United States District Court, Southern District of New York
July 3, 1991
UNITED STATES OF AMERICA
RAMON DIAZ, DEFENDANT.
The opinion of the court was delivered by: Kram, District Judge.
MEMORANDUM OPINION AND ORDER
Defendant in this criminal case has renewed his application
to withdraw his guilty plea.
Defendant Ramon Diaz, along with his codefendant Carlos
Selman, arranged to purchase several kilograms of cocaine from
an informant working for the Drug Enforcement Administration
("DEA"). At the time the deal was to occur, Diaz displayed
approximately $40,000 in cash to the informant. The DEA agents
then identified themselves and approached Diaz and Selman to
arrest them. Diaz was arrested and was charged with conspiracy
to possess with intent to distribute approximately two
kilograms of cocaine and with assault upon a federal
On the day that trial was to commence, April 16, 1990,
shortly after his codefendant pled guilty to the cocaine
conspiracy count, Diaz also entered a plea of guilty to that
same count. During the course of his plea allocution, Diaz was
advised of his constitutional rights (Transcript of April 16,
1990 afternoon proceedings (hereinafter
"Plea Tr."), 3-5); he was told that his case was governed by
the Sentencing Guidelines and that the Court retained the
discretion to impose a sentence anywhere within the statutory
range (Plea Tr. 5); he was advised of the minimum ten-year
sentence that would be imposed (Plea Tr. 7); and he provided
the Court with a statement in his own words setting forth the
factual basis for this plea of guilty. (Plea Tr. 10). With
respect to Diaz's attorney at the time, David Segal, the
following colloquy took place between Diaz and the Court:
THE COURT: You are represented by Mr. Segal?
Defendant DIAZ: (Through Spanish Interpreter) Yes.
Q. You have discussed this indictment with him?
Q. You have discussed with him the particular
count to which you are pleading guilty?
Q. Are you satisfied with Mr. Segal's
representation of you?
A. (In English) Yes.
Plea Tr. 3. With respect to the knowing and voluntary character
of his plea, Diaz was examined by the Court as follows:
THE COURT: How old are you, Mr. Diaz?
Defendant DIAZ: 30.
Q. How many grades did you complete in school?
A. (In English) Eleven.
Q. With the help of the interpreter, do you
understand what is happening here today?
A. (In English) Yes.
Q. Have you taken any drugs, medicine, pills, or
had any alcoholic beverages in the past 24 hours?
A. (In English) No.
Plea Tr. 2. The Court further inquired of Mr. Diaz:
Q. You have received a copy of this indictment?
A. (In English) Yes.
Q. You have discussed that indictment with your
A. (In English) Yes.
Q. I want you to understand that count one, the
count to which you are pleading guilty, carries a
sentence of ten years minimum to life because of a
prior felony information filed, a $4 million
maximum fine, supervised release period of eight
years minimum to life maximum, $50 special
Do you understand that?
Q. Has anyone threatened you or forced you in any
way to plead guilty?
Plea Tr. 7-8. The Court found Diaz competent to plead and
accepted his guilty plea. Id. at 11.
Several months later, Diaz discharged Segal as his counsel
and retained Charles Theofan, Esq. Theofan approached the
United States Attorney's Office with Diaz's offer of
cooperation. At a meeting between Diaz, DEA Special Agent Roger
Bach and an Assistant United States Attorney, Diaz signed a
proffer agreement (the "Agreement," dated July 25, 1990,
attached as Exhibit A to Government Memorandum of Law in
Opposition). The Agreement provided that statements made by
Diaz in the course of meetings with the Government for the
purpose of obtaining leads to other evidence would not be used
by the Government in its case-in-chief in connection with any
prosecution or sentencing of Diaz, except in a prosecution for
false statements, obstruction of justice or perjury. ¶¶ 1-2.
During the course of the ensuing proffer session, Diaz admitted
to extensive prior involvement in cocaine trafficking,
including having trafficked in approximately 20-30 kilograms of
cocaine per week for the past three years. Affidavit of Special
Agent Roger Bach, attached as Exhibit B to Government
Memorandum of Law in Opposition, at ¶ 4. However, Diaz was
unable to provide specific information identifying other
persons involved in drug
trafficking, insisting that he would have to be let out of jail
in order to "make cases against other dealers." Id. ¶ 5. The
government concluded that it would not enter into a cooperation
agreement with Diaz.
On the date that sentencing was to occur, in November of
1990, Diaz presented to the Court ex parte a handwritten letter
indicating that he wished to withdraw his guilty plea. The
thrust of his letter was that he believed that he had merely
brought together two informants for $200.00, and that he did
not think he should be facing 10 years to life for doing so.
Letter from Ramon Diaz to the Court [undated] (hereinafter
"Diaz Letter"), attached as Exhibit "C" to Government
Memorandum of Law in Opposition. He also expressed his
intention to replace Mr. Theofan with a third attorney.
Through Mr. Theofan, Diaz submitted a motion to withdraw his
guilty plea, based on his sworn statement that he was the
victim of entrapment. Affidavit of Ramon Diaz, dated January
24, 1991, ¶¶ 3-7. He also alleged that his defense was
compromised by the fact that his first attorney, David Segal,
had also represented one Juan Beltre in an unrelated state
court matter.*fn2 Diaz believed Beltre to be an informant. Id.
¶ 8. Diaz explained: "I wanted very much to go to trial but Mr.
Segal discouraged me." Id. ¶ 9. Upon consideration, the Court
denied the motion. See Order of February 6, 1991.
Diaz then replaced Theofan with a third attorney, Robert
Simels. In the present motion brought on by his new counsel,
Diaz now focuses on the alleged dual representation engaged in
by the first attorney, whereby Segal counseled Diaz to plead
guilty and not to go to trial. Id. ¶ 10. Diaz also alleges that
Segal "initially discouraged" him from cooperating with the
government, id. ¶ 11, presumably in order to protect his other
client, Beltre, from Diaz's incriminating information.
On May 29, 1991 the Court conducted a hearing and heard
testimony from Mr. Segal, called as an adverse defense witness,
and from defendant Diaz.
Under Fed.R.Crim.P. 32(d), "the court may permit withdrawal
of the plea [of guilty] upon a showing by the defendant of any
fair and just reason." The burden is on the defendant to show
valid grounds for withdrawal, taking into account any prejudice
to the government. United States v. Quinones, 906 F.2d 924, 928
(2d Cir. 1990); see United States v. Marquez, 909 F.2d 738, 740
(2d Cir. 1990); United States v. Figueroa, 757 F.2d 466, 475
(2d Cir. 1985). There is no absolute right to a withdrawal;
rather the defendant has the burden of showing that valid and
adequate grounds exist for the granting of this privilege. U.S.
v. Burnett, 671 F.2d 709, 712 (2d Cir. 1982); U.S. v. Saft,
558 F.2d 1073, 1083 (2d Cir. 1977). The motion is addressed to the
broad discretion of the trial court. Saft, 558 F.2d at 1082.
When the motion to withdraw a guilty plea is based on
defendant's claim that he received ineffective assistance of
counsel, he must (1) overcome a strong presumption that his
counsel's conduct was reasonable and show that his counsel's
representation fell below "an objective standard of
reasonableness" under "prevailing professional norms"; and (2)
"affirmatively prove prejudice," that is, show that "but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland v. Washington,
466 U.S. 668, 687-88, 693-94, 104 S.Ct. 2052, 2064-65, 2067-68, 80
L.Ed.2d 674 (1984); see Hill v. Lockhart, 474 U.S. 52, 106
S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); see also United States
v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990); United States v.
Reiter, 897 F.2d 639, 644-45 (2d Cir. 1990); United States v.
Bari, 750 F.2d 1169, 1182 (2d Cir. 1984), cert. denied,
472 U.S. 1019, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985).
In cases of alleged conflict of interest, as here, the Second
Circuit has stated that a defendant who wishes to withdraw his
guilty plea must prove that "`his counsel actively represented
conflicting interests' and that `an actual conflict of interest
adversely affected his lawyer's performance.'" United States v.
Contractor, 926 F.2d 128, 134 (2d Cir. 1991) (quoting Cuyler v.
Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d
333 (1980)). The Court continued: "the defendant must identify
an actual conflict of interest. Allegations of wrongdoing alone
cannot rise to the level of an actual conflict unless the
charges have some foundation." Id. (quoting United States v.
Jones, 900 F.2d 512, 519 (2d Cir.) (citations omitted), cert.
denied, ___ U.S. ___, 111 S.Ct. 131, 112 L.Ed.2d 99 (1990)).
1. Dual Representation
Defense counsel has an ethical obligation to avoid dual
representation or, if the dual representation is justified, to
notify the clients with differing interests of the dual
representation, give them the opportunity to evaluate the need
for representation free of any potential conflict, and to
obtain other counsel if they so desire. ABA Code of
Professional Responsibility EC 5-15, 5-16 (1976). The attorney
must fully explain the implications of the dual representation
and obtain consent of both clients. EC 5-16.
Attorney Segal has known Diaz and his family since 1976 or
1977, and has represented Diaz since the early 1980s.
Transcript of May 29, 1991 Hearing (hereinafter "Hearing Tr.")
37-41. Segal testified that he was unaware of his other
client's possible involvement in the instant offense until Diaz
himself raised it in March of 1990. He testified that when Diaz
was first arrested in January, 1990, Diaz told him that there
were a "number of people in the apartment besides himself," and
that two of them had been released from DEA headquarters; but
Diaz had not identified either of those individuals to him by
name at the time of their initial meeting on January 16, 1990.
Id. at 9. Segal testified that he only became aware that his
client Beltre was one of the two individuals who had been
released when Diaz told him so, in "late February or sometime
in March" of 1990. Id. 6, 12. Segal indicated that Diaz was
apparently already aware that Beltre was also his client, that
Segal confirmed the same with Diaz (id. 23, 28, 47), and that
they discussed it on several occasions thereafter. Id.
Segal testified that Diaz never implicated Beltre to him as
a participant of the drug deal that took place in the apartment
on the day of the arrest. Id. 64. According to Segal, Diaz
never indicated to Segal during their association that Diaz
"had a problem" with Segal's representation of both Diaz and
Beltre. Id. 48. Segal further testified that when Diaz told him
of Beltre's involvement in the instant offense, Diaz insisted
to Segal that Beltre was a government informant. Id. 9, 24-25,
47-48. Segal told Diaz that this was not the case. Id.
According to Segal, he counseled Diaz against using an
entrapment defense at trial because he was familiar with Diaz's
prior narcotics history and with his demeanor, and was
concerned that these factors would make it impossible to
persuade a jury of such a defense. Id. 57.
In the affidavit accompanying the motion, Diaz alleges that
Segal's dual representation was brought to Diaz's attention in
approximately in March of 1990, about a month before he pled
guilty.*fn3 Id. ¶ 5-10. Contrary to Segal's testimony, Diaz
suggested at hearing, although it was not entirely clear, that
as early as the day after he was arrested, on January 16, 1990,
that he had told Segal that Beltre was among several people
present in the apartment where the drug deal allegedly took
place. Hearing Tr. 79. He later testified that he had told
Segal that Beltre was the owner of the money involved in the
transaction "always, from the first day of the arrest I told
him." Id. at 96. Diaz also contradicted Segal's testimony by
stating that Segal
never told him that he represented Beltre. Id. 93. Diaz also
testified that Segal told him that "they had tapes" (id. 83),
i.e., that Segal had misrepresented to Diaz that the government
possessed undercover tape recordings which would scuttle an
entrapment defense, in order to dissuade him from going to
trial and implicating Beltre.*fn4
The Court finds that Segal is a credible witness and that
Diaz is not. While testifying, Segal's demeanor was appropriate
to the situation; his testimony was internally consistent and
for the most part complete. Diaz, on the other hand, impressed
the Court as being disingenuous. Many of his answers were
non-responsive to counsels' questions (see e.g., Hearing Tr.
78, 79), and he ignored directives of the Court. Id. at 89.
When confronted with his own words during the plea allocution,
wherein he had sworn under oath that he was satisfied with
Segal's representation of him, he sprayed accusations of
coercion not only against Segal but also, for the first time,
against the prosecutor:
The GOVERNMENT: Do you remember that the judge
asked you, `Mr. Diaz, has anyone made any promise,
other than the agreement that was just described
to me, to induce you to plead guilty,' and you
Mr. DIAZ: You know that that day I had to do what
you manipulated Segal to do with me.
Hearing Tr. 96-98; see also id. 107.
The Court disbelieves Diaz's account of the events entirely.
The Court finds that Segal did not know that Beltre was at the
apartment on the night of Diaz' arrest until some months
afterwards; that he discussed the same with Diaz on several
occasions thereafter, with no statement from Diaz that he
objected to Segal's representation of them both; and that Segal
had reasonably surmised, from Beltre's immediate release from
DEA headquarters and Segal's belief that Beltre was not an
informant, that Beltre must not have been involved in the
offense conduct alleged in this indictment. While the Court
does not specifically approve Segal's handling of the
situation, there is insufficient evidence on the record for
Diaz to overcome the strong presumption that Segal's
representation was objectively reasonable. Strickland, 466 U.S.
at 687-88, 104 S.Ct. at 2064-65. Diaz has not carried his
burden of proving that Segal "actively represent[ed]
conflicting interests" to the detriment of his client,
Contractor, 926 F.2d at 134, and accordingly his renewed motion
to withdraw his plea must be denied.
2. Inadequate Trial Preparation
Diaz's related but distinct allegation is that Segal
inadequately prepared for trial. Diaz asks the Court to infer
from Segal's alleged unpreparedness that Segal intended all
along to force Diaz to plead, and that he never intended to
take Diaz to trial. Hearing Tr. 77.
Segal testified, and Diaz does not dispute, that prior to the
trial date Segal interviewed a woman named "Norris," who was
alleged to have been at the apartment on the night of the
arrest. Id. 12, 18, 30-31, 50-51. Segal was unable to recall
the woman's name (id. 18) but did remember that the evidence
she was able to provide only served to implicate Diaz. Id. 12,
51. At Diaz's family's request, Segal reinterviewed Norris,
with the same result as the first time. Id. 51, 67-68. He did
not interview any of the other persons alleged to have been at
the apartment that night. Id. 30-31, 53, 65-66.
The Court will not permit Diaz to withdraw his plea on the
basis of inadequate trial preparation. Segal's failure to
interview these individuals could be explained by the fact that
the one witness to whom Diaz particularly directed his
attention, and thus presumably the most helpful one available,
implicated Diaz in the offense.*fn5 The Court passes no
judgment on the wisdom of Segal's method of trial preparation,
except to say that it was not unreasonable
under the circumstances. See Strickland, 104 S.Ct. at 2064.
Even if inadequately explained, Segal's failure to conduct
particular pretrial investigations is an insufficient basis
upon which to allow the withdrawal of a plea unless defendant
can demonstrate that counsel was "not fully informed of the
facts of the case to provide sufficient basis to create a
strategy and advise the client." United States v. Jackson, 89
Cr. 067 (SWK) (S.D.N.Y. June 20, 1990), Slip Op. at 7
(available at 1990 WL 88886) (citing U.S. v. Messer,
647 F. Supp. 704, 708 (D.C.Mont. 1986)). Diaz supplies no evidence
to that effect. Under the circumstances, Diaz's allegations of
Segal's inadequate trial preparation cannot overcome the strong
presumption that Segal's representation of him was objectively
reasonable under prevailing professional norms. See Strickland,
466 U.S. at 687-88, 693-94, 104 S.Ct. at 2064-65, 2067-68.
3. Adverse Effect
Even if Diaz were able to show ineffective assistance by
reason of undisclosed dual representation and/or inadequate
trial preparation, he would be unable to demonstrate any
adverse effect upon himself. Diaz asserts variously that, but
for Segal's advice to plead guilty and not to cooperate, Diaz
would have either proceeded to trial on an entrapment defense
or sought a cooperation agreement with the Government. Diaz
Aff. 1/24/91 ¶¶ 8. However, in his most recent motion he seems
to have determined that it is not in his interest to go to
trial at this time because of the self-incriminating
information he gave at his post-plea proffer session.
Defendant's Memorandum in Support of Motion to Withdraw at 6-7.
He indicates that if this motion were granted and he were to
elect to go to trial and take the witness stand, he would want
the Court to preclude the government from introducing any
statements made in his proffer session.*fn6 Id. at 7.
The burden is on the defendant wishing to withdraw his plea
to "affirmatively prove prejudice." Strickland, 466 U.S. at
693, 104 S.Ct. at 2067. Nothing in the record indicates that
Diaz would proceed to trial if that evidence were admitted.
Accordingly, the Court has no basis for concluding that Diaz
has suffered an adverse impact as a result of Segal's advice,
even if that advice were found to be tainted by a conflict of
As for the possibility of cooperating, Diaz did at one point
seek to enter into a cooperation agreement with the Government.
After meeting with Diaz and holding a proffer session, the
Government declined his offer of cooperation, for the reasons
the magnitude of Diaz's prior narcotics
trafficking of which the Government had been
unaware, the vague and limited nature of the
information he provided concerning other
violators, his confrontational and conceited
manner which made him unsuitable to be an
informant or a witness, and the fact that as a
result of his incarceration, he was not in a
position to provide introductions to persons on
the street he knew only by nicknames.
Government's Memorandum in Opposition, at 3; see Bach Affidavit
It is apparent to the Court that none of these factors was
even remotely related to Segal's prior representation of Diaz,
nor would the outcome have been different had Diaz sought the
opportunity to cooperate earlier in 1990, during Segal's tenure
as his attorney. Moreover, at no time during the proffer
session did Diaz mention Beltre's name. Bach Affidavit ¶ 5.
Thus, Diaz can show no causal connection between Segal's dual
representation and Diaz's determination to plead and not to
seek a cooperation agreement.
Diaz cannot show on the facts as developed on this record
that any conflict of
interest by Segal, even if true, "adversely affected his . . .
performance." Contractor, 926 F.2d at 134. There is no valid
basis under this standard for permitting Diaz to withdraw his
guilty plea, and the Court will not permit him to do so.
Finally, Diaz alleges that his entire plea allocution was
tainted by the efforts of various persons to coerce him. At the
hearing on this motion he testified that he pled guilty "due to
the fact that I was being pressured too much," by Segal in
conjunction with the Assistant United States Attorney. Hearing
Tr. 83. Diaz testified that he had stated to Segal his
intention to tell the Court at his plea allocution that the
money involved in the drug transaction belonged to Beltre, but
that Segal advised him that if he told that to the judge "she
was going to give me more years than what he had told me."
Id. 87. He later embellished the reported conversation:
"[Segal] said to me that if I dared to sit here and say that
the money belonged to Juan Beltre, he was not going to
represent me". Id. 90.
Courts in this Circuit grant considerable deference to
apparently truthful statements made by a defendant in the
course of a plea allocution. See United States v.
Collado-Gomez, 674 F. Supp. 426, 428-29 (E.D.N.Y. 1987)
("Statements made during a plea are conclusive absent credible
reason justifying departure from their apparent truth"), aff'd,
854 F.2d 1315 (2d Cir. 1988). Diaz's recent claim that his plea
was not voluntary is simply not substantiated by the record. At
the time of his plea, Diaz had allocuted to this Court that no
one had threatened or forced him in any way to plead guilty.
Plea Tr. 8. As required by Rule 11 of the Federal Rules of
Criminal Procedure, he was questioned as to his understanding
of the charges and potential penalties, and was repeatedly
advised on the nature of the constitutional rights which he was
waiving. He was asked if he had any dissatisfaction with his
representation, to which he answered no. The Court inquired as
to any coercion, threats, promises or prophesies, which Diaz
also answered in the negative. Moreover, in his affidavit
accompanying this motion he conceded that he was aware of the
purported dual representation problem over one month before he
pled. Diaz Aff. ¶¶ 5-10. The defendant admitted to this Court
that he set up a drug deal and that he knew what he did was
wrong, and he apologized to the Court for having committed that
crime. Plea Tr. at 10. This Court, having had the opportunity
at that time to observe the defendant, found that he was
competent to plead, that he knew his rights, and that his plea
was a voluntary one. Plea Tr. 11. The Court then determined to
accept his guilty plea. Id.
Although the existence of a complete allocution is not
conclusive of voluntariness, it is to be granted some
importance, lest the allocution procedure mandated by Rule 11
be rendered a futile waste of time. Jackson, slip op. at 10
(citing Unger v. Cohen, 718 F. Supp. 185, 190 (S.D.N.Y. 1989)).
Under the present circumstances, there is simply no credible
evidence to support Diaz's newfound allegations of coercion.
Cf. United States v. Sanderson, 595 F.2d 1021, 1022 (5th Cir.
1979) (accusation of coercion and withholding of material
information by defense attorney merited hearing where appellant
made specific factual allegations supported by the affidavit of
another attorney who was present during the conversation)
(cited in Jackson, slip op. at 7).
In contrast to the facts in Sanderson, Diaz presents neither
a specific factual basis nor evidence other than his own post
hoc testimony to support his allegations of coercion. The Court
does not credit Diaz's account of the allegedly coercive
remarks by Segal just before the plea, to the effect that Segal
told Diaz that if Diaz implicated Beltre during his allocution,
the Judge would give him a longer sentence and Segal would not
represent him. Moreover, even if Segal did make such comments
as Diaz reports, they could be interpreted in at least three
different ways, two of which are entirely innocuous: (1) Segal
was warning Diaz not to lie under oath because he could receive
additional jail time for obstruction
of justice or perjury; (2) Segal was informing Diaz that if it
was his testimony that Beltre was involved in the transaction,
that Segal had a conflict of interest and could not represent
him; or, (3) more disturbingly, that Segal was threatening Diaz
in order to protect Beltre. See id. 93. Because Diaz's account
of these statements, even if credited, is so ambiguous, the
Court does not consider it to be any proof of coercion and
cannot accord it any weight.
Among all of Diaz's recent testimony in connection with his
repeated motions to withdraw his plea, the Court finds most
credible his untutored admission in his November, 1990 letter
to the Court that he thinks ten years is too long a sentence
for the crime he committed. The fact that a defendant may have
a change of heart is simply not a sufficient basis to withdraw
a plea made in open court. Figueroa, 757 F.2d at 475.
Upon considering defendant's affidavits, testimony, and other
evidence in this matter as well as governing legal principles,
the Court concludes that defendant Diaz has shown no "fair and
just reason" for the Court to permit him to withdraw his guilty
plea. Accordingly, his renewed motion for withdrawal is
For the aforementioned reasons, the Court denies Diaz's
second motion to withdraw his guilty plea.