U.S. v. Leonti
| Decision Date | 24 April 2003 |
| Docket Number | No. 01-17113.,01-17113. |
| Citation | 326 F.3d 1111 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David LEONTI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Karen Landau (argued), Alan Ellis, Peter Goldberger, Law Offices of Alan Ellis, Sausalito, CA, for the defendant-appellant.
Thomas Muehleck, Assistant U.S. Attorney, Honolulu, HI, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Hawaii; Helen Gillmor, District Judge, Presiding. D.C. Nos. CV-00-00498-LEK, CR-96-00811-HG.
Before: COWEN,* HAWKINS, and W. FLETCHER, Circuit Judges.
We confront an issue of first impression in this circuit: whether a viable ineffective assistance of counsel claim can arise in the sentencing context; specifically, whether failing to effectively assist a defendant awaiting sentencing in his willing efforts to provide cooperation to an interested government can constitute a Sixth Amendment violation. Concluding that the pre sentencing cooperation period is a critical stage of the criminal process and that obtaining a substantial assistance motion from the government represents a particularly critical point in that process, we reverse the district court's refusal to hold an evidentiary hearing on allegations which, if proven true, would make out such a claim.
The nature of the district court dismissal leaves us a record consisting largely of Leonti's allegations which, for the purpose of our review, unless palpably incredible or patently frivolous, must be taken as true. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984).
In late 1995, the DEA acquired information from a cooperating source that Leonti was the head of a group of individuals in San Jose, California who were sending methamphetamine disguised as computer software to individuals in Honolulu, Hawaii. On August 22, 1996, a federal grand jury indicted Leonti and two co-defendants for conspiracy to distribute and possess methamphetamine, and indicted Leonti for possession of methamphetamine with intent to distribute, interstate travel in aid of racketeering, and money laundering. Leonti was arrested in California, transferred to Hawaii, and then released on bond and required to reside with his mother in California on electronic monitoring.
Shortly after his arrest, Leonti was asked by DEA Agent Robin Dinlocker ("Dinlocker") whether he was interested in cooperating, and he told her that he needed to speak with an attorney. Leonti then retained California attorney Jerry Kaplan ("Kaplan"), who contracted with attorney Mark Zenger ("Zenger"), to act as local counsel in Hawaii. Leonti told Kaplan at the outset that he wished to cooperate in order to reduce his sentence, but Kaplan wanted to first review discovery. About one month after his indictment, Leonti told Kaplan that he had information regarding a major methamphetamine distributor in San Jose, as well as several other large-scale methamphetamine dealers, and that he was willing to arrange deals with them for the government. Kaplan, still wanting to wait until he had reviewed discovery, did not pass this information along to the government.
In January 1997, Kaplan completed his review of discovery and advised Leonti to plead guilty and begin cooperating with the federal government. Kaplan arranged a proffer session with the government in Hawaii, but failed to appear at this meeting, although local counsel Zenger did attend. Dinlocker and several IRS agents were present at the proffer session, at which Leonti provided information about methamphetamine trafficking and his relationship with a major trafficker. Zenger describes the agents as being "interested and excited about what Mr. Leonti had to say and what he could do for them." Zenger also stated that Dinlocker indicated she would put Leonti in contact with an agent in San Jose who would assist Leonti "in the effort to arrange a deal with one particular target."
On April 21, 1997, Leonti pled guilty pursuant to a plea agreement with the government wherein he agreed to cooperate in exchange for a governmental motion for downward departure pursuant to U.S.S.G. § 5K1.1, in the event that he was able to provide substantial assistance. Kaplan was scheduled to appear at the plea hearing, but did not appear, although, again, Zenger was present.
At the plea hearing, Assistant U.S. Attorney Muehleck ("Muehleck") told the judge that Leonti was cooperating and had "been debriefed on a couple of occasions," and said that he was "optimistic" that the government would benefit from Leonti's cooperation. For these reasons, Muehleck asked the judge to go "outside" the applicable statute and release Leonti on bail so that he could continue to cooperate. When the judge expressed skepticism about making an exception, Muehleck further said that the request was not made lightly, and that Leonti had already "provided substantial information." Although Muehleck said he could not "tell the court that [he knew he was] going to get something out of it," he reiterated that he was "optimistic."
Later that month, Leonti met with DEA Agent Gilblanco ("Gilblanco"), who was based in San Jose. Kaplan did not attend this meeting, and, because it took place on the mainland, neither did Zenger. Gilblanco expressed some reluctance about working with Leonti, and said he was only doing it as a favor to Dinlocker. Leonti told Gilblanco that he was concerned about arranging deals because of the ankle bracelet he was wearing for home monitoring; if anyone patted him down they would know he was subject to monitoring and was possibly cooperating with the government. Gilblanco was unwilling to help him have the bracelet removed, and disagreed with Leonti about the strategy for making the first deal. Gilblanco wanted to start off with a five-pound sale, but Leonti thought that suggesting such a large amount would be suspicious.
Leonti talked to Kaplan about these problems, but although Kaplan expressed concern, he never attempted to contact Gilblanco or work things out. Leonti did not hear anything from Gilblanco or Kaplan for one to two months, although he attempted to contact both of them. During this period, Leonti discussed his concerns about Kaplan's representation with Zenger, who revealed that he too had unsuccessfully tried to contact Kaplan on numerous occasions.
When nothing came of Leonti's relationship with Gilblanco, Dinlocker introduced Leonti to California Bureau of Narcotics Agent Castillo ("Castillo"), with whom Leonti then worked from August 1997 to March 1998. During this time, Leonti succeeded in arranging a one to two pound methamphetamine deal with drug trafficker Raul Martinez ("Martinez"), but the deal ultimately failed because Castillo could not raise enough money to consummate it. In addition, Castillo also failed to respond to Leonti's concerns about his ankle bracelet, and Martinez found out about the bracelet and asked about it. Leonti again asked Kaplan to intercede, but Kaplan did not take any action.
When Leonti complained to Kaplan about his failure to facilitate cooperation, he was told not to worry because Muehleck was going to call Leonti to testify before a grand jury, which would be sufficient to constitute substantial assistance. However, the government never called Leonti before the grand jury. Leonti repeatedly asked Kaplan to tell Muehleck of his desire to testify, but Kaplan never contacted Muehleck. Kaplan's assurances led to Leonti's failure to maintain contact with any government agents between April 1998 and July 1999.
In May, 1999, Kaplan told Leonti that he was to be sentenced and would receive no downward departure for substantial assistance. The next month, Leonti contacted Castillo because Martinez was still trying to sell him methamphetamine, but Castillo was "unable to make the arrangements necessary."
Leonti was sentenced on July 12, 1999. The government did not recommend that he receive a downward departure for substantial assistance, and the district court sentenced Leonti to 262 months imprisonment. On July 19, 2000, Leonti filed a 28 U.S.C. § 2255 petition, alleging ineffective assistance of counsel. The district court denied the motion without an evidentiary hearing, and issued a certificate of appealability.
Leonti now seeks an evidentiary hearing as to whether Kaplan rendered ineffective assistance by delaying Leonti's guilty plea and failing to effectively assist him during his period of cooperation. An inmate filing a claim for federal habeas relief under 28 U.S.C. § 2255 is entitled to an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Id. We have characterized this standard as requiring an evidentiary hearing where "the movant has made specific factual allegations that, if true, state a claim on which relief could be granted." Schaflander, 743 F.2d at 717. Thus, the district court's decision that Leonti's ineffective assistance claim did not warrant an evidentiary hearing was correct if his allegations, "when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." Id. We review a denial of an evidentiary hearing for abuse of discretion. United States v. Blaylock, 20 F.3d 1458, 1464 (9th Cir.1994).
Leonti's ineffective assistance claim arises out of his counsel's conduct during the process of reaching the plea agreement and Leonti's subsequent attempts to cooperate with the government. Leonti states a claim for relief only if the Sixth Amendment guarantees apply to these aspects of a criminal proceeding.
Once it attaches, the right to counsel under the Sixth Amendment applies to all ...
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