U.S. v. Skidmore, s. 92-3665

• Decision Date: 08 July 1993
• Docket Number: Nos. 92-3665,92-3666,s. 92-3665
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. John Edward SKIDMORE, Jr. (92-3665), and John Edward Skidmore, Sr. (92-3666), Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 372

998 F.2d 372

UNITED STATES of America, Plaintiff-Appellant, v. John Edward SKIDMORE, Jr. (92-3665), and John Edward

Skidmore, Sr. (92-3666), Defendants-Appellees.

Nos. 92-3665, 92-3666.

United States Court of Appeals, Sixth Circuit.

Argued March 22, 1993.

Decided July 8, 1993.

Kathleen M. Brinkman (argued and briefed), Office of the U.S. Atty., Cincinnati, OH, for plaintiff-appellant.

Arthur H. Schlemmer, Rex A. Wolfgang (argued and briefed), Barron, Peck & Bennie, Cincinnati, OH, for defendants-appellees.

Before: KENNEDY, MARTIN, and MILBURN, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

John Skidmore, Jr. and John Skidmore, Sr. were each charged with one count of selling an unlawful electronic device which permitted illegal interception of premium television channels, in violation of 18 U.S.C. § 2512(1)(b). The Skidmores agreed to plead guilty to the charge in return for the government's agreement not to bring any additional charges against them. A provision of the plea agreement required the Skidmores to forfeit substantial property to the United States pursuant to 18 U.S.C. § 2513. The district court accepted the guilty pleas but expressed reservations about the propriety of forfeiture. At sentencing, the court ordered the United States to return the Skidmores' property, despite the plea agreement provision calling for forfeiture of the property to the United States. The United States appeals the district court's modification of the plea agreement by ordering the United States to return the property to the Skidmores. We reverse.

At all times relevant to this appeal, John Skidmore, Sr. operated a business called Harrison Appliance and Furniture Store. John Skidmore, Jr. worked for his father at the store. In late 1989 and early 1990, local law enforcement agencies and the FBI received complaints from legitimate satellite dealers that the Skidmores were manufacturing and selling illegally modified decoder modules. According to the complaints, the illegal decoder modules enabled satellite television subscribers to receive premium pay cable services without paying a fee to the programmers.

To conduct an investigation of the Skidmores, the FBI obtained two working decoder boxes which had not been programmed to receive premium channels on satellite television transmission. On March 6, 1990, an undercover FBI agent contacted Skidmore, Sr. and inquired about obtaining an illegally modified decoder box. Skidmore, Sr. told the agent that he would either modify the agent's decoder box or that he would exchange the agent's legal decoder box for an illegal box for $490. Skidmore, Sr. told the agent that with the illegal box, he would receive free HBO, Showtime, ESPN, both Disney Channels, and several other premium movie channels. Skidmore, Sr. then instructed the agent to remove a module from his decoder box and explained that he would use a computer to program a computer chip in the module to receive free satellite programming. On March 8, the undercover agent delivered one of the decoder boxes for modification to Skidmore, Sr. at Harrison Appliance and Furniture.

On March 9, the agent telephoned Skidmore, Sr., who informed him that he could pick up his modified decoder box. Skidmore, Sr. again advised the agent of the price. Later that day, the agent went to Harrison Appliance and Furniture, where he met with both Skidmore, Sr. and Skidmore, Jr. Using the satellite television system installed in the store, the Skidmores demonstrated the operation of the modified decoder box. The agent paid the Skidmores for the modification. Skidmore, Sr. then instructed the agent to telephone him each month to receive a code to enter in the decoder box to allow continued receipt of the free channels. On March 26, another undercover agent paid Skidmore, Sr. at the store to modify another decoder box.

On June 5, federal search warrants were executed at Harrison Appliance and Furniture and at the residences of Skidmore, Sr. and Skidmore, Jr. Agents seized evidence related to the illegal modification of decoder boxes, including devices actually used in the illegal modification process and similar items which may or may not have actually been used in the illegal activity.

On March 26, 1991, the United States issued one-count informations against both Skidmore, Sr. and Skidmore, Jr., charging each with violating 18 U.S.C. § 2512(1)(b) Sale of an Unlawful Electronic Interception Device. The defendants appeared before the district court on April 19 to waive indictment and enter guilty pleas. The district court refused to accept the pleas, expressing concern about whether federal criminal prosecution was more appropriate than a private civil action against the defendants by the satellite programmers. The court then directed the prosecution to submit a detailed statement of the offense for the court to consider before accepting the guilty pleas.

On May 31, the Skidmores again appeared before the district court for waiver of indictment and entry of their guilty pleas. By this time, the court was satisfied that federal prosecution was appropriate, and the Skidmores had entered into plea agreements with the prosecution pursuant to FED.R.CRIM.P. 11(e)(1)(A). In return for the guilty pleas, the prosecution promised in both agreements that it would not file any additional charges against the Skidmores. In addition, the plea agreement provided that the defendants would forfeit, under 18 U.S.C. § 2513, the equipment and other items seized by the United States during execution of the search warrants. The district court accepted each defendant's guilty plea. When considering the plea agreements, however, the court indicated that it had "some reservations" about the forfeiture provision and that it would hear from the prosecution on the issue of forfeiture at an unspecified later date. The court did not expressly accept or reject the plea agreements, even though it followed the other procedures required for accepting a defendant's guilty plea and ultimately accepted the pleas from both Skidmore, Sr. and Skidmore, Jr. On August 23, the district court sentenced each defendant to two years' probation. Despite the forfeiture provision in the plea agreements, however, the court ordered the United States to return all items seized during the execution of the search warrants to the Skidmores. The court did not hear arguments on the forfeiture issue before issuing the sentences or ordering the return of the property to the defendants.

The prosecution filed a motion to amend the district court's Judgment and Commitment Order on September 11, in which it requested that the court delete its directive that the United States return the defendants' property and conform to the terms of the original plea agreement. To preserve its right to appeal, the prosecution filed a notice of appeal on September 20, before the district court ruled on the motion to amend. After conducting a hearing on the motion to amend, the district court issued an order on November 14 in which it refused to rule on the motion. On January 31, 1992, this court dismissed the prosecution's appeal, vacated the district court's order in which it refused to rule on the prosecution's motion to amend, and directed the court to rule on the motion. On June 9, the district court denied the motion to amend, finding that the prosecution had failed to make a proper showing that the property seized from the Skidmores was subject to forfeiture.

On July 2, the prosecution filed this appeal, arguing that the district court violated Rule 11 by failing to conform to the terms of the plea agreements entered into by the prosecution and the Skidmores. Specifically, the United States contends that the district court improperly modified the plea agreement by directing the United States to return the seized property, despite the plea agreement's provision for forfeiture of the property to the United States. The United States seeks specific performance of the terms of the plea agreement it entered with the defendants, including the forfeiture provision.

Rule 11(e) of the Federal Rules of Criminal Procedure precisely defines the role of the court in the plea agreement process. United States v. Holman, 728 F.2d 809, 811 (6th Cir.), cert. denied, 469 U.S. 983, 105 S.Ct. 388, 83 L.Ed.2d 323 (1984). Subsection (1) sets forth three types of agreements that the prosecution may make with a defendant. FED.R.CRIM.P. 11(e)(1). The rule requires the district court to follow particular procedures in accepting a guilty plea and ruling on a proposed plea agreement, depending on the type of plea agreement at stake. FED.R.CRIM.P. 11(e)(2). If the plea agreement is one in which the prosecution agrees to dismiss other charges against the defendant, such as the agreement in this case, the court has only three options: "the court may accept or reject the agreement, or may defer its decision as to acceptance or rejection until there has been an opportunity to consider the presentence report." Id. If the court accepts the plea agreement, the court must inform the defendant "that it will embody in the judgment and sentence the disposition provided for in the plea agreement." FED.R.CRIM.P. 11(e)(3). If, however, the district court rejects the plea agreement, it must provide the defendant with an opportunity to withdraw the guilty plea and advise the defendant that failure to withdraw the plea may result in a sentence less favorable than that contained in the plea agreement. FED.R.CRIM.P. 11(e)(4). "[T]he district court is not authorized to go beyond the confines of Rule 11 in accepting or rejecting plea agreements." United States v. Partida-Parra, 859 F.2d 629, 632 (9th Cir.1988). ¹ Nothing in the rules even remotely allows the district court to accept a guilty plea but rewrite the plea agreement, even if the modified agreement is more favorable to the defendant. United States v. Olesen, 920 F.2d 538, 540 (...