U.S. v. Baird

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: Weis
• Citation: U.S. v. Baird, 218 F.3d 221 (3rd Cir. 2000)
• Decision Date: 26 June 2000
• Docket Number: No. 99-1305,99-1305
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA, V. JOHN BAIRD, APPELLANT

Page 221

218 F.3d 221 (3rd Cir. 2000)

UNITED STATES OF AMERICA,

V.

JOHN BAIRD, APPELLANT

No. 99-1305

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued April 24, 2000

Filed June 26, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. No. 95-cr-00092-1) District Judge: Honorable Robert S. Gawthrop, III

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

George H. Newman, Esquire (argued) Newman & McGlaughlin, P.C. 834 Chestnut Street, Suite 206 Philadelphia, Pennsylvania 19107 Attorney for Appellant John Baird

Michael R. Stiles, Esquire United States Attorney Walter S. Batty, Jr., Esquire Assistant United States Attorney Chief of Appeals William B. Carr, Jr., Esquire (argued) Assistant United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, Pennsylvania 19106-4476 Attorneys for Appellee United States of America

Before: Becker, Chief Judge, Weis and Oakes,^* Circuit Judges.

OPINION OF THE COURT

Weis, Circuit Judge.

In this section 2255 case, defendant contends that his trial counsel erred in failing to object at sentencing to the use of incriminating admissions made as part of a cooperation agreement with the government and immunized by U.S.S.G. S 1B1.8. We conclude that the government had promised that such information would not be used to increase the defendant's punishment. Consequently, that material should not have been factored into the sentence. Whether counsel's inaction at sentencing constitutes ineffective assistance requires a hearing. Accordingly, we will remand for that purpose.

Defendant John Baird pleaded guilty to a Hobbs Act robbery, 18 U.S.C. S 1951; conspiracy to violate civil rights, id. S 241; and obstruction of justice. Id. S 1503. These charges grew out of the defendant's misconduct as an officer in the Philadelphia Police Department. After he became aware that he was under investigation, defendant cooperated extensively with federal authorities in exposing corruption in the department. A more comprehensive review of the facts underlying this case may be found in the defendant's direct appeal. United States v. Baird, 109 F.3d 856 (3d Cir. 1997).

At sentencing, despite the fact that the prosecution had filed a section 5K1.1 motion recommending a downward departure, the court departed upwards from the guideline range of 87-108 months to 156 months. The sentence reached was based, in part, on conduct underlying counts that had been dismissed pursuant to a plea bargain, as well as on information provided by defendant as he had agreed.

At the sentencing hearing, counsel argued that the defendant's own statements had unfairly resulted in a higher guideline calculation, but she did not clearly challenge the use of that material. Neither did she object on the basis of U.S.S.G. S 1B1.8, which generally immunizes from sentencing the consideration of self-incriminating information provided pursuant to an applicable cooperation agreement.

On direct appeal, defendant contended that the District Court erred at sentencing by considering activity underlying the dismissed counts. We affirmed, concluding that such conduct could support the upward departure. Baird, 109 F.3d at 863. As a result of post-sentencing assistance, the defendant's sentence was later reduced to 126 months.

Defendant then filed the present motion under 28 U.S.C. S 2255, asserting that his trial counsel had been ineffective by failing to challenge the adverse use of information that, he argued, was immunized by his cooperation agreement and section 1B1.8. The District Court denied the motion, noting that in the early stages of his cooperation, defendant had attempted to falsely exculpate a fellow officer. Although the cooperation agreement "would have kept all his self- incriminating statements out [so] they could not have been used against him," the court concluded that the defendant's attempts to shield a co-conspirator "breached the deal" and "rendered it null." Accordingly, reasoned the District Court, section 1B1.8(a) was never triggered because the defendant's "own actions . . . caused the agreement to self- destruct."

In this appeal, defendant renews his contention that the government promised that the self-incriminating material he disclosed would not be used for sentencing purposes. The government counters that it made no such commitment, and in the alternative, contends that defendant breached any purported agreement.

I.

To prevail in his contention that counsel was ineffective, defendant must show both deficiency in performance and prejudice. Strickland v. Washington, 466 U.S. 668, 700 (1984). The "deficiency" step asks whether counsel's conduct "fell below an objective standard of reasonableness" viewed as of the time it occurred. Id. at 688, 690; see also United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989). The "prejudice" prerequisite asks whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; see also United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991).

As a threshold matter, the court must determine whether the underlying claim was meritorious. United States v. Mannino, 212 F.3d 835, 839-40, No. 98-1748, (3d Cir. May 15, 2000). The underlying facts are reviewed for clear error, and are subject to independent judgment "on whether the facts thus found constitute constitutionally ineffective assistance of counsel." Government of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1430-31 (3d Cir. 1996).

An understanding of the defendant's section 2255 motion requires a review of the proceedings leading up to his sentencing. In early December 1994, having learned that he was about to be indicted for conspiracy to violate civil rights, defendant offered to cooperate with the government. Unrepresented by counsel, he signed a brief note prepared by an assistant United States Attorney indicating that "no statements made by you, or other information provided by you during the `off-the-record' proffer, will be used directly against you in any criminal case."

Two days later, on December 9, 1994, and still unrepresented, he signed a more formal letter drafted by the United States Attorney's Office. The letter acknowledged the defendant's desire to cooperate and stated that the earlier "off-the-record" note no longer applied and "[f]rom now on," information furnished was "on the record, and could be admitted against you in the future if you failed to plead guilty" to a Hobbs Act robbery and a conspiracy to violate civil rights. The letter also noted that cooperation could result in a governmental motion for a downward departure.

In the month following, defendant fabricated evidence to exculpate a co-conspirator, Thomas G. DeGovanni. On January 28, 1995, defendant admitted this deception, and later aided the government in obtaining evidence incriminating DeGovanni. There is no evidence or suggestion that defendant took further steps to improperly exculpate himself or others, or to minimize his role in the offenses.

At some point not disclosed by the record, defendant retained counsel. On February 28, 1995, a multi-count indictment was returned against defendant, DeGovanni, and others. In addition to the two offenses enumerated in the December 9 letter, the indictment included four other charges against defendant, including a count for obstruction of justice stemming from his attempted cover- up of DeGovanni.

With defendant now represented, the parties entered into a more detailed, formal plea agreement on March 30, 1995. Defendant agreed to cooperate by disclosing information and testifying if necessary. He also agreed that if he committed any additional crimes, the government could avoid the agreement. In due course, defendant pleaded guilty to counts alleging violations of the Hobbs Act, conspiracy, and obstruction of justice. A presentence report was prepared.

In moving for a downward departure at sentencing, the assistant United States Attorney stated that defendant had "demonstrated a remarkable degree of both candor and recall." Moreover, declared the prosecutor, it was "difficult to conceive that a similarly situated defendant could provide a more substantial level of cooperation in the development of an historical case of police corruption." The sentencing judge was nevertheless struck by the extraordinary disruption of the criminal justice system caused by the defendant's conduct, and decided to depart upward. Acknowledging the government's section 5K1.1 motion, the judge stated that he was giving an "implicit" downward departure in that he "would be hitting [defendant] harder . . . were it not for the cooperation."

In its response to the section 2255 motion in the District Court, the government conceded that the defendant's "sentencing guideline calculation and [the District Court's] determination to depart upward were based upon matters which included in large part information obtained directly from [defendant]." The presentence report recites in considerable detail numerous instances in which defendant and his co-conspirators "participated in illegal searches of individuals and property, made illegal entries into premises, made illegal detentions, used unwarranted force and threat of force against detainees and stole money and property . . . ."

The probation officer relied on these incidents in recommending upward departures, stating that the defendant's actions had significantly disrupted governmental functions, had led to the imprisonment of many individuals in violation of their civil rights, and had caused many convictions to be overturned. The government alluded to such matters in its sentencing memorandum, stating that "the District Attorney's Office was left in the unenviable position of having to concede the vacating of convictions of literally dozens of drug dealers." The...