U.S. v. Minore

Decision Date17 June 2002
Docket NumberNo. 00-30025.,No. 00-30052.,No. 99-30381.,99-30381.,00-30025.,00-30052.
Citation292 F.3d 1109
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gary William MINORE, aka Skip, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Arthur Torsone, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Prommateta Chinawat, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Lee Covell and Kenneth E. Kanev, Seattle, WA, for defendant-appellant Gary W. Minore.

Scott A. Schumacher, Chicoine & Hallett, Seattle, WA, for defendant-appellant Arthur Torsone.

Jennifer Shaw, Aoki & Sakamoto, Seattle, WA, for defendant-appellant Prommateta Chinawat.

Annette L. Hayes, Assistant United States Attorney, Seattle, WA, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding. D.C. No. CR-98-00355-TSZ.

Before: B. FLETCHER and FISHER, Circuit Judges, and SCHWARZER,* Senior District Judge.

FISHER, Circuit Judge.

In this appeal, we consider the significance of Apprendi v. New Jersey, 530 U.S 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in a realm other than sentencing. Gary W. Minore challenges the validity of his conviction because the district court did not advise him during the plea colloquy that the government would be required to prove the amount of marijuana involved in the offense to the jury beyond a reasonable doubt. Applying Apprendi in the context of Federal Rule of Criminal Procedure 11(c)(1), we hold that before accepting a guilty plea, the district court must advise the defendant that the government would have to prove to the jury beyond a reasonable doubt any quantity of drugs that would expose the defendant to a higher statutory maximum sentence.1 Applying plain error review to the district court's failure to so advise Minore, we conclude the error did not seriously affect the fairness, integrity or public reputation of the judicial proceedings, and we thus affirm Minore's conviction. We also affirm the sentence of Minore's co-defendant, Prommetata Chinawat, in spite of a separate Apprendi error relating to Chinawat's sentencing.

Factual Background

Minore and Chinawat were arrested for their involvement in a conspiracy to import at least three shipments of marijuana from Southeast Asia to the United States. In late 1997, the members of the conspiracy used a fishing boat, the OK Tedi, to transport approximately 12,500 pounds (5670 kilograms) of marijuana from Thailand and Cambodia to waters off the coast of Washington state. While in United States customs waters, the Coast Guard intercepted the OK Tedi; in response, the crew set it on fire and it sank. Law enforcement officers recovered approximately 5200 pounds (2363 kilograms) of marijuana from the water over the next two days. In June 1998, members of the conspiracy unsuccessfully attempted to obtain a second load of about 7000 pounds (3175 kilograms) of marijuana to import into the United States. However, three members of the conspiracy, including Chinawat, were arrested by Cambodian law enforcement officials on their way to the pick-up site. Chinawat was held in Cambodia for six months and then transferred to the United States in December 1998. In the meantime, in August 1998, members of the conspiracy attempted to obtain a third load of about 6300 pounds (2858 kilograms) of marijuana, this time from sources in Seattle, Washington. As Chinawat was in custody, he was not involved in the third transaction, which turned out to be a reverse sting operation. Minore, one of the financiers of the conspiracy, was involved in the third transaction (as well as the first two) and was arrested when he delivered a $25,000 payment to one of the government's confidential informants.

I. Minore

In June 1999, Minore pled guilty to money laundering, in violation of 18 U.S.C. §§ 1956(a)(1) and 1956(a)(1)(A)(i), and conspiracy to import and distribute marijuana, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), 846, 952(a), 960(a)(1), 960(b)(1)(G) and 963.2 The indictment stated that "[the drug] offense involved one thousand (1000) kilograms or more of marijuana[,]" and Minore stipulated in the plea agreement that the "quantity of drugs on board the OK Tedi was 12,500 pounds (5670 kilograms)," "the quantity of marijuana involved in [the second transaction] was approximately 7000 pounds (3175 kilograms)" and "the quantity of marijuana involved in [the] reverse sting operation was 6300 pounds (2858 kilograms)." The plea agreement also stated that, "[f]or purposes of calculating Gary Minore's sentencing guidelines range under USSG § 2D1.1, the parties agree that the quantity of drugs for which Gary Minore should be held responsible is the marijuana involved in the three loads, namely, a total of 25,800 pounds (11,703 kilograms)."

The plea agreement listed as the elements the government would have to prove beyond a reasonable doubt to convict Minore of the conspiracy charge: (1) that there was an agreement between two or more persons to import marijuana into the United States and to distribute it and (2) that "Minore became a member of this conspiracy knowing of at least one of its objects and intending to help accomplish it." During the plea colloquy, the district court asked Minore whether he understood "that in connection with the conspiracy count ... the government would have to prove those elements" listed in the plea agreement. Minore said he did. The district court did not tell Minore the government would be required to prove the drug quantity — 25,800 pounds (11,703 kilograms) — to a jury beyond a reasonable doubt. Rather, consistent with the law at that time, the district court told Minore that the court would make the ultimate determination of the amount of drugs for which Minore would be held responsible.

The parties agreed in the plea agreement that, pursuant to § 2D1.1 of the Sentencing Guidelines, Minore's base offense level was 36. See U.S.S.G. § 2D1.1(a)(3), (c)(2) (Nov. 1, 1998) (assigning base offense level of 36 to violation of §§ 841 and 960 involving between 10,000 and 30,000 kilograms of marijuana). Similarly, the Presentence Report ("PSR") used the drug quantity to calculate the recommended base offense level of 36.3 See id. At sentencing, however, Minore contended that the third transaction constituted sentencing entrapment and should be disregarded. He did not dispute his involvement, or the quantity of marijuana at stake, in the first two transactions. The district court rejected Minore's entrapment argument, adopted the findings and recommendation of the PSR and sentenced Minore to 188 months in prison and five years of supervised release.

During the briefing of Minore's case on appeal, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi applies to Minore's appeal because it comes to us on direct review. United States v. Buckland, 289 F.3d 558, 563-64 (9th Cir.2002) (en banc) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)), amending and superseding 277 F.3d 1173, cert. denied, ___ U.S. ___, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002). Minore first challenges his conviction on the ground that Apprendi rendered § 960 facially unconstitutional, an argument we rejected in United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002).4 Minore next challenges the validity of his guilty plea because the district court did not inform him that, if his case went to trial, the government would be required to prove drug quantity to a jury beyond a reasonable doubt. Whether Rule 11 requires the district court to so advise the defendant is an issue of first impression in our Circuit, and we review de novo the adequacy of the plea colloquy. United States v. Timbana, 222 F.3d 688, 702 (9th Cir.), cert. denied, 531 U.S. 1028, 121 S.Ct. 604, 148 L.Ed.2d 516 (2000).

A. Rule 11(c)(1) and Due Process Require the District Court to Inform the Defendant of the Critical Elements of the Offense.

Federal Rule of Criminal Procedure 11 is designed "to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary." McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), superseded on other grounds by Fed.R.Crim.P. 11(h). Rule 11(c)(1) requires the district court to "address the defendant personally in open court" and advise the defendant of "the nature of the charge to which the plea is offered...." Fed.R.Crim.P. 11(c)(1). "`[R]eal notice of the true nature of the charge against [a defendant is] the first and most universally recognized requirement of due process.'" Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941)). The requirement serves two functions. First, a defendant's admission of criminal culpability is not meaningful unless the defendant understands the crime to which he is confessing. Notice of the nature of the charge is required to obtain a knowing and intelligent guilty plea. Id.; accord Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). Second, informing the defendant of the nature of the charge against him "ensures that the defendant thoroughly understands that if he pleads `not guilty' the State will be required to prove certain facts,' thus permitting the defendant to make an intelligent judgment as to whether he would be better off accepting the tendered concessions or chancing acquittal if the prosecution cannot prove those facts beyond a reasonable doubt." Wayne R. LaFave, Jerold H. Israel & Nancy J. King, 5 Criminal Procedure § 21.4(c) (2d ed. 1999) ("Criminal Procedure").

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