U.S. v. Cannady

• Decision Date: 22 March 2002
• Docket Number: No. 00-4024.,00-4024.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carmichael CANNADY, a/k/a Stokey, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 641

283 F.3d 641

UNITED STATES of America, Plaintiff-Appellee, v. Carmichael CANNADY, a/k/a Stokey, Defendant-Appellant.

No. 00-4024.

United States Court of Appeals, Fourth Circuit.

Argued October 29, 2001.

Decided March 22, 2002.

ARGUED:

Cheryl Johns Sturm, Chadds Ford, Pennsylvania, for Defendant-Appellant. James McCormick Webster, III, Assistant United States Attorney, Baltimore, Maryland, for Plaintiff-Appellee.

ON BRIEF:

Stephen M. Schenning, United States Attorney, Baltimore, Maryland, for Plaintiff-Appellee.

Before LUTTIG, TRAXLER, and KING, Circuit Judges.

Affirmed by published opinion. Judge TRAXLER wrote the majority opinion, in which Judge KING joined. Judge LUTTIG wrote an opinion concurring in part and dissenting in part.

OPINION

TRAXLER, Circuit Judge.

Carmichael Cannady pleaded guilty to a drug-related conspiracy charge and was sentenced to 174 months of imprisonment. Cannady appeals, contending that the district judge violated Rule 11(e)(1) of the Rules of Criminal Procedure by participating in the plea negotiations, that his guilty plea was not knowingly and voluntarily made, and that his indictment was defective. We affirm.

I.

Cannady was charged in a four-count indictment and was scheduled to begin trial on June 15, 1999. That day, Cannady and the government reached an agreement whereby Cannady would plead guilty to a single count of conspiracy to distribute and possess with intent to distribute cocaine and heroin. The plea agreement included a waiver of Cannady's right to initiate proceedings under 28 U.S.C.A. § 2255, a provision that the government apparently had informed Cannady was required by the district judge.

At the beginning of the plea proceedings, counsel for Cannady raised the § 2255 waiver issue, stating that "[w]ith the plea agreement, the government put in, and I guess they really want it, and they said it is a requirement by you that he waives his right to a 2255 collateral proceeding." J.A. 22. The judge responded, "Right." J.A. 22. Later in the proceedings, the district judge stated:

The point is I'm not going to waste time by taking a guilty plea and then having him file a 2255 that says Mr. Glaser [Cannady's attorney] didn't prepare for trial; and, therefore, I want to withdraw my plea and have a trial later two years from now. That is not going to happen.

So either he decides to waive the 2255, or we are going to go to trial, and I will get the jury down here this afternoon and we'll start.

* * *

Three years from now after the 4th Circuit sends it back as a result of a 2255, either he is satisfied completely with what is going on, or he is not. We still have a jury standing by. I will get them down here and we'll start the trial.

So that's the way it is. You know, life has decisions to be made. I am perfectly willing to start the trial at 1:00 o'clock. We'll get the jury here and we'll start.

So it is your call, Mr. Cannady. The plea agreement does call for this. You have to knowingly, intelligently, and voluntarily, waive that right under the plea agreement.

* * *

I am not going to sit here and waste time with a plea agreement where you intend, as soon as you get in jail, to file a 2255 and start the whole thing over again. That ain't going to happen.

J.A. 24-25. When Cannady said that he did not know what a 2255 motion was, J.A. 25, the judge responded, "[y]ou will find out as soon as you get to a federal system."¹ J.A. 26. Then, referring to the § 2255 waiver, the judge stated:

[I]f that's what the government wants, and if that is in the plea agreement, if you don't agree to that, there is no agreement. I will put it that way. If you agree to it, there is an agreement. If you don't, you don't. And we're going to start the trial, in fact, in exactly 50 minutes. The court stands in recess.

J.A. 26.

Cannady then interjected that he had accepted the plea agreement, which prompted the district judge to ask Cannady's attorney why he had raised the § 2255 issue. Counsel for Cannady explained that while Cannady wanted to plead guilty, Cannady wanted to see if the court would accept a plea that did not include such a waiver. Counsel for Cannady also explained that he had advised Cannady that the plea agreement, with the § 2255 waiver, was in Cannady's best interest and that he had advised Cannady to accept the deal.

The district judge was still hesitant to accept the plea, telling counsel that

what I am presented with is a big fur ball. I don't like fur balls.... You're handing me this plea agreement, signed with a big caveat. I don't like that.

So what we are going to do is, we're going to start the trial in 46 minutes. I am not going to accept the plea agreement.

J.A. 28-29. Cannady interjected again, telling the judge that he had signed the plea agreement, and counsel for Cannady again told the judge that Cannady wanted to plead guilty even with the § 2255 waiver included as part of the agreement. The district judge then gave Cannady fifteen minutes to make sure he wanted to plead guilty. The judge told Cannady: "We are not going to hedge, we are not going back and forth. We are not going to have a fur ball. Either you voluntarily, knowingly, and intelligently, decide to plead guilty under the terms and conditions of this plea agreement, or we start the trial at 1:00 precisely." J.A. 29-30.

After the recess, Cannady entered a guilty plea, which the judge accepted. During the plea colloquy, the district judge told Cannady that he faced a minimum sentence of ten years and a maximum sentence of life. The judge did not inform Cannady that drug quantity was an element of the crime or that the government would be required to prove quantity beyond a reasonable doubt.

II.

At the time Cannady pleaded guilty, Rule 11(e)(1) of the Federal Rules of Criminal Procedure provided that "[t]he attorney for the government and the attorney for the defendant ... may engage in discussions with a view toward reaching a[] [plea] agreement," and that the district court "shall not participate in any such discussions." Fed.R.Crim.P. 11(e)(1) (1999).² Although this court has never addressed Rule 11(e)(1) in a published opinion, the rule is strictly interpreted by other circuits. See United States v. Miles, 10 F.3d 1135, 1139 (5th Cir.1993) ("Rule 11(e)(1) prohibits absolutely a district court from all forms of judicial participation in or interference with the plea negotiation process." (internal quotation marks omitted)); United States v. Corbitt, 996 F.2d 1132, 1134 (11th Cir.1993) (per curiam) (explaining that Rule 11(e)(1) establishes "an absolute prohibition on all forms of judicial participation" in plea negotiations (internal quotation marks omitted)); United States v. Bruce, 976 F.2d 552, 558 (9th Cir.1992) ("[T]he unambiguous mandate of Rule 11 prohibits the participation of the judge in plea negotiations under any circumstances: it is a rule that... admits of no exceptions.").

On appeal, Cannady contends that the district judge violated Rule 11(e)(1) in two ways. First, Cannady contends that the judge's comments during the plea proceeding amounted to participation in the plea negotiations. Second, Cannady contends that the judge participated in the plea negotiations by instructing the government to include § 2255 waivers in all plea agreements brought before him. We address these arguments in turn.

A.

Cannady argues that the district judge participated in the parties' plea negotiations through his rather extensive comments during the plea proceeding about § 2255 waivers. At the time these comments were made, however, the parties had reached a definite agreement that had been reduced to writing and executed by Cannady and the government, all without any direct involvement by the district judge. While the judge had yet to accept the plea and approve the agreement, the agreement was final and complete as between Cannady and the government. Because the plea negotiations between the parties had come to an end and the parties had signed a written plea agreement before the district judge was involved, it is hard to characterize the judge's comments as participation in any discussions that were conducted "with a view toward reaching a[] [plea] agreement," which is all that the plain language of Rule 11(e)(1) then prohibited. See United States v. Telemaque, 244 F.3d 1247, 1249 (11th Cir.2001) (per curiam) (finding no violation of Rule 11(e)(1) when the district judge, at the request of the defendant's attorney, discussed certain terms of an already-signed plea agreement with the defendant); United States v. Johnson, 89 F.3d 778, 782 (11th Cir.1996) ("Because no plea discussions occurred here, the literal terms of the rule do not apply.").

However, where necessary to serve the purposes of Rule 11(e)(1), courts have found violations of the rule even in cases where the district judge technically did not participate in "discussions with a view toward a[] [plea] agreement." See Johnson, 89 F.3d at 782 (noting that "the decisions under [Rule 11(e)(1)] have put a gloss on the rule to implement a broader purpose"). Rule 11(e)(1)'s strict prohibition against judicial participation in plea negotiations is widely viewed as serving several purposes:

First, it diminishes the possibility of judicial coercion of a guilty plea, regardless whether the coercion would actually result in an involuntary guilty plea. Second, the judge's involvement in the negotiations is apt to diminish the judge's impartiality. By encouraging a particular agreement, the judge may feel personally involved, and thus, resent the defendant's rejection of his advice. Third, the judge's participation creates a misleading impression of his role in the proceedings. The judge's role seems more like an advocate for the agreement than a neutral arbiter if he joins in the negotiations.

United States v. Daigle, 63 F.3d 346, 348 (5th Cir.1995) (citations omitted); see also United States v. Bierd, 217 F.3d 15,...