U.S. v. Wenger

• Decision Date: 15 June 1995
• Docket Number: No. 93-4043,93-4043
• Citation: 58 F.3d 280
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis L. WENGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 280

58 F.3d 280

UNITED STATES of America, Plaintiff-Appellee, v. Dennis L. WENGER, Defendant-Appellant.

No. 93-4043.

United States Court of Appeals Seventh Circuit.

Argued May 30, 1995.

Decided June 15, 1995.

Patrick Hansen, Asst. U.S. Atty., Sharon Jefferson (argued), Dyer, IN, Barbara Z. Brook, Asst. U.S. Atty., South Bend, IN, for plaintiff-appellee.

Jerry B. Kurz (argued), Kathryn Hall, Hall & Kurz, Chicago, IL, for defendant-appellant.

Before CUMMINGS, EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Part of the agreement by which Dennis Wenger pleaded guilty to receiving child pornography, 18 U.S.C. Sec. 2252(a)(2), provides:

Understanding that Sec. 3742 of Title 18 of the United States Code provides for appeal by a defendant of a sentence under certain circumstances and that he may give up or waive said right to appeal, I expressly waive any and all rights conferred by Title 18, U.S.C. Sec. 3742 to appeal my sentence. I also expressly waive the right to appeal my sentence on any other ground and waive the right to attack my sentence in any post-conviction proceeding.

The district court accepted Wenger's plea of guilty and sentenced him to 54 months' imprisonment, departing upward from the presumptive range of 18-24 months determined under the Sentencing Guidelines. Wenger had been arrested and charged in state court with molesting an 8-year-old girl. The presentence report relayed statements that Wenger had molested the girl's twin brother too. These events, coupled with Wenger's conviction in 1982 for child molestation, led the judge to conclude that a longer sentence is appropriate. See U.S.S.G. Sec. 2G2.2 Application Note 5, specifying that an upward departure is warranted "[i]f the defendant sexually abused a minor at any time, whether or not the sexual abuse occurred in the course of the [pornography] offense".

Wenger has appealed, despite his promise not to do so. Waivers of appeal are enforceable. United States v. Schmidt, 47 F.3d 188 (7th Cir.1995). Wenger asks us to establish a procedural citadel around the right of appeal, so that waiver will be accepted only following elaborate warnings after the fashion of those used for the most vital constitutional rights. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (sixth amendment right to counsel); Fed.R.Crim.P. 11(c). But other rights may be surrendered without warnings of any kind and with considerably less formality. E.g., Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (fourth amendment right to privacy); United States v. Mezzanatto, --- U.S. ----, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995) (right to exclude from evidence proffer made as part of plea negotiations). The right to appeal is in the latter category--not simply because it depends on a statute rather than the Constitution but because it has long been seen as the kind of right that depends on assertion. A litigant who does not take a timely appeal has forfeited any entitlement to appellate review. Our legal system makes no appeal the default position. A defendant who finds this agreeable need do nothing. All the waiver in a plea agreement does is to make that outcome a part of the parties' bargain, so that a defendant inclined against appeal or willing to forgo it--perhaps to put an unpleasant episode behind him more quickly--may obtain a concession from the prosecutor. In this case the prosecutor agreed to support a downward departure for acceptance of responsibility, a boon that usually would be unavailable to a defendant arrested (as Wenger was) for an intervening offense.

Empty promises are worthless promises; if defendants could retract their waivers (the practical effect, if the procedural hurdles to an effective waiver were set too high) then they could not obtain concessions by promising not to appeal. Although any given defendant would like to obtain the concession and exercise the right as well, prosecutors cannot be fooled in the long run. Right holders are better off if they can choose between exercising the right and exchanging that right for something they value more highly. See Mezzanatto, --- U.S. at ----, 115 S.Ct. at 805. Wenger exchanged the right to appeal for prosecutorial concessions; he cannot have his cake and eat it too.

The waiver in this plea agreement is as express as they come. Wenger does not say that his lawyer slipped the language into the agreement without telling him. He does not claim to be illiterate. Seven months before trial the judge ordered him committed for an investigation of his mental competence; he was found fit for trial, and this means that he was entitled to participate fully, possessing among his rights the right to waive still other rights. Godinez v. Moran, --- U.S. ----, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). Wenger believes that the district court should have included the waiver of appeal in the Rule 11 colloquy, but the list in Rule 11(c) is not elastic, and warnings about waivers of appeal are not to be found there. Rule 11's value is as a formulary.

Most waivers are effective when set out in writing and signed; Rule 11(c) states exceptions to that principle, exceptions that do not aid Wenger. Perhaps one could say that when executing the waiver Wenger...