U.S. v. DeFreitas

• Decision Date: 09 January 1989
• Docket Number: No. 88-5050,88-5050
• Citation: 865 F.2d 80
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Melvin DeFREITAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 80

865 F.2d 80

UNITED STATES of America, Plaintiff-Appellee, v. Robert Melvin DeFREITAS, Defendant-Appellant.

No. 88-5050.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 3, 1988.

Decided Jan. 9, 1989.

Wilfred Asquith Hearn, Jr., Beverly Hills, Cal. (James C. Clark, Land, Clark, Carroll & Mendelson, P.C., Alexandria, Va., on brief), for defendant-appellant.

John Thomas Martin, Asst. U.S. Atty. (Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee.

Before WIDENER, MURNAGHAN, and WILKINS, Circuit Judges.

MURNAGHAN, Circuit Judge:

Robert Melvin DeFreitas was indicted November 24, 1987 in the United States District Court for the Eastern District of Virginia for possession of cocaine base with intent to distribute, ¹ possession of marijuana with intent to distribute, ² and interstate travel in aid of racketeering. ³ On December 2, 1987, he entered not guilty pleas.

DeFreitas and a companion were confronted on their arrival at Washington National Airport on a flight from New York by a Drug Enforcement Administration special agent and officers of the District of Columbia Metropolitan police force and Arlington County police force, who were working for a DEA airport interdiction group. Upon a consent search, a bag in the possession of DeFreitas revealed among its contents marijuana and 14.8 grams of cocaine contained in 125 vials. As a consequence he was arrested.

On Friday, January 29, 1988, DeFreitas appeared before Chief District Judge Albert V. Bryan, Jr. for the entry of a change of plea pursuant to a plea agreement with the government. Uncertain whether DeFreitas was entering the plea freely and voluntarily, ⁴ after colloquy, Judge Bryan suspended the plea proceeding. He ruled that the trial would commence on Monday, February 1, 1988, as scheduled.

Then, on February 1, 1988, the hearing resumed before District Judge James C. Cacheris. DeFreitas remained represented by his original lawyer, though DeFreitas had expressed a desire for new representation and Judge Bryan had been so informed. The lawyer advised DeFreitas to accept the plea agreement, which involved a guilty plea, since by going to trial DeFreitas would face a multiple count conviction, which the lawyer allegedly predicted would result in a sentence of fifteen years or more. If convicted on all three counts, DeFreitas would have received a minimum mandatory prison sentence of five years, and could have received a sentence of up to 50 years. ⁵ In connection with the application for a change of plea, Judge Cacheris advised DeFreitas of the penalties which might be imposed and the fact that the change of plea would terminate DeFreitas' right to trial by jury. DeFreitas indicated that he understood the rights he would be abandoning, pled guilty to one count as required by the plea agreement, and stated that he agreed with a factual statement, recited in open court by the prosecutor, as to what had occurred.

On March 4, 1988, the date fixed for sentencing, DeFreitas, through new counsel, moved for leave to withdraw his guilty plea, as not freely and voluntarily made, claiming it was based on insufficient facts and had resulted from the ineffective assistance of counsel. ⁶ The motion for leave to withdraw the guilty plea was denied, as was a motion to dismiss, and sentencing was continued until March 18, 1988.

On that date, DeFreitas renewed his efforts to withdraw his guilty plea and sought reconsideration of the March 4, 1988 order denying withdrawal of the plea and dismissal of the indictment. The motion to withdraw the guilty plea contained a declaration from DeFreitas concerning advice given him by his former counsel.

The motion filed by DeFreitas to dismiss the indictment alleged that the grand jury considered false testimony from DEA Special Agent William Dwyer. The government in reply stated that it possessed information which affected Dwyer's credibility, but the government in responding did not disclose the nature of that information. However, the response contained a statement that the information had been known to the former counsel of DeFreitas prior to the time of the guilty plea. On June 14, 1988, the government advised DeFreitas' new counsel of the information, which concerned Dwyer's treatment for alcoholism during the pendency of the proceedings.

On the basis of statements by DeFreitas made at the time of his guilty plea (February 1, 1988), the motion to withdraw the plea and the motion to dismiss were denied March 18, 1988, at which time the defendant was sentenced to a five year term of imprisonment and a supervised release term of four years. A $50.00 special assessment was also imposed.

Subsequently, DeFreitas sought to assert duress, coercion and lack of volition, induced by inaccurate statements of law and fact by his initial attorney. He sought a hearing, which was denied.

The thrust of DeFreitas' appeal focuses largely on the holdings in United States v. Savage, 561 F.2d 554 (4th Cir.1977) and United States v. Strauss, 563 F.2d 127 (4th Cir.1977). Those two cases held that, in the absence of prejudice to the government, withdrawal of a plea prior to sentencing would be automatic. No evidence existed in the instant case that the government would have been prejudiced by withdrawal of the plea and the effort it would need to expend in proceeding with a trial of the matter.

However, United States v. Haley, 784 F.2d 1218 (4th Cir.1986), introduced a modification of controlling importance here. That case construed a 1983 amendment of Fed.R.Crim.P. 32(d) to require that, even in the absence of prejudice to the government, the defendant, to be permitted to withdraw a guilty plea, would have the burden of showing a "fair and just" reason for the withdrawal of the plea.

The attempt of DeFreitas in effect to read United States v. Haley out of existence does not convince us. We have considered the strength of the case against DeFreitas. He was caught with the goods and faced a strong possibility of conviction on all three counts, for which he could have received up to 50 years in prison. In light of that risk, his lawyer's recommending a guilty plea on one count, in the hope that Judge Bryan would impose the minimum sentence of five years in prison, cannot be characterized as misadvice. ⁷ The district court fulfilled the expectations of DeFreitas' lawyer by imposing the minimum prison term available for the offense charged in Count I. If DeFreitas had proceeded to trial he faced a strong likelihood of receiving a substantially longer prison sentence.

Other statements and advice of DeFreitas' lawyer, about which the defendant has complained, do not justify withdrawal of the guilty plea. DeFreitas may withdraw his plea only if he makes two showings: (1) that his counsel's performance "fell below an objective standard of reasonableness" and (2) that he was prejudiced in the sense that "there [was] a reasonable probability that, but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 57, 59, 106 S.Ct. 366, 369, 370, 88 L.Ed.2d 203 (1985). DeFreitas has failed to bear that burden.

DeFreitas suffered no prejudice from the alleged failure of counsel to explain that the government had the burden of proving intent. Judge Cacheris, in taking the guilty plea, specifically told...