The opinion of the court was delivered by: KIMBA M. WOOD
Defendant asserts that his Sixth Amendment right to counsel and his Fifth Amendment rights under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) were violated during the pre-indictment plea negotiation process. Defendant also asks this court to reconsider its previous decision that 21 U.S.C. § 845a(a), which provides enhanced penalties for drug offenses that occur near schools, carries a mandatory minimum one year sentence. For the reasons stated below, the court finds that defendant's ineffective assistance of counsel claim warrants further factual investigation to determine both whether he received ineffective of counsel and, if so, whether he suffered prejudice due to that ineffective assistance. Regarding defendant's other claims, however, the court adheres to its earlier decision that 21 U.S.C. § 845a (a) imposes a mandatory one year minimum sentence, and the court rejects defendant's assertion that the government violated his Brady rights by not giving him allegedly exculpatory material prior to his indictment.
This case results from an investigation of postal employees, who allegedly obtained small amounts of cocaine for personal use, after work, at Clancy's Bar, near their postal station on Manhattan's Upper East Side. Mr. Smith and his friend Clovis Perkins spent evenings at Clancy's Bar. They both had a cocaine habit, and, at Clancy's Bar, Mr. Smith would occasionally sell Mr. Perkins small amounts of cocaine (one or two grams), which he obtained either from others in Clancy's Bar or from a source in Brooklyn.
In late 1990, Mr. Perkins, a Postal Service employee, needed to extricate himself from problems with his employer. He consequently introduced undercover Postal Service Inspectors to Mr. Smith. After accepting a beer from an inspector, Mr. Smith responded to the inspector's request for cocaine by obtaining slightly less than one gram of cocaine for the inspector from someone else in the bar. Six evenings later, the same undercover agent, along with another man, approached Mr. Smith in Clancy's Bar and asked him for two grams of cocaine. Mr. Smith said he had no cocaine on him, and that he was waiting there to meet a lady friend. They asked him to go to Brooklyn to get the cocaine, as a favor, because they were friends of Perkins, and Mr. Smith did so. He sold them slightly less than one and one-half grams of cocaine. He also made two small sales to undercover agents in Clancy's Bar. The total amount of cocaine he had sold to investigators/informants through that point, 4.02 grams, would have set Mr. Smith's Base Offense Level under the Sentencing Guidelines at 12 (which pertains to any amount of cocaine less than twenty-five grams).
On February 22, 1990, the undercover agent, seeking to identify Mr. Smith's source, sought a much larger transaction with Mr. Smith; he decided to try to buy half an ounce from him. (Tr. 136). He approached Mr. Smith, who was with a date, offered him a drink, said he was out of work, and that he wanted half an ounce of cocaine. (Tr. 19-20). Mr. Smith told him that he sold cocaine only in small amounts, as favors for people, that he had never dealt with that much cocaine, and that he did not even know what the price would be for half an ounce. Mr. Smith did agree to check with his source, and when he did so, he learned that he could not buy packages any larger than three grams.
A few days later, the Assistant United States Attorney investigating the case suggested to the undercover agent that he attempt to buy one ounce -- twice the amount of cocaine that the agent had planned to buy from Mr. Smith -- because the higher quantity would put Mr. Smith into a higher offense level under the Sentencing Guidelines. The agent acceded to the prosecutor's suggestion. He asked Mr. Smith to provide him with one ounce and offered to drive Mr. Smith to the source's Brooklyn location. On February 27, 1991, the agent drove Mr. Smith to the source. Mr. Smith waited over an hour for his source to put together many small bags of cocaine. Upon emerging with the cocaine, Mr. Smith was arrested. When agents searched the source's premises, they found, consistent with Mr. Smith's testimony that he did not deal in large amounts of cocaine, that this "buy" had cleaned out the source's supply.
B. Pre-Indictment Plea Negotiations
According to defense counsel, the government clearly had a strong case against Mr. Smith. There were tape recordings of the "buys," and defense counsel expected supporting testimony from the undercover agents and informants. Thus, he advised Mr. Smith to accept the government's first pre-indictment plea offer, which was based on the government's erroneous belief that the transactions involved cocaine with a combined weight of less than 25 grams; the consequent base offense level would be 14, prior to any acceptance of responsibility reduction. See March 18, 1991 letter, Government to Defense Counsel. Compared with the alternative promised by the Government -- an indictment including a schoolhouse count, which carries a mandatory one year minimum sentence -- accepting the government's offer seemed a prudent course, even though the government would require a stipulation to the applicability of Section 2D1.2(a)(1) of the Guidelines, which adds an additional two points for drug offenses occurring near a protected location (schoolhouse). According to defense counsel, Mr. Smith seemed prepared to accept his advice. Nov. 1, 1991 letter, Defense Counsel to Court.
Approximately ten days after receiving the government's initial offer, however, defense counsel received a second letter, with a superseding offer from the government. The second letter advised defense counsel that, in fact, the amount of cocaine involved in the transactions exceeded 25 grams, and that the consequent offense level would be 16 -- rather than 14 -- before the acceptance of responsibility reduction. This information changed defense counsel's view of the prudence of accepting the one-count plea bargain. Unlike the first offer (which would have made Mr. Smith eligible for a split sentence -- a base offense level of 14, which would be diminished by two points for acceptance of responsibility), the second offer required a minimum of fifteen months in prison (a base level of 16, minus two points for acceptance of responsibility). This change -- to a plea offer requiring a minimum of 15 months in prison -- devalued the offer in defense counsel's mind because it rendered valueless the dropping of the schoolhouse count (the only effect of which is to require a one-year minimum sentence). As defense counsel put it, "there appeared to be no clear benefit to pleading guilty as long as the large February 27th transaction had to be contested and as long as the government's position was that more than one year had to be served in any event." Id. at 2.