U.S. v. Ray

• Decision Date: 02 October 1987
• Docket Number: 86-1117 and 86-1118,Nos. 86-1107,s. 86-1107
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Latroy D. RAY, Johnny Lee May, and Boyd McChristion, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 399

828 F.2d 399

UNITED STATES of America, Plaintiff-Appellee, v. Latroy D. RAY, Johnny Lee May, and Boyd McChristion,

Defendants-Appellants.

Nos. 86-1107, 86-1117 and 86-1118.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 23, 1986.

Decided Aug. 26, 1987.

Rehearing and Rehearing En Banc Denied Oct. 2, 1987.

Matthew F. Kennelly, Bruce H. Bornstein, Chicago, Ill., Rick C. Gikas, Merreville, Ind., for defendants-appellants.

James G. Richmond, U.S. Atty., George E. Horn, Law Student, U.S. Atty's. Office, Timothy P. Verhey, Law Student, Hammond, Ind., for plaintiff-appellee.

Before WOOD and COFFEY, Circuit Judges, and GRANT, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Defendants Latroy D. Ray, Johnny Lee May, and Boyd McChristion appeal from judgments and sentences entered against them after they pleaded guilty to various charges in connection with a scheme to alter postal money orders. Each defendant asserts that the district court failed to comply with certain requirements of Federal Rule of Criminal Procedure 11 in accepting their guilty pleas. In addition, each defendant claims various other deficiencies related to his guilty pleas and sentencing. The defendants assert that these defects should entitle them to replead.

I. FACTUAL BACKGROUND

The facts of this case arise from a scheme operated by various inmates at the Indiana State Prison in Michigan City. The inmates would obtain postal money orders for $1.00, alter them to higher amounts generally in the neighborhood of $300.00, and have them cashed by persons outside the prison. Apparently the inmates would begin correspondences with individuals, primarily homosexual men, who had advertised for pen pals in The Advocate and other gay magazines. The inmates would gain their confidence by representing falsely that they were going to be released shortly and, in some instances, such as defendant Ray's case, that they were of a particular race. The inmates would then ask the pen pals to handle certain funds for them that they said could not be handled through the prison, for example, proceeds from the sale of a valuable stamp collection. The inmates would send the pen pals the altered postal orders and later ask them to send cashier's checks and money orders (which were legitimate) to individuals who would pass the money on to the inmates. The money would then be distributed among the inmates.

Ray, May, and McChristion were three of fourteen inmates implicated in this scheme. They were charged with various counts including conspiracy, mail fraud, wire fraud, and transmitting altered postal money orders, in violation of 18 U.S.C. Secs. 371, 1341, 1343, and 500 (1982) respectively. At this point the similarity of facts regarding each defendant ends.

Defendant Ray was named in thirty-six counts of the fifty-three-count superseding indictment entered on July 11, 1985 against him and the thirteen codefendants. Ray initially pled not guilty to all charges, but petitioned in writing to change that plea. On October 21, 1985, the district court conducted a change of plea hearing and pursuant to a plea agreement executed with the government, defendant Ray entered a plea of guilty to twelve counts including conspiracy, mail fraud, and transmitting altered postal money orders. On January 10, 1985, the district court dismissed the remaining charges against Ray and sentenced Ray on the twelve counts to a total of twenty-five years incarceration, which would run consecutively to the state sentence Ray was serving. ¹ Ray appealed.

Defendant May was charged in the superseding indictment with one count of conspiracy and one count of transmitting altered postal money orders. May initially pled not guilty to both charges on July 17, 1985, but later submitted a written petition to enter a change of plea regarding the charge that he transmitted altered postal money orders. The conspiracy count was dismissed by the government. The district court accepted the guilty plea, ordered a presentence report, and set the disposition hearing for October 11, 1985. After two continuances and the appointment of Carmen Fernandez as new counsel for May, the court reset the disposition hearing for January 17, 1986.

On January 17, before sentencing, May's counsel Fernandez made an oral motion to withdraw May's guilty plea. The court heard May's statement regarding his reasons for withdrawing his plea, denied May's request, and accepted the plea agreement after hearing from defense counsel and May. The court sentenced May on the charge of transmitting altered postal money orders to three years imprisonment, which would run consecutively to the state sentence May was then serving. The court granted the government's motion to dismiss the conspiracy charge. May appealed.

Defendant McChristion was named in five counts of the superseding indictment, charged with crimes including conspiracy, mail fraud, and possession of altered money orders (the latter in violation of 18 U.S.C. Sec. 1002). On July 22, 1985, McChristion pled not guilty to all charges. On July 24, the district court appointed attorney Hawk P.C. Kautz as new counsel for McChristion. At a pretrial conference on October 15, 1985, attorney Kautz advised the court that McChristion wished to change his plea.

The district court conducted a change of plea hearing the same day. Pursuant to the plea agreement, McChristion pled guilty to Counts 26 and 53 (alleging mail fraud and possession of altered postal money orders, respectively). The court entered judgments of conviction on Counts 26 and 53, ordered a presentence report, and set the disposition hearing for November 15, 1985.

On November 14, 1985, McChristion's counsel Kautz requested a continuance of the disposition hearing because of concerns for McChristion's safety if he were removed from the federal system. The court granted the continuance and reset the disposition hearing for January 17, 1986. Before that hearing, Kautz filed a petition to withdraw the change of plea that incorporated and attached a letter from McChristion to District Judge Moody dated November 8, 1985. Kautz also sought leave to withdraw as McChristion's counsel and petitioned for appointment of new counsel so that he might testify regarding information he possessed supporting McChristion's request to withdraw his guilty plea. He also petitioned for another continuance of the disposition hearing.

On January 17, 1986, the district court held the disposition hearing and denied Kautz's motion to withdraw as counsel and McChristion's motion for continuance of the disposition hearing. The court then heard sworn testimony from McChristion and representations of fact ² from attorney Kautz regarding McChristion's motion to withdraw his guilty plea. The court denied McChristion's motion to withdraw his guilty plea, accepted his plea agreement, and sentenced McChristion to two consecutive five-year sentences on Counts 26 and 53, which would run consecutively to the state sentence McChristion was serving. The court granted the government's motions to dismiss the other three counts. McChristion appealed. ³

II. RULE 11

Each defendant asserts that because the district judge failed to comply with Federal Rule of Criminal Procedure 11 in various respects, their guilty pleas are invalid and they should be entitled to replead.

Our duty as a court reviewing plea proceedings for conformance with Rule 11 necessarily involves consideration of the purpose and function of that Rule. Recognizing that a person who pleads guilty is "sacrificing, albeit voluntarily, important constitutional protections," see United States v. Fountain, 777 F.2d 351, 354 (7th Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986), we must consider the right of a defendant to make a voluntary and informed plea, which Rule 11 is designed to protect. See McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). The Rule helps achieve this protection by assisting the district judge in determining whether the guilty plea is voluntary and by preserving the record regarding voluntariness for appeal. Id.; see Fountain, 777 F.2d at 354-55. "[T]he more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas." McCarthy, 394 U.S. at 465, 89 S.Ct. at 1170.

Without taking anything away from the important responsibility, indeed duty, of the district judge in complying with the strictures of Rule 11, see, e.g., Fountain, 777 F.2d at 355-56; United States v. Cusenza, 749 F.2d 473, 477 n. 3 (7th Cir.1984), we must also keep in mind in reviewing Rule 11 proceedings that we should not give Rule 11 "such a crabbed interpretation that ceremony [is] exalted over substance." Fed.R.Crim.P. 11(h) advisory committee's note (1983). " 'Matters of reality, and not mere ritual,' " should control. United States v. Wetterlin, 583 F.2d 346, 354 (7th Cir.1978) (quoting McCarthy, 394 U.S. at 468 n. 20, 89 S.Ct. at 1171 n. 20 (citation omitted)), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). Furthermore, Rule 11 should not be used "to lay a procedural trap for the government" by allowing a defendant to "challenge a plea on a technicality." United States v. Reckmeyer, 786 F.2d 1216, 1221 (4th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986). We also recognize the "fundamental interest in the finality of guilty pleas." Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); see United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979).

A. Nature of and Factual Basis for the Charge

Each defendant argues that the district court violated either of or both Federal Rules of Criminal Procedure 11(c)(1) and 11(f) in taking his guilty...