United States v. Khan

328 F. App'x 704
CourtCourt of Appeals for the Second Circuit
DecidedJune 1, 2009
DocketNo. 08-0635-cr
StatusPublished

This text of 328 F. App'x 704 (United States v. Khan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Khan, 328 F. App'x 704 (2d Cir. 2009).

Opinion

SUMMARY ORDER

Defendant-Appellant Farook Khan appeals from a judgment of the United States District Court for the Northern District of New York (Sharpe, J.) convicting him of a single count of Aggravated Illegal Reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(1), following his guilty [706]*706plea. Defendant claims: (1) that the Government improperly coerced him to enter a plea agreement and that the district court failed to fulfill its Rule 11 obligation to ensure that Defendant’s plea was voluntary; and (2) that the district court’s failure to inquire into the alleged conflict of Defendant’s attorney requires automatic reversal of the conviction. We assume the parties’ familiarity with the facts, the procedural history, and the issues on appeal.

Defendant first implies that his- plea was involuntary, arguing that it was the result of coercion by the Government.1 “[T]he governing standard as to whether a plea of guilty is voluntary for purposes of the Federal Constitution is a question of federal law.... ” Oyague v. Artuz, 393 F.3d 99, 104 (2d Cir.2004) (quoting Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983)). However, “the question of whether a plea of guilty has been entered voluntarily within the meaning of the Constitution- is often a complex one that involves mixed questions of law and fact.” Id. We give deference to the lower court’s findings of fact, see id., and examine questions of law de novo.

It is well established that “[a] guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void.” United States v. Doe, 537 F.3d 204, 211 (2d Cir.2008) (quoting Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962)). “‘It does not follow, however, that all inducements for a defendant to plead guilty render either a plea or the consequent waiver of the right to trial by jury involuntary.’ ” Id. (citation omitted). “ ‘Voluntary’ for purposes of entering a lawful plea to a criminal charge has never meant the absence of benefits influencing the defendant to plead.” Id. (quoting United States v. Marquez, 909 F.2d 738, 742 (2d Cir.1990)). “Indeed, ... with regard to voluntariness, a guilty plea ‘must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g., bribes).’ ” Id. (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). The question is not whether the defendant’s “decision reflected a wholly unrestrained will, but rather whether it constituted a deliberate, intelligent choice between available alternatives.” Id. at 212 (quoting Rosado v. Civiletti, 621 F.2d 1179, 1191 (2d Cir.1980)).

Defendant testified under oath at his plea allocution that his guilty plea was knowing and voluntary. We have stated that “statements at a plea allocution carry a strong presumption of veracity.” Doe, [707]*707587 F.3d at 211 (citing Blackledge v. Allison, 481 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)). Nor did Defendant ever make a motion to withdraw his plea or raise any objection to his plea until he filed his appeal. “[T]he timing of the defendant’s [request] ... severely undercuts his argument that he pleaded guilty involuntarily. Whereas a ‘swift change of heart’ may ‘indicate [a] plea made in haste or confusion,’ ” id. (quoting United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) (internal citation omitted)), we find here that the fact that the defendant waited almost five months from the date of his plea before raising any objection “strongly supports ... that his plea was entered voluntarily.” Id. (reviewing district court determination that plea was voluntary, this Court found significant that defendant waited five months to file motion withdrawing plea). For these reasons, there is no basis on this record for us to determine that Defendant’s plea was coerced or otherwise involuntary.

Defendant also contends that the district court failed to fulfill its Rule 11 obligation to ensure the voluntariness of Defendant’s plea. See Fed.R.CRIM.P. 11. This Court reviews for plain error an alleged Rule 11 error not raised in the district court. United States v. Torrellas, 455 F.3d 96, 103 (2d Cir.2006). Under the plain error standard, a defendant must demonstrate: (1) the existence of an error; (2) that the error was “plain”; and (3) that the error prejudicially affected the defendant’s “substantial rights.” Id. (citations omitted). “In order to demonstrate that a Rule 11 error affected his substantial rights, a defendant must show ‘a reasonable probability that, but for the error, he would not have entered the plea.’ ” Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). “In determining whether the defendant has made such a showing, we consider, inter alia, ‘any record evidence tending to show that a misunderstanding was inconsequential to a defendant’s decision’ to plead guilty, as well as the ‘overall strength of the Government’s case.’” Id. (quoting Dominguez Benitez, 542 U.S. at 84-85, 124 S.Ct. 2333). Additionally, “because relief on plain-error review is in the discretion of the reviewing court, a defendant has the further burden to persuade the court that the error seriously affected the fairness, integrity or public reputation of judicial proceedings.” Id. (citation, internal quotation marks, and alteration omitted).

As noted above, we do not find Defendant’s guilty plea was involuntary and, therefore, we find no error. And even assuming, arguendo, the district court had erred, Defendant has not shown “a reasonable probability that, but for [an] error, he would not have entered the plea.” Id.

Finally, Defendant argues that the district court’s failure to inquire into the alleged conflict of Defendant’s attorney requires automatic reversal. Ordinarily, this Court would review de novo whether a defendant has established a conflict of interest. See United States v. O’Neil, 118 F.3d 65, 71 (2d Cir.1997).

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Related

MacHibroda v. United States
368 U.S. 487 (Supreme Court, 1962)
Brady v. United States
397 U.S. 742 (Supreme Court, 1970)
Blackledge v. Allison
431 U.S. 63 (Supreme Court, 1977)
Marshall v. Lonberger
459 U.S. 422 (Supreme Court, 1983)
Mickens v. Taylor
535 U.S. 162 (Supreme Court, 2002)
United States v. Dominguez Benitez
542 U.S. 74 (Supreme Court, 2004)
United States v. Lionel Marquez
909 F.2d 738 (Second Circuit, 1990)
United States v. Chaim Levy
25 F.3d 146 (Second Circuit, 1994)
United States v. David Williams
372 F.3d 96 (Second Circuit, 2004)
United States v. Scott Torrellas
455 F.3d 96 (Second Circuit, 2006)
Ventry v. United States
539 F.3d 102 (Second Circuit, 2008)
United States v. Doe
537 F.3d 204 (Second Circuit, 2008)
Rosado v. Civiletti
621 F.2d 1179 (Second Circuit, 1980)

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328 F. App'x 704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-khan-ca2-2009.