U.S. v. Bierd, 98-2178

• Decision Date: 09 May 2000
• Docket Number: No. 98-2178,98-2178
• Citation: 217 F.3d 15
• Parties: (1st Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, v. ANTONIO BIERD, DEFENDANT, APPELLANT. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 15

217 F.3d 15 (1st Cir. 2000)

UNITED STATES OF AMERICA, APPELLEE, v. ANTONIO BIERD, DEFENDANT, APPELLANT.

No. 98-2178

United States Court of Appeals For the First Circuit

Heard May 9, 2000

Decided June 28, 2000

[Copyrighted Material Omitted] Laura C. Edmonds, by Appointment of the Court, for appellant.

Allison D. Burroughs, Assistant U.S. Attorney, with whom Donald K. Stern, United States Attorney, and Mark W. Pearlstein, Assistant U.S. Attorney, were on brief for appellee.

Before Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Stahl, Circuit Judge.

Coffin, Senior Circuit Judge.

Defendant Antonio Bierd pled guilty to charges of money laundering, drug possession, and related conspiracies. He now seeks vacation of his convictions or, in the alternative, resentencing on the ground that his plea was not knowing, voluntary, and intelligent, in part due to the court's alleged improper participation in the plea negotiation process. Defendant also argues that he should not have been given a sentencing enhancement based on the court's finding that he had knowledge that the funds he transmitted were drug proceeds. Because we conclude that defendant's guilty plea was valid and that the court did not err in sentencing him, we affirm his convictions.

I. Factual Background

In April 1998, defendant entered an unconditional guilty plea to drug possession with intent to distribute and a related conspiracy and entered an Alford plea¹ to three counts of money laundering and a related conspiracy, based on the following allegations made by the government.

Co-defendant Francisco Objio owned two check cashing businesses --Best Video, in Brockton, Massachusetts, and Best Money Exchange, in Jamaica Plain. Defendant managed Best Video for Objio. Despite the fact that neither entity maintained a foreign money transmittal license, defendant and Objio had established a scheme by which they transferred money for others to the Dominican Republic, employing various mechanisms designed to avert reporting requirements because the funds were often drug proceeds.

One user of their services was an undercover Massachusetts state police officer posing as a drug dealer who delivered money to defendant or Objio for transfer to the Dominican Republic on three separate occasions in the fall of 1997. Each time the officer dropped off money, in small denominations, he reiterated the need for secrecy and spoke about the drug business and his customers. Defendant and Objio allowed the officer to use a false name and broke the large transactions into smaller amounts to avoid reporting requirements.

Instead of depositing drug proceeds, generally large amounts of cash, into the bank accounts of Best Video or Best Money Exchange, the drug proceeds were used to cash third party checks, which were then deposited into the bank accounts. To transfer the money, Objio would contact his associate in the Dominican Republic, who held checks that were drawn on Best Money Exchange's account and stamped with Objio's signature. The checks in the Dominican Republic were then made payable to persons other than the ultimate recipient, and after the checks were cashed, the cash was delivered to the recipient intended by the sender.

Defendant and Objio were also involved in drug trafficking. Specifically, defendant helped arrange the purchase and transfer of a kilogram of cocaine on one occasion in August 1997.

On the second day of the joint trial of defendant and Objio, Objio renewed a severance motion, arguing that defendant's defense that he was only following orders was in conflict with his own. At sidebar, the district judge explained that he was inclined to deny the motion and the following exchange occurred:

Court: There is no Nuremberg defense. If [defendant] gets on the stand and says I followed orders, [he's] guilty. And it's unclear to me, maybe not all the charges, but these money laundering charges, it's unclear to me if that's true if that's what's really the defense. Why doesn't he plead out, get the three levels he's entitled to and then that will accomplish the severance, but that's not for me to say. That's for - - -

Defense counsel: That's exactly where I think we're headed.

Court: Well, if that happens, it happens. I have nothing to say about it.

The next day, defendant entered his Alford and unconditional guilty pleas and he was subsequently sentenced.

Defendant then appealed. His counsel filed an Anders brief² and moved to withdraw. This court identified as non-frivolous the issue of whether the trial judge violated Fed. R. Crim. P. 11(e)(1) by initiating a plea discussion and approved the appointment of new counsel to represent defendant.

II. Whether Defendant's Plea was Knowing, Voluntary, and Intelligent

Defendant's overarching argument is that his plea was not voluntary as required by Fed. R. Crim. P. 11. First, defendant alleges that the court violated Fed. R. Crim. P. 11(e)(1) by participating in the plea negotiation process. Second, defendant contends that the court coerced him into pleading guilty by promising him a three level reduction in his base offense level for acceptance of responsibility.

We review the totality of circumstances when considering a request to withdraw a guilty plea, considering primarily whether a defendant's guilty plea was "knowing, voluntary and intelligent within the meaning of Rule 11." See United States v. Cotal-Crespo, 47 F.3d 1, 3-4 (1st Cir. 1995).³ Rule 11 embodies three "core concerns": "1) absence of coercion; 2) the defendant's understanding of the charges; and 3) the defendant's knowledge of the consequences of the guilty plea." United States v. Gray, 63 F.3d 57, 60 (1st Cir. 1995).

Although defendant failed to raise his claim before the trial court, "a Rule 11 challenge will not be deemed waived upon a party's failure to raise it in the district court." United States v. Parra-Ibanez, 936 F.2d 588, 593 (1st Cir. 1991). Rule 11(h) states that "[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." Furthermore, the advisory committee notes to the 1983 amendments to Fed. R. Crim. P. 32, which authorizes plea withdrawal motions, explain that when a defendant moves for the first time on appeal to set aside his guilty plea, "the applicable standard is that stated in Hill v. United States, 368 U.S. 424 (1962): 'a fundamental defect which inherently results in a complete miscarriage of justice' or 'an omission inconsistent with the rudimentary demands of fair procedure.'" We find that regardless of which standard is employed, the court's statements did not constitute reversible error because, although they were arguably at "variance from the procedures required" by Rule 11, they were not so egregious as to "affect substantial rights" or constitute a "fundamental defect."

Defendant first alleges that the court initiated a plea discussion in violation of Fed. R. Crim. P. 11(e)(1)'s mandate that "[t]he court shall not participate in any discussions between the parties concerning any... plea agreement." Defendant points to the exchange that occurred on the second day of trial at sidebar when his co-defendant attempted to revisit his severance motion. He explains that his counsel immediately relayed this conversation to him, which prompted his desire to change his plea to guilty.

The Rule 11(e)(1) prohibition "simply commands that the judge not participate in, and remove him or herself from, any discussion of a plea agreement that has not yet been agreed to by the parties in open court." United States v. Bruce, 976 F.2d 552, 556 (9th Cir. 1992). This ban on judicial involvement in the plea bargaining process furthers three goals. The primary philosophy behind it is that "[j]udicial involvement in plea negotiations inevitably carries with it the high and unacceptable risk of coercing a defendant to accept the proposed agreement and plead guilty." Id. at 556. Second, "the interests of justice are best served if the judge remains aloof from all discussions preliminary to the determination of guilt or innocence so that his impartiality and objectivity shall not be open to any question or suspicion when it becomes his duty to impose sentence." United States v. Werker, 535 F.2d 198, 203 (2d Cir. 1976). And third, the prohibition "preserves the judge's impartiality after the negotiations are completed," for example when assessing the voluntariness of a plea or presiding over trial when a negotiation fails. See United States v. Casallas, 59 F.3d 1173, 1178 (11th Cir. 1995) (citing Bruce, 976 F.2d at 556-57).

Because we find limited authority within the circuit directly addressing a complaint that a judge improperly participated in plea negotiations,⁴ we survey the case law to get a flavor for the kinds of court statements that have been deemed impermissible intervention. We conclude that the court's language, although not definitively foreclosing the interpretation that defendant suggests, was not so egregious as to require vacation of the conviction.

Improper participation resulting in vacation occurs, for example, when a court comments on or mandates what it perceives to be an appropriate penalty for a defendant in the context of plea agreement discussions. See, e.g., United States v. Crowell, 60 F.3d 199, 204 (5th Cir. 1995) (sentence vacated because it was improper for court to indicate, while the parties were negotiating a second agreement, that a penalty more severe than that in the initial rejected agreement was necessary); United States v. Anderson, 993 F.2d 1435, 1439 (9th Cir. 1993) (plea vacated due to court's violation of the rule by its "prospective refusal to accept a plea to fewer than the full thirty counts, and direction to the prosecutor not to offer any such deal in the future"). When a judge breached the rule by stating, during a conference call with the prosecutor and defense counsel that was...