US v. Bearden

• Decision Date: 07 August 2001
• Docket Number: DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,No. 00-5103,00-5103
• Citation: 274 F.3d 1031
• Parties: (6th Cir. 2001) UNITED STATES OF AMERICA,v. JACK BEARDEN, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1031

274 F.3d 1031 (6th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. JACK BEARDEN, DEFENDANT-APPELLANT

No. 00-5103

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: August 7, 2001

Decided and Filed December 18, 2001

Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 99-00017--Jennifer B. Coffman, District Judge. [Copyrighted Material Omitted] Charles P. Wisdom, Jr., Assistant United States Attorney, Lexington, Kentucky, Fredrick A. Stine, V, Wende C. Morris (briefed), Asst. U.S. Attorneys, Covington, KY, for Plaintiff-Appellee.

Gary J. Sergent, O'hara, Ruberg, Taylor, Sloan & Sergent, Covington, Kentucky, for Defendant-Appellant.

Before: Moore and Cole, Circuit Judges; Rosen, District Judge.^*

MOORE, J., delivered the opinion of the court. ROSEN, D. J. (pp. 1042-43), delivered a separate concurring opinion.

OPINION

Moore, Circuit Judge

Defendant-Appellant Jack Bearden appeals his conviction and sentence on one count of knowingly transporting in interstate commerce stolen goods (IBM laptop computers) having a value of $5,000 or more. In this appeal, Bearden raises five issues: the district court's refusal to accept his plea of nolo contendere; the district court's refusal to grant downward departures because of Bearden's age and poor health and for acceptance of responsibility; the existence of a variance between the indictment and proof presented at trial; the credibility of a government witness; and the propriety of the district court's restitution order. For the following reasons, we AFFIRM Bearden's conviction and sentence.

I. BACKGROUND

From late 1996 through May of 1997, Jack Bearden acted as a middleman, selling laptop computers stolen from the warehouse of Pomeroy Computer Resources ("Pomeroy"), located in Hebron, Kentucky, to buyers located primarily in the Cincinnati, Ohio area. James Finkenstead, an employee of Pomeroy, sold sixty-eight of the stolen laptop computers to Timothy Macke. Macke then transferred forty-eight of these computers to Jack Bearden's son, Terry Bearden ("Terry"), who agreed to divide the proceeds of the computers' sale with Macke. Terry then approached his father about the computers; Bearden agreed to sell the computers and divide his proceeds with Terry. Bearden sold forty-six stolen laptop computers during the course of this scheme. Bearden sold the computers for approximately $2,000 to $2,500 each, although most of the computers were valued at approximately $4,000 each. In turn, most of the computers Bearden sold were then resold over the Internet by Cincinnati-area physicians.

After an inventory of the Pomeroy warehouse indicated that computers were missing, a joint county police department-FBI investigation eventually led to Bearden and the others. A federal grand jury in Covington, Kentucky returned an indictment on February 11, 1998, charging Bearden with interstate transportation of stolen goods. Bearden was subsequently arrested; he pleaded not guilty before a magistrate judge. When he was re-arraigned before the magistrate judge, Bearden sought to enter a plea of nolo contendere to the charge. The magistrate judge recommended that the district judge accept the plea of nolo contendere. On August 20, 1999, Bearden appeared before the district judge for sentencing. The district judge refused to accept Bearden's nolo plea, however, stating, "I will not take a nolo plea. You may plead guilty and I will sentence. You may plead not guilty and we'll go to trial. But I just don't take nolo pleas." Joint Appendix (J.A.) at 111. Bearden then pleaded not guilty, and the case was scheduled for trial.

Before Bearden was tried on this count, however, the federal grand jury returned a two-count superseding indictment, charging Bearden and Finkenstead with conspiracy to transport stolen property and charging Bearden alone with transportation of stolen property. The conspiracy count against both defendants was eventually dismissed, but only after a mistrial was declared in a trial held in October 1999. Bearden was then tried, by himself, on the transportation count (originally count two of the superseding indictment); after a two-day trial, the jury found Bearden guilty on November 10, 1999.

The sentencing hearing was held before the district judge on January 6, 2000. Bearden moved for downward departures for both his age and poor health, pursuant to U.S. Sentencing Guidelines Manual (U.S.S.G.) § 5H1.4 (1998), and his payment of restitution, in the amount of $47,000, to Pomeroy's insurance company, CNA, pursuant to U.S.S.G. § 5K2.0. The district judge rejected the downward departure for Bearden's poor health, reasoning that such a departure is "disfavored" and that Bearden's health problems could be adequately handled by the Bureau of Prisons. J.A. at 229-30. Bearden is in his late sixties and suffers from a number of health problems, including a heart condition and a frontal lobe impairment.

The basis of the downward departure under § 5K2.0 for payment of partial restitution was discussed at some length in the sentencing hearing. Bearden's counsel argued that Bearden should receive a downward departure because Bearden had paid $47,000 in restitution to CNA, Pomeroy's insurer. As a result of this payment, CNA had released Bearden from all further claims and liability for Pomeroy's losses, on January 3, 2000. Bearden's counsel argued that this payment should be considered under U.S.S.G. § 5K2.0 as a mitigating circumstance not adequately taken into consideration by the Sentencing Guidelines. The district court rejected Bearden's request for a downward departure based on this provision, however, as the payment of restitution is adequately taken into account in the adjustment for acceptance of responsibility, U.S.S.G. § 3E1.1. The district court determined that Bearden should not receive the benefit of a departure for acceptance of responsibility because he had put the government to its proof in trying him and had only reached this settlement with CNA after his trial. Moreover, Bearden had "never admitted [to] knowing that [the computers] were stolen or even suspecting that they were stolen." J.A. at 231.

The district judge sentenced Bearden to twenty-four months' imprisonment, three years of supervised release, and a fine of $4,000 and ordered him to pay $161,590 in restitution. Bearden was, however, to be given credit for the $47,000 already paid in restitution, and thus owes CNA $114,590 in restitution. Bearden has filed a timely appeal of his conviction and sentence. See 28 U.S.C. § 1291; 18 U.S.C. § 3742.

II. ANALYSIS

A. The District Court Was Within Its Discretion in Refusing to Accept Bearden's Nolo Plea.

The first question raised on appeal by Bearden is whether the district court abused its discretion in refusing to accept his nolo contendere plea. The extent of a district court's discretion in considering whether to accept a proffered plea of nolo contendere under Fed. R. Crim. P. 11(b) is an issue of first impression in this circuit. Rule 11(b) clearly indicates that a criminal defendant has no absolute right to plead nolo contendere but instead "may plead nolo contendere only with the consent of the court." The circuits that have considered this issue have generally held that a district court possesses wide discretion whether to accept a plea of nolo contendere. See, e.g., United States v. Cepeda Penes, 577 F.2d 754, 756 (1st Cir. 1978) ("[A]cceptance of a nolo plea is solely a matter of grace . . . ."); United States v. Gratton, 525 F.2d 1161, 1163 (7th Cir. 1975) ("[I]t seems at least arguable that the acceptance of a nolo plea is so broadly a matter of discretion that a judge's adoption of a policy against such a plea is itself within [the judge's] discretion."); United States v. Dorman, 496 F.2d 438, 440 (4th Cir. 1974) (finding "no abuse of discretion" in the district judge's general policy against nolo pleas except in tax evasion cases). See also Charles Alan Wright, 1A Federal Practice & Procedure § 177, at 294 (3d ed. 1999) ("[I]t is wholly unlikely that refusal to accept [a nolo contendere] plea would be regarded as error on appeal.").

Bearden argues, however, that the district court abused its discretion by rejecting his nolo plea based on a general policy against accepting such pleas. He argues that Rule 11(b) requires an individualized assessment of the merits of a particular defendant's proffered nolo plea before a district court can reject it. The contrary position, however, is suggested by the literal language of Rule 11(b), which states, in relevant part, "[s]uch a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice" (emphases added). Read literally, then, the rule would appear to grant district courts an absolute -- even arbitrary -- right to reject nolo pleas but only a limited discretion to accept them.

We reject this interpretation of Rule 11(b) because we are reluctant to conclude that there is no possible set of circumstances in which a district court would abuse its discretion in refusing to accept a nolo plea based on a general policy. We conclude, however, that the present case does not present such a set of circumstances. Bearden has not offered a compelling reason for his offer to plead nolo contendere rather than guilty, other than his implausible claim that he did not know that the laptop computers at issue in the case were stolen. A different conclusion might be required where the defendant could show a more compelling reason for pleading nolo contendere, but we leave that possibility for another day. Moreover, the government objected to the proffered nolo plea in the present case, and the district court would have been within its discretion had it rejected Bearden's nolo plea on that basis. See United States v. David E. Thompson,...