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.
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.
On July 19, 2000, this Court held that Tavarez's claims were "utterly
unpersuasive and belied by the record in this case." See Order dated July
19, 2000 at 11. First, the Court found that Tavarez fully understood
Cohen's potential conflict of interest
and that his waiver of his right
to conflict-free counsel was knowing and voluntary. See id. at 12.
Second, the Court found that Tavarez's guilty plea was entered knowingly
and voluntarily. See id. at 15. The Court based the finding upon, inter
alia, Tavarez's plea allocution, his contradictory affidavit which
declared both that Cohen did not inform him what his base offense level
would be and that Cohen advised him that his adjusted base offense level
would be 21, see Tavarex Aff. at ¶¶ 9, 13, Lavine and Storch's "very