U.S. v. Bell, 84-3344
| Decision Date | 21 November 1985 |
| Docket Number | No. 84-3344,84-3344 |
| Citation | 776 F.2d 965 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Dennis Ray BELL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Edward A. Mallett, Houston, Tex., for defendant-appellant.
Appeal from the United States District Court for the Middle District of Florida.
Before FAY and JOHNSON, Circuit Judges, and HOFFMAN *, District Judge.
Dennis Ray Bell was convicted of conspiracy to import marijuana in violation of 21 U.S.C. Secs. 952(a), 963 (1982) and conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(6), 846 (1982) after pleading guilty to these offenses. In this direct appeal, Bell complains of the trial court's failure to comply with Fed.R.Crim.P. 11(c)(1) in accepting Bell's guilty plea, the denial of Bell's motion to dismiss the indictment, the denial of various post-trial motions, and the eight year prison sentence Bell received. We disagree with Bell's allegations of error and find that the conviction and sentence should stand.
Norman Weir and Charles Kuylen were arrested on June 29, 1983 for conspiracy to import and distribute marijuana. 1 Their arrest was kept secret because they immediately became "confidential informants." As confidential informants, Weir and Kuylen agreed to cooperate with the Drug Enforcement Agency (the "DEA") and Agent Stephen Collins in the investigation of Bell and others involved in two marijuana conspiracies.
Bell was subsequently arrested on July 8, 1983, and charged by complaint with possession with intent to distribute a quantity of marijuana. 2 Following Bell's arrest, his attorney Joel Dick met with Agent Collins on at least two separate occasions. During these meetings they discussed the charges against Bell that would be contained in the indictment, the fact that the indictment would be sealed for thirty days, and the possibility that Bell might provide the Government with information in exchange for a reduction or a dismissal of charges. Collins indicated that sealing the indictment would provide Bell with time to covertly cooperate with the Government should he decide to do so. Collins also informed Dick that Weir and Kuylen would be named as co-defendants in the indictment. Bell, Weir and Kuylen were indicted on July 13, 1983 for conspiracy to import and for conspiracy to possess and distribute marijuana. The indictment was sealed at the Government's request.
Thereafter, Bell approached Weir and Kuylen to inform them that they would be arrested in the near future. 3 Bell suggested that Weir and Kuylen join him for a meeting scheduled with his attorney, Joel Dick, to decide what course of action the three should take. This meeting took place on July 14, 1983 and was recorded in its entirety by the Government. 4 During the meeting, the three co-defendants discussed the type of information they might provide to the Government during plea negotiations. The question of whether Dick would represent Weir and Kuylen was also discussed, but remained unsettled at the conclusion of the meeting. 5
On July 28, 1983, Bell, Weir and Kuylen met with Dick a second time to discuss the charges pending against them. This meeting was also recorded by the Government. During this meeting Dick recommended that Weir and Kuylen take a trip to Belize. The motive underlying Dick's suggestion was disputed by the parties 6 and became the focus of a separate complaint charging Dick and Bell with obstruction of justice. References to Weir and Kuylen's retention of another attorney were also made during this meeting.
Later that morning, Bell and Dick attended the scheduled arraignment where they first learned that the indictment had been unsealed and that the indictment also named Weir and Kuylen. Thereafter, Dick and Bell were arrested and charged by complaint with obstruction of justice.
Bell filed numerous pre-trial motions in this case including a motion to dismiss the indictment. A hearing on several of the motions, including the motion to dismiss, was held January 31, 1984 before G. Kendall Sharp, United States District Judge for the Middle District of Florida. These motions were denied.
On February 21, 1984, Bell entered into a written plea agreement in which he agreed to enter a conditional 7 plea of guilty to both counts in the indictment in the marijuana case. That same day, Judge Sharp presided over jury selection in the obstruction case.
One week later, on February 27, 1984, a jury trial in the obstruction case commenced before Richard B. Kellam, Senior District Judge for the Eastern District of Virginia. 8 On February 29, 1984 the jury found Bell not guilty of either obstruction count. Subsequently, Bell moved to transfer his renewed motion to dismiss and to transfer his sentencing hearing from Judge Sharp to Judge Kellam. In support of this motion, Bell argued that Judge Kellam was in the best position to reconsider the motion to dismiss in that he presided at Bell's obstruction of justice trial. Judge Sharp denied the motion.
On April 4, 1984 Bell filed a motion to postpone sentencing pending receipt of transcripts in the obstruction of justice case and a motion to supplement the record in this case with the record from the obstruction of justice trial. Judge Sharp rescheduled the sentencing hearing for May 21, 1984 and granted the motion to supplement the record. A second motion to continue sentencing pending completion of the statement of facts was denied.
On May 21, 1984, Judge Sharp sentenced Bell to a period of incarceration of eight years and revoked his bond.
Bell raises the following points of error at the trial court level. First, Bell claims that there was a complete failure by the trial court to address a core concern of Fed.R.Crim.P. 11 when it accepted Bell's guilty plea. Bell argues that this failure to comply with Rule 11 requires that his guilty plea be set aside and the case remanded for another hearing at which he may plead anew. Second, Bell argues that the trial court erred when it denied the motion to dismiss. Third, Bell claims that the eight year sentence was improperly imposed because, among other things, the trial court failed to comply with Fed.R.Crim.P. 32. Bell argues that the mandatory language of the rule requires that the sentence be vacated. Finally, Bell claims that the trial court erred by denying his request to transfer his motion to dismiss and his sentencing to Judge Kellam and by denying his second motion to continue sentencing. After considering Bell's third and fourth claims of error, we find that they are without merit and warrant no further discussion. We consider the remaining two issues below.
In United States v. Dayton, 9 604 F.2d 931, 934 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980), this court's predecessor made a "clear and definitive statement of how trial courts should conduct guilty plea hearings." Dayton recognized that three core concerns underlie Rule 11: (1) the guilty plea must be free from coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know the consequences of his plea. 604 F.2d at 939. A court's failure to address any one of these three core concerns requires automatic reversal. Id. (citing McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)).
In this appeal, Bell claims that the district court "complete[ly]" failed to establish that he understood the nature of the charges against him. He argues that this failure requires automatic reversal and entitles him to replead. We disagree with Bell's assertion that the district court completely failed to establish Bell's understanding of the nature of the charges and find no violation of Rule 11.
It is well established that the nature of the inquiry required by Rule 11 will vary from case to case. McCarthy, 394 U.S. at 467 n. 20, 89 S.Ct. 1166, 1171 n. 20. Courts have declined to set forth a simple or mechanical rule for determining whether or not a defendant is informed of and understands the nature of the charges against him. Dayton, 604 F.2d at 937-938. See also McCarthy, 394 U.S. at 467 n. 20, 89 S.Ct. 1166, 1171 n. 20. Instead, this inquiry is committed to "the good judgment of the court, [and] to its calculation of the relative difficulty of comprehension of the charges and of the defendant's sophistication and intelligence." Dayton, 604 F.2d at 938 (footnote omitted).
In the present case, Bell had the benefit of a written plea agreement which clearly and concisely set forth the charges. 10 The charges to which Bell pled guilty were "simple" ones. Accord Dayton, 604 F.2d at 942 (). Before accepting the guilty plea, the district court, at Bell's request, granted a recess to afford Bell the opportunity to read and to discuss the plea agreement with the three attorneys representing him at the hearing. Upon reconvening, after the recess, the court proceeded to inquire into Bell's educational and professional background:
Through this inquiry, we are satisfied that the district court established that Bell was a sophisticated and intelligent person who was fully able to understand the nature of the charges against him. 11 The court then moved on to inquire into the remaining two "core concern" areas of Rule 11. 12
After this colloquy between the court, Bell, and his counsel, the Government presented a factual basis for the guilty plea by calling Agent Collins to testify. 13 Thereafter, in commenting upon Agent Collins'...
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