Collin Montgomery v. United States, 853 F.2d 83, 2d Cir. (1988)
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Scribd Government DocsCollin Montgomery v. United States, 853 F.2d 83, 2d Cir. (1988)
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Scribd Government Docs853 F.
2d 83
Collin MONTGOMERY, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
No. 914, Docket 87-2507.
United States Court of Appeals,
Second Circuit.
On Submission May 3, 1988.
Decided July 28, 1988.
Collin Montgomery, pro se.
Douglas T. Burns, Asst. U.S. Atty. for the E.D. New York (Andrew J.
Maloney, U.S. Atty. for the E.D. New York, John Gleeson, Asst. U.S.
Atty., of counsel), for respondent-appellee.
Before LUMBARD, OAKES and KEARSE, Circuit Judges.
LUMBARD, Circuit Judge:
Collin Montgomery, pro se, appeals from an order of the Eastern District of
New York, which denied his petition for a writ of habeas corpus pursuant to 28
U.S.C. Sec. 2255. Montgomery alleges that the district court erred in denying
his motion to withdraw his 1984 plea of guilty to conspiracy to distribute heroin
(21 U.S.C. Sec. 846) on the grounds that the plea lacked an adequate factual
basis and that he was denied the effective assistance of counsel with respect to
the plea. We agree with petitioner that his plea was accepted without an
adequate factual basis in violation of Fed.R.Crim.P. 11(f), and reverse the order
of the district court.
I.
2
In December 1983, Montgomery became the object of an undercover
investigation by the Drug Enforcement Agency ("DEA"). A government
informant, with whom Montgomery became acquainted while serving time in
federal prison, introduced Montgomery to undercover DEA agents. After
several meetings, Montgomery agreed to purchase a half-pound of heroin from
the agents for $70,000, half of which was to be paid at the time of delivery.
According to the affidavit of Arthur Scalzo, Special Agent with the DEA,
Montgomery claimed to be purchasing the heroin for himself and two
"accomplices."
3
On January 20, 1984, Montgomery met the undercover agents at the Howard
Johnson Motor Lodge in Plainview, New York, to purchase the heroin. The
agents gave Montgomery a small bag of flour which they represented to be
heroin. After Montgomery accepted the bag, the agents identified themselves
and arrested him.
At the time of his arrest, Montgomery had in his possession approximately
$34,900 in cash, keys from a rented Lincoln Continental, and a piece of paper
with the name "Martin Ribbins" written on it. Martin Ribbins was arrested
shortly thereafter in the Howard Johnson's lobby. Ribbins and Montgomery
were jointly indicted for conspiracy to distribute heroin in violation of 21
U.S.C. Sec. 846.
On April 2, 1984, Montgomery, represented by appointed counsel, appeared in
the district court to change his plea from not guilty to guilty. After apprising
Montgomery of his rights, the court read aloud the indictment:
6 or about and between the 16th day of December, 1983 and the 20th day of
"On
January, 1984, ... the defendants Collin Montgomery a/k/a "Mr. Collin," and Martin
Ribbins, a/k/a "Martin Richards" did intentionally combine, conspire, confederate
and agree to violate Section 841(a)(1) of Title 21.
7 was a part of that conspiracy that the defendants ... knowingly and intentionally
It
would distribute and possess with intent to distribute a substantial quantity of heroin,
a Section I narcotic drug controlled substance in violation of Title 21, U.S.C. Sec.
846."
8
When asked if he understood the "nature of the charge," Montgomery appeared
to be confused about the issue of possession in that he received flour, rather
than heroin, from the DEA agents. During the ensuing discussion, the court
became concerned that Montgomery did not "appreciate what he [was] pleading
guilty to." Montgomery's attorney sought to reassure the court that
Montgomery understood the charge. The judge again read the indictment and
Montgomery again stated that he agreed with it.
However, when asked to describe his activity in his own words Montgomery
stated, "I agreed to buy drugs and sell them for a profit." When asked
specifically about the individuals with whom he had conspired, he named a
DEA agent and the confidential informant; he denied knowing anything about
Martin Ribbins, who was the named co-conspirator in the indictment, and did
not name any other co-conspirator. The Assistant United States Attorney
(AUSA) indicated that it was not the government's theory that he conspired
with the government agents. Montgomery's attorney then stated:
10 is my understanding of the law ... that I believe there is case law on it that says
[I]t
that a conspiracy charged strictly with Government agents--and I believe there is
even a drug case where the Government agents were both the suppliers and the
buyers of the drugs is sufficient.
The court responded:
There is no question about that. I have no problem with that.
11
12
The judge then asked the AUSA what the government's position on the
question was. In answer, the AUSA reiterated that it was not the government's
position that Montgomery conspired with government agents.
13
After once again reading the indictment, the court carried on the following
discussion with the defendant:
14
THE COURT: You understand that in order for there to be a conspiracy, there
has to be more than one; do you understand that?
15
THE DEFENDANT: Yes, sir.
16
THE COURT: Did you conspire, did you agree to commit this unlawful act
with others?
17
THE DEFENDANT: Yes, yes, sir.
18
THE COURT: Is there any question about that in your mind?
19
THE DEFENDANT: I didn't know exactly who I was going to--should I say
that?
20
THE COURT: Say it.
21
THE DEFENDANT: I was going to this bar in Chicago where I know you can
turn this stuff and I didn't know exactly who was going to be there, but others,
yes, sir.
22
Montgomery then described how he had obtained the purchase money from a
loan shark, and after several moments of discussion, the court asked:
Now, tell us, in as broad a term as you know how, how you conspired with others?
23
I mean you just didn't have a vision, you had a conversation with someone?
24
Montgomery replied:
25 exactly.I knew in my travels that there is a particular bar in the big cities up
Not
north where you can walk in, if you got the heart, and sell drugs and I am a pretty
big fellow, I come out of prison and I was losing my family. I was losing everything.
I26applied for jobs, my baby boy didn't even know me, my wife needed money and I
took a shot, sir. I was going to go up there, put the drugs in my pocket and walk in
the bar, stand in the corner.
I27was going to sell them and pay it off and I took my shot and the man was an agent,
so I didn't do no good and here I am and I am guilty.
I would like to get this over with because I am a nervous wreck.
28
29
The court found this statement sufficient to support the conspiracy conviction,
and accepted the plea. On April 25, 1984, Montgomery was sentenced to a ten
year term of imprisonment which was later reduced to seven years pursuant to
Fed.R.Crim.P. 35.
30
On March 29, 1985, Montgomery filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. Sec. 2255 which alleged that (1) his guilty plea was
unlawfully induced; (2) the prosecution had failed to disclose certain evidence
favorable to petitioner's defense; (3) the prosecution did not fulfill the plea
agreement; and (4) he was denied effective assistance of counsel. The district
court dismissed Montgomery's petition by memorandum and order dated
September 25, 1985, and on appeal this court affirmed without prejudice to
amend the petition to include claims raised for the first time on this appeal.
Montgomery v. United States, 816 F.2d 669 (2d Cir.1987).
31
On June 10, 1987, Montgomery filed an amended petition which claimed that
there was an insufficient factual basis for his guilty plea and that he was denied
effective assistance of counsel with respect to that plea. By order dated October
19, 1987, the district court denied the petition.
II.
32
Although at several points during the plea proceeding Montgomery stated that
he conspired "with others" to distribute heroin, our review of the record leads
us to conclude that there was not a sufficient factual basis for the plea to
warrant its acceptance under Rule 11(f).
33
In order to be guilty of conspiracy to distribute heroin in violation of 21 U.S.C.
Sec. 846, the individual charged must have conspired with someone other than
a government agent or an informant. United States v. Barnes, 604 F.2d 121, 161
(2d Cir.1979). As the district court pointed out, Montgomery stated a number of
times that he had agreed with "others" to distribute the heroin; he also agreed
with statements of the court that he conspired to do so. However, the only
people with whom Montgomery admitted conspiring were a government agent
and a government informant. The AUSA explained that it was not the
government's theory that Montgomery conspired with government agents but,
even when questioned by the court on this point, he never challenged
Montgomery's statement as insufficient to establish the crime as a matter of
law. Both Montgomery's attorney and the court indicated that conspiring with
the agent and the informant satisfied the requirements of 21 U.S.C. Sec. 846.
34
"We have accepted a reading of the indictment to the defendant coupled with
his admission of the acts described in it as a sufficient factual basis for a guilty
plea, as long as the charge is uncomplicated, the indictment detailed and
specific, and the admission unequivocal." Godwin v. United States, 687 F.2d
585, 590 (2d Cir.1982). This indictment specifically stated that Montgomery
conspired with Ribbins. However, Montgomery flatly refused to admit that he
conspired with Ribbins. He did admit that he conspired with "others unnamed,"
who apparently were only potential customers in Chicago, completely unknown
to him at the time of arrest, and with the government agents. In short, the record
does not show any admission by Montgomery that he had participated in an
illegal conspiracy. Consequently, we conclude that there was an insufficient
factual basis for the plea under Rule 11(f).
35
