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Persuad v. United States

United States District Court, M.D. Florida, Tampa Division

April 6, 2017

YUGOOL PERSUAD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 8:13-cr-434-T-30TBM

          ORDER

          JAMES S. MOODY. JR. UNITED STATES DISTRICT JUDGE.

         THIS CAUSE comes before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. section 2255 (CV Doc. 1) and the Government's Response CV (Doc. 11). Having reviewed the Motion, Response, record in the underlying case, and the relevant law, the Court concludes the Motion should be denied.

         BACKGROUND

         In August 2013, a United States Coast Guard law enforcement team (“USCG”) observed a Jamaican fishing vessel, named “Miss Tiffany, ” in the waters north of Venezuela. The USCG saw the Miss Tiffany crew, of which Petitioner was the captain, jettisoning bales of marijuana. The USCG recovered the bales of marijuana, and seized Petitioner and a co-defendant, both of whom were from Guyana.

         In September 2013, Petitioner was charged with conspiracy to possess with intent to distribute 1, 000 kilograms or more of a mixture or substance containing a detectable amount of marijuana while on board a vessel subject to the jurisdiction of the United States of America (Count I), and aiding and abetting in the possession with intent to distribute 1, 000 kilograms or more of a mixture or substance containing a detectable amount of marijuana while on board a vessel subject to the jurisdiction of the United States of America. (CR Doc. 1). Petitioner pleaded not guilty to the charges.

         Counsel Stephen Baer represented Petitioner throughout his proceedings. Counsel filed several motions challenging the Government's jurisdiction to prosecute Petitioner and other evidence in motions in limine. (CR. Docs. 144 and 150). After the Court ruled on those motions, Petitioner told Counsel that he wanted to change his plea. Magistrate Judge Anthony Porcelli held a change of plea hearing. (CR. Doc. 142). That hearing is critical to Petitioner's claims in this Motion.

         During the change of plea hearing, Petitioner said he no longer wanted Mr. Baer to serve as his counsel. He told the Court he was unhappy Mr. Baer had not challenged the Court's jurisdiction. The Court explained that is exactly what Mr. Baer had done. (CR Doc. 142, pp. 12-13). Petitioner then said Mr. Baer told him he had to admit he knew about the marijuana. The Court gave Mr. Baer an opportunity to respond, and he explained that he was not telling his client to falsely admit knowledge; instead, Mr. Baer explained he was telling Petitioner that the Court was going to allow clear evidence that Petitioner knew about the bales, and that the jury would likely find that he knew about the bales. (CR Doc. 142, pp. 13-17). After explaining this to Petitioner, the Court said:

Mr. Baer is not telling you you have to plea. He will gladly represent you at trial and is prepared to go forward to the trial if that's what you want. But Mr. Baer would not be doing his job if he didn't give you an opinion about the facts of the case. In fact, I would fully expect that you would later complain that if you learned that Mr. Baer believed, based upon the facts, that the government could succeed and he never told you, I would expect that you would complain about that. You want your lawyer to tell you candidly their assessment and evaluation of the case and that is all he's given you, is his assessment of the facts. That doesn't mean that's how it's going to play out, that's his opinion based upon his experience and based upon his review of the facts of the case.

(CR Doc. 142, pp. 16-17). After that, Petitioner decided to have Mr. Baer represent him.

         After further discussion with the Court and Counsel at the hearing, Petitioner decided he wanted to plead guilty. (CR Doc. 142, pp. 21-22). The Government was then brought in and provided the factual basis for its case, including that Petitioner knew about the 1, 212 kilograms of marijuana aboard the Miss Tiffany. (CR Doc. 142, pp. 24-27). When given a chance to speak, Mr. Baer explained his issue with the Government's factual basis of the weight of the marijuana bales, arguing:

That [1, 212 kilogram weight of the marijuana bales] actually is inclusive of the packaging. And so while there were bales, then the marijuana is also double wrapped, and so I don't know that it actually is 1, 212 kilograms. When you take off that double wrapping off of each of the bales, it may be significantly less.

(CR. Doc. 142, p. 27). The Government argued it would prove the weight was 1, 000 kilograms or more.

         The Court then began questioning Petitioner about the factual basis and asked whether he knew there was marijuana aboard the Miss Tiffany. Petitioner responded no. The Court then refused to accept Petitioner's guilty plea based on Petitioner's denial of the Government's factual basis. (CR Doc. 142, pp. 28-29).

         Because the Court would not accept the guilty plea, the case proceeded to trial. Counsel argued extensively at trial that the Government had not proved the weight of the marijuana beyond a reasonable doubt. Counsel's planned strategy was to argue the weight was below 1, 000 kilograms-a weight for which Petitioner had not been charged-based on the assumption that a jury finding that the bales weighed less than 1, 000 kilograms would result in a not guilty verdict. But once the Court ruled during trial that the jury could find Petitioner guilty of a lesser crime if it found the ...


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