United States v. Washburn

• Decision Date: 23 October 2013
• Docket Number: No. 12–3080.,12–3080.
• Citation: 728 F.3d 775
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Donald K. WASHBURN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

728 F.3d 775

UNITED STATES of America, Plaintiff–Appellee

v.Donald K. WASHBURN, Defendant–Appellant.

No. 12–3080.

United States Court of Appeals, Eighth Circuit.

Submitted: May 17, 2013.

Filed: Aug. 27, 2013.

Rehearing and Rehearing En Banc Denied Oct. 23, 2013.^*

Edwin Marger, argued, Jasper, GA, for Appellant.

Matthew Jeremy Cole, AUSA, argued, Cedar Rapids, IA, for Appellee.

Before SHEPHERD, BEAM, and MELLOY, Circuit Judges.

BEAM, Circuit Judge.

Donald Washburn appeals his jury conviction for wire fraud, money laundering and making false statements to the United States Probation Office, the resulting sentence imposed by the district court,¹ as well as the district court's rulings on his combined motion for judgment of acquittal and motion for new trial. He claims the court erred at trial in admitting certain evidence and that he was denied his right to “conflict-free” counsel and a fair trial. For the reasons stated herein, we affirm the conviction and sentence, and dismiss Washburn's claim for ineffective assistance of counsel without prejudice.²

I. BACKGROUND

While on probation for wire fraud and money laundering convictions related to prior commercial enterprises, Washburn again solicited investors in commercial opportunities (namely a dice game to be marketed to casinos and investments in the mining industry) in which Washburn erroneously claimed he had an interest. ³ The government charged Washburn in a 49–count indictment, including charges for wire fraud, money laundering and making false statements to the probation office. Prior to trial, the government offered Washburn a plea, in which it agreed to drop all remaining charges if Washburn pled guilty to two counts. Washburn initialed each paragraph of the plea agreement, signed the document, and returned it to the prosecution. In a letter to the court concerning the change of plea hearing, the government described the nature of the plea agreement. The day before the scheduled change of plea hearing, Washburn sought an indefinite continuance due to an “emergency medical necessity,” “until such time as more thorough and certain medical information as to [Washburn's] condition and prognosis is available.” The district court granted Washburn's motion but admonished that the trial remained set for about one month later and the burden was on Washburn to reset the change of plea hearing. At some point, Washburn chose not to plead guilty so the hearing never took place and the plea agreement was never offered into evidence at such a hearing.

Washburn proceeded to trial, during which the government offered the signed and initialed factual stipulation contained in the plea agreement as evidence in its case against Washburn. The jury found Washburn guilty of 47 charges. Washburn appeals, claiming the district court erred in admitting the plea agreement's factual stipulation at trial. Washburn also challenges the district court's pretrial denial of his motion for severance. And, Washburn claims the district court's failure to appoint “conflict-free” counsel violated his rights under the Sixth Amendment. Finally, Washburn claims the district court's failure to halt trial when Washburn was seriously injured and briefly hospitalized near the end of trial violated his constitutional rights and his rights under Federal Rule of Criminal Procedure 43. Each challenge is discussed in detail below.

II. DISCUSSIONA. Use of Plea Stipulation

1. Rule 410

The determination regarding whether a statement was made in the course of plea negotiations is a mixed question of law and fact reviewed de novo. United States v. Young, 223 F.3d 905, 908 (8th Cir.2000). A determination as to whether a waiver of rights is valid is a question of law reviewed de novo. Id. at 909.

Whether the district court erred in admitting the plea stipulation of facts at trial is a layered inquiry. Federal Rule of Criminal Procedure 11(f) states, “[t]he admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410.” Rule 410 provides that the following are inadmissible: a guilty plea that was later withdrawn, and a statement made during plea discussions with an attorney for the prosecuting authority that did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. Fed.R.Evid. 410(a)(1), (a)(4). There is no dispute by the parties that the factual stipulation contained in the plea agreement offered at trial was made during the course of plea discussions. To allow into evidence this plea stipulation in the face of its general inadmissibility, then, the district court had to find that Washburn waived his rights under Rule 410. It is a determination regarding such waiver that drives our analysis on appeal.

“The Supreme Court has recognized that the protections offered by Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6) are presumptively waivable.” Young, 223 F.3d at 909. “[A]bsent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of the plea-statement Rules is valid and enforceable.” United States v. Mezzanatto, 513 U.S. 196, 210, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995).

Washburn claims the prosecution never advised him that the government would attempt to use the stipulation of facts at trial if he failed to enter or withdraw his plea. Additionally, he posits that this court must determine that even if it existed, the waiver language was hidden in the small print thus rendering it impossible for Washburn to make a knowing and intelligent waiver. He claims the plea memorandum contained no clear warning, and contained conflicting statements and vague references. At bottom, though, Washburn's claims that he involuntarily and unknowingly waived his rights under Rule 410 are unpersuasive on appeal.

The plea agreement initialed and signed by Washburn contained language regarding Washburn's waiver of rights. Language relied upon by the district court includes the following:

Paragraph 1: Defendant will plead guilty to Counts 13 and 46 of the [indictment.]

Paragraph 8: By initialing each of the following paragraphs, defendant stipulates to the following facts. Defendant agrees these facts are true and may be used to establish a factual basis for defendant's guilty plea and sentence. Defendant has been advised by defendant's attorney of defendant's rights under Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410. Defendant waives these rights and agrees this stipulation may be used against defendant at any time in any proceeding should defendant violate or refuse to follow through on this plea agreement, regardless of whether the plea agreement has been accepted by the Court. Defendant agrees that the stipulation below is a summary of the facts against defendant and does not constitute all of the facts the government would be able to prove at trial and may be able to prove to the Court in accordance with this agreement.

Paragraph 30: If defendant violates any term or condition of this plea agreement, in any respect, the entire agreement will be deemed to have been breached and may be rendered null and void by the United States. Defendant understands, however, the government may elect to proceed with the guilty plea and sentencing. These decisions shall be in the sole discretion of the United States. If defendant does breach this agreement, defendant faces the following consequences: (1) all testimony and other information defendant has provided at any time ( including any stipulations in this agreement ) to attorneys, employees, or law enforcement officers of the government, to the Court, or to the federal grand jury may and will be used against defendant in any prosecution or proceeding; (2) the United States will be entitled to reinstate previously dismissed charges and/or pursue additional charges against defendant and to use any information obtained directly or indirectly from defendant in those additional prosecutions; and (3) the United States will be released from any obligations, agreements, or restrictions imposed upon it under this plea agreement.

(boldface in original; italicization added).

Washburn violated paragraph 1 of the agreement, which stated that Washburn would plead guilty to two counts, and he otherwise refused to follow through with the plea agreement in violation of paragraph 8. Accordingly, the stipulation of facts contained in the plea agreement was fair game for use at trial per the agreement. In opposition to this conclusion, Washburn places great emphasis on the fact that the agreement was never approvedand accepted by the court, and questions whether this plea agreement was binding the moment he added his initials and signature. However, Washburn offers no applicable legal precedent directly supporting the validity of his defensive assertions. He states more than once that “no plea was ever entered by [him].” However, this is not the crucial issue. The court's discussion in Young belies the importance of Washburn's argument that “no plea was ever entered by [him],” or that this plea language is too ambiguous. The plea agreement was binding at the time Washburn added his initials and signature. United States v. Miller, 295 F.3d 824, 827 (8th Cir.2002) (“ ‘A plea agreement is contractual in nature and generally governed by ordinary contract principles.’ ” (quoting United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir.1996))).

As to whether Washburn waived his Rule 410 rights knowingly and voluntarily, “ ‘[w]e look to the circumstances surrounding the signing and entry of the plea agreement to determine whether the defendant willfully agreed to its terms.’ ” Young, 223 F.3d at 909 (quoting United States v. Michelsen, 141 F.3d 867, 871 (8th Cir.1998)). In Young, the defendant entered into a plea agreement and provided a signed affidavit along...