buy, and that the prosecutor was likely, instead, to ask the court to include the February 27th buy as "relevant conduct," and (2) that, under the Sentencing Guidelines, a defendant pleading guilty often retains the right to a hearing challenging whether "relevant conduct" includes conduct other than the conduct of the conviction, such as, here, conduct resulting from an agent luring the defendant into a drug sale atypical of the defendant. Counsel therefore failed to convey this information to Mr. Smith. Indeed, counsel informs the court that defendant's decision to reject the plea offer was made on the basis of a set of information that included the counsel's allegedly incorrect statement that if he accepted the plea, his sentence level would necessarily be determined in large part by the large amount of cocaine from the February 27th buy.
I conclude that on the record currently before me, it is impossible to determine whether or not defense counsel's failure to advise Mr. Smith of the Fatico hearing option violated Mr. Smith's Sixth Amendment rights, because it is unclear whether, under the terms of the initial plea bargain offer, a Fatico hearing of the type defense counsel currently envisions ever really was available to Mr. Smith.
The government argues that, "as a practical matter, the Government would never have accepted a pre-indictment plea from the defendant that did not also include a stipulation to the entire amount of the cocaine involved in this case -- an amount that would have to have included the February 27, 1991 transaction." September 14, 1992 letter, Government to Court at 2. Defense counsel takes issue with this assertion, however, arguing that despite the statement in the government's March 27, 1991 plea offer letter that the amount involved in the various transactions exceeded 25 grams, the government did not request a stipulation to that effect and would not have required Mr. Smith to stipulate to that amount in order to accept the plea bargain. He thus argues that the Fatico option would have remained had Mr. Smith accepted the pre-indictment plea offer. September 22, 1992 letter, Defense Counsel to Court. Defense counsel's position is undercut somewhat by his initial letter to the court in which he stated that his error lay in not "thinking of or suggesting to Mr. Smith a counter-offer of pleading to the proposed charge while reserving the issue of the February 27th transaction for a Fatico hearing." November 1, 1991 letter, Defense Counsel to Court at 3 (emphasis added). This initial view indicates that defense counsel did not understand the original offer as allowing for a Fatico hearing, and buttresses the government's assertion that such a deal was unlikely.
As this exchange of letters demonstrates, whether the government's original plea offer precluded the option of a Fatico hearing is far from clear, and the record I have before me -- consisting almost exclusively of after-the-fact assertions regarding what would have happened had Mr. Smith accepted the plea -- is insufficient for me to resolve this issue. Consequently, because I must determine whether there ever was a Fatico hearing option in order to rule on Mr. Smith's Sixth Amendment claim, I conclude that I need additional information regarding plea bargaining procedures. For example, did the typical plea agreement in the Southern District of New York in March 1991 for offenses such as the one here under consideration require a defendant to stipulate to a particular amount of cocaine? Have other defendants in the plea bargaining process requested the right to leave open the Fatico hearing option for part of their conduct, after acceding to a pre-indictment plea to other conduct? If so, what was the government's response? Have any defendants who did not raise the issue during plea negotiations received Fatico hearings to contest the quantity of cocaine after accepting pre-indictment plea offers? Once I have received responses to these questions, and any other information counsel think is relevant to resolving the issue at hand, I will be in a better position to determine whether Mr. Smith's received inadequate assistance of counsel. If I so conclude, I will address at that point the appropriate remedy.
The court adheres to its earlier ruling that 21 U.S.C. § 845a(a) imposes a mandatory one year minimum sentence, and rejects Mr. Smith's contention that the government violated his Brady rights. The court finds that the current record does not allow for a conclusion regarding whether defendant received ineffective assistance of counsel in connection with the initial plea offer. Counsel for the respective parties should confer with each other and, by July 2, 1993, submit to chambers their respective views on the best manner in which to supplement the record to respond to the questions raised in this opinion.
DATED: New York, New York
June 11, 1993
Kimba M. Wood
United States District Judge