U.S. v. Moody

• Decision Date: 24 September 1999
• Docket Number: DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT,No. 98-6142,98-6142
• Citation: 206 F.3d 609
• Parties: (6th Cir. 2000) UNITED STATES OF AMERICA,, v. MARK MOODY, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 609

206 F.3d 609 (6th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT, v. MARK MOODY, DEFENDANT-APPELLEE.

No. 98-6142

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: September 24, 1999

Decided and Filed: January 25, 2000^*

Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville. Nos. 93-00035; 97-00024--Thomas G. Hull, District Judge.

Michael E. Winck (argued and briefed), Assistant United States Attorney, Knoxville, Tennessee, for Appellant.

Leah J. Prewitt, Federal Defender Services, Knoxville, TN, Nikki C. Pierce (argued and briefed), Assistant Federal Community Defender, Federal Defender Services, Greeneville, Tennessee, for Appellee.

Before: Merritt and Clay, Circuit Judges; Wiseman, District Judge.^**

CLAY, J., delivered the opinion of the court, in which MERRITT, J., joined. WISEMAN, D. J. (pp. 616-18), delivered a separate concurring opinion.

OPINION

Clay, Circuit Judge.

The government appeals from the district court's order denying reconsideration of its order granting Defendant Mark Moody's motion to vacate, correct, or set aside his sentence pursuant to 28 U.S.C. § 2255. The government also appeals the district court's orders resentencing Moody to sixty months of imprisonment for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. For the reasons set forth below, we REVERSE the judgment of the district court.

I.

During the late 1980s and early 1990s, Moody participated in a conspiracy to deal cocaine with two other men. Under their arrangement, Moody provided one of the men with the funds to pay for the cocaine, and he would acquire cocaine in Florida and transport it back to Tennessee. Moody acquired approximately one-quarter kilogram of cocaine per month for resale.

On February 2, 1993, agents of the Federal Bureau of Investigation ("FBI") executed twenty-five search warrants on targets of its investigation into this conspiracy, including Moody's home and business. The FBI seized one kilogram of cocaine during these searches, and obtained information linking Moody to that cocaine. Shortly after the execution of the search warrants, Moody approached the FBI and offered to cooperate with FBI agents in their investigation of the drug conspiracy. During six interviews conducted in February and March of 1993, Moody, without the assistance of counsel, voluntarily provided FBI agents with information about the roles of others in the conspiracy and made numerous self-incriminating statements.¹ The Assistant United States Attorney for the Eastern District of Tennessee was present during the first and last of these debriefings.

During their interviews of Moody, government attorneys offered Moody a deal in which the government would limit his exposure to a maximum of five years of imprisonment if Moody agreed to plead guilty to conspiracy in connection with the one kilogram of cocaine seized by FBI agents on February 2, 1993, and agreed to continued cooperation, including testifying at trial. When Moody expressed a reservation about this, the Assistant United States Attorney and the FBI Special Agent stated that the offer from the government was a "good deal," and also suggested that Moody seek the advice of an attorney. Moody sought the services of attorney Richard W. Pectol, paying him $5,000. Pectol contacted the government for the first time more than a month later, rejecting the offer on Moody's behalf. Pectol did not inquire into the substance of the interviews or the nature of Moody's admissions, nor did he obtain copies of the FBI reports memorializing the interviews.

The government indicted Moody on June 23, 1993, charging him with conspiring to distribute cocaine in violation of 21 U.S.C. § 846 and related offenses. By the time of the indictment, the government had information that the conspiracy involved eighteen kilograms of cocaine. Moody again hired Pectol to represent him, and paid him an additional $10,000. Moody, who was serving time in the Sullivan County jail for a state misdemeanor charge, had little to no contact with Pectol. In January of 1994, Pectol advised Moody that he should plead guilty to the indictment because there was no way to overcome the self-incriminating statements Moody had made during his voluntary FBI interviews. Two of Moody's co-defendants had also pleaded guilty to the cocaine conspiracy. Moody entered into a plea agreement with the government, pleading guilty to the § 846 cocaine conspiracy.

Prior to sentencing, Moody replaced Pectol with attorney David Beck. Given the increased drug quantity now attributable to the conspiracy, the Sentencing Guidelines range for his conviction was from 235 to 293 months of imprisonment. At sentencing, the government sought a downward departure for a sentence of 168 months of imprisonment, stating that the information Moody had given "assisted the United States in framing the indictment in this matter and in identifying the various players and their roles." The government also credited Moody with providing information after he gave his plea that was useful in its indictment of other individuals. The district court granted the motion for downward departure, and imposed a sentence of 120 months of imprisonment, five years supervised release, and a special assessment of $50. Following sentencing, Moody continued to cooperate with the government, agreeing to testify against other conspirators and actually twice testifying for the government in its case against the Florida supplier. Moody did not file a direct appeal.

Moody filed a motion to vacate, set aside, or correct his sentence with the district court pursuant to 28 U.S.C. § 2255, alleging that he was deprived of his constitutional rights by the ineffective assistance of counsel. Moody attacked the conduct of Pectol during his first plea negotiation and the failure of Beck to object to the district court's reliance on certain relevant conduct information at sentencing.

The district court held an evidentiary hearing on the § 2255 motion. In an order dated February 6, 1998, the district court found that Pectol had provided ineffective assistance to Moody during plea negotiations in early 1993; that but for this ineffective assistance, Moody would not have rejected the government's first offer of a plea agreement; and that Moody had suffered prejudice by his subsequent exposure to a substantially higher sentence.² The district court held that the appropriate remedy for this violation was to resentence him in accordance with the original plea agreement. The government filed a motion for reconsideration on the grounds that the Sixth Amendment right to counsel does not apply to pre-indictment negotiations.

Upon reconsideration, the district court affirmed its conclusion that the Sixth Amendment right to counsel did apply in this case, and denied the government's motion. The district court held another evidentiary hearing, and resentenced Moody to a term of five years of imprisonment. The government appealed to this Court.

II.

In this appeal, the United States challenges only two of the district court's rulings. First, the government attacks the district court's decision to deny its motion for reconsideration on the grounds that the Sixth Amendment right to counsel did not attach during Moody's plea negotiations with the government. Second, the government attacks the district court's decision to impose the original five-year plea agreement as a remedy for the ineffective assistance of counsel. The government does not appeal the finding of the district court that Pectol provided ineffective assistance of counsel to Moody under the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984), and therefore, we do not address that issue.³

Whether the Sixth Amendment right to counsel attaches in pre-indictment plea negotiations is a question of law that we review de novo. See United States v. Latouf, 132 F.3d 320, 330 (6th Cir. 1997); United States v. Doherty, 126 F.3d 769, 777-78 (6th Cir. 1997).

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. Courts recognize that the Sixth Amendment right to counsel rests on the nature of the confrontation between defendant and government. The Supreme Court has noted that the "core purpose" of the Sixth Amendment right to counsel is to guarantee assistance at trial, "when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor." United States v. Ash, 413 U.S. 300, 309 (1973). The Supreme Court has consistently held that an accused has the right to the effective assistance of counsel at the "critical stages" in the criminal justice process. United States v. Wade, 388 U.S. 218, 224 (1967); see Maine v. Moulton, 474 U.S. 159, 170 (1985). That right has been extended to certain pretrial proceedings that "might appropriately be considered parts of the trial itself," when the defendant is "confronted, just as at trial, by the procedural system, or by his expert adversary, or by both." Ash, 413 U.S. at 310. As the Court recognized in Wade, "today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality." 388 U.S. at 224. In reliance upon this line of reasoning, the district court concluded that the plea negotiations between Moody and the government in February and March of 1993 were a "critical stage" of the proceedings against him, and that therefore Moody possessed a Sixth Amendment right to counsel when he consulted Pectol for advice on whether to accept the government's offer. Although logic, justice, and fundamental fairness favor the district court's position, more recent Supreme Court and Sixth Circuit ca...