U.S. v. Garth

• Decision Date: 08 February 1999
• Docket Number: No. 97-1042,97-1042
• Citation: 188 F.3d 99
• Parties: (3rd Cir. 1999) UNITED STATES OF AMERICA, v. MARLON GARTH, Appellant Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 99

188 F.3d 99 (3rd Cir. 1999)

UNITED STATES OF AMERICA, v. MARLON GARTH, Appellant

No. 97-1042

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: February 8, 1999

Filed August 16, 1999

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Criminal No.: 91-cr-00585 District Court Judge: Honorable Louis Charles Bechtle

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Michael G. Paul (Argued), 441 Main Street, Metuchen, NJ 08840, Attorney for Appellant

David L. Hall (Argued), Office of the United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Attorney for Appellee

Before: ROTH, McKEE, RENDELL, Circuit Judges

OPINION OF THE COURT

McKEE, Circuit Judge.

We are asked to decide whether Marlon Garth is procedurally barred from collaterally challenging his guilty plea to the charge of "using or carrying" a firearm "during and in relation to" a drug trafficking crime in violation of 18 U.S.C. S 924(c)(1). The District Court held that Garth had waived his right to collaterally challenge the plea, and dismissed the petition without reaching the merits. This appeal followed.¹

We hold that under Bousley v. United States, 118 S.Ct. 1604 (1998), Garth must be afforded the opportunity to demonstrate whether he can satisfy the "actual innocence" exception to the bar of procedural default. If he can meet that burden, the District Court must then examine whether Garth's plea was knowing and intelligent. Accordingly, we will reverse and remand for further proceedings consistent with this opinion.

I.

At approximately 11:55 a.m. on August 20, 1991, James Corbett of the Narcotics Interdiction Unit of the Philadelphia Police Department, saw four males -- Michael Gilbert, Chris Brown, Keith Wilson, and Marlon Garth-- enter the 30th Street Train Station where Corbett was stationed. Gilbert entered carrying a red bag and a black bag. Corbett watched the four men as they proceeded to the information booth where Gilbert put both bags on the ground. Corbett continued watching as Brown picked up the red bag and walked to a telephone booth to place a call. Gilbert then picked up the black bag, and he, Wilson, and Garth followed Brown to the telephone booth. Corbett continued watching as Gilbert placed the black bag next to the red bag, and proceeded to the AMTRAK ticket window to purchase a ticket. While Gilbert was at the ticket window Wilson made a telephone call, and told the person on the other end of the line that he was going to Baltimore. The black bag remained on the ground between Wilson and Brown. Gilbert then returned from the ticket window, and Brown either told Gilbert to buy another round trip ticket or to exchange the tickets he had purchased. Brown then instructed Wilson to take the black bag to the bathroom. While Wilson was in the bathroom with the black bag, Brown placed a call. He told whoever answered that he (Brown) was leaving Philadelphia at 12:30 and would need to be picked up at 1:30. Following the call, Wilson returned from the bathroom with the black bag, and Gilbert and Garth returned from the ticket window.

At that point, Corbett and the other members of a DEA- AMTRAK drug interdiction task force who had been watching these activities approached the four men. The officers identified themselves, and began a conversation with the four males. When questioned, Gilbert admitted to owning the red bag, but all four men denied owning the black bag. Police searched the red bag pursuant to Gilbert's consent, but they did not find any contraband. They then started to search the black bag without objection from anyone. As Corbett began opening the black bag Brown unsuccessfully attempted to flee. Inside the black bag Corbett found approximately 40 grams of cocaine base (crack) and a loaded semiautomatic handgun. Brown, Wilson, and Gilbert were immediately arrested. Garth was arrested after Gilbert told the officers that Garth was involved in their plan to travel to West Virginia to distribute the cocaine.

Following his arrest, Garth cooperated with the government and appeared before a federal grand jury. He testified that he and his three confederates were transporting crack cocaine to sell in Ranson, West Virginia. He stated that Gilbert had told him that Wilson had a gun in his waistband as he had entered the train station with his three co-defendants. App. 8a-10a. Garth testified that this was the first he knew that anyone involved in the drug distribution scheme had a gun. Following his testimony, he was charged in a two count indictment. Count 1 charged that he "knowingly and intentionally possessed with intent to distribute, and aided and abetted the possession with intent to distribute, more than five grams of a mixture or substance containing a detectable amount of cocaine base . . ." in violation of 18 U.S.C. SS 841(a)(1) & 2. Count 2 charged that "during and in relation to the commission of [the] drug trafficking crime [alleged in Count 1,] [Garth] did knowingly and unlawfully use and carry a firearm, and did aid and abet the knowing and unlawful use and carrying of a firearm . . ." in violation of 18 U.S.C. SS 924(c) &amp 2.²

Pursuant to his agreement with the government, Garth pled guilty to both counts. During the change of plea hearing, the government stated what it would have proved had the case gone to trial. The government proffered that "[Officer Corbett] would testify that they [all four defendants] were carrying and moving two bags, a red bag and a black bag." App. 26a. The only proffer that the government put forward in support of Count 2 was as follows: (1) "Officer Corbett would testify to Garth's admission[] . . . [that] he knew that the gun was present at Thirtieth Street"; (2) "Mr. Gilbert would testify that he told Garth about the presence of the firearm"; and (3) "[e]xperts would testify to the use of firearms for protection and drug trafficking and would also testify the weapon is an operable handgun."³ App. 27a & 28a.

During the colloquy, the Judge informed Garth of the charges against him, the ramifications of choosing to plead guilty as opposed to proceeding to trial, and the possible sentencing range on the two counts. In doing so, the court explained the charges in Count 2 as follows: "The second count, the charge against you is the use of a firearm during this event . . . . That's a violation of U.S. Section 924(c), U.S. Code."⁴ App. 32a (emphasis added). The Judge also explained:

If you are found guilty by a jury or plead guilty to those charges, the sentence is, the maximum sentence would be 45 years in prison including a ten year minimum mandatory together with a minimum term of four years of supervised release but the supervised release could be for life. A fine of up to $250,000 and $100 special assessment, that's what the sentence could be under the statute under these laws that I have just read to you. Possession of cocaine and having a firearm at the time. The statute says that's what the sentence will be for conviction of those offenses.

Id. (emphasis added). Garth pled guilty to both counts, and was later sentenced to eighteen months imprisonment on Count 1 (described in the Judgment as "Possession with intent to distribute Cocaine Base" and "Aiding and Abetting"), sixty months on Count 2 (described in the Judgment as "Use of a firearm during drug trafficking crime" and "Aiding and Abetting"), four years of supervised release upon completion of his incarceration, and a $100 special assessment.

Following the sentencing, the defendant filed a pro se Notice of Appeal, and appellate counsel was subsequently appointed. However, counsel's argument on direct appeal focused upon Garth's contention that a greater downward departure was warranted under Sentencing Guideline 5K1.1. Inasmuch as we lacked jurisdiction to review the court's exercise of discretion, we dismissed the appeal.⁵

Nearly four years after Garth entered his plea, the Supreme Court decided Bailey v. United States, 516 U.S. 137 (1995), in which the Court held that the term "use" in 18 U.S.C. S 924(c) requires more than mere possession of, or proximity to, a firearm during the commission of the underlying offense. Rather, under Bailey, "use" requires "active employment" of the firearm, such as brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire the firearm. Id. at 143 & 148. In the wake of Bailey, numerous defendants have challenged the validity of their guilty pleas under S 924(c) contending that they, as well as their attorneys and the district courts, misunderstood the nature of the firearms charge and that the conduct they admitted to did not constitute a criminal offense.

Similarly, Garth filed a pro se habeas petition challenging his conviction for violating S 924(c).⁶ Garth claimed that there was no factual basis to sustain his guilty plea. He argued that, under Bailey, he did not "use or carry" a firearm within the meaning of S 924(c), and asserted that he should not have been convicted of that offense. The government countered by arguing that, because Bailey did not reach the "carry" prong of S 924(c), Garth's conviction for "carrying" a firearm in violation of the statute should not be disturbed. The government also asserted that, inasmuch as Garth knew that Wilson was carrying the gun, Garth "constructively possessed" or "aided and abetted" the carrying of the gun.

The District Court did not reach the merits of Garth's claim because the court concluded that Garth was procedurally barred from collaterally challenging the validity of his guilty plea. The court held that it could review Garth's collateral challenge only if it could discern a constitutional violation (such as a due process violation or double jeopardy) from the face of the indictment, and Garth's indictment did not reflect any such facial defect. Moreover, the court reasoned that...