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February 14, 2002


The opinion of the court was delivered by: David G. Larimer, Chief United States District Judge.


Pending before the Court is defendant Leon Dukagjini's ("Dukagjini") motion to vacate or to withdraw his guilty plea. The motion is denied.

Dukagjini was arrested by members of the Drug Enforcement Administration ("DEA") in September 1996. On January 9, 1997, a 36-count superceding indictment was filed against Dukagjini and fifteen co-defendants for conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin and five hundred grams or more of cocaine and related offenses. Dukagjini was named in six counts. He was charged with the conspiracy, in violation of 21 U.S.C. § 846, as well as one count of distribution of heroin on a specific date, September 25, 1996. He was also charged with two counts of using a communication device to facilitate a drug distribution crime in violation of 21 U.S.C. § 843(b). Two forfeiture counts were also contained in the superceding indictment.

From January 1997 to November 26, 1997, when Dukagjini pleaded guilty (plea date), there were extensive pre-trial proceedings, including a lengthy suppression hearing relating to certain statements made by Dukagjini when he was arrested. Dukagjini was represented at that time by court appointed counsel, Scott M. Green, Esq.

During this time, there was also extensive discussion between Green and the prosecutors concerning disposition of Dukagjini's case by a plea agreement. On November 26, 1997, Dukagjini entered into a 18-page written plea agreement (Dkt. #145), and pleaded guilty to the conspiracy count (Count 1). Dukagjini further agreed to the forfeiture of certain assets listed in Counts 32 and 33.

The plea agreement, which will be discussed in more detail, infra, contained several notable provisions. First, it advised Dukagjini that because of his prior drug felony conviction, he faced an enhanced punishment of 20 years to life imprisonment. There was also a recitation of his sentencing guideline range which was 108-135 months based on a Criminal History Category of III. There was also a lengthy factual statement concerning Dukagjini's criminal activities in the conspiracy, and an agreement by Dukagjini not to appeal or collaterally attack any sentence of 20 years, or less. Furthermore, there was an extensive statement concerning Dukagjini's agreement to cooperate with the Government. Plea Agreement, ¶¶ 19-27. If Dukagjini provided the required substantial assistance, the Government agreed to file a departure motion under 18 U.S.C. § 3553(e) and under 5K1.1 of the Sentencing Guidelines. Such a motion would, of course, permit the Court to sentence Dukagjini below the otherwise mandatory 20 year term of imprisonment.

Dukagjini also agreed to forfeit his interest in $71,000 seized from his home on September 25, 1996, pursuant to a search warrant as well as his interest in an automobile registered in his wife's name, on the grounds that the property was the proceeds of drug activity or was used to facilitate unlawful drug activity. Plea Agreement, ¶ 29.

Subsequent to entry of the guilty plea, Dukagjini continued his cooperation with the Government. Of course, Dukagjini had cooperated with the Government from the moment of his arrest. When he was arrested, Dukagjini gave a detailed statement implicating himself, Leonard Miller, and his source, Halit Shehu, in the heroin business. He also consented to a search of his home where 831 grams of heroin and $71,000 were found in a false closet in his basement. Based in part on Dukagjini's cooperation before the plea agreement, his source, Shehu, was indicted in the superceding indictment. After the plea, the Court adjourned sentencing without date to allow Dukagjini to complete his cooperation.

It was not until November 17, 1999 — two years after entry of the guilty plea — that Dukagjini first raised issues about his guilty plea. On that date, November 17, 1999, Dukagjini, pro se, filed what he styled as a "2255 Motion to Vacate Sentence — Ineffective Assistance of Counsel." (Dkt. #288).

By letter dated February 2, 2000 (Dkt. #290), Dukagjini clarified the earlier motion. It was clear that he requested that attorney Green be removed as counsel, and he requested leave to withdraw his guilty plea and "reopen" the suppression hearing.

The Court held a hearing on Dukagjini's two motions on February 10, 2000. The Court removed Green as counsel and agreed to appoint a new attorney for Dukagjini. Another attorney was appointed but soon after the appointment he requested leave to withdraw and, therefore, on March 20, 2000, the Court appointed Dukagjini's present attorney, James P. Harrington, Esq. New counsel was given additional time to meet with Dukagjini, review all of the prior proceedings, and review the case with the prosecutors. The Court deferred ruling on Dukagjini's motion to withdraw the plea to allow new counsel time to consult with Dukagjini and determine if such an application was truly in his best interest. A decision had to be made as to whether Dukagjini wished to move to vacate the plea or to proceed to sentencing and seek leniency based on Dukagjini's cooperation. Dukagjini's new attorney met with him and the Government several times in an effort to resolve the matter, but without success. In addition, defense counsel requested several extensions within which to file a new motion relating to the guilty plea. Eventually, defendant's motion was filed on September 6, 2001, and the Court heard extensive argument on October 4, 2001.


The standards governing motions to withdraw guilty pleas were set out by this Court in a prior decision relating to a co-defendant of Dukagjini, Leonard Miller, in a decision entered in this case on April 30, 1998. (3 F. Supp.2d 376). I repeat those standards here.

Rule 32(e) of the Federal Rules of Criminal Procedure provides that the court may grant a motion for leave to withdraw a guilty plea, prior to sentencing, upon a showing of a "fair and just reason" for doing so. Nonetheless, "it is basic that `[a] defendant has no absolute right to withdraw his guilty plea.'" United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997) (quoting United States v. Williams, 23 F.3d 629, 634 (2d Cir.)), cert. denied, 513 U.S. 1045 (1994). "The defendant bears the burden of showing that there are valid grounds for relief." United States v. Maher, 108 F.3d 1513, 1529 (2d Cir. 1997).
In determining whether a "fair and just reason" exists to grant a motion to withdraw a guilty plea, the court may consider various factors, including: the amount of time that has elapsed between the plea and the motion; whether the defendant is asserting his innocence; the likely voluntariness of the plea; and any prejudice to the Government. Torres, 129 F.3d at 715; United States v. Doyle, 981 F.2d 591, 594 (1st Cir. 1992). "One especially important consideration is the defendant's answers to the questions posed at his Rule 11 hearing," United States v. Trussel, 961 F.2d 685, 689 (7th Cir. 1992), which "carry a strong presumption of veracity . . ." Torres, 129 F.3d at 715 (citing Blackledge v. Allison, 431 U.S. 63, 74 (1977)). Because "answers contained in [the plea proceeding] are binding," a court "cannot allow [a defendant] to disavow the answers he gave as easily as he ...

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