U.S. v. Darling
| Decision Date | 03 July 1985 |
| Docket Number | No. 84-1215,84-1215 |
| Citation | 766 F.2d 1095 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lewis DARLING, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Geraldine R. Fehst, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Bruce H. Bronstein, Chicago, Ill., for defendant-appellant.
Before WOOD and FLAUM, Circuit Judges, and PELL, Senior Circuit Judge.
This is a direct criminal appeal which challenges the district court's failure to comply with the requirements of Rule 11 of the Federal Rules of Criminal Procedure in accepting defendant-appellant Darling's guilty pleas.
On August 11, 1983, a grand jury returned a fifteen-count indictment against Darling charging him with mail fraud in violation of 18 U.S.C. Sec. 1341. Two schemes gave rise to the charges: the first was a scheme to defraud various insurance companies through the staging of automobile accidents and the submittal of false claims to those companies; the second was a scheme to defraud the United States through the submittal to the Internal Revenue Service of false tax returns. On September 7, 1983, Darling entered a plea of not guilty. On December 7, 1983, he withdrew that plea and, pursuant to an agreement with the government, pleaded guilty to all three counts of a superseding information charging him with two counts of mail fraud in violation of 18 U.S.C. Sec. 1341 and one count of conspiracy to defraud the IRS in violation of 18 U.S.C. Sec. 371. 1 Counts I and II of the information charged Darling with devising and participating in a scheme to defraud six named insurance companies by staging automobile accidents and then filing false claims on behalf of fictitious persons for lost wages, personal injuries, and property damage. It was alleged that Darling established a mailing address for two companies, Empire Realty and Accountax, which were used to provide false wage loss information to the insurance companies. For the purpose of executing this scheme, Darling twice utilized the United States Mail to send a fraudulent medical bill and a letter, contents unspecified, to the Travelers Insurance Company. Count III charged Darling with conspiring with others known and unknown to the United States Attorney to defraud the United States by preparing and filing false income tax returns on behalf of nonexistent businesses allegedly owned by Darling and his co-conspirators; the false returns claimed business losses and sought refunds in excess of $200,000. Two overt acts were set forth in the information: (A) between January 12, 1981 and January 18, 1981, Darling prepared and filed five false federal income tax returns in the name of "Charles White" claiming refunds totalling $24,805; and (B) between January, 1981 and July, 1981, Darling prepared false tax returns for fourteen named individuals. The district court accepted Darling's pleas of guilty to all three counts and set sentencing for January 20, 1984.
On January 20, 1984, counsel informed the court that Darling wanted to withdraw the guilty pleas; the bases for this oral motion were that Darling was not properly advised of the exact nature of the charges and that he was not guilty of the charges. The court ordered Darling's attorney to file a written motion to withdraw the guilty pleas by January 25, 1984. At a subsequent hearing, counsel indicated that Darling no longer desired to withdraw the pleas. Darling was then sentenced in accordance with the plea agreement to consecutive terms of five years imprisonment on Count I and Count II. He also received five years probation on Count III to run consecutively to the ten-year term of incarceration.
Darling's major argument on appeal is that the court did not comply with Rule 11(c)(1) because it failed to inform him of and determine that he understood the nature of the charges to which he was pleading guilty. He also contends that his pleas to the charges lacked adequate factual bases. See Fed.R.Crim.P. 11(f).
We begin our analysis with a review of the relevant portions of the change of plea proceedings. At the hearing Darling's attorney waived the formal reading of the information; he then informed the court that he and Darling had had "a number of discussions [that] morning" about the counts contained in the information and that Darling denied he was guilty of overt act A in Count III. Specifically, Darling denied filing fraudulent tax returns in the name of "Charles White."
The court proceeded to ascertain that Darling was thirty-six-years-old and had a GED. The court further ascertained that Darling was satisfied with counsel's representation and that Darling had had ample opportunity to discuss the charges with counsel. When asked by the court if he understood the charges against him, Darling responded affirmatively. The court made no attempt to explain the charges to Darling.
The government then recited the factual bases for the charges against Darling. With respect to Counts I and II, the government stated that Darling established a company named Empire Realty which supplied fraudulent wage loss information for approximately twenty-two insurance claims. Darling also "was associated with and responsible for" a company named Accountax which also supplied fraudulent wage loss information. The mailings were in furtherance of fraudulent claims filed on behalf of two individuals stemming from an accident in August, 1981; the wage loss information in these claims was supplied by Empire Realty and Accountax. With respect to Count III, the government stated that Darling prepared and filed with the IRS forty to fifty fraudulent tax returns for individuals on which he claimed fictitious business losses. Darling charged these individuals a percentage of the tax refund that they obtained. Darling also prepared five fraudulent tax returns in the name of "Charles White;" the government would establish that Darling's handwriting graced these returns. Noting that Darling denied that he was guilty of overt act A, the court asked if counsel agreed that the remaining factual basis was sufficient to support a conviction on Count III. They did.
The following colloquy between the court and Darling then took place:
The court then accepted all pleas.
Rule 11(c)(1) places an affirmative duty on the district court to ensure that the defendant understands the nature of the charges. The colloquy necessary to satisfy Rule 11 "will vary from case to case depending on the complexity of the charges and the personal characteristics of the defendant including age, education, intelligence, alacrity of his responses, and whether he is represented by counsel." United States v. Gray, 611 F.2d 194, 200 (7th Cir.1979), cert. denied, 446 U.S. 911, 100 S.Ct. 1840, 64 L.Ed.2d 264 (1980) (citing United States v. Wetterlin, 583 F.2d 346 (7th Cir.1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979) ).
In recent cases this court has admonished district courts to adhere strictly to the requirements of Rule 11 in accepting guilty pleas. See, e.g., United States v. Cusenza, 749 F.2d 473, 477 n. 3 (7th Cir.1984). We found in Cusenza that the court erred in failing to read the indictment or explain the nature of the charges to the defendant and reiterated that asking the defendant if he has discussed the charges with his attorney does not satisfy the court's affirmative duty to inform the defendant of and determine that he understands the nature of the charges against him. Id. at 475-76. We concluded, however, that the prosecutor's recitation of the factual bases for the charges and the court's questions on the role the defendant played in the conspiracy satisfied the purpose underlying Rule 11(c)(1). The totality of the circumstances established that the defendant understood the nature of the charges.
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