United States v. Cross

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4777
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STANLEY MCCOY CROSS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:05-cr-00124-H)
Argued: September 28, 2007 Decided: December 5, 2007
Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge, and Samuel G.
WILSON, United States District Judge for the Western District of
Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Chief Judge Williams and Judge Wilson concurred.
ARGUED: Anthony Emerson Flanagan, Raleigh, North Carolina, for
Appellant. Banumathi Rangarajan, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: George E. B. Holding, United States Attorney,
Anne M. Hayes, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding in this circuit.
GREGORY, Circuit Judge:
The appellant, Stanley McCoy Cross (Cross), was convicted and
sentenced to 96 months incarceration for possession of a firearm by
a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924 (West 2000)
and possession of a stolen firearm in violation of 18 U.S.C.
§§ 922(j) and 924 (West 2000). Cross argues that the case should
be remanded to the United States District Court for the Eastern
District of North Carolina (“district court”) because (1) during
his arraignment/Rule 11 colloquy, the district court failed to
inform Cross that his previously withdrawn motion to suppress could
not be “restored”, and (2) the district court improperly denied
Cross’s motion to re-file his motion to suppress.1 We affirm the
judgment of the district court.
I.
On August 18, 2005, the district court issued a pretrial
scheduling order for Cross’s trial. The order stated that “[a]ll
pretrial motions, including motions to compel discovery, motions to
suppress, and motions under Rule 7, 8, 12, 13, 14, 16, and 41, Fed.
1
Cross also asks us to consider whether the district court
should have had a probable cause hearing to discuss Cross’s
allegation that he was not given Miranda warnings. (Appellant’s
Br. 2.) Since Cross included this issue in his initial motion to
suppress, the analysis in Part II is equally applicable to this
contention.
2
R. Crim. P., shall be filed no later than September 11, 2005” and
that “[u]ntimely motions...may be summarily denied.” (J.A. 15.)
On January 6, 2006, Cross filed a motion to suppress all of
the evidence seized at the scene of the alleged crime (i.e., the
handgun, ammunition, crack cocaine, and statements made to the
police) along with the statements Cross made to the police during
his subsequent incarceration. On January 17, 2006, Cross filed a
Motion to Permit Tardy Filing of Affidavit. On February 6, 2006,
the Government filed its response to Cross’s motion to suppress.
On February 10, 2006, a suppression hearing took place before
Magistrate Judge David W. Daniel. At the hearing, Cross withdrew
his motion to suppress and a plea agreement was presented to the
court.2 On February 22, 2006, a notice of hearing for Cross’s
arraignment was sent out to all the parties.
On March 6, 2006, Cross was arraigned before the magistrate
judge. At the outset of the hearing, Cross’s attorney, Joshua
Willey, Jr., (Willey) asked for a continuance. The Government’s
attorney, John Bennett (Bennett),3 stated he had no opposition to
the continuance and that Willey had informed him that Cross had
changed his mind about the plea agreement and would enter a not
guilty plea.
2
The transcript of the hearing is not a part of the record.
3
Assistant United States Attorney (AUSA) Bennett was sitting
in for AUSA Skiver, the attorney assigned to this case.
3
Thereafter, a brief discussion ensued over Cross’s request for
a new attorney to replace Willey. The magistrate judge ultimately
denied4 Cross’s request, but gave Cross the option of continuing
the arraignment or moving forward with the arraignment as
scheduled. Cross responded, “I’d rather move forward.” (J.A. 65.)
After the magistrate judge called for a brief recess in order
to allow Cross another opportunity to discuss the plea agreement
with Willey, the Rule 11 colloquy commenced. The magistrate judge
methodically followed the mandates of Rule 11 of the Federal Rules
of Criminal Procedure throughout the colloquy, focusing on Cross’s
understanding of the plea agreement. When the magistrate judge
asked if Cross understood “the terms, the language, the words, the
sentences, even the fancy legal words and phrases used in the plea
agreement,” Cross replied in the affirmative. (J.A. 75.) Despite
Cross’s apparent understanding of the plea agreement, the
magistrate judge called a bench conference in which the following
conversation took place:
4
Cross had several complaints about the attorneys assigned to
represent him. After Cross filed a motion pro se to dismiss his
first appointed attorney, the district court dismissed that
attorney and replaced him with Willey. After the magistrate judge
denied Cross’s request to replace Willey at the arraignment, Cross
informed the district judge by a letter dated March 14, 2006, that
Willey had “deceived and manipulated” him. (J.A. 92.) On March
20, 2006, Willey filed a motion to withdraw as counsel based on
Cross’s allegations of professional and ethical misconduct. (J.A.
87-91.) The district court denied Cross’s request and Willey’s
motion, stating that it was “tired of [Cross’s] constant
dissatisfaction with the experienced and competent attorneys
appointed to represent him.” (J.A. 93.)
4
Judge: Obviously Mr. Cross is not sure what he
wants to do...My inclination would be
just to go ahead and take a not guilty
plea from him...
Bennett: ...I think the only thing we can do at
this point is the Court to enter a not
guilty plea for him and schedule it for
trial. If in fact he changes his mind
ultimately by the time [District] Judge
Howard sets for trial, you know, [the
plea agreement is] still operative. But
[Cross] just clearly doesn’t appear that
he wants to do it.
Judge: I don’t feel comfortable accepting his
plea based upon his conduct in court
today. At the same time, I don’t want to
do anything that’s going to work to his
long term disadvantage if that were
foreclosed. Mr. Bennett, that would not
foreclose him from attempting to?
Bennett: I can speak for [AUSA] Skiver in that
regard. I’ve never known him to take it
as a matter that would be foreclosed. He
would consider it again. But he’s not
acting like a man who wants to plead
guilty today.
Judge: That’s the Court’s impression.
Willey: I’d rather just continue it.
Judge: I’m not, based on his correspondence,
having trouble in doing that. I’m going
to ask him. I’m going to enter a plea of
not guilty for him and I’ll ask you to go
back and talk with Judge Howard to set a
trial date. I’m going to say on the
record that I understand he would still
be able to potentially work out something
with the government to enter into that
plea agreement or have it enforced prior
to that trial date. I think in essence
that would operate like a continuance as
a practical matter.
5
Willey: Yes, sir.
(J.A. 75-76.) Immediately after the bench conference, the
magistrate judge and Cross had the following discussion:
Judge: Mr. Cross, I’ve just spoken with your
attorney as well as the attorney for the
government. I’m concerned because you
appear to be quite anguished by this,
which is understandable. As such, I
don’t feel that I can accept that
Memorandum of Plea Agreement today based
on your concern. Now if I’m not reading
that correctly, you need to let me know
right now. Do you have concern over the
plea agreement?
Cross: Yes.
Judge: You do, okay. I’m going to enter a plea
based on what I’ve seen. I’m going to
enter a plea of not guilty on your behalf
because of what’s happened here today.
Now Mr. Bennett, on behalf of Mr. Skiver,
the U.S. Attorney, has said that this
Memorandum of Plea Agreement will remain
in your file and if you decide that you
want to proceed with that, Mr. Willey can
assist you in doing that and working
something out with Mr. Skiver. But based
on what’s happened here in court today,
I’m left with no other option other than
to plead not guilty for you. Is that
your desire?
Cross: Yes.
(J.A. 77-78.) Prior to the close of the hearing, the magistrate
judge reiterated that Cross would be able to proceed with the
change of plea at a later date should he choose to do so. The
magistrate judge did not discuss whether Cross would be permitted
to re-file his motion to suppress.
6
On March 6, 2006, Senior United States District Judge Malcolm
Howard scheduled jury selection and trial for March 27, 2006.
(J.A. 80.) On March 20, 2006, Cross filed a Motion to Refile
Suppression Motion. (J.A. 83-86.) Cross did not provide the court
with any reason for the tardiness of his motion. On March 21,
2006, Judge Howard denied the motion. (J.A. 94-97.) On March 29,
2006, after a two day trial, Cross was found guilty on both counts
of the indictment. (J.A. 431-434.) On July 12, 2006, Judge Howard
sentenced Cross to 96 months incarceration on both counts to run
concurrently and three years supervised release as to each count
which would also run concurrently. (J.A. 453.) This appeal
followed.
II.
A.
A district court’s compliance with Rule 11 of the Federal
Rules of Criminal Procedure is evaluated under a “harmless error”
standard. Fed. R. Crim. P. 11(h)5; United States v. DeFusco, 949
F.2d 114, 117 (4th Cir. 1991). A district court’s decision to
grant or deny an untimely motion to suppress is reviewed for “clear
error.” United States v. Ruhe, 191 F.3d 376, 385 (4th Cir. 1999).
5
Fed. R. Crim. P. 11(h): “ A variance from the requirements
of this rule is harmless error if it does not affect substantial
rights.”
7
B.
Cross argues that the magistrate judge was required to inform
him that he was losing his right to file a pretrial motion during
the arraignment. As a result, Cross states that he was “unduly
prejudiced” and his “substantive rights” were violated.
(Appellant’s Br. 9.) The Government argues that the Federal Rules
of Criminal Procedure do not require the district court to provide
any information to a defendant concerning rights relating to the
filing of pretrial motions. (Appellee’s Br. 14.) For the reasons
below, we reject Cross’s argument.
Rule 11 requires that before a district court can accept or
reject a change of plea, it must conduct a plea colloquy during
which it advises and questions the defendant about specific issues,
including his waiver of certain rights, the nature of each charge
to which the defendant is pleading, and any minimum and maximum
possible penalty he faces. Neither Rule 11's literal text nor the
advisory notes require that a district court advise the defendant
about how it will handle pretrial motions, including the filing of
such motions after the deadline established by the court.
In further support of his claim, Cross cites to case law from
our Circuit and the Supreme Court. In particular, Cross relies on
the Supreme Court’s decision in United States v. Hyde, 520 U.S. 670(1997). The central issue in Hyde was whether a defendant could
withdraw his guilty plea without complying with Rule 32(e) of the
8
Federal Rules of Criminal Procedure,6 which requires that a
defendant provide the court with a “fair and just reason” for the
withdrawal. Cross contends that Hyde stands for the proposition
that upon refusing to accept a plea agreement, a court must advise
a defendant that it is not bound by the plea agreement, give him an
opportunity to withdraw his plea, and warn the defendant that
withdrawal of his plea may lead to a less favorable disposition.
Cross argues that due to the district court’s rejection of his
plea agreement and guilty plea sua sponte,7 Cross did not receive
any warning that he would be “proceed[ing] under much more
treacherous conditions.” (Appellant’s Br. 12.) As a result, Cross
contends that the “denial of his opportunity to contest the
probable cause in this matter was improper.” (Appellant’s Br. 12.)
The Government responds, and we agree, that Cross’s comparison
to Hyde is misplaced because that decision concerned the entry and
withdrawal of guilty pleas. Cross, on the other hand, did not
enter or withdraw a guilty plea, but rather “a not guilty plea was
entered on his behalf, with his acquiescence.” (Appellee’s Br.
6
Rule 32(e) became Rule 11(d) and (e). The relevant portion
is currently located in Rule 11(d)(2)(B).
7
As we previously discussed, the record does not support
Cross’s version of the events. The transcript of the arraignment
clearly shows that the court entered a plea of not guilty with
Cross’s explicit acquiescence.
9
13.) Thus, neither Hyde nor any of the other cases8 Cross cites
address the dispositive issue - i.e., whether a district court is
required to notify the defendant of any rights relating to pretrial
motions at an arraignment and/or change of plea hearing. As such,
those cases are inapposite to the current inquiry.
Overall, “[i]n reviewing the adequacy of compliance with Rule
11, this Court should accord deference to the trial court's
decision as to how best to conduct the mandated colloquy with the
defendant.” DeFusco, 949 F.2d at 116. The trial court’s Rule 11
colloquy/arraignment9 did not harm any of Cross’s procedural or
substantive rights. As such, Cross’s argument must fail.
C.
The district court denied Cross’s motion to re-file his motion
to suppress based on our precedent, including United States v.
Chavez, 902 F.2d 259 (4th Cir. 1990) and Cross’s failure to comply
with the “good cause” requirement in Rule 12(e) of the Federal
Rules of Criminal Procedure. Specifically, the district court
denied the motion because (1) it was filed “more than two months”
8
Cross cites to Fourth Circuit jurisprudence holding that Rule
11 allows a court to enter a plea of guilty separately from its
decision to accept or reject a change of plea agreement. See e.g.,
United States v. Ewing, 957 F.2d 115, 118-119 (4th Cir. 1992). As
the instant case does not involve this issue, further discussion of
these cases, including Ewing, is not necessary.
9
Rule 10 of the Federal Rules of Criminal Procedure provides
guidance to district courts on how arraignments must be conducted.
Cross does not provide any evidence that the district court failed
to follow any aspect of this rule.
10
after the pretrial motions deadline had passed and over a month
after Cross “withdrew his initial motion to suppress,” (2) Cross
“only had himself to blame” for not filing the motion on time,
since he “failed to abide by the terms of a plea agreement and
altered his plea at his arraignment on March 6, 2006,” (3) there
was no evidence that the Government did anything that “led to the
predicament in which defendant now finds himself,” and (4) Cross
did not receive any additional information from any source after
the filing deadline which “alerted defendant to facts on which a
motion to suppress might be based.” (J.A. 95-96.) In addition,
the court held that Cross’s motion did not meet the “good cause”
threshold of Rule 12(e).10
Cross argues that the district court’s denial of his motion to
re-file constituted clear error, in part, because it incorrectly
distinguished the instant case from prior Fourth Circuit precedent,
including Chavez.11 The Government responds that the district court
10
Fed. R. Crim. P. 12(e): “A party waives any Rule 12(b)(3)
defense, objection, or request not raised by the deadline the court
sets under Rule 12(c) or by any extension the court provides. For
good cause, the court may grant relief from the waiver.”
11
Cross also argues that he wanted to plead guilty, and was
prevented from doing so by the magistrate judge. For example,
Cross states that during the arraignment, “[t]hough Appellant had
entered a Memorandum of Plea, the magistrate judge entered a plea
of not guilty for Appellant due to the doubts and issues expressed
by Appellant. The withdrawal was not at Appellant’s request.”
(Appellant’s Br. 5.) Cross’s claim is patently false. As we
previously discussed, the magistrate judge provided Cross with
several opportunities to speak directly with the court and with his
attorney in order to clarify his intentions regarding the plea
11
properly denied Cross’s untimely motion to suppress because Cross
possessed all of the information necessary to file the motion in a
timely manner, and Cross did not provide the district court with
good cause justifying the tardiness of the motion.
Since both the district court and Cross cite to our decision
in Chavez, it is worth setting out the facts of that decision in
some detail. The defendant, Leonardo Chavez, moved for a
suppression hearing eleven days prior to his trial. The delay in
filing the suppression motion rested squarely on the United States
since it did not turn over evidence directly relevant to the
suppression issue until one day before the filing. The United
States would have suffered no prejudice if the court had granted
the defendant’s motion for a suppression hearing. Nonetheless, the
district court denied the defendant’s motion and after an appeal,
we reversed, holding:
We are not unmindful of the pressures of pretrial
activity, or of the importance of court-imposed
deadlines, but when counsel requests a suppression
hearing almost two weeks prior to trial and the day after
receiving the grand jury transcript, which revealed a
concern that the defendant had unsuccessfully inquired
into at the preliminary hearing, we conclude that a
denial of this request constitutes a clear abuse of
discretion.
Chavez, 902 F.2d at 264.
agreement.
12
Chavez is distinguishable from the instant case on at least
three counts: (1) Cross had all of the information necessary to
file the motion to suppress on time, or in the alternative, re-file
it at the arraignment or shortly thereafter; (2) the Government was
not withholding any information from Cross; and most importantly,
(3) Cross fails to demonstrate that his tardiness in filing was not
due to “negligence, oversight, or laziness.” Chavez, 902 F.2d at
263. Thus, Cross’s attempted comparison to Chavez is without
substance, and must fail.
Also, despite Cross’s claims to the contrary, there is nothing
in the record supporting the view that the district court had
predetermined that any pretrial motions filed by Cross after the
arraignment would be denied. Presumably, if Cross had provided any
indicia of “good cause,” as required by Rule 12(e), the district
court would have considered the motion on its merits.
It is well known that “reviewing courts rarely grant relief
from denials of untimely suppression motions.” Chavez, 902 F.2d at
263. The factual circumstances underlying Cross’s appeal do not
fall into the rare category of cases that merit reversal of a
district court’s denial because Cross’s motion to suppress was
voluntarily withdrawn by Cross, Cross’s motion to re-file was
tardy, and Cross’s motion to re-file failed to provide any excuse
for its tardiness, much less a “dubious excuse.” Chavez, 902 F.2d
at 263. Thus, we find that the district court did not commit
13
error, let alone clear error, in denying Cross’s motion to re-file
his motion to suppress.
III.
We conclude that the magistrate judge’s actions during the
arraignment and Rule 11 colloquy did not result in any harm to
Cross’s procedural or substantive rights and the district court did
not commit clear error by denying Cross’s motion to reinstate his
motion to suppress. Thus, the district court’s decision is
affirmed.
AFFIRMED
14