United States v. Sharp

• Decision Date: 05 January 2018
• Docket Number: No. 16-4008,16-4008
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Robert Carl SHARP, Defendant-Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

879 F.3d 327

UNITED STATES of America, Plaintiff-Appellee

v.Robert Carl SHARP, Defendant-Appellant

No. 16-4008

United States Court of Appeals, Eighth Circuit.

Submitted: September 21, 2017

Filed: January 5, 2018

Rehearing and Rehearing En Banc Denied February 13, 2018^*

Dan Chatham, Martin Joseph McLaughlin, Patrick J. Reinert, Assistant U.S. Attorneys, U.S. Attorney's Office, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff–Appellee.

Shon Hopwood, Seattle, WA, Michael Kevin Lahammer, Lahammer Law Firm, PC, Cedar Rapids, IA, for Defendant–Appellant.

Robert Carl Sharp, Pro se.

Before SMITH, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Robert Carl Sharp pleaded guilty after a grand jury returned a three-count superseding indictment charging him with (1) conspiracy to manufacture and distribute a controlled substance, in violation of 21 U.S.C. § 846 ; (2) possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) ; and (3) possession with intent to distribute, and aiding and abetting the possession with intent to distribute, a controlled substance, in violation of 21 U.S.C. § 841(a)(1). Sharp subsequently filed a motion to withdraw his guilty plea. The district court¹ denied the motion and sentenced Sharp to thirty years' imprisonment. He now appeals the judgment, arguing that the district court abused its discretion in denying the motion and that it plainly erred in failing to reconsider the motion sua sponte in light of evidence presented at the sentencing hearing. For the reasons that follow, we affirm.

I.

In 2012, Sharp was released from federal prison after serving a sentence for possession with intent to distribute cocaine base. While on supervised release, he began manufacturing and selling synthetic cannabinoids in Illinois and then Iowa.

Sharp purchased synthetic-cannabinoid chemicals in bulk from various suppliers, and he and his employee would apply them to leafy substances. They would then package and label these "herbal incense" products for sale. The packaging included a warning that the products were not fit for human consumption, even though Sharp knew that customers would smoke them. Sharp admitted to knowing that his products caused "disorientation" and had "no other good use," although he added that they did not produce "a euphoric high" like marijuana. Notably, Sharp paid his employee in cash, and his emails ordering a chemical he called "THJ-011" included the heading "AB-FUBINACA."

According to Sharp, he and another incense dealer named Hadi Sharairi hired attorney Joel Schwartz for advice about what products were legal to sell and to ensure that they complied with all federal and state laws. Sharp also stated that Schwartz failed to warn him that the government had scheduled AB-FUBINACA as a controlled substance. Sharp said that he informed Schwartz of this oversight and complied with Schwartz’s instruction to dispose of all products that contained the chemical. Sharp also claimed that he sent Schwartz a sample of a substance that he believed was THJ-011 for testing along with a $900 money order. Sharp maintained that when he asked for the results, Schwartz responded "that he could no longer have products tested."

Schwartz’s recollection of the attorney-client relationship differed. During the hearing on Sharp’s motion to withdraw his guilty plea, Schwartz testified that Sharp sought representation "for a potential future criminal case" after a previous encounter with law enforcement—not advice about how to sell synthetic drugs legally.

Schwartz explained that he warned Sharp "that everything synthetically that causes impairment of the brain either was listed or was an analog or would be soon thereafter." As a result, he informed Sharp that "if he were charged with something, he would be a career offender and this was too dangerous a game for him to play and he should stop."

Nonetheless, Schwartz acknowledged that he did offer Sharp advice on whether certain substances were legal. In particular, in response to a query from Sharp, Schwartz searched for THJ-011 on the website of the Drug Enforcement Agency and on Google. Although he did not find anything indicating that it was illegal, he did not inform Sharp that the substance was therefore legal. And though Schwartz could not recall specifically advising Sharp that it was illegal, he nevertheless warned him that "everything that’s selling as synthetics either is now or will soon be illegal once the Government finds that you have it." Schwartz also advised Sharp that he was violating FDA regulations by selling misbranded products. In addition, Schwartz testified that he had no recollection of Sharp giving him a sample for testing and that, if Sharp had, he would have destroyed it because "I'm not going to have something that might be an illegal narcotic in my office."

In early 2014, law enforcement began investigating Sharp’s activities. Investigators sent a confidential source to make purchases at Sharp’s store. An employee told the source that Sharp was not in and "probably took [the herbal incense] with him." The employee said that, with "raids happening everywhere," Sharp was "just being smart." A subsequent controlled purchase provided probable cause that Sharp was selling controlled substances, and law enforcement officers executed search warrants on his residence, his vehicle, a storage unit that he acquired under a false name, and his employee’s residence. They found products containing AB-FUBINACA, which is a Schedule I controlled substance, as well as $88,663 in cash proceeds from the cannabinoids. The grand jury then returned the three-count superseding indictment.

Just before trial was to begin, Sharp pleaded guilty to all three counts without a plea agreement. During the plea colloquy, Sharp admitted his involvement in and knowledge of a conspiracy to manufacture and distribute AB-FUBINACA (Count 1). For the possession with intent to distribute counts (Counts 2 and 3), however, Sharp insisted that he thought that he was distributing THJ-011 rather than AB-FUBINACA. Nevertheless, he pleaded guilty to Counts 2 and 3 under a theory of willful blindness. See Global-Tech Appliances, Inc. v. SEB S.A. , 563 U.S. 754, 769, 131 S.Ct. 2060, 179 L.Ed.2d 1167 (2011).

In December 2015, Sharp retained new counsel and moved to withdraw his guilty plea. Following an evidentiary hearing at which both Sharp and Schwartz testified, the magistrate judge issued a report and recommendation concluding that Sharp’s motion should be denied. The district court overruled Sharp’s objections, adopted the magistrate judge’s report and recommendation, and denied Sharp’s motion to withdraw his guilty plea. Following an evidentiary hearing,² Sharp was sentenced to thirty years' imprisonment.

II.

We review the denial of a motion to withdraw a guilty plea for an abuse of discretion. United States v. Van Doren , 800 F.3d 998, 1001 (8th Cir. 2015). A defendant may withdraw a plea of guilty before the court imposes a sentence if "the defendant can show a fair and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). "While the standard is liberal, the defendant has no automatic right to withdraw a plea." United States v. Heid , 651 F.3d 850, 853 (8th Cir. 2011). A defendant bears the burden of establishing a fair and just reason. United States v. Cruz , 643 F.3d 639, 642 (8th Cir. 2011). We conclude that the district court did not abuse its discretion in denying Sharp’s motion to withdraw his guilty plea.

A. Conflict of interest and ineffective assistance of counsel

Sharp first argues that the district court abused its discretion in refusing to allow him to withdraw his guilty plea because his lawyer had a conflict of interest and provided him ineffective assistance of counsel. In particular, Sharp argues that Schwartz had a conflict of interest because he was a vital fact witness as to Sharp’s mens rea . See United States v. Merlino , 349 F.3d 144, 152 (3rd Cir. 2003) (explaining that the possibility of counsel’s "being called as a witness was a ... source of potential conflict, as it is often impermissible for an attorney to be both an advocate and a witness"). In this circuit, it is unclear whether this sort of alleged conflict of interest requires a defendant to show deficient performance and prejudice under Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), or whether it is sufficient for a defendant to show that a conflict of interest "adversely affected his lawyer’s performance," see Caban v. United States , 281 F.3d 778, 781-84 (8th Cir. 2002) (quoting Cuyler v. Sullivan , 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) ). We need not choose between the Strickland and Cuyler standards because Sharp’s claim fails under both.

Under Cuyler , Sharp must identify "some actual and demonstrable adverse effect on the case, not merely an abstract or theoretical one." See Covey v. United States , 377 F.3d 903, 908 (8th Cir. 2004). He must show that "the conflict caused the attorney’s choice." See id. According to Sharp, Schwartz could have testified that Sharp thought the substance was THJ-011 and that he investigated whether it was on the drug schedules. Sharp maintains that Schwartz’s testimony would have established that he did not satisfy the two elements of willful blindness: "(1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact." Global-Tech , 563 U.S. at 769, 131 S.Ct. 2060 ; see also United States v. Hansen , 791 F.3d 863, 868 (8th Cir. 2015) ("[T]he jury may find willful blindness only if the defendant was aware of facts that put him on notice that criminal activity was probably afoot and deliberately failed to make further inquiries, intending to remain ignorant."). Had he realized that Schwartz was a...