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United States v. Pitcher

March 11, 2009

UNITED STATES OF AMERICA, RESPONDENT-APPELLANT,
v.
DOUGLAS PITCHER, PETITIONER-APPELLEE.



SYLLABUS BY THE COURT

Appeal from grant of Petitioner's 28 U.S.C. § 2255 motion to vacate sentence entered in the United States District Court for the Eastern District of New York (Trager, J.). Following a jury trial, Petitioner was convicted of heroin trafficking related offenses. The district court vacated Petitioner's sentence, finding that trial counsel was ineffective for providing Petitioner an unreasonably optimistic assessment of his chances of acquittal following trial. The district court's holding is contrary to our previous ruling on direct appeal that any error in counsel's advice to his client resulted from Petitioner's own dishonesty in dealing with his attorney rather than from ineffective assistance. We reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

Argued: October 24, 2008

BEFORE: WESLEY, HALL, Circuit Judges, and OBERDORFER, District Judge.*fn1

PER CURIAM

The government appeals the order of the United States District Court for the Eastern District of New York (Trager, J.) granting Petitioner Douglas Pitcher's motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, due to defense counsel's ineffective assistance. Pitcher v. United States, 371 F. Supp. 2d 246, 258 (E.D.N.Y. 2005). On direct appeal, Pitcher raised, inter alia, an ineffective assistance of counsel claim. We rejected this claim and affirmed his conviction. United States v. Pitcher, 7 F. App'x 119, 2001 WL 356941 (2d Cir. 2001). We hold that the district court's finding in response to Petitioner's 28 U.S.C. § 2255 petition-that trial counsel provided ineffective assistance by giving Pitcher an unreasonably optimistic assessment of Pitcher's prospects at trial-is contrary to this Court's prior ruling on direct appeal. Accordingly, we reverse.

BACKGROUND

In May 1998, Petitioner-appellee Douglas Pitcher was indicted for conspiracy to import heroin (21 U.S.C. § 963), conspiracy to possess heroin with intent to distribute (21 U.S.C. § 846), and importing heroin (21 U.S.C. § 952). Pitcher, who was not a newcomer to the criminal justice system, was represented by John Jacobs. Pitcher maintained his innocence and refused any government cooperation agreement that required him to plead guilty.*fn2 Following a jury trial in the Eastern District of New York, Pitcher was convicted in October 1998, of all three counts charged in the indictment.

After Pitcher's conviction, but before sentencing, another coconspirator, Mauricio Saenz, was arrested and began cooperating with the government. Saenz confirmed that Pitcher had been an active and knowing participant in the conspiracy to import heroin into the United States. Saenz's cooperation was relayed to Pitcher, who then met with the government in March 1999, and admitted to his involvement in the conspiracy.

In an April 1999 status conference held prior to sentencing, the district court asked Attorney Jacobs why Pitcher had gone to trial instead of pleading guilty. Jacobs explained that his client had lied to him "about significant things" related to his involvement in the conspiracy. He added, "Had I realized the defendant's -- the truth of what had actually occurred here before we went to trial, I never would have went to trial." Pitcher also explained to the court why he had not "take[n] a shot at cooperation [with the government]": "I just didn't think that I was guilty. I thought I had a very good chance at winning, because in my eyes, I didn't see me being guilty." In June 1999 the district court appointed Susan Kellerman to replace Jacobs as Petitioner's attorney. The district court sentenced Pitcher, in March 2000, to 121 months' imprisonment.

On direct appeal, Pitcher admitted his participation in the charged offenses, but he argued that he would have pursued a cooperation agreement with the government but for the ineffectiveness of his counsel, who convinced him to spurn the government's efforts to sign him up as a cooperator. We rejected this argument in an April 10, 2001, summary order:

The government "was interested in trying to sign [Pitcher] up as a cooperator from the beginning, and [this] was made clear to the defendant at the moment of his arrest;" but Pitcher proceeded to trial because, in his words, he "didn't think [he] was guilty" and "thought [he] had a good chance of winning." Any deficiency in counsel's advice on this subject is properly attributable to Pitcher's own dishonesty in dealing with his lawyer; Pitcher's counsel admitted that, "Had [he] realized . . . the truth of what had actually occurred here before we went to trial, [he] never would have [gone] to trial."

United States v. Pitcher, 7 F. App'x 119, 120-21, 2001 WL 356941 at *1 (2d Cir. 2001).

Pitcher then filed his § 2255 petition in the district court, seeking to vacate his sentence on the ground that he would have received a significantly shorter sentence had trial counsel not misinformed him about the benefits of cooperation and the risks he faced by proceeding to trial. The district court held an evidentiary hearing in July 2004. At the hearing Jacobs testified he explored with Pitcher the possibility of cooperation but Pitcher had vigorously asserted his innocence.

In June 2005, the district court granted Pitcher's motion, vacated his 121-month sentence, and resentenced him to time served. Pitcher v. United States, 371 F. Supp. 2d 246, 265 (E.D.N.Y. 2005). The district court found that Jacobs had provided Pitcher an overly optimistic assessment of his trial prospects. Id. at 262 ("[T]here appears to be no reasonable basis upon which a competent defense attorney would have reached the conclusion that petitioner had a 'winnable' case."). As a result, the district court ...


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