USA v. DANZI

• Decision Date: 08 July 2010
• Docket Number: Criminal No. 3:07cr305 (MRK).
• Citation: 726 F.Supp.2d 120
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Brian DANZI, Defendant.

726 F.Supp.2d 120

UNITED STATES of America

v.Brian DANZI, Defendant.

Criminal No. 3:07cr305 (MRK).

United States District Court,D. Connecticut.

July 8, 2010.

COPYRIGHT MATERIAL OMITTED.

H. Gordon Hall, John H. Durham, Peter D. Markle, U.S. Attorney's Office, New Haven, CT, Harold H. Chen, U.S. Attorney's Office, Bridgeport, CT, for United States of America.

Frank J. Riccio, II, Law Offices of Frank J. Riccio, Frank J. Riccio, Bridgeport, CT, Paul F. Thomas, Federal Public Defender's Office, New Haven, CT, for Defendant.

RULING AND ORDER

MARK R. KRAVITZ, District Judge.

Pending before the Court is Defendant Brian Danzi's Motion to Withdraw Guilty Plea [doc. # 245]. Mr. Danzi requests leave of the Court to withdraw his May 5, 2009 plea of guilty to a charge of possession with the intent to distribute and the distribution of marijuana, in violation of 21 U.S.C. § 841(a); and a charge of conspiracy to possess with the intent to distribute marijuana, in violation of 21 U.S.C. §§ 841 and 846. See Tr. of Change of Plea H'ring [doc. # 252]; Plea Agreement [doc. # 153]. Mr. Danzi argues that his guilty plea was not the product of a “voluntary and intelligent” choice because it was obtained as a result of a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and, moreover, that the Brady violation provides him with a “fair and just reason for requesting the withdrawal” of his guilty plea under Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure . See Def.'s Mem. in Supp. of Mot. to Withdraw Guilty Plea (“Def.'s Mem.”) [doc. # 246]; Def.'s Supplemental Mem. in Supp. of Mot. to Withdraw Guilty Plea (“Def.'s Supp. Mem.”) [doc. # 253].

While the Court agrees that there was, indeed, a Brady violation in this case-a serious matter for which the Government has no excuse-Mr. Danzi has neither met the standard of Rule 11(d)(2)(B) nor demonstrated “a reasonable probability” that had the Government produced this evidence to him earlier, “he would not have entered the plea but instead would have insisted on going to trial.” United States v. Avellino, 136 F.3d 249, 255 (2d Cir.1998) (quoting Tate v. Wood, 963 F.2d 20, 24 (2d Cir.1992)). Accordingly, and as explained below, Mr. Danzi's Motion to Withdraw Guilty Plea [doc. # 245] is DENIED.

I.

Brian Danzi and five others (including his brother, Michael Danzi) were indicted on December 20, 2007 for their suspected participation in a marijuana distribution and money-laundering operation. See Indictment [doc. # 16]. Brian Danzi was charged in Count One with conspiracy to possess with intent to distribute and to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), and 846; and in Count Two, with the possession of an unspecified quantity of marijuana with the intent to distribute and the distribution thereof, in violation of 21 U.S.C. §§ 841(a)(1)and 841(b)(1)(D). See id. at 1-2.

A.

More than sixteen months later, on May 5, 2009-and on the day the Court was to select the jury for his trial-Mr. Danzi accepted the Government's offer to plead guilty to possession with intent to distribute and the distribution of an unspecified quantity of marijuana, in violation of 21 U.S.C. § 841(a); and to a one-count substitute Information [doc. # 151] charging him with conspiracy to possess with intent to distribute an unspecified quantity of marijuana, in violation of 21 U.S.C. §§ 841 and 846. See B. Danzi Plea Agreement [doc. # 153]. At the same time, Brian Danzi's brother, Michael Danzi, also agreed to plead guilty, but also could not agree with the Government as to the quantity of marijuana attributable to him by virtue of his participation in the conspiracy. See M. Danzi Plea Agreement [doc. # 158].

At the change of plea hearing, which was for both of the Danzis, Brian Danzi was represented by his court-appointed attorney, Bruce Koffsky. Both Defendants were placed under oath, and the Court conducted a comprehensive Rule 11 hearing that lasted an hour and twelve minutes. See Tr. of Change of Plea H'ring [doc. # 252]. At the beginning of the hearing, Brian Danzi-unprompted, and apparently against the advice of counsel ¹ -stated that while he was “happy with the plea, ... it would have been fair to give us a week or two weeks of thinking time.” Id. at 4:24-5:1. The Court explained to Mr. Danzi that it played no role in plea negotiations, and that its role, rather, was:

to make sure today ... that you understand what you are doing, and that you understand your rights, that you understand the consequences of pleading guilty, and that you are choosing to plead guilty freely and voluntarily and because you are in fact guilty of these charges. That's my task today. And so I need you to listen carefully so I can make those determinations. I'm going to have to make findings about those issues at the end, okay?

Id. at 5:11-18. Mr. Danzi replied that he understood and indicated that he was prepared to plead guilty. See id. at 5:19-22 (“Yes, your Honor. We are going to plead guilty....”).

Thereafter, Mr. Danzi confirmed that he knew that he was under oath, see id. at 6:22, and was advised of his rights, see id. at 7-8. Upon questioning by the Court, Mr. Danzi stated that he was not under the influence of any medication or intoxicating substance, see id. at 9-11, and that his mind was “[v]ery clear,” id. at 11:3. Mr. Danzi confirmed that he had read the Indictment and the Information filed against him, see id. at 13:5-8, and that he had the opportunity to discuss the charges against him with his attorney, see id. at 13:10-12. Mr. Danzi also stated that he was satisfied with the legal representation that he had received to date. See id. at 13:14-17.

The Court reviewed the rights Mr. Danzi would be waiving by pleading guilty, the statutory penalties, and his plea agreement with the Government. The Court explained that among the rights that Mr. Danzi would be waiving would be his right to remain silent and not to incriminate himself, explaining that:

[B]efore I can accept your plea, I'm going to ask you to tell me, in your very own words, what you did that you think makes you guilty of this offense, and you will have to do so under oath and by doing so, you will be waiving your privilege against self-incrimination.

Id. at 21:25-22:6. Mr. Danzi responded that he fully understood the rights he would be giving up, including the right against self-incrimination, as well as the consequences of pleading guilty and the commitments in the plea agreement. See id. at 15-35. Mr. Danzi also confirmed that he entered into the plea agreement knowingly and intentionally. See id. at 41:11-13.

The Court then went over the elements of the offenses to which Mr. Danzi was pleading guilty, which Mr. Danzi indicated that he understood. See id. at 38-40. The Court asked Mr. Danzi to describe in his own words what he had done that made him think he was guilty of the offenses charged. As to the charge of conspiracy, Mr. Danzi stated that between 2005 and 2007, he and his brother “had an agreement to sell marijuana and I did sell marijuana to an individual for sale, and [I] plead guilty to that.” ² Id. at 41:3-7. On the charge of possession with the intent to distribute and to distribute marijuana, Mr. Danzi stated: “[W]hen I had in my possession, I did sell-when I had it in my possession, I did sell a little, you know, some marijuana to an individual, you know, and I'm guilty for that.” Id. at 41:15-18. Mr. Danzi also confirmed that he intended to and did, in fact, distribute the marijuana to a third party. See id. at 41:23-25.

At that point, the Court asked the Assistant United States Attorney to describe the evidence that the Government would put on if Brian Danzi and Michael Danzi had decided to proceed to trial. Among other items of evidence, the Assistant United States Attorney described a marijuana purchase made from Brian Danzi by a confidential informant under the supervision of the Drug Enforcement Agency (DEA); the seizure from Brian Danzi's home of packaging materials, paraphernalia, and other items used in the sale of marijuana; statements of co-conspirators implicating Brian Danzi in the conspiracy; and recorded conversations involving Brian Danzi (and others) in which he discussed the marijuana conspiracy. See id. at 43-48. When the prosecutor had finished, the Court asked Brian Danzi if he disagreed with anything the prosecutor had said. Mr. Danzi stated that he had not conspired with all of the individuals mentioned by the prosecutor; however, Mr. Danzi stated that he did conspire to sell marijuana with his brother and another co-defendant, George Tsellos. See id. at 50:20-24. Mr. Danzi expressed no other disagreement with the statements of the Assistant United States Attorney.

At the conclusion of the Rule 11 hearing, the Court asked Mr. Danzi if he wanted to plead guilty because he was in fact guilty of the offense charged, and whether he had chosen to plead guilty freely and voluntarily. Mr. Danzi responded in the affirmative. See id. at 51-53. Neither counsel knowing of any reason why the Court should not accept the plea, the Court found that Mr. Danzi was competent; that he understood the nature of the charges; that he understood the rights he would be waiving by pleading guilty; that he understood the consequences of pleading guilty; that he was pleading guilty because he was in fact guilty of the offense charged; and that his guilty plea was a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of the offense. See id. at 53-54. The Court therefore accepted Mr. Danzi's guilty plea and made a finding that he was guilty of Count One of the Information [doc. # 151] and Count Two of the Indictment [doc. # 16].

B.

Since the Government was unable to reach agreement with either Brian Danzi or Michael Danzi regarding the quantity of...