U.S. v. Walton

• Decision Date: 21 September 1994
• Docket Number: No. 93-2950,93-2950
• Citation: 36 F.3d 32
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael WALTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 32

36 F.3d 32

UNITED STATES of America, Plaintiff-Appellee, v. Michael WALTON, Defendant-Appellant.

No. 93-2950.

United States Court of Appeals, Seventh Circuit.

Argued June 7, 1994.

Decided Sept. 21, 1994.

David Capp, U.S. Atty., Andrew B. Baker, Jr., Asst. U.S. Atty., Dyer, IN, Douglas Letter, Matthew M. Collette (argued), Dept. of Justice, Civ. Div., Appellate Section, Washington, DC, Denis E. Buckley, Office of U.S. Atty., South Bend, IN, Vivian Madison, U.S. Food & Drug Admin., Rockville, MD, for plaintiff-appellant.

Suzanne Philbrick, Chesterton, IN (argued), for defendant-appellant.

Before ENGEL, ^* BAUER and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Michael Walton was a vendor of heart pacemakers, which are surgically installed inside the chests of patients. Walton tampered with the invoices and packing slips that accompanied the pacemakers in their shipping containers. Seeing an opportunity to make a profit on outdated pacemakers, he changed the "use-before" dates on these documents, which indicated the last date on which a pacemaker was to be used. Walton then returned them to the package with the pacemakers, resealed the packages, and sold the pacemakers to hospitals for implant.

Walton was indicted. The indictment alleged that he led a conspiracy to commit various illegal acts, including tampering with pacemakers by "relabelling devices with false make, model, and serial numbers and dates, selling expired devices for implant, and implanting used devices." He was also charged with altering the expiration date of an identified pacemaker that was implanted in a specific individual. The allegations stated that Walton had manifested "extreme indifference" to the risk of placing another person in danger of death by tampering with the "use-before" date on the pacemaker.

Walton, along with other defendants, went to trial, but on the seventeenth day he decided to plead guilty. A petition to enter a change of plea was filed with the court, and it was signed by Walton, his attorney and the Assistant United States Attorney. The petition stated that Walton sought to change his plea to guilty with regard to Count 4 (product tampering in violation of 18 U.S.C. Sec. 1365(a)); Count 9 (mail fraud in violation of 18 U.S.C. Sec. 1341); and Count 13 (possession of a document-making implement in violation of 18 U.S.C. Sec. 1028(a)(5)). The petition contained a statement by Walton that he was "in fact guilty of those offenses."

In the petition Walton admitted that he "did tamper with the labelling of and the container for a consumer product that affects interstate and foreign commerce" by changing the use-before date on a pacemaker and selling the device for implant in a patient. He also admitted that he illegally possessed an embossing tool which allowed him to forge the seal of the State of Indiana and that he employed the mails illegally to send a fraudulent bill.

In the petition Walton also stated that he understood the maximum penalties he faced and that he would be sentenced under the United States Sentencing Guidelines. He agreed to restrictions on his involvement in any business related to medical devices and that the "occupation restrictions shall be a condition of [Walton's] probation or supervised release." (emphasis added).

At the change of plea hearing, Walton was sworn and engaged in a colloquy with the district judge regarding his guilty plea. Walton told the court that he had read the petition and discussed it with his attorney. The court told Walton the rights he was waiving by his guilty plea, and Walton indicated that he understood them and agreed to waive them. The court asked Walton if the facts he admitted were true, and Walton said they were.

The district judge asked Walton if he understood the penalties which would be imposed on him following his guilty plea. The court specifically referred to the provision in the plea petition which forbade Walton to engage in any business involving medical devices. The court described this passage as "fairly significant" and noted that this prohibition was "a condition of probation or supervised release." The court added that the sentence to be imposed called for probation or supervised release in addition to the time in custody. The court then defined supervised release for Walton as "a form of probation, which you are not in custody but you have to meet certain requirements, such as reporting and so forth."

The district court concluded the inquiry by determining that Walton had discussed the decision to plead guilty with his counsel, that he was satisfied with his counsel's work, and that he fully understood the consequences of his guilty plea. The court also asked Walton's counsel whether he and Walton had conferred regarding the plea, and whether he could "certify" that Walton understood his plea and the consequences of the plea. Walton's counsel answered "yes" to both questions.

Walton was sentenced to 72 months imprisonment followed by two years of supervised release. After pronouncing the sentence, the court offered Walton and his counsel the opportunity to speak. The remarks on behalf of Walton dealt only with a request that the sentence be served in a specific place and that Walton's appointed counsel remain his representative in case he wished to file further motions. There was no objection or reference to the imposition of a period of supervised release.

Walton now appeals his conviction, arguing that the Anti-Tampering Act (1) is unconstitutionally vague, and (2) infringes free speech in violation of the First Amendment. He also argues that his guilty plea should be withdrawn because he was not informed that his sentence would include a term of supervised release.

Walton's guilty plea precludes him from raising any question regarding the facts alleged in the indictment. United States v. Broce, 488 U.S. 563, 569-70, 109 S.Ct. 757, 762-63, 102 L.Ed.2d 927 (1989). He has admitted all those facts and cannot undo his admission. Further he has waived all non-jurisdictional challenges to the constitutionality of his conviction. United States v. Brown, 870 F.2d 1354, 1358 (7th Cir.1989). Walton attempts to meet this restriction by demonstrating that the statute under which he was convicted is unconstitutionally vague. He bears the burden of proving that it is. United States v. Cherry, 938 F.2d 748, 754 (7th Cir.1991).

Walton did not raise his argument regarding the constitutionality of the Anti-Tampering Act in the district court. We therefore will reverse only if we find plain error. Cherry, 938 F.2d at 753. To reverse on the basis of plain error we must conclude that it is necessary to do so to "avoid a miscarriage of justice." United States v. White, 903 F.2d 457, 466-67 (7th Cir.1990).

We thus turn to an examination of the Anti-Tampering Act. The Act imposes criminal penalties on anyone who "with reckless disregard for the risk that another person will be placed in danger of death or bodily injury and under circumstances manifesting extreme indifference to such risk, tampers with any consumer product that affects interstate or foreign commerce, or the labeling of, or container for, any such product." 18 U.S.C. Sec. 1365(a).

"Consumer product" is defined in Sec. 1365(g)(1)(A) to include any "device" defined in the Federal Food, Drug and Cosmetic Act, 21 U.S.C. Sec. 321(h). Device is there defined as any "instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article" intended to be used in the diagnosis or treatment of a disease or other condition.

Similarly, Sec. 1365(g)(2) adopts the definition of "labeling" used in the Food, Drug and Cosmetic Act at Sec. 321(m), to mean "all labels and other written, printed, or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying the article."

To determine if the foregoing language is unconstitutionally vague, we look to our discussion in Brockert v. Skornicka, 711 F.2d 1376, 1378, 1381 (7th Cir.198...