U.S. v. Coscarelli

• Decision Date: 30 July 1998
• Docket Number: No. 96-20264,96-20264
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Craig Michael COSCARELLI, also known as John Coscarelli, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 342

149 F.3d 342

UNITED STATES of America, Plaintiff-Appellant, v. Craig Michael COSCARELLI, also known as John Coscarelli,

Defendant-Appellee.

No. 96-20264.

United States Court of Appeals, Fifth Circuit.

July 30, 1998.

Jeffery Alan Babcock, Paula Camille Offenhauser, Asst. U.S. Atty., Houston, TX, Richard A. Friedman, U.S. Dept. of Justice, Washington, DC, for Plaintiff-Appellant.

Ray Christopher Goldsmith, Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and REYNALDO G. GARZA, KING, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge.

The United States alone appealed from a sentencing decision by the district court that did not correctly apply the guidelines for money-laundering in this telemarketing scam prosecution. The panel opinion sustained the government's position. ¹ What concerned the en banc court, however, was the panel majority's further decision to grant affirmative relief to appellee Coscarelli--who waived his right to appeal in writing, filed no notice of appeal or cross-appeal, and never The first sentence of Federal Rule of Appellate Procedure 4(b) says, "[i]n a criminal case, a defendant shall file a notice of appeal in the district court within 10 days after the entry either of the judgment or order appealed from, or of a notice of appeal by the Government." The Supreme Court has described the ten-day limit for filing a notice of appeal in a criminal case as "mandatory and jurisdictional." United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960) (interpreting language in a predecessor to the current rule). See also United States v. Adams, 106 F.3d 646, 647 (5th Cir.1997) ("This court cannot exercise jurisdiction absent a timely notice of appeal.") The wording of the rule which requires the notice of appeal to be filed within ten days is as applicable to a defendant's cross-appeal as it is when the government does not appeal. Coscarelli filed no notice of appeal or cross-appeal from the district court's sentencing decision. ² In a case such as this, an appellate court simply has no authority to grant Coscarelli relief that would expand his rights under the judgment.

made any request for relief from his conviction or sentence--by vacating the guilty plea entirely. As an en banc court, we hold that Coscarelli's failure to file a notice of appeal precludes him from receiving affirmative relief in this court. We have no jurisdiction over any such claim.

Coscarelli's brief to the en banc court concedes this point, stating:

Even though there are arguments supporting jurisdiction, counsel's additional research on this issue indicates that the court does not have jurisdiction.

En Banc brief at 3. ³

Although Coscarelli does not make any such argument, the dissent may contend that our recent en banc decision in Marts v. Hines, 117 F.3d 1504 (5th Cir.1997), either permits or requires us to exercise discretionary appellate jurisdiction notwithstanding Coscarelli's failure to file a notice of appeal. This interpretation of Marts would be pure wishful thinking and would flatly contradict the narrow application of Marts to in forma pauperis cases brought under a statute now superseded by the Prison Litigation Reform Act. In Marts, the question was whether an appellate court could sua sponte determine that dismissals of such cases are deemed to be with prejudice unless the district court expressly declares otherwise. Marts represented an effort "to continue our development of procedures to address and dispose appropriately of a continually burgeoning prisoner pro se docket, both at the trial and appellate levels...." Id. at 1504. Marts concludes that:

[I]n cases involving dismissals as frivolous or malicious under the in forma pauperis statute in which the defendant has not been served and was, therefore, not before the trial court and is not before the appellate court, the appellate court, notwithstanding, has the authority to change a district court judgment dismissing the claims without prejudice to one dismissing with prejudice, even though there is no cross-appeal by the obviously non-present "appellee."

Id. at 1506. Marts either stands or falls on the sole rationale that when federal courts finally adjudicate in forma pauperis litigation their judgments may protect the courts from an onslaught of malicious and frivolous complaints, where the defendants have neither been served with process nor ever appeared in the case.

Not all who join this majority opinion concurred in Marts, but we share a common view of that opinion's limited holding. Marts accordingly furnishes no basis for a conclusion that appellate jurisdiction exists here to grant relief to Coscarelli.

For the foregoing reasons, based on the partial reinstatement of the panel opinion, Coscarelli's guilty plea remains unassailed, but the case is VACATED and REMANDED for resentencing and further proceedings consistent herewith.

DeMOSS, Circuit Judge, joined by REYNALDO G. GARZA, Senior Circuit Judge, dissenting:

This case has been snake-bit from the time the indictment was filed. Virtually no stage of the proceeding was conducted without some form of error. I write not because I am confident that it will make any difference with respect to the substantive outcome on appeal, but because I want to exhort the district court, which is likely to become the court of last resort for real justice in this case, to untangle the web of error that our Court has today so deftly avoided.

I write also because the majority sets forth, in unremarkable fashion and as if it had been the law all along, the very remarkable proposition that Coscarelli's failure to file a cross-appeal from an essentially favorable judgment destroys this Court's power to remedy error of constitutional magnitude. Because I believe that result is inconsistent with controlling authority, which goes unmentioned in the majority opinion, I am forced to register my dissent.

I. AN INTRODUCTION

Craig Coscarelli was charged in an eleven count indictment. Counts two through eleven charged substantive counts of wire fraud and mail fraud. The indictment did not contain any count alleging a substantive money laundering offense. Count 1, which is the source of the constitutional error in this case, charged one of those long, complicated and multi-headed hydras that prosecutors love to fashion--the multiple object conspiracy. Coscarelli decided to enter a guilty plea. At Coscarelli's Rule 11 hearing the district court, apparently misled by ambiguity in the indictment, erroneously understated the statutory maximum term of imprisonment by fifteen years, omitted any mention of the money laundering object when characterizing the offense charged in count 1, and then failed to require the government to establish any factual basis whatsoever for the money laundering object charged in that count. Coscarelli's first appointed counsel resigned shortly thereafter.

Notwithstanding the conspicuous absence of the money laundering object in the Rule 11 colloquy, that object showed up in the presentence report as the pivotal factor establishing Coscarelli's considerable sentence. Coscarelli (now represented by his third appointed counsel) filed objections, stating that he never intended to commit money laundering. The district court, being persuaded by Coscarelli's argument, simply omitted the money laundering object from Coscarelli's sentence calculation.

The government appealed, asserting Coscarelli's guilty plea to the money laundering object as the basis for its argument that Coscarelli should receive a harsher sentence than the one imposed. The government contended that Coscarelli pleaded "guilty as charged," directing our Court to the indictment and portions of the Rule 11 hearing. Coscarelli, who thought he won below, did not cross-appeal, but argued that the Rule 11 hearing and his subsequent objections to the presentence report established that he did not intend to plead guilty to conspiracy to commit money laundering.

The panel held that the government's sentencing point was correct. Assuming a validly entered guilty plea as to the money laundering object of the multiple object conspiracy, Coscarelli's base offense level would correctly be determined using the money laundering guideline. The panel examined the Rule 11 transcript to locate the plea that was inextricably intertwined with and essential to the government's appeal. An examination of the Rule 11 transcript did not reveal, however, the pristine guilty plea

described by the government. To the contrary, the Rule 11 hearing, and therefore the plea upon which the government sought to rely, was contaminated with plain and harmful error of constitutional magnitude.

II. RULE 11 ERROR AND OTHER FOLLIES

In the panel opinion, we developed only what we considered to be the most egregious violation of Coscarelli's rights, the district court's erroneous rendition of Coscarelli's possible maximum statutory sentence at the plea hearing. Rule 11 requires that the district court personally inform Coscarelli concerning the "maximum possible penalty provided by law." FED.R.CRIM.P. 11(c)(1) & (g). Coscarelli was not told that the law provided a maximum sentence of twenty years with respect to count 1. To the contrary, Coscarelli was affirmatively misinformed that the maximum possible penalty with respect to count 1 was five years. That such error is of constitutional dimension under our existing precedent cannot be denied. ¹

Of perhaps equal importance, however, is the district court's erroneous statement of the charge against Coscarelli. ² Rule 11 requires a record showing that the district court personally informed Coscarelli concerning the "nature of the charge to which the plea...