U.S. v. Bachynsky

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Before GARWOOD and WIENER, Circuit Judges, and VELA; WIENER
• Citation: U.S. v. Bachynsky, 949 F.2d 722 (5th Cir. 1991)
• Decision Date: 13 December 1991
• Docket Number: No. 89-2742,89-2742
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nicholas BACHYNSKY, Defendant-Appellant.

Page 722

949 F.2d 722

UNITED STATES of America, Plaintiff-Appellee, v. Nicholas BACHYNSKY, Defendant-Appellant.

No. 89-2742.

United States Court of Appeals Fifth Circuit.

Dec. 13, 1991.

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.

ON REMAND FROM THE EN BANC COURT

Before GARWOOD and WIENER, Circuit Judges, and VELA, District Judge. ^*

WIENER, Circuit Judge:

Dr. Bachynsky is before this panel a second time, now on remand from an en banc decision of this court. United States v. Bachynsky, 934 F.2d 1349 (5th Cir.1991) (Bachynsky en banc ). The original opinion of this panel reversed the judgment of the district court, vacated the defendant's sentence and remanded the case to permit Dr. Bachynsky to plead anew. We did so because under this circuit's prior jurisprudence the district court's failure to mention and explain the effect of supervised release was deemed a total failure to address a core concern of Fed.R.Crim.P. 11(c), mandating such a result. United States v. Bachynsky, 934 F.2d 561 (5th Cir.1991) (Bachynsky I ). Upon reconsideration en banc, this court vacated its earlier decision and held that such an omission was only a partial failure to address a Rule 11 core concern and was thus subject to the harmless error provisions of Rule 11(h). Finding only harmless error in the district court's partial failure, the en banc court remanded the case to this panel for consideration of those of Dr. Bachynsky's assignments of error which this panel did not reach in our original opinion in Bachynsky I.

I.

The facts of this case are fully developed in the original panel opinion, and we adopt them as set out there. Bachynsky I, 924 F.2d at 563-64.

II.

In his original brief, Bachynsky asserted numerous points of error concerning the district court's (a) acceptance of his guilty plea and (b) imposition of his sentence. We now address each of those categories of alleged error.

A. The Guilty Plea

Bachynsky argues that because the district court did not give him all of the advice or information required by various provisions of Fed.R.Crim.P. 11 before accepting his guilty plea, it should be vacated and he should be allowed to plead anew. We will address in turn each point of error alleged to have tainted the defendant's guilty plea.

1. Violation of Rule 11(c)(3) ¹

Dr. Bachynsky posits that the district court violated Rule 11(c)(3) by failing to advise him that he (1) had the right to plead not guilty and persist in that plea, and (2) could not be compelled to incriminate himself by pleading guilty. After reviewing the record of the Rule 11 plea hearing, we find that any omissions by the district court were at most, partial failures to address Rule 11 requirements, and that Bachynsky's substantial rights were not prejudiced by the errors. Cf. United States v. Guichard, 779 F.2d 1139, 1142 (5th Cir.1986) (failure to mention defendant's right to confront witnesses was not an entire failure to address a core concern of Rule 11). Therefore, the court's omissions were harmless.

First, the plea agreement signed by Dr. Bachynsky stated expressly that he was entitled to plead not guilty and go to trial. At the Rule 11 hearing, Dr. Bachynsky answered affirmatively when the district court asked whether he understood that he had the right to go to trial before a jury and that if he persisted in a guilty plea, he gave up that right. At that time, the court also informed Dr. Bachynsky that by pleading guilty he waived the right to decline to testify in this case.

Although we agree that the district court did not express the talismanic words that Dr. Bachynsky was entitled to plead not guilty and that he could not be compelled to incriminate himself, such admonitions were implicit in the court's discussion of the rights that Dr. Bachynsky would lose if he pled guilty. A verbatim reading of Rule 11(c)(3) to the defendant is not required as long as the defendant understands the rights he forfeits by pleading guilty. See United States v. Dayton, 604 F.2d 931, 938 (5th Cir.1979) (en banc). When deciding if a partial failure to comply with a provision of Rule 11 requires reversal, we look to whether the court sufficiently determined that the defendant understood the direct consequences of his plea, including his waiver of certain constitutional rights. United States v. Caston, 615 F.2d 1111, 1116 (5th Cir.1980). The record in this case supports the district court's determination that Dr. Bachynsky understood which constitutional rights he retained and which he waived by pleading guilty.

Furthermore, Dr. Bachynsky never explains to this court how he was prejudiced by the district court's failure to advise him on these points. Generally, we hesitate to find that a defendant's substantial rights were affected when he fails to specify just what prejudice he has suffered as a result of the alleged infringement of a right. See Caston, 615 F.2d at 1115-16 (where defendant rests on "per se" violation of Rule 11 and does not claim any prejudice by the error, "the error is harmless beyond a reasonable doubt and does not merit reversal"). Given Dr. Bachynsky's extensive education, professional background and capable trial representation, as well as the contents of the plea agreement and the protracted negotiations with the government which led to the confection of that agreement, ² any failure by the judge to encant the exact language of the rule is, at most, harmless error, if it be error at all, see Dayton, 604 F.2d at 938, particularly in light of the doctor's failure to point to any prejudice produced by such omission.

2. Violation of Rule 11(c)(5) ³

Dr. Bachynsky also complains that the district court failed to advise him that he might be questioned about his offense, under penalty of perjury, as required by Rule 11(c)(5). He cites United States v. Almaguer, 620 F.2d 557, 559 (5th Cir.1980), cert. denied, 452 U.S. 907, 101 S.Ct. 3034, 69 L.Ed.2d 408 (1981), for the proposition that such an error requires automatic reversal. But Dr. Bachynsky misinterprets both Almaguer and Rule 11(c)(5).

In Almaguer, the trial court's only mention of perjury came during its discussion with the defendant about the consequences he faced if he perjured himself at trial. The defendant in that case could have misconstrued the court's warning to mean that any answer he gave at the plea hearing could not be subject to a prosecution for perjury. That was not the situation in the instant case. In the court's colloquy with Dr. Bachynsky, he was specifically warned that any answers he gave during the plea hearing could result in further prosecution for perjury if his answers should be found to be false. Moreover, this court vacated the holding in Almaguer, relying instead on the holding in Caston, 615 F.2d at 1116, that automatic reversal was not warranted for Rule 11(c)(5) violations. We found instead that the failure of the district court to admonish Almaguer concerning the consequences of answering falsely at the hearing was harmless error because the defendant did not demonstrate any prejudice resulting from that omission. United States v. Almaguer, 632 F.2d 1265, 1266-67 (5th Cir.1981) (panel rehearing). Furthermore, the plain wording of Rule 11(c)(5) only requires that the court warn the defendant that if he is questioned about the offense at the plea hearing, any false answers he gives may subject him to a prosecution for perjury.

In the instant case, the court never questioned Dr. Bachynsky about any of the offenses to which he ultimately pleaded guilty, and Dr. Bachynsky has never been prosecuted for perjury or making a false statement. Absent any questioning by the court about the offenses, and absent prosecution of Dr. Bachynsky for perjury, the district court's alleged violation of Rule 11(c)(5) could not have prejudiced Dr. Bachynsky. Accord Id.; Caston, 615 F.2d at 1116. We find that the district court did not fail to address the requirements of Rule 11(c)(5), but that even if it had, such failure would have been harmless.

3. The "Secret Plea Agreement"

Dr. Bachynsky claims that he was induced to plead guilty by secret prosecutorial promises of leniency toward members of his family. He argues that this secret agreement was concealed from the court in violation of Rule 11(e)(2), and that, therefore, the district court was prevented from making an informed decision under Rule 11(d) concerning the voluntariness of Dr. Bachynsky's plea.

Before we may consider the merits of a defendant's claim on direct appeal, that claim must have been presented to the district court. See United States v. Corbett, 742 F.2d 173, 178 (5th Cir.1984) (defendant could not raise issue for first time on appeal that unfulfilled prosecutorial promise induced defendant to plead guilty); United States v. Hay, 685 F.2d 919, 921 (5th Cir.1982). Although the government does not specifically deny that such a promise was made, it contends that there is no evidence in the record to show that Dr. Bachynsky ever raised this issue in the district court. After reviewing the entire record, paying particular attention to the transcripts of Dr. Bachynsky's plea hearing and sentencing hearing, we agree with the government. Dr. Bachynsky failed adequately to present this claim to the district court.

First, the plea agreement signed by Dr. Bachynsky states that his guilty plea was voluntarily given and that he had "received no promises of leniency, or of any other nature than these made a part of this pleading" from any person to induce him to plead guilty. Second, at the plea hearing, the court asked Dr. Bachynsky if there were any...