Montgomery v. U.S., 914
| Decision Date | 03 May 1988 |
| Docket Number | D,No. 914,914 |
| Citation | 853 F.2d 83 |
| Parties | Collin MONTGOMERY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 87-2507. . On Submission |
| Court | U.S. Court of Appeals — Second Circuit |
Collin Montgomery, pro se.
Douglas T. Burns, Asst. U.S. Atty. for the E.D. New York (Andrew J. Maloney, U.S. Atty. for the E.D. New York, John Gleeson, Asst. U.S. Atty., of counsel), for respondent-appellee.
Before LUMBARD, OAKES and KEARSE, Circuit Judges.
Collin Montgomery, pro se, appeals from an order of the Eastern District of New York, which denied his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2255. Montgomery alleges that the district court erred in denying his motion to withdraw his 1984 plea of guilty to conspiracy to distribute heroin (21 U.S.C. Sec. 846) on the grounds that the plea lacked an adequate factual basis and that he was denied the effective assistance of counsel with respect to the plea. We agree with petitioner that his plea was accepted without an adequate factual basis in violation of Fed.R.Crim.P. 11(f), and reverse the order of the district court.
In December 1983, Montgomery became the object of an undercover investigation by the Drug Enforcement Agency ("DEA"). A government informant, with whom Montgomery became acquainted while serving time in federal prison, introduced Montgomery to undercover DEA agents. After several meetings, Montgomery agreed to purchase a half-pound of heroin from the agents for $70,000, half of which was to be paid at the time of delivery. According to the affidavit of Arthur Scalzo, Special Agent with the DEA, Montgomery claimed to be purchasing the heroin for himself and two "accomplices."
On January 20, 1984, Montgomery met the undercover agents at the Howard Johnson Motor Lodge in Plainview, New York, to purchase the heroin. The agents gave Montgomery a small bag of flour which they represented to be heroin. After Montgomery accepted the bag, the agents identified themselves and arrested him.
At the time of his arrest, Montgomery had in his possession approximately $34,900 in cash, keys from a rented Lincoln Continental, and a piece of paper with the name "Martin Ribbins" written on it. Martin Ribbins was arrested shortly thereafter in the Howard Johnson's lobby. Ribbins and Montgomery were jointly indicted for conspiracy to distribute heroin in violation of 21 U.S.C. Sec. 846.
On April 2, 1984, Montgomery, represented by appointed counsel, appeared in the district court to change his plea from not guilty to guilty. After apprising Montgomery of his rights, the court read aloud the indictment:
When asked if he understood the "nature of the charge," Montgomery appeared to be confused about the issue of possession in that he received flour, rather than heroin, from the DEA agents. During the ensuing discussion, the court became concerned that Montgomery did not "appreciate what he [was] pleading guilty to." Montgomery's attorney sought to reassure the court that Montgomery understood the charge. The judge again read the indictment and Montgomery again stated that he agreed with it.
However, when asked to describe his activity in his own words Montgomery stated, "I agreed to buy drugs and sell them for a profit." When asked specifically about the individuals with whom he had conspired, he named a DEA agent and the confidential informant; he denied knowing anything about Martin Ribbins, who was the named co-conspirator in the indictment, and did not name any other co-conspirator. The Assistant United States Attorney (AUSA) indicated that it was not the government's theory that he conspired with the government agents. Montgomery's attorney then stated:
[I]t is my understanding of the law ... that I believe there is case law on it that says that a conspiracy charged strictly with Government agents--and I believe there is even a drug case where the Government agents were both the suppliers and the buyers of the drugs is sufficient.
The court responded:
There is no question about that. I have no problem with that.
The judge then asked the AUSA what the government's position on the question was. In answer, the AUSA reiterated that it was not the government's position that Montgomery conspired with government agents.
After once again reading the indictment, the court carried on the following discussion with the defendant:
Montgomery then described how he had obtained the purchase money from a loan shark, and after several moments of discussion, the court asked:
Now, tell us, in as broad a term as you know how, how you conspired with others?
I mean you just didn't have a vision, you had a conversation with someone?
Montgomery replied:
Not exactly.
I knew in my travels that there is a...
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