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U.S. v. TAVAREZ

March 28, 2001

UNITED STATES OF AMERICA,
v.
JOHNNY TAVAREZ, DEFENDANT.



The opinion of the court was delivered by: Shirley Wohl Kram, U.S.D.J.

MEMORANDUM OPINION AND ORDER

Defendant Johnny Tavarez ("Tavarez") moves to (1) reconvene the hearing on his motion to withdraw his guilty plea; (2) have a new Pre-Sentencing Report prepared; (3) recalculate his Sentencing Guidelines; and (4) asserts an ineffective assistance of counsel claim. For the reasons set forth below, Tavarez's motion is denied.

BACKGROUND

On September 26, 1996, a federal grand jury sitting in the Southern District of New York returned a one-count indictment charging Tavarez with conspiracy to distribute and to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. S 846.

Since the time of his indictment Tavarez has been represented by a series of attorneys. After being initially represented by David Touger, Esq., Tavarez retained Oliver Storch, Esq. ("Storch") in or about January 1997. In or about July 1997, Tavarez fired Storch and hired Jeffrey Cohen, Esq. ("Cohen"). On January 14, 1999, Tavarez fired Cohen and retained Ivan Fisher, Esq. ("Fisher"). On February 16, Tavarez fired Fisher and retained Gail Laser, Esq. Finally, in April 2000, again unhappy with his attorney, Tavarez requested and was granted permission to retain his most recent counsel, Ramon Pagan, Esq. ("Pagan").

In or about June 1998, the Court learned that Cohen — who was then representing Tavarez — believed that he was the target of a criminal investigation by the Government. The Court promptly held what is commonly know as a "Curcio" hearing to fully inform Tavarez of Cohen's potential conflict of interest. See United States v. Curcio, 680 F.2d 881 (2d Cir. 1982). On June 17, 1998, after being advised of the potential conflict, Tavarez indicated that he wished to retain private counsel to discuss the issue further. See Transcript of Hearing, held on June 17, 1998 at 10-11. On June 24, 1998, Tavarz informed the Court that he consulted with Ben Brafman, Esq. and Gerry Shargel, Esq. Both attorneys, however, declined to represent Tavarez. See Transcript of Hearing, held on June 24, 1998 at 3-4. The Court then appointed Charles Lavine, Esq ("Lavine"), pursuant to the Criminal Justice Act, to advise Tavarez about Cohen's potential conflict of interest. See id. at 5-6.

On July 1, 1998, with both Cohen and Lavine present, the Court continued its inquiries of Tavarez regarding Cohen's potential conflict of interest. See Transcript of Hearing held on July 1, 1998 ("7/1/98 Tr."). Tavarez acknowledged that he had consulted with Lavine about the dangers of a potential conflict of interest. See id. Lavine confirmed the consultation, indicating that he discussed with Tavarez "the potential danger to him of what could happen if his attorney believes that he is being investigated and the attorney then would, for whatever reason, decide not to represent his client as zealously as the client deserves Id. at 10. Tavarez also articulated in his own words what he believed Cohen's potential conflict of interest to be: "[I]f Mr. Cohen should believe that he is under investigation, he might be tempted to behave in a way towards the government that would not be in your benefit [sic] interest, that this is a possibility." Id. at 6. Tavarez stated that he understood Cohen's potential conflict of interest and needed no further explanation from the Court or Lavine. See 7/1/98 Tr. at 8. Nonetheless, Tavarez requested, and the Court granted, an additional week to consult with other counsel on the issue. See id. at 11. The Court explained to Tavarez that at the next conference, he would have to decide whether he was going to proceed with Cohen or retain new counsel.

On July 8, 1998, the Court again inquired whether Tavarez had considered the conflict of interest issue fully and asked for his decision. See Transcript of Curcio Hearing held on July 8, 1998 at 2. Tavarez indicated that, after having considered how Cohen's representation of him might be compromised by the potential conflict of interest, he wished to proceed with Cohen as his attorney and waived his right to conflict-free counsel. See id.

On July 8, 1998, Tavarez pleaded guilty to the charge against him. See id. Before accepting Tavarez's guilty plea, the Court, pursuant to Federal Rule of Criminal Procedure 11, conducted an inquiry of Tavarez in order to ensure that the guilty plea was made knowingly and voluntarily. The Court specifically asked Cohen whether he had advised Tavarez about the Sentencing Guidelines. See Order dated July 19, 2000 at 13. Cohen stated that he explained to Tavarez how a sentencing range would be arrived at after taking into consideration certain facts of Tavarez's case. See id. When the Court asked Tavarez whether Cohen had imparted this information, he responded, "yes." See id. at 14.

The Court also read the indictment to Tavarez who indicated that he understood it, and informed Tavarez that he could receive a sentence of up to life imprisonment if he plead guilty. See id. The Court then asked Tavarez whether anyone had promised or predicted what his sentence would be and whether he was coerced or threatened to enter a plea of guilty. See id. After Tavarez stated that nobody had done so the court explained to Tavarez, that in any event, no such promise or prediction would bind the Court and that he may receive the maximum of life imprisonment. Tavarez again indicated that he understood. See id.

On May 23, 2000, almost two years after his guilty plea, Tavarez filed a motion, pursuant to Federal Rule of Criminal Procedure 32(e), to withdraw his guilty plea. Tavarez's grounds for withdrawal were (1) that Cohen failed to advise him on how the Guidelines would impact his sentence, see Affidavit of Johnny Tavarez, dated May 23, 2000 ("Tavarez Aff."), and (2) that the Court did not sufficiently investigate Cohen's potential conflict of interest. See id. ¶¶ 7, 20.

On June 21, 2000, the Court held a hearing in connection with Tavarez's motion to withdraw his guilty plea. At the hearing, Lavine testified that he discussed at length the potential conflict of interest issue with Tavarez. See Transcript of Hearing, held on June 21, 2000 at 15-18. Lavine testified that he informed Tavarez that if Cohen believed he was being investigated by the Government, he would have an incentive to cooperate, which may distract him from Tavarez's representation or even put their interests at odds. See id. at 16-17. Lavine also explained to Tavarez that he had a constitutional right to an attorney with no potential or actual conflict of interest and that he should contemplate retaining such an attorney. See id. at 17. Finally, Lavine testified that he "had no doubt whatsoever" about Tavarez's ability to understand the potential conflict of interest. Id. at 22.

As to whether Tavarez was informed as to how the guidelines would effect his sentence, Lavine also recalled informing Tavarez about sentencing enhancements for firearm possession, his role in the offense, perjury, and a loss of a downward adjustment for acceptance of responsibility. Id. at 11-12, 23. Similarly, Lavine testified that he informed Tavarez of the maximum and minimum penalties associated with the crime with which he was charged. See id. at 22. Storch also testified during the hearing that he informed Tavarez that he could receive sentencing enhancements for perjury, see id. at 121, 123-124, and possession of a firearm, see id. at 119, and that the charge against Tavarez carried a minimum penalty of ten years imprisonment and a maximum penalty of life imprisonment. See id. at 116.


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