United States v. Bennett

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2565
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID LEE BENNETT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Marie E. Hansen, with whom Willey Law Offices was on brief,
for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
July 7, 2004
Per Curiam. David Bennett appeals his convictions and
ensuing sentence for (1) "travel[ing] in interstate or foreign
commerce . . . with the intent to kill, injure, harass, or
intimidate another person [with the result of] plac[ing] that
person in reasonable fear of [death] or serious bodily
injury . . . ."; and (2) "ship[ping] or transport[ing] in
interstate or foreign commerce . . . any firearm or ammunition
[after having been convicted in any court of a misdemeanor crime of
domestic violence]." 18 U.S.C. §§ 2261A(1) and 922(g)(9). We
affirm.
I.
Bennett was a frequent user of methamphetamine who often
accused his wife of infidelity. In January 2002, Bennett was
convicted of a misdemeanor crime of domestic violence against his
wife. Following this incident, Bennett's wife –- fearing Bennett's
release from prison –- gathered the children and fled from
California to a relative's home in Maine. On January 24, 2002,
Bennett was released from prison on the condition that he have no
contact with his wife. Three days later, Bennett's wife phoned him
to tell him that she and the children had left for (and arrived
safely in) Maine. During the course of this conversation, she
provided Bennett with the address of her current location. Bennett
thereafter wired money so that his wife could rent an apartment.
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On January 29th, Bennett's wife obtained a protection
order from the Maine courts. In a subsequent telephone
conversation -- Bennett apparently repeatedly phoned his wife –-
Bennett's wife told Bennett to stay out of Maine because the
marriage was finished. Despite this admonition, Bennett left
California for Maine on or about February 8th after having told two
friends that he planned to save his marriage. On the way, Bennett
stopped in Utah to visit his father and acquired his father's
handgun on the pretext that he needed protection. Bennett then
traveled across the country with the gun. Bennett's wife was
notified of these events by Bennett's sister.
On the night that Bennett arrived in Maine, state
troopers observed him driving past the place where his wife
formerly had been staying. The troopers stopped Bennett, served
him with the Maine protection order, and told him to leave.
Bennett's wife thereafter took the family to a local shelter.
Bennett was arrested the next day a short distance from the
children's school. Police located a gun and ammunition in the back
of Bennett's truck.
Bennett was charged in a two-count indictment with
interstate stalking ("Count One"), see 18 U.S.C. § 2261A(1), and
possession of a firearm after having been convicted of a
misdemeanor crime of domestic violence ("Count Two"), see id. §
922(g)(9). Bennett appeared in federal district court on December
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6, 2002 ("the first Rule 11 proceeding"), apparently to plead
guilty to Count One in exchange for the government's agreement to
dismiss Count Two. But, after Bennett disputed the requisite
intent for Count One, the court rejected the proffered plea. Four
days later, before a different judge, Bennett pleaded guilty to
Count Two ("the second Rule 11 proceeding") and waived his right to
a jury trial on Count One. Bennett subsequently was found guilty
on Count One. At sentencing, the court denied Bennett's oral
motion to withdraw his guilty plea to Count Two. The relevant
particulars are set forth below.
A. The First Rule 11 Proceeding
On December 6, 2002, Bennett appeared before Judge Singal
and proffered a guilty plea to Count One. Trimmed of parts not
here pertinent, the following colloquy occurred:
Court: He's pleading guilty to Count One?
D. Counsel: And Count Two will be dismissed.
Court: Is that what the agreement is?
Govt.: Yes, Your Honor. We had come here
today with the expectation of the
opposite, but moments before we
entered court, [defense counsel]
informed me that Mr. Bennett was
willing to plead guilty to the
more serious of the two.
. . .
Court: Mr. Bennett, have you pleaded
guilty to . . . Count One of the
indictment because you are, in
fact, actually guilty?
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Bennett: Yes.
Court: Do you have any doubt about that?
Bennett: Not –- not the harassment and
intimidation. But to the killing,
I –- I didn't intend to kill or
injure anyone.
Court: What you're telling me is you
traveled in interstate commerce
with intent to harass and
intimidate your spouse?
Bennett: Yes.
Court: But you didn't go there with the
intent to kill or injure; is that
correct?
Bennett: No.
. . .
Court: Ms. Malone [the prosecutor], I
note that the statute involved
here, Section 2261[A], deals with
the –- has the wording of, quote,
with the intent to kill, injure,
harass, or intimidate . . . [but]
your indictment reads it in the
conjunctive.
Govt.: Yes, Your Honor. It's my
understanding of the law that the
government is permitted to plead
in the conjunctive and prove in
the disjunctive. . . .
Court: I agree . . . . Do you disagree,
[defense counsel]?
D. Counsel: I do not, Your Honor.
. . .
Court: All right. Mr. Bennett, you told
me that you heard all of their
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evidence. Is there anything that
Ms. Malone indicated that you
disagree with?
. . .
Bennett: I disagree with saying that my
wife and I –- we had a little
confrontation on the phone for
about a minute, and that was it.
I changed the subject. And they
knew I was coming to Maine.
. . .
Court: All right. Did you, in fact,
cross state lines with the intent
to harass and intimidate your
spouse?
Bennett: Yes.
Court: Do you have any doubt about that?
Bennett: Truthfully, I didn't plan to harm
anyone, Your Honor. I had pure
love in my heart.
Court: You had what?
Bennett: I had pure love in my heart for my
family.
Court: All right. So what you're telling
me is that you didn't travel to
cause any harm –
Bennett: No.
Court: –- in any way?
Bennett: No, I did not.
Court: All right.
Bennett: I didn't.
Court: Thank you. I'm not going to
accept this plea. He doesn't –
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Bennett: I didn't want to hurt anyone.
Court: That's –- don't say any more. Ms.
Malone, I can't accept this plea.
B. The Second Rule 11 Proceeding
Four days later, on December 10, 2002, Bennett appeared
before Judge Hornby both to plead guilty to Count Two and to waive
his right to a jury trial on Count One. Trimmed of parts not here
pertinent, the following colloquy occurred:
Court: Have you used any drug or alcohol
in the last 24 hours?
Bennett: No.
Court: Do you feel you understand what's
happening in these proceedings?
Bennett: Yes, I do.
Court: These two lawyers have just told
me that you want to change your
plea to Count Two of the
indictment, the indictment
concerning possession of the
weapon, is that correct?
Bennett: Yes, it is.
. . .
Clerk: Sir, how do you now plead to Count
Two of the indictment, guilty or
not guilty?
Bennett: I plead guilty.
. . .
Court: First of all, sir, have you
pleaded guilty to Count Two
because you are actually guilty of
that crime?
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Bennett: Yes.
. . .
Court: Mr. Bennett, did you receive a
copy of the indictment?
Bennett: Yes, I did.
Court: Did you have enough time to
discuss the charges with your
lawyer?
Bennett: Yes.
Court: Did he explain to you the
elements . . . as well as the
penalties . . .?
Bennett: Yes.
Court: Mr. Bennett, you're charged in a
two-count indictment. You're
entering a plea at this time only
to Count Two, so that's the one
I'm going to go over with you.
[explains the charge] Do you
understand this charge?
Bennett: Yes.
Court: [explains the penalties] Do you
understand all of these penalties?
Bennett: Yes, I do.
Court: Do you understand that you have
the right to continue to plead not
guilty to this charge?
Bennett: Yes.
Court: [explains trial procedure] If I
accept your guilty plea, you will
have given up your right to a
trial and the other rights that
I've just described to you, and
there will be no trial on this
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count of the indictment. Do you
understand?
Bennett: Yes.
Court: I will proceed to enter a judgment
of guilty on this charge, and I
will sentence you on the basis of
your guilty plea on this charge.
And if all of that happens, you
will have virtually no right of
appeal from your conviction on
Count Two. Do you understand?
Bennett: Yes, I do.
. . .
Court: In light of all that I've just
explained to you, do you still
choose to plead guilty to Count
Two?
Bennett: Yes, I do.
[recitation of evidence by the government]
Court: Mr. Bennett, did you hear the
prosecutor . . . describe the
evidence that he would produce if
Count Two did proceed to trial?
Bennett: Yes.
Court: Is there anything he told me that
you disagree with?
Bennett: No.
Court: Is the information he gave me true
to your personal knowledge?
Bennett: Yes, it is.
Court: Very well. I find that there is a
factual basis for the guilty plea
to Count Two of the indictment.
Mr. Bennett, has anybody
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threatened you or tried to force
you to plead guilty?
Bennett: No.
Court: Do you have any plea agreement,
written or verbal, with the
prosecutor or any other agreement
about the sentence or about any of
the other charges here?
Bennett: No.
Court: Do you understand, then, that so
far as sentencing is concerned on
Count Two . . . the authority to
determine the sentence stays with
me as the Judge? And . . . if the
sentence turns out to be more
severe than you hoped for, you'll
have no right to withdraw your
guilty plea. You'll still be
bound by it. Do you understand?
Bennett: Yes, I do.
. . .
Court: Has anybody made any promises to
you to get you to plead guilty to
Count Two?
Bennett: No.
Judge Hornby thereafter accepted Bennett's guilty plea to
Count Two and granted his request to waive trial by jury on Count
One.
C. Subsequent Proceedings
On December 16, 2002, a bench trial was held before Judge
Hornby on Count One (the interstate-stalking charge). Judge Hornby
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found Bennett guilty, explaining the requisite intent element as
follows:
There are four essential elements to be
addressed, as has been recognized . . . . The
real heart of the case, as the lawyers have
recognized, is the intent question, and the
requirement of the statute is that . . . the
defendant traveled in interstate commerce with
the intent to kill, injure, harass, or
intimidate another person. . . . I don't find
beyond a reasonable doubt that the defendant
intended to kill or injure . . . but . . . I
do find beyond a reasonable doubt that he
intended to harass her, and that the travel in
interstate commerce was with that
intent . . . . Her acceptance of money from
him, coming from a community property state,
like California, and giving him an address to
send it do not contradict the foregoing.
At the sentencing hearing on November 5, 2003, Bennett's
new counsel orally moved to withdraw Bennett's guilty plea to Count
Two (the firearms charge):
[When my client appeared before Judge Singal,
he] agreed that . . . the harassment or
intimidation portion of the statute was what
he could agree to for factual recitation
purposes, but not anything dealing with intent
to harm or injure . . . . Judge Singal
rejected the plea offer. And ultimately . . .
the matter was before you [Judge Hornby] for
trial on both counts prior to the trial.
Apparently a plea on Count Two, the gun
charge, was tendered to you, and accepted by
you, . . . and you [later] found him guilty on
Count One with specific findings that it was a
harassment or intimidation activity. Nothing
was involved, I understand, on your findings
dealing with killing or injuring anyone,
[which was] exactly consistent with what [the
defendant] told Judge Singal. I only recently
had this transcript of the Rule 11
proceedings . . . . I believe that the reason
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for the withdrawal of plea to Count Two is
important because factually, what the trial
did was confirm the defendant's plea to Count
One before Judge Singal on the mens rea issue.
My reading of the transcript before Judge
Singal . . . was that he apparently did not
believe that there was an adequate mens
rea . . . but a clear reading of it suggests
that . . . my client did accept at that time
the harassment, intimidation portion of the
statute, which was adequate for a plea.
Judge Hornby denied the motion, explaining his ruling as
follows:
The defendant has pleaded guilty to Count Two
in front of me, [and] there's no showing that
the guilty plea was anything other than
knowing, voluntary, intentional, with a
factual basis for the plea. There's no
suggestion of innocence, there's no reason to
grant a motion to withdraw that guilty plea.
If there was some problem with the failed
attempt to plead guilty to Count One before
Judge Singal, and if there was some agreement
that was beneficial to the defendant at that
time, the proper remedy was to try to
resurrect that plea and to persuade Judge
Singal to accept the plea . . . . That did
not happen. So what I have here is a valid
guilty plea to Count Two without any grounds
to withdraw it.
Bennet thereafter was sentenced to 60 months' imprisonment on Count
One with a concurrent term of 96 months' imprisonment on Count Two.
This appeal followed.
II.
We are presented with seven issues on appeal: (1)
"whether [Judge Singal] erred as a matter of law in rejecting [the
defendant's] plea to Count One on December 6, 2002"; (2) "whether
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the U.S. Attorney's Office breached the plea agreement"; (3)
"whether [Judge Hornby] erred as a matter of law in accepting the
plea to Count Two . . . in violation of the plea agreement"; (4)
"whether [Judge Hornby] erred as a matter of law in finding [the
defendant] guilty . . . of Count One"; (5) whether [Judge Hornby]
erred as a matter of law in the sentencing of [the defendant]"; (6)
"whether [Judge Hornby] erred as a matter of law in denying [the
defendant's] request to withdraw his guilty plea to Count Two; and
(7) "whether [the defendant] was denied effective assistance of
counsel." We handle each in the order previewed.
First, regarding Judge Singal's rejection of Bennett's
proffered guilty plea to Count One, we note at the outset that
"[i]t is well settled that a defendant does not have an absolute
right to plead guilty." United States v. Ventura-Cruel, 356 F.3d
55, 59-60 (1st Cir. 2003) (citing Santobello v. New York, 404 U.S.
257, 262 (1971)). Indeed, "[b]efore entering judgment on a guilty
plea, the court must determine that there is a factual basis for
the plea." Fed. R. Crim. P. 11(b)(3). Here, Judge Singal
supportably determined that a factual basis for the plea did not
exist.1 Having already denied an intent to kill or injure, the
1
The relevant criminal statute criminalizes "travel[ing] in
interstate or foreign commerce . . . with the intent to kill,
injure, harass, or intimidate another person" when such travel
places that person in reasonable fear of death or serious bodily
injury. 18 U.S.C. § 2261(A) (emphasis added).
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following exchange suggests that Bennett also denied having had an
intent to harass or intimidate:
Court: Do you have any doubt about [your
intent to harass and intimidate]?
Bennett: Truthfully, I didn't plan to harm
anyone, Your Honor. I had pure
love in my heart.
Court: You had what?
Bennett: I had pure love in my heart for my
family.
Court: All right. So what you're telling
me is that you didn't travel to
cause any harm –
Bennett: No.
Court: –- in any way?
Bennett: No, I did not.
Court: All right.
Bennett: I didn't.
Court: Thank you. I'm not going to
accept this plea. He doesn't –
Bennett: I didn't want to hurt anyone.
Bennett now argues that his denial of an intent to harm
should be construed only as a denial of an intent to kill or injure
and not as a denial of an intent to intimidate or harass.2 We
reject this argument. The definition of harm is not confined to
adverse physical effects such as physical injury or death; there is
2
Trial counsel neither objected nor proffered a similar
interpretative argument following Judge Singal's rejection of the
plea.
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a mental component as well. See Webster's Third New International
Dictionary 1034 (1993) (defining "harm" as "physical or mental
damage"). Bennett's denial of any intention to harm together with
his assertion of "pure love" suggested a denial of all culpable
intent, especially since these responses came immediately after
having been asked specifically about his intent to harass or
intimidate. Accordingly, we cannot say that Judge Singal committed
reversible error in rejecting the plea. See Santobello, 404 U.S.
at 262 ("A court may reject a plea in exercise of sound judicial
discretion."); see also Ventura-Cruel 356 F.3d at 60 (quoting with
approval Rule 11's historical advisory-committee notes, which state
that the "normal consequences of a determination that there is not
a factual basis for the plea would be for the court to set aside
the plea and enter a plea of not guilty").
Bennett's second argument –- that the United States
Attorney's Office breached its plea agreement –- is without merit.
Because "[e]very plea agreement is subject to court approval,"
United States v. Lopez, 944 F.2d 33, 36 (1st Cir. 1991), no rights
remained under the proffered plea agreement once Judge Singal
rejected Bennett's guilty plea to Count One. See id. at 37("Absent a showing that the government gained unfair advantage as
a result of the agreement . . ., once a plea agreement has been
rejected by the court the government is under no obligation to
abide by its terms." (citations omitted)). No unfair advantage has
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been shown here. Indeed, in the second Rule 11 proceeding, Bennett
himself made clear that, in pleading guilty to Count Two, he was
not relying on –- and that, in fact, there did not exist -- a plea
agreement with the government.3
Similarly without merit is Bennett's argument that Judge
Hornby erred in accepting his guilty plea to Count Two. Resting on
our discussion of the preceding two issues as well as the relevant
colloquy, see supra, we are convinced that no legitimate question
has been raised about any Rule 11 or related concern.
Bennett spends but one short paragraph elaborating his
next argument –- that Judge Hornby "erred as matter of law in
finding [him] guilty . . . of Count One." There is a "settled
appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived." United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
In any event, as best we can tell, Bennett is arguing that Judge
Hornby's findings are inconsistent with those of Judge Singal. But
that argument incorrectly is premised on the notion that Judge
Singal (in the first Rule 11 proceeding) "found that the elements
of the [criminal] statute were not met." Judge Singal did not so
find; rather, he found that Bennett had not admitted such elements.
3
Specifically, Judge Hornby asked Bennett whether he had "any
plea agreement, written or verbal, with the prosecutor or any other
agreement about the sentence or about any of the other charges
here" and whether "anybody [had] made any promises to [him] to get
[him] to plead guilty to Count Two." (emphasis added). Bennett
answered "no" to both questions.
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Bennett's Eighth Amendment-based sentencing argument is
premised on "the error of the district court in not accepting the
plea to Count One, the government's breach of the plea agreement,
the district court's error in accepting the plea to Count Two and
in finding the defendant guilty on Count One." Because we have
rejected each and every premise on which Bennett relies, we find no
merit to this argument, which was in any event not raised below.
See United States v. McCormack, --- F.3d ---, 2004 WL 1244467 at *6
(1st Cir. 2004) (noting that a sentencing argument not raised below
is reviewed only for plain error). Bennett also argues that he
should have been (1) awarded an acceptance-of-responsibility
adjustment because he "attempt[ed] to accept responsibility for
Count One . . . [and] did, in fact, accept responsibility by
pleading [guilty] to Count Two"; and (2) granted a downward
departure on the grounds of "the totality of the
circumstances . . ., diminished capacity, hyper-sexual and hyper-
religious behavior, and fatigue." Both of these arguments were
presented to –- and rejected by –- Judge Hornby at sentencing.4
4
Regarding the alleged acceptance of responsibility with
respect to Count One, Judge Hornby recited the relevant portions of
the first Rule 11 colloquy and then concluded as follows: "Clearly,
[Judge Singal] couldn't accept the plea. The defendant had denied
responsibility for having any kind of intent, even to harass or
intimidate his wife; he had nothing but pure love in his heart. He
did not accept responsibility then. He went to trial as was his
right, put the government to its proof." With respect to Count
Two, Judge Hornby determined that "the two counts have to be
ultimately considered together [and], while it's true that he did
plead guilty to Count Two, . . . given the overall offense conduct
that I'm analyzing under the guidelines, I do not find acceptance
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We cannot say that Judge Hornby clearly erred in refusing to adjust
the sentence based on acceptance of responsibility, see United
States v. Muriel, 111 F.3d 975, 982 (1st Cir. 1997) ("A defendant
who pleads guilty is not entitled to a downward adjustment for
acceptance of responsibility as a matter of right[;] . . .
[w]hether a defendant has accepted responsibility for the offense
is a fact-dominated issue, and therefore we review the district
judge's ruling for clear error." (citations omitted)), and we have
no jurisdiction to review his discretionary decision not to depart,
see United States v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995)
(noting that, because a "refusal to depart cannot constitute an
incorrect application of the Guidelines, . . . no appeal lies from
a discretionary refusal to depart . . . [unless] the decision not
to depart is based on the sentencing court's assessment of its lack
of authority or power to depart" (citations and quotation marks
omitted)).
Sixth, there was neither legal error nor a "demonstrable
abuse of discretion" in the denial of Bennett's motion to withdraw
of responsibility." See U.S.S.G. §3E1.1 (2002).
Regarding the departure issues, Judge Hornby concluded that
(1) "the significantly reduced mental capacity was caused by [the
voluntary use of drugs and other intoxicants]"; (2) "the facts and
circumstances of the offense indicate a need to protect the
public"; (3) "the[se] circumstances . . . counsel against granting
a departure here [on the discouraged ground of] mental and
emotional conditions"; and (4) "under . . . the general catch-all
provision, I likewise find no reason to depart here, even if I had
the authority, [because] the guideline range is very appropriate
given the circumstances of what the defendant has done." See id.
§§5H1.3 and 5K2.13.
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his guilty plea to Count Two. See United States v. Martinez-
Molina, 64 F.3d 719, 732 (1st Cir. 1995). Insofar as Bennett's
argument in this regard is based on the other issues raised in his
appeal, we have nothing to add other than to note that we are in
complete agreement with Judge Hornby's careful analysis on this
point. See supra.
Finally, this court has held "with a regularity bordering
on the monotonous that fact-specific claims of ineffective
assistance cannot make their debut on direct appeal of criminal
convictions, but, rather, must originally be presented to, and
acted upon by, the trial court." United States v. Mala, 7 F.3d
1058, 1063 (1st Cir. 1993) (collecting cases). Absent the rare
occasion where, on direct appeal, the record is sufficiently clear
to allow reasoned consideration of the ineffective-assistance
claim, see, e.g., United States v. Natanel, 938 F.2d 302 (1st Cir.
1991), "[t]he preferable vehicle for such [a] claim[] is a
collateral proceeding under 28 U.S.C. § 2255, in which the parties
and the district court can address factual matters relevant to the
issue," United States v. Genao, 281 F.3d 305, 313 (1st Cir. 2002)
(citation omitted). Bennett's ineffective-assistance claim does
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not fall within the narrow exception;5 accordingly, he must pursue
it in the traditional fashion.
Affirmed.
5
Among other problems, Bennett points to former counsel's
"failure to investigate all avenues proposed by the defendant" but
then neglects to identify any evidence in the record indicating
what, in fact, defendant had proposed or what, in fact, former
counsel had considered (and, perhaps, rejected).
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