USA v. Cofield

• Decision Date: 24 October 2000
• Docket Number: No. 99-5437,99-5437
• Citation: 233 F.3d 405
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Keenan Kester Cofield, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 405

233 F.3d 405 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Keenan Kester Cofield, Defendant-Appellant.

No. 99-5437

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: October 24, 2000

Decided and Filed: November 22, 2000

Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga. No. 91-00024--Thomas G. Hull, District Judge.

Guy W. Blackwell, ASSISTANT UNITED STATES ATTORNEY, Greeneville, Tennessee, for Appellee.

Kevin M. Schad, SCHAD, BUDA & COOK, Cincinnati, Ohio, for Appellant.

Before: MARTIN, Chief Judge; NORRIS, Circuit Judge; FORESTER, District Judge^*.

OPINION

BOYCE F. MARTIN, JR., Chief Judge.

Keenan Kester Cofield appeals the revocation of his supervised release, imposed after his 1991 conviction for wire fraud in violation of 18 U.S.C. § 1343. For the following reasons, we AFFIRM the district court's revocation of supervised release.

I.

Cofield is a "scam artist" who attempted to extort money from the Chattanooga Times in a false obituary scheme in 1989. United States v. Cofield, No. 91-5957, 1992 WL 78105, at *1 (6th Cir. Apr. 17, 1992) (per curiam). In February of that year he had a friend phone in notice of his death to the newspaper, which published an obituary for Cofield shortly thereafter. Cofield sent a mailgram to the Times on February 24, both advising the newspaper that he was alive and demanding compensation for the mental anguish the obituary had caused him and his family. He then sued the Times and seven of its employees for defamation and intentional infliction of emotional distress. He later offered to settle the claims for $150,000; the newspaper chose to fight them and spent $20,000 in legal fees to do so. On May 20, 1991, a jury convicted Cofield of the criminal charges arising from this scheme in violation of 18 U.S.C. § 1343, the federal wire fraud statute. At Cofield's sentencing hearing, the district court orally pronounced a sentence of five years incarceration. The written judgment and commitment order reflected a sentence of five years in prison, plus three years of supervised release and an order to pay $20,000 in restitution to the Chattanooga Times.

This court affirmed Cofield's wire fraud conviction, which he appealed in 1992. See id. at *7. Cofield has also filed numerous motions, construed as having been filed under 28 U.S.C. § 2255, raising trial and sentencing issues. The district court has denied these motions and this court has affirmed the denials. See Cofield v. United States, No. 96-5333, 1997 WL 234613 (6th Cir. May 6, 1997) (per curiam); Cofield v. United States, No. 94-5075, 1994 WL 548805 (6th Cir. Oct. 6, 1994) (per curiam). Upon his discharge from prison, Cofield began serving his three-year term of supervised release. On March 8, 1999, the district court found that he violated five conditions of his supervised release and revoked it, sending him back to prison for another two years.

II.

In order to revoke supervised release, the sentencing court must find by a preponderance of the evidence that a defendant has violated a condition of his supervised release. See United States v. Lowenstein, 108 F.3d 80, 85 (6th Cir. 1996). Once this finding is made, whether the defendant's supervised release should be revoked is reviewed for an abuse of discretion. See id. at 85-86.

A.

Cofield contends that the district court had no jurisdiction to revoke his supervised release because it improperly imposed supervised release at his sentencing. Cofield cites a widely-accepted rule to support his claim: if there is a discrepancy between the oral pronouncement of a criminal sentence and the written judgment, the oral sentence generally controls. See United States v. Schultz, 855 F.2d 1217, 1225 (6th Cir. 1988). He notes that the district court's oral pronouncement of his sentence did not mention the possibility of supervised release, while the written judgment and commitment order did. Therefore, Cofield concludes, the written judgment, and his term of supervised release, is invalid. We do not challenge the general rule, but we reject his conclusion.

In Cofield's sentencing hearing, the district court imposed a five-year term of incarceration, the maximum for a wire fraud violation under 18 U.S.C. § 1343. The district court did not mention a term of supervised release. Still, such a term was mandatory under the sentencing guidelines in effect at the time of Cofield's crime. The relevant guideline reads, "The court shall order a term of supervised release to follow imprisonment when a sentence of imprisonment of more than one year is imposed." U.S. Sentencing Guidelines Manual § 5D1.1 (1989).

The Second Circuit addressed a similar situation in 1997. See United States v. Jolly, 129 F.3d 287 (2d Cir. 1997). There, the district court, following a conviction of mail fraud, ordered the defendant to pay restitution of $810,000, payable "at a minimum of $200 a month, or 20 percent of [his] gross income, whichever is greater." Jolly, 129 F.3d at 289. The written judgment of sentence entered shortly thereafter contained the same terms. After the sentence was appealed and the case remanded on another issue, at the resentencing hearing the district court apparently misspoke and orally stated that the defendant's restitution payments should be made "at a minimum of $100 per month or 10 percent of [his] gross income, whichever is greater." Id. The amended written judgment then reinstated the original payment schedule at two hundred dollars per month. See id. That Court of Appeals held that the general rule, that an oral pronouncement controls over a written judgment of sentence, should not apply "in a resentencing proceeding where the record suggests a substantial possibility that the district court misspoke in an oral pronouncement regarding a portion of the sentence that was neither discussed nor disputed by the parties." Id.

The discrepancy in this case arose at Cofield's original sentencing hearing, not a resentencing proceeding. Still, Jolly's reasoning is persuasive. Here, the district court failed to mention a facet of his punishment, the supervised release term, which was mandated by the sentencing guidelines. The "misstatement" lay in not orally stating what the guidelines required. To the extent that the district court erred in its omission, the error was harmless, and was corrected later the same day when the written judgment and commitment order was filed in the district court. Unfortunately, such errors can easily be made in the confusion of a district court docket that will often bring many defendants before the court in succession. Allowing Cofield to profit from this kind of mistake would itself be a serious error.

Also, Cofield failed to object to his sentence once the written judgment and commitment order was entered by the district court. He also did not raise this issue on direct appeal or in his Section 2255 motions, and he has thus waived his opportunity to challenge the imposition of his supervised release. "Given society's substantial interest in the finality of judgments, only the most serious defects in the trial process will merit relief outside the normal appellate system. . . . Accordingly, nonconstitutional errors ordinarily are not cognizable on collateral review. Defendants must assert their claims in the ordinary course of trial and direct appeal." Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996).

Cofield has waived any opportunity to challenge the terms of his sentence. Furthermore the district court properly imposed supervised release on the defendant and thus had jurisdiction to revoke the defendant's supervised release.

B.

Cofield next argues that the government failed to prove a violation of supervised release. The government alleged six violations of Cofield's supervised release conditions in its original petition and then amended its petition to include another two. The district court's order did not make clear exactly how many violations were found to be proved. The order quoted five of the original six allegations from the government's petition and stated that they contained an "accurate summary" of Cofield's conduct while on supervised release. The district court put Mr. Cofield's post-release behavior into the larger context of his criminal history and found that the government had proved "the violations."

Cofield's plan to defraud the Chattanooga Times was one in a long line of baseless lawsuits filed in attempts to win money judgments or settlements where none were legitimately due. The presentence report prepared for Mr. Cofield details over one hundred suits filed in the Northern and Southern Districts of Alabama. Some of these have involved similar plots with false obituaries; in one he was able to coax a $1,000 settlement from The Atlanta Journal-Constitution. Others include false claims of misconduct against the Alabama Department of Corrections, where he was incarcerated, and a personal injury suit against Marriott Hotels claiming seafood poisoning at a time when he was also imprisoned.

Because a district court need find only a single violation to revoke a criminal defendant's supervised release, see 18 U.S.C. § 3583(e) (2000), this opinion will address only one of the violations in detail to illustrate the appropriateness of the district court's findings. The four other allegations quoted by the district court will receive summary treatment.

The third standard condition of Cofield's supervised release reads, "The defendant shall . . . follow the instructions of the probation officer." Cofield's probation officer told him to inform the officer before filing any lawsuits. The officer did not prohibit Cofield from filing lawsuits entirely, but merely to keep him advised when he did so. During his time on supervised release,...