Opinion
98 Cr. 961 (JSM)
May 3, 2000
Dan Himmelfarb, Assistant United States Attorney, New York, NY 10007, For the government.
David Wikstrom, New York, N Y 10017, For the defendant.
Memorandum Opinion and Order
The adoption of the Sentencing Guidelines has substantially changed the role of the criminal defense lawyer. Counsel's ability to persuade the judge or jury is now far less important than his ability to persuade the prosecutor that the defendant should be allowed to cooperate with the government and thereby obtain a 5K1.1 letter, which will enable the judge to depart from the sentence that the Guidelines would otherwise mandate. The Court concludes that, in the age of the Sentencing Guidelines, it is malpractice for a lawyer to fail to give his client timely advice concerning the importance of cooperation with the government as a means of reducing the defendant's sentence.
BACKGROUND
On August 18, 1998, Ramon Fernandez, Eusebio Fernandez, and German Fernandez were arrested on narcotics charges. Ramon Fernandez is not related to his co-defendants.
Shortly after the arrests, Paul Warburgh, Esq. began to represent Ramon Fernandez. On April 23, 1999, all three defendants pleaded guilty pursuant to a global plea agreement that provided that each of them would be sentenced within a guideline range of 108 to 135 months.
On July 21, 1999, the Court received a letter from Ramon Fernandez in which he stated that Mr. Warburgh had not been retained by him, that Mr. Warburgh had mislead him as to his situation regarding cooperation with the Government, and that he believed Mr. Warburgh had been hired by someone who wanted to benefit others. He asked that new counsel be appointed. The application was granted and David Wikstrom, Esq. was appointed.
By letter of January 18, 2000, Mr. Wikstrom sought a downward departure for Ramon Fernandez on the ground that prior counsel had not represented his client's interests properly by "failing to pursue a course of cooperation with the government."
On April 3, 2000, the court held an evidentiary hearing at which Ramon Fernandez, Mr. Warburgh, and Dan Himmelfarb, the Assistant United States Attorney in charge of the prosecution, testified.
Mr. Fernandez testified that he did not know how Mr. Warburgh was selected to represent him. Mr. Warburgh testified that one day, when he was in the law office of Barry Schulman, Esq., Mr. Schulman said that he was representing one of three defendants who had been arrested and that he was recommending Mr. Warburgh to represent one of the others. Mr. Warburgh was then introduced to an individual named Renee Fernandez, who agreed to pay him $15,000 to represent Ramon Fernandez. At the time, Mr. Warburgh thought that Renee Fernandez was related to his client, but he later learned that he was not.
While there were differences in the testimony as to when Ramon Fernandez first expressed a desire to cooperate, Mr. Warburgh testified that the first time he discussed the topic of cooperation with his client was two days before the plea was entered, which was approximately eight months after Mr. Fernandez's arrest. Even then, they discussed only whether the defendant had information about other perpetrators, not whether he would be willing to testify against his co-defendants. Mr. Warburgh raised the issue of his client's cooperation with Mr. Himmelfarb, and Mr. Himmelfarb discussed it with the case agent. Mr. Himmelfarb testified that "the two of us decided that, at least at this late stage in the case, this was not something we were interested in." Apr. 3, 2000 Tr. at 60 (emphasis added).
DISCUSSION
At the outset the Court should note that it has had prior experience with Mr. Warburgh and considers him an able lawyer of integrity. However, the facts established at the hearing demonstrate that there was a conflict of interest and that Ramon Fernandez was not given timely advice as to the importance of cooperation at an early stage in the proceedings.
As the Second Circuit has recently noted:
a defendant has suffered ineffective assistance of counsel in violation of the Sixth Amendment if her attorney has a potential conflict of interest that prejudices the defendant or an actual conflict of interest that adversely affected the attorney's performance because it resulted in an actual lapse in representation. See Winkler v. Keane, 7 F.3d 304, 307, 309 (2d Cir. 1993); see also Cuyler v. Sullivan, 446 U.S. 335, 350 (1980); United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994).
Amiel v. United States, No. 98-2135, 2000 WL 378880, at *2 (2d Cir. Apr. 13, 2000). In Amiel the Second Circuit reaffirmed the proposition that accepting a fee from a third party who may have an interest in the case different from that of the defendant does result in a conflict of interest. "[O]nce the defendant establishes that there was an actual conflict, he need not prove prejudice, but simply that a `lapse in representation' resulted from the conflict." United States v. Malpiedi, 62 F.3d 465, 469 (2d Cir. 1995). In determining whether there has been a lapse in representation, the Court must ask "whether defense counsel's actions were objectively reasonable considering all the circumstances." Purdy v. United States, No. 99-2461, 2000 WL 310000, at *3 (2d Cir. Mar. 27, 2000).
Here the unreasonable lapse in representation occurred when counsel failed to advise the defendant early in the case of the importance of cooperation with the government as a means of reducing his sentence.
At the time that Mr. Warburgh began to represent Ramon Fernandez it was clear that his client had little chance of prevailing at a trial. The complaint disclosed that Mr. Fernandez had participated in two sales of heroin that had been recorded by confidential informants and that Mr. Fernandez had been introduced to an undercover police officer by an informant.
Since it was clear that his client had no defense to the charge, the only thing counsel could do was find some way to minimize the sentence the defendant would ultimately receive. It should have been evident that the best way to obtain a favorable sentence for Ramon Fernandez was to persuade the prosecutor that he was less culpable than his co-defendants and should be allowed to enter into a cooperation agreement that could ultimately lead to a 5K1.1 letter. Since the recorded sales that Ramon Fernandez made involved relatively small amounts of heroin, it is reasonable to assume that the prosecutor would have looked favorably on Fernandez's willingness to cooperate against his employers. But this possibility was never explored.
The Court has not found any case in which a defense attorney's failure to advise a client of the importance of seeking a cooperation agreement at an early stage was alone the basis of a finding of ineffective assistance of counsel. Cf. United States v. Robertson, 29 F. Supp.2d 567, 571 (D.Minn. 1998) (ineffective assistance found where defense counsel did not advise his client to accept the prosecutor's offer of a cooperation agreement). However, support for that proposition is found in authorities considering the failure of counsel to pursue a favorable plea agreement.
The American Bar Association's Model Code of Professional Responsibility, Ethical Consideration 7-7 (1992) provides, "A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable." Similarly, Professor Amsterdam's Trial Manual 5 for the Defense of Criminal Cases § 201, at 339 provides,
The decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in any criminal case. This decision must ultimately be left to the client's wishes. Counsel cannot plead a client guilty, or not guilty, against the client's will. [citation omitted] But counsel may and must give the client the benefit of counsel's professional advice on this crucial decision.
In Boria v. Keane, the Second Circuit found that a lawyer who had communicated a prosecutor's plea offer to his client was constitutionally ineffective because he failed to advise the client as to the wisdom of accepting the plea. See 99 F.3d 492 (2d Cir. 1996); see also Robertson, 29 F. Supp.2d at 571.
These authorities recognize the importance of a decision to plead guilty in ultimately reducing the sentence that a defendant will receive and the duty of a defense lawyer to explore that possibility with his client fully. But how can a defendant be expected to make a decision whether to pursue an early plea if his lawyer has not told him of the importance of a cooperation agreement?
Anyone who has practiced as a criminal defense lawyer in federal cases since the effective date of the Guidelines knows the importance of a 5K1.1 letter and also knows that the race is to the swift. If one does not cooperate early against co-defendants, the opportunity for obtaining a 5K1.1 letter is often lost.
While Mr. Himmelfarb testified that he doubts that Ramon Fernandez would have been offered a cooperation agreement even if Mr. Warburgh had raised his client's cooperation at an early stage, he candidly admitted that it is extremely difficult to say in hindsight what would have occurred.
Here, the facts lead to the conclusion that had Ramon Fernandez offered to cooperate at an early stage it is more probable than not that he would have procured a plea agreement that was more favorable than that offered to his more culpable co-defendants.
The Government has not contested Ramon Fernandez's statement that he was simply a worker in an organization operated by his co-defendants. Indeed, the circumstances under which Mr. Warburgh was retained seem to support that conclusion. In addition, as noted above, the recorded sales that he made involved relatively small amounts of heroin.
It has been the Court's experience that the Government is often generous in allowing lower level members of a criminal enterprise to enter into cooperation agreements even though they can offer little more than a willingness to testify against their superiors. While the Government notes that the case against Ramon Fernandez's co-defendants was strong and that his cooperation was not needed, his willingness to testify might have been useful to the Government in persuading the co-defendants to plead guilty sooner than they did. Moreover, even if the Government did not agree to enter into a cooperation agreement, the defendant's willingness to testify against his co-defendants might have induced the Government to enter into a more favorable plea agreement.
In view of all of the circumstances presented, the court is persuaded that there was a conflict of interest and that "a `lapse in representation' resulted from the conflict." Malpiedi, 62 F.3d at 469. Although the defendant need not establish prejudice where his attorney had a conflict of interest and there was a lapse in representation, the defendant was in fact prejudiced by his attorney's failure to explain to him at early stage the advantage of cooperation.
The question that remains is what remedy the defendant will be afforded for this violation of his right to counsel. There is nothing the Court can do that will put the defendant and the Government in the position they were in at the time the defendant's counsel should have pursued a cooperation agreement. Since the co-defendants have now pleaded guilty, the Government can obtain no benefit from the defendant's willingness to testify against them and thus has no incentive to offer Mr. Fernandez a cooperation agreement.
Since the Court cannot put the parties back in a position that would give new counsel an opportunity to persuade the Government to enter into a cooperation agreement with the defendant, the only meaningful remedy the Court can fashion is to determine what plea agreement the parties would have negotiated had Ramon Fernandez offered to cooperate shortly after his arrest and to give Mr. Fernandez the benefit of that agreement.
While one cannot now say with absolute certainty what agreement the parties would have made, the Court's experience with a variety of plea agreements entered into by the Government in the past makes it possible to reconstruct, with a reasonable degree of comfort, the parameters of such a plea agreement.
As the Government has argued, the case against the co-defendants was strong and Ramon Fernandez was not needed as a witness. Thus, the Court cannot find that it is more probable than not that Ramon Fernandez would have been offered a cooperation agreement. On the other hand, in exchange for his willingness to provide the Government with all that he knew about the defendants' operation at an early stage, it is more probable than not that the Government would have offered him a plea agreement that was substantially more favorable than the one offered to his more culpable co-defendants.
Since the largest sale of heroin in which Ramon Fernandez engaged involved only eighty grams, the Government probably would not have required him to plead to a conspiracy involving the kilogram found in the apartment where co-defendant Eusebio Fernandez was arrested. In all likelihood, the Government would have allowed him to plead to a conspiracy to distribute the amounts involved in the transactions in which he directly participated or to substantive counts relating only to those sales. Because those three sales involved only 86.5 grams of heroin, Mr. Fernandez's base offense level would have been 24. In addition, in a proffer session, Mr. Fernandez would have admitted that there was a gun in the apartment from which he sold drugs and, therefore, two points would have been added for that specific offense characteristic. Thus, it is reasonable to conclude that the Government would have allowed Ramon Fernandez to plead to charges with an adjusted offense level of 26. With three points off for a timely acceptance of responsibility, the total offense level would have been 23. Since the defendant is in Criminal History Category I, his guideline range would have been 46 to 57 months.
This is the best estimation the Court can make of the guideline range the defendant would have faced had his lawyer pursued a course of cooperation early in the case. It is possible that it is slightly favorable to the defendant, but it is equally possible that he would have received a better offer. Faced with the necessity of fashioning a remedy for the violation of the defendant's right to effective assistance of counsel, the best the Court can do is to sentence him within this guideline range.
The Government argues that the Court cannot grant the defendant a downward departure from the guideline range simply because his counsel failed to provide adequate representation, citing the following language from the recent decision of the Second Circuit in United States v. Bicaksiz:
Ineffective assistance of counsel is not a basis for a downward departure at sentencing. A finding that a convicted defendant has received ineffective assistance of counsel necessarily calls into question the validity of the conviction. By contrast, the imposition of a sentence (with or without a downward departure) and the entry of judgment necessarily assumes the validity of the conviction. A downward departure on ineffective assistance grounds is impermissible because it simultaneously assumes the validity of a defendant's conviction and conspicuously calls its validity into doubt.194 F.3d 390, 398 (2d Cir. 1999), cert. denied, 120 S.Ct. 1175 (2000).
The Second Circuit, however, did not leave the defendant in that case without an effective remedy if he could prove his ineffective assistance of counsel claim. The court specifically noted that the defendant could pursue his ineffective assistance claim in a § 2255 proceeding.
In Bicaksiz the defendant, who was convicted after trial, claimed that his counsel had been ineffective in not advising him that, if he was convicted after trial, he would be subject to consecutive sentences on certain of the charges. He claimed that had he been aware of that fact he would have urged his attorney to seek a plea agreement that would not involve consecutive sentences. Had a § 2255 proceeding been pursued and the Court found for Bicaksiz, vacating his conviction would have provided him with an effective remedy. The Government and the defendant would have been in the same pre-trial posture they were in at the time of counsel's deficient performance. Thus, Bicaksiz would have had the opportunity to have his lawyer urge the Government that it could avoid a trial by allowing him to plead to charges that did not involve consecutive sentences.
The remedy that the Court is fashioning in this case is consistent with Bicaksiz because the Court is not granting a downward departure but is simply crafting a remedy that will result in the defendant being sentenced within the guideline range that he would have been facing if he had had effective counsel.
Although counsel raised this issue in a request for a downward departure, the relief the Court will provide is exactly the same as the Court would have provided had sentence been imposed on Ramon Fernandez's plea and a § 2255 petition then been filed. The violation of his right to counsel here would clearly entitle the defendant to have his conviction vacated. But, unlike the situation in Bicaksiz, simply vacating the defendant's plea in a § 2255 proceeding would not put the parties in the position that they were in shortly after the defendant's arrest. For the reasons discussed above, the only meaningful remedy for the violation of Fernandez's right to counsel would be an order setting aside the conviction and ordering the release of the defendant unless within 30 days the Government offered him a plea agreement that would result in a stipulated guideline range of 46 to 57 months.
Since sentence has not yet been imposed, it is not in anyone's interest to make the parties go through a meaningless sentencing, which would be followed by a predetermined § 2255 proceeding. If for some reason, either party believes that there is some reason to follow this alternative course, the Court will consider it on the date of sentencing.
It is important to reiterate that the sentence to be imposed in this case will not involve a downward departure from a guideline range for the appropriate offense of conviction. Rather, Fernandez will be sentenced within the guideline range appropriate for the offenses to which the Court finds he would have pleaded if he had had effective counsel.
This ruling should not be read as holding that a defendant can establish a right to a downward departure by alleging that his lawyer failed to explain to him early in the case the importance of cooperation. To obtain relief, a defendant has to prove that he was prejudiced by this failure or that the lawyer's failure may have been the result of a conflict of interest. See United States v. Alli-Balogun, No. 96 Civ. 5949, 1998 WL 42570 (S.D.N Y Feb. 4, 1998); Rivera v. United States, 893 F. Supp. 1238 (S.D.N.Y. 1995).
The Court recognizes that the standard announced here is one that has not been the subject of any prior court rulings. Thus, the ruling of the Court should not be construed as a finding that the defendant's counsel consciously undertook a course of conduct he knew to be detrimental to the rights of his client. Having practiced as a criminal defense lawyer in earlier years, the Court recognizes that there are a number of reasons why criminal lawyers working in the same case are often reluctant to rock the boat by having their client take a position adverse to the other defendants. However, the advent of the Sentencing Guidelines now makes it mandatory that every defendant be advised at an early stage that cooperation with the Government may be the only course that can substantially reduce the sentence that will ultimately be imposed.
SO ORDERED.
Dated: New York, New York May ___, 2000