U.S. v. Cusenza, 83-2830

• Decision Date: 05 December 1984
• Docket Number: No. 83-2830,83-2830
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Leonard CUSENZA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 473

749 F.2d 473

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Leonard CUSENZA, Defendant-Appellant.

No. 83-2830.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 19, 1984.

Decided Dec. 5, 1984.

Michael E. Squibb, San Diego, Cal., for defendant-appellant.

Before WOOD, Circuit Judge, PELL, Senior Circuit Judge, and CAMPBELL, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant-appellant Anthony Leonard Cusenza was indicted with co-defendants James Robert Srader and Christopher Scott Goodson for his participation in a conspiracy to purchase and distribute marijuana. After negotiating with the United States Attorney, Cusenza pled guilty on August 1, 1983 to Counts I (conspiring to possess marijuana with an intent to distribute), V (traveling in interstate commerce to further an illegal activity), and XII (using a communications device in furtherance of a conspiracy). On September 30, 1983, the district court imposed a twelve-year sentence on Count I, a four-year sentence on Count V, and a four-year sentence on Count XII--the sentences to run concurrently.

Cusenza challenges both the convictions and the sentences. He argues that his guilty plea was invalid because the district court did not comply with Rule 11(c)(1) of the Federal Rules of Criminal Procedure. He also asserts that the sentencing hearing violated his due process rights because he had no notice that the United States Attorney intended to call a surprise witness and, therefore, no time to prepare meaningful rebuttal testimony. We reject both claims and affirm the judgment of the district court.

I.

Rule 11(c)(1) requires that the district court, before accepting a guilty plea, inform the defendant of the nature of the charge and determine whether the defendant understands the charge. Fed.R.Crim.P. 11. In the present case, the district court asked Cusenza if he had read the indictment, if he understood the indictment, and if he had ample time to discuss the charges with his lawyer. Cusenza answered "yes" to each of these questions. Later, after the United States Attorney had recited the factual basis for the charges, the following colloquy occurred:

T HE C OURT: Now, Mr. Cusenza, you understand that basically that's what you are admitting to, that's what you are pleading guilty to?

A. Yes, sir.

THE C OURT: Is that what you are admitting to?

A. Yes sir.

Defendant asserts on appeal that this procedure did not satisfy Rule 11(c)(1) because the district court neither read the indictment to Cusenza nor explained the legal definition of conspiracy to him.

In United States v. Gray, 611 F.2d 194 (7th Cir.1979), cert. denied, 446 U.S. 911, 100 S.Ct. 1846, 64 L.Ed.2d 264 (1980), we rejected "a construction of 11(c)(1) which literally requires that the judge personally address the defendant and inform him of the nature of the charge" and instead adopted "a flexible and practical approach which emphasizes whether the purpose to be served by the Rule has been furthered by the particular procedure utilized by the district court." Id. at 199. We noted that the colloquy necessary to satisfy Rule 11 "will vary from case to case depending on the complexity of the charges and the personal characteristics of the defendant--including age, education, intelligence, alacrity of his responses, and whether he is represented by counsel." Id. at 200 (citing United States v. Wetterlin, 583 F.2d 346 (7th Cir.1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979)).

The defendant, citing United States v. Frazier, 705 F.2d 903 (7th Cir.1983), argues that this court has adopted a per se rule that "any noncompliance with Rule 11, Federal Rules of Criminal Procedure, is reversible error." Id. at 907. Defendant distinguishes Gray as a case analyzing the method of compliance and asserts that the present case involves a lack of compliance. This argument misses the point. A failure to satisfy Rule 11 is reversible error, but this court will apply the "flexible and practical approach" of Gray in determining whether 11(c)(1) was satisfied. Although we mused in Frazier that we might require more literal compliance with the language of Rule 11(c)(2)-(5), we reiterated that "Gray ... stands for the proposition that there are several ways a court can inform the defendant of the nature of the charge to which the plea is offered." Frazier, 705 F.2d at 907 n. 5. We therefore apply the "flexible and practical approach" to the present case and look at the total circumstances surrounding the plea to determine whether Cusenza understood the nature of Counts I, V, and XII.

Three portions of the change of plea proceedings are relevant to the 11(c)(1) issue. First, the district court asked Cusenza a series of questions that the court may have erroneously believed to satisfy Rule 11(c)(1). That colloquy was as follows:

[The Court] Have you read the indictment in this case?

[Cusenza] Yes, sir.

Q. Particularly have you read Counts I, V and XII?

A. Yes, sir.

Q. Do you understand them?

A. Yes.

Q. Do you have any questions at all about what you are charged with in those counts?

A. No, sir.

Q. Have you had ample time to go over them with your lawyer?

A. Yes.

Q. And have you discussed them with your lawyer?

A. Yes.

The district court erred by referring to the charges as Counts I, V, and XII rather than reading the indictment to the defendant or at least referring to the charges in a substantive and meaningful way; merely referring to the charges by number does not inform the defendant of the nature of the charge. Moreover, although this court has stated that representation by counsel is a factor to consider in Rule 11 cases, see, e.g., Wetterlin, 583 F.2d at 351, representation does not, by itself, satisfy Rule 11. Nor does asking the defendant if he has discussed the charge with his attorney satisfy Rule 11, since the attorney may have inadvertently misstated the law or overlooked a defense. See Majko v. United States, 457 F.2d 790, 791 (7th Cir.1972). Cf. United States v. Thompson, 680 F.2d 1145, 1153-55 (7th Cir.) (Rule 11(c)(1) is satisfied when the defendant tells the court that he has discussed the charge with his counsel and counsel then elaborates on the nature of the charge), cert. denied sub. nom., Williams v. United States, 459 U.S. 1089, 103 S.Ct. 573, 74 L.Ed.2d 934 (1982). Rule 11(c)(1) places an affirmative duty on the district court to ensure that the defendant understands the nature of the charge. The presence of Cusenza's attorney and the court's questions about consulting with an attorney are contributing, but not sufficient, factors in our analysis.

The recitation of facts by the United States Attorney, ostensibly for the purpose of satisfying the requirements of Rule 11(f), provides a second suggestion that Cusenza understood the nature of Counts I, V, and XII. ¹ The prosecutor described telephone conversations between a government witness in Illinois and co-defendant Goodson in California. The prosecutor further described how Goodson and Cusenza flew from California to St. Louis, Missouri in order to discuss purchasing marijuana with the government witness and undercover FBI and DEA agents. Finally, he described the agreement, Cusenza's long-distance telephone call to co-defendant Srader, and Srader's arrival with the money. When the prosecutor finished relating these facts, the court asked Cusenza if he understood "that basically that's what you are admitting to, that's what you are pleading guilty to." Cusenza answered, "Yes, sir."

Third, after the United States Attorney's recitation of facts and the defendant's admission of those facts, the court asked Cusenza a series of questions about his part in the conspiracy.

[The Court] Mr. Cusenza, when you were arrested there was some sixty thousand dollars taken from you, you or Mr. Srader, I don't remember who it was.

[U.S. Attorney] It was on a table.

THE COURT: In the motel room.

MR. CUSENZA: Are you asking, Judge, where the money came from or who brought the money?

THE COURT: Where did the money come from?

A. Came from Mr. Srader.

THE COURT: Srader?

A. Yes, sir.

THE COURT: Where did you fit into this picture?

A. Merely as a middle man capacity.

THE COURT: Do you know where Mr. Srader got the money?

A. No, sir.

Q. What was your part in [the deal]?

A. Just to get the two parties together.

Q. Which two parties?

A. Mr. Srader and the person that Mr. Goodson had introduced me to.

Q. I thought that was Mr. Goodson's job to get the parties together?

A. It's fairly obvious, Your Honor, that I came there with Mr. Srader, I had Mr. Srader come and then before Mr. Goodson introduced me to these people that were supposed to supply marijuana.

Considering these three portions of the change of plea proceedings, we believe that the defendant--a twenty-nine year old with a high school education and "a little bit of college"--understood the nature of Counts I, V, and XII. We recognize that this court stated in Wetterlin that the "charge of 'conspiracy' is not a self-explanatory legal term or so simple in meaning that it can be expected or assumed that a lay person understands it." 583 F.2d at 350. But Wetterlin involved a very complex conspiracy to defraud a public board and to bribe public officials; the conspiracy here is a fairly simple agreement to purchase and distribute marijuana. Thus, in terms of complexity, the conspiracy in this case is more like the aiding and abetting a kidnapping charge in Gray than the twenty-five page conspiracy charge in Wetterlin. In Wetterlin, the government also failed to establish a factual basis for the conspiracy charge. Thus the district court sentencing Wetterlin could not have relied on the defendant's assent to the statement of facts and determined that Wetterlin understood the nature of the charge. 583 F.2d at 352 (finding violation of Rule 11(f)). In the present case, the prosecutor related the...