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UNITED STATES v. GRAHAM

May 8, 1995

UNITED STATES OF AMERICA,
v.
EL TORA GRAHAM



The opinion of the court was delivered by: THOMAS PENFIELD JACKSON

 On June 7, 1993, following an eight-day jury trial, El Tora Graham was convicted of six counts of a seven-count indictment charging him with various narcotics offenses, including conspiracy to distribute 50 grams or more of crack cocaine. Three co-defendants indicted with him having plead guilty prior to trial, Graham was tried alone. On August 25, 1993, this Court sentenced Graham to four concurrent terms of life in prison, and two concurrent terms of eight years in accordance with the Presentence Report.

 Now, having appealed his conviction and sentence, Graham is back before the Court, on remand from the Court of Appeals while his appeal is stayed, for consideration of his motion to "vacate, set aside or modify sentence" pursuant to 28 U.S.C. ยง 2255. Represented at present by his appointed appellate counsel, Graham initially contended in his Section 2255 motion that his trial counsel had been constitutionally ineffective in representing him at his sentencing. Since filing his motion, however, he has expanded his claim of ineffective assistance to include the pretrial period when Graham presumably had an opportunity to bargain with the government for a lesser sentence on a guilty plea.

 Graham's argument with respect to trial counsel's performance at sentencing is predicated upon that lawyer's failure to advance arguments to persuade the Court that the mandatory life sentence as calculated by the Presentence Report was in error, or, if not, that a downward departure from the Sentencing Guidelines was warranted. The Court's review of the sentencing proceedings of August 17 and 25, 1993, however, reinforces its original conclusion that the Presentence Report writer was correct in his calculations and in the application of the Guidelines, and that no grounds for departure from the Guidelines had been or could be shown. *fn1" If there is error to be found in the sentencing process, it is of the Court's making, not counsel's.

 Graham's allegation that trial counsel failed him when effective assistance could have been of genuine benefit to him, i.e., in negotiating a plea agreement before trial, is considerably more ominous. Graham asserts that, had he understood he was exposed to a mandatory life sentence without parole upon conviction, he would have accepted a plea offer from the government, even one entailing his "cooperation."

 At hearings on the instant motion both Graham and his trial counsel testified, and with no evidence to the contrary the Court finds as a fact, that trial counsel never expressly told his client prior to trial that a life sentence was even possible upon his conviction. (Tr. of Apr. 7, 1995, pp. 99-100). At its most explicit his lawyer's advice was that, if Graham refused the government's plea offer, he "was going to spend an awful lot of time in jail that he needed not to spend." (Id. at pp. 103-104). *fn2"

 As it was, Graham says, he understood, on the basis of several conversations with prosecutors and law enforcement officers (with his trial counsel present or nearby) that he would be sentenced to 14 years if he simply plead guilty (to what, he did not say); to 11 years if he would "say the drugs were Hoyle's;" and to "ten to probation" if he "cooperated." *fn3" (Id. at 16). Perceiving no significant difference between 14 and 20 years for his purposes, Graham decided to take his chances at trial. Although his relationship with trial counsel was poor from the outset and never improved, he said his trial counsel lead him to believe he could "beat" the government's case.

 The Court finds that the only formal plea offer ever made to Graham was presented in an unsigned "draft" letter addressed to his trial counsel dated August 3, 1992, five days following Graham's arrest. Expressed in ten single-spaced typewritten pages of mostly legal language, it required close reading and careful explanation by counsel to have been comprehensible to Graham. In pertinent part it called for Graham to plead guilty to a single count of conspiracy to distribute 50 grams or more of crack cocaine, carrying a mandatory minimum 10-years-to-life prison term, and to cooperate fully and truthfully "whenever, wherever, and in whatever form [the government] deems appropriate," including, although not specified in the draft letter, his testimony against the Newton Street Crew principals; specifically, Mark Hoyle, John McCollough, Anthony Goldston and Mario Harris. (Gov't Ex. 2; Def. Ex. 9).

 According to Graham, the plea offer was presented to him in perfunctory fashion by trial counsel at a courthouse cellblock conference in early August, 1992. The lawyer did not give Graham a copy of the letter. He did not call attention to the potential 10-years-to-life sentence attached to the charge to which Graham would be expected to plead guilty. And Graham did not advert to it on his own.

 The Court concludes that, insofar as apprising a criminal defendant of the consequences of conviction upon the charges he is facing, the constitutionally minimal standard of proficiency required of trial counsel is that he advise his client of the maximum term of imprisonment to which he could be sentenced if convicted of all charges at trial. Explanations of the intricacies of the Sentencing Guidelines and plans for sentencing strategies aside, no defendant should be obliged to proceed to trial, particularly if any possibility of a plea bargain exists, without authoritative advice from his own attorney as to what could happen if the very worst were to befall him. El Tora Graham was deprived of that advice, and, thus, of "the effective assistance of counsel guaranteed to defendant by the Sixth Amendment" in the matter of plea negotiations. Strickland v. Washington, 466 U.S. 668, at 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

 To be entitled to any relief here, however, Graham must also demonstrate that "counsel's deficient performance prejudiced the defense." Id. He must "show that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694; and specifically, in the context of this case, Graham must show that had he known that a life sentence without parole not only could but must be imposed if the government proved its entire case against him, Graham would have accepted any plea offer the government was prepared to make him presenting the prospect of a finite term of imprisonment, however conditioned.

 The credible evidence presented in these proceedings, in its entirety, establishes that, notwithstanding his own attorney's dereliction in failing to confirm it, El Tora Graham knew the ultimate adverse consequence of a failure to reach agreement with the government if he lost at trial. He was repeatedly and forcefully informed by agents of the prosecution, and by his own former associates who would be testifying against him, that he could expect that his refusal to cooperate would result in his spending the rest of his life in jail. Within weeks of his arrest in late July, 1992, he was brought to the courthouse, and in the presence of his lawyer, so told by a Metropolitan Police sergeant and an FBI special agent, both of whom had investigated the Newton Street Crew for years. He was shown a sample of the government's evidence, including surveillance videotapes, and urged to cooperate by testifying against other members of the Newton Street Crew. (Tr. of Apr. 25, 1995, pp.34-36). His predicament was explained to him colloquially, not in legal jargon. *fn4"

 Graham feigned interest, but he refused to reveal any significant information about the Newton Street Crew, still less to evince a willingness to testify against Crew leader Mark Hoyle. (Id., pp. 39-41; 67-68).

 Several weeks later, but still in August or early September, 1992, a second and similar interview was conducted, this time joined by the Assistant U.S. Attorney who would lead the prosecution. Again Graham was warned of the consequence, viz., an inevitable life sentence, if he failed to cooperate, but he was also told by the prosecutor, with examples given, that cooperation would "show up in his sentence." (Id. at 45). Graham stated that he understood, but ...


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