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UNITED STATES v. HOLCOMB

August 21, 1996

UNITED STATES OF AMERICA
v.
DAVID E. HOLCOMB



The opinion of the court was delivered by: HARRIS

 Defendant was indicted and charged with offenses relating to alleged money laundering activities in two separate January 14, 1993, indictments. On March 11, 1993, the government filed superseding indictments. *fn1" On March 29, 1994, a jury returned verdicts of guilty against defendant on one count of conspiracy and two counts of laundering the proceeds of unlawful activity. On June 21, 1994, the Court sentenced defendant to a term of 46 months' imprisonment on each count (the bottom of the guideline range), to be served concurrently, followed by two years' supervised release with a requirement for 200 hours of community service.

 Following his conviction, defendant filed a notice of appeal. On July 26, 1995, defendant moved to dismiss his appeal and, on August 28, 1995, filed a consolidated Motion for a New Trial and to Vacate Sentence. See Fed. R. Crim. P. 33; 18 U.S.C. § 2255.

 On November 21, 1995, defendant supplemented his motion with an additional claim of ineffective assistance of counsel. Defendant claimed, inter alia, that his trial counsel, George Mendelson, Esq., misinformed defendant about the possible sentence defendant faced if he went to trial instead of accepting the government's plea offer. Defendant's motion states that his counsel told him that "while he could get 4-5 years the Judge could still sentence him to a 12 month term of imprisonment" if he were convicted after trial. Defendant contends that, based on this advice, he rejected the government's plea offer, which had a potential sentencing range of 12 months' imprisonment. *fn2" Defendant thus seeks, in effect, to have his convictions vacated and gain the benefit of the original plea bargain offer. *fn3"

 By a Memorandum Order dated April 19, 1996, the Court resolved all of defendant's claims except for the claim of ineffective assistance of counsel. The Court held a hearing on June 26, 1996, in order to resolve this final claim. This Memorandum Order sets forth the Court's findings of fact and conclusions of law. Based on the credible evidence presented at the hearing, the Court denies defendant's motion.

 Findings of Fact

 Testifying at the hearing were defendant David Holcomb, attorney George Mendelson, who represented defendant through his sentencing, and Assistant United States Attorney William Blier, who was one of two prosecutors in the trial of this case. A central issue is whether defendant's counsel misinformed him regarding the sentencing guidelines.

 Beginning in approximately November 1993, defendant and Mendelson began discussing a plea offer that had been extended by the prosecution. *fn4" Tr. at 18-19. Defendant concedes that his attorney advised him that he could, if convicted, receive a sentence of four or five years. Tr. at 8. However, defendant contends that his counsel created a belief that, with a downward departure, defendant would receive a sentence of 12 months or less. Tr. at 9, 10. Defendant rejected the plea offer and made a counter-offer to the government: he requested that he be permitted to plead guilty to a misdemeanor charge that would carry with it a six-to-12-month sentence; the government rejected this counter-offer. Tr. at 6, 7.

 Defendant testified that Mendelson did not advise him whether a 12-month sentence or a four-to-five-year sentence was more likely. Tr. at 10. But while defendant knew that a four-to-five-year sentence "could happen," he concluded that the 12-month sentence was more likely because Mendelson gave "more of an explanation" for that result. Tr. at 13. Mendelson testified that he did not specifically advise defendant whether to accept or reject the plea, as he believed that this decision was one for defendant to make. Tr. at 23-24, 39.

 Mendelson testified that, in helping defendant to make a decision about whether to accept the plea offer, he had a number of discussions with defendant concerning the outcomes he could expect both from trial and in the event of a plea. Tr. at 18-19, 20, 21, 30. Mendelson testified that, in addressing the possibility of a four-to-five-year sentence of imprisonment, he discussed the Sentencing Guidelines with defendant and how they have an impact upon a court's discretion at sentencing. Tr. at 19-20. Mendelson testified that he also explained that the guidelines permit a court some discretion to depart downward from the applicable sentencing range because of the particular circumstances of the case and of the defendant, and that he indicated to defendant that he thought this case was an appropriate one for a downward departure. Tr. at 21-22. *fn6" Mendelson further testified that he cautioned defendant that a departure was not something upon which he could rely. Tr. at 21-22. Mendelson testified that he emphasized to defendant that defendant should take this case very seriously. *fn7" Tr. at 36, 37.

 Blier testified that defendant was present during the discussion of the Sentencing Guidelines. Tr. at 45. Mendelson corroborated that defendant's potential sentence under the Sentencing Guidelines was discussed at that meeting, and that defendant was present during that discussion. Tr. at 26-27. Defendant testified that he could not recall that sentencing considerations were discussed while he was present in the room, and that at some point during the meeting, he was excused and Mendelson and the AUSAs continued to talk for ten to 15 minutes outside of his presence. Tr. at 11, 15, 16. Blier testified that he also discussed the potential sentence with defendant on another occasion, by reference to the ages that defendant's children would be at the time of his release. Tr. at 51.

 The evidence is overwhelming that defendant was told, repeatedly and by multiple parties, that he faced a potential sentence of four to five years. Defendant concedes that he was told of the possible sentence but contends that he did not understand. The Court is thus confronted with a choice between two concepts: one that would require defense attorneys to make certain their clients understand (what might be called a "rule of perfect understanding"), and one that would require defense attorneys reasonably to inform their clients about their choices. A rule of perfect understanding would be a costly rule which would not square well with reality. Given the vagaries of human understanding, it might sometimes be impossible to make another person understand with perfect clarity; hope springs eternal and can affect how human beings process information. Furthermore, the less ...


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