United States v. Konan ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 1, 2009
No. 07-11185 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ETIENNE KONAN
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-75-ALL
Before REAVLEY, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Etienne Konan appeals following his guilty-plea conviction for making
false declarations before a grand jury, in violation of 18 U.S.C. § 1623. For the
first time on appeal, Konan challenges the voluntariness of his guilty plea,
contending that he was not fully informed of the nature of the charge against
him because the district court did not advise him of the recantation defense
under 18 U.S.C. § 1623(d). We AFFIRM the district court’s judgment.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 07-11185
A valid guilty plea must be made voluntarily and knowingly. Boykin v.
Alabama, 395 U.S. 238, 242–44, 89 S. Ct. 1709, 1712–13 (1969); see F ED. R.
C RIM. P. 11. To this end, Rule 11 is “meant to ensure that a guilty plea is
knowing and voluntary, by laying out the steps a trial judge must take before
accepting such a plea.” United States v. Vonn, 535 U.S. 55, 58, 122 S. Ct. 1043,
1046 (2002). A district court is required by Rule 11 to address the defendant and
inform him of the nature of the charges. Rule 11(b)(1)(G). We have held that the
“nature of the charges” generally refers to the elements of the offense. United
States v. Lujano-Perez, 274 F.3d 219, 224 (5th Cir. 2001).
Konan does not contend that he failed to understand the elements of his
offense; rather, he contends that because recantation under § 1623(d) is a
statutory bar to prosecution, a defendant must be informed of its provisions in
order to have a full understanding of the charge against him. We disagree.
“Section 1623(d) is not an automatic bar to prosecution for perjury.” United
States v. Scrimgeour, 636 F.2d 1019, 1026–27 (5th Cir. 1981). Recantation under
§ 1623(d) is a defense that must be raised before trial by the defendant, who
bears the burden of demonstrating its applicability. United States v. Denison,
663 F.2d 611, 618 (5th Cir. 1981). The district court was required to engage
Konan in a manner “that would lead a reasonable person to believe that the
defendant understood the nature of the charge.” United States v. Reyna, 130
F.3d 104, 110 (5th Cir. 1997). The court was not required to inform Konan of
every defense potentially available to him. See United States ex rel. Salisbury
v. Blackburn, 792 F.2d 498, 500 (5th Cir. 1986); see also United States v.
Calderon, 243 F.3d 587, 589 (2d Cir. 2001) (holding that the “‘nature of the
charge’ . . . does not encompass possible defenses to the charge”). We conclude
that the district court’s careful plea colloquy satisfied the requirements of due
process and Rule 11, and that Konan was fully aware of the nature of the offense
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No. 07-11185
to which he was admitting guilt. Konan has failed to show error, plain or
otherwise.
Konan suggests in his brief that his counsel rendered ineffective assistance
by failing to advise him of the § 1623(d) recantation defense, but he
acknowledges that such a claim is ordinarily not reviewed on direct appeal. We
decline to address this issue since it has not been previously presented for
development in the district court. See United States v. Cantwell, 470 F.3d 1087,
1091 (5th Cir. 2006).
Finally, Konan argues that the district court erroneously denied without
a hearing his motion to withdraw his guilty plea. The district court carefully
and correctly considered the factors identified in United States v. Carr, 740 F.2d
339, 343–44 (5th Cir. 1984), for consideration of a defendant’s motion to
withdraw a plea. We see no abuse of discretion. See United States v. Powell, 354
F.3d 362, 370 (5th Cir. 2003) (stating standard of review).
AFFIRMED.
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