USA v. Wilson

• Decision Date: 01 March 2010
• Docket Number: No. CR 01-263-3-HA,CV 06-527-HA.,CR 01-263-3-HA
• Citation: 719 F.Supp.2d 1260
• Parties: UNITED STATES of America, Plaintiff/Respondent, v. Jay W. WILSON, Defendant/Petitioner.
• Court: U.S. District Court — District of Oregon

719 F.Supp.2d 1260

UNITED STATES of America, Plaintiff/Respondent,

v.Jay W. WILSON, Defendant/Petitioner.

Nos. CR 01-263-3-HA, CV 06-527-HA.

United States District Court,D. Oregon.

March 1, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Charles W. Stuckey, United States Attorney's Office, Portland, OR, for Plaintiff.

Michelle A. Ryan, Law Office of Michelle A. Ryan, LLC, Portland, OR, for Petitioner.

Geoffrey A. Barrow, U.S. Attorney's Office, Portland, OR, for Respondent.

OPINION AND ORDER

REDDEN, Judge:

Before the court is petitioner Jay W. Wilson's Motion (doc. 285) to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. For the reasons set forth below, I GRANT the motion, and ORDER the government to release petitioner within 30 days.

I. Background

Petitioner's conviction arose from a conspiracy involving the importation and distribution of thousands of pills of methylenedioxymethamphetamine (ecstacy). On August 13, 2001, law enforcement officers arrested petitioner and searched his home and car pursuant to a warrant. They found 116 ecstacy pills in his briefcase, a pistol-grip shotgun under his bed, a scale, and drug packaging materials. That same day, petitioner confessed his involvement in smuggling more than a hundred thousand ecstacy pills, and sought to negotiate benefits for his cooperation. For approximately three weeks, petitioner assisted the agents in seizing additional ecstacy packages, recording phone calls to and from co-defendant Terrance Fischer, and helping agents locate Fischer in Amsterdam.

Petitioner insisted on speaking to the prosecutor about obtaining a “deal” in exchange for his cooperation. Assistant United States Attorney (“AUSA”) Charles Stuckey informed him that would not discuss plea negotiations unless petitioner obtained an attorney. Tr. 85:19-20 ¹ ; First Aff. of AUSA Stuckey, ¶ 5. On August 29, 2009, the AUSA called the Criminal Justice Act Panel Administrator to facilitate the appointment of counsel. Def.'s Exh. 203. Judge Jelderks signed an order appointing Frank de la Puente (“De la Puente”) to “defend [petitioner] in connection with the [alleged] drug trafficking crimes.” Gov.'s Am. Ex. 1.

On August 30, 2001, petitioner and De la Puente met with the AUSA to discuss a pre-indictment resolution of the case. The AUSA told petitioner that he was “obviously involved in this conspiracy,” Tr. 87:8-9, and that he would “ultimately be indicted.” Tr. 87:19-20; see also First Aff. of Stuckey, at ¶ 6 (“It was made clear to [petitioner] ... that his criminal conduct would result in serious charges and his participation in the conspiracy would undoubtedly expose him to a lengthy sentence.”). He then offered petitioner a pre-indictment plea bargain of six years incarceration in exchange for his continued cooperation. The AUSA refused De la Puente's request for discovery, and set a one day deadline on the six-year offer. De la Puente told petitioner that he could not advise him to accept the offer without obtaining discovery. Aff. of F. de la Puente, ¶ 6; First Aff. of Wilson, ¶ 7.

The next morning, petitioner met with De la Puente to discuss the plea offer and petitioner's case. Petitioner told De la Puente that he had handled “huge amounts” of ecstacy for friends, Tr. 14:10-11, and that he had confessed to handling one hundred thousand of pills of ecstacy. Tr. 70:18-21. Petitioner also told De la Puente that he believed he had an immunity agreement with the agents. Tr. 18:6-7. Petitioner again sought the advice of his attorney as to the six-year plea offer, but De la Puente again stated that he could not give petitioner an opinion without discovery. Aff. of F. de la Puente, ¶ 6; First Aff. of Wilson, ¶ 7. De la Puente did indicate that it sounded like the agents did promise petitioner immunity. Tr. 25:1-17.

De la Puente drafted a counter-proposal, in which petitioner offered to provide information about the location of drug trafficking proceeds and would continue cooperating, in exchange for full immunity. Gov. Am. Ex. 1. The AUSA rejected any pre-indictment resolution of the case involving full immunity. Gov. Am. Ex. 2. Without communicating the substance of the AUSA's response to petitioner, De la Puente replied to the AUSA, “[y]ou correctly read my letter of this morning as a rejection” of the six-year offer. Gov. Am. Ex. 3.

On September 7, 2001, the government filed a Superseding Indictment charging petitioner with conspiracy to import, distribute, and possess approximately 100,000 pills of ecstacy with intent to distribute. The Indictment also charged petitioner with eight counts of importation, distribution, and possession of ecstacy.

The AUSA did not re-extend the six-year plea offer. On the eve of trial, he offered petitioner a plea bargain that would have resulted in 188 to 235 months imprisonment. That offer expired, unaccepted. ² Through pre-trial motion, and throughout trial, sentencing, and appeal, petitioner argued that he was entitled to immunity based on his cooperation with federal agents. Those arguments failed, and on August 27, 2002, a jury found petitioner guilty of multiple counts of conspiracy to import, distribute, and possess ecstacy. On February 19, 2003, Judge Helen Frye sentenced petitioner to 240 months imprisonment. The Ninth Circuit affirmed the conviction and sentence. United States v. Wilson, 392 F.3d 1055 (9th Cir.2004).

Petitioner timely filed the present Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel. Petitioner argued that De la Puente failed to provide adequate legal advice concerning the government's initial six-year offer, and then provided inaccurate advice regarding petitioner's potential sentencing exposure. On April 16, 2009, Judge Ancer Haggerty issued an Opinion and Order finding that trial counsel's grossly inaccurate advice regarding petitioner's potential sentence deprived petitioner of constitutionally sufficient assistance of counsel during the plea bargaining process. United States v. Wilson, No. CR 01-263-HA, 2009 WL 1028088, at *7-8 (D.Or. Apr. 16, 2009). He ordered the parties to file supplemental briefs addressing: (1) whether petitioner would have accepted a plea offer if he had been provided with adequate information regarding his likely sentence; (2) what plea offers were made to petitioner; and (3) the proper remedy if the court were to conclude that petitioner satisfied the second Strickland prong. Id. at *8-9. ³ On December 18, 2009, the court held oral argument, and heard testimony from petitioner and AUSA Stuckey. ⁴

II. Discussion

A prisoner may seek relief under 28 U.S.C. § 2255, based on a denial of his or her Sixth Amendment right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, a petitioner must show that: (1) counsel's performance was deficient ( i.e., counsel made errors “so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment”); and (2) the deficient performance prejudiced the petitioner ( i.e., “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable”). Id. at 687-690, 104 S.Ct. 2052.

A. Applicability of the Sixth Amendment

The government argues that petitioner cannot premise an ineffective assistance of counsel claim on De la Puente's pre-indictment advice because petitioner had no right to counsel in evaluating the government's pre-indictment, six-year plea offer. I disagree.

Although the Supreme Court has not squarely addressed whether a suspect-defendant has the right to the effective assistance of counsel at a formal pre-indictment plea negotiation, courts have recognized that the “Sixth Amendment can apply when the government's conduct occurs pre-indictment.” In re Grand Jury Proceedings (Goodman), 33 F.3d 1060, 1062 (9th Cir.1994) (emphasis in original); see also Roberts v. Maine, 48 F.3d 1287, 1291 (1st Cir.1995) (“We recognize the possibility that the right to counsel might conceivably attach before any formal charges are made, or before an indictment or arraignment, in circumstances where the government had crossed the constitutionally significant divide from fact-finder to adversary.”) (citations omitted); United States ex rel. Hall v. Lane, 804 F.2d 79, 82 (7th Cir.1986) (recognizing that the Sixth Amendment right to counsel may attach “prior to the initiation of formal adversary proceedings”). The reasoning behind the cases makes clear that the right to the effective assistance of counsel rests on the nature of the confrontation between the suspect-defendant and the government, rather than a “mechanical” inquiry into whether the government has formally obtained an indictment. See Patterson v. Illinois, 487 U.S. 285, 298, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988) (defining “the scope of the right to counsel by a pragmatic assessment of the usefulness of counsel to the accused at the particular proceeding, and the dangers to the accused of proceeding without counsel.”); see also Nunes v. Mueller, 350 F.3d 1045, 1054 n. 6 (9th Cir.2003) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052) (recognizing “ Strickland's discouragement of ‘mechanical rules' that distract from an inquiry into the fundamental fairness of the proceedings”).

The “core purpose” of the Sixth Amendment right to counsel is to guarantee effective assistance at trial. United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). The Sixth Amendment, however, guarantees more than simply a right to a fair trial. United States v. Blaylock, 20 F.3d 1458, 1466 (9th Cir.1994). It “serves to protect the reliability of the entire trial process.” Nunes, 350 F.3d at 1052. For this reason, the right to effective counsel has been extended to certain pretrial proceedings that...