 2004. Even though Mr. Sacksith had at all times pertinent to this matter demonstrated functional facility with the English language*fn4, a Laotian interpreter was present for Mr. Sacksith if desired. The premise of counsel's withdrawal motion was that although counsel had devoted himself to vigorous representation of Mr. Sacksith, had met with his client, had met with Mr. Sacksith's girlfriend to outline the situation and had endeavored to hammer home to Mr. Sacksith that he would be sentenced to life in prison if he persisted in his intention to plead guilty while refusing to cooperate with the Government, Mr. Sacksith continued to refuse to follow counsel's advice. Positing that in spite of counsel's experience and skill, he had for some inexplicable reason failed to "get through" to Mr. Sacksith so that Mr. Sacksith could "see the light," Mr. Bostic suggested that perhaps some other defense counsel would succeed where he, Mr. Bostic, had failed. 11/30/04 N.T. at 5-6; 8. Understandably, Judge Katz asked Mr. Bostic:

What would new counsel be able to do that you have not already done with your client; that's what I'm not clear on? 11/30/04 N.T. at 8.

Mr. Bostic could not give any specific response to the Court other than to emphasize generally the undeniable gravity of Mr. Sacksith's circumstances and express the hope that some other lawyer would be able to illuminate the path ...


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