MEDIA

February 13, 2015

Motion to Withdraw Plea in Drug Case Using Informant Denied

Published in: New York Law Journal | volume 253

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Arthur D. Spatt denied a motion to withdraw a guilty plea where counsel’s failure to file a government misconduct motion attacking several counts in the indictment would have been a reasonable tactic and, in any event, caused no discernible prejudice. In a suit seeking an injunction directing Governor Andrew Cuomo to call a special election to fill a vacant congressional seat, Judge Jack B. Weinstein issued an opinion that prompted the governor to expedite the election, thus mooting the case.

Judge Kiyo A. Matsumoto found a defendant competent to stand trial or plead guilty. Judge Frederic Block denied the City of New York’s motion to dismiss a discrimination claim under the Americans with Disabilities Act, where the city had allegedly taken an adverse employment action based on an erroneous diagnosis of delusional disorder.

Withdrawal of Guilty Plea

In United States v. Rich, 12 CR 424 (EDNY, Feb. 2, 2015), Judge Spatt, denying defendant’s motion to withdraw his guilty plea to Count One of the superseding indictment and to strike Counts One through Three, held that counsel’s failure to challenge those three counts based on “outrageous government conduct,” regardless of the merits of such a motion, did not amount to ineffective assistance of counsel or prejudice defendant.

In early 2012 a confidential informant (CI) advised the FBI that defendant had sold crack cocaine to him. The FBI then conducted controlled purchases by the CI from defendant. These sales carried prison terms from zero to 20 years, enhanced to zero to 30 years given defendant’s prior record.

In April 2012 the FBI executed a search warrant on defendant’s residence, recovering cocaine, marijuana and drug paraphernalia.

Subsequently, the FBI conducted a “reverse sting operation” against defendant. According to the government, defendant discussed participating in a planned robbery and recruiting an accomplice. Defendant also expressed an intention to use firearms and bring duct tape to restrain the victims. He and the CI discussed as well how they would divide the robbery proceeds. In May 2012 the CI asked defendant by text message if he was still “in,” and defendant replied, “Hell yea.” A few days later he told the CI that he had recruited another participant. The three men met to plan the logistics.

Defendant’s version emphasized that the FBI pressured him by having the CI describe the traffickers/victims as “white boys” with lots of drugs and money, and that, under the FBI’s direction, the CI had instructed him to “bring burners,” a reference to firearms. The FBI also directed the CI to bring an accomplice. On May 31, 2012, as defendant, the CI and the third participant were at the staging point for the robbery, the FBI arrested defendant and his co-conspirator.

The initial indictment charged defendant with Hobbs Act conspiracy, Count One; conspiracy to distribute heroin and cocaine, Count Two; and attempted possession of the same drugs, with intent to distribute, Count Three. A superseding indictment added charges of distributing cocaine bases, Counts Four and Five.

On Sept. 6, 2013, defendant pleaded guilty to Count One before Magistrate Judge A. Kathleen Tomlinson. The plea agreement noted a Guidelines range of 151 to 188 months.

On Dec. 3, well before the sentencing date, defendant moved to withdraw his plea to Count One and to dismiss Counts Two and Three, in light of United States v. Hudson, 3 F.Supp.3d 772 (C.D. Cal. 2014). The district court there had dismissed an indictment on the ground that the reverse sting operation constituted “outrageous government conduct,” violating due process. One day after defendant filed his motion, the U.S. Court of Appeals for the Ninth Circuit reversed that decision. United States v. Dunlap, Nos. 14-50285, 2014 WL 6807733 (9th Cir. Dec. 4, 2014).

Here, defendant asserted ineffective assistance of counsel arising from his attorney’s failure to claim “outrageous conduct.” Had such a claim succeeded, only the first three counts would have been dismissed. The fourth and fifth counts, the cocaine base offenses, would have remained.

As Spatt noted, defendant’s “ineffective assistance” argument speaks to the voluntariness of the guilty plea. In trying to show “outrageous government conduct,” defendant bears a heavy burden. Courts are deferential to the government’s investigatory techniques, including its use of “sting operations” offering criminal opportunities and necessary material.

Spatt did not “resolve the thorny legal questions surrounding an ‘outrageous government’ claim or consider the associated factual issues [.]” Slip op. 13. Rather, the motion was decided on other grounds.

First, if prior counsel deliberately chose to negotiate a plea agreement and forgo a challenge to Counts One through Three, this was an “objectively reasonable” tactic. By pleading guilty to Count One, defendant obtained a dismissal with prejudice of the remaining four counts. He thereby avoided conviction on two charges (Counts 2 and 3) carrying mandatory minimum sentences and on two other drug charges (Counts 4 and 5), while remaining eligible for a sentence reduction based on acceptance of responsibility.

Second, even if counsel’s omission was not a deliberate tactic, defendant has shown no prejudice arising from the course taken. Defendant provided no affidavit stating that he would have rejected the plea agreement had he been better informed about a potential motion. The plea agreement, moreover, may have placed him “in a better position in terms of sentencing exposure” than a successful motion to dismiss Counts One through Three. Slip op. 16-17.

Date for Special Election

In Rossito-Canty v. Cuomo, 15 CV 0568 (EDNY, Feb. 16, 2015), Judge Weinstein issued a ruling that led to the establishment of a date for a special election for New York’s Eleventh Congressional District. The seat for that district, which covers all of Staten Island and parts of southern Brooklyn, was left vacant by the resignation of Congressman Michael Grimm, effective Jan. 5, 2015.

On Feb. 5, 2015, plaintiffs brought suit, seeking an injunction directing Governor Cuomo to call a special election. Cuomo had publicly stated, three days earlier, that he did not have a time frame for establishing a date for the special election. Slip op. 10.

Weinstein reviewed the evolution of federal protection of voting rights, from the Declaration of Independence and other statements of the founders, through the post-Civil-War constitutional amendments, and into the modern era. Slip op. 12-19. He identified three specific rights that had been denied plaintiffs: the right to participate in policymaking, the right to a congressional representative as “ombudsperson” (“the individual’s friend and guide in the complex channels of national government”), and the right to input on matters of national debate. Slip op. 6-9. The ongoing denial of these rights imparted standing to plaintiffs, and ripeness to their claims. Slip op. 35-36.

Weinstein rejected the argument that, under N.Y. Pub. Off. Law §42(3), the governor had “almost unlimited” discretion concerning the timing of a special election. While that provision says that the governor “may” call a special election and does not establish a time within which he must do so, the New York Court of Appeals has expressly confirmed that the statute did not change the New York State constitutional requirement that vacancies be filled “as soon as may be.” Slip op. 33-34, quoting Roher v. Dinkins, 32 N.Y.2d 180, 188 (1973).

Early in his opinion, Weinstein wrote that exercising his power to fix the date of the special election “would cause this court great regret in view of its respect for the sovereign State of New York and its government. Prompt action by the Governor would permit maintaining the normal relationship of comity between federal and state officials.” Slip op. 5. Nonetheless, Weinstein ordered a consolidated hearing on Plaintiffs’ applications for a preliminary and a permanent injunction, to be held on Feb. 20, 2015, and made plain that Cuomo had yet to advance any argument that would be sufficient to deny the requested relief. Slip op. 39-41. The governor’s office wrote the court on Feb. 19 that Governor Cuomo would issue a proclamation on Feb. 20 calling for a special election and, after he did so (setting the date at May 5, 2015), Weinstein dismissed the case as moot.

Competency to Stand Trial

In United States v. Robertson, 13 CR 486 (EDNY, Feb. 9, 2015), Judge Matsumoto found defendant Colette Robertson competent to stand trial and/or enter a plea because she was able to understand the nature and consequences of the proceedings against her and could assist properly in her defense.

Defendant was charged with sexually exploiting a child, 18 U.S.C. §2251, and related offenses. She was examined by two forensic psychologists—Dr. Marc Janoson, Ph.D., for the defense, and Dr. Barry Rosenfeld, Ph.D., for the government. Dr. Janoson testified that defendant had paranoid schizophrenia and opined that she was not competent to enter a plea. In contrast, Dr. Rosenfeld concluded that defendant was competent to stand trial and enter a plea.

Under 18 U.S.C. §4241, to determine whether a defendant is competent, the court must examine whether she is suffering from a mental disease that renders her unable to understand the nature and consequences of the proceedings or to assist in her defense. Here, the evidence did not show that defendant suffered from schizophrenia. She did not present symptoms typical of schizophrenia, except hallucinations that began after her arrest, and it was unusual for symptoms to appear for the first time in a 46-year-old. Both psychologists concluded that defendant was exaggerating her distress in her responses to psychological assessment questions.

As the court noted, defendant suffered from symptoms of depression, but the evidence did not show an inability to understand the nature and consequences of the proceedings or to assist in her defense. The mere presence of mental illness does not mandate a finding of incompetency. Despite her depression, defendant “expressed a basic understanding of the charges against her, the evidence, the government’s plea offer, and the roles of the court, prosecutor, defense counsel, and jury.” Slip op. 17.

Relying on defendant’s claim that she recalled no facts relating to the charged conduct, defense counsel contended that defendant could not enter a plea. The court, however, found no evidence to show that her “selective” amnesia resulted from any mental illness. The fact that defendant’s purported amnesia did “not appear to have affected her memory regarding anything other than the circumstances of the offense weigh[s] against a finding that the amnesia will wholly prohibit defendant from participating in her defense.” Slip op. 19-20. Matsumoto concluded:

The court’s observations of Ms. Robertson during her appearances in her case thus far corroborate the credible testimony of Dr. Rosenfeld. Defendant has appeared alert and able to follow the proceedings, has been responsive to the court’s questions regarding scheduling, and has not exhibited any bizarre or otherwise inappropriate behavior. Thus, for the reasons stated above, after considering the testimony of Drs. Janoson and Rosenfeld, the evidence presented at the competency hearing, the parties’ submissions, and the court’s own observations, the court finds by a preponderance of the evidence that defendant is competent to enter a plea and/or stand trial.

Slip op. 21-22.

Disabilities Act

In Rodriguez v. City of New York, 13 CV 6138 (EDNY, Jan. 23, 2015), Judge Block denied the city’s motion to dismiss a complaint alleging discrimination in violation of the Americans with Disabilities Act (ADA).

Plaintiff Jean Rodriguez served with exemplary job performance at the New York City Police Department from Jan. 20, 2004, until he was forced to go on Ordinary Disability Retirement on Aug. 1, 2014. In 2008 and 2009, defendant heard rumors that his supervisor made derogatory comments about his marital situation and wanted to modify his employment status. Defendant filed a complaint with the New York Police Department Equal Employment Opportunity (EEO) office in September 2009.

In January 2010, defendant was told to report to the NYPD Medical Division, where Dr. Cecile Irvine met with him and informed him that the NYPD believed his EEO complaint was “baseless” and he was “delusional.” Dr. Irvine placed defendant on Restricted Duty for “Delusional Disorder.” Upon Dr. Irvine’s advice defendant obtained a second opinion from an independent psychiatrist, who concluded that defendant did not suffer from “Delusional Disorder.” Dr. Irvine told defendant that the letter was “unavailing.”

During subsequent proceedings before the Police Pension Fund Article II Medical Review Board, defendant was again advised to seek an independent opinion. This led to a letter from Dr. Max Heinrich saying defendant was not disabled. The Article II Board told defendant the letter was insufficient as Dr. Heinrich was not a psychiatrist. A psychiatrist wrote a third report finding defendant fit for duty. The Article II Board based its decision, issued in July 2012 and sent to defendant in January 2013, on Dr. Irvine’s “alleged misdiagnosis of Rodriguez,” concluding that defendant had “Delusional Disorder Persecutory Type” and recommending approval of the Police Commissioner’s application for Ordinary Disability Retirement.

Block found that defendant had adequately alleged disability discrimination under the ADA by claiming that the city discriminated against him on the basis of “its false perception that he suffered from ‘Delusional Disorder.'”

The city did not deny that it was covered by the ADA. Further, plaintiff had alleged that the city perceived him to suffer from a disability within the meaning of the ADA because the city accepted the false diagnosis of “Delusional Disorder.” Plaintiff also adequately alleged that he was qualified to perform the essential functions of his job. He pointed to his exemplary job performance record and the absence of any disciplinary actions by the NYPD. He also cited the medical opinions that he was fit for duty and did not suffer from “Delusional Disorder.”

Finally, defendant sufficiently alleged that he had suffered an adverse employment action resulting from his perceived disability. Indeed, the city had allegedly forced him into retirement by submitting a false disability retirement application to the Article II Board based on Dr. Irvine’s erroneous diagnosis.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.