U.S. v. Brown, 94-9387

• Decision Date: 21 July 1997
• Docket Number: No. 94-9387,94-9387
• Citation: 117 F.3d 471
• Parties: 11 Fla. L. Weekly Fed. C 212 UNITED STATES of America, Plaintiff-Appellee, v. Neal BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 471

117 F.3d 471

11 Fla. L. Weekly Fed. C 212

UNITED STATES of America, Plaintiff-Appellee, v. Neal BROWN, Defendant-Appellant.

No. 94-9387.

United States Court of Appeals, Eleventh Circuit.

July 21, 1997.

Paul H. Schwartz, Atlanta, Georgia, for Defendant-Appellant.

Karl Knoche, Asst. U.S. Atty., Savannah, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before ANDERSON and CARNES, Circuit Judges, and CUDAHY ^*, Senior Circuit Judge.

CARNES, Circuit Judge:

This case turns directly upon application of the fundamental principle that to be constitutionally valid, a plea of guilty must be knowingly and voluntarily made. We hold that a guilty plea is not knowingly and voluntarily made when the defendant has been misinformed about the critical elements of the charged offense, even when that misinformation is the result of this Court's erroneous prior interpretation of a criminal statute. More specifically, in light of Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), which held that knowledge of illegality is an essential element of the crime of currency structuring, we hold invalid a guilty plea to that crime which was based upon the pre-Ratzlaf law of this circuit to the contrary.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

The facts in this case are straightforward. In June 1992, a federal indictment was entered against Neal Brown, accusing him of the following crimes: (1) conspiracy with intent to distribute controlled substances; (2) money laundering; and (3) structuring currency transactions to avoid the reporting requirements of 31 U.S.C. § 5313(a), in violation of 31 U.S.C. § 5324. On November 4, 1992, Brown pleaded guilty to the structuring charge, and the government voluntarily dismissed the other two charges, despite the absence of a formal plea agreement. Thereafter, Brown was sentenced to nine months of imprisonment followed by three years of supervised release.

At his plea colloquy, Brown and his counsel explained to the court Brown's decision to plead guilty:

Q. [By the Court.] You seem a little guarded about saying you are satisfied with [counsel's] handling of your case?

A. (Mr. Brown.) Well, when I hired him I had a good faith hope of getting out of this. I didn't feel like at the time that I was really guilty of any crime. Since it's been explained to me and shown to me in the law I found out I am guilty of a crime.

Q. [By the Court.] You mean he showed you something you didn't want to know about?

A. (Mr. Brown.) He showed me something I did not know.

....

A. [Counsel for Brown.] I think what Mr. Brown is trying to say when he came to me he admitted the elements of the structuring offense, but he was not aware, until he was indicted, that it was a crime and he did not believe he had committed a crime until I showed him the law and the case law and specifically gave him a copy of the most recent decision of the Eleventh Circuit, in which I believe the last name of the defendant in that case is Brown, which dealt with the criminal offense of structuring and it basically says you are guilty of the offense of structuring if you intended to do what he did with knowledge of the reporting requirements and you structured a financial transaction to avoid the reporting requirements that was sufficient under the law. I think that's what Mr. Brown means when he says that he didn't think he did anything wrong, but now his eyes have been opened.

(emphasis added).

As it later turned out, the eyes that needed opening were those of this Court. Fourteen months after Neal Brown entered his guilty plea, the Supreme Court issued its decision in Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). In that decision, the Supreme Court held that the willfulness requirement contained in the criminal enforcement provision then applicable to § 5324 required the government to prove that "the defendant acted with knowledge that his conduct was unlawful." Id. at 137, 114 S.Ct. at 657. Ratzlaf overruled this Court's prior decision in United States v. Brown, 954 F.2d 1563 (11th Cir.1992), which had held that "the prosecution need not prove the defendant was aware of the illegality of money structuring in order to convict the defendant of that offense," id. at 1568. ¹

On September 1, 1994, Brown filed in the district court a pro se pleading entitled "Petition for Writ of Error Coram Nobis." In that pleading, Brown sought an order vacating his conviction and sentence on the ground that he had not entered his guilty plea knowingly and voluntarily. ² Specifically, Brown contended that his guilty plea should be set aside because he had been misinformed about the essential elements of the crime to which he pleaded guilty.

The district court denied Brown's request to vacate his conviction and sentence "[f]or the reasons stated in the Government's responsive brief." In so doing, the district court adopted the government's position that the Supreme Court's decision in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), prohibited the district court from granting the relief requested, because Brady holds that "a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise," id. at 757, 90 S.Ct. at 1473. Citing our then-overruled 1992 Brown decision, the government contended that because binding circuit law in effect at the time of the plea held that the government need not prove a defendant knew that his structuring activities were unlawful, Neal Brown's plea was sufficiently knowing and voluntary to satisfy constitutional requirements. The district court agreed.

Twenty-two days after the district court denied Brown's coram nobis petition, Brown, still acting pro se, filed a notice of appeal. Thereafter, this Court raised sua sponte the issue of whether we have jurisdiction over this case, in view of the fact that the notice of appeal was filed more than ten days after entry of the district court's order denying his petition. See Fed. R.App. P. 4(b). We then set the case for oral argument and appointed appellate counsel for Brown.

II. ISSUES AND APPLICABLE STANDARDS OF REVIEW

As a threshold matter, we must decide whether we have jurisdiction over this appeal. Because that legal question has been raised sua sponte by this Court on appeal, we decide it in the first instance. Assuming that we have jurisdiction, we must decide whether Brown entered his guilty plea knowingly and voluntarily. "The voluntariness of a guilty plea is a question of law reviewed de novo." United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir.1993) (citing Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983)).

III. JURISDICTION

Federal Rule of Appellate Procedure 4(b) provides criminal defendants with ten days to appeal following entry of the relevant judgment or order in the district court. See Fed. R.App. P. 4(b). If Rule 4(b) applies to this case, Brown's appeal was filed twelve days too late.

Brown contends that Rule 4(b) does not govern this case. Instead, he argues that his "Petition for Writ of Error Coram Nobis" should be construed as a motion to vacate his sentence under 28 U.S.C. § 2255. So construed, his appeal was timely filed, because Federal Rule of Appellate Procedure 4(a) provides inmates with sixty days to appeal the denial of a § 2255 motion. See Fed. R.App. P. 4(a).

We agree that Brown's coram nobis petition must be construed as a § 2255 motion. The writ of error coram nobis is an extraordinary writ, limited to cases in which "no statutory remedy is available or adequate." Lowery v. United States, 956 F.2d 227, 228-29 (11th Cir.1992) (citations and internal quotation marks omitted). As we have previously held, an available statutory habeas remedy precludes coram nobis relief. Id. If Brown was "in custody" within the meaning of § 2255 when he filed his appeal, then the statutory remedies of that provision were available to him, and coram nobis relief was unavailable as a matter of law.

When Brown filed his appeal, he was still serving the supervised release portion of his sentence. Although Brown was not physically in prison when his appeal was filed, he was still subject to the restrictions on liberty that accompany a term of supervised release. Supervised release carries with it the possibility of revocation and additional jail time. Therefore, we conclude that, as a person serving a term of supervised release, Brown was "in custody" within the meaning of § 2255 when he filed his petition in the district court. See Jones v. Cunningham, 371 U.S. 236, 240-43, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1963) (holding that paroled prisoner is in custody when the terms of his release impose "significant restraints on petitioner's liberty because of his conviction and sentence, which are in addition to those imposed by the State upon the public generally"); United States v. Essig, 10 F.3d 968, 970 n. 3 (3d Cir.1993) (holding expressly that supervised release satisfies the "in custody" requirement of § 2255); see also Dawson v. Scott, 50 F.3d 884, 886 n. 2 (11th Cir.1995) (holding that a habeas appeal does not become moot merely because a prisoner is released from physical confinement to serve a term of supervised release, because supervised release is part of the sentence and carries liberty restrictions with it); Kusay v. United States, 62 F.3d 192, 193 (7th Cir.1995) (same). ³

Because Brown was in custody within the meaning of § 2255 when he filed his petition in the district court, coram nobis relief was unavailable to him, and § 2255 was his exclusive remedy. Therefore, the question simplifies to whether Brown's petition should be treated as a § 2255 motion, despite the label that he attached to it. We readily conclude...