Gist v. United States

ROBERT GIST, Movant, v. UNITED STATES OF AMERICA, Respondent.

Nos. 1:19-cv-5095-GHW, 1:16-cr-656-6-GHW

United States District Court, S.D. New York

August 24, 2021

MEMORANDUM OPINION & ORDER

GREGORY H. WOODS UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

In 2018, Robert Gist signed a plea agreement with the United States and accepted responsibility for two federal crimes conspiracy to distribute and possess with the intent to distribute marijuana in violation of 21 U.S.C. § 846 and use of physical force against a witness, in violation of 18 U.S.C. §§ 1512(a)(2), 1512(j), and 2. This Court sentenced Mr. Gist to 77 months of imprisonment-a sentence at the bottom of the guidelines sentencing range agreed upon by Mr. Gist.

Mr. Gist has moved to vacate his conviction and sentence, claiming that his counsel provided him with ineffective assistance in violation of the Sixth Amendment, and that Mr. Gist did not enter his plea agreement knowingly and voluntarily. Mr. Gist also argues that the Government violated its discovery obligations under Brady v. Maryland by failing to produce certain pieces of evidence that were in the possession of the Bureau of Prisons before Mr. Gist entered his plea. The Court has reviewed the parties' submissions and heard testimony during an evidentiary hearing held on December 8, 2020. Because the Court finds that Mr. Gist did not ask Mr. Goldsmith to file a notice of appeal in his case, and that, under the circumstances, Mr. Goldsmith was not obligated to consult with him about filing an appeal, and for the other reasons that follow, Mr. Gist's petition to vacate his conviction and sentence is denied.

II. FINDINGS OF FACT

On September 29, 2016, Mr. Gist and 21 others were indicted and charged with conspiring to distribute, and possessing with the intent to distribute, marijuana, oxycodone in the form of Percocet tablets, and mixtures of substances containing crack, heroin, and cocaine. Dkt. No. 1.^[1]Mr. Gist was arrested on October 12, 2016. See Dkt. No. 694 at 2. On February 4, 2017, while in custody in the Metropolitan Correctional Center in Manhattan, Mr. Gist and his brother and co-defendant, Paul Gist, attacked another inmate. On January 17, 2018, the Government filed a superseding indictment, charging that the Gist brothers had attacked the victim because they believed he was a cooperating witness. Dkt. No. 438. The superseding indictment charged Mr. Gist with three additional crimes: possessing a firearm in furtherance of narcotics trafficking, using physical force to tamper with a witness, and knowingly causing bodily injury to retaliate against a witness. Id.

A. Prior Counsel and Plea Offers

Mr. Gist first appeared before the Court on October 12, 2016. At that time, Mr. Gist was represented by Ezra Spilke, an attorney appointed to represent Mr. Gist under the Criminal Justice Act (the “CJA”). Dkt. Nos. 68-69, 71; December 8, 2020 Evidentiary Hearing Transcript (“Evidentiary Hearing Tr.”) at 35:15-17. Mr. Gist was not satisfied with Mr. Spilke's representation, and on June 2, 2017, he requested that new CJA counsel be appointed. Dkt. No. 184; Evidentiary Hearing Tr. 35:18-20.

The Court appointed Kelly Currie and Glen McGorty of Crowell & Moring, LLP (“C&M”) as Mr. Gist's replacement counsel. Government Exhibit (“GX”) 8 ¶ 1. Ms. Currie and Mr. McGorty represented Mr. Gist from June 9, 2017 through January 30, 2018, and during that time, met with him approximately nine times for several hours each. Id. During the course of C&M's representation, Mr. Gist received two plea offers from the Government. Id. ¶ 2. The first plea offer, dated April 12, 2017, was originally transmitted to Mr. Spilke and was later presented to C&M. Id. ¶ 3. The April 12, 2017 plea offer required Mr. Gist to plead guilty to a charge of conspiracy to distribute cocaine base in violation of 21 U.S.C. § 841(b)(1)(C), with enhancements for possession of a dangerous weapon, the use of violence, and obstruction of justice. Id. The advisory sentencing guidelines range for that plea offer was 262-327 months' imprisonment, with no mandatory minimum term of imprisonment. Id. The April 12, 2017 offer contained an appeal waiver provision, which provided that Mr. Gist could not appeal if the Court imposed a sentence within or below the applicable sentencing guidelines range. Id. C&M reviewed that plea offer with Mr. Gist, including the appeal waiver, and he rejected the offer. Id.

The Government offered Mr. Gist another plea deal on September 1, 2017. Id. ¶ 4. That offer required Mr. Gist to plead guilty to the charge of conspiracy to distribute marijuana in violation of 21 U.S.C. § 841(b)(1)(D), and gun possession in furtherance of that narcotics conspiracy in violation of 18 U.S.C. § 924(c). Id. The advisory sentencing guidelines range for that deal was 120 months of imprisonment, with a mandatory minimum term of 60 months of imprisonment. Id. It too contained an appeal waiver with the same terms as the prior offer. Id. Mr. Gist also rejected that plea offer.

C&M advised Mr. Gist against going to trial, based on, among other things, the potential sentence that he faced of up to 30 years, the lack of defenses to the narcotics conspiracy charge, and the difficulty of overcoming the anticipated evidence to show that he did not possess a gun, or aid and abet others who did, with respect to the 924(c) firearms charge. Id. ¶ 7. C&M advised Mr. Gist to plead guilty rather than proceed to trial and that only the judge could determine his sentence. Id. ¶¶ 8-9.

On or about September 27, 2017, following his rejection of the Government's offers, Mr. Gist told C&M that he was willing to accept an agreement that contained a gun enhancement on a narcotics conspiracy count. Id. ¶ 6. Mr. Gist testified that he did not accept the earlier deals because he did not approve of the charges and the associated guidelines ranges contained in the agreements. Evidentiary Hearing Tr. 20:6-8. Mr. Gist also testified that he had sought new counsel because he had argued with his prior attorneys about the best strategy for his case, and that they advised him that his “best bet [was] to take a plea agreement instead of going to trial[, ]” which he felt indicated that they would not “put their all into fighting” at the trial. Evidentiary Hearing Tr. 18:19-19:5; 36:20-24.

Mr. Gist asked for the Court to appoint alternative counsel for him. The Court held a hearing to discuss Mr. Gist's request on January 25, 2018. See Change of Counsel Transcript, Dkt. No. 445 (“Change of Counsel Tr.”). After an extensive colloquy by the Court, Mr. Gist's counsel explained that they had a break down in their ability to communicate with their client. See, e.g., Change of Counsel Tr. at 15:6-12 (“we feel that we're at an impasse in our ability to communicate with our client . . . .”). The Court advised Mr. Gist of the impact of changing his counsel at that point in the case-his second change of counsel-and, in particular, highlighted the impact on his new counsel's ability to prepare for the upcoming trial.^[2] The Court also provided Mr. Gist the opportunity to confer with the Criminal Justice Act (“CJA”) attorney on duty that day about his desire to change counsel before acting on the request. Notwithstanding the imminence of trial, Mr. Gist asked that the Court appoint new counsel for him. Change of Counsel Tr. at 24:9-21. At Mr. Gist's request, the Court did so.

B. Mr. Goldsmith is Appointed

On January 30, 2018, Aaron Goldsmith, the attorney who is the subject of Mr. Gist's ineffective assistance of counsel claims, replaced Ms. Currie and Mr. McGorty. See Dkt. No. 445. Mr. Goldsmith has practiced criminal defense litigation for nearly 18 years, represented hundreds of criminal defendants, and done about 22 criminal trials. Evidentiary Hearing Tr. at 55:23-56:7 (“For the last-really almost the entirety of my practice, I have done criminal defense litigation. I also did some commercial litigation. But at least, at any given time, at least half of my cases or more are criminal defense, both in state and federal courts.”), 56:23-25, 57:1-3. Mr. Goldsmith was a member of the CJA panel from 2013 to 2019, a position he held at the time he was appointed to represent Mr. Gist. Id. at 56:8-22.

Mr. Gist's trial was scheduled to begin on March 5, 2018, which gave Mr. Goldsmith roughly a month to prepare for trial after his appointment. Evidentiary Hearing Tr. 57:18-21. After his appointment, Mr. Goldsmith communicated with C&M about the case by both phone and email. Id. 57:22-58:15. Mr. Goldsmith testified that through those conversations, he learned the attorney-client relationship between Mr. Gist and C&M had broken down because of C&M's inability to secure Mr. Gist a plea deal “within the parameters that he wanted.” Id. C&M also provided Mr. Goldsmith with “a digest or memorandum” that described C&M's prior meetings with Mr. Gist in synopsis form, in addition to C&M's entire case file. Id.; see also GX-2J. Mr. Goldsmith testified that he also spoke with the Assistant United States Attorneys assigned to Mr. Gist's case as part of his trial preparation. Evidentiary Hearing Tr. at 59: 9-11. During the course of Mr. Goldsmith's discussions with C&M and the government's attorneys, he learned that prior plea offers had exceeded ten years, and, as such, were not of interest to Mr. Gist. Evidentiary Hearing Tr. 59:12-21.

Mr Goldsmith met with Mr. Gist twice before he obtained the final plea offer from the Government. Id. at 65:3-9. During the December 8, 2020 evidentiary hearing, the Court heard testimony from both Mr. Gist and Mr. Goldsmith regarding the content of those meetings. The first meeting took place on January 31, 2018. Id. at 60:3-16. Mr. Gist insists that he did not discuss...