U.S. v. Baramdyka

• Decision Date: 10 September 1996
• Docket Number: 95-55066,Nos. 94-50051,s. 94-50051
• Parties: 96 Cal. Daily Op. Serv. 6741, 96 Daily Journal D.A.R. 11,041 UNITED STATES of America, Plaintiff-Appellee, v. Frankell Ivan BARAMDYKA, Defendant-Appellant. Frankell Ivan BARAMDYKA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 840

95 F.3d 840

96 Cal. Daily Op. Serv. 6741, 96 Daily Journal

D.A.R. 11,041

UNITED STATES of America, Plaintiff-Appellee, v. Frankell Ivan BARAMDYKA, Defendant-Appellant.

Frankell Ivan BARAMDYKA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Nos. 94-50051, 95-55066.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 20, 1995.

Decided Sept. 10, 1996.

Laura P. Gordon, San Diego, California, for defendant-appellant.

Mary A. Schneider and Bruce R. Castetter, Assistant United States Attorneys, San Diego, California, for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of California Howard B. Turrentine, District Judge, Presiding; Nos. CR-86-01077-HBT, CV-94-01316-HBT.

Before POOLE and O'SCANNLAIN, Circuit Judges, and MARSH, ^* District Judge.

MARSH, District Judge:

Appellant was charged in four counts of a 12-count, 18-defendant indictment, with conspiracy to import and distribute cocaine in violation of 21 U.S.C. §§ 952, 960 and 963 (count 1), conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 846 (count 2), conspiracy to transport monetary instruments in excess of $10,000 without filing reports required by law in violation of 18 U.S.C. § 371, 31 U.S.C. §§ 5316 and 5322 (count 3) and travel in interstate commerce with the intent to carry on an unlawful activity (violations of 21 U.S.C. § 952, 960, 963, 846, 841(a)(1)) in violation of 18 U.S.C. § 1952(a)(3) (count 8). The government alleged that Baramdyka was the "head of a large scale drug trafficking organization" which was responsible for the importation and distribution of approximately 1,000 kilograms of cocaine into the United States from Colombia between approximately July of 1984 and May of 1985.

Prior to indictment, but shortly after learning that charges were imminent, Baramdyka left the United States with his family and moved to Chile. On March 10, 1987, the United States government made a request to Chile for extradition of Baramdyka on counts 1, 2, 3 and 8. On May 14, 1987, Baramdyka was arrested by Chilean authorities and placed in custody. On November 30, 1987, the Chilean Supreme Court issued an order authorizing Baramdyka's extradition on counts one and two only. Baramdyka was transferred to the Southern District of California pursuant to the Chilean Supreme Court's extradition order on May 6, 1993. Baramdyka contends that, although he did not contest extradition, at least three years of the time he spent in Chilean custody was on account of the extradition hold. The government contends that Baramdyka was transferred to the United States following the service of his sentence on unrelated charges filed by the Chilean government.

On May 12, 1989, while Baramdyka was in Chilean custody, the government seized numerous items of evidence including $427,000 in cash from the defendant's California home. These items, including the cash, were forfeited to the government pursuant to 21 U.S.C. § 881(a)(3). The government contends that this seizure was accomplished administratively and that Baramdyka failed to file any claim of interest to the property. The government further alleges that it has been unable to locate relevant files from the Customs Office. Baramdyka contends that the forfeiture was judicial and that he did contest the proceeding because one record indicates that a petition for remission was filed and rejected.

On September 7, 1993, Baramdyka entered a plea of guilty to counts 1 and 8 of the indictment. In return for this plea, the government agreed to dismiss counts 2 and 3 and further agreed to recommend a sentence of 8 years custody for count 1 and 5 years consecutive probation for count 8. ¹ As part of his plea agreement, Baramdyka agreed to waive his right to appeal his conviction and On December 6, 1993, The Honorable Howard Turrentine followed the government's recommendation and sentenced the defendant to eight years custody on count 1 with eligibility for parole under 18 U.S.C. 4205(b) and 5 years consecutive probation on count 8. Judge Turrentine expressly considered the fact that Baramdyka had spent time in Chilean custody "on another count" in reaching this sentence.

sentence so long as the court did not impose a sentence any greater than that recommended by the government. The plea agreement also provided that Baramdyka was free to request credit for time served in Chilean custody. The sentencing hearing transcript indicates that Baramdyka sought credit and argued that the conditions of his confinement in Chile were relevant to his sentencing on the U.S. charges.

Baramdyka filed a timely notice of appeal.

On August 29, 1994, Baramdyka filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2255 alleging that he received ineffective assistance of counsel and arguing that his conviction on count 8 violated the Chilean Supreme Court's extradition order. Baramdyka argued that his attorney failed to inform him of the fact that he could not be prosecuted for the crime charged in count 8 because the Chilean extradition order was limited to counts 1 and 2. Baramdyka sought to withdraw his plea based upon this alleged defect. Judge Turrentine denied this petition by written order on November 1, 1994, finding that Baramdyka lacked standing and because the U.S. government had included count 8 in its request for extradition.

DISCUSSION

1. Waiver of Appeal

Waiver of a statutory right to appeal is reviewed de novo. United States v. Bolinger, 940 F.2d 478, 479 (9th Cir.1991).

A defendant may waive a statutory right to appeal his sentence. United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir.1990), cert. denied, 503 U.S. 942, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992). However, an express waiver of the right to appeal is valid only if knowingly and voluntarily made. Bolinger, 940 F.2d at 480. This court looks to the circumstances surrounding the signing and entry of the plea agreement to determine whether the defendant agreed to its terms knowingly and voluntarily. Id. In reviewing a waiver of appeal, we must also focus also upon the language of the waiver to determine its scope. See e.g. United States v. Johnson, 67 F.3d 200 (9th Cir.1995). Further, we have recognized that the waiver of a right to appeal may be subject to certain exceptions such as claims involving a breach of the plea agreement, racial disparity in sentencing among codefendants or an illegal sentence imposed in excess of a maximum statutory penalty. See Id, at 202, n. 4 (citations omitted); see also United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.1995) (waiver of appeal does not preclude claim that restitution exceeded statutory authority); United States v. Attar, 38 F.3d 727, 732 (4th Cir.1994) (waiver of appeal subject to limited exceptions), cert. denied, --- U.S. ----, 115 S.Ct. 1957, 131 L.Ed.2d 850 (1995). At least one court has noted that proper enforcement of appeal waivers serves an important function in the judicial administrative process by "preserv[ing] the finality of judgments and sentences imposed pursuant to valid plea agreements." United States v. Rutan, 956 F.2d 827, 829 (8th Cir.1992).

Baramdyka waived any appeal of his sentence or "any other grounds as long as the Court does not impose a period of imprisonment greater than that recommended by the Government." By entering such a broad waiver, Baramdyka expressly waived the right to appeal his conviction and sentence except to the extent that the court imposed a sentence greater than that recommended by the government. Under the law of this Circuit, Baramdyka also implicitly preserved his right to appeal on grounds that the sentence was illegal, imposed in violation of the plea agreement or for racially discriminatory reasons.

Baramdyka's sentence is consistent with the government's recommended sentence. Therefore, that possible exception to his waiver of appeal is unavailable. Further, because the sentence imposed was well within the statutory maximum, it is not illegal and therefore, that exception is unavailable. Finally, Baramdyka raises no claim that the sentence was the result of discriminatory animus or any other similar form of due process violation. Thus, that exception is also inapplicable. Baramdyka's claim of lack of personal jurisdiction as to count 8 is, like a statute of limitations bar, a waivable affirmative defense, see Acevedo-Ramos v. United States, 961 F.2d 305, 307-308 (1st Cir.), cert. denied, 506 U.S. 905, 113 S.Ct. 299, 121 L.Ed.2d 222 (1992), and we decline to extend the limited exceptions to the waiver of an appeal to encompass such a claim. See also United States v. Davis, 954 F.2d 182, 186 (4th Cir.1992) (noting principle of specialty is a statutorily created right not rising to the level of "fundamentality ... traditionally demanded before addressing a question of law not argued at the district court level."). Thus, when Baramdyka waived his right of appeal, he waived his defense of lack of personal jurisdiction as to count 8.

The record shows that Baramdyka entered into the plea agreement and waiver of appeal knowingly and voluntarily. During Baramdyka's plea hearing, the district court reviewed the charges and each of the terms of the plea agreement and asked Baramdyka questions to ensure that he understood the contents of his plea agreement. This court has held such procedures sufficient to find a knowing and voluntary waiver. See United States v. Michlin, 34 F.3d 896, 898-99 (9th Cir.1994). That Baramdyka may have been unaware of the fact that he had an affirmative defense of lack of personal jurisdiction as to count 8 does not alter this analysis. See United States v. Petty, 80 F.3d 1384, 1387 (9th Cir.1996) (appeal waiver precluded double jeopardy challenge since factual basis for claim predated waiver); Johnson, 67 F.3d at 202 (upholding waiver of appeal even though sentencing law...