U.S. v. Couto

Decision Date15 November 2002
Docket NumberDocket No. 01-1636.
Citation311 F.3d 179
PartiesUNITED STATES of America, Appellee, v. Ivania Maria COUTO, also known as Sealed dft # 35, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Mark M. Baker, (Benjamin Brafman, on the brief), Brafman & Ross, P.C., New York, NY, for Defendant-Appellant.

Barbara D. Cottrell, Assistant United States Attorney, for Joseph A. Pavone, United States Attorney for the Northern District of New York (Richard S. Hartunian, Assistant United States Attorney, on the brief), Albany, NY, for Appellee.

Before: CALABRESI, POOLER, and SACK, Circuit Judges.

CALABRESI, Circuit Judge.

Defendant Ivania Maria Couto appeals from a decision of the United States District Court for the Northern District of New York (McAvoy, J.) denying her motion to withdraw her plea of guilty to a charge of bribing a public official. On appeal, Defendant advances three reasons why she should have been allowed to withdraw the guilty plea: (1) that she had received ineffective assistance of counsel in violation of her Sixth Amendment rights and that, as a result, her plea was not knowing and voluntary; (2) that the district court abused its discretion in denying the motion since it based its decision solely on an unfounded assessment of the strength of the government's case; and (3) that, because deportation is now virtually certain for aliens convicted of aggravated felonies, the court was required under Fed.R.Crim.P. 11(c)(1) to inform Defendant of those deportation consequences before accepting her plea.

Concluding that Defendant did not receive the effective assistance of counsel and that the district court abused its discretion in denying Defendant's motion, we reverse the district court's decision. Because we reverse on those grounds, we need not decide the question of what effect, if any, recent changes to the Immigration and Nationality Act have on a court's obligation under Fed.R.Crim.P 11(c)(1) to inform a defendant of the direct consequences of a guilty plea prior to accepting that plea.


Defendant came to the United States from Brazil in 1991 on a tourist visa. Soon afterwards, she gave birth to a son — who was born an American citizen — and she and the boy remained in this country after her tourist visa expired. A brief marriage to a U.S. citizen in 1994 was annulled, and a second marriage in 1995, also to a U.S. citizen, ended a year or so later when her husband died of cancer. Prior to the annulment of the first marriage, Defendant had filed an application with the INS for permanent resident status.

On June 16, 2000, as part of a multi-defendant, 34-count indictment, Defendant was charged with bribery and conspiracy to commit bribery of an INS official in violation of 18 U.S.C. §§ 201(b)(1)(A). Specifically, the government alleged that Defendant acted through an intermediary to secure a green card from an INS agent in return for $9,500.1 Defendant retained a criminal defense attorney and pleaded not guilty.

Defendant asserts that in December 1999, she was approached by a man, Pedro Gonzalez, who spoke Spanish and claimed to be an attorney.2 When she told him of her long-pending INS application, he offered to assist her in attaining permanent status. In March 2000, when she still had not heard from the INS, Defendant called Mr. Gonzalez and made an appointment to see him. Mr. Gonzalez told Defendant that he could help her for "a little less than $10,000," and she agreed. Defendant steadfastly maintains that she believed she had validly retained an attorney to assist her. In May 2000, she met Mr. Gonzalez in Queens and rode with him to Albany for a meeting with an immigration official. According to Defendant, there were many other people (who Mr. Gonzalez said were clients) on the trip. Because these people spoke mostly Spanish, Defendant had difficulty communicating with them.

Defendant says that upon arriving at a restaurant in Albany, she gave Mr. Gonzalez $5,000. She then went to a motel with the others and met the INS official. Mr. Gonzalez told her that she should pay him the remainder of the fee when she received the proper documentation from the INS. After she had spoken "with various people as best as [she] could because they spoke either Spanish or English," Defendant's passport was stamped and returned to her. She then went back to New York City with the others, expecting to hear from Mr. Gonzalez. Instead, in June 2000, Defendant was arrested. As it turned out, the INS official Defendant had met at the hotel was "an undercover INS agent posing as a `corrupt' INS official." Moreover, Mr. Gonzalez, who was also indicted, was not an attorney at all.

Defendant was referred to a criminal defense attorney, Arnold Proskin, who met with her in the Albany County Jail for about 15 minutes on July 10, 2000. She was granted bail following her arraignment on July 19, whereupon she learned that she was also subject to INS removal proceedings and was being held in jail by that agency as well. Mr. Proskin arranged for her to be released on bond from the INS the same day. Mr. Proskin told her that the INS was "closing out her earlier case and that her application had been cancelled." He added that he had no objection to the INS doing this, and Defendant asserts that she relied on his advice. Mr. Proskin told her that he was not an immigration lawyer, but that he would consult with one, and she should give him money both for his services and those of the immigration lawyer. Defendant paid Mr. Proskin accordingly, and returned home.

Defendant says that she did not hear from Mr. Proskin again until she received a letter from him in early November 2000, around the time that she also got a letter from the INS informing her that a hearing concerning her removal had been scheduled for April 10, 2001.3 Mr. Proskin's letter told her that a trial date had been set for December 4, 2000, and that he had received from the U.S. Attorney "a videotape of communications [Defendant] had with the undercover agent." Defendant maintains that she did not understand the reference to an "undercover agent" and tried to call Mr. Proskin, but that she was unable to reach him. Defendant received a copy of the tape on November 22, and called Mr. Proskin to insist on a meeting with him. This was scheduled for November 30.

At the meeting, Mr. Proskin told Defendant that he had arranged a plea agreement with the government, that a court date had been set for the next day, and that she had to decide by the following morning whether to plead guilty. Defendant contends that her attorney told her that if she did not plead guilty she would probably be found guilty and go to jail, but predicted she could avoid jail by pleading guilty. Moreover, he assured her that they could deal with her immigration problem after the guilty plea, and said there were many things that could be done to prevent her from being deported, including asking the judge for a letter recommending against deportation.

The following day, Defendant accepted the government's offer to plead guilty to one count of the indictment. Since the judge was in Syracuse and the Defendant and prosecutor were in Albany, the plea hearing was conducted by teleconference, the Defendant, through her attorney, having waived her right to a face-to-face hearing. She also waived her right to an interpreter. At one point in the hearing, Defendant hesitated when asked if the Government's statement of the case was correct, but her attorney explained that her hesitation was because she had originally believed Mr. Gonzalez was a legitimate attorney and had discovered "at some point later on" that he was not. The judge confirmed that Defendant had spoken with her attorney about the plea agreement, about the consequences of pleading guilty, and about her chances at trial. The judge advised her as to the rights she waived by pleading guilty, and confirmed that she was satisfied with what her lawyer had done for her thus far and that she signed the plea agreement voluntarily. Finally, the judge explained the sentencing guidelines to the defendant, and informed her that, under those guidelines, the maximum penalty for the count involved would be 15 years' imprisonment, three years' supervised release, a $250,000 fine and a $100 special assessment.

Throughout the hearing, no mention was made of any possible deportation. More specifically, no one informed Defendant that, because the 1996 amendments to the Immigration and Nationality Act eliminated all discretion as to deportation of non-citizens convicted of aggravated felonies, her plea of guilty meant virtually automatic, unavoidable deportation.4 Defendant pleaded guilty and sentencing was set for April 13, 2001.

On April 3, sentencing was adjourned to September, and in late July, Defendant obtained new counsel and moved to withdraw her guilty plea. In that motion, she asserted (1) that "as a direct result of her conviction for an `aggravated felony,' Defendant now faces certain deportation, which U.S. Immigration Court proceeding is scheduled for October 2, 2001"; (2) that because deportation is now a direct consequence for such a conviction, the district court judge was required, under Fed. R.Crim.P. 11, to inform her of that consequence prior to accepting the plea; and (3) that because Defendant's attorney not only failed to advise her that deportation was a certain consequence of her plea, but affirmatively misrepresented to her that the judge could issue a recommendation against deportation, she was denied the effective assistance of counsel. The district court ordered an evidentiary hearing on Defendant's motion.

Both Defendant and her original criminal defense attorney testified at the hearing. Mr. Proskin had little recollection of his representation of Ms. Couto. He acknowledged that he received the plea agreement from the U.S....

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