U.S. v. Johnson
| Citation | 89 F.3d 778 |
| Decision Date | 31 July 1996 |
| Docket Number | No. 94-2149,94-2149 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gary Lorenzo JOHNSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Robert A. DuChemin, Orlando, FL, for Appellant.
Rick L. Jancha, James Glazebrook, Asst. U.S. Attys., Orlando, FL, Tamra Phipps, Asst. U.S. Atty., Tampa, FL, Edward L. White, III, Asst. U.S. Atty., Orlando, FL, for Appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER *, District Judge.
Rule 11(e)(1) of the Federal Rules of Criminal Procedure directs that the district court will not participate in any discussions to reach a plea agreement. Appellant Gary Lorenzo Johnson contends that the district court violated this injunction. We reject the contention, and other claims asserted, and affirm.
On the eve of trial, Johnson pled guilty to two counts of an eight-count indictment: count one, charging conspiracy to possess with intent to distribute 50 grams of crack, and count five, charging possession of five or more grams of crack with intent to distribute. The government dismissed two forfeiture counts against him. Johnson was sentenced but, following this court's decision in United States v. Rockman, 993 F.2d 811 (11th Cir.1993), the government moved for resentencing and this court remanded for resentencing of Johnson. At the start of the resentencing hearing, Johnson moved to withdraw his guilty plea, but the motion was denied. He was sentenced to 127 months followed by five years supervised release. On this appeal, Johnson raises several points, the principal one being the alleged violation of Rule 11(e)(1).
Violation of Rule 11(e)(1)
Johnson contends that during the colloquy preceding entry of his plea the court participated in the plea discussions in violation of Rule 11(e)(1). He argues that the district court violated Rule 11(e)(1) when, after he had said on at least three occasions that he could not plead guilty to the amount of cocaine charged by the government in the conspiracy count, the court made the following statement:
Mr. Pesquera, let me discuss this with you and Mr. Johnson. It would seem to me that if he pleads guilty to Count V, he is admitting the substantive offense. Then the government will come in and prove the conspiracy. He could certainly take a gamble that the jury would find he had not conspired with the substantive offense, but he would have already pled guilty to the facts of the substantive offense, and the only issue would be whether he conspired with anyone else. It doesn't have to be a jury question as to the amount.
Johnson contends that when the court said, "let me discuss this with you ...," she was participating in plea discussions.
To determine whether a violation of Rule 11(e)(1) occurred, the court's statement must be viewed in context. At the plea hearing, held on November 12, 1991, the following relevant exchanges occurred:
THE COURT: What is the situation in this case?
MR. PESQUERA (Defense counsel): My client has decided to enter a plea of guilty to both counts of the indictment in which he appears.
* * * * * *
After Johnson was sworn and gave his name, the court asked him:
Q. I've been advised you want to enter a plea of guilty to Counts One and Five.
Those are felony counts. Do you understand that?
A. Yes, I do. (Tr. 3)
* * * * * *
Q. I was told by Mr. Pesquera and Mr. Jancha [government counsel] there is no plea agreement in this case. Do you understand that?
A. Yes, Your Honor. (Tr. 4)
* * * * * *
Q. Have you decided you just want to plead straight up?
A. Yes. (Tr. 5)
* * * * * *
Q. Do you understand the charges against you?
A. Count One is the one I believe we are going to argue with.
Q. Count One is the conspiracy charge?
A. Yes, Your Honor.
Q. That charges a violation of Title 21, United States Code, Section 846 ... (court describes the elements of the offense).
A. Yes.
Q. What are you telling me about an argument with the charge?
A. On our Count One it say [sic] 50 grams or more of a mixture of cocaine base. What I'm saying is I didn't sell 50 grams. I sold 34.6 grams.
Q. So you contest the amount of cocaine?
A. Yes, Your Honor.
Q. Do you contest anything else about the charges against you in Count One?
A. No, besides the 50 grams or more.
Q. There is a disagreement as to the amount of cocaine and you do enter a plea of guilty to the charge against you. You are telling me you do not agree with the amount of cocaine, but you do admit there was some cocaine involved?
A. Yes, Your Honor.
Q. (Court explains that the court will rule on amount of cocaine at the sentencing hearing and that it could impact the sentence.) (Tr. 7-9)
* * * * * *
Q. ... You understand you have no obligation to enter a plea of guilty to any charge in this case? Is that clear to you?
A. Yes, Your Honor.
Q. You have told me you want to plead guilty to Counts [sic] One and Count Five. Do you feel anyone had done anything which you consider wrong or unfair to get you to plead guilty to these charges?
A. I wouldn't call it unfair, but in Count One with the amount and years I'm facing, I feel a man should be tried on what he sold....
A. Yes, Your Honor.
Q. So if you enter a plea of guilty and we get to the sentencing and you don't like your sentence, you are not going to be able to withdraw your plea of guilty. Do you understand?
A. Yes.
Q. Do you feel that you have been threatened, pressured or coerced or treated improperly in order to get you to plead guilty?
A. It would go back to the same statement.
Q. The disagreement over the amount?
A. Yes.
Q. Aside from your disagreement over the amount, any improper position that's been taken, or pressure placed on you?
A. No, Your Honor.
Q. Do you want to plead guilty to these charges because you are guilty to [sic] the charges, or for some other reason, even being mindful that you disagree as to the amount?
A. Yes, I will want to plead guilty because I am guilty. (Tr. 11-13)
* * * * * *
After eight more transcript pages of colloquy concerning sentencing, Johnson asked:
Q. ... May I ask you something?
A. Yes.
Q. You say I have two counts. Ain't no way I could plead guilty to Count Five and try to fight the Count One? I can't do nothing like that?
* * * * * *
After further colloquy, the court addressed the factual basis for the conspiracy charge.
* * * * * *
After further colloquy as to factual basis:
THE COURT: Mr. Jancha, I am uncomfortable accepting a plea of guilty to Count One based on a statement he bought from someone who did not know he was going to distribute it. (Tr. 29)
* * * * * *
After colloquy with government counsel:
To continue reading
Request your trial
-
United States v. Tobin
...S.Ct. at 1169. The Supreme Court held that such a defendant should be allowed to withdraw his guilty plea. Id. 25. In United States v. Johnson, 89 F.3d 778 (11th Cir.1996), we declined to conclude that there was a Rule 11 violation. Id. at 782–84. Our decision in that case rested on the unu......
-
United States v. Yazzie
...of a guilty plea as compared to going to trial is inherently coercive, no matter how well-intentioned." United States v. Johnson, 89 F.3d 778, 783 (11th Cir. 1996)[, abrogated on other grounds as stated inUnited States v. Davila, --- F.3d ---, 2014 WL 1428018, at *7 n.8 (11th Cir. April 15,......
-
State v. Treptow
..., 203 F.3d 66, 69–70 (1st Cir. 2000). But see United States v. Beck , 250 F.3d 1163, 1166–67 (8th Cir. 2001) ; United States v. Johnson , 89 F.3d 778, 784 (11th Cir. 1996), abrogation on other grounds recognized by United States v. Davila , 749 F.3d 982 (11th Cir. 2014). Further, an explici......
-
United States v. Wiggins
.... . . [and] admits no exceptions." United States v. Harrell, 751 F.3d 1235, 1239 (11th Cir. 2014) (quoting United States v. Johnson, 89 F.3d 778, 783 (11th Cir. 1996)); see also United States v. Tobin, 676 F.3d 1264, 1307 (11th Cir. 2012). The "prohibition on court participation in plea neg......