United States v. Tarbell

• Decision Date: 26 August 2013
• Docket Number: Docket No. 12–3055–cr.
• Citation: 728 F.3d 122
• Parties: UNITED STATES of America, Appellee, v. Huey TARBELL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

728 F.3d 122

UNITED STATES of America, Appellee,

v.Huey TARBELL, Defendant–Appellant.

Docket No. 12–3055–cr.

United States Court of Appeals, Second Circuit.

Submitted: Aug. 19, 2013.

Decided: Aug. 26, 2013.

Steven Y. Yurowitz, Newman & Greenberg, New York, NY, for Huey Tarbell.

Carla B. Freedman, Brenda K. Sannes, Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for the United States of America.

Before: CABRANES, STRAUB, and CARNEY, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

In this appeal we consider whether a plea was “voluntary,” as required by Federal Rule of Criminal Procedure 11(b)(2),¹even though the United States District Court for the Northern District of New York (Norman A. Mordue, Judge ) did not inquire into a separate confidential cooperation agreement before accepting defendant's plea. On the facts of this case, we conclude that the District Court did not “plainly err” by accepting defendant's plea in open court without referencing the separate confidential cooperation agreement. We also reject defendant's claim that the government breached the confidential cooperation agreement by failing to move for a downward departure in his sentence. Finally, we dismiss his claim that his counsel was constitutionally ineffective during the sentencing phase of the proceeding without prejudice to the filing, in due course, of a § 2255 petition. Accordingly, we affirm the judgment of the District Court.

I. BACKGROUND

Defendant-appellant Huey Tarbell (“Tarbell” or “defendant”) appeals from a July 16, 2012 judgment of conviction entered by the District Court. Tarbell was indicted on April 27, 2011, along with numerous co-defendants, for conspiring to distribute and possess, with the intent to distribute, 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. On December 21, 2011, Tarbell entered into separate plea and confidential cooperation agreements with the government relating to his role in the drug conspiracy.

The plea agreement provided that, in exchange for Tarbell pleading guilty, the government would charge Tarbell by information with one count of conspiracy to possess with the intent to distribute and to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. Pursuant to that charge, and due to his prior felony conviction for a drug offense, Tarbell would face a mandatory minimum term of ten years' imprisonment, rather than a mandatory minimum term of twenty years' imprisonment that he faced under the original indictment.

On the assumption that Tarbell would assist the government's investigations of drug trafficking activity, the confidential cooperation agreement stated that

[a]t or before the time of sentencing, the U.S. Attorney's Office will advise the Court of the nature and extent of the cooperation and assistance provided by the Defendant pursuant to this Agreement. If the U.S. Attorney's Office determines, in its sole discretion, that the Defendant has provided “substantial assistance” in the investigation or prosecution of other persons who have committed offenses, it may, in its sole discretion, credit the defendant in one or more of the following ways: (i) move for a downward departure pursuant to either or both U.S.S.G. § 5K1.1[ ²] and/or 18 U.S.C. § 3553(e) [ ³]; or (ii) move to dismiss one or more allegations filed pursuant to 21 U.S.C. § 851 concerningthe defendant's conviction for one or more felony drug offenses that trigger the enhanced penalty provisions of 21 U.S.C. § 841(b)(1). However, the U.S. Attorney's Office has not promised that such motion(s) for departure or to dismiss will be made. Whether and how to credit any proffered cooperation and assistance is within the sole discretion of the U.S. Attorney's Office.

Cooperation Agreement, p. 3 ¶ 3(c).

Both agreements were sent to the District Court, but the confidential cooperation agreement was not filed, either on the Court's public docket or under seal. Tarbell then pleaded guilty, in open court, before the District Court on January 20, 2012. Pursuant to Federal Rule of Criminal Procedure 11(b)(2), the District Court engaged in a colloquy with Tarbell to determine whether his plea was knowing and voluntary. In particular, the District Court told Tarbell that “as it stands right now” it was “bound” to sentence him to a statutory minimum of 120 months' imprisonment; after informing Tarbell of this fact, the District Court asked him whether, having been “informed of the penalties,” he was still pleading guilty freely and voluntarily. Def. App'x 41. Tarbell responded that he was. Id. The District Court also asked whether “there [had] been anybody at all, apart from the plea agreement, that made some promise to you in return for pleading guilty?” Id. at 42. Defendant answered “No.” Id. Defendant responded that he understood that, as part of the plea agreement, he would waive any right to appeal a sentence of 120 months. Id. at 40. The confidential cooperation agreement was not mentioned during the plea proceeding.

On July 9, 2012, prior to defendant's sentencing, the government filed a “confidential letter” with the District Court stating that it would not move for a downward departure under U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e), because Tarbell had not provided “substantial assistance” to the government's drug trafficking investigations. The government explained that

[t]o date, the Defendant has provided no assistance to the DEA or any Government entity ... substantial or otherwise. The Defendant has neither made controlled purchases of narcotics nor introductions of undercover agents to drug traffickers; he has provided no information that has led to the execution of search warrants or even the identification of drug trafficking locations. Thus, the Government has not and cannot move this Court for a downward departure, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), from the statutory mandatory minimum sentence and advisory Sentencing Guidelines range in this case at sentencing as the Defendant did not provide any assistance in spite of the numerous opportunities provided to him by law enforcement.

Gov't Letter to the District Court (“Ltr.”), July 9, 2012, p. 3 (emphasis removed from original). Consistent with this view, the government requested that the District Court impose the ten-year mandatory minimum sentence on Tarbell. The District Court sentenced Tarbell to a term of 120 months' imprisonment on July 16, 2012.

This appeal followed.

II. DISCUSSION

On appeal, Tarbell argues that his guilty plea must be revoked, insofar as it was not “voluntary,” as required by Rule 11(b)(2), see note 1, ante, because the District Court did not question him about the confidential cooperation agreement during his guilty plea.⁴ Tarbell also argues that the government breached the confidential cooperation agreement by not allowing him to cooperate and that his counsel was constitutionally ineffective during the sentencing phase of the proceeding. We address these arguments in turn.

A.

“The nature of the inquiry required by Rule 11 must necessarily vary from case to case,” and is not subject to “any general guidelines other than those expressed in the Rule itself.” McCarthy v. United States, 394 U.S. 459, 467 n. 20, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). By its terms, “[a] variance from the requirements of [Rule 11] is harmless error if it does not affect substantial rights.” Fed.R.Crim.P. 11(h). Where a defendant “never sought to withdraw his plea, and did not object at any time or in any way to the alleged Rule 11 violation in the district court, we review [his claims on appeal] for ‘plain error.’ ” United States v. Espinal, 634 F.3d 655, 658 (2d Cir.2011). The Supreme Court has instructed that a finding of “plain error” requires that

(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

United States v. Marcus, 560 U.S. 258, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010) (internal quotation marks and brackets omitted); see United States v. Alvarado, 720 F.3d 153, 157 (2d Cir.2013) (same). In other words, “[t]o be plain, an error of the district court must be obviously wrong in light of existing law.” United States v. Youngs, 687 F.3d 56, 59 (2d Cir.2012) (internal quotation marks omitted). “In the context of a Rule 11 violation, to show plain error, a defendant must establish that the violation affected substantial rights and that there is a reasonable probability that, but for the error, he would not have entered the plea.” Espinal, 634 F.3d at 658 (internal quotation marks omitted).

Having conducted a de novo review of the record, we conclude that Tarbell has not met his burden of demonstrating plain error with respect to the District Court's acceptance of his plea. The District Court made it clear at the plea proceeding that it was “bound” to apply a mandatory minimum ten-year sentence under the plea agreement and the sentencing guidelines, and there is no evidence that the plea agreement was superseded by the confidential cooperation agreement, or otherwise dependent on the latter instrument. Indeed, the plain terms of the confidential cooperation agreement, which, like the plea agreement, we examine under principles of contract law, see United States v. Woltmann, 610 F.3d 37, 39 (2d Cir.2010) (plea agreements); United States v. Gregory, 245 F.3d 160, 165 (2d Cir.2001) (cooperation agreements), made clear that “the U.S. Attorney's Office ha[d] not promised that such motion(s) for departure or to dismiss w[ould] be made. Whether and how to...