Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 1 of 29

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1 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 1 of 29 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK *************************************************** UNITED STATES OF AMERICA, vs. 08-CR-519 MESHIHA BOATWRIGHT, Defendant. *************************************************** Transcript of a Plea held on February 13, 2009, before the HONORABLE DAVID N. HURD, at the United States Federal Courthouse, 10 Broad Street, Utica, New York, before Nancy L. Freddoso, Registered Professional Reporter and Notary Public in and for the State of New York. A P P E A R A N C E S Government: UNITED STATES ATTORNEY'S OFFICE 445 BROADWAY, ROOM 218 ALBANY, NEW YORK BY: ROBERT SHARPE, AUSA Defendant: FEDERAL PUBLIC DEFENDER'S OFFICE 4 CLINTON SQUARE SYRACUSE, NEW YORK BY: JAMES F. GREENWALD, AFPD NANCY L. FREDDOSO, R.P.R. Official United States Court Reporter 10 Broad Street, Room 316 Utica, New York (315)

2 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 2 of COURT CLERK: United States of America 3 versus Meshiha Boatwright, criminal number 2008-CR Counselors, your appearance for the record, 5 please. 6 MR. SHARPE: Robert Sharpe on behalf of the 7 United States government standing in for AUSA 8 Ransom Reynolds this afternoon. Good afternoon, 9 Judge Hurd. 10 THE COURT: Good afternoon. 11 MR. GREENWALD: Good afternoon, Your Honor. 12 James Greenwald on behalf of Meshiha Boatwright who is 13 seated. 14 THE COURT: I understand the defendant is 15 prepared to plead guilty to Count 1 of the Indictment 16 charging him with possession with intent to distribute more 17 than five grams of crack cocaine in violation of U.S.C. 841(a)(1). 19 Is that correct, Mr. Greenwald? 20 MR. GREENWALD: Yes, sir, that is my 21 understanding. 22 THE COURT: Mr. Boatwright, stand up. I now 23 inform you that you can continue with your plea of not 24 guilty, and you would have each of the follow rights: 25 The right to a speedy and public trial by an 26 impartial jury of twelve people. You would be presumed

3 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 3 of innocent at that trial, and the burden would be upon the 3 government to establish your guilt beyond a reasonable 4 doubt to the satisfaction of all twelve jurors. 5 At such a trial, you would have the 6 assistance of Mr. Greenwald, and you would have the right 7 to see each witness against you and to have him 8 cross-examine them. 9 At such a trial, you would have a right to 10 testify in your own behalf or you could remain silent. And 11 if you did remain silent, it could not be used against you 12 in any way. 13 At such a trial, you would also have the 14 right to call witnesses and present documentary evidence to 15 offer in your defense. 16 If you plead guilty today, you are going to 17 give up those rights. There won't be a trial, but I will 18 still have the same power to sentence you as if you had 19 been found guilty under Count 1 of the Indictment regarding 20 the intent to distribute more than five grams of crack 21 cocaine. 22 Is it your desire to give up those rights 23 and proceed with the guilty plea? 24 THE DEFENDANT: Yes, sir. 25 THE COURT: Do you understand that if you 26 plead guilty, you will be found guilty without any kind of

4 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 4 of a trial? Do you understand? 3 THE DEFENDANT: Yes, sir. 4 THE COURT: Do you understand that the crime 5 to which you are proposing to plead guilty is a serious 6 crime, it is a federal felony? Do you understand that? 7 THE DEFENDANT: Yes, sir. 8 THE COURT: Do you also understand that if 9 you plead guilty, in addition to being found guilty of a 10 federal felony, you may also be deprived of some valuable 11 civil rights. 12 THE DEFENDANT: Yes, sir. 13 THE COURT: Let me just tell you briefly 14 what is going to happen here. If you do plead guilty, you 15 are going to be placed under oath by the Clerk, and you 16 will promise to tell the truth. And I will ask you a 17 series of questions so that I can be satisfied that you are 18 pleading guilty freely and voluntarily; whether any 19 promises have been made to you other than those contained 20 in the plea agreement; whether anybody used any threats or 21 made any force against you to get you to plead guilty; 22 whether you are under the influence of any alcohol, 23 narcotics, drugs, pills or medicine which would in any way 24 impair your ability to understand these proceedings and the 25 consequences of pleading guilty to these charges. 26 And finally, Mr. Boatwright, you are going

5 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 5 of to have to tell me what you did that makes you guilty of 3 this crime. You will be under oath. You must tell the 4 truth. If you don't, you could be in further trouble if 5 the government brings charges against you for perjury or 6 making a false statement. 7 Also by pleading guilty, you must answer 8 each of my questions. You can't take the Fifth Amendment. 9 I expect you have fully discussed your case with 10 Mr. Greenwald; that you have been advised of the charges 11 against you, your rights, the basis of your plea, the 12 consequences of pleading guilty, and any possible defense 13 you may have. 14 Mr. Boatwright, you should not plead guilty 15 unless you are guilty. Do you understand that? 16 THE DEFENDANT: Yes, sir. 17 THE COURT: Do you still want to plead 18 guilty? 19 THE DEFENDANT: Yes, sir. 20 THE COURT: Do you have any reservations? 21 If you have any reservations, now is the time to say so. 22 THE DEFENDANT: No. 23 THE COURT: All right. Mr. Minor, take his 24 plea and then place him under oath. 25 COURT CLERK: Mr. Boatwright, do you waive 26 the reading of Count 1 of this Indictment, sir?

6 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 6 of MR. GREENWALD: Yes, we will waive that. 3 COURT CLERK: How do you plead to Count 1 of 4 this Indictment, guilty or not guilty? 5 THE DEFENDANT: Guilty. 6 7 MESHIHA BOATWRIGHT, being first duly sworn, was 8 examined and testified as follows under oath: 9 THE COURT: Speak up. Do you understand 10 what it means to tell the truth? 11 THE DEFENDANT: Yes, sir. 12 THE COURT: To be honest? 13 THE DEFENDANT: Yes, sir. 14 THE COURT: State your full name. 15 THE DEFENDANT: Meshiha Kim Boatwright. 16 THE COURT: How old are you? 17 THE DEFENDANT: Twenty-seven. 18 THE COURT: How far did you go in school? 19 THE DEFENDANT: I made it to eleventh and 20 got my GED. 21 THE COURT: How long have you been in 22 custody? When were you arrested? 23 THE DEFENDANT: Since September. 24 THE COURT: And where did you live at that 25 time? 26 THE DEFENDANT: 234 Kimber Ave.

7 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 7 of THE COURT: In what city? 3 THE DEFENDANT: Syracuse, New York. 4 THE COURT: With whom did you live? 5 THE DEFENDANT: My mom. 6 THE COURT: Are you married? 7 THE DEFENDANT: Yes. 8 THE COURT: And where does your wife live? 9 THE DEFENDANT: 623 Park Street. 10 THE COURT: Do you have any children? 11 THE DEFENDANT: Yes. 12 THE COURT: How many children. 13 THE DEFENDANT: Five. 14 THE COURT: Where do they live? 15 THE DEFENDANT: 623 Park Street. 16 THE COURT: With your wife? 17 THE DEFENDANT: Yes. 18 THE COURT: And were you employed at the 19 time you were arrested? 20 THE DEFENDANT: No, sir. 21 THE COURT: When is the last time you had a 22 legitimate job? 23 THE DEFENDANT: THE COURT: What were you doing at that 25 time? 26 THE DEFENDANT: I was working for Syracuse

8 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 8 of Newspapers. 3 THE COURT: Doing what? 4 THE DEFENDANT: Printing. 5 THE COURT: Before you were arrested, did 6 you use narcotics on occasion? 7 THE DEFENDANT: Yes, sir. 8 THE COURT: And did you use alcohol? 9 THE DEFENDANT: No, sir. 10 THE COURT: What kind of narcotics had you 11 used? 12 THE DEFENDANT: Marijuana. 13 THE COURT: Anything else? 14 THE DEFENDANT: No, sir. 15 THE COURT: You haven't taken any marijuana 16 or alcohol today, have you? 17 THE DEFENDANT: No, sir. 18 THE COURT: Have you taken any kind of 19 medicine, drugs, pills? 20 THE DEFENDANT: No. 21 THE COURT: Are you under the care of a 22 doctor for anything? 23 THE DEFENDANT: No. 24 THE COURT: Now, you are represented by 25 Attorney James Greenwald from the Public Defender's office? 26 THE DEFENDANT: Yes.

9 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 9 of THE COURT: He was appointed to represent 3 you, correct? 4 THE DEFENDANT: Yes. 5 THE COURT: Because you can't afford a 6 lawyer, right? 7 THE DEFENDANT: Nope. 8 THE COURT: Are you satisfied with him? 9 THE DEFENDANT: Yes. 10 THE COURT: Did he advise you of your 11 rights? 12 THE DEFENDANT: Yes. 13 THE COURT: And did you understand what I 14 told you a few moments ago about your rights to go to 15 trial? 16 THE DEFENDANT: Yes, sir. 17 THE COURT: And did he go over the 18 indictment with you, the charges? 19 THE DEFENDANT: Yes. 20 THE COURT: Did you read the indictment? 21 THE DEFENDANT: Yes, I got a copy of it. 22 THE COURT: Did he answer any questions you 23 may have had about the charges? 24 THE DEFENDANT: Yes. 25 THE COURT: And you understand exactly what 26 you have been charged with, possession with intent to

10 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 10 of distribute more than five grams of crack cocaine? Do you 3 understand? 4 THE DEFENDANT: Yes, sir. 5 THE COURT: Did you also enter into a plea 6 agreement with the United States government? 7 THE DEFENDANT: Yes. 8 THE COURT: And did you read that agreement? 9 THE DEFENDANT: Yes, I did. 10 THE COURT: And did you review it with 11 Mr. Greenwald? 12 THE DEFENDANT: Yes. 13 THE COURT: Did he answer any questions you 14 had about the plea agreement? 15 THE DEFENDANT: Yes. 16 THE COURT: Did you sign the agreement? 17 THE DEFENDANT: Yes, I did. 18 THE COURT: Did anyone force you or threaten 19 you to sign that agreement? 20 THE DEFENDANT: No. 21 THE COURT: Did you sign the plea agreement 22 of your own free will. 23 THE DEFENDANT: Yes. 24 THE COURT: Mr. Sharpe, summarize the 25 essential terms of the plea agreement. 26 MR. SHARPE: Judge, it is a nine-page plea

11 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 11 of agreement setting forth fourteen paragraphs. In regards to 3 its essential components, Paragraph 2 sets forth the 4 maximum potential statutory factors. 5 Paragraph 3 contains language indicating 6 that the ultimate sentence to be imposed is within the 7 discretion of the Court. 8 Paragraph 4 contains the elements of the 9 offense that the defendant is pleading guilty to. The 10 factual basis for the plea is set forth in Paragraph Jumping ahead to Paragraph 7, it sets forth the promises 12 and representations of the government in conjunction with 13 the plea. 14 Paragraph 8 contains the stipulations agreed 15 to between the parties. Paragraph 9 represents that any 16 guideline's estimate set forth today during the allocution 17 is merely an estimate. Paragraph 11 indicates that the 18 agreement between the parties is not binding upon the 19 Court. 20 And Paragraph 12 sets forth a waiver of 21 defendant's appeal rights, as well as there is language in 22 Paragraph 3 related to that, at a level of seventy-two 23 months. 24 THE COURT: Is that generally the terms of 25 the plea agreement? 26 MR. GREENWALD: Essentially that is, Your

12 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 12 of Honor. 3 THE COURT: Do you understand, 4 Mr. Boatwright, that the agreement is between you and the 5 United States government, that I am not a party to it. If 6 I reject the plea agreement completely, you will have an 7 opportunity to withdraw this plea of guilty. But if I just 8 don't go along with some of the recommendations in that 9 plea agreement, you won't be able to withdraw your plea of 10 guilty. Do you clearly understand that? 11 THE DEFENDANT: Yes. 12 THE COURT: Do you also understand that 13 under that plea agreement, you are giving up your right to 14 appeal or even collaterally attack your conviction and 15 sentence unless I sentence you to more than six years in 16 prison, seventy-two months? Do you understand? 17 THE DEFENDANT: Yes. 18 THE COURT: Do you have any other promises 19 that were made to you other than what is in that agreement? 20 MR. GREENWALD: If I may, Your Honor, yes, 21 there have been other assurances that I just want the Court 22 to be aware of. 23 I have had conversations with Mr. Reynolds 24 who is assigned to this case from the U.S. Attorney's 25 office. At the time Mr. Boatwright was arrested on the 26 warrant for this charge, an additional quantity of crack

13 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 13 of cocaine was found on his person. Mr. Reynolds has assured 3 me that the government will not be bringing charges against 4 Mr. Boatwright related to possession of that quantity. 5 He has also assured me that he has received 6 assurances from the Onondaga County District Attorney's 7 Office that the state authorities will not be prosecuting 8 Mr. Boatwright for possession of that additional quantity. 9 And that is in consideration for the fact that he is 10 pleading guilty to this indictment before the Court today. 11 MR. SHARPE: I have indicated to 12 Mr. Greenwald that I am not personally familiar with 13 anything beyond what is set forth in the plea agreement, 14 but Mr. Greenwald has placed forth those representations on 15 the record. 16 THE COURT: What remedy do you see, 17 Mr. Greenwald? I have the utmost confidence in 18 Mr. Reynolds not bringing the, but what about if the local 19 authorities in Syracuse decide to pursue this further? 20 They probably will not, but I just want to cover that 21 possible eventuality. 22 MR. GREENWALD: I understand that. I am 23 confident -- first of all, I am also confident that 24 Mr. Reynolds is a man of his word. I know that 25 Mr. Reynolds has informed me that he has conferred with 26 Christopher McNarsky (phonetically). Mr. McNarsky is an

14 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 14 of Assistant District Attorney. He is also cross-sworn as an 3 Assistant U.S. Attorney in the Syracuse office, and those 4 are assurances that Mr. Reynolds has obtained from him. 5 I believe I would have remedies in any state 6 court proceeding based upon what is happening here today, 7 and my spreading this on the record, and I am confident 8 that Mr. Reynolds would support me with that. 9 THE COURT: You may have some remedies in 10 state court proceedings, but I don't believe you have any 11 remedies here MR. GREENWALD: He is pleading guilty THE COURT: -- aside from an oral promise 14 twice removed, an oral promise by somebody from the 15 Onondaga County District Attorney's Office to Mr. Reynolds 16 to you. 17 MR. GREENWALD: No, I don't expect to have a 18 remedy in this court should there be a problem with the 19 state authority, but I do not anticipate any problems with 20 the state authorities. I think we are all on the same page 21 with this. 22 THE COURT: Mr. Boatwright, do you 23 understand this, and you have gone over this with 24 Mr. Greenwald with regards to any other charges that may be 25 made against you, and the assurance. Do you understand 26 that? You have talked with him about it?

15 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 15 of THE DEFENDANT: Yes. 3 THE COURT: And you are comfortable with 4 that? 5 THE DEFENDANT: Yes. 6 THE COURT: Did anybody threaten you or 7 force you to plead guilty today to this charge in this 8 federal court? 9 THE DEFENDANT: No. 10 THE COURT: Are you on probation or parole 11 from any other court? 12 THE DEFENDANT: No. 13 THE COURT: This charge arises from 14 something that you did in August of 2007? 15 THE DEFENDANT: Yes. 16 THE COURT: What did you do in August of that brings you before this Court now? 18 THE DEFENDANT: I walked into a courtyard 19 building which is on James Street in Syracuse with a friend 20 of mine, and I had some cocaine in my pocket. I had it in 21 between my buttocks, and the detectives that was in the 22 building, it was trespassing, they ran up on me, and the 23 guy strip searched me down and got the cocaine. 24 And it was state at first, and they offered 25 me a one-on-one, but on a technicality, illegal search and 26 seizure, I think the DA thought I was going to beat him, so

16 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 16 of he turned the federal on me. 3 THE COURT: This was crack cocaine that you 4 had? 5 THE DEFENDANT: Yes. 6 THE COURT: And you had more than five 7 grams? 8 THE DEFENDANT: Yes. 9 THE COURT: What was your intent in having 10 that plus five grams of crack on your person? 11 THE DEFENDANT: I was going to use it. 12 THE COURT: Were you going to sell it? 13 THE DEFENDANT: No, that wasn't my intent. 14 THE COURT: Your intent was to possess? 15 (Whereupon, an Attorney/Client discussion 16 was held off the record.) 17 THE DEFENDANT: I was only going to use it. 18 MR. GREENWALD: I am sorry, Your Honor. If 19 we could just take a moment. 20 THE COURT: You may. 21 (Whereupon, an Attorney/Client discussion 22 was held off the record.) 23 THE COURT: All right. This was a Syracuse 24 police officer that came up to you? 25 THE DEFENDANT: Yes, sir. 26 THE COURT: What did you tell him when he

17 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 17 of searched you? 3 THE DEFENDANT: I told him I didn't have 4 anything on me. He checked my pocket. In my left pocket, 5 I had some marijuana. In the right pocket, I had a little 6 bit of money, and he just continued to search me. It was 7 like a setup, I guess. I don't know. 8 THE COURT: And he found crack cocaine in 9 your buttocks? 10 THE DEFENDANT: Yes. 11 THE COURT: What did you say to him then? 12 THE DEFENDANT: It was on me. I just -- it 13 says right there that I told him that I was just trying to 14 make a little bit of money, but I didn't tell him that. I 15 just -- I just had him take me downtown to the Syracuse 16 Police Department. He told me if there was anybody I 17 wanted to rat on and all of that. 18 That's normal procedure that they do when 19 they catch somebody with crack, and I told him no, and they 20 sent me upstairs to go get booked. 21 Do I have to say everything that's in the 22 plea agreement because I kind of confused on that. You 23 said if I lie under oath MR. GREENWALD: Well, nobody wants you to 25 lie under oath. 26 THE COURT: No, no, you can't lie. I want

18 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 18 of you to tell the truth. That's why I am asking you. 3 You have been charged -- let me explain 4 here, Mr. Boatwright, you have been charged with possession 5 of more than five grams of crack cocaine with the intent to 6 distribute, and that means with the intent to either sell 7 or give it to some other individual or individuals. 8 I am asking you that the five grams of -- 9 plus five grams of crack cocaine that you had in your 10 possession on that date, did you, in fact, intend to sell 11 it or give it to other people. I don't want you to lie. I 12 just want you to tell me the truth because you are under 13 oath, and as I warned you before, if you lie, you could be 14 subject to further prosecution for other crimes. 15 THE DEFENDANT: Yes, I did. I intended to 16 give it to somebody, Your Honor. 17 THE COURT: Who did you intend to give it 18 to? 19 THE DEFENDANT: This guy named Angel. The 20 guy that was with me. 21 THE COURT: What was his name? 22 THE DEFENDANT: Angel. 23 THE COURT: And you were intending to go 24 give it to him? 25 THE DEFENDANT: Yes. 26 THE COURT: Were you going to charge him

19 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 19 of money for it? 3 THE DEFENDANT: No. We was going to use it 4 together. 5 THE COURT: And this was something that was 6 pre-planned? 7 THE DEFENDANT: Yes. 8 THE COURT: How long had you had the crack 9 in your possession before you got searched by the Syracuse 10 police officer. 11 THE DEFENDANT: About a half hour. 12 THE COURT: Mr. Sharpe, does the government 13 wish to add anything further as to what the evidence would 14 be in this case? 15 MR. SHARPE: We can. We would set forth the 16 factual basis for the plea. Obviously, the Court is aware 17 that the defendant has signed the plea agreement. It is 18 unclear as to whether or not the facts of his allocution is 19 sufficient for purposes of the plea today. 20 In regards to what the government would 21 prove if the matter went to trial, that on August 15th, 22 Syracuse Police Officer James Mills responded to Courtyard 23 Apartments on James Street to search the building for 24 trespassers, that as he began to walk through the building, 25 he observed the person who ultimately was Mr. Boatwright 26 engage in an attempted drug transaction with another

20 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 20 of individual at that time, what appeared to the officer to be 3 that. 4 Officer Mills then approached the defendant 5 and informed him that he was being arrested for 6 trespassing, and that he was going to be searched for 7 contraband. 8 At that point, the defendant stated that he 9 was just trying to make a little money and reached into his 10 underwear and handed over a plastic bag that contained 11 eleven grams of what was cocaine based as crack, and that 12 by signing the plea agreement, the defendant admits that he 13 possessed the crack cocaine with the attempt to distribute 14 it to others. 15 That is the nature of the proof that the 16 government would enter if this matter went to trial. 17 THE COURT: Mr. Boatwright, Mr. Sharpe just 18 read the paragraph in the plea agreement that you signed 19 which contains information. Is it true what he just read? 20 THE DEFENDANT: Yes, it is true. 21 THE COURT: That you were involved in a drug 22 transaction with another individual? 23 THE DEFENDANT: Yes. 24 THE COURT: And that you said to him you 25 were, quote, just trying to make a little money, end quote? 26 That's what it says in the plea agreement. I am just

21 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 21 of reading from it. 3 THE DEFENDANT: That's not what happened, 4 but yes. I don't have a choice, but -- once I signed it, I 5 don't have a choice, but to say -- I don't know. Yes, I 6 did it. 7 MR. GREENWALD: If the Court please, there 8 is some dispute as I am talking to Mr. Boatwright. He and 9 I talked. I don't think this is necessarily -- it 10 certainly is not an element to the offense, but 11 Mr. Boatwright does not recall saying, he was just trying 12 to make a little money. I think that's part of the holdup 13 here. 14 THE DEFENDANT: No, that's -- can I speak? 15 There is another little part in here too. How am I 16 trespassing when I am with somebody with a key card for the 17 building? 18 THE COURT: What was that? 19 THE DEFENDANT: I said how was I trespassing 20 when the guy that stays in the building that I was with, 21 you had to get key carded in the building, electronic door, 22 and he invited me in. 23 MR. GREENWALD: Mr Boatwright was arrested 24 for trespassing. He is not admitting that he was, in 25 fact, trespassing, but of course, that also is not an 26 element for this offense.

22 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 22 of THE COURT: Let me see counsel at sidebar 3 here. 4 (Whereupon, a sidebar conference was held 5 outside the hearing of the Defendant.) 6 THE COURT: We will take a brief recess. 7 (Whereupon, a brief recess was taken.) 8 MR. GREENWALD: If the Court please, I 9 appreciate giving myself and Mr. Boatwright an opportunity 10 to confer. I believe we are prepared to proceed at this 11 time. I think Mr. Boatwright understands the implication 12 of your questions and is prepared to answer them. 13 I think what we were hanging up on was the 14 question of whether or not Mr. Boatwright possessed the 15 quantity of cocaine, crack cocaine, that was discovered 16 with the intent that he distribute a portion of that. And 17 so if you want to resume the inquiry, I think we are 18 prepared to go ahead. 19 THE COURT: Mr. Boatwright, do you have 20 anything further you wish to state with regards to the 21 events of August 15, 2007, in Syracuse with the Syracuse 22 police officer? 23 THE DEFENDANT: No, sir. 24 MR. GREENWALD: No, he is asking you -- I am 25 not sure if Mr. Boatwright understands. 26 THE COURT: Tell me again just what happened

23 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 23 of on that day, what your intent was, what you had in your 3 possession, and what you intended to do with it. That is 4 what I want to know. 5 THE DEFENDANT: I had eleven grams of 6 cocaine on me. I was with a buddy, and me and him was 7 going to go use it, so I intended to distribute it to him. 8 THE COURT: Anything else you want to say? 9 THE DEFENDANT: No, sir. 10 THE COURT: So you had eleven grams of crack 11 cocaine, and you intended to distribute to your buddy to 12 use drugs together, the two of you? 13 THE DEFENDANT: Yes, sir. 14 MR. SHARPE: Are you looking for a comment 15 from the government? 16 THE COURT: Yes, if you have any. 17 MR. SHARPE: We believe that the evidence 18 would frankly be different if the matter went to trial. 19 That having been said, I guess it becomes a question, in 20 terms of his factual recitation, does that satisfy the 21 statute. It is not clear to me. 22 I mean, he is indicating that he gave some 23 of those drugs to a friend that was with him, but that they 24 intended to use the entire quantity together, and he is 25 apparently factually denying that he made any comment that 26 the police officers indicated in regards to him just trying

24 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 24 of to make some money. 3 This isn't my case. It is Mr. Reynolds'. I 4 don't particularly handle a number of cases. That having 5 been said, I guess standing in on behalf of the government, 6 we have some concerns that that's likely an inadequate 7 factual recitation to satisfy the statute. 8 THE COURT: Mr. Boatwright, as we said, we 9 just want you to tell the truth. I am not going to ask you 10 to do anything else. And you deny that you said to the 11 officer, quote, just trying to make a little money end 12 quote? Do you deny saying that? 13 MR. GREENWALD: Only if it is true. 14 THE DEFENDANT: Yes, I deny saying that. 15 THE COURT: You did not say that. 16 THE DEFENDANT: No. 17 THE COURT: And you had eleven grams of 18 crack cocaine. 19 THE DEFENDANT: Yes, sir. 20 THE COURT: And the whole eleven grams, you 21 were going to share with a friend of yours? 22 THE DEFENDANT: Yes, sir. 23 THE COURT: And you didn't sell it to him? 24 He didn't pay you for it or anything? 25 THE DEFENDANT: No, sir. 26 MR. GREENWALD: Your Honor, I certainly can

25 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 25 of appreciate the Court's discomfort with this allocution, but 3 by understanding of the elements of the offense of 4 possession with intent to distribute, there is no element 5 that requires that the government prove that there was a 6 distribution for pecuniary gain, and there is no 7 requirement that -- or for any cash transaction or that it 8 be an arm's length transaction between strangers. 9 Essentially what Mr. Boatwright, I think, 10 has admitted to the Court is that he obtained a quantity in 11 excess of five grams, that he was indeed sharing and 12 distributing that to another individual at the time that he 13 was apprehended by the police. 14 If the government wants to take the position 15 that they are required to prove a money transaction for 16 this case to go forward to trial, then that might be an 17 interesting jury charge. I would like to see that. 18 MR. SHARPE: That's not the government's 19 position obviously. I think the instruction reads, shall, 20 give, exchange. 21 THE COURT: I am concerned, Mr. Greenwald, 22 because he has obviously denied more than one element set 23 forth in his plea agreement that he signed, in addition to 24 being right on the edge as to whether or not what he has 25 admitted to would be a violation of the intent to 26 distribute more than five grams of crack cocaine.

26 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 26 of He had eleven grams on him, and was he going 3 to distribute more than five? Was he going to use more 4 than five himself? It was a friend, and no money -- money 5 would just be one element, not necessary a vital element, 6 just one part of it. 7 He denies making the statement that he 8 signed on the plea agreement. The overall picture just -- 9 and I note for the record, he indicated somewhat reluctance 10 to plead guilty in the first place, and I had to ask him a 11 few extra questions here at the time. 12 So I think we are at an impasse at this 13 point. At this point, I am refusing to accept his plea on 14 the basis that there is insufficient facts set forth by the 15 defendant to indicate -- certainly he has indicated 16 possession of crack cocaine, which is also a violation, but 17 as far as going further, I do not believe he has 18 articulated a crime of possession with intent to distribute 19 more than five grams. 20 And he had eleven grams on him and two 21 people. We are talking about more than five grams, and he 22 has eleven, and he is going to share it sometime in the 23 future with his buddy. 24 MR. GREENWALD: I understand the Court's 25 position. 26 THE COURT: So we will -- this matter will

27 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 27 of be adjourned, and the defendant is remanded to the custody 3 of United States Marshals, and we will set the matter down 4 for trial unless there a circumstantial change. 5 Mr. Minor. 6 COURT CLERK: Court stands for a brief 7 recess

28 Case 5:08-cr DNH Document 24 Filed 07/16/09 Page 28 of 29 1 C E R T I F I C A T E 2 3 I, NANCY L. FREDDOSO, RPR, Official Court Reporter 4 in and for the United States District Court, Northern 5 District of New York, do hereby certify that I recorded 6 stenographically the foregoing at the time and place 7 mentioned; that I caused the same to be transcribed; and 8 that the foregoing is a true and correct transcript thereof 9 to the best of my knowledge, ability, and belief I further certify that I am not an attorney or 12 counsel of any parties, not a relative or employee of any 13 attorney or counsel connected with the action, nor 14 financially interested in the action S/NANCY L. FREDDOSO, RPR Official United States Court Reporter My Commission expires March 30,

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