Reckmeyer v. US, Misc. No. 88-02-A

• Citation: 709 F. Supp. 680
• Decision Date: 05 April 1989
• Docket Number: Crim. No. 85-00010-A.,Misc. No. 88-02-A
• Parties: Robert Bruce RECKMEYER, Petitioner, v. UNITED STATES of America, Respondent.
• Court: United States District Courts. 3th Circuit. District of the Virgin Islands

709 F. Supp. 680

Robert Bruce RECKMEYER, Petitioner,
v.
UNITED STATES of America, Respondent.

Misc. No. 88-02-A, Crim. No. 85-00010-A.

United States District Court, E.D. Virginia, Alexandria Division.

April 5, 1989.

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William B. Moffitt, Lisa Bondareff Kemler, Kerry C. Connor, Alexandria, Va., for petitioner.

William G. Otis, Asst. U.S. Atty., Alexandria, Va., for respondent.

MEMORANDUM OPINION

ELLIS, District Judge.

Introduction

This Section 2255 Petition to Vacate Sentence tells a bizarre story of avarice, duplicity, and lawyer misconduct. Petitioner contends that his lawyer's conduct violated his Fifth and Sixth Amendment rights to effective, conflict-free counsel. Specifically, petitioner alleges that his lawyer, John M. Dowd, threatened and coerced him into paying large, exorbitant fees, and then counseled and encouraged him to pay these fees using drug trafficking funds and to use deceptive means to conceal their source. On one occasion, petitioner, with Dowd's knowledge and encouragement, arranged for $100,000 of drug money to be smuggled into the country from the Bahamas for the purpose of satisfying, partially at least, Dowd's oppressive fee demands. This incident was ultimately included in the indictment as one of the overt acts of petitioner's conspiracy with others to possess and distribute marijuana and hashish. Thus, claims petitioner, his lawyer had independent personal knowledge of facts underlying one of the charges against petitioner, a charge on which the lawyer also faced potential criminal liability. This circumstance, according to petitioner, created an actual conflict of interest that deprived him of his constitutional right to effective, conflict-free counsel. The government disagrees, contending that no actual conflict existed because petitioner and his lawyer had the same objective, namely dismissal of the charge or acquittal. The government also argues that petitioner cannot show any actual prejudice and, in any event, knowingly waived his right to conflict-free counsel.

Procedurally, this matter is properly before the Court on a motion to dismiss pursuant to Rule 12(b)(6) Fed.R.Civ.P. Rule 12 of the Habeas Rules¹ permits district courts to "proceed in any lawful manner not inconsistent with these rules ... and to apply the Federal Rules of Criminal Procedure

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or the Federal Rules of Civil Procedure, whichever it deems more appropriate." District Court discretion to use the federal civil or criminal rules in resolving § 2255 petitions was endorsed by the Supreme Court in United States v. Frady, 456 U.S. 152, 166-168 n. 15, 102 S.Ct. 1584, 1593-1594 n. 15, 71 L.Ed.2d 816 (1982). There, the Court quoted the Advisory Committee Notes in observing that the drafters of the Habeas Rules intended to "allow the court considering the petition to use any of the rules of civil procedure (unless inconsistent with these rules of habeas corpus) when in its discretion the court decides they are appropriate." Id. Here, Rule 12(b)(6) is manifestly appropriate as a means of testing the legal sufficiency of petitioner's allegations. The government contests the legal sufficiency of the petitioner's allegations even assuming they are true. Thus, no evidentiary hearing would be required unless the Court determines that the allegations in the petition, if true, entitle the petitioner to relief. The practical value of Rule 12 in this context is obvious. Not surprisingly, numerous courts have employed Rule 12, Fed.R.Civ.P. in similar circumstances.²

The question presented, therefore, is whether petitioner's allegations, if true, state a claim for constitutional relief. For the reasons set forth in this Memorandum Opinion, the Court concludes (i) that petitioner's counsel had an actual conflict of interest, (ii) that petitioner though not required to show actual prejudice, has nonetheless made the requisite showing of adverse impact on counsel's performance, but (iii) that petitioner knowingly waived his right to object to a conflict-free counsel. Accordingly, the Petition is denied.

Background

(1) The Indictment and Plea

Petitioner and his twenty four indicted co-conspirators³ were charged in a one hundred and one (101) page, forty eight (48) count indictment with a variety of charges relating to a major, long-standing marijuana and hashish importation and distribution enterprise. Petitioner was named in twenty four (24) counts, including the lead count, a thirty five (35) page drug conspiracy charge. The government, it appears, had amassed a powerful case against petitioner. In March 1985, at the Rule 11 plea hearing, the government represented to the Court, and petitioner agreed under oath, that had the case gone to trial, the prosecution would have proved its case beyond a reasonable doubt.⁴ Specifically the government would have proved that during the period 1972 through 1977 petitioner distributed large amounts of marijuana, ranging from fifty (50) to one hundred (100) pounds per month. Even larger amounts are attributable to petitioner for the 1978 through 1983 period. The government would have proved, through eyewitness testimony of petitioner's employees, that during this period petitioner was the leader and supervisor of an organization responsible for distribution of more than 25 tons of marijuana and eight tons of hashish in this district and elsewhere. The testimony of employees and co-conspirators would also have established that petitioner derived substantial revenues from these illegal ventures. Specifically, the government was prepared to prove that

709 F. Supp. 683

petitioner's organization generated more than $25,000,000 in gross revenues from which petitioner realized at least $4,000,000 in profits. According to the government's proof, receipts from the drug trade were also used to purchase a variety of substantial assets, including real estate. The government's proof would also have shown that a substantial amount of U.S. currency, a sum in excess of $5,000,000, was transported to places outside the United States, including The Bahama Islands, and that this occurred without submission of the reports required by United States currency laws. The government's proof would also have established that petitioner formed a Maryland corporation, United Trade, Inc., and used it to launder illegal drug profits. In this connection, petitioner signed and submitted a false income tax return for United Trade, Inc., knowing that it substantially overstated the company's gross receipts and that it did so to conceal the company's role in petitioner's scheme to launder drug proceeds

Nor is this all. The government's proof would also have shown that petitioner purchased from co-conspirators approximately 13,000 pounds of hashish in June, 1980. In connection with this transaction, the government was prepared to prove that petitioner directed the transfer of $1,880,000 from Virginia to South Carolina in partial payment for the more than six and one-half tons of drugs. Additional payment was made by petitioner delivering to a co-conspirator a 6.08 carat ruby. Finally, the government's case included proof that in November 1981, petitioner caused a co-conspirator to take possession of five Uzi 9mm automatic weapons, together with silencers and ammunition. Petitioner later took custody of some of these weapons.

The government's evidence, summarized above, was set forth in a written factual summary and stated orally at the plea hearing in March, 1985. Petitioner signed the factual summary to indicate his concurrence. And, as the following excerpt from the plea colloquy reflects, he also confirmed orally that the government's evidence was accurate.

BY THE COURT:

Q Mr. Reckmeyer, do you want to come to the podium, please, sir. You signed the plea agreement, you did so after talking to your counsel, Mr. Dowd; is that correct?

A Yes, sir.

Q You also signed this factual summary, is that right, after talking to Mr. Dowd? You signed that also?

A Yes, sir.

Q With the corrections that Mr. Dowd has made, do you agree that is what happened in this case?

A I do, sir.

Q On the basis of what Ms. Tandy has said and what's been corrected by Mr. Dowd that was your participation in these offenses; is that correct?

A Yes, sir.

Q Any other additions or corrections that you want to make, other than what Mr. Dowd has told me this morning:

A No, sir.

Q Do you still wish to plead guilty in this case?

A I do, sir.

Q Do you plead freely and voluntarily?

A I am, sir.

Q Have you understood all the questions that I have asked you?

A Yes, sir.

Transcript of Plea Hearing, dated March 13, 1983 at 24-5.

Thus, at the time of the plea, petitioner was a principal focus of a 48 count, 101 page indictment charging him and others with a conspiracy to smuggle into the United States and distribute here vast quantities of marijuana and hashish generating more than $25,000,000 in revenue and $4,000,000 in profits over more than a decade of activity. Petitioner was also charged with automatic weapons violations and violations of currency and tax laws. He admitted all this; he also admitted the

709 F. Supp. 684

government's ability to prove it. Twenty four of the forty eight counts named petitioner. As a result, he faced a massive risk, including a potential for more than one hundred years imprisonment plus as much as life imprisonment on the single count charging him with a Continuing Criminal Enterprise (CCE), 21 U.S.C. § 848. Rather than run this risk, petitioner elected to accept the plea bargain Dowd negotiated for him — in essence, a plea to four of the 24 counts against him and, more importantly, a 20-year sentencing cap. Part of the plea also included that among the 20 counts dropped by the government would be the lead count, the 35 page drug distribution conspiracy charge. The attractiveness of the 20 year sentencing cap was obvious, given that the maximum penalty for the CCE charge was life...