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UNITED STATES v. BARBER

November 9, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
AVERY BARBER, Defendant.



The opinion of the court was delivered by: LECHNER

LECHNER, District Judge

 Currently before the court is the motion of Avery Barber ("Barber") for a new trial on the ground that he was denied his Sixth Amendment right to the effective assistance of counsel. *fn1" For the reasons that follow, the motion for a new trial is denied.

 Facts

 On 20 July 1990, Barber was indicted for conspiring to distribute heroin in violation of 21 U.S.C. § 846. Indictment, dated 20 July 1990 (the "Indictment"); United States v. Barber, Crim. No. 90-316 at 2 (D.N.J., filed 16 October 1990) (the "Suppression Opinion"). According to the Indictment, the conspiracy existed between 1 October 1989 and 27 June 1990. Indictment, P 1.

 After a three day trial, Barber was convicted and sentenced to one hundred sixty-five months imprisonment to be followed by five years of supervised release. Transcript of Proceedings, dated 11 October 1990 (the "Trial Tr."), at 328; Transcript of Sentencing Proceedings, dated 8 January 1991 (the "Sentencing Tr."), at 13-14; Judgment, filed 8 January 1991 (the "Judgment"). Barber appealed and the Third Circuit affirmed his conviction in all respects (the "Appeal"). United States v. Barber, Crim. No. 91-5040 (3d Cir., filed 17 June 1991) (the "Appellate Decision"). Barber then filed a petition for a Writ of Certiorari to the United States Supreme Court, which petition was denied. Barber Aff., P 8.

 A. Pre-Trial Representation

 On 8 August 1990, Steven D. Altman, Esq. ("Altman") filed a Notice of Appearance in this court on behalf of Barber. Docket Sheet, Crim. No. 90-316, certified on 24 March 1991, at 2 (the "Docket Sheet"). On 20 August 1990, Altman notified the court that he had not been retained to represent Barber and that he had "forward[ed] all the documents provided to [him] to the attorney of [Barber]'s choice, Burt Pugach, Esq, [("Pugach")] of Forest Hills, New York." Letter from Altman, dated 20 August 1990.

 Although Barber asserts Pugach made an appearance in this court on behalf of Barber, Barber Aff., P 3, the record is devoid of any such appearance. *fn2" See Docket Sheet. No appearance by Pugach is recorded in any of the pretrial or trial minutes or transcripts of proceedings, nor does Pugach's name appear on any of the written submissions in the case. Pugach, in fact, was not a lawyer. Barber Aff, P 9; Schutzman Aff., PP 2-3. Pugach was a paralegal hired by Schutzman on a freelance basis. Schutzman Aff., PP 2-3; New Trial Hrg. Tr. at 61. As indicated below, it was Schutzman who represented Barber throughout this matter. *fn3" Schutzman Aff, PP 2-9; Dougherty Aff., PP 3-8. Schutzman has confirmed that Pugach never appeared in court on behalf of Barber. *fn4" New Trial Hrg. Tr. at 66.

 Barber's girlfriend, Mia Crockett ("Crockett") testified at the New Trial Hearing that, in August 1990, she hired Pugach to represent Barber. *fn5" Id. at 9. According to Crockett, Pugach told her he was an attorney, he had been practicing law "for quite awhile" and he specialized in criminal cases. *fn6" Id. at 9-10. Crockett also testified she paid a retainer fee totalling thirteen thousand dollars directly to Pugach, in the form of two cashier's checks payable to Pugach. *fn7" Id. at 10-12.

 Barber and Crockett have further contended that, prior to trial, the only discussions they had concerning Barber's case were with Pugach. New Trial Hrg. Tr. at 12-13, 15, 25; Barber Aff., P 4. Barber has also contended his discussions with Pugach occurred entirely by telephone. *fn8" Barber Aff., P 4; New Trial Hrg. Tr. at 24. According to Barber and Crockett, they and Barber's family believed Pugach to be a licensed attorney and they believed they had hired Pugach to represent Barber. Barber Aff., P 2; New Trial Hrg. Tr. at 13, 23. Barber has asserted Pugach actually told him over the telephone that Pugach was an attorney and would represent him. Barber Aff., P 3.

 Barber has contended that, in his discussions with Pugach, Pugach never brought up the possibility of entering a guilty plea and repeatedly assured Barber that he would be acquitted at trial. Id., P 4. Barber has asserted he informed Pugach he wanted two persons to be called as witnesses on his behalf -- Michael Barber, his brother, and Warren Gore ("Gore"), his co-conspirator -- and Pugach assured Barber the witnesses would be interviewed and would be available at trial. Id.

 Regarding Schutzman, Barber stated:

 Schutzman never visited me once in jail before trial. He did appear in court with me before trial, but always, I thought as a substitute for Pugach. I did not know until the trial began that Schutzman and not Pugach would represent me at the trial. . . . I never had a single discussion with Schutzman about my case. I never discussed with him the possibility of resolving my case with a disposition. *fn9"

 Id., PP 5-6; see also New Trial Hrg. Tr. at 25, 29-31. Barber and Crockett have both contended they were told by Pugach that Pugach and not Schutzman would represent Barber on appeal, and that Pugach did all the work on appeal. *fn10" Barber Aff., P 7; New Trial Hrg. Tr. at 14, 31.

 Schutzman's version of the facts is significantly different. According to Schutzman, he was hired by Barber's family to represent Barber. Schutzman Aff., P 2. Schutzman stated that Crockett encountered difficulty contacting him and that she was told she could reach him through Pugach. Id.; New Trial Hrg. Tr. at 60. It was for this reason that Pugach was contacted in the first place. Schutzman Aff., P 2; New Trial Hrg. Tr. at 60.

 Schutzman has further asserted he met with Crockett for the first time in Pugach's office. *fn11" Schutzman Aff., P 3. Crockett confirmed this meeting. New Trial Hrg. Tr. at 16. During this meeting, Schutzman informed Crockett that Pugach was a paralegal "who would write the motions and other written work, while [Schutzman] was the attorney who would represent Barber in court and at trial." *fn12" Schutzman Aff., P 2; New Trial Hrg. Tr. at 63, 98. Crockett was given Pugach's business card, indicating Pugach was a self-employed paralegal, to be used in the event Schutzman could not be reached directly. *fn13" Schutzman Aff., P 2; see also New Trial Hrg. Tr. at 99 & Ex. G1. Crockett was also given Schutzman's card, indicating that Schutzman was a licensed attorney. New Trial Hrg. Tr. at 64, 99.

 According to Schutzman, Schutzman was paid a retainer by Crockett at that time. Schutzman Aff., P 2. Schutzman also testified at the Hearing for a New Trial that he paid Pugach. New Trial Hrg. Tr. at 75-76. Regarding the cashier's checks made payable by Crockett to Pugach, Schutzman testified:

 Id. at 76; see also id. at 87-88.

 From this point on, much of Schutzman's account is confirmed by the record in this case. Schutzman stated he first met Barber on the occasion of Barber's arraignment *fn14" (the "Arraignment"). *fn15" Schutzman Aff., 52; New Trial Hrg. Tr. at 64. The Arraignment occurred on 8 August 1990; a plea of "not guilty" was entered by Barber. Schutzman Aff., P 2; Minutes of Proceedings, dated 8 August 1990, filed 8 August 1990 (the "Arraignment Min."); Docket Sheet at 2. On this occasion, Schutzman stated he discussed the case with Barber in Barber's holding cell in the United States courthouse in Newark, New Jersey. *fn16" Schutzman Aff., P 2; New Trial Hrg. Tr. at 65. According to Schutzman, he and Barber discussed the possibility of Barber making bail, as well as the fact that Schutzman would be filing motions on Barber's behalf. New Trial Hrg. Tr. at 65. Barber has conceded he and Schutzman discussed Barber's bail situation. Id. at 33-34.

 On 13 August 1990, Schutzman appeared on behalf of Barber at the Bail Hearing held before Magistrate Judge G. Donald Haneke ("Magistrate Judge Haneke"). Minutes of Proceedings, dated 13 August 1990, filed 16 August 1990 (the "Bail Hrg.. Min."); Docket Sheet at 2. Barber was ordered detained without bail pending trial. Bail Hrg. Min.; Docket Sheet at 2. On the same day, Schutzman served detailed discovery requests and a bill of particulars on the Government. Opp. Brief, Ex. C.

 On 31 August 1990, Schutzman filed a motion on behalf of Barber (the "Suppression Motion"), and a fourteen page affirmation signed under penalty of perjury by Schutzman. Docket Sheet at 2; Affirmation of Robert Schutzman, filed 31 August 1992 (the "Schutzman Affirm."); Suppression Opinion at 1 n.1. The Suppression Motion sought: (1) a full evidentiary hearing to suppress evidence against Barber obtained from a wiretap of his conversations and any out-of-court identifications of Barber and (2) discovery of photographs used in connection with Barber's identification. Schutzman Affirm.; Suppression Opinion at 1 n.1.

 On 14 September 1990, Schutzman appeared in court on behalf of Barber at a status conference (the "Status Conference") to discuss the Suppression Motion. Transcript of Proceedings, dated 14 September 1990, at 1 (the "Status Conf. Tr."). During the Status Conference, Schutzman consistently argued for a trial date later than 1 October 1990, for the reason that a later date would be in the best interest of Barber. Id. at 5-6, 8-11. Specifically, Schutzman argued a later date would enable Schutzman to fully discuss a plea offer by the Government with Barber and his family. Id. at 5-6, 8-9, 11. For instance, Schutzman stated:

 As we get more and more discovery and I'm in a better position to determine the probability of winning or losing at trial, I can then discuss it more with [Barber] and his family and then if the decision may be made that it might be in his interest to try to plea bargain with the Government.

 Id. at 5-6.

 It appears that, at this time, no plea offer had yet been made. Id. at 6-9. Schutzman, therefore, requested a plea offer be made, stating "that's something I would be using in trying to determine the probability of the trial and what would be in [Barber's] best interest. . . . its hard to discuss with [Barber] what he should do [without a plea offer]." Id. at 10-11. Schutzman also stated: "I did discuss [with Barber] the possibility [of a plea bargain, because I told him that if the wiretap is held in, then he has to strongly consider the possibility of a plea." Id. at 11.

 On 24 September 1990, Schutzman again met with Barber. Schutzman Aff., P 5. According to Schutzman, he advised Barber that, although Schutzman was withdrawing the portions of the Suppression Motion relating to pre-arrest identification, he would still argue for the suppression of the wiretaps. Id. Schutzman gave Barber copies of the motion papers during this meeting. Id.; New Trial Hrg. Tr. at 67.

 Later on Monday, 24 September 1990, Schutzman appeared in court at a combined hearing on the Suppression Motion and status conference (the "Suppression Hearing"). *fn17" Transcript of Proceedings, dated 24 September 1990, at 2 (the "Suppression Hrg Tr."). The Suppression Motion was denied. Id. at 2-7; Suppression Opinion at 1-17. Schutzman again requested a trial date later than 1 October 1990. Suppression Hrg. Tr. at 7. When Schutzman was asked why a later date was necessary, the following exchange occurred:

 MR. SCHUTZMAN: Number One, now that the Court has denied the Suppression Motion[], I would like to speak to [Barber] about that, because there [sic] it had changed.

 At first when I had done the motion and gave it to [Barber], I believe the Assistant U.S. Attorney heard the same thing, that [Barber] was complaining he would win the motion. Of course, there was nothing to discuss with him at that time.

 Now that he has lost the motion, based on your Honor's ruling, it does change the facts. At this time, of course, I would discuss with the Assistant U.S. Attorney what he can do to help [Barber] if he should want to cooperate, and if our discussions, after I go visit him and his family fall apart, I believe the Assistant would need some time to get the case together.

 THE COURT: I'm still inclined to try this next Monday [1 October 1990].

 MS. PERCELL: *fn18" Your Honor, it seems to me that -- I discussed this with Mr. Schutzman after our last appearance and he told me the same thing he's saying today. He said he couldn't talk to [Barber] about a plea because [Barber] wished he was going to win the motions. I heard the same thing coming out of the prison, he was sure he was going to get off.

 We're really only starting to discuss a plea, but in order to do that, we need a proffer session and that will take a few days to set up. Its going to take a few days for [Schutzman] to discuss it with [Barber] and family, who is not located here.

 . . .

 THE COURT: . . . We're going to trial Monday.

 MR. SCHUTZMAN: . . . [A] two week adjournment, which is short and I feel would give me enough time to discuss everything with [Barber], to further discuss it with [Barber's] family and Government and try to work things out, which would be in the best interest of everybody. We could save everybody's time and energy and if not, at least I would know I made the best effort for [Barber]. I don't believe I can do a proper job for [Barber] in such a short time.

 . . .

 THE COURT: . . . I'm inclined to move the trial on Monday.

 MR. SCHUTZMAN: Again, I just ask the court to reconsider only for the reason that I honestly I can't do what's best for my client in so short a time because everybody is in different states. It's not like I can even get everybody together in a day or two.

 THE COURT: As far as a plea is concerned, you can speak with his family via telephone, but --

 MR. SCHUTZMAN: Your Honor, I've found through experience with [Barber and his family], you really don't get anywhere on the phone with these people. You have to sit down with them, you have to go over the reasoning.

 . . .

 THE COURT: You keep saying try to do the right thing.

 MR. SCHUTZMAN: Let me explain. To do what's best for my client may not always be to go to trial. However, sometimes to explain it to a client is not as easy as it may seem where you and I will see something very clearly. They do not. Granted, the Courts don't sit for their benefit.

 THE COURT: We do, on the contrary. He's indicted. He has a right to go to trial. That's why I'm ...


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