United States v. Michael Edward Pair , 312 F. App'x 176 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 28, 2008
THOMAS K. KAHN
No. 06-13064
CLERK
________________________
D. C. Docket No. 05-00026-CR-5-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL EDWARD PAIR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 28, 2008)
Before EDMONDSON, Chief Judge, KRAVITCH and ALARCÓN,* Circuit
Judges.
PER CURIAM:
*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
Michael Edward Pair appeals his conviction and sentence following a guilty
plea for manufacturing or possessing with intent to distribute 5 or more grams of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii).
Background
On May 12, 2005, authorities searched Pair’s home and seized 7.88 grams of
methamphetamine and methamphetamine laboratory equipment including
pseudoephedrine, glass and Teflon jars containing methamphetamine solutions,
muriatic acid, a scale, glass tubes, dishes, and bowls. Pair’s fingerprints were lifted
off several of the items. A portion of the 7.88 grams was “ice;”1 the amount of
methamphetamine that was not “ice” totaled less than 5 grams.
On August 2, 2005, a grand jury indicted Pair and his co-defendant and
girlfriend Rhonda Michelle Couch (“Couch”) for (1) conspiracy to manufacture,
distribute, and possess with intent to distribute more than 5 grams of actual
methamphetamine (“Count 1”), and (2) manufacturing and possession with intent
to distribute more than 5 grams of actual methamphetamine (“Count 2”).
During a brief recess before jury selection was to begin on November 14,
2005, Pair and the prosecutor reached an oral agreement whereby Pair would
cooperate and plead guilty to Count 2 in exchange for a dismissal of Count 1 and
1
“Ice” is a term for a certain type of methamphetamine.
2
dismissal of the charges against Couch. The court then placed Pair under oath and
conducted a Rule 11 colloquy. The court asked Pair about his background,
education, whether he had any history of mental illness, and whether he was under
the influence of any medications or drugs. The court then informed Pair of his
constitutional rights that he was waiving, including his right to trial, counsel,
testify, and appeal. The judge also read the indictment, confirmed with Pair that
those were the charges he faced, and informed Pair of the statutory mandatory
minimum sentence he faced.
At that point, the court asked Pair if he had any questions. Pair stated that he
did. He asked whether the Government would enter into a sentencing agreement
and to that question the judge responded that it was up to the prosecutor. After
Pair’s counsel stated that the prosecutor’s office would not do it, the judge stated,
“[The prosecutor] is telling you he won’t do it—or his office won’t do it.”
The judge, defense counsel, and defendant then had a discussion about
whether the prosecutor’s office could agree to a sentence recommendation. During
that discussion, the judge stated that “We need to make [the decision as to whether
to plea or go to trial] soon because I’ve got people downstairs that either need to
come up here for jury selection or need to be sent home. But if you want to go
forward with your trial, that’s what we’ll do, but it will be as to [the] indictment.
3
I’m assuming it will be to the indictment.”
Pair then asked the judge how much difference pleading guilty would make
to his sentence. Pair indicated that he did not feel he was getting a benefit by
entering a plea. At that point, the judge and Pair’s attorney explained that the
prosecutor could file a substantial assistance motion and that the Government
could recommend a downward departure. The judge stated that such a motion was
“entirely up to the United States Attorney’s Office. I have no role in the decision
and neither does [the prosecutor].” The judge stated, however, that the final
decision would be left to the court. The judge then said, “If you go to trial and are
convicted, found guilty by a jury, I’ve never seen it happen where someone
receives the benefit of [such a motion] after having gone to trial. I’ve never seen
it.” Pair stated that he understood this.
The court then sought to determine if a sufficient factual basis existed to
support a guilty plea. The judge had the prosecutor read the facts the Government
intended to prove and Pair agreed with those facts. Pair and the judge then had a
discussion about the weight of the methamphetamine and whether Pair
manufactured it with the intent to distribute it. Pair admitted that he had possessed
7.88 grams and the judge asked if Pair had intended to manufacture the
methamphetamine with the intent to distribute. The judge stated that “distribute
4
doesn’t necessarily mean to sell.” Pair responded, “Right. I thought I was pleading
to the second one.” Defense counsel then explained to Pair that he was pleading to
the second count. The judge stated, “And that is the charge in Count 2. It is not a
conspiracy count, but is a charge of manufacturing. Pair responded, “It’s saying I
manufactured,” and then requested time to speak to his counsel. After they spoke,
Pair asked the court, “I understood the question to be did I manufacture that with
the intent to distribute. I did manufacture it.”
As for the distribution element, the judge asked if Pair manufactured it with
the intent to distribute it. Pair’s counsel responded, “That’s the toughest question
the court’s [asked]. That’s our defense.” The judge replied, “Well, he doesn’t
have any defense if he goes forward with the plea.” After some further discussion,
the judge told Pair what constituted “distribution”; she stated, “You don’t
necessarily have to go out on the street and make a sale or go to a stranger and
make a sale. You can have a party and let someone share in your
methamphetamine. That would be distribution. . . . If you shared it, then you’re
distributing it.” Pair stated that his intention with the methamphetamine was to
“smoke it up” with “whoever happened to be there.” The judge then stated that
there was enough evidence to support a guilty plea to Count 2 and Pair pleaded
guilty to the charge.
5
Before Pair’s sentencing hearing, however, he filed a motion to withdraw his
guilty plea. Among other things, he stated that he was not adequately advised of
the nature of the charge against him (in violation of Rule 11) and that he did not
understand the relation between the law and the facts that he admitted in pleading
guilty. The district court denied the motion following a hearing.
Pair then sought to represent himself pro se with the assistance of standby
counsel. The court held a hearing on Pair’s motion to proceed pro se. The court
asked Pair about his education and training as a military technician, whether he had
a history of mental illness, and his prior experience with court-appointed counsel.2
The court told Pair that if he proceeded without counsel that he would still be
required to follow the rules of procedure and evidence and that, as a prisoner, he
had limited access to legal research materials. Pair stated that he understood this.
The court also informed Pair that the court was of the opinion that it was not “in
your best interest to proceed” pro se. The court warned Pair that criminal
sentencing in the federal courts is complicated and that because he did not have
any training or experience in the application of the Guidelines there was “a huge
risk . . . in going forward without counsel.” Stating that he understood these risks,
Pair reaffirmed his desire to proceed pro se and the judge granted Pair’s motion.
2
Pair had appointed counsel on at least two prior occasions; once, counsel won a motion
to suppress.
6
Before the sentencing hearing, Pair filed a Motion for Independent Testing
of the methamphetamine. He filed the motion on April 10, 2006 3—several months
after his November 2005 guilty plea and well after the August 15, 2005 discovery
order in which the court ruled that all pretrial motions were to be filed within 10
days of the order. The court denied Pair’s motion as moot since he had already
pleaded guilty to the offense.
Although the applicable Guidelines range was 70 to 87 months, Pair faced
and received the statutory minimum sentence of 120 months.
On appeal, Pair claims that (1) the court improperly participated in Pair’s
plea negotiations; (2) he did not understand the nature of the charges to which he
pleaded guilty and, therefore, the court improperly denied his motion to withdraw
his guilty plea; (3) the judge erred by denying the motion to permit independent
testing of the methamphetamine; and, (4) the judge erred by permitting Pair to
proceed pro se. We discuss each claim in turn.
Discussion
A. Improper participation in the plea discussion
Pair contends on appeal that the district court impermissibly participated in
the plea negotiation because the judge (1) implied without asking the Government
3
It was originally filed on March 24, 2006 but was not accepted because of filing
deficiencies; Pair was able to correct these deficiencies and re-filed it on April 10, 2006.
7
that the Government would not agree to a sentencing agreement, (2) coerced the
guilty plea by hurrying Pair, (3) stated that she had never seen a downward
departure motion made following a jury trial and conviction, and (4) implied that
Pair would not prevail at trial because he did not have any defense if he proceeded
with a guilty plea.
A judge cannot participate in the plea discussions between the Government
and a criminal defendant. Fed. R. Crim. P. 11. Because Pair did not object at the
district court to improper judicial participation in the plea, we review Pair’s
contention under the plain error standard. See United States v. Vonn, 535 U.S. 55,
59 (2002). Under plain-error review, the defendant has the burden to show that
“there is (1) “error” (2) that is “plain” and (3) that it “affect[s] substantial rights.”
United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). The Supreme
Court has held that in order to meet the third prong, a “defendant who seeks
reversal of his conviction following a guilty plea on the ground that the district
court committed plain error under Rule 11 must show a reasonable probability that,
but for the error, he would not have entered the plea.” United States v. Dominquez
Benitez, 542 U.S. 74, 83 (2004). Additionally, once the defendant has established
the first three prongs, the reviewing court may then exercise its jurisdiction and
correct the error, but only if it “seriously affects the fairness, integrity, or public
8
reputation of the judicial proceedings.” United States v. Olano, 507 U.S. 725, 732
(1993).
Pair argues that the judge’s statements were coercive and, therefore,
erroneous, and that this error is plain. Pair does not, however, suggest that there is
a reasonable probability that the judge’s statements were a “but for cause” of the
guilty plea. In fact, a reading of the transcript suggests otherwise.
Pair and the prosecutor had already reached an agreement before the judge
made the allegedly improper comments; further, those comments stem from
questions Pair asked about his sentence and what benefits he would receive by
pleading guilty. The judge’s comments were all made in response to questions Pair
asked the court. Thus, Pair has not met his burden to convince this court with “a
reasonable probability” that the district judge’s comments were the “but for cause”
of his guilty plea.
B. Withdrawal of the guilty plea
Pair next contends that the court erred in its denial of his motion to withdraw
the guilty plea.
We review the denial of a request to withdraw a guilty plea for abuse of
discretion. United States v. Najjar, 283 F.3d 1306, 1307 (11th Cir. 2002). We will
reverse a district court’s decision on a motion to withdraw only if it is arbitrary or
9
unreasonable. Id.
A district court may permit a defendant to withdraw his guilty plea before
the imposition of a sentence for a “fair and just reason.” Fed. R. Crim. P.
11(d)(2)(B). In determining whether a defendant has shown a “fair and just
reason,” the district court evaluates the totality of the circumstances, including “(1)
whether close assistance of counsel was available; (2) whether the plea was
knowing and voluntary; (3) whether judicial resources would be conserved; and (4)
whether the government would be prejudiced if the defendant were allowed to
withdraw his plea.” Najjar, 283 F.3d at 1318. “Moreover, when a district court
accepts a guilty plea, it must ensure that the three core concerns of Rule 11 . . .
have been met: (1) the guilty plea must be free from coercion; (2) the defendant
must understand the nature of the charges; and (3) the defendant must know and
understand the consequences of his guilty plea.” Id. (citation and quotation marks
omitted).
Pair asserts that the district court erred in its determination that Pair
understood the nature of the charges against him. More specifically, Pair claims
that he did not understand the nature of the “distribution” or “manufacturing”
elements of the crime. Pair, however, does not effectively show exactly how he
misunderstood the “distribution” element. As for the “manufacturing” element, he
10
claims that he meant to plead guilty to “manufacturing” but he did not manufacture
that portion of the methamphetamine that was “ice.”
Rule 11 requires that a defendant must understand the nature of the charges
against him. United States v. Jones, 143 F.3d 1417, 1418-19 (11th Cir. 1998). But
the law does not require that the defendant pleading guilty must understand all the
nuances of the law:
For simple charges such as those in this case,4 a reading of the
indictment, followed by an opportunity given the defendant to ask
questions about it, will usually suffice. Charges of a more complex
nature, incorporating esoteric terms or concepts unfamiliar to the lay
mind, may require more explication. In the case of charges of extreme
complexity, an explanation of the elements of the offense like that
given the jury in its instructions may be required; this, of course, is the
outer limit, for if an instruction informs a jury of the nature of the
charge sufficiently for it to convict the defendant of it, surely it
informs the defendant sufficiently for him to convict himself.
See United States v. Dayton, 604 F.2d 931, 937-38 (5th Cir. 1979) (en banc).5
“‘[T]here is no one mechanical way or precise juncture to which a district
judge must conform in advising a defendant of the charges to which he is pleading
guilty.” United States v. Mosley, 173 F.3d 1318, 1322 (11th Cir. 1999). Instead,
we assess each plea colloquy individually in the context of the entire record,
4
The charge in Dayton was possession with intent to distribute marijuana.
5
The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981), adopted as precedent decisions of the former Fifth Circuit rendered
prior to October 1, 1981.
11
examining such factors as the “simplicity or complexity of the charges and the
defendant's sophistication and intelligence.” Id. at 1323. “These matters are better
committed to the good judgment of the district judge, who observes the
defendant’s demeanor, life experience, and intelligence.” Id.
After reviewing the transcripts of Pair’s Rule 11 plea colloquy and the
hearing on his motion to withdraw the plea, we cannot say that the district court’s
denial was either arbitrary or unreasonable. The court complied with Rule 11.
Pair’s offense was a “simple charge”; thus, to satisfy Rule 11 under our binding
precedent, the court had to read the indictment and provide an opportunity for Pair
to ask questions. See United States v. Sanchez, 650 F.2d 745, 747-748 (5th Cir.
1981) (a reading of the indictment and the opportunity for the defendant to ask
questions was sufficient to comply with Rule 11 where twenty-five year old
migrant worker with seventh grade education and no criminal record was charged
with possession with the intent to distribute marijuana). Here, the judge read the
indictment and asked Pair if he understood the charges he faced. Pair said he did.
The court also asked Pair if he had any questions.
Moreover, Pair’s counsel and the court explained to Pair that the
“distribution” element could be satisfied by showing that Pair intended to share the
drugs with others. Pair also had ample opportunity to consult with his attorney and
12
Pair stated that he had discussed the plea with his counsel. Pair had “a couple of
years” of college and had received training as an electronics technician in the
Navy. Given Pair’s experience as a defendant in prior criminal cases, his age, and
his educational experience and training, we cannot say that the district court erred.
C. Independent testing of the methamphetamine
Pair further contends that the district court erred by denying his motion to
independently test the methamphetamine. Pair argues that he wants to perform
testing to determine the amount of impurities, the weight, and whether the
methamphetamine is “L” methamphetamine or “D” methamphetamine. He does
not argue that the Government’s weight calculation is incorrect; he just asserts that
he has a due process right to test the substance and that the district court denied
him the opportunity to exercise this right.
Pair’s Motion for Independent Testing was untimely, as it was filed well
after the district court’s August 2005 discovery deadline and after he pleaded
guilty. We, therefore, review the denial of Pair’s motion under the plain error
standard. United States v. Olano, 507 U.S. 725, 731-733 (1993) (forfeited claim of
constitutional violation will be reviewed under the plain error standard); see also
Fed. R. Crim. P. 12(c) (the district court can set a deadline for all pre-trial
motions).
13
A defendant in a prosecution for a drug offense has a due process right to
have an expert perform an independent analysis of the seized substance. See
United States v. Nabors, 707 F.2d 1294, 1296 (11th Cir. 1983) (emphasis added).
But a defendant does not have the same degree of due process protections at
sentencing. United States v. Satterfield, 743 F.2d 827, 840 (11th Cir. 1984) (“The
sole interest being protected is the right not to be sentenced on the basis of invalid
premises or inaccurate information. Because the sentencing procedure is not a
trial, courts have limited this right in order to prevent the sentencing hearing from
becoming a full-scale evidentiary hearing”).
Pair has not met his burden. Our due process concern that a defendant “not
be sentenced on the basis of invalid premises or inaccurate information” does not
come into play in this case because Pair makes no argument that he was sentenced
on either invalid premises or inaccurate information. See Id. He does not argue,
for example, that the Government’s laboratory equipment malfunctioned or that the
weight is inaccurate. Nor is the distinction between “L” methamphetamine and
“D” methamphetamine legally significant in any way. Pair has certainly not shown
plain error.
D. Pair’s self-representation
Pair argues that the court erred by allowing him to represent himself. He
14
states that the court should allow a defendant to represent himself only after a full
inquiry into whether a waiver of the right to counsel is knowing, voluntary, and
intelligent. Pair claims that the court did not inquire sufficiently.
The waiver of the right to counsel must be knowing, voluntary, and
intelligent. United States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 1995). This is a
mixed question of law and fact that we review de novo. Id. The Government bears
the burden of proving the validity of the waiver. Id.
If the record establishes that the defendant knew what he was doing and that
his decision was “made with open eyes,” this court will not overturn a district
court’s decision to allow a defendant to proceed pro se. See Faretta v. California,
422 U.S. 806, 835 (1975). We look at the record to ascertain whether the
defendant was made aware of the dangers of proceeding pro se and whether he
understood the decision he made. Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065
(11th Cir. 1986). To determine whether the waiver is “knowing, voluntary, and
intelligent,” we consider several factors; they are: (1) the defendant’s age,
educational background, and physical and mental health; (2) the extent of the
defendant’s conduct with lawyers prior to trial; (3) the defendant’s knowledge of
the nature of the charges, possible defenses, and penalties; (4) the defendant’s
understanding of the rules of procedure, evidence, and courtroom decorum; (5) the
15
defendant’s experience in criminal trials; (6) whether standby counsel was
appointed and the extent to which that counsel aided the defendant; (7) any
mistreatment or coercion of the defendant; and (8) whether the defendant was
trying to manipulate the events of trial. Cash, 47 F.3d at 1088-89. All factors do
not need to point in the same direction, and the district court should hold a hearing
to examine these factors. Id.
Here, Pair had a hearing in which these factors were considered. The court
cautioned Pair that proceeding pro se was not in his best interest and that it
involved a “huge risk.” The court warned him that sentencing is complex and that
it involves factual and legal issues that call for the assistance of an experienced
attorney. Pair acknowledged this at the hearing and stated that he recognized that
he was not such a person. The court inquired into Pair’s education, whether he had
any mental illnesses, the extent of his contact with lawyers, Pair’s understanding of
the charges and the possible penalty range, his experience at criminal trials, and
whether standby counsel would be available. The judge found, and the record
indicates, that Pair was not coerced and that he knew what he was doing. We are
satisfied that the district court did not err.
Accordingly, we AFFIRM.
16