U.S. v. Clements, 1134

• Decision Date: 26 April 1993
• Docket Number: D,No. 1134,1134
• Citation: 992 F.2d 417
• Parties: UNITED STATES of America, Appellee, v. Kevin CLEMENTS, a/k/a "Knowledge," Defendant-Appellant. ocket 92-1680.
• Court: U.S. Court of Appeals — Second Circuit

Page 417

992 F.2d 417

UNITED STATES of America, Appellee, v. Kevin CLEMENTS, a/k/a "Knowledge," Defendant-Appellant.

No. 1134, Docket 92-1680.

United States Court of Appeals Second Circuit.

Argued March 12, 1993.

Decided April 26, 1993.

Marion Seltzer, New York City, for defendant-appellant.

Charles L. Weintraub, New York City (Hoffman & Pollack, of counsel), argued for defendant-appellant.

James A. Goldston, Asst. U.S. Atty., Southern District of New York, for appellee.

Before: MAHONEY and WALKER, Circuit Judges, and LEONARD B. SAND, District Judge for the Southern District of New York, sitting by designation.

PER CURIAM:

Kevin Clements appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York (Michael B. Mukasey, Judge). For the reasons set forth below, we affirm.

BACKGROUND

On July 27, 1992, after jury selection had been completed for the trial of the defendant and three others on various narcotics and firearms charges, the Assistant United States Attorney in charge of the prosecution advised District Court Judge Michael B. Mukasey that the Government had reached "an understanding with all of the defendants which will dispose of the case." The Assistant proceeded to state the terms of the proposed disposition pursuant to which the defendants would be permitted to plead to a lesser included offense of the narcotics violation charged in Count One of the indictment. The defendants were not required to admit to distribution of a specific quantity of cocaine base but, as part of the plea agreement, were to stipulate to a base offense level for sentencing guidelines purposes of 36, based on distribution of between 500 grams and 1.5 kilograms of cocaine base. There was no agreement as to the correct criminal history category. The defendants were also to plead to the firearms count, 18 U.S.C. § 924(c), which carried a five year mandatory consecutive sentence.

Although the Assistant repeatedly stated that the agreement reached was as to "all defendants," the court was not explicitly advised by any party that the government had imposed as a condition of its plea bargain offer that all four defendants then on trial enter pleas, thus achieving a total disposition of the case. But for the ability to plead to the lesser included offense, one of the defendants is said to have faced a possible life sentence.

Judge Mukasey then proceeded to conduct an allocution pursuant to Fed.R.Crim.P. 11 posing the same question to each defendant in turn. As to Clements, his counsel stated:

"I should also note for the record that this was a reasoned decision after a lot of discussion with the government over the weekend, as well as the fact that I had an opportunity to bring Mr. Clements the 3500 material in the case. He had it over the weekend. We reviewed it, we discussed it ..."

When asked if he had been threatened or forced in any way to plead guilty, Clements responded negatively. He acknowledged that he was selling crack cocaine from specified premises and knew that firearms were in the apartment. The court accepted all four pleas and set dates for sentencing.

On November 4, 1992, before sentencing occurred, Clements' counsel advised the court that his client had expressed serious reservations about going forward with the sentence for the following reason:

Mr. Jacobs: ... This plea was conditional, that is, to the extent that all defendants were required to take the plea for the government to accept the plea bargaining that took place. I have no fault with that. That is a standard policy that is done by the U.S. Attorney's Office.

The Court: I don't know that it is standard in all cases. I think part of the reason in this case was it was a question of avoiding a trial.

Counsel went on to describe Clements' belief that he had been treated unfairly and that had he "been given the option alone of not having a conditional plea, that he would have gone to trial."

The gist of counsel's claim before Judge Mukasey was that as to the requirement that all defendants plead:

"It was not brought to your Honor's attention. I am not sure if it has to be, to the extent that it is not part of the plea bargaining per se, it was not an agreement or anything else like that. Nevertheless, it wasn't brought to your Honor's attention either by myself or any other counsel or by the government and, therefore, there is just nothing on the record about this. I am not sure if it has to be or not."

In further colloquy, appellant's counsel went on to state:

"I am not saying this defendant didn't voluntarily plea[d], Judge. He certainly did."

Judge Mukasey denied the application to withdraw the plea, stating his view that the allocution of the defendant and all the circumstances surrounding the plea supported the conclusion that it was made voluntarily with adequate information. The motion of a co-defendant, Seagers, who had joined in Clements' motion, was also denied.

After the denial of the withdrawal motion, Clements' counsel stated that he was ready to proceed with sentencing, although Clements himself stated that he was not ready and wished to "try to put some more motions or something to try to get my plea back." There was no specific request by Clements or his counsel for a hearing as to the voluntariness of his plea. Judge Mukasey refused to delay and proceeded to sentence Clements to 151 months pursuant to 21 U.S.C. § 841(b)(1)(d) as to Count 1, to be followed by the mandatory 60 months consecutive sentence pursuant to 18 U.S.C. § 924(a) as to Count 3; three years of supervised release, a $2,000 fine and a $100 special assessment.

Discussion

In this Court, Appellant urges that it was error to have denied the motion pursuant to Fed.R.Crim.P. 32(d) ¹ to withdraw the plea without a hearing. Appellant further urges that the joint plea proceedings were inherently coercive, a condition which was exacerbated by the failure of the government to disclose to the court that it had imposed the requirement that all defendants enter pleas as a condition of its plea bargain offer.

We have no doubt that the Rule 11 allocution in fact conducted by Judge Mukasey fully established the voluntariness of appellant's plea and that the failure to hold a hearing was not an abuse of discretion. We write because of the importance of the question and as guidance to the government in future proceedings.

Whatever doubts may have at one time been entertained as to "the constitutional implications of a prosecutor's offer during plea bargaining of adverse or lenient treatment for some person other than the accused," Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8, 98 S.Ct. 663, n. 8, 54 L.Ed.2d 604 (1978), it is now clearly established in the Second Circuit that the government may impose conditions which relate to the conduct or treatment of others. United States v. Marquez, 909 F.2d 738 (2d Cir.1990), cert. denied, 498 U.S. 1084, 111 S.Ct. 957, 112 L.Ed.2d 1045 (1991). As Judge Newman wrote, after noting that there was unanimity among the circuits that had considered the question, such pleas were proper if voluntary: "Since a defendant's plea is not rendered involuntary because he enters it to save himself many years in prison, it is difficult to see why the law should not permit the defendant to negotiate a plea that confers a similar benefit on...