Petition for Writ of Certiorari — Sarga v. United States

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O04 84 JUL 12 2004

Case No. __ OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2003

MICHAEL SARGA,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the Eleventh Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

ROBERT AUGUSTUS HARPER

Robert Augustus Harper Law Firm, P.A.

325 West Park Avenue

Tallahassee, Florida 32301-1413

(850) 224-5900/fax (850) 224-9800

FL Bar No. 127600/GA Bar No. 328360

MICHAEL ROBERT UFFERMAN

Robert Augustus Harper Law Firm, P.A.

FL Bar No. 114227

COUNSEL FOR PETITIONER

A. QUESTIONS PRESENTED F OR REVIEW

1. Whether the Eleventh Circuit Court of Appeals

clearly erred by reaching the merits of Petitioner Sarga’s claims in

denying the application for a certificate of appealability in

contravention of the Court’s criteria Set forth in Miller-E] y.

Cockrell, 537 U.S. 322 (2003).

2. Whether the conflict among the circuits regarding

the treatment of filing and consideration of an application for a

Certificate of appealability creates a constitutional need for the Court

to accept certiorari review and adopt a uniform procedure for the

courts of appeals.

B. PARTIES INVOLVED

The parties involved are identified in the style of the case.

iii

C. TABLE OF CONTENTS AND TABLE OF

AUTHORITIES

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......... il

ce re ili

TABLE OF CONTENTS AND TABLE OF

ee ee ee ee iv

J EE cee becca secnsecneneees iv

2 Table of Cited Authorities ................ vi

CITATION TO OPINION BELOW ............... 2

a Bo 8 ee 2

STATUTORY AND RULE PROVISIONS

ie hi whet in 6h bk kde d oad s0 kb '8 ke 2

i Statutory Provisions ..... eee 2

y Local Rules of Procedure ..........ecss05- 3

SEATEMENT OF THE CASE 22... ccc cece sucess 5

REASONS FOR GRANTING THE WRIT .......... 7

1. The Decision of the Court of Appeals is

PE Ge Veb4a Ok es 65a be ske én eakens 7

y I The Eleventh Circuit Court of Appeals’

local rule of procedure for obtaining a

certificate of appealability conflicts with

Ninth Circuit’s Local Rule ............---- 28

I. ‘os #0). 3 Serer rere errs ce 30

TABLE OF CITED AUTHORITIES

1. Cases

Boykin v. Alabama, 395 U.S. 238 (1969) ................. 26

Gaddy v. Linahan, 780 F.2d 935 (11th Cir. 1986) ...... ic 24

Hill v. Lockhart, 474 U.S. 52 (1985) | SAAS ORUR ATE RMN RES 27

Holloway v. Arkansas, 435 U.S. 475 (1978) ............00. 23

Miller-El v. Cockrell, 537 U.S. 322 (2003) ............ 7, 8, 10

Slack v. McDaniel, 529 U.S. 473 (2000) .............00.. 8,9

Spreitzer v. Peters, 114 F.3d 1435 (7th Cir. 1997) .......... 17

Strickland v. Washington, 466 U.S. 668 (1984) ............ 10

United States v. Alvarez, 580 F.2d 1251 (Sth Cir. 1978) ...... 22

United States v. Buckles, 843 F.2d 469 (11th Cir. 1988)...... 26

United States v. Fahey, 769 F.2d 829 (1st Cir. 1985) ........ 17

United States v. Ming He, 94 F.3d 782 (2d Cir. 1996) ....... 14

Wheat v. United States. 486 U.S. 153 (1988) .............. 23

Wood v. Georgia, 450 U.S. 261 (1981) ...........0....... 17

y ® Statutes, Rules and Constitutional Provisions

Pod. R. App. P.4 0... cic sccccserccensenccceseccvusenss 4

Fed. R. App. P. 22(b) .. 0... eee cece eect ere eeeceee : i.

Fed. R. App. P. 22(b)(1) ..-. ee eee eee reer rere eee ccees 28

Oe ae, 5 St eee 26

U.S. Const. amend. VI... ce wee c eer e cence enecnens 10

Sth, Cie. Rade 22-1 wesc venwevcsenecsseccsssesnes 4, 28

Otte Cle. Bande ZB+d nc ccc wetsntecusassawastanesenss 3, 28

28 U.S.C. 8 12SAE1) . vc cccvccccccceecsnscneresssesseses 2

y fOk Com}. Pr erwereerer rr. oe 2, 7, 9, 30

2B USC. & ZAEME) ooo scvcncnccsenasccesesesessasess 7,9

2B U.S.C. § Z253B(CK 1)... weer nncccvnccscccecccsvcnsens 7

28 U.S.C. § 2253(c)(2) ... errr TT Ter 4

28 U.S.C. 0 FISH occ vce cccneesnccanssesecsaneesuaes 3,4

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3. Other

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Vii

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Case No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2003

MICHAEL SARGA,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the Eleventh Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

The Petitioner, MICHAEL SARGA, respectfully prays the

Court to issue its writ of certiorari to review the judgment of the

United States Court of Appeals for the Eleventh Circuit entered in

this case on 27 January 2004, (A-3),' rehearing/reconsideration

denied on 12 April 2004 (A-1). The Eleventh Circuit denied

Petitioner Sarga’s application for a certificate of appealability (COA)

' References to the Appendix will be made by the designation “A”

followed by the appropriate page number.

concerning the denial of his habeas petition filed pursuant to 28

U.S.C. 2255.

D. CITATION TO OPINION BELOW

Sarga v. United States, Case No. 03-14410-F (11th Cir. Jan.

27, 2004) (unpublished order) (A-3).

E. BASIS FOR JURISDICTION

The jurisdiction of the Supreme Court of the United States

is invoked pursuant to 28 U.S.C. § 1254(1) to review the final

judgment of the United States Court of Appeals for the- Eleventh

Circuit rendered on 27 January 2004 (A-3), and finalized on 12 April

2004 when rehearing/reconsideration was denied. (A-1).

F. STATUTORY AND RULE PROVISIONS

INVOLVED

1. Statutory Provisions.

28 U.S.C. § 2253. Appeal

(a) In a habeas corpus proceeding or a proceeding under

section 2255 before a district judge, the final order shall be subject

to review, on appeal, by the court of appeals for the circuit in which

the proceeding is held.

-(b) There shall be no right of appeal from a final order ina

proceeding to test the validity of a warrant to remove to another

district or place for commitment or trial a person charged with a

criminal offense against the United States, or to test the validity of

SLRS AS LLANE Cee EAL EIN

such person's detention pending removal proceedings.

(c)(1) Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals

from--

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph

(1) only if the applicant has made a substantial showing of the denial

of a constitutional right.

(3) The certificate of appealability under paragraph (1) shall

indicate which specific issue or issues satisfy the showing required

by paragraph (2).

2. Local Rules of Procedure.

a. Eleventh Circuit Pule 22-1 Certificate of Appealability

(a) In all appeals in cases brought pursuant to 28 U.S.C. §§

2254 or 2255, counsel shall apply to the district court for a ruling on

a certificate of appealability.

(b) The district court shall promptly send to the court of

appeals upon issuance a certificate of appealability or statement that

such a certificate should not issue.

acted upon by the district court, but the applicant has not filed a

notice of appeal:

(1) the district court shall construe the application for a

certificate of appealability as also a notice of appeal, and file it as

such; and

(2) if the district court denies a certificate of appealability,

and at the time of docketing the appeal in the court of appeals the

applicant has not filed a renewed application for a certificate of

appealability in the court of appeals, the application denied by the

district court (construed and filed as a notice of appeal) shall be

construed by the court of appeals as a renewed application for a

certificate of appealability.

(d) An application to the court of appeals for a certificate of

appealability shall be considered by a single circuit judge. The denial

by a single circuit judge of a certificate of appealability may be the

subject of a motion for reconsideration but may not be the subject of

a petition for panel rehearing or a petition for rehearing en banc.

b. Ninth Circuit Rule 22-1 Certificate of Appealability

(a) General Procedures. Petitioners appealing the district

court’s judgment in either a 28 U.S.C. §§ 2254 and 2255 proceeding

should follow the procedures set forth in Federal Rules of Appellate

Procedure 4 and 22(b). A motion for a certificate of appealability

(“COA”) must first be considered by the district court. If the district

court grants a COA, the court shall state which issue or issues satisfy

the standard set forth in 28 U.S.C. § 2253(c)(2). The court of appeals

will not act on a motion for a COA if the district court has not ruled

first.

(d) Denial in Full by District Court. If the district court

denies a COA as to all issues, petitioner may file a motion fora COA

in the court of appeals within thirty-five (35) days of the district

court’s entry of its order (1) denying a COA in full, or, (2) denying

a timely filed post-judgment motion, whichever is later. If petitioner

does not file a COA motion with the court of appeals after the district

court denies a COA motion in full, the court of appeals will deem the

notice of appeal to constitute a motion for a COA. If the court

appoints counsel to represent petitioner, counsel will be given

additional time to file a renewed COA motion.

If petitioner files a motion for a COA with the court of

appeals, respondent may, and in capital cases with no pending

execution date shall, file a response to the motion for a COA within

thirty-five (35) days from service of the COA motion. In capital

cases where an execution date is scheduled and no stay is in place,

respondent shall file a response as soon as practicable after the date

petitioner's motion is served or, if no motion is filed, as soon as

practicable after the district court's entry of its order denying a COA.

If, after the district court has denied a COA in full, the

motions panel also denies a COA in full, petitioner, pursuant to

Stent ett tii tine Fe CR G8 PFA? OPO:

Circuit Rule 27-10, may file a motion for reconsideration.

G. STATEMENT OF THE CASE

1. Course of Proceedings Below.

On 16 November 1998, Petitioner Sarga timely filed a

petition for a writ of habeas corpus in the Middle District of Florida

pursuant to 28 U.S.C. § 2255. Upon order of the court, Petitioner

Sarga filed an amended petition on 09 October 2001. Petitioner

Sarga raised eight claims in the petition: (1) defense counsel

rendered ineffective assistance of counsel as a result of a conflict of

interest, in that defense counsel previously represented codefendant

Donald Shreve, the Government’s chief witness against Petitioner

Sarga; (2) defense counsel rendered ineffective assistance as a result

of aconflict of interest regarding Petitioner Sarga’s business dealings

with counsel, and a truthful, complete debriefing could have led to

either criminal or ethical liability for counsel; (3) defense counsel

rendered ineffective assistance by failing to attend the debriefing

with Petitioner Sarga; (4) defense counsel rendered incffective

assistance by advising Petitioner Sarga to testify at the sentencing

hearing; (5) the prosecutor engaged in prosecutorial misconduct in

that she was aware of defense counsel’s existing conflicts of interest

and she failed to disclose the conflicts to the court or Petitioner

Sarga; (6) the prosecutor engaged in prosecutorial misconduct when

she debriefed Petitioner Sarga without counsel present; (7) appellate

counsel rendered ineffective assistance by failing to raise the issues

set forth above on direct appeal, and (8) defense counsel rendered

ineffective assistance when he permitted Petitioner Sarga to believe

that he should be debriefed even though: (a) the terms of the

cooperation agreement were not finalized, (b) Petitioner Sarga

believed that certain guarantees about his cooperation agreement had

been given, (c) counsel gave incorrect advice to Petitioner Sarga

resulting in Petitioner Sarga’s plea not being intelligently entered, (d)

counsel failed to secure the presence of Petitioner Sarga at a hearing

regarding the motion to enforce plea agreement, and (e) counsel

failed to fully advise Petitioner Sarga regarding the details of the

cooperation agreement. An evidentiary hearing was held on 28-29

January 2003. On 21 March 2003, the magistrate judge issued a

Report and Recommendation, concluding that Petitioner Sarga’s

habeas petition should be denied. (A-12). On 02 July 2003, the

district court entered an order adopting the magistrate judge’s Report

and Recommendation; as a result, the habeas petition was denied. (A-

10). Petitioner Sarga timely appealed the order and requested the

district court to issue a COA. The district court denied the motion

for COA on 22 November 2003. (A-4).

2. Statement of the Facts. The facts are set forth in

the magistrate judge’s fifty-three-page Report and Recommendation

(A-12) and are hereby incorporated by reference.

H. REASONS FOR GRANTING THE WRIT

1. The Decision of the Court of Appeals is

Erroneous.

As explained below, the Eleventh Circuit Court of Appeals’

decision to deny Petitioner Sarga’s application for a COA runs

counter to the established purpose of 28 U.S.C. § 2253? and the

decisions of this Court. In Miller-El v. Cockrell, 537 U.S. 322, 336

(2003), the Court observed that a COA will issue only if the

requirements of § 2253 have been satisfied. “§ 2253(c) permits the

issuance of a COA only where a petitioner has made a substantial

2 The provisions of 28 U.S.C. § 2253(c)(1) were included in the Anti-

Terrorism and Effective Death Penalty Act of 1996.

showing of the denial of a constitutional right.” /d. “Under the

controlling standard, a petitioner must show that reasonable jurists

could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed

further.” Jd.

The Court in Miller-El recognized that a determination as to

whether a COA should be issued “requires an overview of the claims

in the habeas petition and a general assessment of their merits.” Jd.

The Court recognized that the question to be determined is whether

a district court’s resolution of a habeas petition was debatable

amongst jurists of reason. The Court reasoned:

This threshold inquiry does not require full

consideration of the factual or legal bases adduced

in support of the claims. In fact, the statute forbids

it. When a court of appeals side steps this process

by first deciding the merits of an appeal, and then

justifying its denial of a COA based on its

adjudication of the actual merits, it is in essence

deciding an appeal without jurisdiction.

To that end, our opinion in Slack [v.

McDaniel, 529 U.S. 473 (2000),] held that a COA

does not require a showing that the appeal will

succeed. Accordingly, a court of appeals should not

decline the application for a COA merely because it

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believes the applicant will not demonstrate an

entitlement to relief. The holding in Slack would

mean very little if appellate review were denied

because the prisoner did not convince a judge, or,

for that matter, three judges, that he or she would

prevail. It is consistent with § 2253 that aCOA will

issue in some instances where there is no certainty

of ultimate relief. After all, when a COA is sought,

the whole premise is that the prisoner has already

failed in that endeavor.

Id. at 336-37. The Court proceeded to stress that the issuance of a

COA must not be merely a matter of course. The Court clearly

defined the test for issuing a COA as follows:

A prisoner seeking a COA must prove “something

more than the absence of frivolity” or the existence

of mere “good faith” on his or her part. Barefoot, at

893. We do not require petitioner to prove, before

the issuance of aCOA, that some jurists would grant

the petition for habeas corpus. Indeed, a claim can

be debatable even though every jurist of reason

might agree, after the COA has been granted and the

case has received full consideration, that petitioner

will not prevail. As we stated in Slack, “[wJhere a

district court has rejected the constitutional claims

on the merits, the showing required to satisfy §

2253(c) is straightforward: The petitioner must

demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional

claims debatable or wrong.” 529 U.S. at 484.

Id. at 338.

Pursuant to the test articulated in Miller-El, an overview of

the claims set forth in Petitioner iiaas habeas petition confirms

that the constitutional claims are debatable amongst jurists of reason.

i. Ineffective Assistance of Counsel. In Strickland v.

Washington, 466 U.S. 668, 686 (1984), the Court established that

implicit in the Sixth Amendment’s guarantee of a criminal

defendant’s right “to have the Assistance of Counsel for his

defence,” U.S. Const. amend. VI, is the right to the effective

assistance of counsel. Petitioner Sarga raised several claims of

ineffective assistance of counsel in his habeas petition which satisfy

the Miller-El test. The actions of defense counsel were the direct

result of the conflict of interest that counsel had with his

representation of Petitioner Sarga and counsel’s previous

representation of the Government’s chief witness, Donald Shreve.

At the time of the charges in the instant case, Mr. Shreve was a

codefendant of Petitioner Sarga in a federal North Carolina

indictment involving a related cocaine charge.

First, defense counsel permitted Petitioner Sarga to be

debriefed without having an agreement, or understanding, on the

scope or parameters of the debriefing, which resulted in the

Government delving into matters to which were prejudicial to the

sentencing issues. When he declined to go further, Petitioner Sarga

was at odds with the Government. Prejudice resulted in the

Government moving to revoke the acceptance of responsibility

adjustment.

Second, defense counsel permitted Petitioner Sarga to be

debriefed without defense counsel being present. With defense

counsel present, the possibility would have existed that some

parameters would have been set and that the debriefing would have

gone forward as opposed to the stalemate which occurred.

Third, because of the failed debriefing and the position of the

prosecutor as a result of that failure, defense counsel was unable to

negotiate any oral or written plea agreement. Counsel advised

Petitioner Sarga to enter an open guilty plea. This third deficiency

is a direct result of the first two deficiencies set forth above.

As a result of the failed debriefing, the Government argued

to increase Petitioner Sarga’s sentencing range by representing that

he was subject to a role enhancement due to his alleged leadership

role. In an attempt to challenge the role enhancement, defense

counsel advised Petitioner Sarga to testify at the sentencing hearing,

a fourth instance of ineffective assistance of counsel. Petitioner

Sarga relied on the advice of defense counsel and took the witness

stand. Defense counsel opened the door for the Government to

examine Petitioner Sarga regarding his finances and assets, which led

to: (1) an allegation of perjury; (2) the district judge’s request for a

transcript of the sentencing hearing and a aii to review said

transcripts; (3) the Government procuring and executing an “open-

ended” search warrant for Petitioner Sarga’s family’s homes, which,

ultimately revealed “new evidence” for the Government; and (4) the

Government’s filing of a request for an additional two-level

enhancement for obstructing or impeding the administration of

justice pursuant to U.S.S.G. § 3C1.1 based on Petitioner Sarga’s

“materially false statements to the court” at the sentencing hearing.

It is an essential part of a defense attorney’s job to advise his

client in the decision to take the witness stand. Defense counsel

failed to evaluate the effect Petitioner Sarga would make on the

stand. Counsel never prepared Petitioner Sarga to testify and never

explained to Petitioner Sarga that cross-examination was a dangerous

i Ai eh iad tly

juncture at which he would be compelled to discuss the very topics

defense counsel had negotiated with the Government vigorously to

keep out of the debriefing session and the ultimate sentencing

process.

The advice that Petitioner Sarga testify at the sentencing

hearing caused Petitioner Sarga to lose the role enhancement issue,

which acted to counter the three-level reduction for acceptance o

responsibility. Also, Petitioner Sarga incurred the additional two-

level enhancement for obstruction of justice. Rather than instructing

Petitioner Sarga to testify, defense counsel should have successfully

attacked the role enhancement simply by calling available witnesses

to the stand. Their testimony would have made it clear that

Petitioner Sarga was actually a minimal participant in the overall

conspiracy.

The errors compounded each other, resulting in a domino

effect. Had the debriefing been successful, the role enhancement

would never have been an issue in the first place. There would have

been a plea agreement in place. Had a plea agreement been in place,

there would have been no need for Petitioner Sarga to testify at the

sentencing hearing. Had Petitioner Sarga not testified, his sentence

would not have been increased pursuant to the obstruction of justice

enhancement. Ultimately, had Petitioner Sarga proceeded pro se and

simply pled guilty, without “assistance of counsel,” he would been

better off than he is today. When no assistance of counsel would

have been better than the assistance provided, the assistance must be

deemed ineffective.

In his habeas petition, Petitioner Sarga relied on United

States v. Ming He, 94 F.3d 782 (2d Cir. 1996), wherein the Second

Circuit Court of Appeais examined a policy in the Eastern District of

New York that a cooperating defendant be debriefed without counsel

present. The court held that “the government’s standard practice in

this district of conducting debriefing interviews outside the presence

of counsel is inconsistent, in our view, with the fair administration of

criminal justice.” /d. at 785. The court explained:

Defendant and his counsel should be given

reasonable notice of the time and place of the

scheduled debriefing so that counsel might be

present. A cooperating witness’s failure to be

accompanied by counsel at debriefing may later be

construed as a waiver, providing defendant and

counsel have had notice so that the consequences of

_—s

counsel’s failure to attend could be explained to

defendant.

Id. at 794. The court added that the government may not “conduct

debriefing interviews without giving reasonable advance notice to the

defendant, through his attorney, in order to permit him to be

represented if he so chooses.” /d.

In Ming He, the court found that defendant’s failure to be

represented at the debriefing was harmful error. The prosecutor in

Ming He later claimed that the defendant did not provide full

disclosure at the debriefing. At the sentencing hearing, despite the

Government’s § 5K1.1 motion, the district court only marginally

departed downward from the guideline range. The district court

reasoned that the defendant was evasive at the debriefing. The

Second Circuit reversed, stating:

[Since the district court explicitly relied on

defendant’s lack of candor, its sentencing error was

not harmless. Plainly, this factor influenced the

sentencing court’s selection of the sentence.

Id. at 795. Petitioner Sarga submits that Ming He is applicable to his

case and further supports his claim that counsel was ineffective for

failing to be present at the debriefing. Pursuant to Ming He,

Petitioner Sarga did not waive his right to have counsel present at the

debriefing.

The magistrate judge below held that “Ming He is

distinguishable from this case because it was Seren’ untruthful

testimony at the sentencing hearing, not the failed debriefing, which

led to his life sentence.” (A-71). The magistrate judge added that

there was no prejudice because “the prosecutor made it clear that

[defense counsel] could not be present” at the debriefing. (A-71).

The magistrate judge relied on the very policy that the court in Ming

He held was impermissible.

For all of these reasons, Petitioner Sarga submits that

whether or not he received ineffective assistance of counsel and

whether or not he was prejudiced by counsel’s ineffectiveness are

matters debatable amongst jurists of reason. A COA should have

been issued as to Petitioner Sarga’s claims of ineffective assistance

of counsel.

2. Conflict of Interest. Where a right to counsel

exists, there is a correlative Sixth Amendment right to

“representation that is free from conflicts of interest.” Wood v.

Georgia, 450 U.S. 261, 271 (1981). “It is well settled that a criminal

defendant is entitled to counsel whose undivided loyalties lie with

the client.” Spreitzer v. Peters, 114 F.3d 1435, 1450 (7th Cir. 1997).

To prevail on a claim of conflict of interest, a petitioner must

establish: (1) some plausible alternative defense strategy that might

have been pursued, (2) the alternative strategy was reasonable, and

(3) a link between the conflict and the decision to forgo the

alternative strategy. See United States v. Fahey, 769 F.2d 829, 829

(1st Cir. 1985). In the instant case, Petitioner Sarga was debriefed

without the benefit of either counsel or a plea agreement. A

complete debriefing may have uncovered counsel’s improper

personal dealings with Petitioner Sarga. Moreover, it was in

counsel’s interest to convince Petitioner Sarga to enter a plea to

prevent the possibility of having to cross-examine counsel’s old

client (Donald Shreve) at trial.

Defense counsel was clearly the counsel of choice for

members of the Tampa-based drug group. Counsel and his firm had

represented at least four individuals in a 1975 Tampa federal

prosecution, a case in which the charges against Petitioner Sarga

were dismissed. Almost contemporaneously, defense counsel

represented eighteen members of the organization in a 1975 federal

prosecution in Georgia. Not only did defense counsel formerly

represent Pedro Alvarez, a defendant in the Georgia case, he also

represented Donald Shreve in that matter, the very codefendant in the

instant case who was prepared to testify against Petitioner Sarga at

trial. Due to this conflict, defense counsel encouraged Petitioner

Sarga to enter a plea of guilty in order to avoid having to cross-

examine Mr. Shreve at trial.

Additionally, a conflict of interest existed insofar as defense

counsel had a vested interest in assuring that a second proffer session

never materialized. The evidentiary hearing reveals that defense

counsel was involved in an alleged money laun ering scheme,

questionable land deals, and receiving large sums of cash from

clients before trouble was ever on the horizon. All of this

information should have, and would have, been divulged at a full

debriefing of Petitioner Sarga.

Defense counsel’s conflict of interest concerning Mr. Shreve

and the conflict of interest in hiding his own questionable financial

deals precipitated one blunder after another. Defense counsel was

aware that the substantial assistance policy of the Department of

Justice required full disclosure of all of the defendant’s criminal

activities, identification of cohorts, and a complete recapitulation of

assets. Defense counsel was also mindful that recitation of those

facts would invariably lead to the question “what did you do with the

money you made selling drugs?,” whereupon defense counsel's

questionable cash deals and land deals with Petitioner Sarga would

have been disclosed. Defense counsel pursued a limited cooperation

agreement, which is rarely, if ever, approved by the Department of

Justice, where in exchange for information about the incidents which

were the subject of the instant indictment, Petitioner Sarga would

receive a recommendation from the prosecutor for a four-level

sentence reduction. A condition of the limited cooperation was that

Petitioner Sarga would not discuss activities that occurred more than

three years prior to the agreement and that he would not talk about

family members. Counsel encouraged this position. Petitioner Sarga

was given advice that the four-point reduction, which would be

obtained by this limited cooperation, would result in a sentence of

—

approximately ten years’ imprisonment. Counsel advised limited

cooperation to Petitioner Sarga.

Placating Petitioner Sarga was a fortuitous byproduct of

counsel’s primary motive in encouraging Petitioner Sarga not to fully

disclose according to requirements of law. Defense counsel was

willing for Petitioner Sarga to risk (and receive) a long period of

incarceration to protect counsel from negative consequences which

might flow from revelation of counsel’s questionable financial

dealings with narcotics clients over the last two decades.

There was an exchange of letters between the prosecutor and

defense counsel in which counsel actually attempted to hammer out

a disclosure deal where defense counsel would not be discussed.

Although no understanding between the parties was reached, the

prosecutor nonetheless proceeded with the debriefing of Petitioner

Sarga at a time when she knew — from counsel’s letter to her — that

defense counsel would be out of town. Petitioner Sarga was unaware

at the time of the debriefing that the prosecutor viewed the interview

as a confession to which no agreement attached. Petitioner Sarga

was never advised by his counsel that the debriefing was unlimited.

tae

He was never informed that the fruits of the interview would be used

against him, ultimately resulting in the life sentence being imposed.

Rather, defense counsel left Petitioner Sarga with the mistaken

impression that the prosecutor would recommend a reduction of

sentence in exchange for disclosure of the facts of the instant matter

with nothing more.

Petitioner Sarga submits that for purposes of obtaining a

COA, it is subject to fair debate that he established the elements of

his conflict of interest claim. Plausible alternative tactics should

have been pursued. Counsel should have advised Petitioner Sarga to

fully disclose. Counsel should have kept Petitioner Sarga accurately

informed of the status of negotiations with the prosecutor. Finally,

defense counsel could have simply recommended that Petitioner

Sarga proceed to trial. By choosing to enter a guilty plea in light of

the unfavorable legal landscape following the failed attempt at a

“controlled limited” debriefing, defense counsel unilaterally decided

to relinquish Petitioner Sarga’s right to make the Government prove

in a court of law every element of the charge against him, in part

because of the problems which would be inherent to defense counsel

in the trial.

However, by going to trial, defense counsel would have

risked the possibility of being disqualified due to the conflict of

interest with Government witness Shreve. Had the trial proceeded,

counsel risked having his own financial dealings with his client

revealed and possible consequences to him, both criminal and

professional. Unless Shreve waived his attorney-client

confidentiality, defense counsel could not impeach him with

information learned in the course of representing him.

It is difficult to imagine how matters could have worked out

worse for Petitioner Sarga. In the 1975 case of United States v.

Alvarez, 580 F.2d 1251 (5th Cir. 1978), the same attorney also

indulged patent representation conflicts. Counsel emerged

unscathed. The tactics of defense counsel are not reasonable under

the facts of this case, especially where Petitioner Sarga was facing a

life sentence and all of his codefendants in this case ultimately

entered into favorable plea and cooperation agreements.

| Jurists of reason could fairly debate the alleged conflict of

interest violation. “[I]n a case of joint representation of conflicting

interests the evil . . . is in what the advocate finds himself compelled

to refrain from doing ... .” Wheat v. United States. 486 U.S. 153,

159-60 (1988) (emphasis added) (quoting Holloway v. Arkansas, 435

U.S. 475, 482 (1978)). The truth that inaction is the essence of a

conflict of interest problem is borne out in the instant case. Had trial

counsel advised Petitioner Sarga to proceed to trial, he would likely

have been placed in the untenable position of cross-examining one

of his former clients about the activities of a drug organization with

which he was already intimately familiar due to his twenty-year

history of representing in turn and in tandem its many members. In

direct disregard for the well settled principles of ethics and conflict

of interest law reiterated in Alvarez, trial counsel recognized no

limits on his employment and consequently accepted employment

representing a potential client with interest adverse to a former client.

See Alvarez, 580 F.2d at 1254-1255.

In evaluating counsel’s performance under a conflict of

interest claim, the Court in Alvarez recognized an important

distinction between claims of ineffectiveness based on conflict of

interest and other types of ineffectiveness claims: “Unlike

competency of representation, where an attorney’s conduct may fall

anywhere along a continuum ranging from incompetent to

superlative, conflict-laden representation is not susceptible of such

fine gradations.” Alvarez, 580 F.2d at 1257.

The alternative tactics set forth above are clearly,

incontrovertibly, and inherently in conflict with defense counsel’s

other loyalties and personal interests. Jurists of reason could fairly

debate whether defense counsel’s representation of Petitioner Sarga

presented an actual conflict of interest that adversely affected

counsel’s representation of Petitioner in violation of his right to

effective assistance counsel.

3. Involuntary Plea. “The fourteenth amendment due

process clause requires that a plea of guilty be knowingly and

voluntarily entered because it involves a waiver of a number of the

defendant’s constitutional rights.” Gaddy v. Linahan, 780 F.2d 935,

943 (11th Cir. 1986). Due to the unusual events that occurred both

before and after Petitioner Sarga entered his plea, his plea was not

knowing, voluntary, or intelligent.

Between the plea hearing and the sentencing hearing, several

attempts were made by Petitioner Sarga to withdraw the plea. The

first two days of sentencing hearings were held 29 and 30 December

1992. The sentencing hearing was then postponed while the district

court reviewed the transcripts of the first two days of the

proceedings. On 21 and 27 January 1992 the Government filed

motions for extensions to file supplemental sentencing

memorandums. Defense counsel filed an objection to the

Government’s motions for extensions and, on 12 February 1993, the

trial court construed the objection as a “motion to withdraw [the]

guilty plea and denied the motion as premature.” Thereafter,

~ Petitioner Sarga was sentenced on 28 April 1993. Then, on 07 May

1993, defense counsel filed a post-sentencing motion to withdraw the

guilty plea, along with the notice of appeal of the life sentence and

fine.

Initially it is noted that_the district court never entered an

order accepting Petitioner Sarga’s guilty plea. The magistrate judge

held that the court “implicitly accepted Sarga’s guilty plea,” but

Petitioner Sarga submits that implicit acceptance is not sufficient

pursuant to Federal Rule of Criminal Procedure 11. (Doc 470 - Pg

51). Petitioner Sarga scheduled the entry of a plea of guilty before

the Honorable Elizabeth A. Jenkins. At the conclusion of the

colloquy, Magistrate Jenkins made it clear to Petitioner Sarga that

she was not accepting the plea.

On several occasions prior to sentencing, Petitioner Sarga

moved to withdraw his plea of guilty, but the district court refused.

“Fair and just reason” for the withdrawal of the guilty plea, as

required by Rule 32(3), existed in Petitioner Sarga’s case, at least at

the point that the Government moved to continue the sentencing

hearing after Petitioner Sarga’s testimony. See United States v.

Buckles, 843 F.2d 469, 471-74 (11th Cir. 1988). Petitioner Sarga

was taken by surprise at the sentencing hearing when the

Government cross-examined him regarding assets and then attempted

to add the obstruction of justice enhancement. What started out as

a purported plea agreement and debriefing turned into an ambush.

Petitioner Sarga’s case falls outside the normal legal

landscape. Boykin v. Alabama, 395 U.S. 238 (1969), and its circuit

hybrids do not address a situation where a person pleads guilty

without knowledge that the Government may subsequently seek

open-ended search warrants and gain access to “new evidence” to

introduce at a continued sentencing hearing to increase the guideline

range to the life bracket. Pursuant to Hill v. Lockhart, 474 U.S. 52

(1985), there is reasonable probability that, but for defense counsel’ s

errors, Petitioner Sarga would have not pled guilty and would have

insisted on going to trial. Had defense counsel warned Petitioner

Sarga that he could be subject to a life sentence as a result of the

Government’s cross-examination of him on the witness stand,

Petitioner Sarga would have insisted on proceeding to trial. In fact,

had Petitioner Sarga simply proceeded pro se and pled guilty without

any assistance of counsel, even if the role enhancement had become

an issue, had he not contested it, he would have been sentenced at

level 38, two levels under what he received with defense counsel’s

ineffective assistance.

Petitioner Sarga submits that whether or not his plea was

entered knowingly is a matter debatable amongst jurists of reason.

A COA should be issued as to Petitioner Sarga’s involuntary plea

claim.

Based on the forgoing, the Eleventh Circuit clearly erred by

denying Petitioner Sarga’s application fora COA. The issues raised

in Petitioner Sarga’s habeas petition were matters debatable amongst

jurists of reason.

2. The Eleventh Circuit Court of Appeals’ local rule

of procedure for obtaining a certificate of appealability conflicts

with the Ninth Circuit’s local rule.

The federal circuit courts are in conflict regarding the

procedure for obtaining a COA. Federal Rule of Appellate

Procedure 22(b)(1) states that “[i]f the district judge has denied the

certificate, the applicant may request a circuit judge to issue the

certificate.” However, the rule does not provide a time limit for

making such a request.

Eleventh Circuit Rule 22-1(c)(2) states that “if the district

court denies a certificate of appealability, and at the time of

docketing the appeal in the court of appeals the applicant has not

filed a renewed application for a certificate of appealability in the

court of appeals, the application denied by the district court

(construed and filed as a notice of snneel) shall be construed by the

court of appeals as a renewed application for a certificate of

appealability.” However, the rule does not set forth a time period for

filing a renewed application for a COA in the court of appeals.

By comparison, Ninth Circuit Rule 22-1(d) provides:

If the district court denies a COA as to all issues,

petitioner may file a motion for a COA in the court

of appeals within thirty-five (35) days of the district

court’s entry of its order (1) denying a COA in full,

or, (2) denying a timely filed post-judgment motion,

whichever is later.

(Emphasis added.) The procedure in the Ninth Circuit is in conflict

with the procedure in the Eleventh Circuit, as a petitioner in the

Ninth Circuit is on notice as to how much time he or she has to file

a motion for a COA in the appellate court. In contrast to the

procedure in the Ninth Circuit, it is not clear how long a petitioner in

the Eleventh Circuit has to file a motion for a COA. If a petitioner

filed the motion on the thirty-fifth day (as permitted in the Ninth

Circuit), it appears, pursuant to Eleventh Circuit Rule 22-1 that the

Court will have already ruled on the issue without the benefit of a

written motion. Further, no guidance is provided as to whether the

notice of appeal precedes or follows the COA. Petitioner Sarga

respectfully requests the Court to grant the writ in order to allow this

issue to be further briefed by the parties, thereby affording the Court

naa aaa aaa

the opportunity to provide guidance and uniformity in this otherwise

unsettled procedural arena.

I. CONCLUSION

The Petitioner respectfully requests the Court to grant the

writ and correct the Eleventh Circuit’s interpretation of 28 U.S.C.

2253.

Respectfully Submitted,

325 West Park Avenue

Tallahassee, Florida 32301-1413

(850) 224-5900/fax (850) 224-9800

FL Bar No. 127600/GA Bar No. 328360

MICHAEL ROBERT UFFERMAN

Robert Augustus Harper Law Firm, P.A.

FL. Bar No. 114227

COUNSEL FOR PETITIONER

Case No.

IN THE 7

SUPREME COURT OF THE UNITED STATES

October Term, 2003

MICHAEL SARGA,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Appendix to

Petition for Writ of Certiorari

to the Eleventh Circuit Court of Appeals

ROBERT AUGUSTUS HARPER

Robert Augustus Harper Law Firm, P.A.

325 West Park Avenue

Tallahassee, Florida 32301-1413

(850) 224-5900/fax (850) 224-9800

FL Bar No. 127600/GA Bar No. 328360

MICHAEL ROBERT UFFERMAN

Robert Augustus Harper Law Firm, P.A.

FL Bar No. 114227

COUNSEL FOR PETITIONER

No.

TABLE OF CONTENTS

Document(s) Page

Eleventh Circuit court’s order denying Appellant’s

motion for reconsideration, dated

eT rer ee eee A-1

Eleventh Circuit court’s order denying Appellant’s

motion for a certificate of appealability,

dated 27 January 2004 ................. A-3

District court’s order denying Appellant’s certificate

of appealability, dated 22 November 2003 .. A-4

District court’s order denying Appellant’ s certificate

of appealability, dated 03 September 2003 .. A-8

District court’s order denying Defendant’s motion to

vacate, set aside, or correct an allegedly

illegal sentence, dated 02 July 2003 ...... A-10

Magistrate judge’s Report and Recommendation,

GHROE CE DU OOD anise ccaceancccens A-12

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-14410-F

D. C. Docket No.

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

MICHAEL SARGA.

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(12 April 2004)

Before: TJOFLAT and MARCUS, Circuit Judges.

BY THE COURT:

Appellant has filed a motion for reconsideration of this

Court’s order dated January 27, 2004. Upon reconsideration,

appellant’s motion for a certificate of appealability is DENIED

because appellant has failed to make the requisite showing. See 28

A-l

U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-37,

123 S. Ct. 1029, 1039, 154 L. Ed.2d 931 (2003); Slack v. McDaniel,

529 U.S. 473, 478, 120 S. Ct. 1595, 1600-01, 146 L.Ed.2d (2000);

Hill v. Lockhart, 474 U. S. 52, 58-59, 106 S. Ct. 366, 370, 88 8L.

Ed.2d 203 (1985); Strickland v. Washington, 466 U. S. 668, 697, 104

S. Ct. 2052, 2069, 80 L. Ed.2d 674 (1984); United States v. Frady,

456 U. S. 152, 167-68, 102 S. Ct. 1584, 1594, 71 L.Ed. 2d 816

(1982); Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719,

64 L.Ed.2d 333 (1980); Caderno v. United States, 256 F.3d 1569,

1572 (11" Cir. 1994); Tejada v. Dugger, 941 F.2d 1151, 1559 (11°

Cir. 1991). Appellant’s “Motion to Incorporate ‘Motion to

Reconsider’ With Circuit Precedent Gallego v. U.S., 174 F.3d 1196

(1999)” is DENIED. See Walker, 10 F.3d at 1572.

A-2

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-14410-F

D. C. Docket No.

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

MICHAEL SARGA.

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(27 January 2004)

ORDER:

Appellant’s motion for a certificate of appealability is

DENIED because appellant has failed to make a substantial showing

of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

/s/_ Stanley Marcus

UNITED STATES CIRCUIT JUDGE

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-14410-F

D. C. Docket No.

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

MICHAEL SARGA.

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(22 November 2003)

ORDER:

After conducting an evidentiary hearing on Defendant

Michael Sarga (Sarga’s) 28 U.S. C. § 2255 motion to vacate, set

aside, or correct an allegedly illegal sentence, United States

Magistrate Judge Elizabeth A. Jenkins submitted her Report and

Recommendation recommending that the motion to vacate be denied.

A-4

Sarga filed objections. After consideration of the United States

Magistrate Judge’s recommendation and Sarga’s objections, the

undersigned United States District Judge overruled Sarga’s

objections and adopted the Magistrate Judge’s recommendation to

deny the motion to vacate.

Sarga, who had been represented by retained counsel Mary

Catherine Bonner at the evidentiary hearing and in subsequent filings

relative to the motion to vacate, filed a pro se Notice of Appeal after

the Court denied his 28 U.S.C. § 2255 motion for relief. Pursuant to

Edwards v. United State, 114 F.3d 1083 (11" Cir. 1997), the Court

construed the Notice of Appeal as a request for a certificate of

appealability and denied the request. The Court relied on Slack v.

McDaniel, 529 U.S. 473, 475 (2000).

Subsequently, Attorney Bonner filed a motion on behalf of

Sarga to reconsider the denial of the request for certificate of

appealability. (Doc. No. 478) Attorney Bonner requested that,

because the issue of the certificate of appealability had not been fully

briefed, and because the failure to fully brief the issue was not

Sarga’s fault, the Court vacate or stay the effect of the order denying

A-5

the certificate of appealability and grant Sarga 15 days in which to

file a motion for certificate of appealability and fully brief the issue.

In addition, Attorney Bonner filed a motion to withdraw.

(Doc. No. 479) The Court granted the motion to vacate the order

denying Sarga’s construed request for certificate of appealability and

allowed Sarga to file a “fully-briefed” motion for certificate of

appealability on or before October 24, 2003. The Court also granted

Attorney Bonner’s motion to withdraw.

On October 20, 2003, Robert Augustus Harper and Michael

Robert Ufferman, Esq. filed a notice of appearance for appeal

purposes (Doc. No. 482); and on October 24, 2003, filed a motion for

a certificate of appealability pursuant to Title 28 U.S. C. § 2253.

To merit a certificate f appealability, Sarga must show that

reasonable jurists would find debatable (1) the merits of an

underlying claim, and (2) the procedural issues he seeks to raise. See

28 U.S. C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. After 473, 475

(2000)! Sarga has failed to meet this standard. Therefore, Sarga has

\Miller-El v. Cockrell, 123 S. Ct. 1029 (2003) does not change the Slack

standard. See Ziegler v. Crosby, 345 F. 3d 1300, 1303 n.4 (1 1" Cir. 2003).

A-6

failed to satisfy the Slack test.

Accordingly, the Court orders:

That Sarga’s motion for certificate of appealability pursuant

to Title 28 U.S.C. § 2253 (Doc. No. 482) is denied.

ORDERED in Tampa, Florida, on November 22, 2003.

/s/ Steven D. Merryday

Steven D. Merryday

UNITED STATES DISTRICT JUDGE

ce: AUSA Anthony Porcelli

Robert Augustus Harper, Esq.

Michael Robert Ufferman, Esq.

Michael Sarga

United States Court of Appeals for the Eleventh Circuit

SA/sm

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-14410-F

D. C. Docket No.

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

MICHAEL SARGA.

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(03 September 2003)

ORDER:

The Court denied Defendant Michael Sarga (Sarga’s) 28

U.S.C. § 2255 motion to vacate, set aside, or correct an allegedly

illegal sentence. Sarga has filed a Notice of Appeal. Pursuant to

Edwards v. United State, 114 F.3d 1083 (11" Cir. 1997), the Court

construes the Notice of Appeal as a request for a certificate of

appealability.

To merit a certificate of appealability, Sarga must show that

reasonable jurists would find debatable (1) the merits of an

underlying claim, and (2) the procedural issues he seeks to raise. See

28 U.S. C. 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 475 (2000).

Sarga has failed to meet this standard. Therefore, Sarga has failed to

satisfy the Slack test.

Accordingly, the Court orders:

That Sarga’s construed request for a certificate of

appealability (Doc. No. 476) is denied.

ORDERED in Tampa, Florida on September 3, 2003.

/s/ Steven D. Merryday

Steven D. Merryday

UNITED STATES DISTRICT JUDGE

SA/sm

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-14410-F

D. C. Docket No.

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

MICHAEL SARGA.

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(02 July 2003) ’

ORDER |

On April 1, 2002, pursuant to 28 U.S.C. § 636 and Rules

6.01(b) and (c), of the Local Rules for the Middle District of Florida,

the Court referred to the United States Magistrate Judge for

consideration and preparation of a report and recommendation

Sarga’s amended motion and supporting memorandum to vacate, set

A-10

aside, or correct an allegedly illegal sentence (Docs. 423, 425).

Magistrate Judge Elizabeth Jenkins conducted an evidentiary hearing

on January 28 and 29, 2003, and a telephonic closing argument on

February 26, 2003; she filed her Report and Recommendation on

March 21, 2003 (Doc. 470). The defendant filed objections to the

Report and Recommendation on April 25, 2003 (Doc. 472).

I have conducted an independent review of the file and have

considered the Magistrate Judge’s Report and Recommendation and

the defendant’s objections thereto. Upon consideration, the Court

adopts the findings of fact and conclusions of law enunciated in

Magistrate Judge Jenkins’ Report and Recommendation. The

defendant’s objections are overruled. Accordingly, the defendant’s

amended motion to vacate, set aside, or correct an allegedly illegal

sentence (Doc. 423) is DENIED with prejudice.

ORDERED in Tampa, Florida, on July 2, 2003.

/s/ Steven D. Merryday

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

A-11

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-14410-F

D. C. Docket No.

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus |

MICHAEL SARGA.

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(21 March 2003)

REPORT AND RECOMMENDATION

This cause is before the court on Michael Sarga (Sarga’s)

amended motion to vacate, set aside, or correct an allegedly illegal

sentence and supporting memorandum of law. 7 (Doc. Nos. 423,

*This matter has been referred to the undersigned United State Magistate

Judge by the District Judge for consideration and a Report and Recommendation.

See Local Rules 6.01(b) and 6.01(c), M.D. Fla.

A-12

424). Sarga is represented by retained counsel. He is serving a life

sentence for conspiracy to import into the United State five

kilograms or more of cocaine following entry of a guilty plea to that

charge. Akissue ane the flewng Jaime.

A. Ineffective assistance of counsel

I. Counsel had multiple conflicts of interests,

having represented the government’s chief witness

against Sarga, Donald Shreve (Shreve), and

approximately two dozen other related individuals;

II. Counsel had a conflict of interest regarding his

personal business dealings with Sarga; Sarga[s

disclosure of the business dealings counsel had with

Sarga and otherwise in a truthful, complete

debriefing could have led to either criminal or

ethical liability or both for counsel.

B. The prosecutor participated in prosecutorial misconduct

when she:

(I) should have been aware of th existing conflicts of

counsel and disclosed certain information to counsel

anyway, and

(ID) debriefed Sarga without counsel present.

C. Counsel rendered ineffective assistance of counsel at the

guilty plea and sentencing proceedings.

D. Appellate counsel was ineffective fer failing to raise any

*Sarga filed Exhibits A-T in support of his amended motion to vacate.

A-13

of the above on direct appeal.

E. Trial counsel was ineffective when he permitted Sarga to

believe that he could be debriefed even though (a) the terms of the

cooperation agreement were not finalized and (b) Sarga was given to

understand that certain guarantees about his cooperation had been

given; (c) counsel gave incorrect advice to Sarga such that Sarga did

not enter an intelligent plea; (d) counsel failed to secure the presence

of Sarga at a hearing regarding Sarga’s motion to enforce the plea

agreement and to call Sarga as a witness; (€) counsel rendered

ineffective assistance of counsel at the guilty plea and sentencing

proceedings based on counsel’s failure to fully advise Sarga

regarding the pitfalls surrounding the potential cooperation with the

Government during the plea and sentencing proceedings. That is,

Sarga alleges that he relied on counsels advice that he would receive

a lower sentence than he expected because he cooperated with the

Government.

On January 28 and 29, 2003, the undersigned United States

Magistrate Judge conducted an evidentiary hearing at which Sarga

and the Government presented witnesses, documentary evidence,

and argument in support of their respective positions. Telephonic

closing arguments were held February 26, 2003.

Based on the preponderance of credible evidence introduced

at the evidentiary hearing and on a review of the entire record, it is

recommended that the motion to vacate, set aside, or correct an

allegedly illegal sentence be denied.

A-14

Procedural History‘

1. On January 21, 1992, Marvin Clay James and Sarga were

charged in a criminal complaint with three counts: (1) conspiring to

import into the United States five kilograms or more of a mixture or

substance containing a detectable amount of cocaine, contrary to the

provisions of Title 21, United States Code, Section 952(a), all in

violation of Title 21, United States Code, Sections 960(b)(1)(B)(i1)

and 963; (2) importing into the United States five kilograms or more

of a mixture or substance containing a detectable amount of cocaine,

in violation of Title 21, United States Code Section 952(a) and

960(b)(1)(B)(ii) and Title 18, United States Code, Section 2; (3)

conspiring to possess with intent to distribute five kilograms or more

of a mixture or substance containing a detectable amount of cocaine,

contrary to the provisions of Title 21, United States Code, Section

841(a)(1), in violation of Title 21, United States Code, Section

841(b)(1)(A)(ii)() and 846. (Doc. No. 1) The time frame of the

conspiracy was from in or about March 1990, through in or about

* The procedural history sets forth the historical facts of the case and are

findings of fact pursuant to Rule 52(a), Fed. R. Civ. P.

A-15

October 1991. Attached to the complaint was the affidavit of

Customs Agent Don William Dunn(Dunn).

2. Sarga was represented by Attorney Arnold Levine

(Levine) throughout the proceedings in District Court.

3. On January 27, 1992, Magistrate Judge Wilson

determined that Sarga should be detained without bail and committed

him to the custody of the Attorney General for confinement. (Doc.

No. 7)

4. Beginning on January 27, 1992, a series of letters and

documents were exchanged between Levine and Assistant United

States Attorney (AUSA) Roberta Bahnsen (Bahnsen).” In the first

letter, dated January 27, 1992, Bahnsen enclosed a proffer agreement

and a waiver of speedy trial. Bahnsen stated that “debriefing will

entail a full and complete disclosure of all of Mr. Sarga’s narcotics

‘Copies of the letters exchanged between Bansen and Levine prior to the

hearing on the motion to enforce the plea agreement are attached as exhibits to Doc.

No. 49. The letters were referenced in the District Judge’s order denying Sarga’s

motion to enforce plea agreement. See infra. Bahnsen’s letter of June 8, 1992,

withdrawing the Government's willingness to negotiate a plea was sent to Levine

after the District Judge denied the motion to enforce the plea agreement. A copy of

the letter is found in Government's Exhibit 3, entered at the Evidentiary Hearing.

In addition, the Government included copies of all of the letters in its Exhibit 3.

A-16

activities at any time, not merely his involvement with John Miro.”

She also stated that Special Agent Dunn “has independent

information which he will use to gauge Mr. Sarga’s truthfulness.”

Bahnsen requested that the proffer agreement be returned that week.

She also requested that the “debriefing take place without the benefit

of counsel due to the sensitive nature of the ongoing investigations.”

She stated, “Counsel though may be present in the initial discussion

to remind Mr. Sarga of the protection afforded him in the

debriefing.”

5. On January 29, 1992, Sarga agreed to a 30-day extension

of time for presenting the matter for indictment pursuant to 18 U.S.C.

3161, et. Seq. And to waiver of speedy trial.

6. The Government, in an undated agreement, signed by

both Sarga and Levine, stated that should any prosecution be brought

against Sarga, except in a prosecution for perjury, subornation of

perjury, false statements or declarations or obstruction of justice, the

® In his affidavit in support of the complaint, Dunn stated that “Victor

Alderman‘advised your affiant that in or about March of 1990, Michel Sarga, Marvin

Clay James, Donald Shreve, Victor Alderman, John Miro and others . . . did enter

into aconspiracy to smuggle approximately 400 kilograms of cocaine into the United

States.” (See footnote 4)

A-17

Government would not offer in evidence on its direct case any

statements Sarga made at the debriefing. The Agreement further

stated:

(a) the Government may use information derived from the

meetings directly or indirectly for the purpose of obtaining

leads to other evidence, which evidence may be used by the

Government against Client in any prosecution of Client by

the Government; (b) the Government may use Client’s

statements and all evidence obtained directly or indirectly

therefrom for the purpose of cross-examination, should

Client testify or for the purpose of a rebuttal case against

Client.

7. Also on January 29, 1992, Levine faxed a letter to AUSA

Bahnsen stating that Sarga was willing to fully cooperate with the

Government in connection with the incident for which he was

presently incarcerated. Levine stated that Sarga was not willing to

make any statement regarding any other narcotics activities in which

Sarga may have engaged before the present incident. Levine also

stated that Sarga was not willing to make statements regarding a

family member. Levine stated: -

The bottom line is that Mr. Sarga is available

immediately to cooperate with the Government in

connection with the matter herein above set out, and it’s my

understanding that if the Government elects to go forward

based upon the foregoing, and finds Mr. Sarga has been

A-18

sn toy, Pane AGE NS TERY CA EIONLIEN CET aac taal

truthful, made a complete disclosure, and is fully

cooperative, that in accordance with the office policy of the

Government, the Government would agree to a four level

reduction in his sentencing guidelines when he appears for

sentencing after he pleads guilty.’

8. On January 29, 1992, AUSA Bahnsen faxed a letter to

Levine formally declining Sarga’s offer of qualified cooperation “in

the regard that he will not disclose information concerning his

narcotics activities three years ago involving Christian Hann.”®

Bahnsen also informed Levine that the Government had independent

information of Sarga’s narcotics activities other than the incident

three years prior.

9. On January 30, 1992, Levine, by faxed letter, informed

AUSA Bahnsen that Sarga was not willing to fully and completely

debrief in connection with any narcotics activities other than that of

John Miro’s involvement in the matter for which Sarga was presently

incarcerated. Levine also stated that Sarga would testify against any

other participant in that matter.

’ The 4-level reduction was for substantial assistance.

*Hann, Sarga’s brother-in-law, is married to Sarga’s sister. (Doc. No. 391,

p. 130)

A-19

10. Levine’s position was “the full and complete

cooperation that Mr. Sarga is offering, except for protection for a

family member, is not inconsistent with that which has been agreed

to by the United States Attorney’s Office in the past . . .” Levine

stated that he had advised Sarga that the Government claimed that it

had independent information that he was engaged in narcotic

activities other than an incident that happened three years prior and ~

that Sarga insisted that that was not true and would take a polygraph

examination relative to the allegation.

11. On February 13, 1992, Bahnsen sent kaviee a letter

stating that Sarga’s request “That no member of his family would be

charged with any narcotics activities that Mr. Sarga discussed with

the federal agents, nor would their property be seized for any

participation in narcotics activities,” was too broad to meet approval

by the United States Attorney’s Office.? Bahnsen requested that

Levine proffer in a letter the information Sarga wanted to have

protected, including the name(s) of the family member(s) whom he

wished to have protected; the criminal activities that he wished to

*Bahnsen stated that she had discussed the matter with her supervisor.

A-20

have protected; the date of that criminal activity; and the federal

district that this specified activity may affect.

Bahnsen stated that “there are no promises or agreements of

any kind which the government is making at this time.”

12. On February 13, 1992, Levine sent Bahnsen a letter

asking what protection Sarga would have in regard to the information

that is proffered at Sarga’s debriefing.

13. On February 21, 1992, Bahnsen wrote Levine reminding

him that her office was awaiting a response to her two previous

letters regarding Sarga’s cooperation. She requested that Levine

reply so that a resolution could be made as to Sarga’s cooperation

before the 60-day period expired to have this matter presented to the

grand jury.

14. On March 4, 1992, Bahnsen wrote Levine that the 30-

day waiver of speedy trial was due to expire so that it would become

necessary to present an indictment to the grand jury on Wednesday

March 18, 1992. She cautioned Levine that if he wished to continue

pre-indictment plea negotiations with the Government, he should

return the second waiver of speedy trial not later than Wednesday,

A-21

March 11, 1992. |

She also advised Levine that the United States Attorney’s

office in Atlanta was reviewing Customs reports concerning

dynamite and machine guns without serial numbers seized from

Sarga’s warehouse in Atlanta pursuant to a search warrant.

15. On March 10, 1992, Levine reiterated that Sarga would

cooperate in connection with the charges pending against him in the

Middle District of Florida, but would not voluntarily cooperate in

connection with any other criminal matters. Levine stated that since

the North Carolina Indictment represented a companion case to the

one for which Sarga was presently incarcerated, Sarga would

cooperate in connection with that case."°

16. On March 11, 1992, Bahnsen sent Levine a letter stating

that Dunn would be meeting with Sarga “one day this week to debrief

him.” She also stated that she had scheduled Sarga to testify before

the grand jury on Wednesday, March 18, 1992, since Sarga was

agreeing to cooperate with the instant conspiracy.

Donald Shreve.

A-22

She cautioned Levine that if he wanted Sarga to plead to an

Information and waive indictment, Levine should promptly provide

her with an executed second waiver of speedy trial.

17. In a letter of March 12, 1992, Bahnsen stated that

because of Sarga’s limitation relative to the debriefing, the United

States Attorney “is not obligated to recommend a downward

departure for substantial assistance.” She cautioned that “the policy

of the-United States Attorney’s Office is that cooperation which

would qualify as substantial assistance for a § 5K1.1 departure must

be 100% complete and truthful cooperation which includes a full

disclosure of all of the defendant’s criminal activities.”

18. On March 13, 1992, Levine faxed Bahnsen a letter from

California contending that Bahnsen’s position was inconsistent with

the offer made at the conclusion of the preliminary hearing. Levine

alleged that Bahnsen had asked for Sarga’s cooperation and

willingness to testify against Miro since Bahnsen did not have

sufficient evidence to prosecute Miro, in exchange for a four-level

reduction in sentence. Levine stated that he would discuss the issue

with Sarga when Levine returned to his office.

A-23

19. On March 13, 1992, Sarga was debriefed by AUSA

Bahnsen and Special Agent Dunn outside the presence of Levine.

20. On March 18, 1992, Levine submitted a second waiver

of speedy trial.

21. On March 20, 1992, Bahnsen advised Levine that, from

her initial correspondence, Levine was made fully aware of the office

policy regarding full and complete cooperation and that the offer of

qualified cooperation was inconsistent with office policy. Bahnsen

advised Levine that Sarga was debriefed on March 13, 1992.

22. On March 20, 1992, Levine faxed AUSA Bahnsen a

letter stating that Sarga was told that his cooperation at the debriefing

would not aid Sarga at sentencing because Sarga did not cooperate

fully. Levine contended that, in his view, there was a binding

agreement for a four-level departure recommendation by the

Government.

23. On March 23, 1992, Levine sent Bahnsen a letter

objecting to the debriefing and questioning why the debriefing

occurred when there was a question regarding the scope of Sarga’s

required cooperation. Levine advised, that “if we can’t work out the

A-24

plea and sentencing” he might seek specific performance of the

agreement in his March 10, 1992, letter.

24. On March 31, 1992, Bahnsen send Levine a letter that

stated, in part:

There has been no agreement between Mr. Sarga and

the government for substantial assistance which would

permit Mr. Sarga to provide less than full cooperation.

I wish to clarify a few points concerning Mr. Sarga’s

debriefing. First, Mr. Sarga was not completely truthful in

his information about the instant conspiracy. For that reason

alone, he could not be used as a witness for the government.

Second, Mr. Sarga failed to provide any information about

other narcotics activities which he has been involved in

during the past five years. When he was questioned about

this, he laughed. Third, Mr. Sarga failed to provide

information of Mr. Shreve’s and Mr. Miro’s narcotics

activities during the past five years. When he was

questioned about this, he laughed and said they were good

people. Fourth, Mr. Sarga provided absolutely no

information concerning the location of any of his assets.

When he was questioned about this, he laughed and

specifically stated that he did not wish to provide any

information concerning the identification of his assets.

Fifth, Mr. Sarga was not questioned about the circumstances

of the North Carolina indictment nor did he volunteer any

information in that regard.

Based upon this debriefing, which was of little to no

value, Mr. Sarga has not met the requirements of this

office’s policy of full and complete cooperation to qualify

for substantial assistance.

25. However, on April 6, 1992, Bahnsen sent Levine a

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follow-up letter offering Sarga an opportunity to provide full and

complete cooperation consistent with the policy of the United States

Attorney’s Office.

26. On April 8, 1992, an Indictment was returned charging

Sarga and Donald Shreve with four counts: (1) conspiring to import

into the United States five kilograms or more of a mixture or

substance containing a detectable amount of cocaine, in violation of

Title 21, United States Code Sections 960(b)(1)(B)(ii) and 963; (2)

aiding and abetting in knowingly and intentionally importing into the

United States five kilograms or more of a mixture or substance

containing a detectable amount of cocaine, in violation of Title 21,

United States Code Sections 952(a) and 960(b)(1)(B)(ii), and Title

18 United States Code, Section 2; (3) conspiring, from in or about

March 1990 through in or about October 1991, to possess with intent

to distribute five kilograms or more of a substance containing a

detectable amount of cocaine, contrary to the provisions of Title 21,

United States Code, Section 841(a)(1), in violation of Title 21,

United States Code, Section 841(b); (4) on or about September 23,

1991, knowingly and intentionally possessing with intent to

A-26

;

APRON webagesh yt a

na PR AK

distribute five kilograms or more of a mixture or substance

containing a detectable amount of cocaine, in violation of Title 21,

United States Code, 841 (b)(1)(A)(ii)(ID and 846 and Title 18,

United States Code, Section 2, plus forfeitures. (Doc. No. 14)

27. On April 15, 1992, Sarga entered a plea of not guilty

before the undersigned United States Magistrate Judge. Sarga was

represented by Levine. (Doc. No. 20)

Motion To Enforce Plea Agreement

28. On May 5, 1992, Levine filed a motion to enforce the

plea agreement contending that Sarga had entered into a plea

agreement for a downward departure.'' (Doc. No. 49)

29. On May 12, 1992, Bahnsen wrote Levine stating that she

was in receipt of his motion to enforce the plea agreement. She

stated that the Government would honor any agreement for

substantial assistance if Sarga fully cooperated about all of his past

criminal activities and activities of others. She asked Levine to

“revisit with him his opportunity for a downward departure if he

'' On May 28. 1992, Levine filed a supplemental memorandum of law in

support of the motion to enforce the plea agreement. (Doc. No. 77)

A-27

were to fully cooperate.” (Doc. No. 49, Composite Exhibit N, letter

dated May 12, 1992, from Bahnsen to Levine)

30. On May 27, 1992, a First Superseding Indictment that

added James Dreby as a Defendant was returned in Tampa. (Doc.

No. 74)

31. On May 29, 1992, the Honorable William J. Castagna

held a hearing on the May 5, 1992, motion to enforce plea agreement.

(Transcript at Doc. No. 388) After considering oral argument from

the parties, the Court subsequently denied relief, finding that “no

formal written plea agreement was executed.” (Doc. No. 85)

Judge Castagna held that an examination of the letters

between AUSA Bahnsen and Attorney Levine showed that the

AUSA consistently maintained the position that no motion for

downward departure would be made absent full disclosure.

Likewise, Sarga consistently maintained the position that the would

not divulge information on all his prior criminal activities. The

District Judge stated that the letters and the arguments made by

defense counsel at the hearing left the Court with the firm conviction

that there was never a meeting of the minds on the essential elements

A-28

MRL RGR HE |

of the plea agreement; hence there was not contract.

32. On June 8, 1992, the Government withdrew its plea

offer. (Bahnsen’s June 8, 1992, letter to Levine: see footnote 4)

33. On July 8, 1992, Sarga, Donald Shreve, James Dreby,

and John Miro were charged in a Second Superseding Indictment

with four counts: (1) conspiring, from in or about March 1990,

through in or about October 1991, to import into the United States

five kilograms or more of a mixture or substance containing a

detectable amount of cocaine, in violation of Title 21, United States

Code Sections 960(b)(1)(B)(ii) and 963°; (2) aiding and abetting in

knowingly and intentionally importing into the United States five

kilograms or more of a mixture or substance containing a detectable

amount of cocaine, in violation of Title 21, United States Code

Sections 952(a) and 960(b)(1)(B)(ii), and Title 18 United States

* The District Judge noted that even if there had been a plea agreement,

Sarga would still not be entitled to specific performance because he had not

demonstrated that he had fully performed his part of the agreement, a determination

that is normally at the sole discretion of the Government. The District Judge also

stated that Sarga had not proven that specific performance was the appropriate

remedy for the alleged breach.

'’ The amount of cocaine involved was approximately 400 kilograms (See

Doc. No. 200 at 30)

A-29

Code, Section 2; (3) conspiring, from in or about March 1990

through in or about October 1991, to possess with intent to distribute

five kilograms or more of a substance containing a detectable amount

of cocaine, contrary to the provisions of Title 21, United States Code,

Section 841(a)(1), in violation of Title 21, United States Code,

Section 841(b); (4) on or about September 23, 1991, knowingly and

intentionally possessing with intent to distribute five kilograms or

more of a mixture or substance containing a detectable amount of

cocaine, in violation of Title 21, United States Code,

841(b)(1)(A)(ii)(I) and 846 and Title 18, United States Code,

Section 2, plus forfeitures. (Doc. No. 131)

Guilty Plea Hearing

34. On September 17, 1992, a guilty plea hearing’* was held

before the undersigned United States Magistrate Judge pursuant to

Rule 11, Fed.R.Crim.P. and Local Rules 6.01(b) and 6.01(c), M. D.

“There was no written plea agreement in this case. (Doc. No. 2002, p.3)

However, in exchange for Sarga’s pleading guilty to Count One, the conspiracy to

import cocaine charge, the Government agreed, at the time of sentencing, to dismiss

the remaining charges against Sarga. In addition, the Government agreed that

Sarga’s estranged wife, Susan Bloom, would be given an opportunity to appear

before the Court in connection with any forfeiture proceedings to adjudicate her

rights and interest in a property known as Butlerhouse. (Doc. No. 200, p. 10)

Otherwise, the plea was an open plea.

A-30

PARE” Siwy oe

Fla. (Doc. No. 200) Sarga pled guilty to the charge of conspiracy to

import the United States five kilograms or more of a mixture or

substance containing a detectable amount of cocaine in violation of

Title 21, United States Code Sections 960(b)(1)(B)(ii) and 963.

35. At the plea hearing, Sarga stated that he was fully

satisfied with the advice and representation Levine had provided him.

(Doc. No. 200, p. 9)

36. At the hearing, Sarga was fully advised of the

consequences of his guilty plea, including the maximum penalty of

a life sentence.'* (Doc. No. 200; see especially pp. 16-17, 19)

37. The Magistrate Judge specifically asked Sarga:

Now, do you understand that if the sentence is more

sever than you subjectively might expect and your attorney

might have expected, that you will be bound by your plea

and would not have a right to withdraw your plea simply

because you miscalculated?

(Doc. No. 200, p. 24) Sarga answered, “Yes, ma’am.” (Doc. No. 200,

p. 25)

38. Sarga was clearly told that the maximum sentence was

'S Sarga was born November 24, 1943: he was 49 years old at the time of

the plea and sentencing hearings. See PSI, Identifying Data Section, page 1.

A-31

life without parole. (Doc. No. 200, p.19)

39. Levine stated that there was no agreements as to the

appropriate sentence, but that the cooperation issue, the role issue,

and other issues would be discussed at the time the presentence

report was prepared, and/or at the time of sentencing. Levine also

stated:

Those things that are normally a part of the

Sentencing Guidelines issues; but aside from that, I’ ve had

no discussions with Ms. Bahnsen or my client about that

subject matter. We are just pleading open, open plea to be

resolved by the Court at the time of sentencing based upon

whatever guidelines are applicable and/or challenged,

depending upon the relevant position that my client is

ascribed to by the Probation Officer.

(Doc. No. 200, pp. 20-21)

40. However, Levine stated that he had advised Sarga that

the minimum mandatory penalty for the conspiracy charge in count

one was ten years’ imprisonment and the mandatory penalty was life

imprisonment. (Doc. No. 200, p. 14)

41. At the guilty plea hearing, when the Court asked Sarga

whether Levine had “talked about the Sentencing Commission

Guidelines and how they might apply to your case,” Sarga answered,

A-32

“A little bit.” (Doc. No. 200, p. 23) When the Court asked Sarga

whether he had discussed the guidelines issues with Levine “enough

so that you are prepared to enter your plea today,” Sarga answered,

“Yes, ma’am.” (Doc. NO. 2022, p.23)

42. At the hearing, the Government stated the factual basis

for the guilty plea:

MS. BAHNSEN: Your Honor, I’m drawing the

factual - - many of the facts from the affidavit to the criminal

complaint that was filed against Mr. Sarga back in January.

It provides in that affidavit that Victor Alderman, who was

arrested in October of - - or November, rather, of ‘91, has

advised that Michael Sarga, Marvin Clay James, Donald

Shreve, John Miro and others had entered into a conspiracy

beginning in about March of ‘90 to smuggle approximately

400 kilograms of cocaine into the United States.

Mr. Sarga’s contribution to that conspiracy is that he

purchased the sailing vessel which was used, that is, the

YANKEE PEDDLER. There was substantial work that was

done on this vessel prior to the vessel sailing. Mr. Sarga

furnished the money towards materials that were needed to

repair the boat and get it in sailing condition.

Mr. Sarga also furnished money towards the

expenses of Victor Alderman and Marvin Clay James, that

is, food expenses, and contributed towards their housing.

It was between March and June of 1990 that Mr.

Sarga had several meetings with the other co-conspirators in

this conspiracy, that is, Marvin Clay James, Victor

Alderman, John Miro and Donald Shreve. Many of these

A-33

meetings too place at the Butlerhouse in Pinellas County.

These meetings took place for the purpose of discussing

arrangements about the trip, when the trip was to take place

and where they were to go.

It was not until June 18" that the vessel actually

sailed to Central America. The original intention was the

trip was to take a couple of weeks, but the trip actually

ended up taking approximately three months.

During the time that the vessel was gone, Victor

Alderman and Marvin Clay James who were sailing the

vessel had telephone communications with Michael Sarga

both at the Butlerhouse in Pinellas County and at a house in

Atlanta - - actually, it was in Marietta, Georgia. This was a

house that Mr. Sarga was renting.

The telephone calls involved discussions about

coordinating - - getting food and money to Marvin Clay

James and Victor Alderman, discussions about when the

cocaine was actually to be delivered to the boat.

During this trip that Alderman and James were on

the vessel, Donald Shreve flew in to meet with them to

provide them with money, and then, finally, a meeting took

place just off the coast of Nicaragua where Colombians did,

in fact, deliver 400 kilograms of cocaine to Victor Alderman

and Marvin Clay James.

Subsequent to receiving the cocaine, James and

Alderman sailed the vessel back to Pinellas County. They

stored the cocaine in storage units and then met with

Michael Sarga, John Miro and Donald Shreve at the Tahitian

Inn on Dale Mabry Highway in Tampa. This occurred, I

believe, on or about September 21" or 23" . - September 21".

THE COURT: Of ‘90?

A-34

elt Oey by rarer Fae ar

MS. BAHNSEN: Of ‘90 was when the cocaine was

actually brought into the United States. It was on September

23™ - - on or about September 23 that they had the meetings

at the Tahitian Inn. And the meetings were basically about

arranging for their receipt of the cocaine and Mr.

Alderman’s and Mr. James’ payment by Mr. Miro.

As to evidence of the substance being cocaine, it

was in January of ‘91 that Donald Shreve was arrested in

North Carolina with one kilogram of cocaine that he was

selling to an undercover agent. That kilogram had individual

markings on it of the initials J.A.P.. Mr. Shreve in

undercover conversations to law enforcement advised that it

was from a load that was brought into the United States

during the summer of 1990.

In November of ‘91, Victor Alderman was arrested.

He had one kilogram in his possession with the initials

J.A.P.; he also provided additional kilograms to law

enforcement. I believe there were four additional kilograms;

they also had the markings of J.A.P. Victor Alderman

indicated that these kilograms were from the load that he and

Marvin Clay James sailed into the United States pursuant to

their agreement with the other co-conspirators.

The substances from the North Carolina

investigation involving Mr. Shreve, that one kilogram was

submitted for testing, as well as the total of five kilograms

that Victor Alderman turned over, which all of them had the

initials J.A.P. as markings. They all tested positive for

cocaine hydrochloride.

But the cooperation of Marvin Clay James has also

provided corroboration to Victor Alderman’s statements,

that is, that the agreement to import the cocaine involved an

agreement to import approximately 400 kilograms of

A-35

cocaine. I believe there are numerous other facts to 3

corroborate this, but that’s essentially the sum and substance

of Mr. Sarga’s involvement in this conspiracy.

eee

MS. BAHNSEN: If I may just add, Your Honor, that

the Government in no way is representing these as the

complete facts for purposes of the Presentence Report, that

there are numerous additional facts that would establish Mr.

Sarga’s role in these events; so there is no misunderstanding

here that somehow the Government is going to later be held

to these facts as all of the facts that would be attributed to

Mr. Sarga’s involvement in this conspiracy because these are

not the complete set of facts.

I’m only offering these up as facts sufficient for a

Rule 11 plea; but the Government fully intends to provide

additional facts in support of its - whatever argument it’s

going to make concerning Mr. Sarga’s role in these events .

(Doc. No. 200, pp. 30-35) -

43. Sarga did not object to any of the factual bases for the :

plea. In fact, he answered, “Yes,” when the Magistrate Judge asked

if all of the facts were true. (Doc. No. 200, p. 35)

Sentencing Hearing

44. On December 29 and 30, 1992, the Honorable Steven D.

Merryday acknowledged the guilty plea and held sentencing

proceedings. The sentencing hearing was protracted and was

A-36

continued until April 1993.'°

45. At the December 29, 1992, sentencing hearing, Sarga

faced a sentence based on an offense level of 39 computed with a

base offense level of 38, plus a 3-level adjustment for his role in the

offense, minus a 2-level adjustment for acceptance of responsibility.

The statutory penalty was a mandatory term of imprisonment from

10 years to life imprisonment. 21 U.S.C. §§ 963 and 960(b)(1). The

maximum fine was $4 million. (See PSI at Doc. No. 298,

Attachment A)!’

'° The sentencing hearing transcript appears in several volumes:

1. Document Number 256, dated December 29, 1992, is the first volume.

2. Document Number 257, dated December 30, 1992, is the second

volume.

3. Document Number 391, dated December 30, 1992, is the third volume.

4. Document Number 345, dated April 28, 1993, is the fourth volume.

5. Document Number 302, dated April 28, 1993, is the fifth volume.

"On December 3, 1992, Levine mailed a letter to Probation Officer Lisa

Lam objecting to paragraph 23 and paragraph 31 of the PSI. (Doc. No. 298,

Addendum to PSI and Attachment B). Levine alleged that the allegations listed in

paragraph 23 overstated the amount of money and breadth of the alleged criminal

activities in which Sarga participated and he alleged that Sarga should not receive

a 3-level increase for his role in the offense since he did not exercise any measure of

control over the decision-making or planning for the criminal group. In response,

the Government stated that it would refute the objections.

On December 28, 1992, a Supplemental Addendum to the PSI was filed.

Probation Officer Lisa Lamb stated that the Government had submitted an objection,

on December 23, 1992, to Levine's letter regarding the 3-level increase for Sarga’s

role in the offense. Furthermore, the Government objected to Sarga’s receiving two

points for acceptance of responsibility.

A-37

46. At the December 29, 1992, hearing, Levine called Sarga

as a witness to contest the finding that he was a supervisor or

organizer.'* (Doc. No. 256, beginning at p. 9)

47. Over Levine’s repeated objections, the Court allowed

AUSA Bahnsen to cross-examine Sarga about other issues, including

Sarga’s assets.'? (Doc. No. 256, beginning at p. 20)

48. Levine asked the Court to take judicial notice that co-

defendant Alderman was sentenced to 264 months and co-defendant

Jones was sentenced to 188 months. (Doc. No. 257, pp. 79-80)

49. At the conclusion of the December 30, 1992, sentencing

hearing, the District Judge requested a transcript of the sentencing

hearing and postponed Sarga’s sentencing until the Court had an

opportunity to review the transcripts.

'§ Sarga felt that the PSI recommendation for a three-level enhancement

for his role in the offense was incorrect, and, in an effort to persuade the Court that

the enhancement was wrong elected to testify.

'9 At the debriefing, Sarga had refused to provide any information as to his

assets, previous criminal history, or family members. (Doc. No. 256, p. 11, 23, 27,

34) Subsequently, Sarga stated that he had not been truthful about his assets when

questioned by the Probation officer. (Doc. No. 256, pp. Doc. No. 257 pp. 24, 25)

Bahnsen cross-examined Sarga about his comments at the debriefing as ts

his role in the current conspiracy. She also cross-examined him relative to

information Dunn had acquired from co-defendants, especially Donald Shreve. (See

Doc. No. 391, beginning at p. 9)

A-38

eer st

nine

bret ebay Ary

50. On January 21, 1993, the Government filed a motion for

extension of time to file a supplemental sentencing memorandum

based on the Court’s December 30, 1992, permission to submit any

additional issues relative to sentencing. The motion was based on

Sarga’s testimony at the December 29, 1992, hearing and a

subsequent search warrant that was executed on the property of

Sarga’s sister and brother-in-law in Morgan City, Louisiana, on or

about January 21, 1993. (Doc. No. 253, p. 1] 4) The Government’s

position was that the preliminary results of the warrant revealed new

evidence about Sarga’s assets related to his testimony at the

December 29, 1992, sentencing hearing (Do. No. 253)

51. On January 27, 1993, the Government filed a second

motion for extension of time based on the Court reporter’s need for

additional time to provide the sentencing transcript. (Doc. No. 254)

52. Sarga filed an objection to the motions for extension of

time. (Doc. No. 255) On February 12, 1993, the Court construed

Sarga’s objection as a motion to withdraw Sarga’s guilty plea and

denied the motion as premature. (Doc. No. 259)

53. On March 4, 1993, the Government filed its

A-39

“Memorandum To Supplement the Presentence Report.” (Doc. No.

es,

267) The Government alleged that, based on his testimony at the

sentencing hearing, Sarga was untruthful about his assets, and the

Government included a list of assets that had been located

subsequently pursuant to a search warrant. (Doc. No. 267) The

Government also set forth, in detail, Sarga’s untruthful testimony at

the sentencing hearing.

54. On April 19, 1993, the Government filed a request for

a 2-level enhancement pursuant to USSG § 3C1.1, Obstructing or

Impeding the Administration of Justice. (Doc. No. 281) The

Government stated that the request was based on the specific

examples of Sarga’s materially false statements to the Court on

December 29 and 30, 1992. In paragraph 4 of the motion the

Government referenced the letter Sarga wrote to his brother-in-law,

on September 6, 1992, regarding Sarga’s assets in which Sarga stated

that he was willing to spend more time in prison than to give up his

assets. (Do. No. 281, p. 2)

55. At the end of April 28, 1993, sentencing hearing, Agent

Dunn testified that the Government did not have probable cause to

A-40

Sa ee ey

execute a search warrant until after Sarga’s testimony at the

December 1992 sentencing hearing. (Doc. No. 345), pp. 21, 37)

When the search warrant was executed, the Government discovered

that Sarga had assets that Sarga had held in an open title wi that he

had transformed to his brother-in-law and/or hidden. Letters

drodenne in the execution of the warrant outlined Sarga’s plan to

dispose of or to hide the assets. (Doc. No. 267, Attachment A)

56. On April 28, 1993, the Court conducted the final

sentencing proceedings and

sentenced Sarga to life imprisonment. (Transcript at Doc. No. 302)

The Court, prior to imposing sentence, afforded the parties an

opportunity to present argument on various issues. Levine argued

that Sarga should not be enhanced for his role in the conspiracy; that

the Court should not allow the additional evidence; and that Sarga

should not receive a 2-point adjustment for obstruction of justice.”

The Court stated:

I did not believe Mr. Sarga’s testimony when I heard it on the

29" arc the 30", for the most part . . . my own conclusion upon

20 In regard to the latter, the Government cited United States v. Dunnigan,

507 U.S. 87 (1993) (perjurious testimony may be the basis for an obstruction of

justice sentence enhancement).

A-41

observing Mr. Sarga in court was that he was untruthful, smug, and

calculating, and not worthy of belief, both as to his role in the

offense, to the extent that that differed from the testimony of Agent

Dunn, and as to the existence and location of his assets.

With respect to the acceptance of responsibility issue and

with respect to the issue of obstruction, the latter first, 3C1.1

prescribes that if a defendant willfully obstructed or impeded or

attempted to obstruct or impede the administration of justice during

the investigation, prosecution or sentencing of the instant offense,

increase the offense level by two levels, period, end quote. I find that

the defendant is guilty of willfully impeding sentencing consistent

with at least application notes 3 D and F, perhaps E, and perhaps

even B.

With respect to those considerations set out with respect to

acceptance of responsibility, I not the application notes refer to the

fact in 1A that a defendant of course may remain silent in respect to

relevant conduct beyond the offense of conviction without affecting

his ability to retain a reduction under this subsection. Nothing in my

ruling is inconsistent with that, and I explicitly acknowledge and

accept that premise.

Note five says the sentencing judge is in a unique position to

evaluate the defendant's acceptance of responsibility. For this reason

the determination of the sentencing judge is entitled to great

deference on review. ‘Vth respect to the first sentence I so find that

because of my opportunity to observe the demeanor of the witness

and to hear and evaluate the substance of the testimony, that I find

his testimony and its content and its delivery to be positively

inconsistent with the notion that he has accepted responsibility for

these offenses within the meaning of that term as it is used to express

an underlying objective of the Sentencing Commission in

promulgating the guidelines.

That being the case, the result is an offense level - - a

criminal history category of one and an offense level of 43, which

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results in a guideline sentence of life.

Therefore, pursuant to the Sentencing Reform Act of 1984,

it’s the judgment of the court that the defendant Michael Sarga is

hereby committed to the custody of the Bureau of Prisons to be

imprisoned for a term of life. The defendant is fined one million

dollars and assessed a $50 special assessment.

(Doc. No. 302, pp. 4-6)

Motion To Withdraw Guilty Plea/Notice of Appeal of

Sentence

57. On May 7, 1993, Sarga filed a motion to withdraw his

plea of guilty (Doc. No. 298), a notice of appeal from the order

sentencing Sarga to life imprisonment and imposing the $1,000,000

fine. (Doc. No. 300)

58. The Government responded and, on March 8, 1994, the

Court allowed Sarga to file a supplemental memorandum to which

the Government could respond. (Doc. NO. 339)

59. On March 10, 1994, Sarga filed a supplemental request

for oral argument on the motion to withdraw the guilty plea on the

grounds that the plea was not “freely and voluntarily made based on

(1) the court’s denial of Sarga’s initial motion to withdraw his guilty

plea as premature; and, (2) the admission of the newly discovered

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evidence at the April [sentencing] hearing, over Sarga’s objection

and without Sarga’s having an opportunity to impeach, examine,

rebut or attack the evidence.” (Doc. No. 341)

60. On March 28, 1994, the Government filed its response.

(Doc. No. 344)

61. On August 8, 1994, the District Judge held a hearing on

the motion to withdraw the guilty plea. (Doc. No. 360)

62. On August 25, 1994, the Court denied Sarga’s motion to

withdraw his guilty plea. (Doc. No. 361) The Court found that

Sarga had close assistance of counsel and that the Magistrate Judge

complied fully with Rule 11 at the re-arraignment. The Court held

that if a defendant received close and adequate assistance of counsel

and entered a plea knowingly and voluntarily, the defendant's

subsequent dissatisfaction with the severity of the sentence imposed

was not a sufficient ground for withdrawal of the plea. The Court

also held that, even if the sentencing issues Sarga raised were

properly before the Court, the Court would not be inclined to grant

the motion to withdraw because the Court did not find that Sarga was

unfairly prejudiced at sentencing.

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Notice of Appeal from Denial of Motion to Withdraw Guilty

Plea

63. On September 2, 1994, Sarga filed a notice of appeal

from the final order denying Sarga’s motion to withdraw his guilty

plea. (Doc. No. 363)

Levine’s Motion to Withdraw

64. On January 26, 1995, Levine filed a motion to withdraw

as Sarga’s counsel. (Doc. No.371)

65. The District Judge referred the motion to withdraw to

the undersigned Magistrate Judge who deferred ruling on the motion,

pending receipt of information to be filed, in camera, by Levine,

relevant to financial arrangements between Levine and Sarga,

pursuant to Addendum Four, Eleventh Circuit Plan Under the

Criminal Justice Act, §(d)(2), Eleventh Circuit Rules. (Doc. No. 372)

66. On February 6, 1995, Levine filed an affidavit in

camera, stating that he represented Sarga pro bono and that neither

he nor his law firm had directly or indirectly received any monies or

things of value from Sarga, or on his behalf, for representing Sarga

in this case. (Sealed Doc. 38; Unsealed Affidavit at Doc. No. 436)

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67. On March 29, 1995, the District Judge adopted the

Magistrate Judge’s recommendation and granted Levine’s motion to

withdrawal as counsel. Pursuant to a notice of appearance (Doc. No.

374) filed March 23, 1995, Bradley R. Stark was substituted as

counsel on behalf of Michael Sarga. (Doc. No. 376)

Opinion of the United States Court of Appeals for the

Eleventh Circuit

68. The Eleventh Circuit consolidated the appeals and, in an

order dated April 25, 1997, affirmed, stating:

In these consolidated appeals, Michael Sarga contends that

district court: (1) erred in failing to accept his plea of guilty to

conspiracy to import in excess of five kilograms of cocaine prior to

the imposition of sentence; (2) abused its discretion in denying his

motion to withdraw his guilty plea; (3_ prejudiced appellant's case

in its sentencing phase by delaying the sentencing hearing; (4)

abused its discretion in considering evidence discovered by the

Government in the process, and as a result, of executing a search

warrant during a recess in appellant’ s sentencing proceeding; and (5)

erred in finding that appellant played a managerial role in the

offense, obstructed justice by giving false testimony during the

sentencing proceeding, and failed to accept responsibility for his

criminal conduct.

Appellant did not present his first and third claims to the

district court. We therefore examine these claims for plain error.

We find none. As for appellant’s remaining claims, we conclude that

the district court’s findings of fact on these issues are well grounded

in the record; the claims therefore fail.

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Appellant’s sentence is accordingly AFFIRMED.

United States v. Sarga, 113 F.3d 1249 (11" Cir.) (Table), cert.

denied, 522 U.S. 984 (1997), reh’g denied, 522 U.S. 1070 (1998).

(Doc. No. 395) The mandate issued May 28, 1997.

Motion to Vacate, Set Aside, or Correct an Allegedly

Illegal Sentence

69. Sarga filed his original motion to vacate, set aside,

or correct an allegedly illegal sentence on November 16, 1998. Upon

order of the Court, he filed the amended motion to vacate and

supporting memorandum of law on October 9, 2001. (Doc. Nos. 423

and 424)

70. On February 11, 2002, the Government responded

to the amended motion to vacate, set aside, or correct an allegedly

illegal sentence. (Doc. No. 427)

71. On April 1, 2002, the amended motion to vacate was

referred to the undersigned United States Magistrate Judge for a

Report and Recommendation.

7a On June 27, 2002, the Magistrate Judge held a status

conference at which the parties argued the need for discovery and an

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evidentiary hearing.”!

73. On August 15, 2002, the Court allowed the parties

45 days to conduct limited discovery. The order allowed Sarga to

depose defense and appellate counsel and allow4ed the Government

to depose Sarga. The order also set a status conference of October

22, 2002). (Doc. No. 437)

74. On September 24, 2002, the Court granted Sarga’s

motion for extension of time for discovery through October 30, 2002,

but encouraged that Sarga’s counsel “make every effort” to conclude

any depositions prior to the October 22, 2002, status conference.

(Doc. No. 439).

75. On October 15, 2002, Sarga filed a motion for a 60-

day extension of time to take court-permitted depositions and to

reschedule the status conference or for permission for counsel for

Sarga to appear telephonically. (Doc. No. 440)

76. On October 18, 2002, the Court granted the motion

21On that same date, the Magistrate Judge entere4 an order to show cause

why document number 38 should not be unsealed and on July 24, 2002, the

Magistrate Judge entered an order directing the Clerk to unseal document number

38 (Levine's affidavit relative to his financial arrangements with Sarga as to

representation in Case No. 8:92-cv-98-T-23EAJ). The unsealed affidavit appears as

document number 436.

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NTO SPAT CI

rescheduling the status conference and the extension of time to take

depositions, but denied the motion for counsel to appear

telephonically at the status conference. The status conference and

discovery deadline was reset for December 17, 2002. (Doc. No. 441).

hs On December 12, 2002, the parties filed a joint

motion to continue the status conference (Doc. No. 442), which the

Court denied. (Doc No. 443).

78. On December 17, 2002, the Court held the

previously-scheduled status conference and entered an order

scheduling an evidentiary hearing for January 16 and 17, 2003. (Doc.

No. 444) The parties did not take any deposition discovery.

: 79. On December 18, 2002, the Court entered an

amended order resetting the evidentiary hearing for January 28 and

29, 2003, pursuant to Sarga’s motion to continue.

80. Subsequently, the parties filed motions relative to the

evidentiary hearing. The Court deferred ruling on Sarga’s motion to

permit expert attorney testimony pending the evidentiary hearing

(Doc. No. 451) and denied Sarga;’s motion to permit written closing

argument.

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81. As ordered by the Court, the parties filed a pre-

evidentiary hearing statement in compliance with Rule 3.06(c).

(Doc. No. 452) The Government filed a Memorandum and Argument

Regarding Disputed Issues of Law (Doc. No. 453) and a Motion to

Quash Subpoena for AUSA Roberta Bahnsen Klosiewicz (Doc. No.

454

82. At the evidentiary hearing, the Court granted Sarga[s

motion for expert testimony. (See Doc. No. 449)

83. Sarga withdrew the subpoena for AUSA Roberta

Bahnsen Klosiewicz, thereby mooting the motion to ula the

subpoena . (Vol. 2, 20)”

84. Sarga presented his own testimony, as well as that of

trial counsel Arnold Levine, appellate counsel Bradley Stark, and

attorney William M. Norris in support of his motion to vacate.

85. The Government presented the testimony of Customs

Agent Dunn in rebuttal.

86. The Court set telephonic closing arguments for

Transcripts of the evidentiary hearing were filed as volumes | and 2 at

Doc. Nos. 461 and 462. Volume | includes the proceedings on January 28, 2003,

and Volume 2 includes the proceedings on January 29, 2003. Citations to the

transcripts will be designated by the Volume number followed by the page number.

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February 26, 2003, and ordered the parties to file citations of any

additional authorities not cited in previous submissions by February

24, 2003, which the parties did.

87. Telephonic closing arguments were held February

26, 2003.”°

Finding of Fact

- Levine was an experienced criminal defense attorney

at th the time he represented Sarga in the instant case. (Vol. 1, 150)

He had been a prosecutor (Vol. 1, 177) and had been in practice for

30 years. (Vol. 1, 203) He described himself to “be a hard charger,

to work hard to investigate the facts and try to make an evidentiary

presentation that’s helpful to my client.” (Vol. 1, 185)

2. Sarga and Levine had a long-standing professional

and personal relationship that dated back to 1972 when Sarga first

retained Levine in connection with an IRS matter. Subsequently,

Levine successfully represented Sarga in connection with several

drug prosecutions. (Vol. 1, 23, 157)]

3. Levine testified that he represented multiple

3Counsel and Sarga were available by telephonic conference call at the

closing arguments.

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individuals over a period of time who were more or less interrelated

in marijuana smuggling schemes. (Vol. 1, 157) It was his long-

standing practice to advise “defendant’s’s about the possible down-

sides of more than one of them being represented by one lawyer.”

(Vol. 1, 160)

4. Although Levine had represented Donald Shreve,

Sarga’s co-defendant’s in the instant case, in the past, he did not

represent Shreve in the instant case (Vol. 1, 104) which had no

connection to the matters in which Levine had represented Shreve

many years prior to the initiation of the prosecution of this case.

(Vol. 1, 193) The prior Shreve representation in a 1975 marijuana

case in Georgia was resolved by a bond forfeiture. (Vol. 1, 103)

Levine had no involvement any of Sarga’s illegal

activities. Levine denied ever assisting Sarga to launder money and

the Court finds his testimony more credible (Vol. 1, 200)”

6. Sarga testified that he always paid Levine in cash

and he did not receive or ask for a receipt for payments. (Vol. 1, 25-

**Sarga testified that Levine assisted Sarga and two associates to set up a

company to “clean up money” in 1974. (Vol. 1, 93) The name of the company was

Mint Graphics. (Vol. 1, 94)

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26) Levine refuted this allegation and testified that it was a firm

practice to issue receipts for cash or other tender, although he does

not have receipts from 30 years in the past. However, due to Sarga’s

drug business, Levine would not have been surprised if Sarga had

paid in cash. (Vol. 1, 151-52)

a Sarga and two associates, Pedro Alvarez and Scott

Mott, paid Levine a retainer of $25,000 to represent Sarga in a

marijuana smuggling case in north Florida in 1973. (Vol. 1, 26, 28)

8. As of the date Sarga was charged in the instant case,

he had never been convicted of any of the charges in which Levine

represented him. (Vol. 1, 44)

9. During 1975 to 1984, Sarga was a fugitive in

connection with a 1975 indictment in the Middle District of Florida

in Case No. 75-181-T-H charging that Sarga, Pedro Alvarez, Lawton

Scott Mock, Derrill Lee, Jerold Martin Massler, Paul Rice, John

Lesley Wells, Jr., Pedro Davilla, and Raoul Alberto Davilla

conspired to import and possess with intent to distribute marijuana

in violation of 21 U.S.C. §§ 963 and 846. (Defendant’s Exhibit 1 (F)

A-53

introduced at the Evidentiary Hearing) On July 19, 1982, the

Honorable Wm. Terrell Hodges signed an order for dismissal for

Michael Sarga, Rauel Davilla, and Pedro Davilla pursuant to the

Government’s motion alleging that, due to their remaining at large

without an arrest for seven years and the present state of witnesses

and evidence that would make prosecution to a successful conclusion

unlikely. (Defendant's Exhibit 1 (D)) Even though the charges were

dismissed in 1982, Sarga did not return to Tampa until 1984. ¢Vol.

1, 35)

10. Sarga testified that he had tremendous confidence in

Levine because, in Sarga’s view, Levine was his “Perry Mason.”

Sarga stated “he had batted a thousand for me for 20--over 20 plus

years. Everything that he ever did for me, he won, and it was — I

mean, he kept me out of trouble.” (Vol. 1, 44)

11. Due to their relationship, and the fact that Levine

had made a “lot of money” from representing Sarga and his

associates in the drug business, Levine did not require a retainer or

fee from Sarga for representing him in the instant case. (Vol. 1, 56,

25Defendant’s Exhibit 1 into4dduced at the evidentiary hearing contains

exhibits A-T previously filed in support of the motion to vacate.

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12. Although Sarga testified that Levine was working off

an “old debt” that Levine owed Sarga in connection with some real

property deeded to Levine’s firm by Sarga in 1974”°

13. Sarga testified that he determined that, in the present

case, it was in his best interest to pursue a cooperation agreement

with the Government because he realized that a conspiracy charge

was difficult to win at trial. (Vol. 1,67, 112) He was also aware that

Shreve had been arrested in January 1991, and had begun

cooperating with the Government. (Vol. 1, 52-53)

14. Levine, with Sarga’s consent, pursued a strategy of

limited cooperation with the Government.”’ (Government's Exhibit

3; Vol. 1, 74) Sarga dd not want to provide any information which

might implicate farnily members nor did he want to provide a full

The old debt was related to real property in Pasco County known as

“Williams Acres.” Levine testified that Sarga conveyed the property in 1974 to

Levine, Freedman & Hirsch, P.A. as security for legal services. (Vol. 1, 161;

Defendant’s Exhibit 1 (J)) Levine testified that he held the property for about three

to five years after Sarga became a fugitive before selling it to satisfy Sarga’s

obligation for additional legal services. (Vol. 1, 162) The law firm sold the land in

two parcels to Rene and Joyce DePhillips and Timothy and Regina Sue Kennedy.

(Defendant’s Exhibit 1 (M))

“7 Although Levine visited Sarga only two or three times in jail (as

evidenced by the jail log (Defendant's Exhibit | (R)), Sarga spoke with Levine about

hsi case by telephone at Levine’s office or home. (Vol. 1, 71, 85, 86)

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disclosure of assets. (Vol. 1. 91, 105, 174)

15. Levine reviewed the proffer agreement with Sarga

before both of them signed it and returned it to AUSA Bahnsen.

(Government’s Exhibit 3; Vol. 1, 76) During the debriefing, Sarga

hoped to persuade the Government of his limited role in the

conspiracy. (Vol. 1, 109)

16. At the March 13, 1992, debriefing, Sarga refused to

provide any information about his assets. (Vol. 1, 92)”

17. Levine was out of town on the day of the debriefing.

He iestified that it is his usual practice not to attend a proffer

[debriefing] session involving a client and the Government because

he does not want to be accused of “leaking” information learned

during debriefing. He also knew that Sarga “was going to be making

statements about people I had nanan represented” so he did not

want to be present. (Vol. 1, 176-77)

18. Sarga admitted that he lied at the debriefing about

his reasons for being in New Orleans in connection with the instant

charges. (Vol. 1, 108)

*®See AUSU Bahnsen’s March 31, 1992, letter.

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19. AUSA Bahnsen insisted that no 5K1.1 substantial

assistance motion would be made without full and complete

cooperation. (Government’s Exhibit 3, Letters of January 27, 1992

and March 20, 1992; Vol. 1, 174-75)

20. At that time of the guilty plea hearing, Sarga knew

he faced a level 38 guidelines sentence for the offense. (Vol. 1, 113)

Sarga testified he assumed he would receive a 3-level adjustment for

acceptance of responsibility. (Vol. 1, 113)

21. Sarga testified that his guilty plea had nothing to do

with Shreve; he pled guilty because there were {too many people in

there who could get me convicted on a conspiracy charge.” (Vol.-1,

112)”

22. Sarga educated himself about the sentencing

guidelines through a book that he purchased. (Vol. 1, 68) Sarga

“kind of knew where things were falling and was “pretty much aware

of them [the guidelines] at that time.” (Vol. 1, 68)

23. At the section 2255 evidentiary hearing, Sarga

admitted to being “evasive” at the December 29, 1992, sentencing

Shreve entered his plea on October 27, 1992. (See Doc. No. 250; Doc.

No. 452). Sarga pled guilty on September 17, 1992.

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hearing. (Vol. 1, 122) Sarga admitted that he was attempting to hide

property from the Government. (Vol. 1, 122)

24. Levine never counseled Sarga to lie on the stand or

to be evasive; that was Sarga’s decision. (Vol. 1, 125) Levine

advised Sarga of the pitfalls of cross-examination and did not know

Sarga was lying on the stand. (Vol. 1, 202-03)

25. At the continuance of the December 1992 sentencing

hearings, neither Sarga nor Levine had reason to believe that the

Government would obtain information pursuant to a search warrant

in Louisiana on or about January 21, 1993, which would be used to

further discredit Sarga the final sentencing hearing. (Vol. 1, 203)*°

26. Sarga wrote two letters to the District Judge, one

typewritten letter dated December 10, 1992, and another, a

handwritten, but undated letter, apparently written between the 1992

and 1993 sentencing proceedings. (Vol. 1, 98, 99, 201; Court’s

Exhibits | and 2)

27. Sarga wrote the December 10, 1992, letter to explain

to Judge Merryday his position in this conspiracy and “giving him a

*See Doc. No. 253, p. 1 paragaph 4.

A-58

little bit of the past of my history and that I didn’t come before him

pretending to be an innocent bystander.” (Vol. 1, 98) Sarga testified

that he did not have a discussion with Levine about whether he

should write to the Judge or what he should write to the J udge. (Vol.

1, 98) He testified that he wrote th letter while he was in jail and

mailed it to Levine. He did not include any instructions. (Vol. 1. 98)

However, Sarga testified that he asked Levine “ahead of time if |

could write a letter to him... and he said I could ... so I wrote him a

five-page letter.” (Vol. 1. 98) Sarga testified that his expectation as

that the letter would just get forwarded. (Vol. 1. 99) He also testified

that Levine did not counsel him on what to Say in the letter. (Vol. 1.

99)

28. — Sarga testified that in his second letter he was

attempting to explain “again what happened and the fiasco that

happened in January and I was trying to explain that to him, and

again, describe my position in the conspiracy and my part in

reasoning for doing what I did in -- in December 29" and 30.” (Vol.

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l, 99)°!

29. Neither Sarga nor Levine expected that Sarga would

receive a life sentence. Sarga testified that, in hindsight, he would

have fled in 1991 if he had fully appreciated how federal sentencing

law had changed since he had been a fugitive on the 1975 federal

charges. (Vol. 1. 103)

30. Appellate ee Bradley Stark (Stark), who

testified by telephone, stated that he felt Sarga received a life

sentence because he lied about his assets when he testified at the

sentencing hearing. (Vol. 2, 15) Stark did not raise any issue on

appeal regarding prosecutorial misconduct; he could not recall his

reasons for not doing so. (Vol. 2, 6-7) :

31. At the section 2255 evidentiary hearing, Sarga

presented the testimony of Attorney William Norris as an expert

witness.

32. While opining that Levine’s performance was

deficient in allowing Sarga to be debriefed outside of Levine's

‘'At the April 28, 1993, sentencing haring the District Judge admitted into

evidence the Government's photographic exhibits (See Doc. Nos. 286 and 291) to

respond to paragraph 3 of Sarga’s December 10, 1992 letter. These photographs

depict Sarga with guns, money, and marijuana.

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presence, Norris conceded that Levine believed that the prosecutor

had _— to a limited debriefing. (Vol. 2, 32, 41, 49)

33. Norris also conceded that it is common practice for

prosecutors to insist that a defense attorney be absent from a

debriefing once the initial ground rules of the debriefing are

established. (Vol. 2, 54)

34. Norris also suggested that it was “unwise” for Levine

to call Sarga as a witness at the sentencing hearing to address his

minimal role in the conspiracy. (Vol. 2, 39, 62) Norris

acknowledged, however, that it was ultimately Sarga’s decision

whther to take the stand. (Vol. 2, 63)

Conclusions of Law

To prevail on a claim of ineffective assistance of counsel,

Sarga “must snow that counsel’s performance fell below

constitutional standards and that his defense was prejudiced as a

result.” Caderno v. United States, 256 F.3d 1213, 1217 (11" Cir.

2001), cert. denied, 122 S. Ct. 1185 (2002) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)). Stated another way,

“[inJeffective assistance exists if: (1) counsel’s performance was

A-61

objectively unreasonable; and (2) a reasonable probability exists that

the outcome would have been different absent the deficiency.” Id.

(citing Strickland, 466 U.S. at 691 ). The burden is on the Defendant

to demonstrate the denial of effective assistance of counsel. United

States v. Cronic, 466 U.S. 648, 658 (1984) Deficient performance is

performance which is objectively unreasonable under prevailing

professional norms. Strickland, 466 U.S. 688. Prejudice results

when there is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694.

The Government contends that Sarga’s statements under oath

at the Rule 11 colloquy that he was fully satisfied with Levine’s

representation bars any claim of ineffective assistance relating to any

events up to that stage in the proceedings. This argument has

considerable merit. See Dukes v. Warden, 406 U.S. 250, 257 (1972)

(defendant’s allegation that counsel had conflict of interest that

invalidated plea was without merit; Defendant never complained to

A-62

the Court that he was not satisfied with counsel’s representation even

when Defendant knew counsel was representing two Defendants; in

fact; Defendant told the Court he was satisfied with the

representation of his counsel).

Accordingly, this Court would be justified in refusing to

consider the merits of any Sixth Amendment claims other than the

alleged deficiencies of counsel after the guilty plea hearing.

However, in order to provide a complete analysis to the Court, the

pre-guilty plea ineffective assistance of counsel claims are analyzed

on the merits, in the alternative.

A. Ineffective Assistance of Counsel Claim - Conflict

of Interest

Sarga claims that Levine had multiple conflicts of interests,

having represented Shreve, the alleged Government’s chief witness

against Sarga, and approximately two dozen other related

individuals, and also had a conflict of interest regarding Levine’s

personal business dealings with Sarga.

An attorney’s conflict of interest may deprive a defendant of

his Sixth Amendment right to assistance of counsel during a criminal

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trial. See Mickens v. Taylor, 122 S. Ct. 1237, 1240 (2002).

However, to establish ineffective assistance of counsel due to a

conflict of interest, Defendant must demonstrate that an actual

conflict of interest adversely affected his attorney’s performance. /d.

At 1238 (citing Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980)).

The harm from representing conflicting interests lies not just

in what the attorney does but also in what he advocate finds himself

compelled to refrain from doing, not only at trial but also as to

possible pre-trial plea negotiations, and in the sentencing process.

United States v. Jones, 52 F.2d 395 (11th Cir. 1995); Porter v.

Wainwright, 805 F. 2d 930 (11th Cir. 1986). If a Defendant

establishes both that an actual conflict of interest exists and that the

conflict adversely affected counsel’s performance, prejudice is

presumed. Burden v. Zant, 24 F.3d 1298 (11th Cir. 1994); Danner

v. United States, 820 F.2d 1166 (11th Cir. 1987); Porter v.

Singletary, 14 F.2d 554 (11th Cir. 1994).

However, a possible, speculative, or hypothetical conflict

does not suffice to impugn a criminal conviction. Burden, 24 F.3d

at 1305. A Defendant must point to specific instances in the record

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that suggest an impairment or compromise of his interests for the

benefit of another party. Porter, 14 F.3d at 560. A conflict remains

hypothetical and cannot form a basis for relief unless the Defendant

makes this showing. Porter, 14 F.3d at 561.

A Defendant must show “inconsistent interests and must

demonstrate that the attorney made a choice between possible

alternative courses of action, such as eliciting, or failing to elicit,

evidence helpful to one client but harmful to the other.” Smith v.

White, 815 F.2d, 1401, 1404 (11th Cir.), cert. denied, 484 U.S. 863

(1987) (quoting Barham v. United States, F.2d 1529, 1532 (1 1th Cir.)

(citations omitted), cert. denied, 467 U.S. 1230 (1984)). A conflict

may arise from a lawyer’s simultaneous or successive representation

of adverse interests. Whether the representation is simultaneous or

successive representation of adverse interests. Whether the

representation is simultaneous or successive does not conclusively

determine the questions of actual conflict; it is generally easier to

prove actual conflict arising from simultaneous representation than

from successive representation. Smith v. White, 815 F.2d at 1405.

Under the Rules Regulating the Florida Bar, to establish a

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conflict of interest the representation must be in “the same or

substantially related matter in which that person’s interests are

materially adverse to the interests of the former client . . . .” Florida

Bar Rule 4-1.9

Sarga has failed to show that Levine’s representation of

Shreve in a 1975 Georgia marijuana case had any connection to the

1992 Tampa charges against Shreve and Sarga involving a 400

kilogram cocaine conspiracy.

Sarga’s allegation that Levine represented Shreve in an

earlier case does not demonstrate that Levine labored under an actual

conflict of interest in representing Sarga. Evaluating a conflict is a

fact-specific inquiry and Sarga should point to specific instances in

the record that suggest Levine compromised Sarga’s interests

because he once represented Shreve. United States v. Novaton, 271

F.3d 968, 1010-11 (11th Cir. 2001); Porter v. Singletary, 14 F.3d at

560. Sarga has not done so. Therefore, any conflict related to

Levine’s previous representation of Shreve remains hypothetical and

cannot form a basis for relief. Porter, 14 F.3d at 561.

Furthermore, Sarga has not shown that Levine had

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“inconsistent interests” in the present case related to his previous

representation of Shreve, and has not demonstrated that Levine chose

between possible alternative courses of action, such as eliciting, or

failing to elicit, evidence helpful to Shreve but Harmful to Sarga.

Smith v. White, 815 F.2d at 1404.

Likewise, Sarga has failed to show that Levine labored under

an actual conflict of interest because of his earlier representation of

the two dozen other defendants who were never Clearly identified.

At most, Sarga has alleged a possible, speculative, or hypothetical

conflict. Burden v. Zant, 24 F.3d 1298; see Pegg v. United States,

253 F.3d 1274, 1277 (11th Cir. 2001), cert. denied, 122 S.Ct. 1435

(2002) (“A § 2255) petitioner must show ‘inconsistent interests and

. Must demonstrate that the attorney made a choice between possible

alternative causes of action... .’”.). Sarga has not shown that in

representing him, Levine had inconsistent interests vis-a-vis these

other unidentified clients.

Nor has Sarga demonstrated that Levine’ s personal business

dealings with Sarga constituted an actual conflict of interest that

adversely affected Levine’s performance. Levine’ s testimony that he

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was not paid for his services in this case and that the land transfer

was in payment for a fee in a prior case is credible; therefore, Sarga’s

allegations that the land transfer caused Levine to structure his

representation to avoid disclosure of the Pasco County land

transaction because the transaction constituted an actual conflict of

interest has no merit. Sarga has also failed to support by credible

evidence his allegation that “Levine’s business dealings with Sarga

and others, if disclosed by Sarga in a truthful, complete debriefing,

could have led to either criminal or ethical liability or both for

Levine.” See Pegg, 253 F.3d at 1278 (although defense counsel

suffered from a conflict of interest, there was no showing that this

contributed in any way to defendant’s decision to enter a guilty plea;

the court rejected the defendant’s invitation to make this a per se

conflict which obviates the need to show prejudice.).*

Furthermore, Sarga has not alleged nor shown that Levine

was under investigation or that he would have wanted to curry favor

32 Even where an attorney may be considered by the government to be an

unindicted co-conspirator in an unrelated case does not mean that there is a

prejudicial conflict. While the conflict may be actual, absent a showing that the

attorney’s advocacy was affected by this conflict, there will be no basis for setting

aside the verdict. United States v. Novaton, 271 F.3d 968 (11th Cir. 20010, cert.

Denied, 122 S.Ct. 2345 (2002).

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with the Government as a result of any of the business dealings Sarga

describes.** Sarga has failed to allege any facts to support his claim

that disclosure of Levine’s business dealings with Sarga and others

in a truthful, complete debriefing could have led to either criminal or

ethical liability against Levine.” The record and testimony at the

evidentiary hearing shows that Levine did not labor under an actual

conflict of interest in his representation of Sarga, Shreve, or other

drug clients or due to his business dealings with Sarga’s associates.*°

The preponderance of credible evidence does not support

Sarga’s claim that Levine had an actual conflict of interest which

adversely affected his performance as Sarga’s attorney in this case.

B. Ineffective Assistance of Counsel at Debriefing through

*° Even if Sarga’s testimony were credited regarding Levine’ s involvement

in Sarga’s financial dealings in the 1970's to disguise drug funds, that conduct was

too remote in time to support a finding that he was actively representing conflicting

interests in the 1992 prosecution of Sarga. See Mickens v. Taylor, 122 S. Ct. At

1245.

*“ Sarga suggests that the Florida Bar could have initiated disciplinary

proceedings and the Government might have taken action against Levine.

*S Levine was found to be ineffective because he labored under an actual

conflict of interest in United States v. Alvarez, 580 F. 2d 1251 (Sth Cir. 1978).

However, the facts of this case are distinguishable from Alvarez. In Alvarez, Levine

was simultaneously representing several clients. In the present case, Levine was

representing Sarga only. Although Levine had represented Shreve in a previous

case, the previous case was totally unrelated to the present case. Levine did not

represent Shreve in the present case.

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Sentencing

1. Debriefing

Sarga contends that trial counsel was ineffective when he

permitted Sarga to believe that he could be debriefed even though the

terms of the cooperation agreement were not finalized and Sarga was

given to understand that certain guarantees about his cooperation had

been given. Sarga also contends that Levine was ineffective in

failing to attend the debriefing.

Because a lawyer is presumed to be competent to assist a

defendant, the burden is on the accused to demonstrate the denial of

the effective assistance of counsel. United States v. Cronic, 466 U.S.

at 658. Sarga cited United States v. Ming He, 94 F.2d 782 (2d Cir.

1996) in support of his claim that Levine was ineffective for being

absent from the debriefing. In Ming He, the Second Circuit held that

the government’s standard practice in the Eastern District of New

York of conducting debriefing interviews outside the presence of

counsel, absent a waiver, was inconsistent with the fair

administration of justice. /d. at 793.%° Exercising its supervisory

absence of counsel at the debriefing was a Sixth Amendment violation. /d. at 785.

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authority, the court vacated the sentence of a defendant who was

debriefed without his attorney and subsequently sentenced based Oo

his lack of candor at the debriefing. Jd. at 785.2”

Ming He is distinguishable from this case because it was

Sarga’s untruthful testimony at the sentencing hearing, not the failed

debriefing, which led to his life sentence. The District Judge in this

case unequivocally found so at the April 1993 sentencing.

Further, even if this court were to find that Levine’s failure

to attend the debriefing were deficient performance under Strickland,

Sarga’s claims would not prevail because he has not demonstrated a

reasonable likelihood of a different outcome either in terms of his

conviction or sentence. First, the prosecutor made it clear that

Levine could not be present. Second, she offered another

opportunity for a debriefing after the motion to enforce plea

agreement was denied. Third, Sarga was adamant about providing

limited cooperation and it would be speculative to find that Levine’s

presence at the debriefing would have led to a different result. He

also knew that AUSA Beensen’s position was that he could not be

* The Eleventh Circuit has apparently not decided this issue.

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present except for the initial stage where “ground rules” were

discussed. Sarga’s expert witness, William Norris, opined that

Levine’s failure to attend the debriefing was wrong, yet he conceded

that prosecutors often insist that a defense attorney no attend a

debriefing. Sarga has not shown that Levine’s presence at the

debriefing would have caused him to provide complete information

to the Government. Therefore, the claim of ineffective assistance du

to Levine’s failure to attend the debriefing session does not meet the

prejudice prong of the Strickland test.

Sarga also contends that Levine was ineffective in not

insuring prior to the debriefing that the Government had agreed to a

limited debriefing. The series of letters between Levine and AUSA

Bahnsen did not evidence a meeting of the minds, according to Judge

Castagna’s order denying the motion to enforce plea agreement.

Even William Norris, Sarga’s expert witness, conceded that Levine

believed that the Government had agreed to a limited debriefing.

Accordingly, this second aspect of Sarga’s ineffective

assistance claim relating to the debriefing is similarly without merit

and is not deficient performance under the first prong of the

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Strickland test.

2. Motion To Enforce Plea Agreement

Sarga claims that Levine was ineffective because he failed

to secure Sarga’s presence at a hearing regarding Sarga’s motion to

enforce the plea agreement and to call Sarga as a witness. Sarga has

failed to establish that Levine’s performance was deficient in this

regard or that, if deficient, it prejudiced the outcome of his case.

The Court had the letters from Levine and the Government.

Sarga had not shown what testimony he could have introduced that

would have likely caused the Court to grant his motion to enforce the

plea agreement.

3. Guilty Plea

Sarga claims that Levine was ineffective relative to the entry

of his guilty plea by permitting Sarga to plead “open” to the charge.

However, at the guilty plea hearing, Sarga stated that he was satisfied

with counsel’s representation. Moreover, Sarga did not plead open

to all charges, but only as to the conspiracy count.

“[I]f the Rule! 1 plea taking procedure is careful and detailed,

the defendant will not later be heard to contend that he swore

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falsely.” United States v. Stitzer, 785 F.2d 1506, 1514 n.4 (11th

Cir.), cert. denied, 479 U.S. 823 (1986). The statements of a

defendant in open court are presumed to be true. United States v.

Gonzalez-Mercado, 808 F.2d 796, 800 n.8 (11th Cir. 1987); Downs-

Morgan v. United States, 765 F.2d 1534, 1541 n.14 (11th Cir. 1985).

Because a defendant’s statements concerning plea consequences at

the time of plea are considered “persuasive evidence,” they are not

overcome by the defendant’s bald assertion of misunderstanding.

Harvey v. United States, 850 F.2d 388, 396 (8th Cir. 1988).

After a conviction based on a guilty plea has become final,

a Defendant may challenge only the knowing and voluntary nature

of the plea, unless the record demonstrates that the district court

lacked the power to enter the conviction or impose the sentence.

United States v. Broce, 488 U.S. 563; United States v. Kaiser, 893 F.

2d 1300 (11th Cir. 1990).

The Defendant is barred from raising a challenge to the

factual basis of his plea in a 28 U.S.C. § 2255 motion. See Wilson v.

United States, 962 F.2d 996, 997 (11th Cir. 1992). In the context of

a Section 2255 motion, “a defendant who enters a plea of guilty

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waives all nonjurisdictional challenges to the constitutionality of the

conviction, and only an oie on the voluntary and knowing nature

of the plea can be sustained.” /d.

Sarga does not dispute that he had close assistance of counsel

and that the Magistrate Judge complied fully with Rule 11 at the re-

arraignment. Sarga maintains that the plea was not knowing and

voluntary because he could not have foreseen at the time he entered

his plea, or even at the initial sentencing, the severity of the sentence

he would receive. Sarga asserts that because he was prejudiced at

sentencing, he is entitled to withdraw his plea to seek a plea

agreement or a correction of his sentence.

| Since Sarga received close and adequate assistance of

counsel* and’ entered his plea knowingly and voluntarily, his

subsequent dissatisfaction with the severity of his sentence is not a

sufficient ground for withdrawal of the plea. United States v. Elias,

937 F.2d 1514, 1520 (10th Cir. 1991); United States v. Badger, 925

F.2d 101, 104 (Sth Cir. 1991).

** The District Judge, in denying Sarga’s motion to withdraw plea filed

after sentencing specifically found that Sarga had close assistance of counsel. (Doc.

No. 361)

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Furthermore, Sarga has not proven and cognizable claim of

ineffective assistance of counsel prior to and in connection with

Sarga’s plea of guilty. Sarga admitted at the section 2255 evidentiary

hearing, that when he entered his guilty plea, on September 17, 1992,

he was “happy” with Levine’s representation. This testimony is

consistent with his sworn responses at the guilty plea hearing that he

was Satisfied with counsel’s representation. At that time of the guilty

plea hearing, Sarga knew he faced a level 38 guidelines sentence fo

the offense, but assumed he would receive credit for acceptance of

responsibility. Sarga did not object to the factual basis of his plea at

the hearing and he acknowledged that the Court could impose the

maximum sentence of life. He also acknowledged that if his

sentence were different from what he expected, including any

prediction of counsel, that he could not withdraw his plea. See

United States v. Pease, 240 F.2d 938, 941 (11th Cir. 2001), cert.

denied, 122 S.Ct. 381 (2001).

In the guilty plea context, to establish prejudice under the

Strickland standard, the Defendant must show that there is a

reasonable probability that, but for counsel’s errors, he would not

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have pled guilty and would have insisted on going to trial. Hill v.

Lockhart, 474 U.S. 52 (1985). However, counsel owes a lesser duty

to a client who pleads guilty than to one who goes to trial, and

counsel need only provide his client with an understanding of the law

in relation to the facts, so that the accused may make an informed

and conscious choice between accepting the prosecution’s offer and

going to trial. Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th

Cir. 1984). Sarga has never stated that he would not have pled guilty

and insisted on going to trial absent Levine’s alleged errors. Instead,

he testified that he would have fled and become a fugitive in 1991.

Sarga has not shown that counsel was ineffective in

connection with the guilty plea proceedings.”

4. Sentencing

Sarga claims Levine was ineffective because he allowed

Sarga to testify at the sentencing hearing and did not fully counsel

® In Esslinger v. Davis, 44 F.2d 1515, 1530, (11th Cir. 1995), a28 U.S.C.

§ 2254 case, the court found that defense counsel was ineffective for recommending

that Esslinger enter a blind plea. Esslinger’s counsel failed to fully investigate

Esslinger’s criminal history; counsel did not inquire of the District Attorney’s office

and the probation office as he usually did. Jd. At 1529. Neither counsel nor

Esslinger knew that, based on his prior record, Esslinger faced a mandatory sentence

of ninety-nine years or life by pleading guilty. /d. at 1530. Furthermore, counsel

was not candid with the court at the state evidentiary hearing on ineffective

assistance of counsel. /d.

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Sarga as to the consequences of Sarga’s testimony. Sarga cannot

show ineffective performance or prejudice on the part of Levine

under the Strickland test.

Ultimately, it was Sarga’s decision whether or not to testify

at the sentencing hearing. See United States v. Teague, 953 F.2d

1525, 1527 (11th Cir. 1992) (every criminal defendant is privileged

to testify in his own defense, or to refuse to do so; the decision

whether a criminal defendant should testify ultimately rests with

defendant.).

William Norris, Sarga’s expert witness, conceded that the

decision to testify rests with the client.

Sarga does not allege that counsel failed to advise him of his

right not to testify. Levine testified that he would not have allowed

Sarga to testify at the sentencing hearing unless Levine had

counseled Sarga and that he did counsel him. Sarga has not refuted

that testimony. Sarga wanted to try to convince the Court that he

should not be identified as a manager in the smuggling conspiracy

and that a favorable role adjustment should be made. Sarga decided

to testify in the sentencing proceeding after discussing testifying with

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Levine.

In retrospect, Sarga’s decision to testify at the sentencing

backfired. Had he not testified, the District Judge arguable would

have not imposed a two-level adjustment for obstruction of justice or

denied a two-level adjustment for acceptance of responsibility.

However, in assessing whether counsel’s performance was

deficient under the Strickland, standard, the Court must make “every

effort to eliminate the distortin g effect of hindsight, to reconstruct the

circumstances of counsel’s perspective at the time.” Williams vy.

Head, 185 F.3d 1223, 1238-39 (11th Cir. 1999) (quoting Strickland,

466 U.S. at 689). Levine’s decision to call Sarga as a witness at the

sentencing hearing to challenge the recommended three-level

adjustment for the role in the offense did not fall below an objective

standard of reasonableness.” Strickland, 466 U.S. at 669.

Further, after Sarga received a life sentence, Levine

vigorously challenged it by filing a motion to withdraw plea.

Overall, Levine’s performance as Sarga’s trial counsel was not

“ Judicial scrutiny of counsel’s performance must be highly deferential.

A court must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance. Strickland, 466 U.S. at 669.

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deficient.

Sarga was not unfairly prejudiced at sentencing by any of

Levine’s actions. Prior to the second sentencing hearing, the

Government notified Sarga of the evidence it intended to offer and

of the enhancement it would seek. At the sentencing hearing, Sarga

had the opportunity to cross-examine and present evidence and

argument. In fact, at the April 28, 1993, hearing, prior to the

imposition of the sentence, Sarga presented the same argument

against the admission of the additional evidence that he made before

the Court at the August 9, 1994, hearing on the motion to withdraw

plea.

By alleging that Levine was ineffective in allowing him to

testify, Sarga cannot overcome the fact that he lied to the Court

Levine did not know that Sarga was going to lie and did not tell him

to lie. Therefore, this claim fails because Sarga cannot show

ineffective performance or prejudice on the part of Levine under the

Strickland standard.

C. Prosecutorial Misconduct

Sarga claims that AUSA Bahnsen committed prosecutorial

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misconduct because she knew of the conflicts under which Levine

labored and because she debriefed Sarga outside of the presence of

Levine without obtaining a waiver of Levine’s presence.

Sarga’s claim of prosecutorial misconduct is foreclosed by

the entry of the guilty plea and is procedurally barred.

Guilty pleas waive all but jurisdictional claims up to the time

of the plea. Tollett v. Henderson, 411 U.S. 258, 266-67 (1973);

Stano v. Dugger, 921 F.2d 1125, 1150 (11th Cir.), cert. denied, 502

U.S. 835 (1991). This waiver includes constitutional claims. Wilson

v. United States, 962 F.2d 996 (11th Cir. 1992) (pre-plea

ineffectiveness waived); Dermota v. United States, 895 F.2d 1324,

1326 (11th Cir.) (double jeopardy claim waived), cert.denied, 498

U.S. 837 (1990). Moreover, guilty pleas foreclose most claims from

collateral attack. See, United States v. Broce, 488 U.S. 563, 569

(1989); Dermota v. United States, 895 F.2d at 1326. Therefore,

Sarga’s prosecutorial misconduct claim is waived. :

Furthermore, “ . . . an available challenge to a criminal

conviction or sentence must be advanced on direct appeal or else it

will be considered procedurally barred in a § 2255 proceeding.”

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Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994), cert.

denied, 514 U.S. 1112 (1995).

A claim of ineffective assistance of counsel constitutes

sufficient cause to escape the procedural bar which would otherwise

block § 2255 claims not raised on direct appeal. Greene v. United

States, 880 F.2d 1299 (1tth Cir. 1999). A Defendant is entitled to

effective assistance of counsel in his direct appeal. Evitts v. Lucey,

469 U.S. 387 (1985). A Defendant has satisfied the prejudice prong

of Strickland when he or she can show that appellate counsel’s

performance was sufficiently deficient to deprive the defendant of “a

trial [or an appeal] whose result [was] reliable.” Strickland, 466 U.S.

at 687. An effective appellate advocate is not required to raise every

non-frivolous appellate issue. Effective advocates “winnow out”

weaker arguments even though the weaker arguments even though

the weaker arguments may be meritorious. Heath v. Jones, 941 F.2d

1126, 1132 (11th Cir. 1991), cert. denied, 502 U.S. 1077 (1992).

Sarga has not shown that appellate counsel Bradley Stark

was deficient in failing to raise the prosecutorial misconduct issue

nor has he shown that this issue would have had a reasonable

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probability of success on appeal. See Cross v. United States, 893

F.2d 1287, 1290 (11th Cir.), cert denied , 498 U.S. 849 (1990).

Thus, he has not demonstrated “cause” to excuse the procedural

default by not raising the claim of prosecutorial conduct on direct

appeal.

D. Failure To Accept Guilty Plea

Finally, to the extent that Sarga claims he is entitled to relief

because the District Judge failed to accept his plea of guilty, this

claim is without merit. See generally, United States v. Ciapponi, 77

F.2d 1247, 1251 (10th Cir. 1996) (“it is implicit in the sentencing

record, which includes the presentence investigation, that the district

judge reviewed the facts of the case against defendant and the basis

for his guilty plea.”).

In the present case, the Honorable Steven D. Merryday

implicitly accepted Sarga’s guilty plea. (Doc. No. 256, p. 6). Levine

stated at the April 28, 1993, sentencing hearing that the guilty plea

had been accepted. (Doc. No. 345, p. 69)

Furthermore, Sarga did not present this claim at the

evidentiary hearing except in closing argument. In addition, the

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claim is procedurally barred because it was not raised on direct

appeal, and the Eleventh Circuit found that there was no plain error

relative to this claim. (See Doc. No. 395)

E. Other Issues

Any issues raised in a belated fashion relating to Levine’s

discussion of the sentencing guidelines with Sarga or the amount of

time Levine spent counseling Sarga are not clearly raised in the

amended motion to vacate or the pre-evidentiary hearing stipulation.

Accordingly, they will not be further addressed.

Any other claims or arguments raised in the amended motion

to vacate, set aside, or correct an allegedly illegal sentence not

specifically addressed in this Report and Recommendation have been

considered and rejected.

Conclusion

Sarga’s guilty plea statement under oath that he was satisfied

with Levine’s performance bars any claim of ineffective performance

prior to that date. Alternatively, the Sixth Amendment claims should

be denied on the merits. Levine did not labor under an actual

conflict of interest by representing Shreve in a previous unrelated

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case, nor did he labor under an actual conflict of interest by

representing Sarga after representing unnamed defendants in

previous cases. Likewise, Levine did not labor under an actual

conflict of interest due to the alleged financial business dealings

between Levine and Sarga. Therefore, Levine was not ineffective

due to an actual conflict of interest.

Furthermore, Levine was not ineffective in connection with

the failed debriefing. Sarga has failed to establish the likelihood of

a different outcome if Sarga had been present. Nor has Sarga proved

that Levine’s other actions in connection with the failed debriefing

met the prejudice prong of the Strickland standard. In addition,

Levine was not ineffective for failing secure Sarga’s presence at the

motion to enforce plea held before the Honorable William J.

Castagar because all information needed for the Court to rule on the

motion was contained in the letters between AUSA Bahnsen and

Levine.

Finally, Levine was not ineffective for allowing Sarga to

testify at the sentencing hearing. Sarga chose to testify and Levine

counseled him before Sarga did so. Levine did not tell Sarga to lie

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and did not know that Sarga was going to lie on the stand. There has

been no showing that Levine’s performance was prejudicial to the

defense.

Sarga’s claim of prosecutorial misconduct is barred by the

entry of his guilty plea and is procedurally defaulted because he did

not raise the claim on direct appeal.

It is therefore RECOMMENDED

That Sarga’s motion to vacate, set aside, or correct an

allegedly illegal sentence (Doc. No. 423) be denied with prejudice.

Respectfully submitted this 21st day of March 2003.

/s/ Elizabeth A. Jenkins

Elizabeth A. Jenkins

United States Magistrate Judge

NOTICE TO PARTIES

Failure to file written objections to the proposed findings and

recommendation contained in this report within ten days from the

date of its service shall bar an aggrieved party from attacking the

factual findings on appeal and a de novo determination by a district

judge. See 28 U.S.C. § 636 (b)(1); Fed. R. Civ. P. 72; see also, Fed.

R. Civ. P. 6; M.D. Fla. R. 4.20.

cc:

Hon. Steven D. Merryday

Counsel of record

SA/sm

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