U.S. v. Leyland
| Citation | 277 F.3d 628 |
| Decision Date | 31 October 2001 |
| Docket Number | Docket No. 00-1274,DEFENDANT-APPELLANT |
| Parties | (2nd Cir. 2002) UNITED STATES OF AMERICA, APPELLEE, v. WILFRED WALKER LEYLAND, Argued: |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Appeal from the April 10, 2000, judgment of the United States District Court for the Western District of New York (Arcara, J.) sentencing appellant principally to 121 months imprisonment after denying appellant's motion to withdraw his guilty plea and dismiss the indictment on double jeopardy grounds.
Affirmed.
[Copyrighted Material Omitted] Molly Corbett, Federal Public Defender, Northern Districts of New York and Vermont, (Alexander Bunin, on the brief) Albany, NY for Defendant-Appellant.
Thomas A. Duszkiewicz, Assistant United States Attorney (Kathleen M. Mehltretter, United States Attorney for the Western District of New York, on the brief) Buffalo, NY for Appellee.
Before: Pooler and Katzmann, Circuit Judges, and Hurd, District Judge*
After a jury convicted him on conspiracy and drug possession charges stemming from a 1993 indictment, Wilfred Walker Leyland pleaded guilty to a conspiracy charge contained in a separate 1991 indictment. After the district court accepted his guilty plea on the 1991 indictment but before it sentenced him, Leyland moved to withdraw his plea and to dismiss the 1991 indictment on double jeopardy grounds. The United States District Court for the Western District of New York (Richard J. Arcara, J.), denied the motion, finding that Leyland waived his double jeopardy claims when he waited to raise them until after pleading guilty. The district court proceeded to sentence Leyland principally to 121 months imprisonment. For the reasons given below, we affirm the judgment.
Two indictments are at issue. On May 9, 1991, a federal grand jury issued an indictment (the "1991 Indictment") charging Leyland with conspiracy to possess with intent to distribute and distribution of quantities of cocaine and marijuana (Count One), in violation of 21 U.S.C. § 846, possession with intent to distribute marijuana (Count Six), in violation of 21 U.S.C. § 841(a)(1), and use of a telephone in furtherance of the conspiracy (Counts 25, 30, 33 and 37), in violation of 21 U.S.C. § 843(b). Count 64 sought criminal forfeiture of approximately $26,590 that the government seized from Leyland. The 65-count indictment named seventeen co-conspirators in addition to Leyland, and the alleged conspiracy took place from January 1, 1989, to March 5, 1991. The government converted its criminal forfeiture action into a civil forfeiture action by bringing an in rem complaint against the $26,590 on January 7, 1992. Leyland filed an answer, but he later stipulated to withdraw his answer. A judgment ordering the forfeiture issued on June 23, 1992.
A different federal grand jury issued a second indictment against Leyland on January 26, 1993 (the "1993 Indictment"). The 1993 Indictment charged Leyland with possession with intent to distribute more than 100 kilograms of marijuana (Count One), in violation of 21 U.S.C. § 841, and conspiracy to possess with intent to distribute more than 100 kilograms of marijuana (Count Three), in violation of 21 U.S.C. § 846. In addition to Leyland, the 1993 Indictment named one other co-conspirator, Gregory M. Scott. The alleged conspiracy in the 1993 Indictment took place from March 1, 1988, to November 24, 1992. Leyland moved to dismiss the 1993 Indictment because it was multiplicitous with the 1991 Indictment. The district court denied the motion after adopting the report and recommendation of the magistrate judge, who found the two indictments insufficiently similar to support dismissal on multiplicity grounds.
A trial jury convicted Leyland on both counts of the 1993 Indictment, and the district court sentenced him primarily to 76 months incarceration. Leyland appealed, and we affirmed the conviction. United States v. Leyland, 112 F.3d 506 (2d Cir. 1997) (table). Leyland raised neither a multiplicity nor a double jeopardy claim in his appeal.
After his receiving his conviction under the 1993 Indictment, Leyland agreed in January 1995 to plead guilty to Count One of the 1991 Indictment. In the plea agreement and at the plea hearing, Leyland admitted to facts sufficient to support his conviction under Count One. The district court accepted Leyland's guilty plea. Then, in September 1997, Leyland moved to withdraw his guilty plea and dismiss the 1991 Indictment, because the indictment violated his double jeopardy rights. The district court denied both motions. It found that Leyland waived his right to raise his double jeopardy claim when he pleaded guilty to a conspiracy in the 1991 Indictment that was facially different than the one charged in the 1993 Indictment. The district court also held that the prior civil forfeiture action did not provide grounds for a double jeopardy claim based on United States v. Ursery, 518 U.S. 267 (1996). The district court subsequently issued an order staying sentencing so that Leyland could pursue an interlocutory appeal. We dismissed the appeal, finding we lacked jurisdiction to hear an interlocutory appeal from the denial of a motion to dismiss on double jeopardy grounds. United States v. Aliotta, 199 F.3d 78, 80-84 (2d Cir. 1999). Leyland already had completed his prison sentence on the 1993 Indictment. The district court, on March 31, 2000, sentenced Leyland principally to 121 months imprisonment on the 1991 Indictment. In addition, the district court sentenced Leyland to 5 years supervised release, to be served concurrently with the supervised release term imposed on the 1993 Indictment. This appeal followed.
We review de novo the district court's denial of a motion to dismiss an indictment on double jeopardy grounds because it presents a question of law. United States v. Chacko, 169 F.3d 140, 146 (2d Cir. 1999). "We review a district court's denial of a motion to withdraw a guilty plea for abuse of discretion and any findings of fact in connection with that decision for clear error." United States v. Juncal, 245 F.3d 166, 170-1 (2d Cir. 2001).
Leyland attacks the 1991 Indictment on two fronts. He contends first that the conspiracy counts in the 1991 and 1993 Indictments are the same, punishing him twice for the same offense in violation of the Constitution's Double Jeopardy Clause. Next, Leyland argues that his civil forfeiture of $26,590 constitutes criminal punishment for the crimes charged in the 1991 Indictment and that his guilty plea subjects him to a second punishment. For the reasons given below, we affirm the district court's finding that Leyland waived both arguments when it accepted his guilty plea to the 1991 Indictment.
We consider first Leyland's argument that the conspiracy counts in the 1991 and 1993 Indictments are the same. We have held that the rights contained in the Double Jeopardy Clause are "personal and can be waived by a defendant." United States v. Mortimer, 52 F.3d 429, 435 (2d Cir. 1995). One context in which waiver of double jeopardy claims can take place is where the defendant enters a guilty plea, which is "an admission that he committed the crime charged against him," rather than merely " a confession which admits that the accused did various acts." United States v. Broce, 488 U.S. 563, 571 (1988) (internal quotations and internal citations omitted). Because a guilty plea has this legal effect, "a defendant who pleads guilty to two counts with facial allegations of distinct offenses concede[s] that he had committed two separate crimes." Id. at 570. Therefore, a defendant who signs a plea agreement before raising his double jeopardy claims waives the right to press those claims. Mortimer, 52 F.3d at 435. ("Mortimer's signed plea agreement provided that he...
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State v. Kelty, 2006 WI 101 (Wis. 7/12/2006)
... ... See United States v. Kurti , 427 F.3d 159, 162 (2d Cir. 2005) (applying Broce on direct appeal); United States v. Leyland , 277 F.3d 628, 631-32 (2d Cir. 2002) (same); United States v. Pollen , 978 F.2d 78, 83-84 (3d Cir. 1992); United States v. Quinones , 906 F.2d ... Broce , 488 U.S. at 576. Because the record in this case does not permit us to determine whether Kelty's double jeopardy rights have been violated, we conclude Kelty relinquished a unit-of-prosecution multiplicity challenge ... ...
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