U.S. v. Bond, 94-60771

• Decision Date: 27 June 1996
• Docket Number: No. 94-60771,94-60771
• Citation: 87 F.3d 695
• Parties: 44 Fed. R. Evid. Serv. 1277 UNITED STATES of America, Plaintiff-Appellee, v. Lemmuel Amon BOND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 695

87 F.3d 695

44 Fed. R. Evid. Serv. 1277

UNITED STATES of America, Plaintiff-Appellee, v. Lemmuel Amon BOND, Defendant-Appellant.

No. 94-60771.

United States Court of Appeals,

Fifth Circuit.

June 27, 1996.

Lemmuel A. Bond, Florence, CO, pro se.

N. Scott Fletcher (Court-appointed), Vinson & Elkins, Houston, TX, for appellant.

James L. Turner, Paula C. Offenhauser, Asst. U.S. Attys., Gaynelle G. Jones, U.S. Atty., Houston, TX, for appellee.

Appeal from the United States District Court For the Southern District of Texas.

Before GARWOOD, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This case concerns a defendant's attempt to withdraw a guilty plea he entered before fleeing the country. The district court refused to allow the defendant to withdraw the plea. We affirm.

I

In 1990, federal law enforcement officials began investigations into a drug ring centered in part around a man named Sergio Duque. Using a confidential informant, the DEA arrested several members of the ring who had delivered over 300 kilograms of cocaine to a truck stop in Texas. At about that time the DEA seized a Suburban, a cellular phone, and several miscellaneous weapons. The defendant, Lemmuel Bond, turned himself in a few days after the arrests. Almost immediately, the DEA initiated administrative proceedings to forfeit the Suburban and cellular phone; later proceedings included the weapons as well.

A grand jury indicted Bond for conspiracy to possess and actual possession of more than five kilograms of cocaine. Bond initially pled not guilty. On December 19, 1990, Bond met with several DEA and IRS agents. The meeting centered on Bond's offer to serve as a government undercover informant in return for leniency. Bond's counsel was not present at the meeting. Nine days later, the DEA declared the suburban forfeited. The forfeiture papers recited that the DEA had received no claims upon the vehicle, listed the owner as one "Joseph B. Robles," and declared the property forfeited pursuant to 21 U.S.C. § 881.

On January 10, 1991, Bond was rearraigned and pled guilty to the conspiracy count of the indictment. The plea agreement consisted of a written document and several terms memorialized only by oral statements from the Assistant United States Attorney to the district court. The written agreement required Bond to plead guilty to conspiracy and the government to dismiss the possession count, stipulate that Bond had accepted responsibility, and recommend a sentence at the bottom of the guidelines range. At the plea colloquy, the AUSA also asked the court to release Bond on a surety bond to allow him to participate in an undercover operation. The AUSA stated that "if [Bond] is able to provide substantial assistance to the government[,] we will file a motion 5K1 under the guidelines for a downward departure at the time of sentencing." The district court gave a standard set of admonishments to Bond; on the subject of the expected sentence, the court stated only as follows: "[T]he maximum theoretical imprisonment is ten years up to life and up to a $4 million fine and at least five years of supervised release." The court did specifically mention the statutory minimum sentence.

Bond was released on bond and began cooperating with the government. He completed a meeting with Duque in New York City and verified a few pieces of information regarding the Duque organization. On January 18, the DEA declared that the cellular telephone seized in the arrest was forfeited; this forfeiture declaration listed Bond as the phone's owner and the basis of the forfeiture as 21 U.S.C. § 881.

The probation office had completed a Pre-Sentence Report by February 23, 1991. Objections were then due by March 5, and sentencing set for April 11. Before the sentencing date, Bond fled the United States. Some two years after his flight, Bond made an audio tape and sent it to officials in the United States; the tape included various allegations of misconduct by law enforcement officials, and suggested that Bond fled because he feared that he would be murdered by members of a Colombian drug organization. Bond remained abroad until he was arrested in June of 1993 in Honduras and brought back to the United States. While Bond was abroad, the DEA issued notice that the miscellaneous weapons seized at the drug arrests had been forfeited as abandoned. The notice listed Bond as the weapons' owner.

One month later, Bond filed the first of four eventual motions to withdraw his guilty plea. In toto, the motions made the following allegations and arguments in support of the request to withdraw the plea:

1. The government breached its obligations under the plea agreement by failing to enroll Bond and his family in the federal witness protection program, and by failing to otherwise protect Bond and his family from imminent threats from Colombian drug organizations. Bond's flight resulted from this fear. The government also anticipatorily breached its obligations under the plea bargain by announcing its intention not to file a motion under U.S.S.G. § 5K1.1 for a downward departure.

2. Government law enforcement agents coerced Bond into lying to other agents and to the district court with threats of violence to his person and of prosecution of his family made at the December 19, 1990 meeting, which was conducted in violation of Bond's right to counsel.

3. The court should exercise its discretion to allow Bond to withdraw the plea because it was made promptly upon his recapture, and because Bond was factually innocent of the charges.

4. The district court failed to comply with Fed.R.Crim.P. 11 because it did not inform Bond of the statutory minimum sentence attending the conspiracy charge.

A magistrate judge held a hearing upon the motion to withdraw the plea. At the hearing, the magistrate initially admitted into evidence, over the government's objection that it was hearsay, a transcript of the tape Bond made while abroad. The magistrate also heard testimony of several law enforcement officers familiar with Bond's case. The officers uniformly testified that while the government had promised to protect Bond, it had never promised to put him in the federal witness protection program, and that Bond had at no time expressed a fear that he was in imminent danger of harm from any source. Each officer agreed that Bond had cooperated up until his flight, but that he had generated no information of value at that time. All testified that they had not threatened Bond in any way. Because of the passage of time, no officer was able to remember a specific phone conversation during which he or she had obtained the permission of Bond's attorney to conduct the December 19 meeting in counsel's absence, but each would have obtained such permission before conducting the meeting, and each thought that counsel had consented. Bond called his previous attorney, who testified that he could not remember specifically giving permission for the December 19 meeting to occur, but that he had at one point before Bond's guilty plea given agents permission to interview Bond without counsel. The attorney also stated that he would have wanted to be present at an interview like that held on December 19. Also in his case in chief, Bond introduced notes of the December 19 meeting and another government document suggesting that the officers had discussed the federal witness protection program with Bond and that Bond had initially demanded that he and his family be placed in it.

After calling all other witnesses, Bond's counsel attempted to elicit a ruling from the magistrate judge that if Bond took the stand to testify as to the terms of his plea bargain, he would not be subject to government questioning regarding his plea of actual innocence. In response, the magistrate stated that if Bond took the stand, he would be forced to answer questions regarding any and all grounds in his motion to withdraw, and that he could avoid questioning about his role in the underlying drug transaction only if he abandoned his claim of actual innocence. Bond did not testify.

The magistrate issued a report recommending that Bond's motion be denied. In its report, the magistrate reversed the earlier ruling admitting the transcript of the tape Bond made while a fugitive, explaining that the decision to admit had been based upon the mistaken assumption that Bond would take the stand and that the government on cross-examination would attempt to show that Bond's stated reasons for flight were recent fabrications. In the absence of the transcript of the tape, the magistrate found no evidence in the record supporting Bond's allegations of a breach of the plea agreement or misconduct by government agents. The magistrate found that failing to inform Bond of the minimum prison sentence was harmless error in that Bond would have pled guilty after a complete Rule 11 colloquy. The magistrate found that federal agents had in fact obtained the permission of Bond's attorney to conduct the December 19 meeting with Bond in counsel's absence. Finally, the magistrate refused to exercise its discretion to allow Bond to withdraw his plea, relying on the total absence of evidence in the record to support Bond's innocence, the delay of well over two years in filing the motion, and Bond's flight.

Bond filed objections to the magistrate judge's report together with a motion to dismiss the indictment based on double jeopardy principles. The motion alleged that Bond had not received notice of the forfeiture of the Suburban, the cellular phone, or the miscellaneous weapons, and that forfeiture of these items constituted prior jeopardy. The district court denied the motion. The court also found that Bond had not rendered substantial assistance to the government in that his activities had resulted in no arrests, indictments, convictions, or seizure of property. After adopting the report and recommendations of the...