United States v. Raymond George Bohning

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15549 MAR 20, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-60046-CR-JAG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYMOND GEORGE BOHNING,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 20, 2009)
Before TJOFLAT, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Raymond George Bohning appeals his convictions for (1) enticing a minor
to engage in sexually explicit conduct for the purpose of producing visual
depictions to transport in interstate commerce, in violation of 18 U.S.C. §§ 2251(a)
and (e) and 2256; (2) using the Internet to entice a minor to engage in sexual
conduct made illegal by Florida law, in violation of 18 U.S.C. § 2422(b);
(3) possessing child pornography, in violation of § 2252A(a)(5)(B) and (b)(2); and
(4) transporting to a minor sexually explicit images for the purpose of enticing the
minor to engage in sexually explicit conduct, in violation of § 2252A(a)(6)(C) and
(b)(1). Bohning argues that the government’s notice of lis pendens on his only
asset, his residence, violated his Sixth Amendment right to counsel by preventing
him from retaining private counsel and that the district court’s failure to hold a
hearing regarding the notice violated his Fifth Amendment right to due process.
Bohning also argues that the district court abused its discretion in denying his
motion to withdraw his guilty plea, as he had not received close assistance of
counsel and did not knowingly and voluntarily plead guilty. For the reasons set
forth below, we affirm.
I. Lis Pendens1
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As an initial matter, on appeal, Bohning points out that his plea agreement contained an
appeal waiver and offers reasons why the waiver should not preclude his instant arguments.
Bohning’s argument is unnecessary, as the appeal waiver contained in his plea agreement was a
sentence appeal waiver and he does not now seek to appeal his sentence
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In the indictment, the grand jury charged that Bohning must forfeit any
property used to commit or promote the commission of the charged offenses.
Bohning was appointed a federal public defender. The government filed a bill of
particulars, indicating that it would seek forfeiture of Bohning’s residence.
Accordingly, pursuant to Florida law, the government filed a notice of lis pendens
on Bohning’s residence, notifying prospective buyers or recipients of the property
that the government claimed an interest in the property. Subsequently, the
property was sold, and the government filed a notice discharging the lis pendens
and a motion to deposit the proceeds of the sale in the district court’s registry to
await the disposition of the forfeiture proceedings. The district court granted the
motion. Ultimately, at sentencing, the district court denied forfeiture of the
residence.
In United States v. Register, 182 F.3d 820, 834, 837 (11th Cir. 1999), we
considered and rejected the argument now raised by Bohning. In that case, the
defendant argued that the government’s filing of a lis pendens on his only assets,
two pieces of property, violated his Sixth Amendment right to use his assets to hire
an attorney of his choice to represent him and his Fifth Amendment right to due
process as a person with an interest in property it seized. Id. at 834. Specifically,
as to the Fifth Amendment, the defendant argued that he was entitled to a “hearing
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to determine whether the government had probable cause to demand forfeiture.”
Id.With regard to the Sixth Amendment argument, we reasoned that, although a
defendant has a right to hire counsel of his choice, he does not have a right to
spend money not rightfully his to do so. Id. at 834-35 (citing Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617, 631, 109 S.Ct. 2646, 2655, 105 L.Ed.2d
528 (1989) (rejecting an argument that the federal criminal forfeiture statute
violated the Sixth Amendment by failing to provide an exception for assets a
defendant would use to retain an attorney and reasoning that the government’s
interest in “obtaining full recovery of all forfeitable assets . . . overrides any Sixth
Amendment interest in permitting criminals to use assets adjudged forfeitable to
pay for their defense”)). Assets “subject to forfeiture” do not rightfully belong to a
defendant and, in that respect, are no different than stolen bank money seized by
the government. Id. (citing United States v. Bissell, 866 F.2d 1343, 1351 (11th
Cir.1989) (“[T]he right to counsel of choice belongs solely to criminal defendants
possessing legitimate, uncontested assets”)).
With regard to the Fifth Amendment argument, we reasoned that, although a
notice of lis pendens on a defendant’s property is constraining, making it virtually
impossible to sell or mortgage the property because the interest of a purchaser or
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mortgagee would be subject to the eventual outcome of the lawsuit, a lis pendens
does not constitute a “seizure” because the defendant retains the “right to alienate
the property.” Id. at 836. Therefore, a notice of lis pendens does not affect the
defendant’s property interests “to an extent significant enough to implicate the Due
Process Clause of the Fifth Amendment.” Id. at 837.
Given our reasoning in Register, Bohning did not have a right to use the
proceeds of the sale of his residence to retain private counsel because the residence
was subject to forfeiture and, therefore, not rightfully his. See Register, 182 F.3d
at 834-35. That the district court ultimately denied forfeiture of the residence does
not affect this conclusion. See id. at 834. Therefore, the government and district
court did not violate Bohning’s Sixth Amendment right to counsel. See id. Also,
Bohning was not entitled to a hearing with regard to the lis pendens on his
residence, as it did not constitute a seizure. See id. at 836-37. Therefore, the
district court did not violate Bohning’s Fifth Amendment right to due process. See
id. Accordingly, we affirm as to this issue.
II. Guilty Plea
With the aid of his court-appointed counsel, Bohning pled guilty through a
plea agreement. At a change-of-plea hearing, Bohning indicated that he had had
sufficient time to discuss with his counsel the matter of pleading guilty, was “very
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much” satisfied with his counsel and her representation, and had read the plea
agreement and discussed its contents “extensively” with his counsel before signing
it. Also, he understood the terms of the plea agreement, including the full panoply
of rights that he was giving up and the possible sentences that he faced, and had no
questions. Likewise, he had heard the government’s factual proffer and agreed
with its substance, if not all of its details. Furthermore, no one had used force,
threats, pressure, or intimidation to cause him to plead guilty; rather, he was
pleading guilty of his own free will.
Later, Bohning filed a motion to withdraw his guilty plea, asserting that his
guilty plea was not knowing and voluntary because he was given only “a few
hours” to decide whether to accept the government’s plea offer and, thus, was not
given sufficient time to review its terms or to “fully understand his sentencing
exposure.” He never wanted or intended to plead guilty and his reticence in doing
so was evident at the change-of-plea hearing. He only agreed to plead guilty on his
counsel’s advice and he was not pleased with his counsel’s representation. The
district court denied the motion, reasoning that the totality of the circumstances did
not demonstrate a fair and just reason to withdraw his guilty plea. The district
court ultimately sentenced Bohning to 240 months’ imprisonment.
We review a district court’s decision to deny a defendant’s motion to
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withdraw his guilty plea for abuse of discretion. United States v. McCarty, 99 F.3d
383, 385 (11th Cir. 1996). A decision is an abuse of discretion if it is arbitrary or
unreasonable. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006).
After the district court accepts his plea, but before he is sentenced, the
defendant may withdraw his guilty plea if he can “show a fair and just reason for
requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). In United States v.
Buckles, 843 F.2d 469, 472 (11th Cir. 1988), we held that, in determining if the
defendant has met his burden, a district court may consider the totality of the
circumstances surrounding the plea, 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. Specifically regarding the knowing-and-voluntary prong, we have explained
that the district court is obligated at the change-of-plea hearing to address “three
core concerns,” namely whether the (1) plea is free from coercion, (2) defendant
understands the nature of the charges, and (3) defendant knows and understands
the consequences of his guilty plea. United States v. Hernandez-Fraire, 208 F.3d
945, 949 (11th Cir. 2000) (citing Fed.R.Crim.P. 11(b)). We also have held that
“the representations of the defendant ... [at a plea proceeding] as well as any
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findings made by the judge accepting the plea, constitute a formidable barrier in
any subsequent collateral proceedings” and that “[s]olemn declarations in open
court carry a strong presumption of verity.” Jones v. White, 992 F.2d 1548, 1556
(11th Cir. 1993).
The district court’s denial of Bohning’s motion to withdraw his guilty plea
was not unreasonable. See Brehm, 442 F.3d at 1298. The parties present no
arguments regarding whether judicial resources would be conserved or the
government would be prejudiced if the defendant were allowed to withdraw his
plea. See Buckles, 843 F.2d at 472. The totality of the circumstances suggest that
Bohning received close assistance of counsel, as he stated at the change-of-plea
hearing that he was “very much” satisfied with his counsel and had “extensively”
reviewed the terms of the plea agreement with his counsel. See id. Also, the
totality of the circumstances suggest that Bohning’s plea was knowing and
voluntary, as he stated at the change-of-plea hearing that he had had sufficient time
to review the terms of the plea agreement; understood the terms of the plea
agreement, including the specific rights he was giving up and the possible
sentences he faced; and had not been forced, threatened, or pressured. See
Buckles, 843 F.2d at 472; Hernandez-Fraire, 208 F.3d at 949. Bohning’s
statements deserve a strong presumption of truth. See White, 992 F.2d at 1556.
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Therefore, the district court did not abuse its discretion. See McCarty, 99 F.3d at
385. Accordingly, we affirm as to this issue.
AFFIRMED.
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