U.S. v. Diaz
| Decision Date | 14 April 1998 |
| Docket Number | No. 96-4405,96-4405 |
| Citation | 138 F.3d 1359 |
| Parties | 11 Fla. L. Weekly C1254 UNITED STATES of America, Plaintiff-Appellee, v. Evangelio DIAZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Rhonda A. Anderson, Miami, FL, for Defendant-Appellant.
William A. Keefer, U.S. Atty., Harriett R. Galvin, Dawn Bowen, Carol Herman and Nina Stillman Mandel, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before DUBINA and BARKETT, Circuit Judges, and GODBOLD, Senior Circuit Judge.
Appellant Evangelio Diaz ("Diaz") and co-defendant Anibal Quiles ("Quiles") were charged by a federal grand jury in the Southern District of Florida with conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846 (Count I); possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)(Count II); and distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1)(Count III). After a trial by jury, Diaz was convicted of all three counts. 1 Diaz was sentenced to three concurrent terms of 121 months of imprisonment and concurrent five-year terms of supervised release. He then perfected this appeal, which presents the issue of whether the district court improperly participated in plea negotiations, in violation of Fed.R.Crim.P. 11(e).
In 1993, federal and state law enforcement agencies began an operation in South Florida called "Hard Rock." The purpose of the operation was to alleviate inner city drug trafficking. While acting in an undercover capacity, Special Drug Enforcement Agency ("DEA") Agent Eric Williams ("Williams") met Diaz and two confidential informants ("CI # 1") and ("CI # 2"), at Bavarian Auto Parts in Miami to discuss the purchase of three ounces of crack cocaine. Agent Williams overheard Diaz tell CI # 1 that the crack cocaine would arrive shortly. When Agent Williams asked CI # 1 why Diaz had rushed them to the location when the cocaine was not ready, Diaz replied "What he [CI # 1] is not telling you, man, is that I had it, I had it ... since last week, and you all are late." (1SR1:19). Agent Williams then observed Quiles leaving the scene after speaking with Diaz. Diaz told Agent Williams that Quiles had gone to get the cocaine.
A short time later Quiles returned to the used car lot. He motioned Williams, Diaz, and CI # 1 inside the office. Once inside, Williams observed Quiles holding three small clear plastic bags containing what appeared to be powder cocaine. Quiles attempted to give the bags to Agent Williams who told Quiles that the product looked good but was not crack cocaine and that he did not know how to cook it.
Diaz then interjected and said, "Don't worry about that, I will cook it for you." (1SR1:24). Agent Williams and CI # 2 then left the scene to get some food, while Diaz and CI # 1 went to "cook" the powder cocaine.
When Agent Williams and CI # 2 returned, Quiles told them to be patient and wait for Diaz who was bringing the package back. Later, CI # 1 called Williams and told him that Diaz was having the cocaine powder cooked into crack cocaine and they would be returning shortly.
When Diaz returned, he showed Agent Williams rock-like substances contained in aluminum foil wrapping. Agent Williams remarked that the crack cocaine looked ugly, but Diaz insisted it was of good quality. CI # 1 told Agent Williams that the package really was crack cocaine because he had observed Diaz and his friends processing it.
Agent Williams gave Diaz $2,250 in cash. Diaz apologized for taking so long to complete the deal and promised that next time things would run more smoothly. Agent Williams and the two informants left the scene with the crack cocaine. Later, Diaz and Quiles were arrested. According to laboratory analysis, the substance given to Agent Williams by Diaz contained 62.8 grams of 86% pure cocaine base.
On the day that Diaz and Quiles appeared before the district court for trial, Quiles' lawyer advised the court that Quiles intended to plead guilty, although there was no plea agreement. At that point, the court asked that Diaz and his lawyer be brought into the courtroom. The district court then asked the prosecutor for information about the facts of the case, and the prosecutor summarized the government's evidence.
The district court inquired as to the penalties for both defendants under the sentencing guidelines, as well as any mandatory statutory penalties, and the prosecutor responded that they each faced a ten-year minimum mandatory prison term. The district court also inquired about the defendants' prior records and spent some time determining the exact nature and extent of Diaz's previous convictions for the purpose of ascertaining his criminal history category.
The district court then asked, "If Mr. Diaz goes to trial, is Mr. Quiles going to testify against him?" (1SR1:15). 2 The prosecutor responded that while Quiles was willing to testify, a decision had not been made as to whether he would. Additionally, the prosecutor stated that the undercover officer could provide the same testimony and that his testimony would be corroborated by two surveillance agents who saw the transaction, as well as by a videotape. The district court remarked, "That's a lot of evidence." (1SR1:16). Diaz's attorney informed the court that Diaz would probably enter into plea negotiations with the government if the government would agree to stipulate that the controlled substance involved in the offense was six ounces of powder cocaine. The prosecutor then asked the district court to give the parties fifteen minutes in the hope that the whole case could be resolved. In response, the district court said the following:
THE COURT: Okay. Because I think that, see, Mr. Diaz, with all of this, I'm glad to go to trial here, I've got the jurors outside, we're going to trial. There's no problem about that.
But you need to think about you, because if this is a one-day or two-day trial, and you're going to risk ten years in prison you need to think about your options. You know, I'll be glad to sit here, we're glad to try your case, but when all of this evidence is going to be introduced by agents and undercover conversations with you and videotapes, the evidence is kind of compelling. The only hangup is this crack or powder cocaine issue, really.
All right. We will be in recess until 11:00.
(1SR1:18).
At 11:30 a.m., the parties returned and the prosecutor stated that she had not been able to determine whether her office would accept a plea of guilty with the stipulation that the substance was powder cocaine but she would find out after the lunch hour. The district court stated that it was unlikely that such a plea would be acceptable to the government because (1SR1:20). The district court then gave the defendants the option of pleading guilty or going to trial. The court advised the defendants that the question of whether the cocaine was crack or powder was a sentencing issue. Quiles pled guilty to Count III of the indictment. Diaz exercised his right to go to trial and was convicted on all three counts of the indictment.
The court found that Diaz was responsible for a drug offense involving 62.8 grams of crack cocaine. Under the sentencing guidelines, the applicable sentencing range for that amount of crack cocaine was 121 to 151 months imprisonment. U.S.S.G. §§ 2D1.1(a)(3), 5A (Sentencing Table) (Nov.1995). The court sentenced Diaz to 121 months, the lowest possible sentence within the guidelines range, stating "I am not punishing the defendant because he went to trial." (R4:20).
Diaz argued for a lower sentence on several grounds, all of which were rejected by the district court. First, he asserted that he was responsible for 84 grams of powder cocaine rather than 62.8 grams of crack cocaine. Second, he argued that he was entitled to a reduction in his offense level for acceptance of responsibility under U.S.S.G. § 3E1.1. Third, he claimed that he was entitled to a two point reduction in his offense level pursuant to the safety valve provision of 18 U.S.C. § 3553(f).
A violation of Fed.R.Crim.P. 11(e)(1) is plain error and, pursuant to its supervisory power over the district courts, the court of appeals may raise such a violation sua sponte and order a resentencing of a defendant who pleads not guilty and demonstrates no actual prejudice in his trial or sentence. United States v. Adams, 634 F.2d 830, 831-32 (5th Cir. Unit A Jan.1981). 3
Diaz contends that the district court violated Fed.R.Crim.P. 11 when it announced that the United States Attorney's office would not approve a guilty plea that involved a stipulation that Diaz possessed crack cocaine. He also argues that he was prejudiced at sentencing because the district court's participation in the plea negotiation process prevented him from accepting responsibility, apparently for possessing powder cocaine, which he was prepared to do but for the court's interference.
Fed.R.Crim.P. 11(e)(1) provides as follows:
The attorney for the government and the attorney for the defendant ... may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty ..., the attorney for the government will [dismiss charges, agree to recommend or not oppose a request for a particular sentence, or agree that a specific sentence is appropriate]. The court shall not participate in any discussions.
(Emphasis added). Rule 11's prohibition on court participation in plea negotiations is designed to entirely eliminate judicial pressure from the plea bargaining process. United States v. Casallas, 59 F.3d 1173, 1178 (11th Cir.1995); United States v. Corbitt, 996 F.2d...
To continue reading
Request your trial
-
Hoskins v. Maricle, No. 2002-SC-0579-MR.
...United States v. Adams, 634 F.2d 830, 835 (5th Cir.1981), superseded by regulation on other grounds as stated in United States v. Diaz, 138 F.3d 1359, 1364 (11th Cir.1998). A "charge bargain," is an agreement by the prosecutor to reduce the original charge in exchange for the defendant's ag......
-
United States v. Tobin
...involved in evaluating the degree of judicial participation.” Id. at 1177, 1178 (quotation marks omitted).25 In United States v. Diaz, 138 F.3d 1359 (11th Cir.1998), the district court told the defendant right before trial: “I'm glad to go to trial here, I've got the jurors outside, we're g......
-
State v. D'ANTONIO
...his chances of obtaining a fair trial before a judge who he has challenged." (Internal quotation marks omitted.) United States v. Diaz, 138 F.3d 1359, 1363 (11th Cir.), cert. denied, 525 U.S. 913, 119 S. Ct. 259, 142 L. Ed. 2d 213 (1998). The federal courts, however, also have determined th......
-
Hoskins v. Maricle, No. 2002-SC-0579-MR (KY 12/16/2004)
...United States v. Adams, 634 F.2d 830, 835 (5th Cir. 1981), superseded by regulation on other grounds as stated in United States v. Diaz, 138 F.3d 1359, 1364 (11th Cir. 1998). A "charge bargain," is an agreement by the prosecutor to reduce the original charge in exchange for the defendant's ......
-
Appellate Practice and Procedure - William M. Droze and Andrea L. Siedlecki
...915, 919-20 (11th Cir. 1998). 165. NLRB v. McClain of Georgia, Inc., 138 F.3d 1418, 1422 (11th Cir. 1998). 166. United States v. Diaz, 138 F.3d 1359, 1362 (11th Cir. 1998). 167. Grossfeld v. CFTC, 137 F.3d 1300, 1302 (11th Cir. 1998). 168. United States v. Pielago, 135 F.3d 703, 707 (11th C......