U.S. v. Gaudet

• Decision Date: 30 April 1996
• Docket Number: No. 95-30638,95-30638
• Citation: 81 F.3d 585
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stanley J. GAUDET, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 585

81 F.3d 585

UNITED STATES of America, Plaintiff-Appellee, v. Stanley J. GAUDET, Defendant-Appellant.

No. 95-30638.

United States Court of Appeals, Fifth Circuit.

April 30, 1996.

Fred Patrick Harper, Jr., Stephen A. Higginson, Assistant U.S. Attorney, Office of United States Attorney, New Orleans, LA, for plaintiff-appellee.

Julian R. Murray, Jr., Chehardy, Sherman, Ellis, Breslin & Murray, Metairie, LA, for defendant-appellant.

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

Before REAVLEY, DAVIS and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Stanley Gaudet appeals the denial of his motion under 28 U.S.C. § 2255 for vacatur of his conviction and sentence. He argues that the court that convicted and sentenced him lacked jurisdiction to do so because he had not waived his right to be prosecuted by indictment. He also contends that he received ineffective assistance of counsel. Concluding that Gaudet's arguments are without merit, we affirm.

I.

Gaudet pled guilty to twenty-three counts of embezzlement. See United States v. Gaudet, 966 F.2d 959, 960 (5th Cir.1992) (Gaudet I ), cert. denied, 507 U.S. 924, 113 S.Ct. 1294, 122 L.Ed.2d 685 (1993). Although he was validly indicted on all of those counts, he actually pled to a superseding bill of information for the first twenty-two, and to the original indictment for the twenty-third. The bill of information differed from the indictment in only two ways: (1) It did not include the twenty-third count, which continued to survive as the sole count in the indictment; and (2) it characterized the first twenty-two counts as "continuing offenses."

Gaudet's retained counsel, Provino Mosca, had requested a superseding bill of information for the first twenty-two counts as part of his defense strategy, which was based on Mosca's "straddle offense" theory: By characterizing the offenses as continuous, Mosca hoped to argue that none of the offenses was completed until 1989, after the November 1, 1987, effective date of the sentencing guidelines. Mosca thus hoped to require application of the sentencing guidelines to every count, which in his judgment created the probability of a much more lenient sentence. ¹

Shortly after Gaudet pled guilty, Mosca withdrew from the case; federal public defender John Craft was appointed to replace him. At sentencing, the district court applied pre-guidelines law to the first eighteen counts and applied the sentencing guidelines to the remaining five counts. See id. at 961. It also ordered Gaudet to surrender his pension benefits in order to satisfy a restitution award. See id. Craft did not object to any of these actions.

On direct appeal, Gaudet argued, inter alia, that (1) the court should have applied the guidelines to all twenty-three counts, and (2) the court's order divesting him of pension benefits was illegal under the Employee Retirement Income Security Act of 1974 ("ERISA"). See id. Because Gaudet failed to object to these alleged errors, we applied the stringent plain error standard of review to his claims. See id. at 962-63. Holding that neither of Gaudet's claimed errors met that standard, we affirmed. See id. at 962, 964.

Proceeding pro se, Gaudet filed this § 2255 motion for vacatur of his conviction and sentence on the ground of ineffective assistance of counsel. ² After retaining counsel for the § 2255 proceeding, Gaudet amended his motion to include a challenge to the court's jurisdiction to accept his guilty plea, based on the ground that he had not waived his right to be prosecuted by indictment as required by FED.R.CRIM.P. 7(b). The district court denied his motion, and Gaudet appeals. ³

II.

" 'Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.' " United States v. Segler, 37 F.3d 1131, 1133 (5th Cir.1994) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.1992) (per curiam)). When raising issues of jurisdictional or constitutional magnitude for the first time on collateral review, ⁴ a defendant ordinarily must show both cause for his procedural default and actual prejudice resulting from the error. See id.; United States v. Shaid, 937 F.2d 228, 232 (5th Cir.1991) (en banc), cert. denied, 502 U.S. 1076, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992). This cause-and-actual-prejudice standard is significantly more rigorous than even the plain error standard we applied on direct appeal. See id.

In this case, however, Gaudet need not show cause and prejudice, as that standard applies only when the government raises the procedural bar in the district court. See United States v. Drobny, 955 F.2d 990, 995 (5th Cir.1992). This is true even when the government is the appellee (as was the case in Drobny ). In this case, the government did no more than object to Gaudet's waiver-of-indictment claim as a "last minute maneuver" coming at the "11th hour." These remarks are too equivocal to invoke the procedural bar. See id.

Even if the government had raised the procedural bar, Gaudet's ineffective assistance of counsel claim would satisfy the cause-and-prejudice standard. See United States v. Patten, 40 F.3d 774, 776 (5th Cir.1994) (per curiam), cert. denied, --- U.S. ----, 115 S.Ct. 2558, 132 L.Ed.2d 811 (1995); United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.), cert. denied, 506 U.S. 1007, 113 S.Ct. 621, 121 L.Ed.2d 554 (1992). ⁵ Thus, neither of Gaudet's claims is procedurally barred, and we proceed to the merits of his motion.

III.

Gaudet's first claim is that the court lacked jurisdiction to accept his guilty plea. He argues that FED.R.CRIM.P. 7(b), ⁶ requires an explicit waiver of indictment in open court and that the failure to obtain an explicit waiver deprived the court of jurisdiction to accept his plea. The government concedes that Gaudet did not expressly waive indictment but argues that waiver may be implicit in a colloquy between the court and the defendant.

Other circuits have held that a waiver of indictment can be implicit. In United States v. Travis, 735 F.2d 1129, 1131-32 (9th Cir.1984), the court inferred a waiver of indictment from the circumstances of the case before it:

The record reveals that Travis was informed of his rights and the charges against him in open court, he had the assistance of counsel during plea negotiations, and he entered a guilty plea to charges of which he had received notice by virtue of the original indictment. Although there may have been no explicit waiver, on the basis of the record before this court we find that waiver was implicit in the entry of Travis' guilty plea, and affirm.

The court also characterized the alleged defect as a " 'technical violation' of the rule, not a constitutional one." Id. at 1131.

In Ornelas v. United States, 840 F.2d 890 (11th Cir.1988), the court also inferred a waiver of indictment from the circumstances of the case before it:

Rule 7(b) authorizes the prosecution of a felony by information if the defendant waives indictment. The Rule does not require an express waiver; depending on the circumstances of the case, a waiver can be implied. All that Rule 7(b) commands is that the defendant waive indictment and that he do so in open court.

Id. at 892 (footnote omitted). ⁷ The court went on to say that "the district court's failure to obtain from the appellant an express waiver of indictment before accepting his plea to an information constituted ... a mere 'technical violation' of Rule 7(b)." Id. (quoting Travis, 735 F.2d at 1131). The court also noted that "[a] technical violation of Rule 7(b) is not an error that warrants relief pursuant to 28 U.S.C. § 2255." Id.

Gaudet tries to distinguish these cases, arguing that the waivers of indictment in Travis and Ornelas were implied in express plea agreements entered in open court. We find Gaudet's argument unpersuasive.

The reasoning of the Ninth and Eleventh Circuits did not depend on the plea agreements in those cases. Rather, the key to those cases was that the defendants had already been validly indicted and had voluntarily chosen, for whatever reason, to plead guilty to a superseding bill of information. The Travis and Ornelas cases stand for the proposition that, where a valid indictment has already been obtained, a defendant's decision to plead to a superseding bill of information includes an implicit waiver of indictment that satisfies rule 7(b). We find the reasoning of these courts persuasive, and we hereby adopt it.

Gaudet's reliance on United States v. Macklin, 523 F.2d 193 (2d Cir.1975), is misplaced. In that case, the grand jury's statutory term had expired before it had handed down the indictment. See id. at 195. Thus, the defendant had not been validly indicted. See id. Macklin did not involve a situation in which the defendant knowingly and voluntarily chose to proceed by information.

The Macklin court also found that the only possible predicate for a waiver of indictment was the guilty plea itself. See id. at 196. The court stated that the guilty plea alone could not satisfy the formal waiver requirements of rule 7(b). See id. The Macklin court did not say that a waiver must be express, but only that it must be made in open court. See id. Furthermore, the Macklin court did not opine that a waiver could never be inferred from the circumstances of the case--e.g., from a colloquy in open court between the district court and the defendant.

Unlike the defendant in Macklin, Gaudet had already been validly indicted when he pled to a superseding bill of information. Furthermore, the colloquy between the court and Gaudet reveals that the court informed Gaudet that he was pleading to a superseding bill of information as to the first twenty-two counts. Even more probative of an implicit waiver is the stark fact that Gaudet himself...