537 F.3d 204 (2nd Cir. 2008), 06-4124, United States v. Doe

Docket Nº:06-4124-cr.
Citation:537 F.3d 204
Party Name:UNITED STATES of America, Appellee, v. John DOE, Defendant-appellant.
Case Date:August 13, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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537 F.3d 204 (2nd Cir. 2008)

UNITED STATES of America, Appellee,


John DOE, Defendant-appellant.

No. 06-4124-cr.

United States Court of Appeals, Second Circuit.

August 13, 2008

Argued: April 24, 2008.

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Harry A. Chernoff, Esq., U.S. Attorney's Office, SDNY, New York, NY, for Appellee.

Janeanne Murray, Esq., Law Office of Janeanne Murray, New York, NY, for Defendant-appellant.

Before: KEARSE and POOLER, Circuit Judges, and COTE, District Judge. [*]

COTE, District Judge:

Defendant-appellant (“defendant" ) appeals from the judgment of conviction entered by the United States District Court for the Southern District of New York on August 25, 2006. The defendant claims that the district court abused its discretion by denying his motion to withdraw his guilty plea without conducting an evidentiary hearing. He claims that his plea was entered involuntarily, as the result of a threatening statement made by the prosecutor immediately before the defendant entered his plea. We hold that the district court did not abuse its discretion in denying the defendant's motion without a hearing because, on the basis of undisputed facts, the court permissibly found that the defendant's plea was entered voluntarily. The prosecutor's statement, which reminded the defendant of the consequences of a decision to proceed to trial, did not render the defendant's plea involuntary.


These facts are undisputed and are drawn from the record. By indictment filed November 7, 2002, the defendant was charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In a series of superseding indictments, the defendant and several codefendants were ultimately charged with an array of narcotics and firearms offenses, participation in a criminal racketeering enterprise, and the murder of the leader of that enterprise.1 In a separate indictment, the defendant and a codefendant, his girlfriend, were charged with robbery, conspiracy to commit robbery, a firearms offense, and murder of their robbery victim.

Beginning in late 2002, while detained on the felon-in-possession charge, the defendant communicated a desire to cooperate with the Government in connection with the prosecution of his codefendants. The Government rebuffed the defendant's overtures. In April 2004, the defendant again approached the Government about cooperation, indicating in writing that he wished “to explore the possibility [of] entering into [a] cooperation agreement with your office." Again, the Government declined. The defendant approached the Government about cooperating once more, in September 2004; the Government rejected the defendant's offer.

On April 25, 2005, the district court set a January 17, 2006 trial date for the defendant. On or about October 6, 2005, the prosecutors and federal case agent met with the defendant and his trial counsel for a reverse proffer session-that is, a session in which the prosecutors described the evidence against the defendant so that he could make an informed decision whether to plead guilty or proceed to trial. The Government's plea offer capped the defendant's exposure at forty-five years' imprisonment. During this session, the prosecutors presented to the defendant a series of letters he had written to his girlfriend in

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2003 and 2004. The letters, which the defendant's girlfriend had provided to the Government, addressed a number of crimes committed by the defendant and his codefendants, and were rife with the defendant's admissions of complicity in these crimes and professions of a desire to cooperate with the Government. At the reverse proffer session, the defendant was told that the letters would be turned over to his codefendants if he chose to proceed to trial, but would be withheld from them if he chose to plead guilty. On November 2, the defendant informed his trial counsel that he intended to plead guilty.

On November 9, 2005, the defendant was brought before the district court, ostensibly to enter his guilty plea. According to him, however, by that time he had changed his mind and decided to proceed to trial. He informed his trial counsel of his decision, and trial counsel informed the prosecutors that the defendant no longer intended to plead guilty. Before the judge entered the courtroom, the defendant's attorney and the prosecutors were engaged in a discussion, during which the defendant overheard one of the prosecutors say something to the effect that “the rest of the discovery material will have to go out to the codefendants today." The defendant understood the prosecutor to be referring to his letters to his girlfriend and it is this statement that the defendant claims coerced him into pleading. The defendant thereafter executed the plea agreement and proceeded to enter his guilty plea.

The plea agreement provided that the defendant would plead guilty to charges of conspiracy to commit robbery, participation in racketeering activity, and threatening to commit a crime of violence and assaulting another individual in aid of racketeering. The three offenses resulted in an advisory Sentencing Guidelines range of life imprisonment but carried a total maximum statutory sentence capped at forty-five years, which the defendant acknowledged in the plea agreement was a reasonable sentence. Further, the defendant agreed not to request a sentence below forty-five years and waived his right to appeal or collaterally challenge any sentence of forty-five years.

During the plea allocution, the defendant stated that he understood the plea agreement and that he had been given sufficient time to review it with his counsel. When asked whether he had been “induced to offer to plead guilty as a result of any fear, pressure, threat or force of any kind," the defendant replied no. When asked whether he had been induced to plead guilty “as a result of any statements by anyone, other than in your written plea agreement," the defendant replied no. Further, the defendant indicated that he was “fully satisfied with the advice, counsel and representation" provided by his attorney, and that he was pleading guilty because he was “in fact guilty." During his allocution, the defendant admitted that he had killed the criminal enterprise leader, had agreed with others to murder his robbery victim, and had fired a gun at a third person to threaten him. The judge accepted the defendant's plea and scheduled sentencing for February 6, 2006. In advance of that date, all but one of the defendant's codefendants entered guilty pleas. The one remaining defendant went to trial on January 31, was convicted, and was sentenced to life imprisonment.

The United States Probation Office issued a Presentence Investigation Report (“PSR" ) for the defendant on January 31, 2006. The PSR recommended a sentence of forty-five years. At the defendant's request, his sentencing was adjourned from February 6 to April 13, 2006. During the month of March, the defendant wrote to

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three different federal prosecutors-none of whom was assigned to his case-expressing a desire to cooperate with the Government in prosecutions other than those of his codefendants. The Government did not respond to these requests.

Almost five months after the entry of his plea, by letter dated April 1, 2006, the defendant wrote to the district court requesting permission to withdraw his plea and the appointment of new counsel. The defendant first claimed that the PSR had incorrectly recommended that his terms of imprisonment on the three counts to which he pleaded guilty be served consecutively, and not concurrently, despite the fact that the forty-five-year sentence stipulated in his plea agreement reflected an agreement that the terms run consecutively. He also asserted that on November 9 he was not going to plead guilty until the prosecutor told him that both of the indictments against him would be joined and that all of the letters he had written to his girlfriend would be “placed into evidence." He claimed that he “got scare[d]" by the possible disclosure to his codefendants of his desire to cooperate with the Government in their prosecution. This fear “gave me enough pressure to plead guilty." Further, the defendant complained that his trial counsel had “given me wrong information and in bad faith has pressured me to plead guilty."

The district court held a series of conferences during the month of April, at which the defendant was represented by newly-appointed counsel. By letter dated May 16, the defendant moved to withdraw his plea based principally on his fear of disclosure of one of his letters to his girlfriend. This letter concerned, among other things, a murder which the defendant had not committed but with which his codefendants were charged (the “Letter" ). In connection with this motion, the defendant submitted an affidavit alleging certain facts concerning his plea. He claimed that, “[l]ooking back on that day [when he entered his plea], I believe that fear clouded my judgment, and my plea of guilty was not entered into freely and voluntarily." He believed that disclosure of the Letter would make him “a marked man in prison, and my safety, and even my life, would be in jeopardy."

The Government did not concede the truth of the defendant's allegations, nor did it submit its own version of the facts alleged. It urged the district court to deny the defendant's motion without holding an evidentiary hearing. The district court received briefing from the parties and held oral argument on two separate occasions, rendering an oral decision on the motion on June 30, 2006.

Observing that a defendant must demonstrate a “fair...

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