U.S. v. Bachynsky
| Decision Date | 25 June 1991 |
| Docket Number | No. 89-2742,89-2742 |
| Citation | 934 F.2d 1349 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Nicholas BACHYNSKY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard B. Kuniansky, Robert I. White, Chamberlain, Hrdlicka, White, Johnson & Williams, Houston, Tex., for defendant-appellant.
Michael Shelby, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., Thomas M. Gannon, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, POLITZ, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE and GARZA, Circuit Judges.
Today we consider whether there may be circumstances under which the harmless error provision of Rule 11(h), Federal Rules of Criminal Procedure, obviates the need to vacate a plea of guilty or nolo contendere even though, during the plea colloquy specified in Rule 11(c)(1) for determining the defendant's understanding of the maximum possible penalty provided by law, the district court fails totally to mention or explain the effect of any supervised release term to which the defendant is exposed. For the reasons set forth below, we respond affirmatively, concluding that a district court's total failure during the plea
colloquy to mention or explain the effect of supervised release does not automatically constitute a total failure to address a Rule 11 core concern, and thus does not automatically mandate reversal. Consequently, when a total failure to address supervised release is determined to constitute only a partial failure to address a core concern of Rule 11, the door is open to a determination of whether the district court's failure to explain the effects of supervised release affected the substantial rights of the defendant. It follows that when the district court's error in omitting the supervised release explanation is found not to have affected the defendant's substantial rights, the error may be considered harmless pursuant to Rule 11(h). Finding in the instant case that the district court's error was only a partial or less than perfect addressing of a Rule 11 core concern, which had no effect on Dr. Bachynsky's decision to plead guilty and thus did not affect his substantial rights, we reverse the decision of this court in United States v. Bachynsky (Bachynsky I), 924 F.2d 561 (5th Cir.1991), and remand this appeal to the panel which rendered that decision for further proceedings consistent with this opinion.
Defendant-Appellant Nicholas Bachynsky, B.A., M.A., Ph.D. and M.D., 1 was convicted on a plea of guilty for conducting the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. Sec. 1962(c), and for conspiring to defraud the Internal Revenue Service in violation of 18 U.S.C. Sec. 371.
Houston physician Bachynsky and his associates established phony weight loss and smoking cessation clinics throughout the United States. Dr. Bachynsky masterminded the scam in which the clinics performed innumerable unnecessary medical tests on patients, billing their insurance companies or, in the case of military personnel, the Department of Defense. The insurance carriers and the Department of Defense were also billed for tests that were never performed. As the medical insurance for most patients did not cover weight loss or smoking cessation programs, the clinics also submitted false diagnoses, treatments for which would qualify for insurance payments. The total monetary loss resulting from the scheme exceeded $15 million dollars.
In October of 1988, a federal grand jury in Houston returned an 87 count indictment against Dr. Bachynsky, his wife, his son, and eighteen other persons, on charges arising from the scheme to defraud insurance companies and the Department of Defense through submission of false medical insurance claims. Initially Dr. Bachynsky pled not guilty but, in January of 1989, following exhaustive plea negotiations, he entered a plea of guilty to Part A of Count 1, RICO, and Count 87, conspiracy to defraud the IRS. In exchange for Dr. Bachynsky's plea to those charges, the government agreed to dismiss all other counts against him.
Dr. Bachynsky's plea agreement stated, inter alia, that (1) he was entitled to plead not guilty and stand trial; (2) he was entering his plea freely, voluntarily and in the exercise of his own judgment; (3) he had received no promises of leniency or of any other nature, except for those contained in the plea agreement, to induce him to plead guilty; (4) he was neither threatened nor coerced into pleading guilty; and (5) he would have the opportunity to reject his plea if the court rejected any part of the plea agreement. That agreement also stated that Dr. Bachynsky was aware of the maximum penalties for both charges to which he was pleading guilty and was aware that the district court could impose the maximum sentence allowable under the law. The plea agreement provided further that no statement made by any person regarding
Dr. Bachynsky's sentence would be binding on the court, and that neither Dr. Bachynsky nor the government would request that the court impose a specific sentence or depart from the Sentencing Guidelines.
At Dr. Bachynsky's rearraignment and plea hearing, the district court informed him of the nature of the charges against him; stated the elements of each of the crimes to which he was pleading guilty; stated the maximum statutory penalty for each crime to which he was pleading guilty; and then asked if he understood the elements and penalties associated with each count. Dr. Bachynsky responded affirmatively. The district court also determined that Dr. Bachynsky understood the rights he waived by pleading guilty and the consequences of his plea. The court then accepted Dr. Bachynsky's plea of guilty.
Two sets of facts are central to our consideration of this case on appeal: First, at no time during the plea colloquy did the district court personally advise Dr. Bachynsky that his sentence could or would include a period of supervised release, or explain to Dr. Bachynsky the effect of supervised release. Second, throughout the extensive meetings, negotiations and exchanges which culminated in Dr. Bachynsky's plea agreement, he was represented by a leading member of the Texas Criminal Defense Bar who is well known to this court.
As a result of his plea, Dr. Bachynsky was eventually sentenced to 121 months (ten years and one month) of imprisonment and three years' of supervised release. 2 Thus the aggregate time of imprisonment and supervised release was thirteen years and one month. But let us assume, arguendo, that Dr. Bachynsky would (1) serve every day of his 121 months' prison term, (2) have his supervised release term extended from three years to five years pursuant to 18 U.S.C. Sec. 3583(d)(2), (3) have his supervised release revoked and be returned to prison on the last day of his supervised release term, and (4) serve every day of his additional time after revocation of supervised release. Even under that "worst case" hypothesis, the total period of elapsed time between his first day in prison and his last would be eighteen years and one month--twenty-three months short of the twenty years' maximum for Part A of Count 1 alone, and six years and eleven months short of the twenty-five years' consecutive statutory maximum--twenty years for Part A of Count 1 plus five years for Count 87. That is so because, despite the theoretically possible extension of his supervised release term from three to five years pursuant to 18 U.S.C. Sec. 3583(d)(2), in actuality Dr. Bachynsky could only be returned to prison for three years following revocation of supervised release rather than five years, because at the time of his sentencing, RICO was a Class B felony under 18 U.S.C. Sec. 3559, 3 and three years is the maximum period of incarceration for which a Class B felon may be returned to prison if his supervised release should ever be revoked. See 18 U.S.C. Sec. 3583(e)(3). For Count 87, a Class C felony, there is a limit of two years' additional incarceration following revocation of supervised release. But prison terms following revocation of supervised release are served concurrently, so three years is the maximum revocation term to which Dr. Bachynsky is exposed. 4
Dr. Bachynsky timely appealed his sentence claiming, inter alia, that the district court's failure to mention or explain supervised release and to inform him that he could be subjected to supervised release as part of his sentence constituted a complete failure to address a core concern of Fed.R.Crim.P. 11, mandating that his sentence be vacated and his case remanded to permit him to plead anew. 5 With palpable reluctance the panel of this court which heard Dr. Bachynsky's appeal agreed with him that prior Fifth Circuit decisions mandated the vacating of his sentence to permit him to plead anew because the district court had failed to mention supervised release or explain its effect on his maximum possible penalty. Following release of the opinion in Bachynsky I this court on its own motion voted to rehear the appeal en banc without oral argument.
The panel opinion in Bachynsky I correctly observed that this circuit interprets Rule 11 as addressing three core concerns: whether the guilty plea was coerced; whether the defendant understands the nature of the charges; and whether the defendant understands the consequences of his plea--and that, in this circuit, the trial court's total failure to address a core concern of Rule 11 in the plea colloquy mandates our vacating the defendant's conviction and remanding his case to the district...
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