U.S. v. Lumpkins, 86-2706

• Decision Date: 03 May 1988
• Docket Number: No. 86-2706,86-2706
• Citation: 845 F.2d 1444
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe S. LUMPKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1444

845 F.2d 1444

UNITED STATES of America, Plaintiff-Appellee, v. Joe S. LUMPKINS, Defendant-Appellant.

No. 86-2706.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 8, 1988.

Decided May 3, 1988.

Scott R. Shepherd, Skadden, Arps, Slate, Meagher & Flem, Chicago, Ill., for defendant-appellant.

Bradley W. Murphy, Asst. U.S. Atty., Gerald D. Fines, U.S. Atty., Peoria, Ill., for plaintiff-appellee.

Before CUMMINGS, CUDAHY and POSNER, Circuit Judges.

CUDAHY, Circuit Judge.

Joe Lumpkins asks that we allow him to withdraw his plea of guilty to four counts of sending threatening communications by mail, because the plea was entered involuntarily and lacked a sufficient factual basis. Lumpkins, acting with the assistance of counsel, pleaded guilty to four counts of an eight-count indictment charging violations of 18 U.S.C. Sec. 876 (1982). At the sentencing hearing, where he was given a prison term that exceeded the Assistant United States Attorney's recommendation by two years, Lumpkins suggested that he had misunderstood the implications of his plea. The district judge reviewed the transcript of the plea hearing and reaffirmed his earlier conclusion that the plea was voluntary.

On appeal, Lumpkins renews his argument that he pleaded without fully understanding the possible consequences. He also asserts that the plea lacked a sufficient basis in fact. Specifically, Lumpkins contends that his plea was involuntary for purposes of the due process clause of the fifth amendment because of his confusion about the effect of the prosecutor's sentencing recommendation and the burden of proof with respect to his statute of limitations defense. He further contends that the district judge violated Rule 11(f) of the Federal Rules of Criminal Procedure by failing to establish an adequate factual basis for the guilty plea. For the reasons that follow, we affirm.

I.

Lumpkins was indicted on May 21, 1986, on eight counts of sending threatening letters to his former wife. ¹ The letters were allegedly mailed from prison where Lumpkins was serving a sentence for attempting to murder the same woman and for sending her threatening letters. Lumpkins filed three documents in opposition to the indictment. Two of these, a "Motion to Void Prosecution" and a "Motion for Declaratory Judgment," were filed pro se on June 23, 1986. These motions denied that the letters were intended to be threatening and alleged that at least one of the letters had been sent outside the statute of limitations period (i.e., more than five years before the indictment was handed down). Lumpkins was then given appointed counsel, who filed a Motion to Dismiss on July 18, 1986, alleging that five of the counts were time-barred. ²

In August, 1986, Lumpkins pleaded guilty to four of the eight counts charged in the indictment. In return for the guilty plea, the government dropped counts five through eight and recommended a sentence of eight years' imprisonment followed by five years' probation. As required by Rules 11(c) and (d) of the Federal Rules of Criminal Procedure, the district court conducted a hearing to ensure that Lumpkins' plea was knowingly and voluntarily entered. ³ The judge's efforts to establish that Lumpkins understood the charges against him, including the pertinent statute of limitations, are reflected in the following transcript excerpts:

THE COURT: Mr. Lumpkins, you've heard the representations of the Assistant United States Attorney as to what the government's evidence would establish if this matter went to trial, did you not?

MR. LUMPKINS: Right.

THE COURT: Is that an accurate statement of what happened?

MR. LUMPKINS: You know, I really don't want to--I really don't know what to say, you know, I'd say it's accurate, yes.

THE COURT: There is a specific reference made to four letters sent on certain dates. Are those dates accurate to the best of your knowledge?

MR. LUMPKINS: To the best of my knowledge they are accurate.

THE COURT: And did you actually write those letters?

MR. LUMPKINS: Yeah, at one time I actually writ them.

THE COURT: Did you mail those letters?

MR. LUMPKINS: I mailed them, but the problem with them letters is, and there is no way to prove it, that they was mailed seven years and put in envelopes to go out to send money to the kids. I can't prove it.

The best thing I can do--there is no way to prove it.

THE COURT: Are you saying that you did not cause to be delivered--

MR. LUMPKINS: I actually, yes, I caused them to be delivered at one time.

THE COURT: Are you saying that you deny that you caused them to be delivered on the dates that it is charged that they were placed in the mail?

MR. LUMPKINS: Right. But I writ the letters and I had them delivered and I also had the envelopes delivered. But what happened is she just--and there is no way I can prove it, you know, because it's such a mess. Your Honor, it's just a mess. That's just all it is, and there is no way--

THE COURT: Well, the concern that I have of course is that anyone would plead guilty to something for which they don't believe they are guilty.

MR. LUMPKINS: Your Honor, I am because I writ the letters. I written the letters. I've never denied writing the letters. The first time I seen the letter I told them yes, I writ it. The only thing that is confusing about it is the time difference in the way that the people and the prosecutor is all in honestly of what he's saying, he believes that. He's in all honesty, he's not falsifying nothing. It is the people that gave him the letters is where they got falsified at, and I have no way of proving that they got falsified. But I did have them delivered.

THE COURT: If I understand what you are saying, you don't deny writing these letters or mailing the letters, but you're saying that the letters were mailed much earlier than the indictment would indicate that they were mailed to the point where the statute of limitations has run?

MR. LUMPKINS: What happened, you see--

THE COURT: Is that correct or not?

MR. LUMPKINS: I'm serving time for threatening letters. These letters were written with that bunch of letters, but while I'm in federal prison I sent envelopes with money to my children. That they taken these letters and put them in those envelopes, and I'm still guilty.

THE COURT: Are there dates on the letters themselves?

MR. LUMPKINS: No, I never date a letter. I don't think half of them is signed. I don't think half of them is even signed because, you know, because I sent her money every month the whole time I've been down. I work in the factory and I sent her money for my children the whole time I'm down. And that's where I messed up trying to help the kids.

.... THE COURT: Well, the point I want to make and make very clearly here, Mr. Lumpkins, is I want to be convinced that you're entering this plea voluntarily.

MR. LUMPKINS: I'm entering it voluntarily. I asked the attorney to negotiate the plea. I asked him to negotiate it. But the only thing I was trying to point out to him is I'm not saying all the letters that he's got indicated is that way, but some of the letters were.

THE COURT: I just want to be sure that you understand, as I said earlier, that you have no duty to prove your innocence. The government has the duty to prove you guilty by competent evidence and beyond a reasonable doubt before you can be found guilty.

I don't want you to feel like you are for some reason coerced into entering this plea. It is your decision as to whether or not you wish to plead guilty, but I just want to be sure you clearly understand all your rights and you are not waiving those rights when you are pleading guilty.

MR. LUMPKINS: Right.

THE COURT: And you assure me that that's what you are doing?

MR. LUMPKINS: Right.

THE COURT: The Court finds an accurate factual basis exists for the entry of the plea in this case.

Tr. at 35-40 (Aug. 15, 1986 Plea Hearing).

The court also inquired into Lumpkins' understanding of the maximum sentence he could receive:

THE COURT: If the Court were to sentence you to the maximum provided by law under each of these four counts the total potential sentence that you could receive pursuant to this plea agreement would be up to 20 years in prison and a fine of up to $4,000. Do you understand that?

MR. LUMPKINS: No, I don't understand that.

THE COURT: You are charged, you are tendering a plea of guilty to four counts here?

MR. LUMPKINS: Right.

THE COURT: Each of them carries with it a maximum penalty of up to five years in prison and a fine of up to $1,000?

MR. LUMPKINS: Right.

THE COURT: If the Court were to sentence you to the maximum sentence in each of those counts and ordered that sentence would be served consecutively, that is that the sentence on Count II, for example, would begin to run when the sentence on Count I was completed, and so on. Then if you add all four of those counts together, four times five, four times five years would be 20 years, and four times $1,000 would be $4,000. So that the maximum sentence that the Court could impose under these counts in this case would be imprisonment for a period of up to 20 years and up to a fine of $4,000. Do you understand that now?

.... [The transcript indicates a break for Lumpkins to confer with his attorney.]

THE COURT: Okay?

MR. LUMPKINS: Yeah, okay. I understand that.

THE COURT: You're sure? If you have any question about it now is the time to ask.

MR. LUMPKINS: No. No questions.

THE COURT: Pardon?

MR. LUMPKINS: No questions.

THE COURT: I'm not saying that that is the sentence the Court will impose, but I want you to understand that theoretically the Court could impose that sentence pursuant to this agreement. Do you understand that?

MR. LUMPKINS: Yeah.

Id. at 30-32. At the conclusion of the plea hearing, the district judge found, despite some indications of confusion on Lumpkins' part, that the defendant understood the essentials of the charges against him.

The...