U.S. v. Hernandez
| Decision Date | 15 January 1992 |
| Docket Number | 90-3094,Nos. 90-2987,s. 90-2987 |
| Citation | 948 F.2d 316 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Demetrio J. HERNANDEZ and Wayne Parrish, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Barry R. Elden, Diane L. Saltoun (argued), Asst. U.S. Attys., Crim. Receiving, Appellate Div., Chicago, Ill., for U.S.
Richard F. Walsh (argued), Chicago, Ill., for Demetrio J. Hernandez.
Anthony Pinelli (argued), Chicago, Ill., Michael T. Norris, Schaumburg, Ill., for Wayne Parrish.
Before WOOD, Jr., FLAUM, and RIPPLE, Circuit Judges.
Demetrio Hernandez and Wayne Parrish were charged with and convicted of conspiracy to possess and distribute one kilogram of cocaine, in violation of 21 U.S.C. § 846. Mr. Hernandez asks that the indictment against him be dismissed on the ground that the government's conduct during plea bargaining deprived him of effective assistance of counsel. Mr. Parrish challenges his conviction for insufficiency of the evidence, and on the ground that his rights against self-incrimination and to due process, both protected by the Fifth Amendment, were violated. For the following reasons, we affirm.
An informant introduced Demetrio Hernandez to undercover agent Art Martinez. Mr. Hernandez arranged to purchase a kilogram of cocaine from Agent Martinez for $20,000, a price which reflected Mr. Hernandez's stated intention of continuing to buy two to three kilograms a week from Agent Martinez. The sale was to take place at Denny's restaurant near O'Hare airport, a location (as Mr. Hernandez told the undercover agent) conveniently close to the person who supplied Hernandez with money.
Agents watching outside Denny's on the day set for the sale saw Mr. Hernandez drive up, park, and enter the restaurant. Forty minutes later Mr. Hernandez left Denny's and drove to the Citgo gas station adjoining Denny's parking lot. When Wayne Parrish drove up, Mr. Hernandez got into Mr. Parrish's car. The two then drove around the Citgo parking lot for about five minutes, stopping for a moment near some phone booths. Then, their tour of the Citgo lot complete, Mr. Hernandez Mr. Parrish drove his car back to the phone booths and parked facing Denny's parking lot. He sat in his car with a phone to his ear for approximately twenty minutes. At trial, agents testified that he appeared to be watching the events which then took place in Denny's parking lot. Mr. Parrish, who testified at the trial, claimed that he was on the phone for only two minutes, but the police videotape, which recorded the time each image was shot, offers some, albeit imperfect, 1 corroboration of the officers' testimony that he was there for twenty minutes.
carrying a white object, left Mr. Parrish's car and got back into his own car.
Meanwhile, Mr. Hernandez had returned to Denny's and parked. When the undercover agent arrived, Mr. Hernandez suggested that they carry out the transaction across the street because there were policemen inside Denny's. The agent asked to see Mr. Hernandez's money first, and Mr. Hernandez walked over to the agent's car and handed him a white bag with $18,040 inside. Then Mr. Hernandez and Mr. Parrish, who was still sitting in his car at the Citgo station, were arrested.
In Mr. Parrish's car, the police found a manual for a pager and an application for pager insurance. The front and back license plates on Mr. Parrish's car had different numbers. Neither number was registered to Mr. Parrish. Mr. Parrish had no driver's license, car title, or car registration with him or in the car. Mr. Parrish's bank passbook was found in the passenger compartment of Mr. Hernandez's car.
Mr. Hernandez asserts that his Sixth Amendment right to effective assistance of counsel was violated because his confidence in his attorney was compromised by government conduct during plea bargaining.
During initial plea bargaining, the government sought Mr. Hernandez's testimony against Mr. Parrish and offered to recommend a sentencing departure in return for cooperation. Mr. Hernandez's attorney told the government that Mr. Hernandez would not cooperate because he feared for his family.
Mr. Hernandez's attorney and the government then negotiated a plea agreement under which the government agreed that sentencing for the conspiracy would be based on only one kilo of cocaine. In the agreement, the government gave no assurances that it would not immunize Mr. Hernandez in order to obtain his testimony against Mr. Parrish. However, his attorney advised him that, if he pled guilty pursuant to the agreement, he would not have to testify.
Mr. Hernandez signed the agreement and pled guilty. The government then announced that it would seek to immunize Mr. Hernandez and compel him to testify against Mr. Parrish. Mr. Hernandez was permitted to withdraw his guilty plea, but the court refused to dismiss the indictment. Mr. Hernandez went immediately to trial, was found guilty and, with the government's acquiescence, was sentenced for one kilogram of cocaine (the sentence level promised in the plea agreement). Mr. Hernandez was tried together with Mr. Parrish and did not testify against him.
Mr. Hernandez submits that "the conduct of the government in attempting to immunize him when they knew he had entered a plea of guilty based upon non-cooperation interfered with the defendant's right to effective assistance of counsel." Appellee's Br. at 8. Mr. Hernandez argues that he was not advised effectively by his attorney when the attorney incorrectly reported to him the terms of the plea agreement. He further submits that permission to withdraw the plea did not correct the situation because his "confidence in his counsel had to have been compromised." This lack of confidence, he argues, meant that counsel's assistance was also ineffective during trial. Mr. Hernandez contends that the only remedy for the alleged constitutional violation is dismissal of the indictment.
Mr. Hernandez relies on Cooper v. United States, 594 F.2d 12 (4th Cir.1979). In Cooper, the government withdrew its offer of a plea agreement after defense counsel had communicated it to the defendant and the defendant had instructed his attorney to accept it. The Fourth Circuit determined that the government's failure to honor its plea proposal violated the defendant's right to due process and to effective assistance of counsel. Cooper, 594 F.2d at 18-19. The court stated:
Because prosecutors are required to conduct plea negotiations through defense counsel, the government's position and communications in plea discussions are necessarily mediated to the defendant through his counsel. For this reason, not only the credit and integrity of the government but those of his counsel are involved in a defendant's perception of the process.... To the extent that the government attempts through defendant's counsel to change or retract positions earlier communicated, a defendant's confidence in his counsel's capability and professional responsibility, as well as in the government's reliability, are necessarily jeopardized and the effectiveness of counsel's assistance easily compromised. At the very least, these Sixth Amendment considerations add a heightened degree of obligation to the government's fundamental duty to negotiate with scrupulous fairness in seeking guilty pleas.
Id. Although in Cooper there was "no suggestion ... of deliberate abuse of the assumed opportunity freely to make and withdraw plea proposals as a means of testing the wills and confidence of defendants and their counsel or of deliberate harassment," the court ordered the remedy of specific enforcement of the plea proposal, to the extent then possible. Id. at 20.
At the outset, it is important to focus upon the precise nature of Mr. Hernandez's claim. He does not claim that the government broke a promise or deliberately misled his attorney during the plea bargaining. He simply claims that the prosecution knew that his attorney had bargained on the basis that the government would not seek to immunize Mr. Hernandez. It is also important to note that Mr. Hernandez certainly can claim no prejudice from his initial guilty plea. Although the government had not reneged on any promise--a situation for which the possible remedies would have included specific enforcement of the government's promise or permission to withdraw the guilty plea 2--the district court prudently permitted him to withdraw his guilty plea. Nevertheless, he achieved the two objectives that he sought in the plea negotiations: he was sentenced in the same range applicable under the plea agreement, and he did not testify against his co-defendant, Mr. Parrish. However, Mr. Hernandez asserts that, in this case, additional relief is necessary. Specifically, he asserts that it is necessary to remedy an undermining of his faith in his counsel and the consequent deprivation of effective assistance of counsel by dismissal of the indictment against him.
The basic principles that must guide our decision are well-established. "Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated." United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1983). "In certain Sixth Amendment contexts, prejudice is presumed." Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). These are circumstances "that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Cronic, 466 U.S. at 658, 104 S.Ct. at 2046 (footnote omitted). ...
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