U.S. v. Davis, 74-1902

• Decision Date: 15 May 1975
• Docket Number: No. 74-1902,74-1902
• Citation: 516 F.2d 574
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eddie Lee DAVIS, a/k/a Big Daddy, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 574

516 F.2d 574

UNITED STATES of America, Plaintiff-Appellee, v. Eddie Lee DAVIS, a/k/a Big Daddy, Defendant-Appellant.

No. 74-1902.

United States Court of Appeals Seventh Circuit.

Argued Feb. 27, 1975.

Decided May 15, 1975.

Allan A. Ackerman, Tyce S. Smith, Chicago, Ill., for defendant-appellant.

William J. Mulligan, U. S. Atty., David B. Bukey, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before HASTINGS, Senior Circuit Judge, and STEVENS and TONE, Circuit Judges.

TONE, Circuit Judge.

In this appeal from a judgment of conviction upon a plea of guilty, the defendant contends that there was no factual basis for his plea, as required by Rule 11, Fed.R.Crim.P., because he denied his guilt while persisting in his guilty plea. We affirm the judgment.

On the day trial was scheduled to begin on an indictment charging defendant Eddie Lee Davis with conspiracy to violate and a substantive violation of the Mann Act (18 U.S.C. § 2421), he appeared with his retained counsel and sought to withdraw his previously entered plea of not guilty and to enter a plea of guilty. The same counsel had represented Davis about four months earlier in a trial before a jury on another indictment under the Mann Act in which he and another defendant were found guilty, each receiving two consecutive four-year sentences of imprisonment. ¹ Davis and his counsel had been well acquainted, according to counsel's statement at the hearing on change of plea, for more than ten years.

At the hearing on the change of plea, counsel for the government stated that a plea agreement had been entered into under which Davis would enter a plea of guilty to the first count of the indictment; the second count would be dismissed on the government's motion upon sentencing; the government would stand mute on the question of whether the sentence imposed should be consecutive to the sentence imposed in the earlier case; Davis would not be called on behalf of the government as a witness in the trial which was scheduled to start later that morning against the remaining defendant; ² the government would present those matters it felt appropriate to the Probation Department for inclusion in a presentence investigation report, if one was to be prepared; and Davis would surrender himself to begin serving his sentence on January 2, 1975. Davis's counsel acknowledged that the plea bargain was as stated by counsel for the government. The court then proceeded to conduct the hearing required by Rule 11, Fed.R.Crim.P.

When the court asked Davis whether he was guilty, he responded in substance that he had been found guilty in the earlier case, although he did not feel he was guilty, and he thought that he would be found guilty in the instant case. Davis's counsel then stated that he thought Davis was entitled to have the benefit of his plea bargain under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Thereupon, in response to a request by the court, counsel for the government presented a detailed summary of the evidence that would be presented if the case were tried. The court then asked Davis whether he agreed with the substance of what the government had said. The gist of the ensuing lengthy colloquy, which was interrupted by two recesses, is as follows:

Davis said repeatedly that he believed the government witnesses would testify as government counsel represented but they would be lying when they did so. When the court and counsel for the government expressed doubts about whether it was proper to accept a guilty plea under these circumstances, Davis's counsel argued persistently and vigorously that under North Carolina v. Alford, supra, Davis was entitled to the benefit of his plea bargain. At length the court declined to accept the plea and the hearing was suspended, apparently with the expectation that Davis would begin the trial before another judge that same morning.

Later that morning the hearing was reconvened at the request of Davis's counsel, who said that in a further conversation after the earlier session his client had indicated "that he may have overstated somewhat his disagreement with the Government's evidence," and had said there were three specific areas of disagreement: first, that he himself did not travel with one Carolyn Wunderlich when she was allegedly transported across a state line; second, that the anticipated testimony of one witness that her average daily income from prostitution was about $70, most of which she gave to the defendant, would be incorrect because $70 was not an accurate figure; and third, that in Davis's opinion "there was no overt concerted discussion which resulted in an agreement among the parties." In response to an inquiry by the court, Davis acknowledged that his counsel's statement was correct. Counsel for the government then read the indictment and asked Davis's counsel what portion, if any, his client objected to. The following then ensued:

"Mr. Schwartz (Davis's counsel): There is no objection from the client with reference to these conclusions.

. . . Sc

"As a legal conclusion, he has no objection to that. That Carolyn Wunderlich travelled to Joliet and that she worked as a prostitute there, and that you had some things to do or that somebody within the group of people had something to do with that travel. Is that right?

"Mr. Davis: Yeah.

"The Court: Well, Mr. Davis, you heard this.

"Mr. Davis: Yes, sir.

"The Court: Essentially it is being alleged that you and some other people by working together, and that is what the Government would call a conspiracy, working together, even though you didn't actually sit around the table and say this is what we are going to do, that by working together you did transport women to Joliet for purposes of prostitution.

"Mr. Schwartz: Not that you physically carried her, but it was arranged by someone within that group.

"Mr. Davis: Yeah. I knew about it. But I didn't drive them.

"The Court: And is that your difference of opinion, because you feel that since you didn't personally drive them there that you weren't responsible?

"Mr. Davis: Yeah."

The court then accepted the plea of guilty because of "the testimony of Mr. Davis now in open Court on the record and the prior answers to questions which the Court presented to him." Judgment was entered on the plea, and the court proceeded to impose a five-year sentence, which, although the record is unclear on the point, the parties agree is to run concurrently with the sentences imposed in the earlier case.

In this direct appeal from the judgment and sentence, Davis, represented by different counsel, challenges the basis for the plea. His first contention is that although he was adequately advised of the consequences of his plea at the first session on the morning the motion for change of plea was heard, the court's failure to repeat that advice when the hearing was reconvened later that same morning was error requiring reversal. This contention is frivolous. Rule 11 did not require the repetition of information which the defendant had heard and acknowledged he understood in the earlier session the same morning.

Davis's principal contention is that a factual basis for the plea was lacking. The district judge apparently believed that it would be improper to accept the guilty plea unless the defendant acknowledged his guilt, for, until Davis acknowledged the truth of all except three details of the charge, the judge declined to accept...