In re Sealed Case

• Decision Date: 22 March 2002
• Docket Number: No. 00-3123.,No. 00-3124.,00-3123.,00-3124.
• Citation: 283 F.3d 349
• Parties: In re: SEALED CASE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

283 F.3d 349

In re: SEALED CASE.

No. 00-3123.

No. 00-3124.

United States Court of Appeals, District of Columbia Circuit.

Argued December 7, 2001.

Decided March 22, 2002.

As Amended March 29, 2002.

Appeals from the United States District Court for the District of Columbia (No. 96cr00106-01) (No. 97cr00093-01).

Neil H. Jaffee, Assistant Federal Public Defender, argued the cause for the appellant. A.J. Kramer, Federal Public Defender, was on brief.

Patricia A. Heffernan, Assistant United States Attorney, argued the cause for the appellee. Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher, William J. O'Malley, Jr. and James H. Dinan, Assistant United States Attorneys, were on brief for the appellee.

Before: EDWARDS, HENDERSON and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

This consolidated appeal arises from two criminal proceedings involving the appellant. In Cr. No. 96-106-01, the appellant was convicted by a jury of possessing with intent to distribute cocaine base; in Cr. No. 97-93-01, he pleaded guilty to a drug conspiracy charge pursuant to a plea agreement. The two cases were consolidated for sentencing and appeal (Nos. 00-3123 and 00-3124). On appeal, the appellant seeks to vacate his guilty plea in Cr. No. 97-93-01, claiming that the district court did not comply with Rule 11(c)(1) of the Federal Rules of Criminal Procedure. In particular, he contends that the district court failed to ensure that he understood the elements of the conspiracy charge to which he was pleading guilty. If the Rule 11 plea colloquy is deficient, the appellant further contends, the waiver provision of the plea agreement — which would otherwise bar his appeal of the jury trial conviction in Cr. No. 96-106-01 — is ineffective. His conviction after trial should be reversed, he asserts, because (1) the district court gave a constitutionally deficient reasonable doubt instruction to the jury and (2) the prosecutor made several errors which cumulatively constitute "plain error." We conclude that the district court accepted the appellant's guilty plea in compliance with Rule 11 and, accordingly, affirm the appellant's convictions in both cases.

I.

On April 4, 1996 a one-count indictment was filed in Cr. No. 96-106-01 charging the appellant with possessing with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). His jury trial began on October 16, 1996 and the jury convicted him on October 21, 1996. Before sentencing, the appellant decided to cooperate with the government in an attempt to reduce his sentencing exposure. Subsequently, on March 4, 1997, the government filed in district court a one-count information, in Cr. No. 97-93-01, charging the appellant with conspiracy to distribute and to possess with intent to distribute one hundred kilograms or more of cannabis and five or more grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. The conspiracy, which was alleged to have begun in 1990 and continued until September 1996, included the offense conduct set forth in Cr. No. 96-106-01 as one of the overt acts in furtherance thereof. On the same day the information was filed, the appellant signed a plea agreement and entered a guilty plea to the information. According to the plea agreement, he agreed to cooperate with the government in return for the government's promise to dismiss charges against him in two pending District of Columbia Superior Court cases and, depending on his level of cooperation, to file a "substantial assistance" downward departure motion. United States Sentencing Commission, Guidelines Manual, § 5K1.1 (Nov. 2001).

The appellant failed to appear for sentencing in the consolidated cases and a bench warrant was issued. After his arrest on the warrant and his counsel's withdrawal, his new lawyer filed a motion to withdraw the guilty plea on the ground of ineffective assistance of counsel. The district court held a hearing and on July 12, 2000 denied the motion. It sentenced the appellant to concurrent sentences of 151 months in each case and ordered him to serve supervised terms of release of three years in Cr. No. 96-106-01 and four years in Cr. No. 97-93-01. The appellant filed a timely notice of appeal in each case and on June 28, 2001 this court granted his motion to consolidate.

II.

The appellant first asks this court to vacate his guilty plea on the ground that the district court accepted his plea in violation of Rule 11 of Federal Rules of Criminal Procedure. He contends that although the district court informed him of the charge, it failed to detail the elements of the crime of conspiracy and, consequently, did not ascertain that he understood the nature of the charge to which he was pleading guilty. Accordingly, he argues that the guilty plea proceeding did not comply with Fed.R.Crim.P. 11(c)(1) and his plea must be vacated. Ordinarily, if Rule 11 error occurs during a plea hearing, the government bears the burden of demonstrating that the error was harmless. See Fed.R.Crim.P. 11(h) ("[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded"); see also United States v. Lyons, 53 F.3d 1321, 1322 n. 1 (D.C.Cir. 1995). If the defendant allows an alleged error to pass without objection, however, he then assumes the burden of meeting the more exacting plain error requirement of Rule 52(b), Fed.R.Crim.P. 52(b). See United States v. Vonn, ___ U.S. ___, 122 S.Ct. 1043, 1048, 152 L.Ed.2d 90 (2002). Because the appellant made no objection at the plea hearing, he has the burden to show that the district court's alleged Rule 11 violation implicated "substantial rights" and that the error "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." See United States v. Olano, 507 U.S. 725, 734-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Entry of a guilty plea is governed by Rule 11, Fed.R.Crim.P., which provides in relevant part:

Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:

(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law....

Fed.R.Crim.P. 11(c)(1). Regarding the requirement to inform the defendant of "the nature of the charge," we have adopted a standard mandating that the court "have a colloquy with the defendant that would lead a reasonable person to believe that the defendant understood the nature of the charge." United States v. Dewalt, 92 F.3d 1209, 1212 (D.C.Cir.1996) (quoting United States v. Frye, 738 F.2d 196, 201 (7th Cir.1984)). We look to the "totality of the circumstances" to determine if the plea was properly accepted. See, e.g., United States v. Liboro, 10 F.3d 861, 865 (D.C.Cir. 1993). In addition to the judge's inquiry, the circumstances we consider include: the defendant's level of intelligence; whether he was represented by counsel; the complexity of the charge against him; and his own statements at the plea hearing. See United States v. Musa, 946 F.2d 1297, 1304 (7th Cir.1991) (cited approvingly in Dewalt, 92 F.3d at 1212).

Rule 11 prescribes a procedure "`designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary ... [and] to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination.'" Dewalt, 92 F.3d at 1211-12 (quoting McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)). A guilty plea is not "voluntary in the sense that it constitute[s] an intelligent admission that [the defendant] committed the offense unless the defendant received `real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.'" Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) (citations omitted). The Supreme Court also recognized that each case presents its own facts and, as a consequence, declined to delineate a specific procedure for a trial court to follow beyond the language of the rule itself, observing that "[i]n all such inquiries, [m]atters of reality, and not mere ritual should be controlling." McCarthy v. United States, 394 U.S. at 467 n. 20, 89 S.Ct. at 1171 n. 20 (internal quotations omitted).

During the plea colloquy, in response to the district court's inquiries, the appellant stated that he was twenty-two years old, had an eleventh-grade education and had no difficulty communicating in English. 3/4/97 Tr. at 2. He also affirmed that he had been allowed sufficient time to discuss the plea with his lawyer and that he was satisfied with his lawyer's services. Id. at 3. The court then asked if he understood that he was "charged with conspiracy to distribute and to possess with intent to distribute one hundred kilograms or more of cannabis and five or more grams of cocaine base?" Id. at 5. The appellant replied "yes." Id. at 6. Later, the court inquired, "Did you, as charged in this information, ... conspire with [the co-conspirators] and other people to distribute and possess with intent to distribute a large quantity of marijuana and crack cocaine?" Id. at 10-11. The appellant initially responded "just marijuana, sir." The district court then asked, "I beg your pardon?" The appellant responded, "It wasn't crack cocaine. I didn't conspire with them on crack cocaine." 3/4/97 Tr. 10-11 (emphasis added). After the appellant conferred with his lawyer, the district court then repeated the question and the appellant responded "yes."¹ That he used the word "conspire" to describe (and minimize) his...