text:
    UNITED STATES of America v. Hector ACEVEDO-RAMOS.
    Cr. No. 85-0108 GG.
    United States District Court, D. Puerto Rico.
    Sept. 18, 1985.

      William M. Kunstler, New York City, Luis F. Abreu Arias, Hato Rey, P.R., for defendant.
   OPINION AND ORDER

GILBERTO GIERBOLINI-ORTIZ, District Judge.

This case is before us upon a motion to withdraw a guilty plea filed by Héctor Acevedo-Ramos (Acevedo). The government has opposed this petition, a hearing was held and memoranda of law, together with numerous exhibits and the transcripts of hearings have been submitted and considered.

Defendant along with others was indicted by the grand jury for conspiracy to obstruct, delay and affect interstate commerce by extortion and robbery of property in excess of four hundred thousand dollars ($400,000.00) and for aiding and abetting each other in the actual commission of these offenses — all in violation of Title 18 U.S.C. §§ 1951 and 2.

The facts as revealed from the record are as follows: At the time the present indictment was returned, defendant Acevedo was on trial before Judge Héctor M. Laf-fitte, in Criminal Case No. 84-0373, which involved a robbery of over six hundred thousand dollars ($600,000.00) worth of diamonds from the Taillex Diamond Manufacturing Company. The present indictment was sealed until the Taillex trial was over since the issue of prejudicial pretrial publicity had been raised in those proceedings.

On April 25, 1985, after a jury trial, Acevedo was found guilty on both counts of that indictment. Acevedo’s attorneys during the Taillex case were William M. Kunstler, Ronald L. Kuby (both from New York) and Luis F. Abreu-Elias (local counsel).

On April 29, 1985, the instant indictment was unsealed and on May 2, 1985, Acevedo was arraigned. At this time, Acevedo was not represented by Kunstler, Kuby and Abreu-Elias but by Julio Morales-Sánchez, a former United States Attorney, and Julio Gil de Lamadrid, who had been privately retained by him.

On or about April 29, 1985, Ms. Lydia Lizarribar, Assistant United States Attorney, was personally contacted at her residence by Héctor Acevedo, Jr., defendant’s son, who was sent by Acevedo, Sr. to deliver a two-page, hand-written note signed by him. In said note, Acevedo indicated that he was interested in pleading guilty to any cases which might be filed against him in exchange for a recommendation by the government of a ten-year sentence in the Taillex case. (See Exhibit 5 of the government’s opposition). Acevedo was informed, through his son, that any negotiations with the United States Attorney's Office would have to be conducted through an attorney.

Thereafter, Morales-Sánchez and Gil de Lamadrid approached government counsel in an effort to establish plea bargaining negotiations. Since the obtaining of a lower sentence in the Taillex case appeared to concern defendant, Assistant United States Attorney H. Manuel Hernández inquired as to the role of Kunstler, Kuby and Abreu-Elias in the plea negotiations since they had been Acevedo’s attorneys in the Taillex case. Morales-Sánchez and Gil de Lama-drid indicated that they had complete authority to represent Acevedo in all criminal matters where he was involved that were now pending in the United States Attorney’s Office.

At the government’s urging, Morales-Sánchez and Gil de Lamadrid obtained a letter dated May 1, 1985, from Acevedo addressed to the United States Attorney which expressly authorized them to represent Acevedo in any matter dealing with any criminal case in which he had been indicted or will be indicted in the future.

During the plea negotiations which lasted several weeks, Morales-Sánchez and Gil de Lamadrid informed Assistant United States Attorney Hernández that Acevedo was willing to waive his appeal in the Tail-lex case, plead guilty in the present case, and in any other case the government filed against him. In exchange, Acevedo expected a recommendation for a sentence of ten years in the Taillex case and ten years concurrent time in this case and all future cases. The negotiations involved the present case, a murder-robbery RICO case to be filed against Acevedo and others in the near future, a bankruptcy fraud case and at the insistence of Acevedo, the sentencing in the Taillex ease. The government also agreed not to seek any fines, forfeiture of monies or property of Acevedo.

On May 29, 1985, a status conference was held at which time the parties informed the court that a brief continuance was needed to finalize the plea agreement. The continuance was granted and a final agreement was reached between the attorneys for the defendant and the government. The change of plea hearing was set for June 4, 1985.

On that date, Acevedo again appeared represented by Gil de Lamadrid. Acevedo signed a written plea agreement which set forth the terms of his agreement with the government. This agreement was also signed by both of his attorneys, Morales-Sánchez and Gil de Lamadrid. An official “Petition to Enter a Plea of Guilty” was also filed. This is a document consisting of eleven pages and forty-four questions and answers. Acevedo answered each question and both he and his attorney signed the document and initialed each page. The petition contains these answers:

#7 Q: If you have an attorney, have you had enough time to talk to your attorney about your case?
A: Yes.
# 9 Q: ... are you satisfied with the job he has done for you?
A: Yes.
# 10 Q: If you have any objections to the way in which the attorney has represented you, what has he done wrong or what he has not done?
A: None.
# 22 Q: Do you realize that if you plead GUILTY the court may impose the same punishment as if you had pleaded NOT GUILTY and had been convicted by a jury?
A: Yes.
#23 Q: Do you know that the sentence you will receive is solely a matter for the judge to decide?
A: Yes.
# 27 Q: Has any threat of any kind been made by anyone that causes you to plead guilty?
A: No.
# 29 Q: Has any plea agreement been made by you with anybody which causes you to plead GUILTY?
A: Yes. (Referring to plea agreement).
# 30 Q: Has any promise been made by anyone which causes you to plead GUILTY, aside from the promises, if any, set out in your answer to question 29?
A: No.
# 31 Q: Has anyone suggested that you will receive a lighter sentence if you plead GUILTY?
A: No.
# 36 Q: Are you pleading GUILTY for any other reason other than the fact that you are guilty?
A: No.

In an accompanying “Certificate of Counsel” his attorney stated that “to the best of my knowledge and belief the statements, representations and declarations made by the defendant in the foregoing petition are ... accurate and true”, and that the plea is “voluntarily and understandingly made.”

At the commencement of the change of plea hearing, Acevedo was placed under oath and warned that any false statement would subject him to the penalties of perjury. Defendant stated that he had consulted with his attorneys and was very satisfied with their representation; that he felt all right; that he was not under the influence of any drugs, alcohol or medication; and that he understood the proceedings. Acevedo also informed the court that he had had ample opportunity to discuss the case with his attorneys. His attorney, Gil de Lamadrid asserted that he explained to his client all the charges contained in the indictment, the elements of the offense and the rights waived, and that Acevedo clearly understood the consequences of his plea of guilty. The court also explained to Acevedo all the rights and privileges which he would be waiving by pleading guilty. The maximum sentences that could be imposed were also explained to defendant. The entire indictment was then read to Acevedo and the court also explained the indictment and the legal terminology contained therein.

Upon the court’s inquiry, Acevedo asserted that he had not been threatened or forced by anyone to plead guilty. The plea agreement was then read to Acevedo after which the court informed that it was not bound by the agreement, and therefore, could impose the maximum sentence as to both counts; that they could be imposed consecutively with each other and consecutively with any other sentence. Acevedo stated that he understood this. Acevedo also indicated that no prediction, prophecy or promise had been made to him regarding his sentence.

The court went through the entire indictment again asking specific questions as to what the defendant had done and Acevedo gave unhesitating answers admitting his participation in the criminal acts charged. Thereafter, the prosecution summarized the evidence it would have presented had the case gone to trial. Both Acevedo and Gil de Lamadrid expressed their agreement with the government’s summary. Complete discovery had been given previously. Gil de Lamadrid stated that defendant did not have any evidence for rebuttal.

After an extensive colloquy, this court accepted Acevedo’s guilty plea, and ordered a presentence report. Sentencing was scheduled for June 20, 1985.

On June 5, 1985, the sentencing hearing was held in the Taillex case before Judge Laffitte. Prior to the sentence, local counsel for defendant in that case, Mr. Abreu-Elias, objected to the plea agreement entered and requested that he, as well as Kunstler and Kuby, be relieved from further, representing Acevedo in that case. Abreu-Elias was not allowed to withdraw until after sentence was imposed. {See Exhibit 8 of government’s opposition).

Prior to the imposition of sentence, and pursuant to the plea agreement, the government recommended to Judge Laf-fitte that Acevedo be sentenced to a term of fourteen years imprisonment on each of the two counts to be served consecutively. At that time, Assistant United States Attorney Hernández also informed the court that Acevedo had already pled guilty in the instant case and had agreed to save the government the expenses of several trials and an appeal. Notwithstanding the government’s recommendation and after due consideration of the presentence report submitted by the Probation Officer, Acevedo was sentenced to imprisonment for a period of twenty years on Count One and fifteen years on Count Two to be served consecutively, and'a $10,000 fine on each count.

On June 7, 1985, Morales-Sánchez personally informed Assistant United States Attorney Hernández that Acevedo was still willing to honor his agreement and waive his appeal in Taillex if the government would agree not to file the murder-robbery RICO charges against him. The government rejected Acevedo’s attempt to impose further conditions .and to renegotiate the plea agreement. (See Exhibit 1 of government’s opposition).

Thereafter, on June 14-, 1985, Acevedo filed a Notice of Appeal in the Taillex case. (See Exhibit 10 of government’s opposition). On June 17, 1985, almost two weeks after he had entered a guilty plea in this case, and twelve days after his sentencing in the Taillex case, Acevedo filed his motions to withdraw guilty plea. One motion was filed by attorneys Gil de Lamadrid and Morales-Sánchez and the other was filed by Kunstler, Kuby and Abreu-Elias.

We held a hearing on June 20, 1985, at which time argument was heard from counsel for both sides on the motions to withdraw guilty plea and the government was granted fifteen days to file any affidavits, if appropriate, and its memorandum of law in opposition to Acevedo’s motion to withdraw his guilty plea. Kunstler was permitted to appear pro hac vice on behalf of Acevedo and also argued defendant’s motion to withdraw.

In the first motion to withdraw guilty plea filed by attorneys Gil de Lamadrid and Morales-Sánchez, it is alleged that Acevedo is not guilty of the offense charged; that he has new information to prove his innocence; that he has a new insight into his defense; that his emotional state of mind did not permit him to comprehend the consequences of his guilty plea; that the government’s recommendation in the Tail-lex case was not done in good faith; that Judge Laffitte did not abide by the plea agreement nor did he allow Acevedo to withdraw his plea, and that the government will not suffer substantial prejudice if Acevedo is permitted to withdraw his guilty plea.

The other motion to withdraw guilty plea filed by Kunstler, Kuby and Abreu-Elias, defendant’s attorneys in the Taillex case, alleges that Acevedo was in a panicky and depressed state when he entered the plea agreement; that he was denied effective assistance of counsel; and that the government incurred in misconduct.

The Applicable Law

Rule 32(d) of the Rules of Criminal Procedure provides as follows:

(d) Plea Withdrawal. If a motion for withdrawal of plea of guilty or nolo con-tendere is made before sentence is imposed, imposition of sentence is suspended, or disposition is had under 18 U.S.C. § 4205(c), the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255.

At the outset, we note that defendant possesses no absolute right to withdraw a guilty plea even prior to the imposition of sentence. United States v. Crosby, 714 F.2d 185 (1st Cir.1983), cert. denied, 464 U.S. 1045,104 S.Ct. 716, 79 L.Ed.2d 178 (1984); United States v. Kobrosky, 711 F.2d 449, 454 (1st Cir.1983). To recognize such a right “would reduce the significance of a Rule 11 proceeding to a time-consuming exercise, automatically reversible before sentence at the option of a defendant.” Núñez-Cordero v. United States, 533 F.2d 723, 726-27 (1st Cir.1976).

Conversely, when plea withdrawal motions are made prior to sentencing, as in the present case, the standard is a liberal one. We must only determine whether or not it would be “fair and just” to permit a plea withdrawal under the present circumstances. Kobrosky, supra, 711 F.2d at 454 (quoting Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927). On appeal, such a determination shall be set aside only upon abuse of discretion. United States v. Keefe, 621 F.2d 17, 20 (1st Cir.1980); Núñez-Cordero, supra, 533 F.2d at 725.

Several factors must be considered in conducting our inquiry. One crucial determination is whether defendant’s guilty plea was made voluntarily with full understanding of the charges. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970); McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). Clearly, the Rule 11 procedures implemented by the court in accepting the guilty plea are critical in determining whether this requirement was met. Mack v. United States, 635 F.2d 20, 23-24 (1st Cir.1980).

Another important factor is whether the defendant asserted his legal innocence. When a court accepts a “tactical” guilty plea from a defendant who continues to assert his innocence, see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and the defendant subsequently moves to withdraw that plea, the grounds in support of the motion are to be closely scrutinized.

Another factor to be properly considered is the possible prejudice to the government that withdrawal of the plea would produce. Kobrosky, supra, 711 F.2d at 455.

In the case before us, defendant did not assert his legal innocence by making an Alford plea. Moreover, it is clear from the transcript of the change of plea hearing that the requirements of Rule 11 were assiduously and conscientiously complied with.

During the hearing, Acevedo was advised of all the rights and privileges he would be waiving by pleading guilty and the maximum sentences that could be imposed for both counts. This court personally questioned defendant as to each of the elements of the crime and defendant’s answers made it clear that he understood each of the elements of the offense to which he was pleading guilty.

Acevedo, a sophisticated, well-educated (college degree) business man, with experience in criminal court proceedings, acknowledged that he understood both the charges and the consequences of his guilty plea, and affirmed his satisfaction with the quality of his legal representation in this case. He also asserted that he had entered his plea without duress. Acevedo’s attorney, Gil de Lamadrid stated that he had discussed the case and the plea with his client and that he was convinced that Acevedo fully understood the consequences of his actions, Acevedo was informed that the court reserved the right to impose whatever sentence it deemed fit, up to the maximum.

There is nothing in the record which indicates that Acevedo was anything other than an intelligent defendant who fully understood what he was doing and was competent to voluntarily enter a guilty plea. Clearly, the Rule 11 proceedings were thoroughly conducted and in no way implicate the “fair and just” criterion.

Nor was the motion to withdraw made so soon after the plea as to indicate that the latter was made in haste or confusion, see United States v. Barker, 514 F.2d 208, 222 (D.C.Cir.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975), since there was an interval of almost two weeks between the acceptance of Acevedo’s guilty plea and the motion for plea withdrawal.

Moreover, due consideration must be accorded to the government’s allegations that it would be significantly prejudiced if Acevedo were allowed to withdraw his guilty plea. Although a withdrawal of a guilty plea prior to sentencing is normally allowed, if the government has been prejudiced by its reliance on the guilty plea, this dispensation should not be so freely granted. United States v. Brown, 617 F.2d 54 (4th Cir.1980). We must weigh this prejudice against defendant’s reasons to seek withdrawal. Likewise, defendant’s reasons for withdrawal must meet exceptionally high standards where the delay between the plea and the withdrawal motion has substantially prejudiced the government’s ability to prosecute the case. Barker, supra, 514 F.2d at 222. Here, the government claims that it has dismantled its case, having sent its main witness to a penitentiary in the United States, has stopped all further investigation and has lost track of its witnesses. Furthermore, it appears that the government entered into a plea agreement with Acevedo’s co-defendant Agapito Cucuta Cardona after Acevedo pled guilty which was premised on the fact that the government would not need Cucu-ta’s testimony for trial. Under these circumstances, defendant’s reasons to support a withdrawal must have increased persuasive force. Barker, supra, 514 F.2d at 222; Kobrosky, supra, 711 F.2d at 455.

Another ground asserted for withdrawal of the guilty plea was ineffective assistance of counsel. This accusation is a grave one, not lightly to be made or ignored. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Kobrosky, supra, 711 F.2d at 457; United States v. DiCarlo, 575 F.2d 952, 955 (1st Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 129 (1978). In assessing attorney’s performance, all the federal courts of appeals have now adopted the “reasonably effective assistance” standard, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674 (1984), which requires that a defense counsel’s representation be within the range of competence expected of attorneys in criminal cases. Perron v. Perrin, 742 F.2d 669, 673 (1st Cir.1984); United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir.1978). Under this standard, effective representation is not the same as errorless representation. United States v. Campa, 679 F.2d 1006, 1014 (1st Cir.1982). Nor should the appellate court second-guess tactical decisions made by an attorney unless they are unreasonable. United States v. Pasarell, 727 F.2d 13, 17 (1st Cir.), cert. denied, — U.S. —, 105 S.Ct. 107, 83 L.Ed.2d 51 (1984); United States v. Ortiz-Oliveras, 717 F.2d 1 (1st Cir.1983). To state a claim under this standard, a defendant must allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not a knowing and intelligent act. McMann supra, 397 U.S. at 774, 90 S.Ct. at 1450; Tollett v. Henderson, 411 U.S. 258, 266-267, 93 S.Ct. 1602, 1607-08, 36 L.Ed.2d 235 (1973). Under McMann, Acevedo is required to show both that counsel’s representation fell below a standard of “reasonably competent assistance”, United States v. Bosch, supra, 584 F.2d at 1121 and that counsel’s incompetency rendered the defendant’s decision to plead guilty an unknowing and unintelligent act. Dufresne v. Moran, 729 F.2d 18, 23 (1st Cir.1984).

The record in this case clearly reveals the decision to enter a guilty plea was voluntarily made and was not based upon inadequate representation by counsel. Quite to the contrary, Acevedo stated under oath that he had decided to enter a plea of guilty against the advice of his attorneys Gil de Lamadrid and Morales-Sánchez. See affidavit filed on June 17, 1985. The initial attempt to contact the United States Attorney’s Office was made by Acevedo through his son and later, he expressly designated Morales-Sánchez and Gil de Lamadrid to negotiate an agreement with the government. It appears that after they were retained, Morales-Sánchez and Gil de Lama-drid consulted with the defendant on numerous occasions and for extended periods of time. The record nowhere indicates that counsel for defendant failed to confer adequately with Acevedo before a decision was made to enter a guilty plea or that counsel’s preparation for the change of plea hearing was inadequate. Further, no extrinsic evidence has been proferred to buttress the allegations of ineffectuality or to counter the government’s allegations of prejudice.

Clearly, counsel for defendant did not compel defendant to plead guilty. It is apparent from the circumstances that after consultation with his attorneys and with knowledge of the strong case against him and the other pending indictments, Acevedo made a voluntary and knowing decision to plead guilty. As in Kobrosky, Kunstler, Acevedo’s new counsel, “apparently spurred by the belated dawning of an awareness of these shortcomings, has peppered his brief in this court with supposed facts and theories ... in a misguided effort to document” certain conclusory allegations of ineffective assistance of counsel. Id., 711 F.2d at 457.

Since Acevedo fails to reasonably substantiate his ineffective assistance of counsel claim with any material issues of fact, he has failed to “overcome the presumption of regularity which the record ... imparts.” Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 579, 85 L.Ed. 830 (1941). We are satisfied that defendant’s plea was voluntary and was not induced by any claimed ineffective assistance of counsel.

Acevedo also argues as grounds for withdrawal that new evidence had come to light which gave him new insight into his defense. However, no new evidence has been suggested nor has defense counsel adduced any reason for failing to put forward the evidence in question at an earlier time. At the change of plea hearing defendant was specifically asked if he had any evidence to rebut the evidence announced by the government and he answered in the negative. In fact, this appears to be the classic case of a defendant finding out what might happen to him based on the fate suffered by him at the sentencing hearing in the Taillex case, and then deciding to back out of his plea bargain and take his chances that the government will not be able to prove its case. Cf. United States v. Bryant, 640 F.2d 170, 173 (8th Cir.1981).

There is clear indication that Acevedo delayed his motion to withdraw until he had the opportunity “to test the weight of potential punishment”, Kadwell v. United States, 315 F.2d 667, 670 (9th Cir.1963), since his motion was not filed until after Judge Laffitte had sentenced him to a greater term than the one contemplated by the plea agreement and after attempts to renegotiate the plea agreement with the government had failed. See Núñez-Corde-ro, supra, 533 F.2d at 723. Given the sequence of events, we cannot escape the conclusion that Acevedo’s sentence in the Taillex case is “at the root of all this.” Cf. United States v. Morgan, 567 F.2d 479, 500 (D.C.Cir.1977).

Additionally, Acevedo asserts that due- to his emotional state of mind he was unable to comprehend the consequences of a guilty plea in this case and all future cases. However, we clearly recall Acevedo’s demeanor during the change of plea hearing, where he appeared to be a well-oriented and intelligent individual. Acevedo’s answers were rational and coherent during a long and extended hearing that lasted more than an hour. At no time was it suggested that defendant lacked the mental capacity to understand what was going on. The extensive colloquy between this court and defendant during the change of plea hearing shows that Acevedo understood fully the nature of the charges against him and the consequences of his plea. Crosby, supra, 714 F.2d at 192. Specifically, the court made a finding that the defendant was competent to plead at that time and the attorneys for all sides stated that they had no doubts whatsoever that defendant was competent. Therefore, we find this argument specious as well as untenable.

Finally, defendant argues that there was prosecutorial misconduct since the government entered into the plea agreement which affected defendant’s right to appeal in the Taillex case without notifying Kun-stler. This notwithstanding, it is adduced that defendant’s attorneys, Morales-Sán-chez and Gil de Lamadrid did not have any authority to engage in plea discussions relating to the disposition of the Taillex case.

Again, the record fails to buttress defendant’s allegations. The uncontroverted facts indicate that Acevedo initially approached the government in an attempt to enter into an agreement, and upon the government’s insistence that Acevedo conduct any negotiations through counsel, Acevedo retained attorneys Morales-Sán-chez and Gil de Lamadrid and the government dealt with them at all times. Abreu-Elias, Acevedo’s local attorney in the Tail-lex case, was aware of the ongoing negotiations, although he did not have knowledge of the details.

It also appears from a telegram sent by Kunstler to Judge Laffitte excusing himself from the sentencing hearing in the Taillex case, that Kunstler was aware that Acevedo had retained new counsel and was no longer relying on his legal advice. Furthermore, Acevedo instructed his wife to inform Kunstler and Kuby not to be present at the sentencing hearing. See Exhibit 8 at page 5 of government’s motion, which is the transcript of the sentencing hearing in Taillex case. Also see sworn statement of Kunstler at page 3, filed on July 3, 1985.

We note that the affidavits filed in support of defendant’s motion contain no allegation that the government unconstitutionally coerced or induced Acevedo’s plea. Cf. Alford, supra, 400 U.S. at 31, 91 S.Ct. at 164; McMann supra, 397 U.S. at 767-69, 90 S.Ct. at 1446-48. Under the present circumstances, the allegations of prosecuto-rial misconduct are completely unfounded.

The standard for determining whether a hearing is required on a motion to withdraw a guilty plea made under Federal Rule Criminal Procedure 32(d) is the same as that for a motion to vacate a sentence under 28 U.S.C. § 2255. United States v. Fournier, 594 F.2d 276, 278 (1st Cir.1979). An evidentiary hearing is required when the records and files in the case, or an expanded record, cannot conclusively solve substantial issues of material fact, and when the allegations made, if true, would require relief. United States v. Butt, 731 F.2d 75, 77 (1st Cir.1984). If the claim is based upon facts which the trial court, through review of the record or observation at trial is familiar, then findings may be made without an additional hearing. McCarthy v. United States, 764 F.2d 28, 31-32 (1st Cir.1985).

In the present case, there is a complete transcript of the Rule 11 hearing plus an expanded record which includes affidavits, letters, the transcript of the sentencing hearing in the Taillex case and other documents, which make it appropriate for us to rely on the record in reaching the above findings without resort to another hearing.

WHEREFORE, in view of the foregoing, defendant’s motion to withdraw guilty plea is hereby DENIED. Imposition of sentence is hereby set for October 18, 1985 at 9:30 a.m.

SO ORDERED.


source: Caselaw Access Project

author: BRIEANT, District Judge.

license: Public Domain

text:
    Hubert SNOW, Petitioner, v. Theodore C. REID; Fishkill Correctional Facility, Respondent.
    No. 84 Civ. 8685-CLB.
    United States District Court, S.D. New York.
    Sept. 24, 1985.

      Hubert Snow, Fishkill Correctional Facility, pro se.
    Robert Abrams, Atty. Gen., of the State of N.Y. by Joyce Andren, Asst. Atty. Gen., New York City, for respondent.
   MEMORANDUM AND ORDER

BRIEANT, District Judge.

This petition by a state prisoner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed on December 4, 1984 by petitioner Hubert Snow. The Attorney General of the State of New York filed a memorandum of law and affidavit in opposition on May 20, 1985. In addition, the Court has been supplied with transcripts of both the Wade hearing [United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)] and the trial in state court, as well as the briefs of both parties on appeal.

On September 16, 1981, petitioner was charged by a grand jury in New York County in an indictment containing two counts of robbery in the second degree, N.Y.Penal Law § 160.10(1). Co-defendant Cameron Cintron was indicted on these counts on the same day. On June 30,1982, after an evidentiary hearing denying suppression of a pre-trial identification of the petitioner, petitioner was convicted of both counts by a trial jury. He was sentenced to an indeterminate term of imprisonment of from four to eight years.

Petitioner’s conviction was affirmed without opinion by the Appellate Division, First Department, on April 26, 1984. People v. Snow, 100 A.D.2d 984, 474 N.Y.S.2d 1003. On June 20, 1984 his application for leave to appeal to the Court of Appeals of New York was denied. People v. Snow, 62 N.Y.2d 992 (1984).

Petitioner alleges three grounds in support of his application for a writ of habeas corpus: (1) that the prosecution failed to prove beyond a reasonable doubt that petitioner committed the crimes of which he is charged; (2) that the testimony of a prosecution witness improperly “bolstered” the complainants’ in-court testimony in denial of petitioner’s due process rights to a fair trial; and (3) that misconduct by the prosecutor during her summation deprived him of his due process rights to a fair trial.

All of the petitioner’s state remedies have been exhausted. The Court will therefore address the merits of his claims. Failure to Prove Petitioner’s Guilt Beyond a Reasonable Doubt.

Petitioner contends that the state had failed to produce sufficient competent evidence to identify him as the alleged perpetrator beyond a reasonable doubt. Specifically, petitioner contends that the prosecution witnesses’ in-court identification of him as their assailant is a product not of their independent recollection of the actual events, but rather of an unfairly suggestive and prejudicial identification procedure employed by the arresting officers. He argues that, as a result of this procedure, neither the in-court nor pre-trial identification is reliable, and therefore under the Constitution neither may properly support this conviction that rests substantially or exclusively on eyewitness identification testimony.

A federal habeas corpus court must uphold a state court conviction if “review of the record in the light most favorable to the prosecution convinces [the federal court] that a rational factfinder could readily have found the petitioner guilty beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979). To apply this standard, this Court must consider whether the facts presented to the jury were properly before them. The petitioner specifically challenges the competency of the victims’ pretrial identification, which the trial court admitted after an evidentiary hearing, upon finding that the circumstances surrounding the identification were not unnecessarily suggestive. (Wade Tr. p. 46). Although federal habeas corpus courts are required to defer to fair and reliable state findings of fact, see Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963); 28 U.S.C. § 2254(d), the constitutionality of pre-trial identification procedures in a specific case poses a mixed question of fact and law. See Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) (per curiam). This permits a federal habeas corpus court to review the facts in the record and to reach a different conclusion in light of the legal standard. See id.

A conviction based on eyewitness identification will be set aside if the pre-trial identification procedure used was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1245 (1968).

This Court, upon its review of the record, finds that the state trial court properly admitted evidence of the witnesses’ pre-trial identification and that a conviction based upon that evidence did not violate petitioner’s due process rights.

In this case, the confrontation of Snow by the witnesses, occurring within five minutes of the crime, was not so suggestive as to taint their identification of him as their assailant. The witnesses, Sui Ming Chan (S.M. Chan) and Shu Lung Chan (S.L. Chan), who were the victims of the crime, had an adequate opportunity to view Snow on the night they were robbed. Both men testified that the crime had occurred on a public sidewalk in Manhattan, at 4:00 A.M. under the light of a street lamp (Tr. at 49, 138); S.M. Chan testified that he recognized Snow as one of the men who reached into his pocket (Tr. at 133); and S.L. Chan testified that he focused on the petitioner’s face as Snow forcibly removed S.L. Chan’s watch from his wrist (Tr. at 161-62). Moreover, the Chans’ identification of Snow moments later was swift and positive.

The challenged confrontation itself was purely fortuitous. Two plainclothes police officers on patrol in an unmarked car observed a group of young men in physical contact with the Chans. Before the police arrived at the scene, the group had left. Upon ascertaining from the victims that a robbery had occurred, the officers immediately pursued the group down a crowded street. Minutes later, an unknown civilian singled out an individual on the street as one of Chan’s robbers. As Officer Thomas DeWitt grabbed that man, Snow leaped out of the crowd and tackled DeWitt, allowing the first man to escape. Officer DeWitt eventually subdued Snow and placed him in the doorway of a nearby restaurant in the custody of the other plainclothes officer. A minute or two later, the Chans arrived from the crime scene, less than a city block removed from the point of arrest, and, upon spotting Snow, immediately and unequivocally identified Snow as one of the robbers, based on their recollection of the crime that had occurred only moments before.

From this account, this Court concludes that any danger of “irreparable misidentifi-cation” invited by the inherent suggestiveness of custodial identifications of the customary sort was absent in this case because of these unusual circumstances. The victim-witnesses each had an opportunity to view the petitioner at the time of the crime and they were attentive to detail. The interlude of time between the robbery and the confrontation was brief.- The witnesses evinced a high degree of certainty in making the identification. These factors, taken together, made the identification sufficiently reliable to satisfy the Simmons standard for admissibility. See Manson v. Brathwaite, 432 U.S. 98, 114, 116, 97 S.Ct. 2243, 2253, 2253, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-83, 34 L.Ed.2d 401 (1972). The weight to which that evidence was entitled is of course a question of fact for the jury. See Manson v. Brathwaite, supra, 432 U.S. at 116, 97 S.Ct. at 2253. It is clear, however, that from the evidence presented, a rational factfinder readily could have found Snow guilty beyond a reasonable doubt.

Improper “Bolstering” of Witnesses’ Identification.

As his second basis for attacking his conviction, petitioner alleges that the court improperly admitted testimony of Officer DeWitt that had the effect of “bolstering” the Chans’ in-court identification of petitioner.

The concept of “bolstering” really has no place as an issue in criminal jurisprudence based on the United States Constitution. It is at most a New York State rule or policy, derived from People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841 (1953), which holds that it is error to permit an identification made by one witness to be corroborated by the testimony of another witness who merely testifies that the identification did occur. Violation of that rule, as is so with regard to many such state court rules, does not rise to a constitutional level. Under Rule 401, F.R.Evid., which is consistent with the Constitution, any evidence is relevant which has “any tendency to make the existence of any fact that is of consequence to the determination of the action than it would be without the evidence. So-called “bolstering” is within that rule, subject only to limitation by the trial judge finding under Rule 403, F.R.Evid., that “unfair” prejudice might result. See also Rule 801(d)(1)(C), F.R.Evid., which represents a federal legislative finding that such bolstering testimony is non-hearsay, and admissible, subject only to the limitation, if any, which Rule 403 applies in any case. Judge Weinfeld has noted that:

“As to petitioner’s assertion that such evidence of prior identification is improper ‘bolstering,’ this Circuit has never regarded the practice as inimical to trial fairness.” Orr v. Schaeffer, 460 F.Supp. 964, 967 (S.D.N.Y.1978).

In any -event, the instant petition does not present a case of “bolstering” in the traditional sense. Officer DeWitt refrained from making any reference to the Chans’ pre-trial identification that could be regarded by the jury as bolstering. The testimony objected to as “bolstering” is found in reference to a conversation between the Chans and Officer DeWitt that occurred immediately prior to petitioner’s arrest. Officer DeWitt testified on direct with reference to having been “jumped” by petitioner, as follows:

“A. We then fell to the ground and I then grabbed him [Snow] and stood him up by Nathan’s [Restaurant].
Q. Did you notice whether or not the Chinese gentlemen arrived at that location at some point?
A. Yes, then they arrived after that. Q. About how long after you got to Broadway and 43rd Street did the two Chinese gentlemen arrive there?
A. Maybe a minute or two.
Q. And at that time did you have a conversation with the two Chinese gentlemen?
A. Yes.
Q. What did you do as a result of that?
A. I placed Mr. Snow under arrest.” (Tr. at 185).

While it must be obvious to the jurors that only an identification by the Chans could have “resulted” in Snow’s arrest, this oblique reference to the Chans’ identification can hardly be said to have reinforced an already emphatic identification made by the Chans themselves.

Prejudicial Summation.

The petitioner contends that the prosecutor’s summation exceeded fair comment so as to deprive him of a fair trial. He identifies four specific incidents of alleged prose-cutorial misconduct: (1) the prosecutor improperly argued that the Chans’ identification testimony was credible because they are successful businessmen; (2) referred to facts not in evidence and urged the jury to draw conclusions that could not be inferred from the record; (3) she suggested that defense witnesses were lying; and (4) she ridiculed defense counsel and petitioner’s case. None of these contentions has any merit.

As a threshold matter, it is well settled that federal habeas corpus relief is not available on the basis of improper prosecutorial statements at trial unless the errors, in context of the summation as a whole, were “so fundamentally unfair as to deny the [petitioner] a fair trial.” Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974). Within the broad compass of fair comment, a prosecutor may use the summation to argue the merits and thesis of her case. See Gibilaro v. LeFevre, 725 F.2d 199, 201 (2d Cir.1984). That necessarily includes the right to discuss the motives and credibility of any witnesses, see United States v. DeAngelis, 490 F.2d 1004, 1008 (2d Cir. 1974), cert. denied, 416 U.S. 956, 94 S.Ct. 1970, 40 L.Ed.2d 306 (1974), to marshal favorable inferences, see United States v. Wilner, 523 F.2d 68, 73 (2d Cir.1975), and in general to make any fair comments which the evidence supports.

In this case, each of the prosecutor’s statements is supported sufficiently by the record, and therefore not subject to successful attack on constitutional grounds. Petitioner first claims that the prosecutor’s description of the Chans as “intelligent, successful businessmen” (Tr. 318) was improper. That comparatively innocuous characterization was drawn legitimately from the trial record. The Chans owned a garment factory. The jurors could assess their intelligence and their success. The argument was relevant both as to credibility and the reliability of the identification testimony.

Snow’s second claim, that the prosecutor referred to facts not in evidence and encouraged the jury to engage in speculation prejudicial to the petitioner is also unsupported. The prosecutor asserted that Snow had reached into S.M. Chan’s pocket during the robbery (Tr. 321). This was supported by credible testimony (Tr. 133). She also argued, as an alternative basis of guilt, that Snow had abetted the crime against the Chans (Tr. 321). She concluded her discussion by urging the jury to rely on their own recollections (Tr. 321), an instruction repeated by the court (Tr. 327). See Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954).

The presumption of Opper that a jury will follow a trial judge’s admonitions also attaches to curative instructions made by the court with respect to the prosecution’s exercises in speculation now claimed to be improper. See Donnelly v. DeChristoforo, 416 U.S. at 644, 94 S.Ct. at 1872. In her summation, the prosecutor suggested a possible explanation — disadvantageous to the petitioner — to account for the absence of stolen property on the petitioner’s person. She said:

“MS. SHIELS: I’m putting the question to you, ladies and gentlemen. Why was not property found on Hubert Snow and why was not property found on Cameron Cintron and I’ll tell you why, because when the police came they ran, they knew the police were coming. They didn’t want to be caught with the goods because they knew they’d be in more trouble, so they either threw it on the ground or they handed it off to one of their friends. That’s why the property was not found.
MR. ROSENTHAL: I object to that. THE COURT: The jury may not guess or speculate as to this. Please understand that.
MR. ROSENTHAL: I would ask that the argument be stricken.
THE COURT: Yes, I will strike that.
MS. SHIELS: May we have a sidebar?
THE COURT: The District Attorney may not ask you to guess or speculate what transpired with regard to the property.
MS. SHIELS: May I have a sidebar? THE COURT: Yes.
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MS. SHIELS: I believe I’m permitted to suggest a theory to them. I’m not telling them what happened. I’m suggesting.
THE COURT: You are asking them to speculate—
MS. SHIELS: Not speculation.
THE COURT: It is speculation. You feel this is what could have happened, not permitted to do that. I will not allow that. That’s it.” (Tr. at 324-26).

This was a permissible response to a hypothesis previously posited by defense counsel in their summations to the effect that absence of any part of the loot suggested misidentification of Snow as the perpetrator. See, e.g., United States v. Marrale, 695 F.2d 658, 667 (2d Cir.1982), cert. denied, 460 U.S. 1041, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983); United States v. LaSorsa, 480 F.2d 522, 526 (2d Cir.), cert. denied, 414 U.S. 855, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973). The trial court took great care to mitigate the potentially prejudicial effect of these comments and in so doing protected the petitioner’s constitutional right to a fair trial. See Donnelly v. DeChristoforo, 416 U.S. at 644, 94 S.Ct. at 1872.

The petitioner’s last two contentions accuse the prosecutor of improperly denigrating the defense case. First, the petitioner objects to comments about the defense witnesses’ credibility and to insinuations that they had lied. This claim cannot be sustained. Although the Court of Appeals has recognized that some comments on the credibility of defense witnesses may be so prejudicial as to render the entire trial unfair, see United States v. Drummond, 481 F.2d 62, 64 (2d Cir.1973), it also recognizes that the ultimate issue of claimed unfairness must be resolved in view of the summation as a whole. See United States v. Marrale, 695 F.2d at 666, n. 9. Upon reviewing this summation and in light of the trial judge’s careful attention to what was being said and to the objections taken, this Court concludes that Snow was not denied due process.

Lastly, petitioner objects to the prosecutor’s intimations that defense counsel had intentionally obfuscated the truth, specifically by her traditional but overblown allusions to the natural evasion tech-ñiques of the squid and octopus, and some arcane reference to skunks. (Tr. 335-36). An objection to reference to the skunk was sustained by the trial court. This Court does not find prosecutor’s remark that defense counsel were “trying to cloud the waters” as squid and octopi are reputed to do, in the entire context of this trial record, to be anything more than useless bloviation in the tradition of a television crime show. Unlike improper prosecutorial statements calculated to place the jury themselves in a position of ridicule should they accept the defense’s contentions, see, e.g., United States v. Modica, 663 F.2d 1173, 1180 (2d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982); United States v. Gonzalez, 488 F.2d 833, 836 (2d Cir.1973); United States v. Drummond, 481 F.2d at 64, the net effect of what the prosecution said here was merely to urge the jurors to ascertain the truth and decide accordingly. (Tr. 336-37). The prosecutor’s summation in its totality was not so prejudicial as to require that this conviction be vacated.

Conclusion.

For the foregoing reasons, the Clerk shall enter a judgment that all relief shall be denied.

So Ordered.