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WDNY — Ineffective Assistance: United States of America v. Marks

U.S. District Court, WDNY

Ineffective Assistance

Plea Offer — Defendant’s Likely Acceptance

United States of America v. Marks
Judge Larimer

Background: After a jury trial, the defendant was sentenced to a term of 40 years imprisonment, which was the minimum sentence permitted. He was convicted on a number of drug trafficking and possession charges. Prior to sentencing the defendant filed a pro se motion that was styled as a habeas corpus petition. In that motion he alleged that his counsel was ineffective by failing to advise him of a 20-year plea offer. The Second Circuit, characterizing the motion as a Rule 33 motion for a new trial, directed the District Court to conduct a hearing on whether the defendant had been advised of the plea.

Ruling: The District Court denied the motion.  The court found that the offer had been made, but such an offer was an onerous one. Specifically, the 20-year offer prohibited the defendant to seek a reduction from the court. The court found that the defense counsel’s lack of recollection was due to the unacceptable nature of the offer. More importantly, however, the court found that the defendant would not have accepted such an offer because the communications between the defendant and his counsel revolved around the defendant’s desire for a much lower sentence.

Jillian S. Harrington, Thomas P. Theophilos, Donald M. Thompson, Joseph S. Damelio and Scott M. Green for the defendant; Robert Marangola, Everardo A. Rodriguez and John E. Kelly Jr. of the U.S. Attorney’s Office for the people

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