U.S. v. McGeehan, s. 86-2202
| Decision Date | 29 July 1987 |
| Docket Number | Nos. 86-2202,87-1114,s. 86-2202 |
| Citation | 824 F.2d 677 |
| Parties | UNITED STATES of America, Appellee, v. Kipp Michael McGEEHAN, Appellant. UNITED STATES of America, Appellee, v. Timothy Steven JOVANOVIC, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lee T. Lawless, St. Louis, Mo., for appellant McGeehan and John Blackman for appellant Jovanovic.
Frederick Dana, Asst. U.S. Atty., St. Louis, Mo., for appellee U.S.
Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.
Defendant Timothy Steven Jovanovic pleaded guilty to two counts of distributing lysergic acid diethylamide (LSD) in violation of 21 U.S.C. Sec. 841(a)(1) and one count of conspiracy to distribute LSD. 21 U.S.C. Sec. 846. Jovanovic now seeks to withdraw his plea, claiming the district court did not properly advise him of the consequences of his plea. See Fed.R.Crim.P. 11(c)(1).
Defendant Kipp Michael McGeehan was indicted on two counts of distributing LSD and one count of conspiracy to distribute LSD. Following a jury trial McGeehan was acquitted of the conspiracy count, but convicted on the two distribution counts. On appeal McGeehan raises two claims of error: (1) the government failed to prove an element of the distributing counts charged in the indictment; and (2) the evidence established that he was entrapped as a matter of law.
Jovanovic was charged in the indictment with two counts of distributing LSD together with one count of conspiracy. Both counts alleged each distribution to be in excess of five grams and a violation of 21 U.S.C. Sec. 841(a)(1). The first count alleged the distribution involved approximately 1,000 dosage units of LSD while the second count alleged approximately 5,000 dosage units. Section 841 is divided into two parts: unlawful acts and penalties. Under the first portion of Sec. 841 it is a crime to "knowingly or intentionally ... distribute ... a controlled substance...." Sec. 841(a)(1). LSD is a Schedule I controlled substance. 21 U.S.C. Sec. 812(c), Schedule I(c)(9). 1
The penalty provisions of Sec. 841 are complex and have been subject to numerous legislative revisions. The range of penalties available turns on several factors: the controlled substance involved, the amount of the substance, and any prior convictions for an offense punishable under Sec. 841. The only factor relevant to this appeal is the amount of the controlled substance. If Jovanovic distributed five grams or more of LSD he could be sentenced to not more than twenty years imprisonment and/or a fine of not more than $250,000.00. Sec. 841(b)(1)(A) (Supp. III 1982). For an offense involving less than five grams of LSD the maximum penalty is not more than fifteen years imprisonment and/or a fine of not more than $125,000.00 together with a mandatory special parole term of at least three years. Sec. 841(b)(1)(B) (Supp. III 1982). The conspiracy statute adopted the maximum penalties provided for in the underlying offense. Sec. 846. Accordingly, if convicted, Jovanovic faced a maximum penalty of sixty years imprisonment and $750,000.00 in fines.
On June 13, 1986 Jovanovic was arraigned and pleaded not guilty to the three counts against him. He was released on bond. On Friday, August 15, 1986 the district court revoked Jovanovic's bond and ordered him confined pending trial because he violated the conditions of his release by using controlled substances during his release. During the weekend Jovanovic decided to change his plea to guilty. The following Monday Jovanovic appeared in court to enter his plea. Jovanovic now contends that the district court incorrectly informed him of the maximum possible penalty and he should therefore be allowed to plead anew.
In order to understand precisely what transpired, a lengthy reference to the change of plea colloquy is necessary.
....
....
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There is an enhanced penalty based upon the number of grams.
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So it would be 20, 15 and 20.
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U.S. ATTORNEY: Judge ... Roman Numeral IV is the enhanced penalty provision with regard to LSD, based on the number of grams.
Should a defendant be convicted of 5 grams or more, possession or distribution, the enhanced penalty is 20 years instead of 15. We have that situation here with regard to Count X.
....
[At this point the district court directs the defendant's attorney to discuss with Mr. Jovanovic what had transpired to determine if it would affect his decision to plead guilty.]
Undoubtedly, this exchange regarding the maximum allowable sentence is confusing. Ultimately, a maximum term of imprisonment of 55 years is arrived at because the United States conceded that only one of the distribution counts is subject to an enhanced penalty. 2 Thus, the district court ultimately advised Jovanovic correctly of the maximum available prison term.
At the outset the district court advised Jovanovic that he was also subject to a mandatory minimum three year special parole term. This was incorrect. Under the enhanced penalty provision Jovanovic was not subject to special parole. 21 U.S.C. Sec. 841(b)(1)(A) (Supp. III 1982). However, upon the government's concession that Count VIII did not involve in excess of five grams as charged in the indictment, Jovanovic became subject to a mandatory three year minimum special parole term under the lesser included offense of distribution of less than five grams. Sec. 841(b)(1)(B) (Supp. III 1982). We note, however, that the district court did not inform Jovanovic that the special parole term could be a life term.
"Before accepting a plea of guilty ... the court must ... inform the defendant of, and determine that the defendant understands ... the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole term...." Fed.R.Crim.P. 11(c). Formerly, the requirements of Rule 11 were to be strictly adhered to and any deviation therefrom would require reversal and remand to allow the defendant to plead anew. McCarthy v. United States, 394 U.S. 459, 472, 89 S.Ct. 1166, 1174, 22 L.Ed.2d 418 (1969). Subsequently, the Supreme Court concluded that a failure to strictly comply with Rule 11 would not warrant habeas relief unless it results in a complete miscarriage of justice or is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979). Thus, Timmreck tends to undercut the proposition underlying the automatic reversal rule of McCarthy "that prejudice inheres in a failure to comply with Rule 11...." McCarthy, 394 U.S. at 471, 89 S.Ct. at 1173. See Comment, Rule 11 of the Federal Rules of Criminal Procedure: A New "Strict in Context" Approach, 22 B.C.L.Rev. 815, 834 n. 140 (1981). Therefore, it was arguable that some deviations from Rule 11 may be merely harmless error. See United States v. Dayton, 604 F.2d 931, 939-40 (5th Cir.1979).
In 1983 Rule 11 was amended to include a harmless error provision:
Harmless Error. Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.
Fed.R.Crim.P. 11(h). This amendment has been criticized for failing to adequately define harmless error. Comment, supra, 22 B.C.L.Rev. at 841-42. It is not unusual, however, for the task of refining and giving meaning to a broad standard to be left to the courts. In any event, to resolve the question of whether the error here was harmless we need look no farther than the Advisory Committee's Notes. It is harmless error "where the judge's compliance with subdivision (c)(2)[sic] was erroneous in part in that the judge understated the maximum penalty...
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