Sunday, February 12, 2012

Five and Time

United Sates v. Culbertson, 10-1766-cr (2d Cir. February 3, 2012) (Hall, Lynch, Lohier, CJJ)

Defendant Culbertson was arrested during an investigation into the importation of heroin and cocaine into the United States from Trinidad, after his girlfriend was arrested at the airport. He was charged with offenses that, based on the drug type and quantity alleged - 100 grams or more of heroin and five kilograms or more of cocaine - carried a ten-year mandatory minimum.

Culbertson was a difficult guy - he went through so many appointed attorneys that the district court finally forced him to go pro se- and consistently disputed the quantity of drugs attributable to him. At his plea, Culbertson insisted that the offense involved only “three kilos” of cocaine - that is what he said his girlfriend had been recruited to import, even though she in fact had more than five in her luggage - and said he did not know anything at all about any heroin. He then asked for a Fatico hearing on drug quantity, but when the government said that it would be relying on the girlfriend’s five kilograms, the district court denied the request “as moot.” Thus, although Culbertson’s guidelines were 57 to 71 months - the government gave him “minimal” role - the court sentenced him to the ten-year mandatory minimum.

On appeal, the circuit vacated the conviction, finding that the guilty plea did not have an adequate factual basis as to drug quantity. In a drug conspiracy, the plea allocution must establish that drug type and quantity that trigger the statutory penalties were at least reasonably foreseeable to the co-conspirator defendant. But, typically, where a defendant has explicitly challenged the statutorily prescribed drug type or quantity, the circuit has concluded that the record of the plea did not provide an adequate factual basis to enter judgment against the defendant on the charged crime.

This case was no different. Culbertson specifically declined to plead guilty to the five-kilogram quantity. His “persistent disavowal of responsibility for any amount in excess of three kilograms of cocaine compels us to conclude that the District Court lacked a factual basis for his plea.” Nor was this cured by the government’s proffer; it is “error” for the court to find that a factual basis exists “when the defendant actively contests a fact constituting an element of the offense.”

Finally, the error was not harmless. Disputes over drug quantity in a plea allocution are “presumptively significant” given the impact of quantity on the length of the term of imprisonment. Accordingly, the court vacated the judgment of conviction.

The circuit also examined the district court’s handling of Culbertson’s repeated requests for a change of counsel. It is not unreasonable for a court to “require an intractable defendant either to proceed with the current appointed lawyer, or to proceed pro se.” Nevertheless, in such situations, before forcing a defendant to go pro se, the court must undertake a Faretta colloquy to ensure that a defendant poing pro se “knows what he is doing” and makes the choice “with his eyes open.” Accordingly, here, on remand, if the court still deems it appropriate to deny Culberton’s request for new counsel, it must follow the Faretta procedure.

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