22-420-cr United States v. Halliburton
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 2nd day of August, two thousand twenty-three. 4 5 Present: 6 DENNY CHIN, 7 SUSAN L. CARNEY, 8 EUNICE C. LEE, 9 Circuit Judges. 10 _____________________________________ 11 12 UNITED STATES OF AMERICA, 13 14 Appellee, 15 v. 22-420-cr 16 17 KEITH HALLIBURTON, 18 19 Defendant-Appellant. ∗ 20 _______________________________ 21 22 For Defendant-Appellant: Elizabeth Latif, Law Offices of Elizabeth A. Latif 23 PLLC, West Hartford, CT. 24 25 For Appellee: Kedar S. Bhatia, Jacob R. Fiddelman, and David 26 Abramowicz, Assistant United States Attorneys, Of 27 Counsel, for Damian Williams, United States Attorney 28 for the Southern District of New York, New York, NY.
∗ The Clerk of Court is respectfully directed to amend the caption as set forth above.
1 1 Appeal from a judgment of the United States District Court for the Southern District of
2 New York (Rakoff, J.).
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
5 DECREED that the judgment of the district court is AFFIRMED.
6 Defendant-appellant Keith Halliburton pleaded guilty to conspiring to distribute and to
7 possess with intent to distribute mixtures and substances containing a detectable amount of heroin,
8 in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C), and was sentenced principally to 144 months
9 in prison. On appeal, Halliburton argues that the district court erred by failing to establish a
10 factual basis for his guilty plea. We assume the parties’ familiarity with the underlying facts,
11 procedural history, and arguments on appeal, which we discuss only as necessary to explain our
12 decision.
13 In July 2020, Halliburton contacted an undercover FBI agent, who was posing as a heroin
14 supplier, to purchase heroin. After agreeing on a meeting time and location, Halliburton sent co-
15 defendant Jeremiah Young to procure the drugs from the undercover agent. On August 7, 2020,
16 Young met with the agent and procured the sham heroin. Shortly after, police pulled Young over
17 and arrested him. Following his arrest, Young told the agents that he went to the meeting place
18 to recover heroin on Halliburton’s behalf. Halliburton was subsequently arrested, and the
19 government charged him—and Young—with conspiring to distribute and to possess with intent to
20 distribute at least one kilogram of heroin. At his plea hearing on October 19, 2021, Halliburton
21 admitted guilt and described his conduct in his own words, stating that between July and August
22 2020, he “sent an individual to New York to pick up drugs,” including heroin, and knew that what
23 he was doing was “illegal and wrong.” App’x at 35–36. After the plea hearing but prior to
2 1 sentencing, discovery materials produced by the government revealed that Young had previously
2 been an FBI informant in matters unrelated to this case.
3 Halliburton now argues, for the first time on appeal, that the district court erred because
4 the record did not establish a factual basis for his guilty plea. Specifically, Halliburton asserts
5 that Young’s status as an FBI informant in other cases creates a factual issue as to whether a true
6 conspiracy between Halliburton and Young existed in this case. Halliburton argues that because
7 the record “does not provide a sufficient factual basis to conclude that [] Halliburton conspired
8 with a non-government cooperator,” his plea and sentence must be vacated. Appellant’s Br. at 7.
9 Halliburton did not identify this claimed error before the district court and thus we review
10 for plain error. See United States v. Murphy, 942 F.3d 73, 84 (2d Cir. 2019). To satisfy the
11 plain error standard, Halliburton must establish that “(1) there was error, (2) the error was plain,
12 . . . (3) the error prejudicially affected his substantial rights” and “(4) the error seriously affected
13 the fairness, integrity or public reputation of judicial proceedings.” United States v. Lloyd, 901
14 F.3d 111, 119 (2d Cir. 2018) (internal quotation marks omitted).
15 Here, Halliburton claims that he meets the first prong of the plain error standard because
16 the record did not establish a factual basis for his plea. Federal Rule of Criminal Procedure
17 11(b)(3) states that: “Before entering judgment on a guilty plea, the court must determine that there
18 is a factual basis for the plea.” To do so, a court must “assure itself simply that the conduct to
19 which the defendant admits is in fact an offense under the statutory provision under which he is
20 pleading guilty.” United States v. Garcia, 587 F.3d 509, 514 (2d Cir. 2009) (internal quotation
21 marks omitted). Thus, “so long as the facts relied on are placed on the record at the time of the
22 plea, the district court, in determining whether there was a factual basis for the plea, is free to rely
23 on any facts at its disposal—not just the admissions of the defendant.” United States v. Torrellas,
3 1 455 F.3d 96, 99 (2d Cir. 2006) (internal quotation marks omitted). As relevant to Halliburton’s
2 appeal, conspiracy convictions require that there have been knowing agreement between at least
3 two culpable co-conspirators. United States v. Carlton, 442 F.3d 802, 811 (2d Cir. 2006). To
4 participate in a conspiracy, a co-conspirator cannot be acting as a government agent because “a
5 ‘person who enters into such an agreement while acting as an agent of the government, either
6 directly or as a confidential informant, lacks the criminal intent necessary to render him a bona
7 fide co-conspirator.’” Id. (quoting United States v. Vazquez, 113 F.3d 383, 387 (2d Cir. 1997)
8 (emphasis in original)).
9 Halliburton argues that, in light of Young’s history of being a government cooperator in
10 other cases, “[t]he record at the time of the plea did not establish that [Young] was not acting as
11 such during the conspiracy, and therefore, there was not a sufficient factual basis for the plea.”
12 Appellant’s Br. at 8–9. This argument is unpersuasive for three main reasons. First, and most
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22-420-cr United States v. Halliburton
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 2nd day of August, two thousand twenty-three. 4 5 Present: 6 DENNY CHIN, 7 SUSAN L. CARNEY, 8 EUNICE C. LEE, 9 Circuit Judges. 10 _____________________________________ 11 12 UNITED STATES OF AMERICA, 13 14 Appellee, 15 v. 22-420-cr 16 17 KEITH HALLIBURTON, 18 19 Defendant-Appellant. ∗ 20 _______________________________ 21 22 For Defendant-Appellant: Elizabeth Latif, Law Offices of Elizabeth A. Latif 23 PLLC, West Hartford, CT. 24 25 For Appellee: Kedar S. Bhatia, Jacob R. Fiddelman, and David 26 Abramowicz, Assistant United States Attorneys, Of 27 Counsel, for Damian Williams, United States Attorney 28 for the Southern District of New York, New York, NY.
∗ The Clerk of Court is respectfully directed to amend the caption as set forth above.
1 1 Appeal from a judgment of the United States District Court for the Southern District of
2 New York (Rakoff, J.).
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
5 DECREED that the judgment of the district court is AFFIRMED.
6 Defendant-appellant Keith Halliburton pleaded guilty to conspiring to distribute and to
7 possess with intent to distribute mixtures and substances containing a detectable amount of heroin,
8 in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C), and was sentenced principally to 144 months
9 in prison. On appeal, Halliburton argues that the district court erred by failing to establish a
10 factual basis for his guilty plea. We assume the parties’ familiarity with the underlying facts,
11 procedural history, and arguments on appeal, which we discuss only as necessary to explain our
12 decision.
13 In July 2020, Halliburton contacted an undercover FBI agent, who was posing as a heroin
14 supplier, to purchase heroin. After agreeing on a meeting time and location, Halliburton sent co-
15 defendant Jeremiah Young to procure the drugs from the undercover agent. On August 7, 2020,
16 Young met with the agent and procured the sham heroin. Shortly after, police pulled Young over
17 and arrested him. Following his arrest, Young told the agents that he went to the meeting place
18 to recover heroin on Halliburton’s behalf. Halliburton was subsequently arrested, and the
19 government charged him—and Young—with conspiring to distribute and to possess with intent to
20 distribute at least one kilogram of heroin. At his plea hearing on October 19, 2021, Halliburton
21 admitted guilt and described his conduct in his own words, stating that between July and August
22 2020, he “sent an individual to New York to pick up drugs,” including heroin, and knew that what
23 he was doing was “illegal and wrong.” App’x at 35–36. After the plea hearing but prior to
2 1 sentencing, discovery materials produced by the government revealed that Young had previously
2 been an FBI informant in matters unrelated to this case.
3 Halliburton now argues, for the first time on appeal, that the district court erred because
4 the record did not establish a factual basis for his guilty plea. Specifically, Halliburton asserts
5 that Young’s status as an FBI informant in other cases creates a factual issue as to whether a true
6 conspiracy between Halliburton and Young existed in this case. Halliburton argues that because
7 the record “does not provide a sufficient factual basis to conclude that [] Halliburton conspired
8 with a non-government cooperator,” his plea and sentence must be vacated. Appellant’s Br. at 7.
9 Halliburton did not identify this claimed error before the district court and thus we review
10 for plain error. See United States v. Murphy, 942 F.3d 73, 84 (2d Cir. 2019). To satisfy the
11 plain error standard, Halliburton must establish that “(1) there was error, (2) the error was plain,
12 . . . (3) the error prejudicially affected his substantial rights” and “(4) the error seriously affected
13 the fairness, integrity or public reputation of judicial proceedings.” United States v. Lloyd, 901
14 F.3d 111, 119 (2d Cir. 2018) (internal quotation marks omitted).
15 Here, Halliburton claims that he meets the first prong of the plain error standard because
16 the record did not establish a factual basis for his plea. Federal Rule of Criminal Procedure
17 11(b)(3) states that: “Before entering judgment on a guilty plea, the court must determine that there
18 is a factual basis for the plea.” To do so, a court must “assure itself simply that the conduct to
19 which the defendant admits is in fact an offense under the statutory provision under which he is
20 pleading guilty.” United States v. Garcia, 587 F.3d 509, 514 (2d Cir. 2009) (internal quotation
21 marks omitted). Thus, “so long as the facts relied on are placed on the record at the time of the
22 plea, the district court, in determining whether there was a factual basis for the plea, is free to rely
23 on any facts at its disposal—not just the admissions of the defendant.” United States v. Torrellas,
3 1 455 F.3d 96, 99 (2d Cir. 2006) (internal quotation marks omitted). As relevant to Halliburton’s
2 appeal, conspiracy convictions require that there have been knowing agreement between at least
3 two culpable co-conspirators. United States v. Carlton, 442 F.3d 802, 811 (2d Cir. 2006). To
4 participate in a conspiracy, a co-conspirator cannot be acting as a government agent because “a
5 ‘person who enters into such an agreement while acting as an agent of the government, either
6 directly or as a confidential informant, lacks the criminal intent necessary to render him a bona
7 fide co-conspirator.’” Id. (quoting United States v. Vazquez, 113 F.3d 383, 387 (2d Cir. 1997)
8 (emphasis in original)).
9 Halliburton argues that, in light of Young’s history of being a government cooperator in
10 other cases, “[t]he record at the time of the plea did not establish that [Young] was not acting as
11 such during the conspiracy, and therefore, there was not a sufficient factual basis for the plea.”
12 Appellant’s Br. at 8–9. This argument is unpersuasive for three main reasons. First, and most
13 importantly, the district court asked Halliburton at the plea proceeding to describe in his “own
14 words” what conduct made him “guilty of th[e] crime,” App’x at 35, and Halliburton responded
15 by saying that he “sent an individual to New York to pick up drugs,” including heroin. Id. at 35–
16 36. We have held that a defendant’s plea colloquy following the execution of a plea agreement
17 can provide a permissible source for ascertaining the factual basis for the plea, and Halliburton’s
18 admission did so here at least as to his own intent. See United States v. Smith, 160 F.3d 117, 121
19 n.2 (2d Cir. 1998). Second, nothing in the record indicates that Young was acting as a
20 government agent when he drove to New York at Halliburton’s direction. Indeed, the
21 government expressly told Halliburton’s counsel that Young was not a cooperator in the charged
22 drug transaction. See App’x at 90 (“Neither Young nor [Halliburton] gave the FBI contact prior
23 notice about the narcotics transaction charged in this case nor sought prior authorization to conduct
4 1 the transaction.”). Third and finally, Halliburton does not point to any Circuit caselaw that, in
2 the words of the government, would require district courts to “conduct a searching review that
3 identifies, considers, and rules out all possible defenses,” such as whether a co-conspirator has
4 previously cooperated. Appellee’s Br. at 20. And, at a minimum, Halliburton fails to cite any
5 other precedent indicating that district courts plainly err when they rely on representations made
6 by defendants during plea colloquies. For these reasons, the district court did not err in
7 concluding that the record established a factual basis for the plea, and thus Halliburton fails to
8 meet the first prong of the plain error analysis, and we need not address the remaining plain error
9 prongs. 1
10 We have considered Halliburton’s other arguments and find them to be without merit.
11 Accordingly, we AFFIRM the judgment of the district court.
12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk
1 It bears mentioning, however, that Halliburton does not address at all the fourth plain error prong—the effect of any error on the fairness, integrity, or public reputation of the proceedings—in his opening brief. While he does so in his reply brief, it is “well-settled” that this Court “will not usually entertain an argument made for the first time in a reply brief.” United States v. Sampson, 898 F.3d 287, 314 (2d Cir. 2018).