850 F.2d 388 (8th Cir. 1988), 87-5185, Harvey v. United States

Docket Nº:87-5185.
Citation:850 F.2d 388
Party Name:Timothy Paul HARVEY, David Allen Harvey, and James Loren Harvey, Appellants, v. UNITED STATES of America, Appellee.
Case Date:June 22, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 388

850 F.2d 388 (8th Cir. 1988)

Timothy Paul HARVEY, David Allen Harvey, and James Loren

Harvey, Appellants,

v.

UNITED STATES of America, Appellee.

No. 87-5185.

United States Court of Appeals, Eighth Circuit

June 22, 1988

Submitted Dec. 18, 1987.

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Randolph Daar, San Francisco, Cal., for appellants.

Ted McBride, Rapid City, S.D., for appellee.

Before LAY, Chief Judge, and HEANEY and MAGILL, Circuit Judges.

HEANEY, Circuit Judge.

I. INTRODUCTION

Three brothers, Timothy, James, and David Harvey, filed motions in district court pursuant to 28 U.S.C. Sec. 2255, seeking to set aside guilty pleas. They claim: the guilty pleas were taken in violation of Rule 11 of the Rules of Criminal Procedure and not voluntarily and knowingly made; they received ineffective assistance from their court-appointed counsel; and their guilty pleas would not have been entered but for their lack of knowledge, and the ineffective assistance and coercion of trial counsel. After an evidentiary hearing, the district court denied the motions. We affirm.

On August 17, 1984, special agents of the Federal Bureau of Investigation searched, pursuant to a warrant, the "Wahle Ranch," near Pringle, South Dakota. The agents seized equipment and chemicals for manufacturing methamphetamine (commonly known as "speed") and approximately fourteen pounds of methamphetamine. The agents also arrested David, James, Joe Foos, and Rodney Shaddy at the ranch. Timothy turned himself in at the Pennington County Jail on September 3, 1984.

The search and arrest followed months of investigation. The government, in a written statement of the factual basis for the Harveys' pleas, described the investigation. We summarize it here.

Michael Riley, who the government anticipated calling as a witness, met the Harveys in Kansas in late 1979 or 1980. Later, while living in Indiana, he was called by one of the Harveys who asked him to sell some "crank" (a methamphetamine). Riley sold methamphetamine supplied by the Harveys in the following years. Timothy and David told Riley that Timothy was in charge of the methamphetamine operation. At the time of his arrest, on August 17, 1984, in Rapid City, South Dakota, Riley

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had $20,000 in his possession which Timothy had paid him to satisfy a debt for selling methamphetamine in the Evansville, Indiana area.

Another expected government witness was Michael Marlow. The Drug Enforcement Agency (DEA) arrested Marlow in November of 1983. In a plea agreement with the government, Marlow agreed to cooperate in the investigation of the Harveys. He explained to the government that he had distributed marijuana and methamphetamine for Michael Riley in the Evansville, Indiana, area in the summer of 1981.

In January, 1982, Riley asked Marlow to transport some methamphetamine for him. Marlow met David and Timothy in Missoula, Montana. Timothy delivered five pounds of methamphetamine to Marlow's motel room. On other occasions, Marlow made deliveries for Riley and was once present when Riley paid Timothy $50,000 in cash.

In the summer of 1982, Marlow helped the Harveys transport precursor chemicals and freon (used to make methamphetamine) to David's residence in Coeur d'Alene, Idaho. There, Marlow was introduced to James, Joe Foos, and another Harvey brother, Donald. Marlow toured the kitchen which contained a number of glass beakers, flasks, and chemicals. Marlow noticed an overpowering acrid odor.

After Marlow began cooperating with the government, one Donald Ewers asked him for assistance in arranging a methamphetamine deal with the Harveys. On May 5, 1984, in a motel in Denver, Colorado, Timothy turned over approximately four pounds of methamphetamine to Marlow. Timothy told Marlow he had been "cooking" for three days without sleep. Timothy's hands were red as if sunburned.

The next time these two met, on May 10, 1984, in Coeur d'Alene, Idaho, DEA and FBI agents videotaped Marlow making a payment of $28,000 to Timothy. Timothy told Marlow that they had relocated their manufacturing laboratory to a ranch, and that once fully set up, the laboratory could process fifteen to twenty pounds of methamphetamine a week.

On June 28, 1984, Marlow met special agents of the DEA and FBI in Rapid City, South Dakota. Under instructions from the special agents, Marlow contacted Timothy, stating that Ewers wanted a sample of the methamphetamine. Timothy later met Marlow at a motel room and told Marlow that his brothers and others had cooked one hundred pounds of methamphetamine. Timothy also gave Marlow a 6.8 ounce sample of methamphetamine. On two subsequent occasions in July and August of 1984, Timothy gave Marlow 6.7 pounds and 18.5 ounces of methamphetamine.

Rodney Shaddy, another potential government witness, had known the Harveys as a child in Liberal, Kansas. Timothy had offered Shaddy a job as a bookkeeper and secretary. According to the government, Shaddy would have testified that Timothy, David, Donald, and James each spent between $3,000 and $4,000 a month. Timothy carried the money and acted as the banker.

The government conducted court-authorized electronic surveillance of a telephone call on August 8, 1984, in which James told Timothy that Marlow had something "for us" and that Marlow asked if Timothy had "something for him." Timothy agreed that James should "tell him to come up." On August 12, 1984, the government recorded a conversation in which Marlow asked Timothy to bring the "one that I need." Timothy said that would be difficult "because I gotta go clear up to the ranch to get that baby."

The government also intended to introduce: papers relating to the purchase of the Wahle Ranch in the name of Timothy, James, and David Harvey and Joseph Foos; documents showing ownership by these same individuals of a semi-truck and trailer; notations in a small notebook found during the search of the ranch which described the difficulties Timothy had with Joe Foos and Donald in running "the company."

A chemist for the DEA, Sanford Angelos, analyzed the substance which had been purchased from the Harveys or seized at

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the ranch and determined that it was methamphetamine. He believed the equipment and chemicals seized at the Wahle Ranch would be capable of manufacturing several hundred pounds of methamphetamine.

Attorneys were appointed to represent the Harveys: James Wilson to represent Timothy, Gene LeBrun to represent James, and John Burnett to represent David. 1

The United States issued indictments on August 29, 1984. Each defendant pleaded not guilty. A superseding, fourteen-count indictment was issued on September 26, 1984. The indictment named Timothy in twelve counts, David in four counts, and James in four counts. Each of the defendants was charged with membership in a conspiracy to manufacture, distribute, and possess methamphetamine, 21 U.S.C. Secs. 841(a), 846; with possession with intent to distribute methamphetamine, 21 U.S.C. Sec. 841(a); with at least one count of travel in interstate commerce to carry on a business involving the manufacture and distribution of methamphetamine, 18 U.S.C. Sec. 1952; and with at least one count of the unlawful use of a communications facility, 21 U.S.C. Sec. 843(b). Additionally, Timothy was charged with conducting a continuing criminal enterprise (CCE), 21 U.S.C. Sec. 848, and distribution of methamphetamine, Sec. 841(a).

The Harveys pleaded not guilty to the charges against them. Thereafter, David, Timothy, and James twice moved for continuances. The district court granted the first set of motions for continuances. Before the court ruled on the second set, the Harveys entered pleas of guilty. On December 27, 1984, Timothy pled guilty to the twelve counts in the indictment naming him. On December 28, 1984, David and James pled guilty to every count naming them.

On February 8, 1985, the district court sentenced the Harveys. The court sentenced Timothy to thirty years under the CCE count, with the sentences under every other count to run concurrently with the thirty year sentence; David to consecutive sentences of five years on each of three counts and four years on one count for a total sentence of nineteen years; and James to consecutive sentences of five years on three counts and one concurrent sentence of four years on one count, for a total sentence of fifteen years.

On June 10, 1985, with new attorneys representing them, the Harveys filed the section 2255 motion presently before this Court.

II. PLEAS

A. Rule 11 Violations

The Harveys claim their guilty pleas were entered in violation of Rule 11 of the Rules of Criminal Procedure. 2

A violation of Rule 11 does not automatically command relief on collateral attack. Violations which are "formal violations" fail in this respect. See United States v. Timmreck, 441 U.S. 780, 783-84, 99 S.Ct. 2085, 2087-88, 60 L.Ed.2d 634 (1979). In Timmreck, the Supreme Court recognized that a formal violation of Rule 11 is cognizable on collateral attack only if it creates: (1) an error which is jurisdictional or constitutional; (2) a defect which results in a "miscarriage of justice;" (3) an omission inconsistent with the "rudimentary demands of fair procedure;" or (4) "extraordinary circumstances where the need for the remedy afforded the writ of habeas corpus is apparent." Id. at 783, 99 S.Ct. at 2087 (quoting Hill v. United States, 368 U.S.

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424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)); see also United States v. Patterson, 739 F.2d 191, 195 (5th Cir.1984).

The Harveys point first to the fact that the judge violated Rule 11 by not informing them at the plea hearing of the nature of the charges against them. 3 The Harveys cite a number of cases stating that Rule 11 requires the district court to inform the defendant of the nature of...

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