Professional Documents
Culture Documents
United States v. Bierd, 217 F.3d 15, 1st Cir. (2000)
United States v. Bierd, 217 F.3d 15, 1st Cir. (2000)
2000)
One user of their services was an undercover Massachusetts state police officer
posing as a drug dealer who delivered money to defendant or Objio for transfer
to the Dominican Republic on three separate occasions in the fall of 1997. Each
time the officer dropped off money, in small denominations, he reiterated the
need for secrecy and spoke about the drug business and his customers.
Defendant and Objio allowed the officer to use a false name and broke the large
transactions into smaller amounts to avoid reporting requirements.
Instead of depositing drug proceeds, generally large amounts of cash, into the
bank accounts of Best Video or Best Money Exchange, the drug proceeds were
used to cash third party checks, which were then deposited into the bank
accounts. To transfer the money, Objio would contact his associate in the
Dominican Republic, who held checks that were drawn on Best Money
Exchange's account and stamped with Objio's signature. The checks in the
Dominican Republic were then made payable to persons other than the ultimate
recipient, and after the checks were cashed, the cash was delivered to the
recipient intended by the sender.
On the second day of the joint trial of defendant and Objio, Objio renewed a
severance motion, arguing that defendant's defense that he was only following
orders was in conflict with his own. At sidebar, the district judge explained that
he was inclined to deny the motion and the following exchange occurred:
that's what's really the defense. Why doesn't he plead out, get the three levels
he's entitled to and then that will accomplish the severance, but that's not for me
to say. That's for - - 9
10
Court: Well, if that happens, it happens. I have nothing to say about it.
11
The next day, defendant entered his Alford and unconditional guilty pleas and
he was subsequently sentenced.
12
Defendant then appealed. His counsel filed an Anders brief2 and moved to
withdraw. This court identified as non-frivolous the issue of whether the trial
judge violated Fed. R. Crim. P. 11(e)(1) by initiating a plea discussion and
approved the appointment of new counsel to represent defendant.
13
14
Defendant's overarching argument is that his plea was not voluntary as required
by Fed. R. Crim. P. 11. First, defendant alleges that the court violated Fed. R.
Crim. P. 11(e)(1) by participating in the plea negotiation process. Second,
defendant contends that the court coerced him into pleading guilty by
promising him a three level reduction in his base offense level for acceptance of
responsibility.
15
16
Although defendant failed to raise his claim before the trial court, "a Rule 11
challenge will not be deemed waived upon a party's failure to raise it in the
district court." United States v. Parra-Ibanez, 936 F.2d 588, 593 (1st Cir. 1991).
Rule 11(h) states that "[a]ny variance from the procedures required by this rule
which does not affect substantial rights shall be disregarded." Furthermore, the
advisory committee notes to the 1983 amendments to Fed. R. Crim. P. 32,
Defendant first alleges that the court initiated a plea discussion in violation of
Fed. R. Crim. P. 11(e)(1)'s mandate that "[t]he court shall not participate in any
discussions between the parties concerning any... plea agreement." Defendant
points to the exchange that occurred on the second day of trial at sidebar when
his co-defendant attempted to revisit his severance motion. He explains that his
counsel immediately relayed this conversation to him, which prompted his
desire to change his plea to guilty.
18
The Rule 11(e)(1) prohibition "simply commands that the judge not participate
in, and remove him or herself from, any discussion of a plea agreement that has
not yet been agreed to by the parties in open court." United States v. Bruce, 976
F.2d 552, 556 (9th Cir. 1992). This ban on judicial involvement in the plea
bargaining process furthers three goals. The primary philosophy behind it is
that "[j]udicial involvement in plea negotiations inevitably carries with it the
high and unacceptable risk of coercing a defendant to accept the proposed
agreement and plead guilty." Id. at 556. Second, "the interests of justice are
best served if the judge remains aloof from all discussions preliminary to the
determination of guilt or innocence so that his impartiality and objectivity shall
not be open to any question or suspicion when it becomes his duty to impose
sentence." United States v. Werker, 535 F.2d 198, 203 (2d Cir. 1976). And
third, the prohibition "preserves the judge's impartiality after the negotiations
are completed," for example when assessing the voluntariness of a plea or
presiding over trial when a negotiation fails. See United States v. Casallas, 59
F.3d 1173, 1178 (11th Cir. 1995) (citing Bruce, 976 F.2d at 556-57).
19
20
21
22
We don't play games in this court. Y'all want to plead guilty, you can plead
guilty today. If you don't want to plead guilty, we'll go to trial. We have got
plenty of time to try them. That will give each one of you until noon today to
file any plea agreements. After that you will plead straight up or you go to
trial.... They want to go out and get arrested, they come in here and they'll get a
fair trial, and if they get found guilty, they'll also get a fair sentence, fairly high.
23
United States v. Corbitt, 996 F.2d 1132, 1133-35 (11th Cir. 1993). And a trial
judge transgressed the rule, resulting in vacation of the defendants' convictions,
when he repeatedly urged the defendants to "think carefully" about the fact that
they faced life sentences upon conviction after trial, reminded them that the
penalty under the sentencing guidelines would be "so heavy, so very, very
heavy," and requested that the prosecution leave the offer open to allow the
defendants additional time. See Bruce, 976 F.2d at 555, 558; see also Casallas,
59 F.3d at 1177 (plea vacated when the court emphasized to defendant who
declined to plead guilty that he would receive a ten-year minimum sentence
under the proposed agreement but risked the fifteen-year mandatory minimum
if he were convicted after trial); cf. Crowell, 60 F.3d at 204 (no violation of
Rule 11 when the court, in evaluating a plea agreement that had been presented,
compared a defendant's sentence under a proposed plea agreement with the
potential sentence upon conviction after trial).
24
On the other hand, in Blackmon v. Wainwright, 608 F.2d 183 (5th Cir. 1979),
the court held that a trial judge's "off-the-cuff" remarks concerning a possible
sentence did not rise to the "level of participation" envisaged by Rule 11. See
id. at 184-85. Further, when a court warned a defendant who indicated a desire
to plead guilty "of the obvious risk should he plead guilty to the substantive
offense and then go to trial on the conspiracy charge," Rule 11(e)(1) was not
violated. See United States v. Johnson, 89 F.3d 778, 783 (11th Cir. 1996).
25
26
his attorney, the court said, "[a]ssume under guideline calculations a reduction
for acceptance of responsibility," and, second, when later asking the defendant
whether he'd been promised anything in exchange for his guilty plea, the court
noted, "one benefit [of pleading guilty] is, if I think you've accepted your
responsibility, the guideline range is lower."
27
28
And under the guidelines I cannot go higher than the top of the guidelines, up
to life in prison, unless there's something especially evil about you that's not in
those books. But equally, I can't go below the bottom of the guidelines unless
there's something especially good about you that's not in those books, and that's
very rare.
29
So, I ask the government, not because I'm going to follow what they tell me, but
because they probably want the most severe range of the people I will talk to,
to tell me what they think it will work out to be. And they tell me you're
looking at not less than 78 months nor more than 97 months in prison.
30
Now, if it works out that way, it's very unlikely then that I would be in a
position to sentence you to anything less than 78 months in prison.
31
32
33
In contrast, the court in this case did not provide defendant with incorrect
sentencing information at the plea colloquy and in fact defendant was
ultimately sentenced to seventy-eight months, the lowest possible sentence in
the range cited by the judge. Admittedly the judge's sidebar reference to the
acceptance of responsibility credit envisioned a three point reduction;
Defendant also complains that the court neglected to inform him that he faced a
likely enhancement under U.S.S.G. 2S1.1(b)(1) due to his knowledge that the
funds he was transmitting were drug proceeds. The court did not err by not
forewarning defendant of all possible sentencing enhancements he might face.
See United States v. De Alba Pagan, 33 F.3d 125, 127 (1st Cir. 1994) (holding
that "the fact that a defendant misapprehends the likely guideline sentencing
range does not constitute a fair and just reason for withdrawing a guilty plea").
The court informed defendant that it was highly unlikely that he would receive
a sentence outside the applicable guideline range and ultimately sentenced
defendant to the lowest penalty referenced as a possibility.
35
In conclusion, we find that the court's statements did not affect defendant's
substantial rights nor did they rise to the level of a fundamental defect. Thus,
defendant's plea was not a product of coercion but instead was entered
knowingly, voluntarily, and intelligently.
III. Sentencing
36
Defendant argues that the court erred by increasing his base offense level by
three due to his knowledge that the funds he transmitted were the result of drug
dealing. See U.S.S.G. 2S1.1(b)(1) (calling for three level enhancement "[i]f
the defendant knew or believed that the funds were the proceeds of an unlawful
activity involving the manufacture, importation, or distribution of narcotics or
other controlled substances"). Defendant contends that because he entered an
Alford plea to the money laundering charges, the enhancement cannot be
applied because he did not admit to the requisite knowledge. He also asserts
that there was insufficient evidence to support the court's factual findings.
37
38
"It is well settled that during the sentencing proceedings, a district court has
broad discretion in determining the information that may be received and
considered regarding a defendant." United States v. Pellerito, 918 F.2d 999,
1002 (1st Cir. 1990); see 18 U.S.C. 3577. Thus, it is not necessary that
defendant admit to the facts upon which an enhancement is based.
39
As to the evidence supporting the court's finding, it is more than sufficient. See
United States v. Brum, 948 F.2d 817, 819 (1st Cir. 1991). The court was
entitled to consider evidence presented in the trial prior to defendant's guilty
plea, see United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990), as well as the
facts recorded in the presentence report, see United States v. Skrodzki, 9 F.3d
198, 202 (1st Cir. 1993), such as that defendant was the principal contact with
several of the drug dealers using Best Video's services and that the undercover
officer represented the funds he wished to transfer as funds for the purchase of
drugs. In fact, the court expressly adopted the facts set out in the presentence
report, facts which defendant did not substantively dispute. See United States v.
Lagasse, 87 F.3d 18, 20 (1st Cir. 1996) ("We accept the facts found in the
uncontested portions of the [PSR]....").7 The facts presented in the presentence
report and at trial were more than sufficient to support the court's finding that
defendant had knowledge that the funds were the fruit of drug dealings. See
United States v. Knecht, 55 F.3d 54, 57 (2d Cir. 1995) (enhancement valid even
when the only reason defendant had to form the belief was a statement by an
undercover agent in a sting operation).
40
Thus, this is far from the "extreme case" in which the raise-or-waive rule
should be relaxed.
IV. Ineffective Assistance of Counsel
41
Finally, defendant contends that his trial counsel provided him with ineffective
assistance in violation of his Sixth Amendment right. As we have often held,
"fact-specific claims of ineffective assistance cannot make their debut on direct
review of criminal convictions, but, rather, must originally be presented to, and
acted upon by, the trial court." United States v. Mala, 7 F.3d 1058, 1063 (1st
Cir. 1993) (citing cases). We have allowed exceptions "only when the critical
facts are not in dispute and the record is sufficiently developed to allow
reasoned consideration of the claim." Id.
42
43
We conclude that the court's statements did not affect defendant's substantial
rights nor did they constitute a fundamental defect and that defendant's guilty
plea was knowing, voluntary, and intelligent. Further, the court did not err in
enhancing defendant's sentence under U.S.S.G. 2S1.1(b)(1). Finally,
defendant's ineffective assistance claim is dismissed without prejudice.
44
Affirmed.
NOTES:
1
When entering an Alford guilty plea, a defendant is not required to admit guilt.
This procedure was authorized by the Supreme Court in North Carolina v.
Alford, 400 U.S. 25 (1970), holding that "[a]n individual accused of crime may
voluntarily, knowingly, and understandingly consent to the imposition of a
prison sentence even if he is unwilling or unable to admit his participation in
the acts constituting the crime." Id. at 37.
In Anders v. California, 386 U.S. 738 (1967), the Supreme Court explained that
"if [a defendant's] counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request
permission to withdraw." Id. at 744.
We also evaluate "(1) the plausibility of the reasons prompting the requested
change of plea; (2) the timing of the defendant's motion; [and] (3) the existence
or nonexistence of an assertion of innocence," United States v. Parrilla-Tirado,
22 F.3d 368, 371 (1st Cir. 1994), although these factors need not be emphasized
in this case because we find that the defendant's plea was knowing, voluntary,
and intelligent.
4
In Porcaro v. United States, 784 F.2d 38 (1st Cir. 1986), this court remanded
the defendant's appeal for further proceedings on several bases, among them
that the "trial judge's making of a plea offer, if it occurred, would appear to
have violated Fed. R. Cr. P. 11(e)(1)." Id. at 42. And in Murchu v. United
States, 926 F.2d 50 (1st Cir. 1991), we remanded a section 2255 petition for
further proceedings to determine if the court participated in off the record plea
discussions. See id. at 57.
Although not raised on appeal, the issue of whether defendant was eligible for
any acceptance of responsibility reduction due to his entry of an Alford plea as
opposed to an unconditional guilty plea was raised at sentencing. Due to this
unresolved issue, the judge declined to make a determination as to whether he
was giving defendant: 1. both a two level reduction for acceptance of
responsibility under 3E1.1 and a two level enhancement under 3B1.1(c)
based on his role as a manager of the personnel or assets of a criminal endeavor,
or 2. neither the reduction nor the enhancement. We review the issue as if the
court gave both the reduction and the enhancement.