U.S. v. Musa

• Decision Date: 02 December 1991
• Docket Number: No. 90-3122,90-3122
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Muhannad MUSA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1297

946 F.2d 1297

20 Fed.R.Serv.3d 1432

UNITED STATES of America, Plaintiff-Appellee, v. Muhannad MUSA, Defendant-Appellant.

No. 90-3122.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 6, 1991.

Decided Nov. 5, 1991.

As Corrected Nov. 26, 1991.

Rehearing Denied Dec. 2, 1991.

Ralph M. Friederich, Asst. U.S. Atty., Ranley R. Killian, Jr. (argued), Office of U.S. Atty., Criminal Div., East St. Louis, Ill., for U.S.

Daniel J. Pope, Bryan W. Sill (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for Muhannad Musa.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and MORAN, Chief District Judge. ^*

BAUER, Chief Judge.

On January 25, 1990, Muhannad Musa was charged in a one-count indictment with conspiracy to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 846 (1988). The indictment alleged that from October 1988 through June 1989, in the Southern District of Illinois, Musa knowingly and intentionally conspired with others to distribute in excess of 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) (1988).

On June 12, 1990, Musa appeared with counsel before District Court Judge James Foreman and entered a plea of guilty. Judge Foreman asked Musa preliminary questions to establish defendant's competency to plead, that he had consulted with counsel before deciding to plead guilty, and that he understood all the consequences of a guilty plea. The judge then asked the government to recite what the evidence would have shown if the case had proceeded to trial. The prosecutor made a lengthy and detailed proffer, the essence of which was that Musa was a supplier of cocaine to one Edward Witkowski, a convicted drug dealer from Mt. Carmel, Illinois, and had engaged in cocaine transactions with Witkowski and others in quantities of between 2 and 3.5 kilograms.

After the prosecutor finished his recitation, and in response to the judge's question, Musa disputed both the amount of cocaine involved and his role in the transactions. He claimed to be Witkowski's customer rather than his supplier, but did admit selling cocaine to an unindicted co-conspirator, Cynthia Yurina. The judge then asked Musa if he understood that at a trial he could present his own evidence to persuade a jury that he was a buyer, not a seller, of cocaine. Musa responded he understood, and persisted in his intention to plead guilty while at the same time persisting in his challenge to the amount of cocaine. Judge Foreman then restated that Musa did not dispute the evidence that he dealt in cocaine with Witkowski, regardless of his role. Musa repeated that he did engage in drug activities with Witkowski, and told the court he pled guilty as charged. Judge Foreman accepted his plea, ordered a presentence report, and set the matter for sentencing on September 10, 1990.

The presentence report prepared by the probation office tracked the government's allegations. Musa filed written objections to the report, contesting the amount of drugs attributable to him.

The central issue at Musa's sentencing hearing was the disputed amount of cocaine involved in the conspiracy. Special Agent Ron Bratcher of the Federal Bureau of Investigation testified to what cooperating co-conspirators told him regarding the amounts of cocaine Musa supplied Witkowski. According to those co-conspirators, Musa supplied Witkowski with thirteen ounces of cocaine between November, 1988 and January, 1989; three ounces in late January or early February, 1989; one kilogram in April, 1989, and a second kilogram in May, 1989.

Musa took the stand and denied involvement in kilogram sales of cocaine. He did admit, however, that he supplied Witkowski with three ounces in January, 1989, that he supplied other unindicted co-conspirators with 1/8 ounce, and that he sold seven ounces he claimed Witkowski supplied to him. In all, Musa admitted to conspiring to distribute 200 to 300 grams of cocaine. On cross-examination, the government showed Musa a page from his personal calendar for 1989 on which he had written his customers initials and the amounts they owed him. In response to the government's questions, Musa admitted that the initials belonged to at least ten customers, but could remember only one of their names.

At the conclusion of the testimony, the judge found Musa's version of the facts untruthful, specifically Musa's inability to recall his customers names. Judge Foreman noted that Musa's co-conspirators, whose pleas he had already accepted, were more candid and more cooperative. All of them, in their own plea hearings, admitted the amount of cocaine involved was between 2 and 3.5 kilograms, and all of them indicated Musa was the supplier. Judge Foreman found the amount involved was between 2 and 3.5 kilograms. He adopted the factual findings in the presentence report as his own, determined Musa's total offense level to be 26 (allowing him a two level reduction for acceptance of responsibility), and sentenced him to 70 months imprisonment, four years of supervised release following his prison term, and a special assessment of $50.

Defendant Musa now seeks to have his conviction vacated and remanded to the district court. He argues that the district court erroneously accepted his guilty plea and improperly sentenced him in violation of Rules 11 and 32 of the Federal Rules of Criminal Procedure. For the reasons set forth herein, we affirm.

I.

As a threshold matter, we must determine whether we have jurisdiction over this appeal. Defendant's trial counsel timely filed a notice of appeal with the United States District Court for the Southern District of Illinois. The notice, however, incorrectly designated the United States Court of Appeals for the Eighth Circuit as the court to which the appeal was taken. We raised the sufficiency of defendant's notice under Rule 3(c) of the Federal Rules of Appellate Procedure, and thus our jurisdiction, sua sponte, ¹ and ordered the issue taken with the case.

Rule 3(c) states, in relevant part:

Content of the Notice of Appeal. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.... An appeal shall not be dismissed for informality of form or title of the notice of appeal.

Fed.R.App.P. 3(c). The specificity requirement of Rule 3(c) is jurisdictional. Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). Torres addressed whether use of "et al." in the notice of appeal, rather than individually naming each party filing the notice, is fatal to the unspecified party's appeal. The Court held that it is. Its purpose is to give notice of the identity of those taking an appeal to opposing parties and the court. Id. at 318, 108 S.Ct. at 2409. Notwithstanding the language of the final sentence of the rule that permits an appeal to proceed in spite of informality in a notice of appeal's form or title, the Court stated that "failure to name a party in the notice of appeal is more than excusable 'informality'; it constitutes a failure of that party to appeal." Id. at 314, 108 S.Ct. at 2407.

Central to the Torres decision is the principle of fair notice to the opposition and the court. That principle is not violated by the notice filed in this case. It unambiguously informs the prosecuting attorney and the district court that the defendant appeals from the judgment entered on September 10, 1990. That the prosecutor received fair notice is evident in that the United States Attorney for the Southern District of Illinois filed his appearance within ten days after the appeal was docketed. That the district court received fair notice also is evident: the notice of appeal bears a date-stamp showing it was filed with the district court clerk's office. Counsel's error in designating the Eighth Circuit rather than the Seventh does not deprive anyone of fair notice of defendant's appeal. Except in the limited circumstance, not applicable here, under which an appeal may be taken directly from the district court to the Supreme Court, see 28 U.S.C. § 1253, this is the only court to which defendant may appeal. We thus have jurisdiction. Accord McLemore v. Landry, 898 F.2d 996, 999 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 428, 112 L.Ed.2d 412 (1990) (defendant's failure to designate any circuit in the notice of appeal not a bar to jurisdiction because that court was the only court to which an appeal could be taken); cf. Chaka v. Lane, 894 F.2d 923 (7th Cir.1990) (notice of appeal named interlocutory order but because it was the sole basis of the final judgment, notice not deficient).

II.

The first issue Musa raises is that the district court committed reversible error in accepting his guilty plea. His argument has two prongs, both grounded in Rule 11 of the Federal Rules of Criminal Procedure: that there was no adequate factual basis for the guilty plea on the record as required by subsection (f), and that the trial court failed to determine that Musa understood the nature of the charge against him as required by subsection (c)(1).

A.

Musa's challenge to the factual basis for his guilty plea arises out of his testimony during the change of plea hearing that he was a buyer, not a seller, of cocaine and that he was not involved in a conspiracy to distribute more than 500 grams of cocaine. The core of his argument is that once he contested the evidence proffered by the government, the court was obligated to lay a factual foundation on the record before accepting his plea. In not doing so, he argues, the court failed to follow the dictates of Rule 11(f). Defendant, however, misunderstands the requirements of the rule.

Subsection (f) provides:

Determining Accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, the court shall not enter a judgment upon such plea without making such inquiry as shall...