U.S. v. Reckmeyer, 85-5158
| Decision Date | 21 March 1986 |
| Docket Number | No. 85-5158,85-5158 |
| Citation | 786 F.2d 1216 |
| Parties | UNITED STATES of America, Appellee, v. Christopher Frederick RECKMEYER, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Stanley J. Reed (Lerch, Early, Roseman & Frankel on brief), for appellant.
Karen P. Tandy, Asst. U.S. Atty. (Elsie L. Munsell, U.S. Atty., William G. Otis, Justin W. Williams, Kent S. Robinson, Asst. U.S. Attys., on brief), for appellee.
Before WIDENER, PHILLIPS and SPROUSE, Circuit Judges.
Christopher Reckmeyer appeals the district court's order denying his motion to withdraw his plea of guilty to a violation of the continuing criminal enterprise (CCE) statute, 21 U.S.C. Sec. 848, and to two counts of filing false tax returns in violation of 26 U.S.C. Sec. 7206. 1 Reckmeyer also asserts that the district court should have permitted him to withdraw his plea because the government violated the plea bargain agreement. In exchange for the guilty plea, the government agreed, inter alia, that it would not use against Reckmeyer anything he said "to law enforcement agents, government attorneys, to any grand juries or at any trials unless he should make false statements or commit perjury." Reckmeyer claims the government violated this provision by providing detrimental information to the probation office for use in Reckmeyer's presentence report. He also contends that the district court violated Fed.R.Crim.P. 11 by failing to inform him properly of the elements of the CCE charge and resulting forfeiture and by not determining the factual basis for forfeiture. We affirm.
Reckmeyer and a number of individuals operated a large marijuana and hashish distribution ring for over ten years. In January 1985, a grand jury indicted him for conducting a continuing criminal enterprise and for thirteen related offenses. He negotiated a plea bargain agreement and pled guilty. The agreement was extensive and included the statement that Reckmeyer was the leader of an organization responsible for the distribution of a total of more than one hundred sixty-nine tons of marijuana and more than ten tons of hashish in the course of fifty ventures in Virginia and elsewhere, and that he supervised approximately twenty employees in this illegal enterprise. 2 The plea agreement required Reckmeyer to forfeit forty-one assets specifically listed in Count 2(B) of the indictment, and any proceeds from those assets, and "all other domestic and foreign assets in which he has any direct or indirect interest or control, which are the proceeds of unlawful drug activities or are directly or indirectly related to unlawful drug activities." The government agreed to dismiss the remaining counts and not to use against him his statements made during his debriefing by government attorneys and agents. During debriefing, Reckmeyer informed government agents that in late summer or early fall 1984, while he was under investigation, he purchased 21,000 pounds of marijuana. He also ordered another 100,000 pounds for receipt in the fall of 1985. The government made this information available to the probation officer conducting the presentence investigation. The probation officer included it in his report to the district court.
We consider first Reckmeyer's contention that the district court failed to comply with the requirements of Fed.R.Crim.P. 11(c). 3 Reckmeyer asserts that the district court failed to inform him of the nature and the elements of the CCE charge and the forfeiture sanction resulting from a CCE conviction. He contends that the court did not inform him that the government must prove (1) that he had committed a predicate Title 21 offense; (2) that such violation was a part of a continuing series of at least three Title 21 violations; and (3) that he acted in concert with five or more people as their organizer or supervisor in committing these violations.
We conclude that the district court fulfilled the requirements of Rule 11(c). At the hearing required by the rule, the government presented the outline of the plea agreement, including the counts to which Reckmeyer was pleading guilty and the possible penalties resulting from conviction of those offenses. The government stated that the penalties included "the mandatory forfeiture of the defendant's profits from the enterprise, as well as the defendant's interest in, claim against, and/or property and contractual rights of any kind affording a source of influence over the enterprise." After the government outlined the plea agreement, the district court examined Reckmeyer for the purpose of determining that the plea was voluntary and informed. 4 Responding to the court's inquiry, Reckmeyer stated that he was thirty-three years old, had completed three years of college, had not taken medication within the previous twenty-four hours and was not under the care of a psychiatrist. The court questioned Reckmeyer with respect to his counsel, and Reckmeyer stated that he was satisfied with his counsel and had had sufficient time to discuss the case, including the government's burden of proof. The court then outlined the elements of the offenses to which Reckmeyer was pleading and asked if he understood those elements to which he replied affirmatively. 5
The court informed Reckmeyer of his right to a jury trial, his right to plead not guilty, the presumption of his innocence at any trial, and the burden of proof on the government to prove his guilt beyond a reasonable doubt. Reckmeyer indicated that he understood these rights. The government then recited the facts that it would prove were the case to go to trial. The government stated that Reckmeyer "was the leader and supervisor of a drug organization responsible for the distribution of more than 169 tons of marijuana and more than ten tons of hashish on more than 50 occasions...." In addition, it stated that Reckmeyer was the "organizer, supervisor, and manager of the more than 20 drug employees" with whom he worked in concert and that he realized $13.7 million in profits from the drug operations, his only substantial income during the period.
Having told Reckmeyer to listen carefully to the statement of the available evidence, the court upon completion of the government's presentation allowed Reckmeyer the opportunity to dispute the represented facts. Reckmeyer's attorney, while conceding that there was a factual basis for each count to which he was pleading, stated that Reckmeyer "disputes a number, in fact a great number of the specific facts that have just been set forth in the government's statements of facts." The court then inquired directly of Reckmeyer as to the specifics of his disagreement with the government's statement of the evidence:
Q What Ms. Tandy [assistant United States attorney] and then Mr. Reed [Reckmeyer's counsel] has said, do you agree that's what you did in this case?
A I just want to be on the record, your Honor, to agree with Mr. Reed that the facts as stated are not the full facts to my knowledge.
Q Well, so I understand, what you're disputing is some of the amounts of money involved and the amounts of drugs by weight and what have you; is that basically it?
A And some of the episodes and how they happened or didn't happen.
Q But you agree that you were involved in a criminal enterprise, is that correct?
A I do agree that I was involved in a continuing criminal enterprise.
Q Do you agree as to Count 26 that you didn't file, that you filed a false income tax return on Count 26?
A I am pleading guilty to Count 26.
Q Do you have any factual dispute with that one [Count 26]? Is it primarily Count 2 [the CCE charge] that you're disputing?
A I'm disputing almost every single fact as stated in their facts.
Q Well, you say you're disputing every single fact, are you telling me you didn't do these things?
A I'm saying I have a different version of the facts as I know them, your Honor.
The district court then summarized the represented facts underlying Count 26, a false tax return charge, and Reckmeyer admitted those facts. The court similarly described the represented factual basis for Count 30, also a false tax return charge, to which under the plea agreement Reckmeyer was to plead guilty. Reckmeyer expressed disagreement with the facts as stated for Count 30 and asked for permission to speak with his counsel. After a recess, Reckmeyer stated that he would plead guilty instead to Count 31--another false income tax count. He was permitted to make that change and to withdraw the guilty plea to Count 30. The court informed him of the elements of Count 31 and advised him to listen carefully to the government's proffer. After the government's recital of facts supporting Reckmeyer's indictment on Count 31 and after Reckmeyer's consultation with counsel, he admitted those facts. The court returned to Count 26 and repeated the factual basis of that count with which Reckmeyer agreed.
The court then provided him an opportunity to raise additional objections to the evidence underlying Count 2. Reckmeyer disagreed with the amounts of hashish and marijuana specified by the government, and the amount of profits which he allegedly earned. 6
The district court ascertained that Reckmeyer had operated a complex, albeit illegal, enterprise over a ten year period, earning profits of at least three million dollars. It also ascertained that the defendant had attended college for three years. During the course of the proceeding, Reckmeyer demonstrated his astuteness and his knowledge of the indictment. He corrected the government as to facts, and effected a change in one count to which he pled guilty. The court gave him every opportunity to ask questions, to consult with counsel, and to withdraw his plea. The proceeding lasted approximately one hour and twenty minutes.
Our task is to determine whether the court's inquiry was sufficient within the context of those circumstances. The purpose of the Rule...
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