U.S. v. Reckmeyer, 89-7598

• Decision Date: 08 December 1989
• Docket Number: No. 89-7598,89-7598
• Parties: Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Robert Bruce RECKMEYER, Defendant-Appellant. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 257

900 F.2d 257

Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Robert Bruce RECKMEYER, Defendant-Appellant.

No. 89-7598.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 8, 1989.

Decided: April 2, 1990.

Rehearing and Rehearing In Banc Denied June 1, 1990.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis III, District Judge. (CA-88-954-AM; CR-85-10-A)

William Benjamin Moffitt, William B. Moffitt & Associates, Alexandria, Va., for appellant.

William Graham Otis, Senior Litigation Counsel, Alexandria, Va., for appellee.

Lisa Bondareff Kemler, Kerry C. Connor, William B. Moffitt & Associates, Alexandria, Va., for appellant.

Henry E. Hudson, United States Attorney, Alexandria, Va., for appellee.

E.D.Va., 709 F.Supp 680.

AFFIRMED.

Before ERVIN, Chief Judge, and PHILLIPS and CHAPMAN, Circuit Judges.

PHILLIPS, Circuit Judge:

Robert Bruce Reckmeyer, a federal prisoner convicted on a guilty plea to four felony counts of a multi-count drug conspiracy indictment, appeals from the order of the district court dismissing his petition under 28 U.S.C. Sec. 2255 to vacate sentence. Reckmeyer alleged that misconduct on the part of his attorney created a conflict of interest that deprived him of his fifth and sixth amendment rights to effective, conflict-free counsel. The district court granted the government's motion to dismiss the petition on the basis that even if the allegations of a prejudicial conflict of interest were true, Reckmeyer had waived the right to conflict-free counsel. We agree, and affirm.

I

Disposition of this case turns on the facts alleged in Reckmeyer's petition, which, for purposes of this appeal, we accept as true. ¹ In April 1983, Reckmeyer learned that he was the target of a grand jury investigating narcotics trafficking. He retained John M. Dowd as counsel. From that time forward until Reckmeyer pled guilty and was sentenced in March 1985 on four charges arising from a conspiracy to possess and distribute marijuana and hashish, Reckmeyer's version of Dowd's representation is a tale of coercion, fee gouging, ethical violation, and illegality. Reckmeyer's petition charges that Dowd's personal knowledge of facts underlying the government's indictment and additional crimes committed to obtain funds to pay Dowd's fees created an actual conflict of interest that deprived Reckmeyer of his constitutional right to effective counsel.

At their first meeting, Dowd indicated that he would require a $100,000 retainer to represent Reckmeyer. Reckmeyer alleged that he raised $90,000 from legitimate sources and paid that amount to Dowd. He then confided the details of his criminal involvement and his financial holdings to Dowd. Dowd soon informed Reckmeyer that he would need $500,000 to defend him. Reckmeyer at that point sought the advice of a family attorney. As reported in his testimony before a grand jury investigating possible criminal conduct by Dowd: ²

I told [the family attorney] that I was under, let me back up, told him that there was a Grand Jury sitting, investigating me and my marijuana activities and that I had talked to a lawyer by the name of John Dowd. I explained to him who had suggested that I go see Dowd.

I explained to him that I had told John Dowd about all my involvement, even though I didn't discuss my involvement with [the family attorney]. I told him that I was free and candid with John Dowd. I told him that the first day that he told me that 100,000 would be, that he could handle my case for 100,000. I told him that after two weeks of discussing the, my involvement with the business and the amount of money that I had made, that he had reassessed his fee and was now wanting 500,000 up front.

Q. What was [his] advice to you?

A. He told me that for money like that I could hire Edward Bennett Williams and that I should consider someone else; or, if I was gonna stay with Dowd that I should consider a pay-as-you-go basis and just get a monthly invoice for services rendered.

And that I asked him if he would check into John Dowd and see if he was competent and reputable.

* * *

* * *

Q. And did he report to you that Mr. Dowd was, in fact, reputable and competent?

A. He did.

Joint Appendix (J.A.) at 1042-43.

Reckmeyer decided to retain Dowd as his attorney, though he made clear that any additional payments would come from the profits of his illegal operations. ³ Dowd nevertheless continued to demand the large fee payments and threatened to withdraw from the representation if Reckmeyer did not make the demanded payments. Reckmeyer suggested and then implemented a scheme in which he paid Dowd with cashier's checks purchased in a false name. This plan continued after Dowd switched law firms, but Reckmeyer became concerned when the records from Dowd's former firm were subpoenaed. Dowd suggested cash payments, but that plan was quickly discarded and the use of cashier's checks with false names resumed. Reckmeyer kept the amount of each check below $10,000, ostensibly to avoid federal reporting requirements. Id. at 1409. ⁴

Much of Reckmeyer's illegal income was in banks in the Bahamas and he so informed Dowd. Dowd, fearing that Reckmeyer would be indicted and prohibited from transferring money out of the Bahamas, continued to press for payments with full knowledge that the funds would have to be smuggled into the country. Reckmeyer also knew that because the money was from illegal operations, it could not be disclosed upon entry into this country. Id. at 1061. ⁵ Reckmeyer arranged to have one of his brothers-in-law smuggle funds from banks in the Bahamas into the United States. After several successful smuggling trips, Reckmeyer's brother-in-law was arrested carrying illegal funds into this country. Reckmeyer then made two trips to the Bahamas and with Dowd's knowledge and approval withdrew funds from his Bahamian bank accounts, smuggled the funds back into this country without filing the required federal reports, and used the funds to pay Dowd.

Reckmeyer was indicted along with twenty-four other named co-conspirators in January 1985. He was charged in twenty-four of the forty-eight counts of the indictment with a variety of narcotics, weapons, and tax offenses. Among the charges, Reckmeyer was named in the lead drug conspiracy count under 18 U.S.C. Sec. 846, and was accused of engaging in a continuing criminal enterprise (CCE) under 18 U.S.C. Sec. 848. One of the overt acts identified in the indictment as part of the drug conspiracy was the interdicted effort of Reckmeyer's brother-in-law to smuggle funds from the Bahamas into the United States. According to Reckmeyer, both he and Dowd were aware that the only use for the funds was to pay Dowd.

Reckmeyer was arrested and detained pursuant to government motions after the grand jury returned its indictment. The district court also entered a restraining order freezing Reckmeyer's assets, which were subject to forfeiture, thus prohibiting payment to Dowd. At that point, Dowd told Reckmeyer that he would no longer represent him since he could not be paid. Two days later, Reckmeyer pleaded with Dowd to stay on the case, though, as he later testified to the Dowd grand jury, he felt betrayed at that time by Dowd. Dowd told Reckmeyer that he had devised a way to circumvent the restraining order and that he would continue the representation if Reckmeyer could pay an additional $200,000. By this time, Reckmeyer alleges that he had already paid Dowd approximately $500,000, but he wanted to retain Dowd and agreed to follow Dowd's plan to pay more fees. Reckmeyer admitted that he paid Dowd approximately $40,000 in violation of the district court's restraining order.

The evidence against Reckmeyer was substantial, and Dowd advised him to plead guilty. Dowd negotiated a plea agreement with the government that required Reckmeyer to plead guilty to four counts, including the CCE charge, and called for a twenty-year sentencing cap. ⁶ Dowd allegedly told Reckmeyer that the government agreed to recommend the minimum possible sentence in exchange for Reckmeyer's full cooperation in disclosing and forfeiting the assets gained through illegal operations. ⁷ Reckmeyer also alleged that Dowd negotiated a "side-deal" outside the plea agreement that required the government to provide a monthly stipend for Reckmeyer's wife's living expenses. Reckmeyer accepted the plea agreement and appeared before the district court in March 1985 for a Rule 11 plea hearing. The government presented its case against Reckmeyer, and he agreed under oath that the government could have proved its case against him. ⁸ Reckmeyer confirmed that he was freely and voluntarily pleading guilty and that the plea agreement represented the entire agreement with the government. The court also asked whether he was satisfied with Dowd's representation, and Reckmeyer answered, "Very much so, Your Honor." J.A. at 219. The court accepted Reckmeyer's plea; he was sentenced to seventeen years imprisonment on the CCE charge, with concurrent sentences of two years for unlawful currency transportation, two years for unlawful possession of a firearm, and three years for filing false tax returns.

Soon after he was sentenced, Reckmeyer contacted new counsel, who advised him that Dowd had a conflict of interest and that the conflict could have affected Dowd's representation. On advice of counsel, Reckmeyer contacted the government's chief prosecutor and reported Dowd's alleged misdeeds. At least two grand juries investigated Dowd's representation of Reckmeyer, but no criminal charges were brought as a result of the investigations. ⁹

In June...