U.S. v. Davis

• Decision Date: 09 January 1992
• Docket Number: Nos. 90-5859,91-7592,s. 90-5859
• Citation: 954 F.2d 182
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joel D. DAVIS, Defendant-Appellant (Two Cases).
• Court: U.S. Court of Appeals — Fourth Circuit

Page 182

954 F.2d 182

UNITED STATES of America, Plaintiff-Appellee, v. Joel D. DAVIS, Defendant-Appellant (Two Cases).

Nos. 90-5859, 91-7592.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 30, 1991.

Decided Jan. 9, 1992.

David Cohen, argued (Nathan Lewin, on brief), Miller, Cassidy, Larroca & Lewin, Washington, D.C., for defendant-appellant.

Barbara S. Sale, Asst. U.S. Atty. argued (Richard D. Bennett, U.S. Atty. and Peter M. Semel, Asst. U.S. Atty., on brief), Baltimore, Md., for plaintiff-appellee.

Before ERVIN, Chief Judge, WILKINS, Circuit Judge, and CHAPMAN, Senior Circuit Judge.

OPINION

ERVIN, Chief Judge:

Joel Davis was convicted in the District of Maryland of mail fraud and interstate travel in aid of racketeering. Subsequently, Davis pled guilty on a severed count of the same indictment, which charged conspiracy to murder an agent of the Internal Revenue Service. Following sentencing on all counts, Davis attempted to withdraw his guilty plea. The trial court denied his motion. Davis appeals this ruling, challenges the validity of a provision of the plea agreement, and appeals the sentence imposed upon him. We affirm the trial court on all issues.

I.

On September 2, 1985, the defendant, Joel Davis, was indicted on an eighteen count indictment charging him, inter alia, with the crimes of conspiracy to murder an Internal Revenue Service ("IRS") agent, 18 U.S.C. § 1117; mail fraud, 18 U.S.C. § 1341; and interstate transportation in aid of racketeering ("ITAR"), 18 U.S.C. § 1952. The mail fraud and ITAR charges arose out of an incident in which Davis had fraudulently recovered insurance proceeds by hiring an arsonist to destroy a summer bungalow colony owned and insured by Davis. Later, Davis attempted to hire a man to kill an IRS agent who had uncovered the arson scheme and various other criminal accounting practices undertaken by Davis.

At the time of the indictment Davis was residing in Israel, having moved his family there in August 1982, immediately after his coconspirator in both the arson and murder plots, Douglas Sanders, had been indicted by a Maryland grand jury. In February 1987, the United States began formal extradition proceedings against Davis. In October 1988, the District Court of Jerusalem ordered the defendant's extradition for trial in the United States for the crimes of conspiracy to murder, one count of mail fraud, and arson (which was how the Israeli courts interpreted the ITAR charge). Davis was returned to the United States on November 1, 1989.

Upon his return, Davis successfully moved for the murder conspiracy count to be severed from the other charges. Trial commenced on the mail fraud and ITAR counts on May 14, 1990. The chief witness in the Government's case was Sanders, who had acted as middleman between Davis and the hired arsonist. After Sanders' testimony, the defense sought to introduce the testimony of a clinical psychologist who, the defense proffered, would testify as to the psychological characteristics of "defective delinquency," a condition for which Sanders had earlier been diagnosed. A supposed characteristic of the condition was a propensity to lie. The trial court rejected the testimony, ruling that the jury was sufficiently competent to assess Sanders' truthfulness without the aid of an expert.

On June 1, 1990, the jury returned guilty verdicts on both charges. After the jury was dismissed, the court set a trial date for the remaining murder conspiracy charge; the court imposed no sentence on the other charges at this time. The testimony of Sanders again figured to be important to the prosecution in the murder conspiracy case, because Sanders had also allegedly served as middleman between Davis and his hired killer. At a pre-trial hearing on July 10, 1990, the defense again proffered the testimony of the clinical psychologist. The court rejected the testimony "on the basis that was expressed in the first trial."

On the morning of the trial date, Davis pled guilty to the murder conspiracy charge. On November 8, 1990, Davis was sentenced to 15 years of imprisonment on the murder conspiracy count and 3 years each on the mail fraud and ITAR counts to run consecutive to the murder count but concurrent with each other. Davis filed a timely notice of appeal of his sentence. After sentencing, Davis retained new counsel. On December 21, 1990, Davis filed a motion to withdraw his guilty plea. The trial court denied his motion. Davis appeals that decision, and that appeal is consolidated with his earlier appeal of his sentence for present consideration by this court.

II.

Federal Rule of Criminal Procedure 32(d) allows a defendant to withdraw a plea of guilty prior to sentencing for "any fair or just reason." However, after the imposition of sentence, a guilty plea may only be set aside on direct appeal or pursuant to a motion under 28 U.S.C. § 2255. After sentencing, the defendant must prove that failure to allow withdrawal of the guilty plea would result in a "miscarriage of justice." See, e.g., United States v. Allard, 926 F.2d 1237 (1st Cir.1991).

In the present case, Davis wisely does not undertake to prove that the refusal to allow him to rescind his guilty plea has resulted in a miscarriage of justice. Instead, Davis' argument is that the guilty plea was void from its inception, having failed to meet the requisite standard of voluntariness under Federal Rule of Criminal Procedure 11 ("The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats....").

Under the defense's theory, the trial court's evidentiary ruling, rejecting the testimony of the defense's proffered expert in clinical psychology, had deprived Davis of his "most potent line of defense" in the murder conspiracy case. Furthermore, Davis was precluded from seeking appellate review of the ruling because the trial court had made the ruling based on the same reasoning as had been articulated in the earlier case. Since Davis had not yet been sentenced in the earlier case, there was no final judgment which would enable Davis to appeal the ruling. According to Davis, the existence of a nonappealable evidentiary ruling, which foreclosed a potentially effective defense, exerted impermissible pressure on him to plead guilty to the murder conspiracy charge, thereby rendering his plea involuntary.

There is a significant problem with Davis' argument. As Davis concedes in his brief, a defendant has no right to interlocutory review of an adverse ruling on a pre-trial evidentiary motion. Davis attempts to distinguish his situation, arguing that the importation of the evidentiary ruling from the first trial to the second trial resulted in an "effective reunification of the two severed trials," which served to prejudice his position. This argument, though novel, is without merit. The only thing revealed by the record is that the trial judge, in Davis' two separate cases, was confronted with an identical legal question. Not surprisingly, the trial judge, on both occasions, ruled the same way, for the same reasons. Davis had no more right to an interlocutory appeal the second time than he did the first, and no more right than any other defendant to an interlocutory appeal of a pre-trial evidentiary ruling.

In confronting the choice of whether to plead guilty to the murder conspiracy charge or go to trial to preserve the evidentiary issue, Davis did not face a decision different from that of any other defendant faced with an adverse pre-trial ruling. The Supreme Court has held that a guilty plea is valid where it "represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). The transcript of the Rule 11 proceeding in this case reveals that the trial court made a completely satisfactory effort to ensure that Davis' plea was voluntary and not, in any way, the product of coercion. In the absence of any compelling reason to override the court system's legitimate concern regarding the finality of judgments, Davis should not be allowed to withdraw his plea.

III.

Next, Davis argues that a provision of his plea agreement on the murder conspiracy charge was invalid, thereby tainting the entire plea agreement. Specifically, Davis challenges the validity of a provision of the agreement in which he waived his right to appeal his earlier convictions for mail fraud and ITAR.

First, Davis argues that waivers of appellate rights within a plea agreement are per se improper. On this issue, Davis' contentions are directly contradictory to the recent decisions of this court in United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.1990) ("It is clear that a defendant may waive in a valid plea agreement the right of appeal ... "), and United States v. Wessells, 936 F.2d 165 (4th Cir.1991). Davis attempts to distinguish his situation on the grounds that in this case, he attempted to waive his appellate rights in an entirely different case from the one for which the plea agreement was being negotiated. This distinction is without substance. Wiggins is based on the solid proposition that waiver of the statutorily created right to...