United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 19, 2002 Decided May 7, 2002
No. 01-3088
United States of America,
Appellee
v.
Troy Mitchell Todd, Jr.,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 82cr00339-01)
Beverly G. Dyer, Assistant Federal Public Defender, ar-
gued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender.
Lisa H. Schertler, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, Elizabeth H.
Danello, and Daniel J. Bernstein, Assistant U.S. Attorneys.
Before: Sentelle, Henderson and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: Twenty years ago, a federal grand
jury in the District of Columbia indicted appellant Troy
Mitchell Todd for various drug offenses. Extradited from
Australia after fleeing the country, Todd pleaded guilty to one
count of drug trafficking conspiracy and one count of posses-
sion with intent to distribute cocaine. The district court
imposed two concurrent five- to fifteen-year sentences, fol-
lowed by a three-year term of "special parole" (the pre-
Sentencing Guidelines term for "supervised release") on the
possession-with-intent-to-distribute count, and concurrent
fines of $1000 and $5000. Todd did not appeal. Years later,
following his release from prison, Todd had another run-in
with the law, this time in Florida, where he again pleaded
guilty to federal drug offenses. Due to the District of
Columbia conviction, his Florida sentence was doubled.
Proceeding pro se in the district court here, Todd then filed
a section 2255 motion to vacate the District of Columbia
conviction and sentence. See 28 U.S.C. s 2255 (setting forth
procedures for collateral attack on federal criminal convic-
tion). Among other things, he claimed his trial counsel failed
to advise him of his right to appeal. With the Government's
consent, the district court held the section 2255 motion in
abeyance. Then, finding that Todd's lawyer had in fact failed
to advise him of his right to appeal, the district court resen-
tenced Todd so that he could file a timely appeal. See Fed. R.
App. P. 4(b) (requiring criminal defendant to file a notice of
appeal within 10 days of judgment). We vacated the new
sentence and remanded for reconsideration in light of Roe v.
Flores-Ortega, 528 U.S. 470 (2000), which held that defense
counsel's failure to file an appeal is not per se ineffective
assistance but instead must be analyzed under the two-prong
test of Strickland v. Washington, 466 U.S. 668 (1984). See
Flores-Ortega, 528 U.S. at 478. Applying Strickland, the
district court found defense counsel ineffective, again resen-
tencing Todd. This appeal followed.
Echoing the claims in his still-pending section 2255 motion,
Todd seeks vacatur of his plea due to: (1) errors by the
district court in conducting the plea colloquy, see Fed. R.
Crim. P. 11, and at his original sentencing; (2) Government
coercion of his plea; (3) ineffective assistance of trial counsel;
and (4) the court reporter's failure to prepare a transcript of
the plea hearing or file her original notes with the court, in
violation of the Court Reporter Act, 28 U.S.C. s 753(b), and
Federal Rule of Criminal Procedure 11(g). Making matters
worse as to this last claim, the court reporter is now de-
ceased, and the plea agreement, though docketed, is missing
from the record. The Government's files, which presumably
once contained a copy, have been destroyed. (The Govern-
ment represents, and Todd does not dispute, that the Govern-
ment followed its standard records retention policy.)
In the interim between Todd's first and second resentenc-
ing, and acting pursuant to order of this court, the district
court--presided over by the judge who conducted the plea--
attempted to reconstruct the plea hearing record. See Fed.
R. App. P. 10(c) (providing for a statement of the evidence
when a transcript of the proceedings is unavailable). In an
affidavit submitted to the district court, Todd recalled that "at
no time did the subject of Special Parole come up," nor was
he "advised by the court ... of the essential elements of the
second of the two counts [i.e., possession with intent to
distribute]." He could not, however, "say with certainty
anything else concerning the particulars of the plea-hearing."
The district judge's notes of the plea proceeding list the
counts to which Todd pleaded--"pleas to counts 1 + 3 ....
2 - 15 year offenses plus $25K fines or both." The judge also
had a copy of a ten-page plea colloquy "script" he has
followed since before Todd's plea. Neither the prosecutor
nor defense counsel could remember the details of anything
said at the plea hearing. In the end, the district court found
reconstruction of the hearing record "impossible." Order of
the United States District Court for the District of Columbia
(Dec. 9, 1999) (No. 82-339-01).
On appeal, Todd and the Government agree that some
claims can be resolved on the existing appellate record, but
that other claims require further factual development. The
parties do not entirely agree, however, on which claims fall
into which category, or on the method by which additional
factual development should occur. If we do not vacate the
plea, Todd urges us to remand the record in this case (i.e., his
appeal) to the district court for evidentiary proceedings. The
Government prefers that we hold the appeal in abeyance and
direct that Todd's section 2255 motion go forward, although in
the alternative it concedes that remand would be appropriate.
We agree with the parties that many of Todd's claims rely
at least in part on facts neither fully litigated nor part of the
appellate record. For example, Todd alleges the Government
coerced his plea by threatening: (1) to bring charges against
his father and brother, see Brady v. United States, 397 U.S.
742, 750 (1970) (obtaining "a plea by actual or threatened
physical harm or by mental coercion overbearing the will of
the defendant" violates due process); United States v. Pol-
lard, 959 F.2d 1011, 1020-21 (D.C. Cir. 1992) (setting out the
test for determining whether " 'a prosecutor's offer during
plea bargaining of adverse or lenient treatment for some
person other than the accused' " constitutes coercion (quoting
Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8 (1978))); and
(2) to indict him, in violation of the "doctrine of specialty," for
visa and income tax fraud even though he was not extradited
to face such charges, see United States v. Sensi, 879 F.2d 888,
895 (D.C. Cir. 1989) (explaining that the "doctrine of special-
ty" bars prosecution of a defendant for crimes other than
those for which he was extradited). The former allegations
depend on affidavits Todd's father, mother, and brother sub-
mitted in the section 2255 proceeding. Although Todd's
allegations regarding threatened visa and tax fraud charges
find support in the existing record--the Government repre-
sented in pre-trial pleadings that it had investigated such
charges and presented them to the grand jury, Todd's plea
offer proposes that he not be prosecuted for such matters,
and the presentence report indicates the Government ulti-
mately promised not to do so--the Government has had no
opportunity to submit evidence responding to these charges.
Todd's ineffective assistance claim likewise depends on
facts missing from the record. Defense counsel had a conflict
of interest, he alleges, because the lawyer also represented
Todd's father and brother and, seeking to protect them from
indictment advised him to plead guilty. Todd also claims to
have received deficient advice regarding sentencing, available
legal and factual defenses, and the alleged threats against
him and his family. Resolution of Todd's ineffectiveness
challenge requires answers--found nowhere in the current
record--to such questions as: Did defense counsel in fact
represent conflicting interests? Was counsel's advice influ-
enced by any such conflict or otherwise defective? Did
deficient legal advice affect Todd's decision to plead guilty?
See Cuyler v. Sullivan, 446 U.S. 335, 350 (1980) (holding that
a defendant must show his counsel "actively represented
conflicting interests" and that the "conflict ... adversely
affected his lawyer's performance" to prevail on a conflict-
based ineffective assistance claim); Hill v. Lockhart, 474 U.S.
52, 58-59 (1985) (holding that, in order to prevail on an
ineffective assistance claim, a defendant who pleads guilty
must show a reasonable probability he "would have insisted
on going to trial").
Not only does the record suffer from these and other gaps,
but Todd's various claims overlap in quite significant ways.
Consider the transcript claim, which Todd contends warrants
vacatur on the existing record. The Government points out
that this claim overlaps with Todd's claims of district court
error, ineffective assistance of counsel, and prosecutorial
abuse. Why? Because in determining whether failure to
transcribe a proceeding warrants relief, we consider "the
likelihood that reversible error occurred" during the unre-
corded proceeding, and in considering that likelihood we
factor in (but do not require per se) "the defendant's ability to
allege specific prejudice arising out of an event in the missing
portions" of the transcript. United States v. Johnson, 231
F.3d 43, 49-50 (D.C. Cir. 2000) (internal quotation marks and
citation omitted). For example, any additional evidence of
coercion that Todd produces could strengthen his claim that
the district court failed in its Rule 11(d) duty to ensure the
plea was voluntary, which could in turn support his claim of
"specific prejudice" in connection with the missing transcript.
Evidence of coercion would likewise relate to his ineffective
assistance claim.
Given these and other major gaps in the record, as well as
the extent to which Todd's claims overlap, we think it unwise
to resolve any claims at this stage of the proceedings. In-
stead, we will direct the parties (as both have suggested with
respect to certain claims) to develop the record further in the
district court. The only question, then, is whether this record
development should occur in the section 2255 proceeding (as
the Government recommends) or on remand (as Todd prefers,
and the Government finds acceptable). Although challenges
that depend on facts not part of the record are normally
addressed through section 2255 proceedings, we think the
circumstances of this case justify remand to the district court.
For one thing, where, as here, an ineffective assistance claim
cannot be resolved on the current record, this circuit re-
mands. United States v. Geraldo, 271 F.3d 1112, 1116 (D.C.
Cir. 2001) ("[R]ather than requiring the defendant to raise
[an ineffective assistance of counsel] claim collaterally, we
remand to the district court for an evidentiary hearing ....
[unless] the trial record conclusively shows that the defendant
is entitled to no relief ... [or] the trial record conclusively
shows the contrary.") Moreover, by developing the record
for Todd's ineffective assistance of counsel claim, the parties
will also be supplementing the evidence for his other claims,
given the extent to which they overlap with his ineffective
assistance claim. For example, the contention that defense
counsel sought, at Todd's expense, to protect Todd's father
and brother and that counsel failed to advise him appropriate-
ly regarding the Government's alleged threats to him and his
family, depends on Todd's ability to show that the Govern-
ment actually made such threats.
We realize, of course, that remanding will permit Todd to
litigate certain claims on direct appeal he would ordinarily
pursue in his collateral attack. Unusual cases, however, call
for unusual remedies. In addition to the large, critical gap in
the record and the significant overlap among Todd's claims,
he is to blame neither for the lack of a transcript nor for
failing to appeal twenty years ago--circumstances that make
resolution of his case so difficult.
We also recognize that we are leaving certain legal ques-
tions raised by the Government unresolved: whether the
Supreme Court's recent decision in United States v. Vonn,
which held that plain error review applies to Rule 11 claims,
122 S.Ct. 1043, 1046 (2002), applies to such claims for a plea
without a record, or to the "likelihood of reversible error"
factor for a transcript claim; whether Todd lacks standing to
bring a claim based on alleged threats to prosecute him for
visa and tax fraud; and whether Todd's sentencing challenges
are moot because he has completed his imprisonment and
special parole terms. Depending on how Todd's appeal is
ultimately resolved, these issues may become moot.
The record is remanded to the district court for further
proceedings consistent with this opinion.
So ordered.