Appeal from an order of the Eastern District, denying appellant's motion for a writ of habeas corpus, 28 U.S.C. § 2255, which claimed that his plea of guilty to conspiracy to distribute heroin had been accepted without an adequate factual basis and without the effective assistance of counsel. Reversed and remanded.
Lumbard, Oakes, and Kearse, Circuit Judges.
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. § 2255. Montgomery alleges that the district court erred in denying his motion to withdraw his 1984 plea of guilty to conspiracy to distribute heroin (18 U.S.C. § 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.
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 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."
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. § 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:
"On or about and between the 16th day of December, 1983 and the 20th day of 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.
It was a part of that conspiracy that the defendants . . . knowingly and intentionally 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. § 846."
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:
It is my understanding of the law . . . that I believe there is case law on it that says that a conspiracy charged strictly with Government agents -- and I believe there is even a drug case where the Government agents were ...