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Kovacs v. United States

United States District Court, E.D. California

March 27, 2017

ANDRE KOVACS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF ERROR CORAM NOBIS

          WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE

         Before the court is Andre Kovacs' Petition for Writ of Error Coram Nobis Pursuant to 28 U.S.C. § 1651 filed October 20, 2016 (Docket No. 345), as well as the United States' Motion to Dismiss or Deny Petition for Writ of Error Coram Nobis filed February 27, 2017 (Docket No. 355). In the petition, Kovacs moves to vacate his conviction for unlawful use of a communication facility to facilitate a methamphetamine distribution conspiracy under 21 U.S.C. § 843(b). The court held a hearing on the motion on March 27, 2017.

         I. Factual and Procedural History

         In 2010, Kovacs was charged in a multiple-defendant indictment with conspiracy to distribute and possess with intent to distribute at least 50 grams of methamphetamine under 21 U.S.C. §§ 846 and 841(a)(1) (the “methamphetamine conspiracy count”) and three counts of the unlawful use of a communication facility to facilitate a methamphetamine distribution conspiracy under 21 U.S.C. § 843(b) (the “phone counts”). (Docket No. 1.) Kovacs and the government eventually reached a plea agreement under which the government agreed to dismiss the methamphetamine conspiracy count and two of the phone counts (Counts 1, 16, and 18) and recommend a sentence on the low end of the applicable Sentencing Guidelines range, while Kovacs agreed to plead guilty to one phone count (Count 19). (Docket No. 194.) The plea agreement also contained an appellate waiver under which he gave up the right to appeal or collaterally attack his conviction or sentence. (Docket No. 194 at 6-7.)[1]

         Pursuant to the plea agreement, Kovacs pled guilty to one phone count at his change of plea hearing on July 2, 2012. During the hearing, Kovacs explained that he had issues with PTSD, drug and alcohol abuse, and depression in the past but medication was effectively treating these issues. His counsel also agreed that Kovacs was in full possession of his faculties and was capable of proceeding. Kovacs represented that he understood the plea agreement and that he was entering into the plea agreement voluntarily, and he acknowledged that he was giving up his right to appeal or collaterally attack his conviction and sentence. (Change of Plea Hr'g Tr. at 3-10 (Docket No. 339).)

         The court then asked whether Kovacs understood what the government would have to show should the case proceed to trial, specifically that the government would have to prove 1) Kovacs used a telephone in furtherance of a conspiracy to distribute or to possess with intent to distribute at least 50 grams of methamphetamine, 2) he knew of the conspiracy, and 3) he intentionally used the telephone to further the objects of that conspiracy. As the basis for this charge, the government explained that law enforcement had intercepted a call between Kovacs and a co-defendant, Amador Rosales, regarding a drug debt Kovacs owed Rosales for methamphetamine. (Change of Plea Hr'g Tr. at 11-13.)

         The court then noted that for a phone call to be “in furtherance” of a drug conspiracy, it needed to involve more than simply the transaction between Rosales and Kovacs. In response, the government stated that Kovacs knew that Rosales was a seller of methamphetamine to multiple buyers and “that's how Mr. Kovacs is part of this conspiracy by buying the methamphetamine from Mr. Rosales, furthering the drug trafficking business that Mr. Rosales had.” In response, Kovacs explained that “I just would add that I'm just a drug addict, and I bought from a drug dealer.” (Change of Plea Hr'g Tr. 13-14.)

         In response to questioning by the court, Kovacs agreed that he knew Rosales had customers and was part of a group of people selling drugs. After some discussion regarding Kovacs' drug debt, the court noted its concern whether the government would have enough evidence to show that the phone call was actually pursuant to the methamphetamine conspiracy count. In response, the government explained that Kovacs knew that Rosales was selling methamphetamine “to other sub distributors of [Rosales'] drug trafficking organization” and that he knew “other parties in [Rosales'] drug trafficking organization” who were part of the methamphetamine conspiracy. Kovacs agreed that he knew other members of the conspiracy and knew that Rosales was selling large amounts of methamphetamine. Notwithstanding the concerns expressed by the court, Kovacs proceeded to plead guilty to Count 19 of the Indictment. (Change of Plea Hr'g Tr. 15-18.)

         At Kovacs' sentencing four months later, the court once again expressed its concerns with Kovacs' guilty plea, noting that 1) it had never seen a case where the defendant who bought drugs for personal use was convicted of possession with intent to distribute, or conspiracy to sell or possess with intent to distribute; and 2) based on the evidence presented to the court, Kovacs could not have been convicted of such a crime, and thus this case differed from normal “phone count” cases. The court then noted that the parties had agreed that Kovacs was guilty of the charged phone count based on the theory that when a buyer engages in a phone conversation with the seller for the purpose of buying drugs, he thereby facilitates the seller's crime of selling or possession with the intent to sell drugs, and based on the parties' agreement on this theory, the court had accepted it. (Sentencing Tr. 12-15 (Docket No. 307).) However, given that this case fell “outside the heartland” of normal phone count cases, as well as the need for treatment for PTSD and other issues, the court sentenced Kovacs to time served and 12 months of supervised release, rather than the 41-month sentence recommended by the government. (Sentencing Tr. 13-24.) Kovacs was then ordered released the same day. (Docket No. 222.)

         Almost four years later, Kovacs filed his petition for writ of error coram nobis, arguing that his conviction should be vacated because his admitted conduct was not a violation of 21 U.S.C. § 843(b).

         II. Legal Standard

         A writ of error coram nobis is a “highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable.” United States v. Chan, 792 F.3d 1151, 1153 (9th Cir. 2015) (citations omitted). To warrant coram nobis relief, a petitioner must establish that: “(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of a fundamental character.” Id. (citation omitted). “Because these requirements are conjunctive, failure to meet any one of them is fatal.” Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002) (citation omitted).

         III. Discussion

         Here, Kovacs has not shown that his conviction resulted in a fundamental error. Nor has he provided valid reasons for ...


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