U.S. v. Todd

• Decision Date: 07 May 2002
• Docket Number: No. 01-3088.,01-3088.
• Citation: 287 F.3d 1160
• Parties: UNITED STATES of America, Appellee, v. Troy Mitchell TODD, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

287 F.3d 1160

UNITED STATES of America, Appellee, v. Troy Mitchell TODD, Jr., Appellant.

No. 01-3088.

United States Court of Appeals, District of Columbia Circuit.

Argued March 19, 2002.

Decided May 7, 2002.

Appeal from the United States District Court for the District of Columbia (No. 82cr00339-01).

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender.

Lisa H. Schertler, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Roscoe C. Howard, Jr., U.S. Attorney, John R. Fisher, Elizabeth H. Danello, and Daniel J. Bernstein, Assistant U.S. Attorneys.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Twenty years ago, a federal grand jury in the District of Columbia indicted appellant Troy Mitchell Todd for various drug offenses. Extradited from Australia after fleeing the country, Todd pleaded guilty to one count of drug trafficking conspiracy and one count of possession with intent to distribute cocaine. The district court imposed two concurrent five to fifteen-year sentences, followed by a three-year term of "special parole" (the pre-Sentencing Guidelines term for "supervised release") on the possession-with-intent-to-distribute count, and concurrent fines of $1000 and $5000. Todd did not appeal. Years later, following his release from prison, Todd had another run-in with the law, this time in Florida, where he again pleaded guilty to federal drug offenses. Due to the District of Columbia conviction, his Florida sentence was doubled.

Proceeding pro se in the district court here, Todd then filed a section 2255 motion to vacate the District of Columbia conviction and sentence. See 28 U.S.C. § 2255 (setting forth procedures for collateral attack on federal criminal conviction). Among other things, he claimed his trial counsel failed to advise him of his right to appeal. With the Government's consent, the district court held the section 2255 motion in abeyance. Then, finding that Todd's lawyer had in fact failed to advise him of his right to appeal, the district court resentenced Todd so that he could file a timely appeal. See FED.R.APP.P. 4(b) (requiring criminal defendant to file a notice of appeal within 10 days of judgment). We vacated the new sentence and remanded for reconsideration in light of Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), which held that defense counsel's failure to file an appeal is not per se ineffective assistance but instead must be analyzed under the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Flores-Ortega, 528 U.S. at 478, 120 S.Ct. at 1035. Applying Strickland, the district court found defense counsel ineffective, again resentencing Todd. This appeal followed.

Echoing the claims in his still-pending section 2255 motion, Todd seeks vacatur of his plea due to: (1) errors by the district court in conducting the plea colloquy, see FED.R. CRIM. P. 11, and at his original sentencing; (2) Government coercion of his plea; (3) ineffective assistance of trial counsel; and (4) the court reporter's failure to prepare a transcript of the plea hearing or file her original notes with the court, in violation of the Court Reporter Act, 28 U.S.C. § 753(b), and Federal Rule of Criminal Procedure 11(g). Making matters worse as to this last claim, the court reporter is now deceased, and the plea agreement, though docketed, is missing from the record. The Government's files, which presumably once contained a copy, have been destroyed. (The Government represents, and Todd does not dispute, that the Government followed its standard records retention policy.)

In the interim between Todd's first and second resentencing, and acting pursuant to order of this court, the district court — presided over by the judge who conducted the plea — attempted to reconstruct the plea hearing record. See FED.R.APP.P. 10(c) (providing for a statement of the evidence when a transcript of the proceedings is unavailable). In an affidavit submitted to the district court, Todd recalled that "at no time did the subject of Special Parole come up," nor was he "advised by the court ... of the essential elements of the second of the two counts [i.e., possession with intent to distribute]." He could not, however, "say with certainty anything else concerning the particulars of the plea-hearing." The district judge's notes of the plea proceeding list the counts to which Todd pleaded—"pleas to counts 1 + 3.... 2-15 year offenses plus $25K fines or both." The judge also had a copy of a ten-page plea colloquy "script" he has followed since before Todd's plea. Neither the prosecutor nor defense counsel could remember the details of anything said at the plea hearing. In the end, the district court found reconstruction of the hearing record "impossible." Order of the United States District Court for the District of Columbia (Dec. 9, 1999) (No. 82-339-01).

On appeal, Todd and the Government agree that some claims can be resolved on the existing appellate record, but that other claims require further factual development. The parties do not entirely agree, however, on which claims fall into which category, or on the method by which additional factual development should occur. If we do not vacate the plea, Todd urges us to remand the record in this case (i.e., his appeal) to the district court for evidentiary proceedings. The Government prefers that we hold the appeal in abeyance and direct that Todd's section 2255 motion go forward, although in the alternative it concedes that remand would be appropriate.

We agree with the parties that many of Todd's claims rely at least in part on facts neither fully litigated nor part of the appellate record. For example, Todd alleges the Government coerced his plea by threatening: (1) to bring charges against his father and brother, see Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747 (1970) (obtaining "a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant" violates due process); United States v. Pollard, 959 F.2d 1011, 1020-21 (D.C.Cir.1992) (setting out the test for determining whether "`a prosecutor's offer during plea bargaining of adverse or lenient treatment for some person other than the accused'" constitutes coercion (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8, 98 S.Ct. 663, 668 n. 8, 54 L.Ed.2d 604 (1978))); and (2) to indict him, in violation of the "doctrine of specialty," for visa and income tax fraud even though he was not extradited to face such charges, see United States v. Sensi, 879 F.2d 888, 895 (D.C.Cir.1989) (explaining that the "doctrine of specialty" bars prosecution of a defendant for crimes other than those for which he was extradited). The former allegations depend on affidavits Todd's father, mother, and brother submitted in the section 2255 proceeding. Although Todd's allegations regarding threatened visa and tax fraud charges find support in the existing record — the Government represented in pre-trial pleadings that it had investigated such charges and presented them to the grand jury, Todd's plea offer proposes that he not be prosecuted for such matters, and the presentence report indicates the Government ultimately promised not to do so — the Government has had no opportunity to submit evidence responding to these charges.

Todd's ineffective assistance claim likewise depends on facts missing from the record. Defense counsel had a conflict of interest, he alleges, because the lawyer also...