U.S. v. Adams

• Decision Date: 10 May 2006
• Docket Number: Docket No. 04-5391-CR.
• Citation: 448 F.3d 492
• Parties: UNITED STATES of America, Appellee, v. Kenneth Hart ADAMS, Defendant-Appellant, Howard Willis, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

448 F.3d 492

UNITED STATES of America, Appellee, v. Kenneth Hart ADAMS, Defendant-Appellant Howard Willis, Defendant.

Docket No. 04-5391-CR.

United States Court of Appeals, Second Circuit.

Argued: September 9, 2005.

Decided: May 10, 2006.

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Steven D'Alessandro, Assistant United States Attorney, United States Attorney's Office, Eastern District of New York, Brooklyn, N.Y. (Roslynn R. Mauskopf, United States Attorney, Eastern District of New York; Peter A. Norling, Emily Berger, Assistant United States Attorneys, of counsel, on the brief), for Appellee.

Norman Trabulus, Law Office of Norman Trabulus, Esq., Garden City, NY, for Defendant-Appellant.

Before: CARDAMONE, McLAUGHLIN, and POOLER, Circuit Judges.

POOLER, Circuit Judge.

Defendant-appellant Kenneth Hart Adams appeals from an imposition of judgment entered on September 22, 2004, by the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., J.) that, inter alia, sentences him to a prison term of one-hundred-twenty months. More specifically, Adams challenges the district court's May 3, 2004, order denying his request to withdraw his guilty plea to a charge of conspiracy to distribute and to possess, with intent to distribute, a controlled substance in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) and its denial of his motion to dismiss the indictment for violation of the Speedy Trial Act, 18 U.S.C. §§ 3161-74.

We agree with Adams that the district court erred by accepting Adams's plea because the taking of the plea did not comport with Fed.R.Crim.P. 11. We disagree with Adams, however, that the district court should have dismissed the indictment for violations of the Speedy Trial Act because we find no such violations occurred.

On appeal, Adams maintains that the court should not have accepted his plea because Fed.R.Crim.P. 11(b)(3) requires that a sufficient factual basis supports a plea, and neither the plea allocution, which included admissions to a marijuana conspiracy only, nor the record developed at the time of the plea proceeding supported a guilty plea for a conspiracy to distribute five kilograms of cocaine. Adams argues that the district court erred by failing to recognize his confusion regarding the charges against him. Indeed, throughout the plea proceeding, Adams consistently admitted to knowing only that he was involved in a marijuana conspiracy. According to Adams, his allocution expressly undermined the conclusion that he possessed the requisite intent for a conviction based on a conspiracy to distribute five kilograms of cocaine. See United States v. Jackson, 335 F.3d 170, 181 (2d Cir.2003) (noting that defendant is liable for the amount of cocaine her co-conspirator conspired to import provided that defendant knew of the quantity and substance involved, or it was at least reasonably foreseeable to her). Despite this, the district court accepted Adams's plea based on the faulty allocution and refused to permit him to withdraw it later.

Adams contends that this was error because his allocution should have signaled that he did not understand the nature of the charge to which he was pleading, and thus his allocution could not support his plea. Adams argues that under these circumstances, the district court should have either refused to accept the plea, or clarified the applicable law and then determined whether Adams maintained his guilt. Instead, the district court simply questioned whether Adams knew that he was conspiring to distribute an illegal drug and whether he understood that he had agreed to be sentenced for distributing more than five kilograms of cocaine.

We agree that the district court erred in accepting Adams's plea. Neither the allocution nor the record developed at the time of the plea proceeding provides a sufficient factual basis to support a conviction and sentencing for an aggravated offense under 21 U.S.C. § 841(b)(1)(A). The plea was therefore faulty, and we remand to the district court with instructions to vacate the sentence and conviction.

We affirm, however, the district court's denial of Adams's speedy-trial claim. In rejecting Adams's motion, the district court found that there was time left on the speedy-trial clock before 18 U.S.C. § 3162(a)(2) mandated dismissal. We agree and uphold the court's decision in this respect.

We therefore affirm, in part, and vacate, in part, the decision of the district court.

BACKGROUND

On October 22 1999, Drug Enforcement Administration ("DEA") agents in New York discovered a refrigerator tractor-trailer loaded with limes concealing 659 kilograms of cocaine. They identified Howard Willis as the individual who drove the truck to New York from Texas. Willis told agents that he was approached by Adams and propositioned to haul "dope" to New York, and several months later, he agreed. According to DEA agents, Adams recruited Willis to transport the cocaine. For his alleged involvement, Adams was arrested on February 23, 2001.

On March 9, 2001, Adams was indicted on two counts. Count One charged that between March 1, 1999, and October 22, 1999, Adams "knowingly and intentionally" conspired to distribute and to possess with intent to distribute a substance containing cocaine, in an amount of five kilograms or more, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)(II) and 21 U.S.C. § 846. Count Two was a substantive count of distribution and possession with intent to distribute, spanning a different time frame. Count Two is not at issue on this appeal.

On July 10, 2002, Adams pleaded guilty to Count One. During the plea proceedings, the district court judge engaged in the standard questioning designed to determine whether Adams understood both the substance of his plea and the consequences of pleading. The judge questioned whether Adams realized that he had agreed not to file an appeal or otherwise challenge his conviction or sentence, assuming that he was sentenced to a term of imprisonment not exceeding two-hundred sixty-two months. Adams indicated that he understood.

Additionally, as part of this questioning, and presumably to ascertain Adams's understanding of the charges against him, the judge asked Adams to state, in his own words, what he did wrong. Adams explained that he met with Willis in September and arranged for Willis to transport eighty-five to ninety pounds of marijuana. According to Adams, he and Willis conspired to transport marijuana, and it was not until Adams was arrested that he learned that his source had actually supplied Willis with cocaine.

Despite Adams's account of an apparent marijuana conspiracy, he pleaded guilty to a cocaine conspiracy. The government flagged this issue, alerting the judge that as part of the plea agreement, Adams stipulated that he would receive sentencing based on a type and quantity of narcotics of at least five kilograms of cocaine. Upon learning this, the judge turned to Adams and queried whether he realized that he had agreed to sentencing for a cocaine conspiracy. Adams claimed that he understood. The judge then asked: "Although you didn't know that the load was coke at the time, you did know that it was a drug and it was illegal?" Adams answered in the affirmative. Upon completing questioning, the district court deemed the guilty plea knowing, voluntary, and sufficiently supported by a factual basis for each of the essential elements of the offense. The court then adjudged Adams guilty of the offense and set a sentencing date.

Prior to sentencing, Adams filed a motion in the district court to withdraw his guilty plea pursuant to former Fed. R.Crim.P. 32(e).¹ In this motion, Adams contended that he pleaded guilty largely because he expected the government to award him a cooperation agreement for imparting truthful information and potential physical evidence, but no such agreement was ultimately offered. Adams complained to the district court, explaining that "the government [had not] stood up to their part of the deal." Because Adams's complaint suggested that his original attorney, Donald DuBoulay, might be a witness concerning the plea negotiations, the court appointed Norman Trabulus to speak with Adams about the potential conflict of interest. Ultimately, the district court rejected Adams's plea-withdrawal request based on the government's alleged failure to offer Adams a cooperation agreement, and Adams does not appeal this decision.

However, with Trabulus's assistance, Adams offered an additional basis for withdrawing his plea. In this supplemental motion, he claimed that his plea was not knowingly given because DuBoulay provided him with incorrect and misleading legal advice. According to Adams, DuBoulay told him that a defendant convicted of a 21 U.S.C. § 846 conspiracy for distributing defined quantities of defined narcotics becomes subject to the mandatory minimums and enhanced statutory maximums of 21 U.S.C. § 841(b)(1)(A) irrespective of defendant's knowledge regarding the quantity or type of the drug actually transported. Instead, Adams argues that DuBoulay should have advised him that co-conspirator liability attaches only if the defendant knew or could have reasonably foreseen the type and quantity of the substance that the co-conspirator transported. See Jackson, 335 F.3d at 181. Rather than instructing Adams that the government must prove either knowledge or reasonable foreseeability, however, DuBoulay informed Adams that "someone who conspires to distribute narcotics is responsible for whatever drug type and drug quantity a co-conspirator distributes." As explained by DuBoulay, "if you agree to traffic in narcotics, you are stuck with whatever it turns out to be."

In his motion to withdraw the plea, Adams argued that his decision to plead guilty was based on this misleading advice, which suggested that he could be found guilty and sentenced based on the more than five kilograms of cocaine ultimately seized, irrespective of...