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Federal Criminal Appeals: Factual Basis For A Plea Of Guilty And Federal Rules of Criminal Procedure 11


United States vs. Culbertson Decided February 3, 2012

Second Circuit Court of Appeals  

Issue: Whether there existed a sufficient factual basis under FRCP Rule 11(b)(3) for the District Court to take a plea from defendant.

Holding: The case was remanded to the District Court and the Second Circuit held that to establish the factual basis required by Rule 11, the district court may rely on representations of “the defendant, of the attorneys for the government and the defense, [or] of the presentence report when one is available’, and indeed may use “whatever means is appropriate in a specific case”.

But it is error for the court to find that a factual basis exists when the defendant actively contest a fact constituting an element of the offense in the absence of circumstances warranting the conclusion that the defendant’s protestations are “unworthy of belief”. Under Rule 11, moreover, the court must “assure it self…that the conduct to which the defendant admits is in fact an offense under the statutory provision under which it is pleading guilty”. In doing so, it is “essential…that the court determine by some means that the defendant actually understands the nature of the charges”.

Facts: Culbertson pleaded guilty to four counts of a multi-count superseding indictment, including a charge of conspiracy to import 100 grams or more of heroin and five kilograms or more of cocaine and was sentenced to 120 months. Because there was an inadequate factual basis for Culbertson’s guilty plea with respect to the quantity of drugs for which he was responsible, we remand to the District Court with instructions to vacate the judgment of conviction.

Culbertson’s conviction arose from his plea of guilty to four counts of an eleven-count superseding indictment, including a count of conspiracy to import 100 grams or more of heroine and five kilograms or more of cocaine, in violation of 21 U.S.S. §§ 963, 960(B)(1)(ii), and 960(b)(2)(A), and 18 U.S.C. §§ 3551 et  seq. The District Court sentenced him principally to a term of imprisonment of 120 months. On appeal, Culbertson makes two arguments. First, he argues that the District Court erred in accepting his guilty plea without first “determine [ing] that there [was] a factual basis for the plea”. Fed. R. Crim. P. 11(b)(3).Second. Culbertson argues that he was deprived of his Sixth Amendment right to counsel because the District Court denied his motion to substitute counsel and his “standby counsel” during the plea rendered ineffective assistance. We conclude that Culbertson’s plea failed to satisfy the requirements of Rule 11(b)(3) of the Federal Rules of Criminal Procedure.

The agent learned of Culbertson’s involvement in that ring on January 9, 2008, when his girlfriend, Patricia Lancaster, arrived at John F. Kennedy International Airport. Lancaster’s suitcase contained just over ten kilograms (10,369 grams) of cocaine and about 909 grams of heroin. Lancaster was arrested and immediately started to cooperate.

Under the agents’ supervision, Lancaster called Culbertson and asked that he pick her up, as no one had met her at the airport. Culbertson responded that he would meet Lancaster at the airport because her luggage contained a “product” that needed to be retrieved. Then agent arrested Culbertson as soon as he arrived.

The indictment charged Culbertson with (1) conspiring to import and importing five kilograms or more of cocaine and 100 grams or more of heroin, principally in violation of 21 U.S.C. §§ 963,960(b)(1)(B)(ii), and 960(b)(2)(A) (Counts one and five); and (2) conspiring and attempting to posses with intent to distribute the same amount of cocaine and heroin, principally in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii)(II), and 841(B)(1)(B)(i) (Counts Two and Seven).

Culbertson’s fourth appointed, attorney of record, reported that he and Culbertson had argued over his refusal to file a “frivolous motion” and that Culbertson had fired him. Culbertson complained: “I can’t get my lawyer to do anything for me, and I don’t know that law”. The District Court responded as follows:

This is what I am going to do. Mr. Lashley, you are the fourth lawyer. I am not going to relieve you. Mr. Culbertson will be trying this case or handling this case himself, pro se. You will be standby counsel to assist him should he need assistance but anything else he will do himself. I am not in the business of providing free lawyers to defendant at his particular whim.

When Culbertson protested that he did not want to proceed pro se and that he “need [ed] help”, the District Court responded that he was “on [his] own’, but also told him, “If you need help and you want to call Mr. Lashley, you are free to do so”. Culbertson later filed a pro se “Motion for Appointment of Counsel,” in which he asserted that each of his lawyers has been unfit and that he was incapable of representing himself. The District Court denied the motion. The court observed that Culbertson was set to proceed pro se at trial, and sought to clarify Lashley’s role as “standby counsel”.

Culbertson responded, “I don’t want to go pro se. I don’t want Mr. Lashley because he’s not doing anything for me”, and “I’m asking the court for a lawyer”. The District Court Confirmed that Lashley would serve as standby counsel at trail if Culbertson wished, but that Culbertson was otherwise “on [his] own”. Again, Culbertson protested that he did not want to proceed pro se because he did not “know how to do a trail from beginning to end”.

On January 21, 2009, the District Court held another conference, which culminated in Culbertson’s guilty plea. The District Court briefly adjourned the conference to permit Culbertson, Lashley, and the Government to continue discussing a possible disposition. When the parties returned, Lashley stated that Culbertson wished to plea guilty to all the counts against him in the superseding indictment, although no formal plea agreement had been reached and the Government had not delivered a letter pursuant to United States v. Pimentel, 932 F.2d 1029 )2d Cir. 1991).

Before proceeding with the plea, the Government confirmed that Culbertson had reserved his rights to an evidentiary hearing regarding drug quantity. The Government then proffered that his proof against Culbertson consisted principally of an audio recording of Culbertson speaking by phone with Lancaster about importing the drugs in her suitcase, which included over one hundred grams of heroin and over five kilograms of cocaine. Culbertson allocated that he had recruited Lancaster to bring narcotics into the United States from Trinidad. After the allocution, the District Court asked Culbertson whether he knew that Lancaster was “coming into this country with narcotics”, and Culbertson responded, “Yes. We made an agreement for three kilos of cocaine”.

After describing the charges against Culbertson without further mentioning drug quantity or advising Culbertson of the elements of each charge, the District Court accepted Culbertson’s plea. Prior to his plea, Culbertson had requested a Fatico hearing to determine the amount of cocaine for which he was responsible. After the plea, the Government responded that, for sentencing purpose, it would rely solely on the five-kilogram minimum weight necessary to trigger the ten-year mandatory minimum sentence, rendering a Fatico hearing unnecessary. “The District Court denied the request for a Fatico hearing as “moot in light of the government’s response”.

Before sentencing, Culbertson filed a pro se motion to withdraw his guilty plea, arguing, amongst other things, that he had entered the plea under pressure and that he had been unconstitutionally denied the assistance of counsel during his plea proceeding. Culbertson also filed a pro se motion requesting that the District Court impose a sentence below the ten-year statutory minimum because he was responsible for only three, not five kilograms of cocaine. Under the Controlled Substances Act, a plea to three kilograms of cocaine would have triggered only five-year mandatory minimum sentence. At Culbertson’s sentencing, the District Court accepted the presentence report’s calculation that Culbertson’s Guidelines range was 57 to 71 months. However, having determined that Culbertson was subject to a ten-year mandatory minimum sentence because his offense involved at least five kilograms of cocaine, the court concluded that it was without authority to impose a lesser sentence.

Legal Analysis: “We review for …abuse of discretion a district court’s decision that a defendant’s factual admission support conviction on the charge to which he has pleaded guilty”. United States v. Adams, 448 F. 3d 492, 498 (2d Cir. 2006). In the wake of Apprendi v. New Jersey, 530 U.S. 466 (2000), however, we recognized that “a defendant cannot be convicted on an aggravated [drug] offense unless the statutory drug quantity is proved to a jury or admitted by the defendant”. United States v. Gonzalez, 420 F. 3d 111, 124 (2d Cir. 2005).

We have previously held that in order to provide a factual basis for a plea to a drug conspiracy charge under 21 U.S.C. §§ 841 (b)(1)(A), an allocution must establish that the “drug type and quantity were at least reasonably foreseeable to the co-conspirator defendant”. In United States v. Gonzalez, Gonzalez the defendant, “specifically declined to plead guilty to conspiring to distribute the charged fifty grams or more of crack, explaining…that he had never intended to sell the informant a kilogram of real crack”, but had intended to sell only a counterfeit substance. We held “that Gonzalez’s failure to admit – indeed, his explicit challenge to – the statutorily prescribed quantity meant that his plea did not provide the court with an adequate factual basis to enter judgment against him on the charged crime”, and we remanded to the district court with instructions to vacate the judgment of conviction.

In United States v. Adams, we considered another Rule 11(b)(3) challenge to a plea by a defendant who allocated that he had participated in a scheme to “transport eight-five to ninety pounds of marijuana,” but who was ultimately convicted of conspiring to transport five kilograms or more of cocaine. We never the less concluded that there was an insufficient factual basis for plea and that the district court had “failed to elicit an admission that [the defendant] actually knew he was conspiring to distribute at least five kilograms of cocaine,” because Adams had “insisted that he knew of and agreed to only a marijuana conspiracy.” Conviction under 21 U.S.C. § 986, which, like 21 U.S.C. § 846, requires a showing that the defendant “knew of his co-conspirator’s illicit activities or [that] the activities were reasonably foreseeable by him.”

It is true that, to establish the factual basis required by Rule 11, the district court may rely on representations of “the defendant, of the attorneys for the government and the defense, [or] of the presentence report when one is available’, and indeed may use “whatever means is appropriate in a specific case”. But it is error for the court to find that a factual basis exists when the defendant actively contest a fact constituting an element of the offense in the absence of circumstances warranting the conclusion that the defendant’s protestations are “unworthy of belief”. Under Rule 11, moreover, the court must “assure it self…that the conduct to which the defendant admits is in fact an offense under the statutory provision under which it is pleading guilty”. In doing so, it is “essential…that the court determine by some means that the defendant actually understands the nature of the charges”.

The Government submits, Culbertson should be held responsible for the actual amount of cocaine found in Lancaster’s suitcase – an amount that it claims he never disputed. This argument is unpersuasive for two reasons. First, Culbertson appears to have challenged the actual amount of cocaine in Lancaster’s suitcase, as well as his knowledge of that amount. Indeed, insisted that Lancaster plea reflected that she had only three kilograms of cocaine. Second, the records belies the government’s contention that Culbertosn personally and directly particioated in the drug transaction.

In Andino, withheld that the Government need not “proof scienter as to drug type or quantity when a defendant personally and directly participates in a drug transaction underlining a conspiracy charge”. We concluded that a defendant to retrieved a package containing drugs  addressed to him and transported it to another building has personally and directly participated in that transaction and could be sentenced based on the type and quantity of drugs in the package, even if those were not reasonably for foreseeable to him.

Here, Culbertson recruited Lancaster to transport cocaine from Trinidad, but there is not evidence that he actually handled the cocaine or was involved beyond the recruitment. Moreover, the District Court found that Culbertson was entitled to a significant downward adjustment under the Sentencing Guidelines for playing a “minimum role” in the offense. This adjustment is available only to “a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant”, U.S.C.G. § 3B1.2(a) (commentary n.3(A)). That finding indicates that Culbertson role was far from direct.

We turn to whether the “variance from the requirements of” Rule 11 constituted “harmless error” or instead “affect[ed] substantial rights”. Fed. R. Crim. P. 11(h).

“[T]he kinds of Rule 11 violations that can properly be considered harmless error are ‘fairly limited.” In Gonzalez, we described drug quantity as “presumptively significantly” because of its “potential impact on any term of incarceration, both in terms of the statutory minimum and the Sentencing Guidelines”. 420 F.3d at 132, 133. We explained that drug quantity is particularly significant when “[t]he record plainly demonstrates that” it is “the only fact [the defendant] wished to contest with respect to the charged conspiracy”. Id. at 132 – 33. after Gonzalez, we made the following pronouncement:

 A lack of factual basis for a plea is a substantial defect calling into Question the validity of the plea. ‘Such defects are not technical, but are so fundamental as to cast serious doubt under voluntariness of The plea,’ and required reversal and remand so that the defendant may Plea anew or stand trail.

Culbertson clearly disputed the Government’s proffer regarding drug quantity. As evidenced by his request for a fatico hearing, we therefore remand to the District Court with instructions to vacate the judgment of conviction. The able and experienced District Judge may well have been right to decline to appoint new counsel. In doing so, however, the District Judge failed to inform Culbertson of the consequences of waving his rights under Sixth Amendment and proceeding pro se. Although a district court may, “under certain circumstances, require the defendant to select from a limited set of options a course of conduct regarding his representation”, McKee, 649 F.2d at 931, it must “strive for a full calm discussion with the defendant in order to satisfy itself that he has the requisite capacity to understand and sufficient knowledge to make a rational choice.”

“[T]he district court should engage the defendant in an on-the-record discussion to ensure that she fully understands the ramifications of her decision.”). Thus, a defendant who, wisely or not, seeks to represent himself “should be made aware of the dangers and disadvantages of self-representation, so that the records will establish that he knows what he is doing and his choice is made with eyes open.”

Here, notwithstanding Culbertson’s assertions that he was unable to represent himself at trail, the District Court did not apprise him of the consequences of proceeding pro se or assess his capacity to make an informed choice. On remand, if the District Court still finds it appropriate to deny the request for new counsel, Culbertson must be allowed to make his own decision as to whether to proceed pro se or accept his (competent) court-appointed counsel, after a full Faretta hearing. Of course, the District Court retains discretion to appoint new counsel on remand if that is appropriate.

 


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