Appendix — Pegg v. United States

swe ceS

01 816 Nov 01 2001

No. G@OCE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2000

JOE HARRY PEGG,

Petitioner,

US.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

MICHAEL S. PASANO WILLIAM J. GENEGO*

Zuckerman, Spaeder, Nasatir, Hirsch, Podberesky

Taylor & Evans & Genego

Suite 900 2115 Main Street

201 S. Biscayne Boulevard Santa Monica, CA 90405

Miami, FL 33131 (310) 399-3259

(305) 579-0110

Counsel for Petitioner

JOE HARRY PEGG

* Counsel of Record

WaAnY

A-1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-11287-J]

JOE HARRY PEGG,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

On Appeal from the United States District Court

for the Middle District of Florida

Filed August 3, 2001

(Opinion 7 Che.

F.2d ).

Before. © CARNES and RONEY, Circuit Judges,

and ALAIMO’%, Distict Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and

no member of this panel nor other Judge in regular

active service on the Court having requested that the

Court be polled on rehearing en banc (Rule 35, Federal

Rules of Appellate Procedure; Eleventh Circuit Rule

35-5), the Petition(s) for Ranearsng En Banc are

DENIED.

ENTERED FOR THE COURT:

Paul H. Roney,

United States Circuit Judge

* Honorable Anthony A. Alaimo, U.S. District Judge

for the Southern District of Georgia, sitting by

designation.

ee ae. ee a

B-3

APPENDIX B

253 F.3d 1274

Joe Harry PEGG,

Petitioner-Appellant,

v.

UNITED STATES of America,

Respondent-Appellee.

No. 99-11287.

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

June 12, 2001, Decided

June 12, 2001, Filed

Before CARNES and RONEY, Circuit

Judges, and ALAIMO *, District Judge.

* Honorable Anthony A. Alaimo, U.S.

District Judge for the Southern District

of Georgia, sitting by designation.

RONEY, Circuit Judge:

Defendant Joe Harry Pegg was convicted on his

plea of guilty to one count of conspiracy to import

B-4

marijuana in violation of 21 U.S.C. § 963, and given a

360-month sentence. He appeals the denial of his 28

U.S.C. § 2255 collateral attack on that conviction with

a single issue: the district court erred in not letting him

withdraw his guilty plea, either before or after

sentencing, on the ground that his attorney had a

conflict of interest that deprived him of his

constitutional right to effective assistance of counsel.

After a four-day evidentiary hearing, the district court

determined that, although one of his attorneys did

indeed have a conflict of interest in Pegg's going to

trial, the conflict of interest of that attorney did not

deprive Pegg of effective assistance of counsel. See

United States v. Pegg, 49 F. Supp. 2d 1322 (M.D. Fla.

1999). That finding being neither clearly erroneous

nor contrary to law, we

1. The Facts Concerning the Guilty Plea.

The facts of this case unfolded over a sixteen-

year period. Pegg became acquainted with

Washington, D.C. attorney James E. Sharp in 1981

when Sharp represented Pegg in a joint federal and

state marijuana prosecution. Pegg and Sharp became

good friends thereafter, and Sharp continued to

represent Pegg on and off through their friendship. In

March 1994, a federal grand jury in Tampa, Florida

returned the indictment that is the subject of this

appeal. Pegg was charged as one of several individuals

who conspired to import marijuana into the United

B-5

States in 1988 and 1989. Pegg asked Sharp and Tom

Lankford, Sharp's law partner, to represent him in the

matter, and both Sharp and Lankford agreed. Sharp

engaged John Fitzgibbons, a Tampa attorney, to be

local counsel for Pegg in the case. Cynthia Collazo,

the Assistant United States Attorney ("AUSA")

assigned to prosecute Pegg's case, frequently discussed

the possibility of a plea agreement with all three of

Pegg's attorneys. They also discussed the likelihood

that Pegg could receive a reduced sentence if he entered

into a plea agreement and cooperated with the

government.

In September 1994, AUSA Collazo was

contacted by the attorney for Reggie Baxter, a co-

conspirator of Pegg's who became a government

witness. Baxter's attorney explained to AUSA Collazo

that Sharp may have had privileged conversations with

Baxter that would cause Sharp a conflict of interest in

representing Pegg. AUSA Collazo instructed a federal

agent to interview Baxter and also sent a letter to Sharp

and Lankford alerting them that Sharp's contact with

Baxter might have caused a conflict of interest. Sharp

and Lankford denied the existence of any conflict of

interest. AUSA Collazo then interviewed Baxter at the

federal lock-up facility. In unsworn statements, Baxter

told AUSA Collazo that shortly after he had been

arrested in 1992 for participating in the marijuana

importation conspiracy charged in the instant case,

Sharp had met with him and arranged for Pegg to pay

B-6

a jportion of Baxter's legal fees. Baxter then stated that

Peegg had retained attorney Dick Hibey to represent

Baxter in the case. Baxter further claimed that Sharp

athd Hibey helped him concoct a false story to help

exculpate Pegg.

AUSA Collazo expressed concern that Baxter's

alllegations regarding Sharp would come up at trial and

affect Sharp's ability to represent Pegg. AUSA Collazo

notified Sharp, Lankford, and Fitzgibbons that they

should alert the district court of the potential conflict.

Fitzgibbons told AUSA Collazo that even if Sharp was

disqualified from representing Pegg, he could try the

Case and win. On November 17, 1994, AUSA Collazo

Prepared a motion to disqualify Sharp and Lankford.

When Sharp and Lankford received the motion for

disqualification, they, along with Fitzgibbons, were

Pp'reparing to go to trial and did not intend to enter a

guilty plea. Pegg's attorneys collectively discussed the

conflict issue and decided that, in the event Sharp

emded up having to testify at trial, Fitzgibbons would

assume the role of lead attorney in the case. The

attorneys discussed with Pegg the nature of Sharp's

conflict, and the possible consequences of Sharp

Continuing to serve as his counsel, and the possibility

that Sharp may need to disqualify himself from the

case. Pegg begged Sharp not to withdraw from the

case, saying "don't abandon me."

B-7

On November 28, 1994, Pegg, Sharp, Lankford,

and Fitzgibbons appeared in court prepared to argue

the government's disqualification motion and other

pretrial motions. Unexpectedly, Bernie Getchman,

another co-defendant in the case whose counsel had

previously advised Pegg's attorneys that he was

definitely going to trial, pled guilty to all the charges in

the indictment. During his plea colloquy, Getchman

testified that Pegg had hired him to direct, organize,

and control the marijuana importation and that he had

done so at Pegg's direction. The district court granted

the parties a continuance until the following day to

attempt to negotiate a plea in the case.

AUSA Collazo, Sharp, and Lankford met and

agreed that Pegg should submit to an interview by a

Drug Enforcement Agency ("DEA") agent to see if

Pegg had any information that would be helpful to the

government. The DEA agent told Pegg that if he

cooperated with the government, the government

would likely move to reduce his sentence below that

required by the sentencing guidelines. In Pegg's

presence, Fitzgibbons, an experienced federal trial

attorney in Tampa, suggested that Pegg was likely to

get a good deal at sentencing, predicting that the

sentencing judge was likely to sentence him to time

served, if he entered a guilty plea, turned over

monetary assets, and cooperated in interviews with the

DEA.

B-8

Pegg's attorneys negotiated a written plea

agreement with the government, which they brought

to Pegg that evening. The three lawyers collectively

decided that it was in Pegg's best interest to plead

guilty, and Pegg agreed. During the plea colloquy,

Pegg appeared calm and coherent and never raised any

issue regarding Sharp's conflict of interest. The district

court qualified the plea and went through a few

questions that were meant to show Pegg's waiver of

Sharp's conflict of interest.

Pegg was not sentenced until fifteen months

after he had entered his guilty plea. Fitzgibbons

represented Pegg during the sentencing hearing on

February 16, 1996. Prior to sentencing, Pegg was

afforded several opportunities to cooperate with the

government. The interviewing DEA agent noted,

however, that Pegg had not been truthful in the

interviews. Because Pegg had not complied with the

terms of the plea agreement to date, Fitzgibbons did

not want to proceed with sentencing that day and

requested a continuance. Once Pegg realized that the

government had not filed a motion for downward

departure from the sentencing guidelines, Pegg told

Fitzgibbons that he crane to withdraw his plea. The

district court denied Pegg's request.

B-9

2. The Standard For Relief For Conflict of Interest.

To obtain relief on a case of this kind, a

defendant must show first, that his attorney had an

actual conflict of interest, and second, that the conflict

adversely affected counsel's performance. See Freund v.

Butterworth, 165 F.3d 839, 858 (11th Cir. 1999). In

order to establish a violation of the Sixth Amendment,

a defendant "must demonstrate that an actual conflict

of interest adversely affected his lawyer's

performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 64

L. Ed. 2d 333, 100 S. Ct. 1708 (1981); see also Freund,

165 F.3d at 858. A § 2255 petitioner must show

"inconsistent interests and must demonstrate that the

attorney made a choice between possible alternative

courses of action...."" McConico v. Alabama, 919 F.2d

1543, 1546 (11th Cir. 1990) (quoting Smith v. White,

815 F.2d 1401, 1404 (11th Cir. 1987).

a. The Attorney's Conflict of Interest.

As to the first prong of the showing Pegg had to

make, the district court found and the government

does not deny that Sharp labored under an actual

conflict of interest created by co-conspirator Baxter's

allegations that Sharp had engaged in unethical and

criminal activity in connection with his representation

of Pegg.

B-10

b. No Adverse Effect on Assistance of Counsel

and the Guilty Plea.

As to the second prong, even if an actual conflict

of interest exists, there must be proof that the conflict

adversely affected counsel's performance in order to

rise to the level of a Sixth Amendment violation. See

Buenoano, United States v. Buenoano, 74 F.3d 1078,

1086 (11th Cir. 1996) ("In assessing whether an actual

conflict adversely affected counsel's representation, ' a

petitioner need not show that the result of the trial

would have been different without the conflict of

interest, only that the conflict had some adverse effect

on counsel's performance.’ (quoting McConico, 919

F.2d at 1548)).

To prove adverse effect, a habeas corpus

petitioner must show: (1) the existence of a plausible

alternative defense strategy or tactic that might have

been pursued; (2) that the alternative strategy or tactic

was reasonable under the facts; and (3) a link between

the actual conflict and the decision to forgo the

alternative strategy of defense. See Freund, 165 F.3d at

860 (holding that a petitioner must establish that the

alternative defense strategy was inherently in conflict

with or not undertaken due to the attorney's other

loyalties or interests); see also Burden v. Zant, 24 F.3d

1298, 1305 (1ith Cir. 1994). If there is a guilty plea

involved, this Court looks at whether the attorney's

actual conflict adversely affected the defendant's

B-11

decision to plead guilty. See, LoConte v. Dugger, 847

F.2d 745, 755 (11th Cir. 1988).

In a four-day evidentiary hearing on the instant

§ 2255 motion, the district court heard extensive

testimony from Pegg's attorneys and others involved in

the events leading up to the entry of Pegg's guilty plea.

The record shows that Pegg had the advice of several

attorneys and that the plan under which Pegg was to

enter his guilty plea was devised by Fitzgibbons, an

attorney who did not act under any conflict of interest.

During his testimony Sharp denied Baxter's

incriminating allegations that he had concocted a plan

to fabricate a story to the DEA. Even though Sharp

acknowledged that he had briefly met with Baxter,

Sharp testified that he refused to discuss the case with

Baxter further once Baxter conveyed to him that he

had information that incriminated Pegg. Sharp also

acknowledged that he and Pegg had had a personal and

professional relationship for several years and that Pegg

had begged Sharp to remain as his counsel in this case.

Sharp admitted that Baxter's allegations upset him, that

he was concerned about his own interest, but insisted

he put his client's interest first and foremost in assisting

Pegg in making the decision to plead guilty. Sharp also

testified concerning the active involvement of Pegg's

other attorneys, who decided collectively that it would

be in Pegg's best interest to plead guilty. Fitzgibbons

testified that he had devised and promoted the plan for

Pegg to plead guilty and to cooperate with the

B-12

government in order to receive a reduced sentence.

Fitzgibbons further testified that although Pegg.

struggled with the decision to plead guilty, he believed

that at the time Pegg entered the plea he wanted to do

so.

Furthermore, the reasoning of Pegg's attorneys’

collective recommendation for Pegg to plead guilty is

clearly supported by the record. If Pegg had not

pleaded guilty, Getchman, a co-conspirator turned

government witness, would have testified against Pegg

at trial and his testimony would have been devastating

to Pegg's case. Although there was a clear alternative

to the chosen defense strategy — to go to trial — there is

evidence in the record to support the district court's

finding that Sharp's performance was not adversely

affected by Baxter's allegations. Pegg's assertion that

Sharp avoided the publication at trial of Baxter's

allegations against Sharp is at best speculative, and the

collective recommendation by Pegg's attorneys for

Pegg to plead guilty was in Pegg's best interest at the

time of his sentencing.

The record amply supports the decision of the

district court that Pegg did not receive ineffective

assistance of counsel because of the conflict of interest

of his attorney, James E. Sharp.

B-13

3. Inapplicability of Per Se Rule.

Pegg urges this Court to adopt the Second

Circuit's holding in United States v. Fulton, 5 F.3d 605

(2d Cir. 1993), in which the court held there to be a per

se violation of the Sixth Amendment not subject to

waiver by the defendant under the circumstances of

that case. In the middle of the trial at issue in Fulton,

the government informed the court in an ex parte

conference that the government witness on the stand

previously stated that he had once imported heroin for

defendant Fulton's trial counsel. See, id. at 607. In spite

of the fact that this implicated counsel in the very

crime for which Fulton, the defendant, was being tried,

the court permitted counsel to continue to represent

defendant in the trial. See Fulton, 5 F.3d at 608. The

Second Circuit held this to be error. See Fulton, 5 F.3d

at 612. Relying on its precedent, the Second Circuit

noted that there is a per se violation of defendant's

Sixth Amendment right to effective assistance of

counsel without the necessity of showing an adverse

effect as required by Cuyler v. Sullivan, 446 U.S. 335,

64 L. Ed. 2d 333, 100 S. Ct. 1708 (1981), "when the

attorney has engaged in the defendant's crimes."

Fulton, 5 F.3d at 611.

Even if there may be circumstances under which

a per se rule should be applied, in our judgment Fulton

would not require a reversal in this case. In limiting

language in Fulton the court cautioned that where the

B-14

district court could rule out the possibility that the

allegations are true through an evidentiary hearing, a

waiver is possible. Fulton, 5 F.3d at 613. There was an

evidentiary hearing in this case, and the district court

was not clearly erroneous in accepting “Sharp's

uncontroverted testimony that Baxter's allegations

were false." Pegg, 49 F. Supp. 2d at 1332.

Furthermore, the accusation in Fulton that

counsel was involved in the alleged crime would seem

to affect counsel's handling of the trial. In addressing

the defendant, the district court in Fulton said:

"... you understand that first of all lead

trial counsel will be to some extent

distracted by this and, secondly, that he

will not be able to cross-examine the

witness about this ..."

Fulton, 5 F.3d at 608 (quoting the district court).

In this case, there was no trial, and there was no

proffer of sworn testimony from Baxter to contradict

the sworn testimony from Sharp that Baxter's

allegations were false. See Pegg, 49 F. Supp. 2d at 1332.

The allegations in this case involve counsel's

representation of the defendant in preparation for trial,

and actions that would become a problem to counsel

only if there were a trial. The allegations did not

involve a charge that counsel was involved in the crime

B-15

with which defendant was charged. The proceedings

remained at a stage during which Sharp could continue

to let Pegg's interest trump any interest he might have

if the case went to trial. There was an able conflict-free

counsel, Fitzgibbons, available to defend Pegg in the

event of a trial. Fitzgibbons was available to Pegg and

did assist him in assessing the strategy and devising a

plan for Pegg to plead guilty in the hopes of receiving

a reduced sentence. There is no reason, under the facts

of this case, to presume that the defendant suffered a

violation of his Sixth Amendment right to counsel in

connection with his entry of a guilty plea.

The district court properly denied Pegg's

petition for relief under 28 U.S.C. § 2255.

AFFIRMED.

C-16

APPENDIX C

49 F. Supp.2d 1322

UNITED STATES OF AMERICA

JOE HARRY PEGG

CASE NO. 94-38-CR-FTM-17D

UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF FLORIDA,

FORT MYERS DIVISION

April 28, 1999, Decided

Before Elizabeth A. Kovachevich, UNITED

STATES DISTRICT JUDGE.

ORDER

Before the Court is the defendant's motion to

vacate, set aside, or correct his sentence pursuant to 28

USS.C. § 2255 (Doc. 348) filed on February 2, 1997.

The government filed a response (Doc. 357) on April 4,

1997. As grounds for his motion the defendant alleges

that: 1) his counsel was ineffective based on a conflict

of interest arising out of his counsel's own self-interest

and concerns, and 2) the Court abused its discretion in

denying the defendant's motion to withdraw his guilty

plea. An evidentiary hearing has been held on the

C-17

defendant's claims. Because the evidence does not

support the claims, the defendant's motion will be

DENIED.

I. FACTS

A. Background

In November of 1988, the defendant arranged to

have a ship, the Turtola, leave Colombia with

approximately 20,000 pounds of marijuana. The

Turtola was to transport the marijuana to the Florida

Keys. Bernie Getchman, one of the co-defendants in

this case, was responsible for the off-load of the

marijuana into the Florida Keys, where the marijuana

would be trans-shipped for a later sale. Only

approximately 5,000 pounds of the marijuana was

successfully imported to the United States and

ultimately sold.

Sometime in early 1989, the defendant made

arrangements for another shipment from Colombia to

the Florida Keys aboard the Turtola. This time a co-

conspirator named Reggie Baxter was responsible for

the off-load and importation of the marijuana into the

United States. Once in the Florida Keys, the marijuana

aboard the Turtola was to be transported to several

boats launched from the area of Marco Island, Florida.

However, the Turtola was intercepted by the United

States Coast Guard and only one of the boats succeeded

in taking approximately 5,000 pounds of marijuana.

C-18

The rest of the marijuana aboard the Turtola was seized

by the Coast Guard. R. Doc. 179, pp. 15-16."

In May, 1990, Baxter was indicted for his

involvement in the marijuana importation aboard the

Turtola. In February, 1991, Baxter pled guilty to the

marijuana importation and agreed to cooperate with

the government.

On March 29, 1994, the grand jury returned a

two count sealed indictment against the defendant and

others, including Getchman. The first count charged

the defendant with conspiracy to import marijuana in

November, 1988. The second count charged the

defendant with conspiracy to import marijuana in

April, 1989. On June 10, 1994, the indictment was

unsealed and the defendant was arrested at his home

that morning. R. Doc. 363, p. 5.

After the defendant was transported to the

Middle District of Florida, James E. Sharp and Vernon

Thomas Lankford, of the Washington, D.C. firm of

Sharp and Lankford, entered an appearance in this case

as the defendant's counsel. Jd. Sharp is a nationally

renowned criminal trial lawyer, a former federal

prosecutor, and a member of the American College of

' Citations to the record will be as follows: R. Doc.

[Docket Number].

C-19

Trial Lawyers. R. Doc. 405, p. 38. Sharp's attorney-

client relationship with the defendant began in 1981,

when Sharp represented the defendant in related state

and federal marijuana prosecutions. R. Doc. 404, pp.

101-108. At the time Sharp and Lankford entered an

appearance in this case, Sharp was also representing the

defendant and other members of the defendant's family

in a civil forfeiture matter in the Eastern District of

Louisiana. R. Doc. 397, p. 172.

On August 8, 1994, John M. Fitzgibbons filed a

notice of appearance in the case as local counsel. R.

Doc. 95. Fitzgibbons, a well-known Tampa criminal

attorney with 24 years of experience, and a Board

Certified Criminal Trial attorney, had started his own

practice in 1987. Before going into private practice,

Fitzgibbons served as a state and federal prosecutor, a

special counsel to the House of Representatives Small

Business Committee, and in the Public Integrity

Section of the Justice Department. R. Doc. 404, pp. 4

8. Originally, Fitzgibbons's role in the defendant's case

was limited to that of local counsel. Fitzgibbons was

not expected to actively participate in the defense or in

the trial. R. Doc. 404, p. 15.

In a letter dated September 2, 1994, counsel for

the government, Assistant U.S. Attorney Cynthia

Hawkins (later Cynthia Hawkins Collazo) solicited

Sharp's position with regard to a potential conflict of

interest based on Sharp's contact with Baxter, who

C-20

would testify at trial against the defendant. Sharp's

partner, Lankford, telephoned Collazo in response to

the letter and denied the existence of any conflict of

interest. R. Doc. 398, p. 135 & R. Doc. 404, p. 117.

On October 11, 1994, the defendant's trial was

continued from October 17, 1994, to November 28,

1994. Sometime in September or October, 1994,

Collazo advised Sharp that, unless the defendant

entered a guilty plea, the government would file a

motion to disqualify Sharp based on the alleged conflict

of interest. Sharp responded that if the Court granted

the motion for disqualification, Fitzgibbons could try

the case. R. Doc. 404, pp. 217-18, 269. A week or two

before the trial, Sharp and Lankford asked Fitzgibbons

to travel to Washington D.C. to meet with them. R.

Doc. 404, pp. 15-16. When he arrived in Washington,

Fitzgibbons met with several attorneys. Fitzgibbons

remembered that the conflict issue was discussed and

that at some point he was told that he might have to

step in and try the case as first chair. R. Doc. 404, p.

17.

Approximately two weeks before the trial date,

Sharp informed Collazo that the defendant would

proceed to trial. On November 18, 1994, the

government faxed a copy of the proposed

“Government's Motion to Disqualify Counsel for the

Defendant Pegg.” In the motion, the government

argued that the evidence would show that Sharp had a

C-21

prior relationship with Baxter and that Sharp was

involved in unethical and criminal conduct related to

the charges for which the defendant was to stand trial.

The government's motion also implicated attorney

Richard Hibey in the wrongdoings. Hibey, a well-

known Washington D.C. attorney, had represented

Baxter when Baxter was indicted and pled guilty to the

1989 marijuana importation. Hibey was a close

personal friend of Sharp. R. Doc. 404, p. 122.

The government alleged in the disqualification

motion that after Baxter's indictment, but before the

defendant's indictment, the defendant arranged a

meeting between Sharp and Baxter. In that meeting,

Baxter allegedly discussed the facts of the April, 1989,

importation with Sharp and Sharp arranged to meet

with Baxter again in the future. The motion further

stated that at a later date Sharp introduced Baxter to

Hibey, and the three of them agreed that the defendant

would pay for a portion of Baxter's legal fees. Baxter

was allegedly aware that Sharp and Hibey had further

conversations regarding the extent of Baxter's

cooperation with the government. In the motion, the

government stated that Baxter would testify that Hibey

had discussed with Baxter a version of the events to tell

the government that was false and that Baxter would

testify as to Sharp's role in concocting that story. R.

Defendant's Evidentiary Hearing Exhibit 1.

C-22

The disqualification motion identified three

separate grounds for disqualification of the firm of

Sharp and Lankford from the defendant's

representation:

1) Sharp had a conflict between his duty to the

defendant and his duty to Baxter because Sharp entered

into an attorney-client relationship with Baxter that

involved privileged communications;

2) Sharp was subject to being called as a witness

against the defendant due to his personal knowledge of

the alleged arrangement concerning the defendant's

payment of part of Baxter's legal fees;

3) “the integrity of the court" required Sharp's

disqualification because Baxter would testify that Sharp

was involved in concocting a false story to the Drug

Enforcement Administration Agents to exculpate the

defendant.

In the motion, the government argued that if the

defendant proceeded to trial, Sharp's disqualification

was mandatory and could not be waived by the

defendant. The defendant argues that a fourth ground

for disqualification, which is the basis for the instant

motion to vacate, was created by the government's

making the disqualification of Sharp and Lankford

conditional upon the defendant's proceeding to trial.

The defendant argues that making the disqualification

i ee

C-23

contingent upon whether the defendant went to trial

made it in the firm's best interest to avoid the

publication of Sharp's alleged unethical and criminal

conduct at trial by convincing the defendant to plead

guilty. The Court notes that the disqualification

motion was never filed with the Court.

B. Evidentiary Hearing

At the evidentiary hearing on the instant

motion, Sharp vehemently denied Baxter's accusations

of impropriety. According to Sharp's testimony at the

evidentiary hearing, Sharp only met with Baxter once.

At that meeting, Baxter started to relate to Sharp the

facts of a marijuana importation. Baxter mentioned

the defendant's name and at that point in the

conversation Sharp stopped Baxter and told him “!

don't even want to talk anymore. I certainly can't

represent you." R. Doc. 404, p. 119. Baxter begged

Sharp to take his case and Sharp refused. R. Doc. 404,

p. 120. Baxter kept calling Sharp and asking him to

represent him. Finally, Baxter asked Sharp if he could

refer Baxter to another attorney. Sharp called Hibey

and asked Hibey if he would agree to talk to Baxter.

Hibey agreed to do it. Hibey then became Baxter's

counsel. R. Doc. 404, p. 122.

The testimony presented at the hearing revealed

that as soon as the firm of Sharp and Lankford received

the copy of the disqualification motion, they started

C-24

preparing a response. Paul Castellito, an associate at

the firm, was the attorney assigned to draft the

response to the disqualification motion. R. Doc. 397,

p. 92 & R. Doc. 404, p. 125. The response to the

motion was never filed with the Court.

Paul Knight, an attorney at the firm of Sharp

and Lankford at the time, testified at the hearing that

Sharp was overly concerned with regard to the

disqualification motion, and that the disqualification

issues became Sharp's primary focus and concern in the

days before trial. R. Doc. 397, pp. 176 & 225-228.

Further, Castellito testified that Sharp was concerned

about the allegations of improper conduct and their

effect on him personally. R. Doc. 397, p. 93. In his

testimony, Sharp admitted that he was concerned

about the government's allegations of impropriety.

However, Sharp stated that he always placed the

defendant's interests first. During his testimony, Sharp

said “if you begin with yourself, you are doing it

wrong. If you begin with the impact on [the client],

you're doing it right.". R. Doc. 404, p. 236. Sharp

further stated "I was concerned about myself. I don't

want to discount that at all... But also, make no

mistake about it, I was not going to sell [my client] out

for myself." R. Doc. 404, p. 273.7

? To the extent that Sharp's testimony might be

contrary to Knight's and Castellito's version of the

events, the Court accepts Sharp's testimony as

C-25

On November 28, 1994, the day the defendant's

case was scheduled for trial, Bernie Getchman entered

a guilty plea and identified the defendant, Joe Pegg, as

one of his co-conspirators. R. Doc. 263, p. 12 & R.

Doc. 404, p. 136. After Getchman entered his guilty

plea, Sharp asked the Court for a moment to speak

with co-counsel. Sharp testified that he believed that

Getchman's testimony could tilt the balance against the

defendant. R. Doc. 404, p. 138. Getchman pled guilty

to the charges in the indictment without the benefit of

a plea agreement. Sharp believed that because

Getchman did not have a plea agreement, there was a

good possibility that after the plea Collazo would offer

Getchman a reduced sentence in return for Getchman's

testimony against the defendant. R. Doc. 404, p. 137.

Sharp consulted with Fitzgibbons and the other

attorneys from his firm that were present at the time.

Fitzgibbons testified that, at that point, it became

“pretty clear fairly quickly that Judge Kovachevich [the

undersigned] would be the sentencing judge." R. Doc.

405, pp. 40-41. Fitzgibbons advised Sharp that if the

defendant pled guilty and this Court were to impose

the defendant's sentence, if the defendant agreed to

correct. In making this credibility determination,

the Court relies on the demeanor of the witnesses

and on their relative forthrightness in responding to

questions.

C-26

cooperate with the government, this Court would

reward the defendant's cooperation. Fitzgibbons told

Sharp that this Court was known to reward and give

lenient sentences to cooperators. R. Doc. 404, pp. 29-

30 & 140. Sharp believed that by pleading guilty, the

defendant could avoid the Getchman problem and

perhaps get a favorable venue for his sentencing. R.

Doc. 404, p. 141. After consulting with Fitzgibbons,

Sharp informed the trial judge, Honorable Lee P.

Gagliardi, that he believed the parties could resolve the

case without going to trial and requested a ten-day

continuance. Judge Gagliardi denied the request for a

ten-day continuance and gave the parties 24 hours to

resolve the issue of whether the defendant would plea

or would proceed to trial.

At the time Sharp informed Judge Gagliardi that

he believed the case could be resolved without a trial,

the defendant's plea agreement had not been drafted

and Sharp had not discussed the possibility of a plea

with the government in at least two weeks. R. Doc.

397, p. 181 & Doc. R. 404, pp. 195-96.

The government provided the defendant with a

proposed plea agreement sometime during the day on

November 28, 1994. Under the terms of the

agreement, the defendant was required to cooperate

with the government and to forfeit $ 8 million. The

forfeiture amount was reduced to $ 4 million during

the plea negotiations. Pursuant to the plea agreement,

C-27

in return for the defendant's cooperation and

forfeiture, the government would dismiss one of the

counts of the indictment, would not file second

offender papers, and would recommend a reduction in

the defendant's sentencing score sheet for acceptance of

responsibility. If the defendant failed to provide the

government substantial assistance, his guideline

sentence range would be 360 months to life

imprisonment. R. Doc. p. 179.

The defendant agonized over whether he should

plead guilty or go to trial. Before signing the plea

agreement, the defendant had extensive meetings with

his attorneys. During those meetings, the defendant

voiced his concern with regard to the forfeiture

amount. The defendant asked Sharp "Where are we

going to get that money?” R. Doc. 404, p. 146.

However, even though money was an issue, Sharp

testified that he assumed the defendant's brother

William (Bucky) Pegg would come up with the money.

Sharp stated "I think that was a realistic assumption."

R. Doc. 404, p. 254. Before proceeding to explain his

belief that Bucky Pegg could provide the forfeiture

money was a realistic, Sharp asked the defendant's

counsel whether that information was within the scope

of the attorney-client privilege that had not been

waived by the defendant. Without responding to

- Sharp's inquiry, the defendant's counsel withdrew the

C-28

question.’ Jd. Sharp then stated, "I was sure [the

defendant and his brother] could come up with [the

money]." R. 404, 255.

Also, during the meetings the attorneys

discussed with the defendant the issues raised by the

government's disqualification motion and the different

conflicts of interest raised in the motion. Fitzgibbons

testified that the conflict issue was discussed by the

lawyers in front of the defendant on several occasions.

R. Doc. 405, p.6. However, the defendant was

adamant that he wanted Sharp to represent him. R.

Doc. 404, p. 287. Sharp and Fitzgibbons testified that

they did not advise the defendant of his right to consult

an independent counsel on the conflict issue because

they believed that the defendant would refuse to do it.

R. Doc. 404, pp. 287-88, 290 & R. Doc. 405, pp. 43-44.

Sharp testified that at one point he considered

that it could be better to address Baxter's allegations in

court and deny them. However, before making the

final determination Sharp had to take into account the

impact that Sharp's testimony, if he was required to

testify, would have on the defendant's case. Sharp

stated that if he were to take the stand to contradict

Baxter's allegations, there was a strong possibility that

> At all times during the evidentiary hearing, the

defendant's attorneys tried to avoid any inquiries

directed to the defendant's finances.

> * . 7 5 <

POR IP AD Fe eft Sy Eee ees Ae aie

C-29

Sharp would have to testify regarding the contents of

his first conversation with Baxter and that in that

conversation Baxter implicated the defendant in the

1989 importation. Accordingly, Sharp believed that his

testimony at trial could severely hurt the defendant's

case. R. Doc. 404, p. 202.

Finally, after much deliberation, the defendant

signed the plea agreement sometime late on November

28, 1994. Sometime before the defendant pled guilty,

Collazo had made it clear that neither Sharp nor Hibey

was the target of a government investigation. It is not

clear from the record whether Collazo informed Sharp

personally or someone else conveyed the information

to Sharp. Sharp did not remember whether it was

Collazo or Hibey who had told him that he was not a

target. R. Doc. 404, pp. 124 8& 226-8. Also, the record

is not clear as to whether Sharp learned that he was not

a target on or before November 28, 1994, date in which

the trial was scheduled to begin.

On November 29, 1994, the defendant pled

guilty pursuant to the plea agreement. At the plea

hearing Judge Gagliardi inquired regarding the conflict

issues. Specifically, the inquiry consisted of the

following:

THE COURT: Some issue has arisen as to

whether or not there may be a conflict in [defense

counsel's] representation of you. You are familiar of

C-30

that, are you not?

THE DEFENDANT: Pretty much so. I

understand the situation, but I am happy with my

counsel.

THE COURT: You are happy, you are

content, in light of the fact that there may be a

problem with respect to their representation of you in

this matter?

THE DEFENDANT: Yes.

THE COURT: You are content to have them

represent you?

THE [DEFENDANT: Yes, I do.

THE COURT: Do you waive any conflict of

interest they may have in connection with this matter?

THE DEFENDANT: Yes.

THE COURT: All right. . .

R. Doc. 345, pp. 3-4.

Fitzgibbons testified that when the defendant

pled guilty he was satisfied with the defendant's

C-31

understanding of the conflict of interest issues.

Fitzgibbons stated that ethically he had no doubt in his

mind that, when the defendant was questioned by

Judge Gagliardi on the conflict issue, the defendant

understood the conflict. R. Doc. 405, p. 7. Further,

Fitzgibbons testified that, when the defendant entered

his guilty plea, Fitzgibbons believed it was in the

defendant's best interest to do so. Fitzgibbons stated:

I was comfortable that [the defendant]

wanted to [enter the plea] that day. I

never would have stood before a Federal

Judge and said the things I said if I felt

somebody had coerced [the defendant] or

forced [the defendant] to do it. I would

not do it. I wouldn't have signed my

name to the plea agreement.

R. Doc. 405, pp. 42-43. Fitzgibbons further testified,

I felt as a lawyer that the [conflict] issue

had been presented to the client in a fair

way; that the ups and downs, the pros

and cons were all laid out for the client;

the risks, the strategic decisions, all of

this, this was aired thoroughly. And

when it came time for the plea, that the

decision that [the defendant] made was a

decision he felt comfortable with.

OE ay 5 SR We eT EN eS > bk OE I IAL RG BORE PGE ey Ue CPS x OS Pe

Si ON Bee ODT Pen HOTEL Lal GERACE EO GENO Re Me LE Eat CP aD eg Hie tt aS fe

C-32

R. Doc. 405, p. 44.‘

After the defendant entered his guilty plea, he

informed his lawyers, including Fitzgibbons, on several

occasions that he wanted to withdraw his plea.

However, Fitzgibbons believed that the defendant was

just in an internal turmoil and was going back and

forth as to what he wanted to do. R. Doc. 405, p. 12.

Fitzgibbons testified that the discussions never reached

the point where the defendant instructed his lawyers

unequivocally that he wanted to withdraw his plea. R.

Doc. 405, p. 13. Fitzgibbons stated "if he gave me an

instruction to withdraw the plea, of course I would

have filed something, or had the Washington lawyers

file something." Jd.

The defendant's sentencing date was continued

on two occasions. On February 16, 1996, the date of

the defendant's sentencing, Fitzgibbons moved for a

third continuance. At a side bar conference,

Fitzgibbons explained to the court that the defendant

needed more time to cooperate with the government

and to comply with the terms of the plea agreement.

Further, Fitzgibbons expressed that the defendant was

placed in an untenable situation before he pled guilty

*. To the extent Fitzgibbons's testimony may be

~ contradicted by the testimony of other witnesses, the

Court accepts Fitzgibbons's version of the events as

gE OER NP ET ES Ae Ant a I ah = ee he PP

C-33

because of the accusations against his attorneys.

However, Fitzgibbons told the Court that when the

defendant pled guilty the defendant's attorneys:

Felt under the circumstances there was

a good chance [the defendant] was going

to cooperate, and the money would come

in. I think we are close from talking to

everybody in this thing except for

Southern Florida right now, I haven't

dealt with them, but I think we're close

on getting the money. My guy wants it

to happen, otherwise you are going to

have to sentence him to 30 years to life

and he's done.

R. Doc. S-44, p. 11.

The Court denied the continuance and

proceeded with the sentencing. The Court asked the

defendant if he had discussed the presentence report

with his lawyer. The defendant stated that he had not.

Fitzgibbons stated that he had discussed the

presentence report with the defendant about six

months before the sentencing and asked for a moment

to confer with his client. After conferring with the

defendant, Fitzgibbons moved to withdraw the

defendant's guilty plea. The Court denied the motion

to withdraw. R. Doc. 342, pp. 2-7. The defendant did

not appeal the Court's denial of his motion to

C-34

withdraw. At the evidentiary hearing, Fitzgibbons

testified that he did not believe, based on his

professional experience, that an appeal of the motion to

withdraw would succeed because Fitzgibbons did not

feel the Court had abused its discretion in denying the

motion. R. Doc. 405, p. 47.

II. CONFLICT OF INTEREST

A. Rules of Law

The Sixth Amendment to the United States

Constitution guarantees criminal defendants the right

to effective assistance of counsel. The right to

assistance of counsel includes the right to conflict free

representation. A counsel's duty of loyalty to his

client includes "a duty to avoid conflicts of interest,”

which the Supreme Court considers "perhaps the most

basic of counsel's duties." Strickland v. Washington,

466 U.S. 668, 690, 692, 80 L. Ed. 2d 674, 104 S. Ct.

2052 (1984). The right to conflict free counsel applies

to plea proceedings as well as trials. Hill v. Lockhart,

474 US. 52, 57, 88 L. Ed. 2d 203, 106 S. Cr. 366 (1985).

1. Conflict of interest standard

"To establish a violation of the Sixth

Amendment, a defendant who raised no objection at

trial must demonstrate that an actual conflict of

interest adversely affected his lawyer's performance.”

C-35

Cuyler v. Sullivan, 446 U.S. 335, 348, 64 L. Ed. 2d 333,

100 S. Ct. 1708 (1980). When the defendant shows that

an actual conflict adversely affected his counsel's

performance, prejudice is presumed and the defendant

is entitled to relief. Holloway v. Arkansas, 435 U.S.

475, 490, 55 L. Ed. 2d 426, 98 S. Cr. 1173 (1978).

In cases like the one now before the Court,

where the alleged conflict of interest involves the

attorney's self-interest, an actual conflict exists when:

1) the attorney has engaged or has been accused

of engaging "in wrongful conduct related to the charge

for which the defendant is on trial." United States v.

Fulton, 5 F.3d 605, 610 (2d Cir. 1993). The Fulton

court held that when this happens

It creates one of two actual conflicts. First, if

the allegations are true . . . the attorney may feel that a

spirited defense could uncover convincing evidence of

the attorney's guilt or provoke the government into

action against the attorney. Moreover, the attorney is

not in a position to give unbiased advice to the client as

to such matters as to whether or not to testify or to

plead guilty and cooperate since such testimony or

cooperation from the defendant may unearth evidence

against the attorney . . - Second, even if the attorney is

demonstrably innocent and the government’ $ witness's

allegations are plainly false, the defense is impaired

because vital cross-examination becomes unavailable to

C-36

the defendant.

Id. (citations omitted); or

2) "a lawyer's own personal interest would be

compromised by pursuing a particular defense theory."

Freund v. Butterworth, 165 F.3d 839, 886 (11th Cir.

1999) (Tjoflat, J., dissenting), citing United States v.

McLain, 823 F.2d 1457, 1463-64 (11th Cir. 1987).

A defendant who demonstrates the existence of

an actual conflict must then show that the conflict had

an adverse effect on the defendant's counsel's

representation. Pursuant to Freund v. Butterworth, to

prove adverse effect a defendant must satisfy three

elements:

First, he must point to "some plausible

alternative defense strategy or tactic [that] might have

been pursued." United States v. Fahey, 769 F.2d 829,

836 (1st Cir. 1985); see also, Porter [v. Wainwright, 805

F.2d 930, 939-40 (11th Cir. 1986), cert. denied, 482 U.S.

918 (1987)]. Second, he must demonstrate that the

alternative strategy or tactic was reasonable under the

facts. Because prejudice is presumed, see, Strickland,

466 U.S. at 692, 104 S. Ct. 2052, the petitioner "need

not show that the defense would necessarily have been

successful if [the alternative strategy or tactic] had been

used," rather he only need prove that the alternative

“possessed sufficient substance to be a viable

C-37

alternative." Fahey, 769 F.2d at 836. Finally, he must

show some link between the actual conflict and the

decision to forgo the alternative strategy of defense. In

other words, “he must establish that the alternative

defense was inherently in conflict with or not

undertaken due to the attorney's other loyalties or

interests." Freund v. Butterworth, 165 F.3d at 860. The

Freund Court underlined that "prejudice is presumed

only if the defendant demonstrates that ...'an actual

conflict of interest adversely affected his lawyer

performance." /d. The Court finds that the Freund

test applies to the defendant's claim.

2. Waiver

A criminal defendant can waive his right to

conflict free counsel. United States v. Garcia, 517 F.2d

272 (5th Cir. 1975). Before allowing a defendant to

relinquish his right to conflict free representation

certain procedures must be followed:

The district court should address

each defendant personally and

forthrightly advise him of the potential

dangers of representation by counsel

with a conflict of interest. The defendant

must be at liberty to question the district

court as to the nature and consequences

of his legal representation. Most

importantly the court should seek to

- C-38

elicit a narrative response from each

defendant that he has been advised of his

right to effective representation, that he

understands the details of his attorney's

possible conflict of interest and the

potential perils of such a conflict, that he

has discussed the matter with his

attorney or if he wishes with outside

counsel, and that he voluntarily waives

the Sixth Amendment protections. It is

of course, vital that the waiver be

established by "clear, unequivocal, and

unambiguous language."

Id. at 278 (citations omitted).

The government argues that the defendant

waived his right to conflict free counsel during the plea

colloquy before Judge Gagliardi. The government's

allegations are not supported by the record. The

colloquy between Judge Gagliardi and the defendant

failed to establish by “clear, unequivocal, and

unambiguous language" the nature and consequences of

the defendant's waiver. Even though the Court has no

doubt that the defendant understood the nature and

consequences of the waiver, the Court reached that

conclusion after hearing the testimony at the

evidentiary hearing, not from the face of the colloquy.

Further, the record shows that the defendant was never

informed of his right to an independent counsel.

C-39

Whether or not the defendant would have acceded to

that representation is irrelevant. The Court finds that

the defendant's waiver colloquy did not satisfy the

Garcia requirements and therefore did not constitute a

valid waiver. Accordingly, the Court will address the

merits of the defendant's claim.

B. Merits

The defendant's main contention is that the

government's conditioning of Sharp's disqualification

on whether or not the defendant pled guilty created a

conflict of interest. The Court disagrees. The conflict

of interest was not created by the government's

conditioning Sharp's disqualification on whether or

not the defendant pled guilty. The conflict of interest

was created by Baxter's allegations of Sharp's unethical

and criminal activity. The government's conditioning

the disqualification on the guilty plea did not make the

conflict any less or any more real.

The defendant contends that by the defendant

pleading guilty, Sharp and his firm avoided the

publication at trial of Baxter's allegations of improper

conduct against Sharp. If, on the other hand, the

defendant had proceeded to trial, Baxter would have

testified that Sharp and his good friend Hibey

concocted a story that Baxter was supposed to tell to

the Drug Enforcement Administration negating the

defendant's involvement in the marijuana importation.

C-40

Sharp's interest did not change by the government's

conditioning the disqualification on the plea.

However, the defendant has clearly established the

existence of an actual conflict of interest based on

Baxter's allegations. Baxter, a government witness,

alleged that Sharp was involved in criminal conduct

related to the crimes charged against the defendant in

the indictment.

Pursuant to Fulton, if the allegations of the

attorney's criminal acts are proved to be true, the

defendant need not show that the conflict adversely

affected the lawyer's performance. If the allegations

are false, the defendant has the burden of proving an

adverse effect. Fulton, 5 F.3d at 611. Because the

Court accepts Sharp's uncontroverted testimony that

Baxter's allegations were false, the defendant must

show that the conflict had an adverse effect on Sharp's

representation of the defendant. The defendant has

failed to meet this burden.

As stated above, to prove adverse effect the

defendant had to show: 1) a plausible alternative

defense strategy that could have been pursued, 2) that

the alternative strategy was reasonable under the

circumstances, and 3) that the alternative strategy was

inherently in conflict with or was not undertaken

because of Sharp's other loyalties or interests. Freund,

165 F.3d at 860.

C-41

The record shows that proceeding to trial was a

plausible and reasonable alternative to pleading guilty.

However, the record does not support a finding that

the defendant's proceeding to trial was inherently in

conflict with, or was not undertaken due to, Sharp's

loyalties or interests.

Proceeding to trial was not clearly in conflict

with Sharp's interests. Sharp testified that part of him

wanted to go to trial and clear the record with regard

to the allegations. If the defendant had gone to trial,

Sharp would have been able to take the stand and

contradict Baxter's allegations against him.

The defendant's lawyers, especially Sharp,

agonized in deciding whether to go to trial or to enter

a guilty plea. Four important factors made Sharp

decide to advise the defendant to plead guilty. First, by

pleading guilty, the defendant would avoid the

possibility of Getchman testifying against him.

Second, Sharp could continue representing the

defendant because he would not be compelled to testify

at trial or cross-examine Baxter. Third, a guilty plea

would also avoid the possibility of Sharp testifying

against his own client. If Sharp testified, there was a

strong possibility that he would have to testify as to

the contents of his first conversation with Baxter,

which implicated the defendant in the marijuana _

importation. Fourth, Sharp believed that the

defendant could cooperate with the government and

\

C-42

earn a reduced sentence based on substantial assistance.

Sharp testified that although he was concerned

about the repercussions of Baxter's testimony on his

career and reputation as a lawyer, he always placed the

defendant's interests before his own. Further,

Fitzgibbons's testimony supports Sharp's decision to

advise the defendant to plead guilty. Fitzgibbons stated

that at the time the defendant entered his guilty plea he

believed it was in the defendant's best interest.

The defendant argues that pleading guilty was

not a reasonable alternative to going to trial because

the defendant was obligated under the plea agreement

to forfeit $ 4 million dollars to the government.

Nonetheless, Sharp testified that he believed the

defendant and his brother Bucky Pegg could raise the

money. The defendant did not present any evidence

that would show that Sharp's belief was unreasonable.

Accordingly, the Court finds that Sharp's

representation of the defendant was not adversely

affected by Baxter's allegations. Therefore, the

defendant is not entitled to relief on his claim of

ineffective assistance of counsel.

C-43

Ill. WITHDRAWAL OF GUILTY PLEA

A. Rules cf Law

Pursuant to Rule 32(e), Fed. R. Crim. P., a

defendant may withdraw his guilty plea before

sentencing if the defendant shows there is a "just and

fair reason" for the withdrawal. A defendant does not

have an absolute right to withdraw his guilty plea prior

to sentencing. United States v. McCarty, 99 F.3d 383,

385 (11th Cir. 1996). In determining if the defendant

has met his burden the court must consider whether:

"(1) close assistance of counsel was available; (2) the

plea was knowing and voluntary; (3) judicial resources

would be conserved; and (4) the government would be

prejudiced if the defendant were allowed to withdraw

his plea." United States v. Buckles, 843 F.2d 469, 472

(11th Cir. 1988), cert. denied, 490 U.S. 1099, 104 L. Ed.

2d 1005, 109 S. Cr. 2450 (1989).

B. Merits

The government correctly asserts that the Court

need not address the merits of the defendant's plea

withdrawal claim because the claim is procedurally

barred. "Generally speaking, 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" Mills v. United States,

36 F.3d 1052, 1055 (11th Cir. 1994), cert. denied, 514

C-44

US. 1112, 115 S. Ct. 1966, 131 L. Ed. 2d 856 (1995); see

also Cross v. United States, 893 F.2d 1287, 1289 (11th

Cir.), cert. denied, 498 U.S. 849, 112 L. Ed. 2d 105, 111

S. Ct. 138 (1990) ("in a section 2255 federal habeas

motion, a movant may not raise claims that were not

presented on direct appeal unless he can show cause

excusing his failure to raise the issues previously and

actual prejudice resulting from the errors."); Greene v.

United States, 880 F.2d 1299, 1305 (11th Cir. 1989), cert.

denied, 494 U.S. 1018, 108 L. Ed. 2d 498, 110 S. Ct.

1322 (1990) ("in general, a defendant must assert an

available challenge to a sentence on direct appeal or be

barred from raising the challenge in a section 2255

proceeding."). "When a defendant fails to pursue an

available claim on direct appeal, it will not be

considered in a motion for § 2255 relief unless he can

establish cause for the default and actual prejudice

resulting from the alleged error." Mills, 36 F.3d at

1055; see also Greene, 880 F.2d at 1305 ("[a] defendant

can avoid this procedural bar only by showing both

cause for the failure to raise the claim on direct appeal

and actual prejudice arising from that failure.").

Alternatively, under the fundamental miscarriage of

justice exception, when a constitutional violation has

probably resulted in the conviction of one who is

actually innocent, a federal habeas court may grant

relief in the absence of a showing of cause for the

procedural default. Mills, 36 F.3d at 1055.

C-45

- The defendant has failed to demonstrate cause or

prejudice with regard to his failure to raise on direct

appeal his claim that the Court abused its discretion in

denying his motion to withdraw his guilty plea.

Likewise, the defendant has not shown the

applicability of the fundamental miscarriage of justice

exception. The Court has reviewed the entire record

and concludes that the defendant is unable to satisfy

either of the exceptions to the procedural default bar;

therefore, the defendant's failure to raise these claims

on direct appeal constitutes a waiver and bars him from

raising this claim now.

IV. BUCKY PEGG'S PLEA AGREEMENT

Although not relevant to the Court's ruling in

this case, the Court notes its outrage with the events

leading to Bucky Pegg's plea agreement with the

Middle District of Georgia. After the defendant

entered his guilty plea on November 29, 1994, the

defendant made efforts to satisfy his forfeiture

obligation under the plea agreement. To make the $ 4

million forfeiture payment, the defendant had to

arrange for money to be transferred into the United

States from abroad. Because the defendant was

incarcerated, he asked his brother, Bucky Pegg, to

accomplish the transfer. At this juncture, Bucky Pegg's

attorney, Jerome Froelich became involved. Froelich

demanded complete immunity for Bucky Pegg for any

criminal liability that could arise from the transfer of

C-46

the funds. R. Doc. 363, p. 9, & R. .+* . 398, p. 10.

After asking the United States Attorney's Office for

the Middle District of Florida for an immunity

agreement without success, Froelich directed his efforts

to trying to obtain a global agreement which included

several districts. In his efforts to negotiate a global

agreement, Froelich contacted the United States Justice

Department. The Justice Department then would

communicate with the different districts involved and

try to put the multi-district agreement together. R.

Doc. 398, p. 12.

On February 1, 1996, after months of

negotiations, the U.S. Attorney's Office for the Middle

District of Florida, through a letter signed by Collazo,

agreed to participate in a multi-district immunity

agreement granting Bucky Pegg the immunity he

requested. The multi-district agreement included the

Middle District of Florida, the Northern District of

Georgia, and the Middle District of Georgia. R. Doc.

363, Exhibit E.

On February 7, 1996, Collazo sent a letter to

Froelich informing him that the Middle District of

Florida could no longer participate in the multi-district

immunity agreement. R. Doc. 363, Exhibit F. The

reason the Middle District of Florida withdrew its

participation in the immunity agreement was that the

Southern District of Florida informed them that Bucky

Pegg was the subject of an investigation and that the

C-47

immunity agreement could prevent the Southern

District of Florida from investigating and prosecuting

Bucky Pegg. R. Doc. 398, pp. 167-8.

Because of Bucky Pegg's failed efforts to reach

an immunity agreement involving the Middle District

of Florida, Bucky Pegg directed his attention to the

Middle District of Georgia, where he ultimately

entered into a plea agreement on June 30, 1997.

Pursuant to the plea agreement, Bucky Pegg received

blanket immunity in exchange for the forfeiture of

approximately $ 47 million in cash and $ 5 million in

properties. R. Doc. 398, pp. 9-25.

Bob Sharp, the Deputy Chief of the Asset

Forfeiture and Money Laundering Section of the

Criminal Division, Department of Justice, testified that

the Acting United States Attorney in the Middle

District of Georgia ignored the directions of the

Department of Justice. R. Doc. 405, p. 239. Mary Lee

Warren, a Deputy Assistant United States Attorney,

instructed the Middle District of Georgia not to go

forward with the immunity agreement without her

approval or the approval of someone else in the

Department of Justice. The Middle District of Georgia

blatantly ignored Warren's directives and entered into

the plea agreement with Bucky Pegg. R. Doc. 405, p.

240. The Middle District of Georgia's actions, for all

practical purposes, resulted in Bucky Pegg being

permitted to buy his way out of imprisonment and sell

C-48

out his brother in the process.

— The Justice Department determined that it could

not set aside the plea agreement. Accordingly, the

funds of Bucky Pegg's forfeiture will go into the

Treasury Department's Asset Forfeiture Fund. Even

though there is nothing this Court can do to reverse

the outrageous and improper events that took place in

the Middle District of Georgia, the Court wants to

voice its repulsion over the Bucky Pegg plea agreement.

For the foregoing reasons, the defendant's

motion to vacate, set aside or correct his sentence

(Doc.348) is DENIED. The Clerk is instructed to

close the civil file.

DONE AND ORDERED in Tampa, Florida,

on April 28th, 1999.

Elizabeth A. Kovachevich

UNITED STATES DISTRICT JUDGE