United States v. Diaz , 138 F.3d 1359 ( 1998 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-4405
D. C. Docket No. 95-438-CR-NESBITT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EVANGELIO DIAZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(April 14, 1998)
Before DUBINA and BARKETT, Circuit Judges, and GODBOLD,
Senior Circuit Judge.
DUBINA, Circuit Judge:
Appellant Evangelio Diaz (“Diaz”) and co-defendant Anibal
Quiles (“Quiles”) were charged by a federal grand jury in the
Southern District of Florida with conspiracy to possess cocaine
with intent to distribute, in violation of 21 U.S.C. § 846 (Count
I); possession of cocaine with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1)(Count II); and distribution of cocaine, in
violation of 21 U.S.C. § 841(a)(1)(Count III). After a trial by
jury, Diaz was convicted of all three counts.1 Diaz was sentenced
to three concurrent terms of 121 months of imprisonment and
concurrent five-year terms of supervised release. He then
perfected this appeal, which presents the issue of whether the
district court improperly participated in plea negotiations, in
violation of Fed. R. Crim. P. 11(e).
I. BACKGROUND FACTS
In 1993, federal and state law enforcement agencies began an
operation in South Florida called “Hard Rock.” The purpose of the
operation was to alleviate inner city drug trafficking. While
acting in an undercover capacity, Special Drug Enforcement Agency
(“DEA”) Agent Eric Williams (“Williams”) met Diaz and two
confidential informants (“CI #1") and (“CI #2"), at Bavarian Auto
Parts in Miami to discuss the purchase of three ounces of crack
cocaine. Agent Williams overheard Diaz tell CI #1 that the crack
cocaine would arrive shortly. When Agent Williams asked CI #1 why
Diaz had rushed them to the location when the cocaine was not
1
Quiles pled guilty to Count III and is not involved in
this appeal.
2
ready, Diaz replied “What he [CI #1] is not telling you, man, is
that I had it, I had it . . . since last week, and you all are
late.” (1SR1:19). Agent Williams then observed Quiles leaving the
scene after speaking with Diaz. Diaz told Agent Williams that
Quiles had gone to get the cocaine.
A short time later Quiles returned to the used car lot. He
motioned Williams, Diaz, and CI #1 inside the office. Once inside,
Williams observed Quiles holding three small clear plastic bags
containing what appeared to be powder cocaine. Quiles attempted to
give the bags to Agent Williams who told Quiles that the product
looked good but was not crack cocaine and that he did not know how
to cook it.
Diaz then interjected and said, “Don’t worry about that, I
will cook it for you.” (1SR1:24). Agent Williams and CI #2 then
left the scene to get some food, while Diaz and CI #1 went to
“cook” the powder cocaine.
When Agent Williams and CI #2 returned, Quiles told them to be
patient and wait for Diaz who was bringing the package back.
Later, CI #1 called Williams and told him that Diaz was having the
cocaine powder cooked into crack cocaine and they would be
returning shortly.
When Diaz returned, he showed Agent Williams rock-like
substances contained in aluminum foil wrapping. Agent Williams
remarked that the crack cocaine looked ugly, but Diaz insisted it
was of good quality. CI #1 told Agent Williams that the package
3
really was crack cocaine because he had observed Diaz and his
friends processing it.
Agent Williams gave Diaz $2,250 in cash. Diaz apologized for
taking so long to complete the deal and promised that next time
things would run more smoothly. Agent Williams and the two
informants left the scene with the crack cocaine. Later, Diaz and
Quiles were arrested. According to laboratory analysis, the
substance given to Agent Williams by Diaz contained 62.8 grams of
86% pure cocaine base.
On the day that Diaz and Quiles appeared before the district
court for trial, Quiles’ lawyer advised the court that Quiles
intended to plead guilty, although there was no plea agreement. At
that point, the court asked that Diaz and his lawyer be brought
into the courtroom. The district court then asked the prosecutor
for information about the facts of the case, and the prosecutor
summarized the government’s evidence.
The district court inquired as to the penalties for both
defendants under the sentencing guidelines, as well as any
mandatory statutory penalties, and the prosecutor responded that
they each faced a ten-year minimum mandatory prison term. The
district court also inquired about the defendants’ prior records
and spent some time determining the exact nature and extent of
Diaz’s previous convictions for the purpose of ascertaining his
criminal history category.
4
The district court then asked, “If Mr. Diaz goes to trial, is
2
Mr. Quiles going to testify against him?” (1SR1:15). The
prosecutor responded that while Quiles was willing to testify, a
decision had not been made as to whether he would. Additionally,
the prosecutor stated that the undercover officer could provide the
same testimony and that his testimony would be corroborated by two
surveillance agents who saw the transaction, as well as by a
videotape. The district court remarked, “That’s a lot of
evidence.” (1SR1:16). Diaz’s attorney informed the court that
Diaz would probably enter into plea negotiations with the
government if the government would agree to stipulate that the
controlled substance involved in the offense was six ounces of
powder cocaine. The prosecutor then asked the district court to
give the parties fifteen minutes in the hope that the whole case
could be resolved. In response, the district court said the
following:
THE COURT: Okay. Because I think that, see, Mr. Diaz,
with all of this, I’m glad to go to trial here, I’ve got
the jurors outside, we’re going to trial. There’s no
problem about that.
But you need to think about you, because if this is a
one-day or two-day trial, and you’re going to risk ten
years in prison, you need to think about your options.
You know, I’ll be glad to sit here, we’re glad to try
your case, but when all of this evidence is going to be
introduced by agents and undercover conversations with
you and videotapes, the evidence is kind of compelling.
The only hangup is this crack or powder cocaine issue,
really.
All right. We will be in recess until 11:00.
2
Quiles’ contention was that Diaz alone was responsible
for converting the powder into crack cocaine. (1SR1:12, 14-15).
5
(1SR1:18).
At 11:30 a.m., the parties returned and the prosecutor stated
that she had not been able to determine whether her office would
accept a plea of guilty with the stipulation that the substance was
powder cocaine but she would find out after the lunch hour. The
district court stated that it was unlikely that such a plea would
be acceptable to the government because “it would be contrary to
their general guidelines. If somebody was there cooking crack,
they’re not going to let you plead to powder.” (1SR1:20). The
district court then gave the defendants the option of pleading
guilty or going to trial. The court advised the defendants that
the question of whether the cocaine was crack or powder was a
sentencing issue. Quiles pled guilty to Count III of the
indictment. Diaz exercised his right to go to trial and was
convicted on all three counts of the indictment.
The court found that Diaz was responsible for a drug offense
involving 62.8 grams of crack cocaine. Under the sentencing
guidelines, the applicable sentencing range for that amount of
crack cocaine was 121 to 151 months imprisonment. U.S.S.G. §§
2D1.1(a)(3), 5A (Sentencing Table) (Nov. 1995). The court
sentenced Diaz to 121 months, the lowest possible sentence within
the guidelines range, stating “I am not punishing the defendant
because he went to trial.” (R4:20).
Diaz argued for a lower sentence on several grounds, all of
which were rejected by the district court. First, he asserted that
he was responsible for 84 grams of powder cocaine rather than 62.8
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grams of crack cocaine. Second, he argued that he was entitled to
a reduction in his offense level for acceptance of responsibility
under U.S.S.G. § 3E1.1. Third, he claimed that he was entitled to
a two point reduction in his offense level pursuant to the safety
valve provision of 18 U.S.C. § 3553(f).
II. STANDARD OF REVIEW
A violation of Fed. R. Crim. P. 11(e)(1) is plain error and,
pursuant to its supervisory power over the district courts, the
court of appeals may raise such a violation sua sponte and order a
resentencing of a defendant who pleads not guilty and demonstrates
no actual prejudice in his trial or sentence. United States v.
Adams, 634 F.2d 830, 831-32 (5th Cir. Unit A Jan. 1981).3
III. DISCUSSION
Diaz contends that the district court violated Fed.R.Crim.P.
11 when it announced that the United States Attorney’s office would
not approve a guilty plea that involved a stipulation that Diaz
possessed crack cocaine. He also argues that he was prejudiced at
sentencing because the district court’s participation in the plea
negotiation process prevented him from accepting responsibility,
apparently for possessing powder cocaine, which he was prepared to
do but for the court’s interference.
3
In Bonner v. City of Prichard , 661 F.2d 1206 (11 th Cir.
1981) (en banc), the Eleventh Circuit Court of Appeals adopted as
binding precedent the decisions of the former Fifth Circuit issued
before October 1, 1981.
7
Fed. R. Crim. P. 11(e)(1) provides as follows:
The attorney for the government and the
attorney for the defendant . . . may engage in
discussions with a view toward reaching an
agreement that, upon the entering of a plea of
guilty . . ., the attorney for the government
will [dismiss charges, agree to recommend or
not oppose a request for a particular
sentence, or agree that a specific sentence is
appropriate]. The court shall not participate
in any discussions.
(Emphasis added). Rule 11's prohibition on court participation in
plea negotiations is designed to entirely eliminate judicial
pressure from the plea bargaining process. United States v.
th
Casallas, 59 F.3d 1173, 1178 (11 Cir. 1995); United States v.
Corbitt, 996 F.2d 1132, 1135 (11th Cir. 1993).
The district court’s role under Rule 11 is to evaluate a plea
agreement once it has been reached by the parties and disclosed in
open court. Adams, 634 F.2d at 835. Prior to that time, a court
should not offer comments touching upon proposed or possible plea
agreements because “[s]tatements and suggestions by the judge are
not just one more source of information to plea negotiators; they
are indications of what the judge will accept, and one can only
assume that they will quickly become ‘the focal point of further
discussions.’” Id. (quoting United States v. Werker, 535 F.2d 198,
203 (2d Cir. 1976)). Furthermore, “[t]he purpose and meaning of
this prohibition are that ‘the sentencing judge should take no part
whatever in any discussion or communication regarding the sentence
to be imposed prior to the entry of a plea of guilty or conviction,
or submission to him of a plea agreement.’” Corbitt, 996 F.2d at
1134 (quoting Werker, 535 F.2d at 201).
8
In the present case, because the sentencing judge took an
active part in discussing Diaz’s probable sentence before the time
of his conviction and because she commented on the weight and
nature of the evidence against him, we hold that the court violated
Rule 11(e)(1). Pursuant to our supervisory power over the district
courts, we must determine the appropriate remedy, if any, for this
violation of Rule 11. See Adams, 634 F.2d at 831. Diaz has
requested a new trial before a different district judge or,
alternatively, resentencing before another judge. For the reasons
detailed below, we conclude that the district judge’s participation
in plea negotiations did not compromise her neutrality and did not
prejudice Diaz, and therefore we hold that he is entitled to no
relief.
The primary purpose of Rule 11(e)(1) is to avoid the danger of
an involuntary guilty plea coerced by judicial intervention.
Corbitt, 996 F.2d at 1134 (citing Brown v. Peyton, 435 F.2d 1352(4th Cir. 1970)). A defendant may be motivated to enter an
involuntary guilty plea if he fears that his ”rejection of the plea
will mean imposition of a more severe sentence after trial or
decrease his chances of obtaining a fair trial before a judge whom
he has challenged.” Id.However, this case does not raise the specter of an
involuntary plea. Indeed, far from being coerced to plead guilty
because a higher sentence was threatened after trial, Diaz chose to
stand trial where he was convicted on all three counts against him.
Significantly, he does not present any errors in this appeal
9
regarding his trial, nor does he claim that his guilt was not
clearly determined. Consequently, a new trial is unwarranted. See
Adams, 634 F.2d. at 831-32 (holding that defendant who demonstrates
no actual prejudice in his trial was not entitled to new trial
despite trial court’s violation of Rule 11). Diaz’s general
complaint is that he was prejudiced when the court terminated
negotiations by stating that the United States Attorney’s Office
would not approve a plea of guilty by Diaz to an offense involving
powder cocaine. This contention is simply without any foundation
in the record.
Diaz, who was represented by counsel, could have asked the
district court not to proceed with the trial until after the lunch
break, in order to give the prosecutor a chance to determine
whether she had the authority to accept the proposed plea. This
was not done. Moreover, we agree with the district court that the
government could not enter into a proposed plea agreement which
would necessarily involve a stipulation by the government that the
offense involved powder cocaine. Because the evidence in the case
overwhelmingly demonstrated that Diaz had in fact negotiated for
and delivered crack cocaine, a plea involving a stipulation by the
government that the offense involved powder cocaine would have been
patently improper. See U.S.S.G. § 6B1.4 (stipulation shall not
contain misleading facts).
Diaz has not made any showing that, but for the court’s
alleged interference, he would have been offered such a plea.
Without this showing, his claim of prejudice is baseless.
10
Furthermore, a stipulation between the parties that the offense
involved powder cocaine would not be binding on the district court
which remains free to determine the facts from the Presentence
Investigation Report (“PSI”) and sentence Diaz accordingly. See
U.S.S.G. § 6B1.4(d).
Although Diaz has requested resentencing by another district
judge, he has not specifically pointed to any evidence that the
sentencing judge was biased against him or that his sentence would
be different if determined by another judge. Diaz presented no
evidence, either at trial or at his sentencing hearing, pertaining
to the form or amount of cocaine he agreed to provide and did
provide to Agent Williams. As a result, all of the direct evidence
in the record indicates that Diaz was guilty of conspiring to
possess and distribute 62.8 grams of crack cocaine. The district
court correctly found by a preponderance of the evidence that Diaz
negotiated to sell crack cocaine, that he was personally involved
in cooking the cocaine, and that the amount of crack he gave to
Agent Williams was 62.8 grams.
Moreover, Diaz has failed to demonstrate his entitlement to
any downward adjustments in his base offense level. Although the
district court denied a downward adjustment for acceptance of
responsibility, the court obviously did not prevent Diaz from
accepting responsibility. Diaz expressed remorse at his sentencing
hearing, but he never admitted that he conspired to deal in crack
cocaine, as opposed to powder cocaine. The sentencing guidelines
indicate that a defendant who denies relevant conduct which the
11
court finds to be true has acted in a manner inconsistent with the
acceptance of responsibility. U.S.S.G. § 3E1.1 comment. (n.1(a)).
The fact that Diaz never provided the government with complete and
truthful information about his offenses also precluded the court
from applying the safety valve provisions of 18 U.S.C. § 3553(f).
In short, we see no error in the sentence imposed on Diaz. The
district judge’s factual findings are abundantly supported by the
record, and her interpretation of the sentencing guidelines is
correct.
In Adams, the former Fifth Circuit faced the question of how
to remedy violations of Rule 11(e)(1) in cases where the defendant
pleads not guilty and demonstrates no actual prejudice in his trial
and sentencing. The court determined that a new trial was not
appropriate under such circumstances, but remanded the case for
resentencing before a different judge because the limited
sentencing record made it difficult to determine whether or not the
sentencing was impartial. Id. at 842-43.
However, the remedy employed in Adams is unnecessary in this
case for several reasons. First, Adams was decided before the
enactment of the sentencing guidelines, and in pre-guidelines
practice, “[s]entencing hearings [were] relatively short and
typically involve[d] no detailed record and no rulings by the court
other than the sentencing itself.” Adams, 634 F.2d at 842. In
fact, in Adams, two relevant conversations with the judge were held
off the record. 634 F.2nd at 832, n.1, 833. Under the sentencing
guidelines, the sentencing judge operates with significantly less
12
discretion, and during an adversarial hearing, a complete and
detailed record of the justifications behind a sentence is created
for appellate review. Second, in Adams, the district judge
apparently rejected a proposed plea agreement because she had
committed to imposing a particular sentence if the defendant pled
guilty, and she subsequently came to believe that her promised
sentence was too lenient. See id. at 832-34. Thus, her ability to
fairly and impartially sentence the defendant was called into
question. Id. at 836. In the present case, the district judge did
not enter into any compromising bargains with respect to potential
sentences, but merely engaged in a straight-forward discussion of
the applicable guidelines in open court. Third, and most
importantly, the district court based Diaz’s sentence on entirely
sound reasons and displayed no bias in sentencing him. He was
given the minimum sentence available upon the facts as properly
found by the court.
In conclusion, based on the evidence of record, we conclude
that Diaz is entitled to no relief. Accordingly, we affirm his
convictions and sentences.
AFFIRMED.
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