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
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
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)).
contained in [the plea proceeding]
are binding," a court "cannot allow [a defendant] to
disavow the answers he gave as easily as he wishes."
United States v. Winston, 34 F.3d 574, 578 (7th Cir.
1994). Therefore, a "defendant's bald statements that
simply contradict what he said at his plea allocution
are not sufficient grounds to withdraw the guilty
In addition, while an evidentiary hearing may be
appropriate where a defendant has demonstrated factual
issues surrounding the voluntariness or general
validity of his plea, no hearing is required "if the
movant's allegations `merely contradict [his]
earlier statements made under oath at his plea
allocution.'" Maher, 108 F.3d at 1529 (quoting United
States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992)
(brackets in original); accord Torres, 129 F.3d at
It is plain, then, that a "defendant who presents a
reason for withdrawing his plea that contradicts the
answers he gave at a Rule 11 hearing faces an uphill
battle in persuading the judge that his purported
reason for withdrawing his plea is `fair and just.'"
Trussel, 961 F.2d at 689. Rule 11 "provides a thorough
hearing [at the time of the plea] to determine the
voluntariness and intelligence of guilty pleas, and .
. . defendants afforded such a hearing should not be
easily let off the hook when they feel like changing
their minds." United States v. Coonce, 961 F.2d 1268,
1276 (7th Cir. 1992).
The reason for this is simple: "`[s]ociety has a
strong interest in the finality of guilty pleas,' and
allowing withdrawal of pleas not only `undermines
confidence in the integrity of our judicial
procedures,' but also `increases the volume of
judicial work, and delays and impairs the orderly
administration of justice.'" Maher, 108 F.3d at 1529
(quoting United States v. Sweeney, 878 F.2d 68, 70 (2d
Cir. 1989) (per curiam)). "The plea of guilty is a
solemn act not to be disregarded because of belated
misgivings about its wisdom." United States v.
Morrison, 967 F.2d 264, 268 (8th Cir. 1992).
United States v. Miller, 3 F. Supp.2d at 379-380.