U.S. v. Cothran, 01-30743.

• Citation: 302 F.3d 279
• Decision Date: 08 August 2002
• Docket Number: No. 01-30743.,01-30743.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Lee COTHRAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 279

302 F.3d 279

UNITED STATES of America, Plaintiff-Appellee, v. David Lee COTHRAN, Defendant-Appellant.

No. 01-30743.

United States Court of Appeals, Fifth Circuit.

August 8, 2002.

COPYRIGHT MATERIAL OMITTED

Cristina Walker, Asst. U.S. Atty., Shreveport, LA, for Plaintiff-Appellee.

David Lee Cothran, Shreveport, LA, pro se.

Appeal from the United States District Court for the Western District of Louisiana.

Before DAVIS, SMITH and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

David Cothran pleaded guilty to one count of mail fraud in violation of 18 U.S.C. §§ 1341 and 2. He attacks his conviction and sentence on many grounds. Finding no error, we affirm.

I.

Cothran owned Capricorn Services, which sold computers. The business fell on hard times, and Cothran began defrauding his suppliers. The government maintains that the scope of his intentional fraud swept broadly; Cothran states that his initial underpayments and bad checks were accidental, and he began defrauding his suppliers at a later date.

In 1996, Cothran paid two suppliers with company checks drawn from closed accounts. On November 5, 1996, he paid for a delivery from Gateway Computers using a company check for $14,022. On December 18 and 20, he paid for deliveries from Micron Electronics with checks that totaled $10,281. When the bank declined to honor the checks, vendors' losses totaled $24,303.

In 1997, Cothran began ordering computers and making only partial payments, failing to pay for them altogether, paying with checks drawn on a closed account, and eventually forging vendor authorizations for delivery. On March 5, 1997, he accepted a delivery from Gateway Computers and wrote a check on a closed account for $16,820. On March 28 and May 14, 1997, he convinced EPS Technologies to ship him $33,799 worth of computer equipment, for which he made only a partial payment. On June 18 and July 29, 1997, he convinced PC Connections to ship him $45,088.75 worth of computer equipment, and he made only partial payment. On July 3, 1997, Anson Computers, Inc., supplied him with $10,670 of equipment, and Cothran never paid. On July 29, he turned again to Gateway Computers, who delivered equipment for a cashier's check in the amount of $5,796; after receiving delivery, Cothran stopped payment on the check.

In September or October 1997, Cothran made a series of orders that, on their face, required him to deceive the vendor or carrier before taking delivery. The government alleges that on September 12, 1997, Cothran began actually forging the computer suppliers' authorizations for him to pay by company check. On September 12, 1997, a letter was faxed from a company claiming to be CyberMax Computer and authorizing United Parcel Service ("UPS") to accept payment by company check. The government argues that Cothran faxed the letter; Cothran claims that a former employee, Ryan Anderson, sent the fax and check.

Cybermax Computer delivered $46,533 worth of computer equipment in exchange for a worthless check. Cothran admits that in October 1997, he faxed a forged authorization to Federal Express on behalf of Midwest Micro, which delivered $7,516.49 of computer equipment, and Cothran tendered a check on a closed account. In November 1997, Cothran ordered $5,047 in equipment from Arlington Computers, and the UPS delivery person dropped off the computers without collecting payment. Cothran did not ever tender the money to Arlington Computers.

Cothran continued this pattern well into 1998. On January 14, 1998, Dell Computers sent Cothran $29,253.12 worth of computers; he disputed the price terms and failed to make any payments. On March 31, 1998, Multi-Tech delivered $15,007.80 in computer equipment in exchange for a check drawn on a closed account. On June 16, 1998, Federal Express received a letter from a company claiming to be Quantex Microsystems, Inc., and authorizing Cothran to pay by company check. Quantex delivered $31,396 in computer equipment and received a check on a closed account in return. In June 1998, UPS received a faxed letter purportedly from DTK Computers, Inc., authorizing payment by company check. UPS delivered computer equipment worth $11,060 in exchange for a check drawn on a closed account.

II.

The grand jury returned a fourteen-count superseding indictment charging Cothran with mail fraud in violation of 18 U.S.C. § 1341 and 2. Cothran unsuccessfully moved to dismiss counts 1-7 and 10-12 for failure to state an offense against the United States. The government then filed a bill of information charging Cothran with one count of mail fraud. Cothran waived his right to indictment and pleaded guilty to the bill of information, whereupon the indictment was dismissed.

At sentencing, the court adopted the factual findings and guideline application of the presentence report ("PSR"). The court classified Cothran's criminal history as category II and calculated a total offense level of 13, yielding a guideline range of 15-21 months' imprisonment. The court sentenced Cothran to 18 months' imprisonment and a three-year term of supervised release. As part of his supervised release, the court forbade Cothran from gambling and gave the probation office permission to require substance abuse treatment. The court also ordered Cothran to pay $232,177.16 in restitution.

III.

Cothran argues that his indictment failed to state an offense against the United States; he did not voluntarily enter the plea bargain; his counsel provided ineffective assistance; the prosecution violated the Fifth Amendment's Double Jeopardy Clause; the prosecutor acted vindictively and maliciously; and the United States unlawfully seized evidence. We reject each of these arguments in turn. Many are waived.

A.

Cothran argues that many counts of the indictment fail to state an offense against the United States. Cothran, however, voluntarily waived his right to an indictment when he pleaded guilty and agreed to the bill of information. Rule 7(b), Fed.R.Crim.P., permits the defendant to waive prosecution by indictment, in open court, for an offense punishable by a term of imprisonment of more than one year. We repeatedly have upheld defendants' waivers of their right to indictment.¹

Relying on United States v. Meacham, 626 F.2d 503, 509-10 (5th Cir.1980), Cothran argues that the guilty plea does not waive his right to challenge the sufficiency of the indictment. We so held in Meacham, because we classified as jurisdictional the requirement that the indictment state an offense. Id. In United States v. Cotton, ___ U.S. ___, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002), the Court held that defects in the indictment are not jurisdictional. The Court applied plain error review because a defendant had failed to challenge the sufficiency of the indictment before or during trial. Id. at 1786.

Cotton demonstrates that standard waiver principles apply to defects in the indictment. Cothran's guilty plea and waiver to the right of indictment were knowing and voluntary, so he waived any defects in the indictment.

B.

Cothran argues that he did not voluntarily enter the plea bargain because his attorney impermissibly pressured him to accept the plea. He did not attempt to withdraw his plea in the district court and raises this argument for the first time on appeal, so we review its voluntariness for plain error. Fed.R.Crim.P. 52(b); United States v. Milton, 147 F.3d 414, 420 (5th Cir.1998).

The defendant must enter the plea agreement voluntarily. See Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Rule 11(d), Fed.R.Crim.P., requires the court to address the defendant in open court and determine that the plea is voluntary and not the result of unlawful force, threats, or promises. The Supreme Court has defined a voluntary plea:

A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g., bribes).

Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (internal quotations omitted) (quoting Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir.1972) (en banc), rev'd on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958)).

At the plea colloquy, Cothran stated that his plea was free and voluntary and made with the advice of counsel. He stated that he had discussed the matters with his attorney, and he said that he was satisfied with his attorney's advice. When the district court asked "Did anybody lean on you, twist your arm, use undue persuasion to cause you to enter a plea of guilty today?," Cothran responded "no, sir." Reviewing courts give great weight to the defendant's statements at the plea colloquy.²

To counter his statements in open court, Cothran alleges that the general mental strain of the situation and his attorney's heavy-handed advice compromised voluntariness. According to Cothran, on the day he was scheduled to sign his plea agreement, he changed his mind. The defense attorney informed the United States and then warned Cothran that "you have made it bad for yourself". The attorney had earlier told Cothran that his own "opening statement will convict you." In response to his attorney's admonitions about the consequences of pleading not guilty, Cothran reversed again and decided to plead guilty.

A defense attorney should make informed predictions about the consequences of either pleading guilty or going to trial. We have held that a defense lawyer's stern warnings about the client's chances of success at trial, the potential for prison time, and the lawyer's potential withdrawal do not...