United States v. Bennett, Donald R. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3176
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD R. BENNETT, also known as Butch,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 CR 380—James B. Zagel, Judge.
____________
ARGUED APRIL 10, 2003—DECIDED JUNE 23, 2003
____________
Before BAUER, RIPPLE, and EVANS, Circuit Judges.
BAUER, Circuit Judge. A grand jury returned a five-
count indictment charging Defendants Donald R. Bennett
and Edward Landaw with wire fraud and conspiracy to
commit wire fraud in violation of 18 U.S.C. §§ 1343 and
371. Both men appeared separately before the district
court and entered guilty pleas on one count of conspiracy
to commit wire fraud pursuant to plea agreements.
After learning that the government had conditioned a two-
level reduction in Landaw’s offense level upon Bennett
pleading guilty first, Bennett moved to withdraw his
guilty plea. The district court conducted a two-day evi-
dentiary hearing on the matter and denied Bennett’s
2 No. 02-3176
motion. The court then sentenced him to forty months’
imprisonment, and this appeal ensued. For the reasons
set forth below, we affirm the judgment of the district court.
BACKGROUND
Already serving a lengthy prison sentence for bank
robbery, for which he was not due to be released until
2032, Bennett, who is now sixty years old, orchestrated
a scheme whereby he and other inmates would make
telephone calls without paying for them. To facilitate this
criminal endeavor, Bennett and Landaw established over
thirty-five telephone service accounts in several states
using various names without the permission of those
people. Bennett and Landaw, along with others at their
direction, then placed numerous calls and had those
calls billed to the persons whose names were on the ac-
counts. The pair also enlisted the help of people outside
the jail by promising them unlimited talking time with
their incarcerated boyfriends.
As we said earlier, the two pleaded guilty in separate
appearances. During Bennett’s plea colloquy, the district
court established Bennett’s competence to plead guilty,
reviewed the plea agreement with him (including his trial
rights and the consequences of pleading guilty), and
asked whether Bennett was satisfied by the representa-
tion he had received from his attorney, Victor Pilolla. Of
particular import were the questions concerning the
voluntariness of his plea and his understanding of the
terms of the agreement. The court specifically asked
Bennett whether he had fully read and discussed the plea
agreement with Pilolla and whether anyone had forced,
threatened, or made any promises to Bennett to induce
a guilty plea. Bennett replied that he had fully read
and discussed the agreement with Pilolla and that his
plea was entirely voluntary.
No. 02-3176 3
The district court accepted Bennett’s guilty plea and
later entertained Landaw’s guilty plea. It was not until
Landaw’s plea colloquy, however, that the district court
learned that the government conditioned a two-level
reduction in Landaw’s offense level upon Bennett plead-
ing guilty first. The district court stated that, had it
known of the condition in Landaw’s plea agreement when
it accepted Bennett’s plea, it would have inquired fur-
ther into the basis for Bennett’s plea to ensure its volun-
tariness. The court, however, accepted Landaw’s guilty
plea without further questioning Bennett.
Two months after pleading guilty, Bennett filed a pro se
motion to withdraw his plea, arguing that Landaw and
Landaw’s attorneys coerced him to plead guilty and that
he was actually innocent of the charge. Bennett claimed
that the “package deal” in Landaw’s plea agreement, which
enabled Landaw to avoid a sentence increase for an
escape charge in the Northern District of Indiana, highly
motivated Landaw to pressure Bennett into pleading
guilty. Bennett further argued that the government’s fail-
ure to disclose this term of Landaw’s plea agreement to
the district court during Bennett’s plea colloquy was a
violation of Federal Rule of Criminal Procedure 11,
insofar as the district court failed to probe adequately the
voluntariness of his plea. Finally, Bennett asserted that
the terms of the package deal had not been disclosed to
Pilolla, which deprived Bennett of the effective assis-
tance of counsel because Pilolla was not aware of the
potential for coercion.
Bennett did not provide details of Landaw’s coercion
in the motion but requested, and was granted, a hearing.
The district court scheduled a hearing on November 2,
2000, and appointed stand-by counsel for Bennett. Bennett
became ill on November 2, so the hearing was continued
until March 15, 2001. During the hearing, Bennett exam-
4 No. 02-3176
ined Landaw’s attorneys (Sarah Ellis and Daniel Hesler),
Landaw, Pilolla, and the prosecutor involved with the case.
Bennett first called Sarah Ellis to the stand. She testified
about her discussions with Landaw concerning his plea
agreement and the package deal requiring Bennett to
plead guilty first. She testified that Landaw said he
would speak with Bennett about pleading guilty but that
he never told her he was pressuring Bennett to do so.
Ellis also testified that she met with Bennett twice, both
times with Pilolla’s knowledge. During the first meeting,
according to Ellis, she explained to Bennett that Landaw’s
plea agreement was contingent upon Bennett taking
responsibility for the scheme. Ellis testified that Ben-
nett claimed full responsibility for the scheme and that
he stated that Landaw’s involvement was limited. Ellis
recalled that during her second meeting with Bennett
he expressed interest in pleading guilty. She testified
that she was not aware of any attempts to threaten or
coerce him.
Bennett then called Daniel Hesler, who testified that
Bennett stated he felt some moral compunction to go
along with the deal. Hesler also testified about meeting
with Bennett to discuss whether Bennett would plead
guilty and the package deal in Landaw’s agreement. Hesler
further testified, by reading a transcript of the voice-
mail message, that Pilolla had given permission for
Ellis and Hesler to meet with Bennett because Bennett
had instructed Pilolla to do so. Finally, Hesler stated
that Bennett seemed willing to plead guilty to the charges
in order to assist Landaw’s sentence, that Bennett never
conveyed he had been threatened or coerced in any way,
and that Bennett seemed calm at their two meetings.
Bennett’s third witness was his attorney, Victor Pilolla,
who testified that Bennett had earlier rejected deals sim-
ilar to the one he ultimately accepted. Pilolla testified
No. 02-3176 5
that he did not see a final version of the plea agreement
until the morning of the Rule 11 plea colloquy but that
he did fully discuss the final version with Bennett that
morning. Pilolla further testified that plea negotiations
took place prior to January 5, 2000, but he stated that he
was unaware of the condition in Landaw’s agreement
that Bennett plead guilty first. He also testified that he
had no reason to doubt Bennett when Bennett told the
district court that he had not been threatened or coerced.
Finally, Pilolla testified that Bennett requested to see
him two days after pleading guilty in order to discuss
withdrawing his guilty plea.
Following Pilolla’s testimony, Bennett called Landaw
to the stand, and he testified that he had tried to per-
suade Bennett to plead guilty by whatever way he could,
including by putting pressure on Bennett and hollering
at him on the morning of the plea colloquy because he
(Landaw) was upset. When pressed on cross-examination,
however, Landaw admitted that he never physically
threatened Bennett and that the only pressure he ac-
tually put on Bennett was to persuade him that it was
in both men’s best interest to plead guilty.
Bennett next called the prosecutor, who testified to
the terms of Landaw’s plea agreement, specifically the
condition requiring Bennett to plead guilty first. Finally,
Bennett took the stand and read a statement into the rec-
ord for his direct examination. He claimed that he had
been coerced into signing an affidavit stating that he
was responsible for the crimes and that the affidavit had
only been signed, at Landaw’s attorneys’ behest, in con-
nection with a motion to sever his trial from Landaw’s.
Aside from Bennett, no one else had mentioned this af-
fidavit; yet, it further proves his admission of guilt.
Bennett then testified about the events on the morning
of the plea colloquy. He stated that Landaw physically
6 No. 02-3176
threatened him to induce him to plead guilty and that
he was afraid for his safety. Bennett claimed he was
overwhelmed because everyone (Ellis, Hesler, Landaw,
Pilolla) kept telling him to plead guilty, that the judge
was going to come down hard on him, and that he was
unable to exercise his own judgment as a result. He also
asked the district court to consider that he suffers from
paranoid schizophrenia. Bennett admitted, however, that
he told no one that morning, not even the federal marshals
or the judge, that he had been threatened. As a conse-
quence, Bennett conceded that, by not disclosing that he
was threatened that morning, he had lied to the district
court when asked if he had been threatened or coerced
in any way.
Following the hearing, Bennett filed a pro se memoran-
dum simply rehashing his argument that Pilolla never
knew about Bennett’s meetings with Ellis and Hesler
and that, therefore, he had been denied the effective
assistance of counsel. Pilolla subsequently filed a state-
ment with the district court disputing Bennett’s asser-
tion that he had been unaware of his client’s meetings
with Landaw’s attorneys.
After carefully considering the parties’ briefs and the
evidence from the two-day hearing, the district court de-
nied Bennett’s motion to withdraw his guilty plea. The
court did not hold Bennett to the higher burden normally
imposed upon defendants seeking to withdraw a plea
but still found ample evidence to refute Bennett’s claim
that his plea had been coerced. The district court con-
cluded that concern for Landaw motivated Bennett’s plea
and that his motion to withdraw the plea had only been
hurried along after prison officials revoked Bennett’s
unsupervised telephone privileges following his guilty
plea. The court declined to address Bennett’s claim that
he was denied the effective assistance of counsel, finding
No. 02-3176 7
that claim more appropriate for a petition under 28 U.S.C.
§ 2255.
Bennett shortly thereafter filed a second pro se motion
to withdraw from the plea agreement, reiterating the
same basic arguments as the original motion to withdraw
the guilty plea. The district court, likewise, rejected this
motion on procedural and substantive grounds and there-
after sentenced Bennett to forty months’ imprisonment.
Bennett then timely filed the instant appeal.
ANALYSIS
A. The Denial of Bennett’s Motion to Withdraw His
Guilty Plea
Bennett’s first claim is that the district court erred
by denying the motion to withdraw his guilty plea, a
decision which we review for an abuse of discretion. United
States v. Merriweather, 294 F.3d 930, 931 (7th Cir. 2002).
Federal Rule of Criminal Procedure 11(d)(2)(B) provides
that a defendant may withdraw a plea of guilty after
the court accepts the plea, but prior to sentencing, if
“the defendant can show a fair and just reason for re-
questing the withdrawal.” Fed. R. Crim. Pro. 11(d)(2)(B)
(2003).1 Representations made at a Rule 11 plea colloquy
1
We note that, at the time Bennett sought to withdraw his
guilty plea, and when the parties submitted their briefs, the
Federal Rules of Criminal Procedure made Rule 32(e) applicable
to the withdrawal of guilty pleas. The Federal Rules of Criminal
Procedure, however, were amended on April 29, 2002, which
took effect on December 1, 2002, after the submission of the
parties’ briefs in this case. We make mention of this procedural
alteration because the reorganization of the Rules has changed
the location of substantive provisions applicable to the outcome
of this case, and it appears that this is the first case in this Cir-
(continued...)
8 No. 02-3176
are given a presumption of verity, United States v. Schuh,
289 F.3d 968, 975 (7th Cir. 2002), and the defendant
bears the burden of demonstrating a fair and just reason
to permit withdrawal of the guilty plea, United States
v. Milquette, 214 F.3d 859, 861 (7th Cir. 2000). After a
thorough Rule 11 colloquy, however, the defendant faces
an uphill battle; and we review the district court’s fac-
tual findings as to whether the defendant demonstrated
a fair and just reason for clear error. United States v.
Hodges, 259 F.3d 655, 661 (7th Cir. 2001).
Bennett claims that his guilty plea should be with-
drawn because it was not voluntarily, knowingly, and
intelligently made, and because he is actually innocent.
The voluntariness of his plea, however, was examined on
two separate occasions by the district court. First, the
court explicitly inquired into the voluntariness of Ben-
nett’s plea at the original Rule 11 plea colloquy, asking
specifically whether Bennett had fully read and under-
stood the charge and the plea agreement. Bennett said
that he had. The court asked whether he had fully dis-
cussed his trial rights and the possible sentencing
range with his attorney. Bennett said that he had.
The district court further inquired of Bennett’s level of
satisfaction with Pilolla’s representation, and Bennett
replied that he was satisfied. Finally, but not least im-
portantly, the district court specifically asked Bennett
whether he had been threatened, coerced, or received
any promises inducing him to plead guilty. Bennett re-
plied that his plea was entirely voluntary. Moreover,
Bennett did not alert the federal marshals to any possible
threats made against him by Landaw that morning.
1
(...continued)
cuit addressing the recent amendments. Rule 11(d) now con-
tains the substantive provisions applicable to the withdrawal
of guilty pleas, formerly located in Rule 32(e).
No. 02-3176 9
Second, the district court did not end its inquiry with
the results of the Rule 11 plea colloquy. Upon learning
of the condition in Landaw’s plea agreement and after
Bennett filed his motion to withdraw, the district court
ordered a full evidentiary hearing, which took place
over two days (albeit in part because Bennett became ill
the first day), and concluded that Bennett’s guilty plea
had been voluntarily made and properly accepted by the
court. The testimony of Ellis, Hesler, Pilolla, and Landaw
demonstrated that Bennett was fully aware of the condi-
tion in Landaw’s agreement, that he accepted responsibil-
ity for his guilt and understood all aspects of pleading
guilty, and that no one physically threatened or coerced
Bennett to induce a guilty plea. We find no error in the
district court’s determination that the testimony of Ellis,
Hesler, Pilolla, and Landaw was more credible than
Bennett’s.
Bennett also asked the district court to consider that
he suffers from paranoid schizophrenia and that this
condition prevented him from exercising his own judg-
ment on the morning of the plea colloquy. Bennett
claims that he felt too much pressure to plead guilty
because everyone around him (Landaw, Ellis, Hesler,
Pilolla) was telling him to do so, and that Landaw’s ac-
tions on the morning of the colloquy made him fear for
his safety. The district court rejected this claim, and we
see no reason to disagree.
First, the district court noted that Bennett is relatively
intelligent and “enjoys the battle he is waging here.”
Second, Bennett filed several pro se motions and briefs
and performed most of the examinations during the two-
day evidentiary hearing with limited involvement or
assistance from his court-appointed, stand-by counsel.
Third, the district court established Bennett’s mental
competency at the Rule 11 plea colloquy, noting that
Bennett did not give rote answers to the court’s inquiries
10 No. 02-3176
that morning. Fourth, Bennett deliberately met with
Landaw’s attorneys twice outside of the presence of
Pilolla prior to pleading guilty. We agree that these
events demonstrate Bennett was not suffering from a
mental impairment that would have made his guilty plea
involuntary.
Finally, Bennett claims that he is actually innocent of the
charges but provides only an assertion, supported by
testimony from Pilolla, that Bennett had rejected plea
deals similar to the one he ultimately accepted. The dis-
trict court afforded Bennett a full evidentiary hearing,
which further demonstrated that Bennett’s plea was not
coerced and certainly did not provide any evidence of
actual innocence. Pilolla’s testimony concerning Ben-
nett’s prior rejection of similar plea agreements does
nothing to establish Bennett’s innocence. The district
court did not abuse its discretion in denying Bennett’s
motion to withdraw his plea.
B. The Alleged Rule 11 Colloquy Violation
Bennett also asserts that the district court abused its
discretion by denying his motion to withdraw his plea
because the court violated Federal Rules of Criminal
Procedure 11(b)(2) and 11(c)(2).2 Under the amended
version of Rule 11(b)(2), “[b]efore accepting a plea of
guilty or nolo contendere, the court must address the
defendant personally in open court and determine that
2
As with the revisions to Rule 32(e), the applicable portion of
Rule 11 has changed since the proceedings in the district court
and the submission of the parties’ briefs. The substance of the
Rules, however, has not been altered; therefore, we cite to the
current version of Rule 11. The current version of Rule 11(b)(2)
was formerly found at Rule 11(d), and Rule 11(c)(2) was for-
merly located in Rule 11(e)(2).
No. 02-3176 11
the plea is voluntary and did not result from force, threats,
or promises (other than promises in a plea agreement).”
Fed. R. Crim. Pro. 11(b)(2) Amended Rule 11(c)(2) re-
quires the disclosure of a plea agreement in open court
when the plea is offered, unless the court finds good cause
to allow in camera disclosure. Fed. R. Crim. Pro. 11(c)(2).
Several circuits have held that “package deals,” also
known as “wired pleas,” should be disclosed to the district
court because they present unique opportunities for
coerced pleas. See, e.g., United States v. Abbott, 241 F.3d
29, 33-34 (1st Cir. 2001) (“Package deals pose particular
problems with regard to voluntariness . . . .”); United States
v. Holland, 117 F.3d 589, 594 (D.C. Cir. 1997) (“wiring of
a plea is a ‘material detail’ about which the court should
be informed”); United States v. Carr, 80 F.3d 413, 416-17
(10th Cir. 1996) (discussing possible inherent coercion
in package deals); United States v. Clements, 992 F.2d
417, 419 (2d Cir. 1993) (“We agree that the preferred
practice is to advise the court explicitly of any condition
that has been imposed and accepted by each of the plead-
ing defendants.”); United States v. Caro, 997 F.2d 657, 659-
60 (9th Cir. 1993) (“We make it clear today that, in describ-
ing a plea agreement under [Rule 11(b)(2)], the pros-
ecutor must alert the district court to the fact that co-
defendants are entering a package deal.”).
This Circuit has not yet addressed whether the govern-
ment is required to disclose package deals. We hold
today that the government must advise the district court
of any package deals or wired pleas during the Rule 11
plea colloquy of any defendant involved in the deal. The
possibility of coercion resulting from plea agreements
linking multiple defendants together, or defendants and
third persons together, argues for the adoption of this
rule. Therefore, the prosecution must comply with this
rule or face the penalty of withdrawal of the accepted
plea. Upon disclosure of a package deal, the district court
12 No. 02-3176
should make a more detailed examination as to the volun-
tariness of each defendant’s guilty plea pursuant to the
package deal.
Though we adopt this rule prospectively, we further
find that the district court in the case sub judice did
not violate Rule 11 by not conducting a more thorough
examination of the voluntariness of Bennett’s plea at
the original plea colloquy. Bennett conceded that his
plea agreement as presented in the district court during
his Rule 11 colloquy was entirely complete. Bennett
would like us to consider the condition in Landaw’s agree-
ment as a part of his own plea agreement because, he
argues, the condition resulted in consequences to him. The
only consequence to Bennett, however, is that he volun-
tarily, knowingly, and intelligently decided to plead guilty
in order to help Landaw take advantage of the condition.
So, Bennett was not coerced as a consequence of this
condition such that withdrawal of his plea would be justi-
fied. Bennett clearly knew about the condition in Landaw’s
plea agreement when he chose to plead guilty. That
fact, coupled with the absence of coercion, leads us to
conclude that Bennett would not have pleaded any differ-
ently had the district court further questioned him at
the original Rule 11 plea colloquy.
Moreover, the district court’s duty to inquire further
at the time of Bennett’s plea colloquy was more than
fulfilled later by the two-day evidentiary hearing. In
other words, even though Bennett knew all he needed to
know about Landaw’s plea agreement when he decided
to plead guilty (thereby not reducing his willingness to
do so), the district court’s decision to conduct an evi-
dentiary hearing eliminated any error that might have
occurred at the time of the original Rule 11 colloquy. The
district court gave Bennett the opportunity to examine
several witnesses in order to attempt to prove that he
was coerced, and the court carefully examined all of
No. 02-3176 13
the evidence derived from that hearing and the original
plea colloquy. As we have concluded, however, the dis-
trict court properly found that Bennett was not coerced.
Finally, Bennett attempted to raise an ineffective as-
sistance of counsel claim regarding Pilolla’s knowledge of
the condition in Landaw’s plea agreement, but as the
district court wisely advised Bennett, such a claim is
better preserved for a § 2255 petition.
Accordingly, the decision of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-23-03