29 F.4th 380
7th Cir.2022Background
- Darayl Davis ran a multi‑state fraud scheme for ~20 years; victims lost about $5 million. He was indicted on mail/wire fraud, aggravated identity theft, and money‑transaction counts.
- Parties negotiated a plea; Davis agreed to plead guilty to one count of mail fraud in exchange for dismissal of remaining counts and signed a plea agreement that included a broad waiver of appellate rights.
- During the COVID‑19 pandemic the district court relied on the CARES Act to authorize felony plea proceedings by video/telephone when certain findings are made; the court issued orders scheduling a telephone change‑of‑plea and stated CARES Act findings.
- Davis (through counsel and on the record) twice consented to a telephonic plea and did not object to multiple minute orders or the court’s memorializing order; the change‑of‑plea occurred by telephone on January 19, 2021.
- Davis was later sentenced to 160 months and ordered to pay over $7 million in restitution; he appealed, arguing the district court erred in holding the plea telephonically because it did not adequately make the CARES Act case‑specific “interests of justice” finding.
- The Seventh Circuit dismissed the appeal: Davis had waived appellate review by contract and also waived any CARES Act objection by expressly consenting and failing to raise the issue below.
Issues
| Issue | Plaintiff's Argument (Davis) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the district court satisfied CARES Act requirement for a case‑specific finding that further delay would cause serious harm to the interests of justice | Court’s stated reason (accelerating BOP designation/programming) did not justify a case‑specific finding; telephonic plea was permitted only where delay is intolerable | Court made a CARES Act finding in its order; Davis consented and never objected | Court found the order did include a CARES Act finding and, in any event, Davis waived any challenge by consent and appellate‑waiver clause; appeal dismissed |
| Whether Davis’s plea agreement appellate‑waiver bars this appeal | Waiver cannot cover non‑waivable rights or CARES Act compliance | Waiver is an enforceable contract; Davis knowingly and voluntarily waived appellate rights | Waiver enforceable; it bars Davis’s appellate challenge to pretrial rulings including CARES Act application |
| Whether Davis waived any Carey(sic) Act objection by failing to object below and expressly consenting on the record | Even if consented, the court still had to satisfy statutory prerequisites; appellate review should still be permitted | Davis expressly consented on the record multiple times and did not object to minute orders; he waived the objection | Waiver by conduct: Davis expressly consented and failed to raise the objection in district court, so he cannot raise it on appeal |
| Whether Bethea’s Rule 43 rule (no videoconference pleas for felonies without waiver) remains controlling | Bethea barred waiver of in‑person presence under Rule 43 | CARES Act creates a statutory exception permitting videoconference/telephone pleas when prerequisites are met and defendant consents | Bethea is superseded by the CARES Act exception; statutory framework controls |
Key Cases Cited
- United States v. Brown, 973 F.3d 667 (7th Cir. 2020) (review de novo enforcement of appellate‑waiver in plea agreements)
- Plunkett v. Sproul, 16 F.4th 248 (7th Cir. 2021) (plea agreements are contracts and enforced as such)
- United States v. Sheth, 924 F.3d 425 (7th Cir. 2019) (plea‑agreement contract principles)
- Hurlow v. United States, 726 F.3d 958 (7th Cir. 2013) (some rights, e.g., effective counsel, are not waivable)
- United States v. Bethea, 888 F.3d 864 (7th Cir. 2018) (Rule 43 requires presence for felony pleas absent statutory amendment)
- United States v. Coffin, 23 F.4th 778 (7th Cir. 2022) (CARES Act created an exception to Rule 43; objections to CARES Act findings must be raised below)
- United States v. Smith, 759 F.3d 702 (7th Cir. 2014) (enforcement of express, unambiguous appellate waivers)
- United States v. Cavender, 228 F.3d 792 (7th Cir. 2000) (knowingly and voluntarily entering plea waives certain rights)
- United States v. Robinson, 964 F.3d 632 (7th Cir. 2020) (express on‑the‑record consent to procedure constitutes waiver)