United States v. Colin Kerdachi, 756 F.2d 349

United States v. Colin Kerdachi

756 F.2d 349

5th Cir.

1985

Check Treatment

*1 way, the residence James Glenn

Adcock. America, UNITED STATES of Plaintiff-Appellee, As a result narcotic investigations 15.

being by Village conducted Lakeway Department, Police the Tex- KERDACHI, Defendant-Appellant. Colin Department as Safety of Public Nar- No. 84-2304. cotics Service and Greater Austin Organized Area Crime Control Unit States Appeals, United Court of the residence at Cutlass has been Fifth Circuit. under almost constant surveillance. March 1985. Numerous vehicles have ob- been coming going served from registered per-

residence which are prior drug

sons with arrests con-

victions. probable

16. Wherefore affiant feels that

cause exists to believe that the sus-

pected by cocaine found Officer Wil-

liams was obtained the residence by

at 603 Cutlass defendant Franz Selby. strength-

Karl This belief is

ened the false statements made

Selby at the time his arrest about relationship persons at 603 Cutlass. Williams, Jerre S. Judge, dis- 17. Affiant has discussed the merits of sented filed opinion. this case Attorney with assistant U.S.

Archie Carl Pierce who advised that

sufficient cause exists to believe that substance,

a controlled co- to-wit:

caine, is at the concealed residence

603 Cutlass.

/s/ Robert B. Nesteroff

AFFIANT B. Robert Nesteroff

SUBSCRIBED AND SWORN TO BEFORE

byME each of said Affiants whose name is

signed day above on Septem- this the

ber, A.D., 1983.

/s/ Jim M. Wisser

MAGISTRATE Jim M. Wisser *2 GOLDBERG, and POLITZ WIL-

Before LIAMS, Judges. Judge:

POLITZ, Circuit pled guilty to one E. Kerdachi Colin intent to distrib- possession with count of § 841(a)(1), cocaine, 21 and was U.S.C. ute imprisonment years and a to five sentenced years. parole term of three On special maintains, аlternatively, appeal ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Kerdachi government failed to honor its that or, government do if the did not agreement so, and he misunderstood voluntary. Finding guilty plea was not question raised as to the voluntar- a serious plea, we vacate the conviction iness of the and remand.

Facts re-arraignment pled guilty at a Kerdachi proceed- during the Fed.R.Crim.P. prior ings colloquy occurred this accepting plea: court your willingness Is THE COURT: any any way the result of plead attorney may you your discussions the United States Attor- have had with words, any In has there been ney? other case? plea bargain this Yes, [prosecutor]: MR. LONGORIA Honor, there has. Yоur Yes, THE DEFENDANT: Your Hon- or. put

THE Let’s it on COURT: record. Honor, the

MR. LONGORIA: Your pleads Mr. agreement is that if Kerdachi guilty to Count 3 of indictment plea, government will persists against Mr. Ker- dismiss Counts time he is sentenced. dachi at the right. your All Is that THE COURT: understanding, Mr. Kerdachi? Tex., Odom, Jr., Houston, for A. Wendell Yes, sir. THE DEFENDANT: defendant-appellant. Yours, Mr. Turner? THE COURT: Yes, Hedges, Atty., R. MR. TURNER U.S. James [defense counsel]: Daniel K. addition, Tex., government in- Houston, sir. In has Atty., for Gough, U.S. Asst. they to me that would file dicated plaintiff-appellee. sentencing asking any Certainly nothing for memorandum MR. LONGORIA: appropriate say binding we on particular would would court, they merely would stand court so— anyway, punishment. on the moot issue Well, [sic] THE all right. COURT: The *3 exactly accept MR. LONGORIA: That’s not court will that. right. impression not I was under that a of This scenario reflects statement the position, at asked a Your all. If to take prosecutor agreement by plea the Honor, sentencing, may I I at and rе- accepted by the initially was defendant but right position. a So if serve the to take accepted by not defense counsel when part going plea to of that’s be a the by court confirm asked the tо his under- bargain, go through can’t that. we with standing. Defense counsel added the con- attorney going If defense is to the government the dition that would stand right speak sentencing, to at I have his sentencing mute and offer recommenda- right speak myself. to reserve the immediately tion. This addition was chal- right. THE All that COURT: Does lenged by prosecutor. Following the the up bargain? supposed I’m not blow the of uncertainty demonstration and confusiоn participate any

to in these of discussions. to possible agree- as ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the discussions and Well, Honor, counsel, I ment

MR. LONGORIA: Your between arguably and an These not understand. are discussions. unclear uncertainty, resоlution of that just I’m want to make sure that the there was a critical in lapse the Rule 11 —I proceedings. defendant understands that I no—I made The district court did not ad- mean, agreement. that’s the It’s con- personally drеss Kerdachi and ask whether plea guilty tained in the form. he understanding shared his counsel’s sentencing the agreement recommendation myself This is the condition between and, so, if whether that normally and counsel. And I in- cоndition was a don’t significant fringe plead the factor in his prerogatives on of the court decision to guilty. Only Kerdachi could saying what I think that have answer- defendant question. ed should receive. I the that essential It think сourt knows was not going that. I am asked. It should have say But not to been. here going say anything, that I’m not to be- later, sentencing Several at a weeks just cause that’s not what we do. hearing judge before a other than thе one record, MR. TURNER: For the Your accepted guilty plea, who had the the Honor, I up, if could clear that I wasn’t government recommended “that KERDA- implying government that the would not (10) be a years CHI assessed term of ten in sentencing. be My heard under- custody Attorney of the or General standing my negotiations in with Mr. representative, $20,- authorized and fined Longoria agreement plead as to our to 000.00, to by Special be followed Parole 3, guilty to Count we an informal (5) years.” bad Term of five Neither Kerdachi Longoria with Mr. wherein we objected nor his counsel to the did certainly not debrief but we told him recommendation and imposed the cоurt participation, my our understanding sentence as noted. was that he would not recommend to this probation; court either incarceration or Analysis that he leave would that under Rule 11 Disposition gov of this case is as and a matter of discretion this court York, erned Santobello v. New 404 U.S. prerogative court. 257, 495, (1971), 92 S.Ct. 30 L.Ed.2d 427 And I mean to imply didn’t that he progeny. and its Santobello teaches would to present not able be heard or plea guilty any when a significant “rests government’s views on that. degree promise on of the MR. LONGORIA: That’s correct. prosecutor, part so that it can be said to be right.

THE All consideration, COURT: inducement or such 352 surrounding arrangements 262, 92 be fulfilled.” Id. at

promise must omitted). (Citations open. into the at 499. As we observed United S.Ct. (5th Avery, 621 F.2d pleas, v. Rule States applies itAs Cir.1980): applied the “This circuit has determine to ... requires the trial court by re princiрles enunciated Santobello voluntary by inquir- is whether strictly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍government adhere quiring that the mind state of ing into the defendant’s to the terms conditions any, agreement, and the terms if negotiates defendants. agreements it plеad induced defendant Shanahan, F.2d 1228 States United added.) (Emphasis guilty. Cir.1978); (5th v. Grandi United States 698 F.2d at 708. Cir.1977).” (5th netti, F.2d 723 See apparent that a it became When F.2d Wainwright, McKenzie v. also *4 in Kerdachi’s plea agreement was involved Cir.1980). (5th guilty pleа, the trial court entry of a was deter linchpin this we must From obliged informed as to all of the to become guilty plea was Kerdachi’s mine whether agreement, the after material terms of entered, voluntarily knowingly аnd required the court was to determine plea agreement. The specific on the focus had an ade on the record that Kerdachi plea is one of guilty a voluntariness of understanding of those terms. A quate The Rule 11. fail three core concerns of if guilty plea voluntary is not it is based on a core trial court to address ure of the significant misapprehension of a term of a vacating of requires an automatic concern agreement. dispute the be plea When Day v. plea the United States conviction. prosecutor the and defense counsel tween Cir.1979) banc).1 (5th (en ton, 604 F.2d 931 manifest, upon it was incumbent became the voluntari began The court to address person the trial court to address Kerdachi asked Kerdachi plea ness of the when it ally what Kerdachi under and determine their reaction to the and his counsel for during government’s role stood about the agree plea of the prosecutor’s rendition sentencing process part and the the came when the court did ment. The failure understanding in his to еn played decision understanding of the Kerdachi’s not elicit inquiry plea guilty. of Absent that ter a part and the disputed by term his counsel state of mind and the “into the defendant’s played, any, guilty plea if in his that term in agreement, any, if terms of the decision. id., plead guilty,” duced the defendant Supreme approval plea of The Court’s voluntarily plea deemed as the cannot be increasing agreements and the use of entered. guilty plea pro practice impacted on has suggest that the trial We do not product ceedings. 11 is the Fed.R.Crim.P. plea in the court should become involved guilty ensure that of a concerted effоrt to The trial court cor bargain discussions. affecting pleas of taint their validi are free rectly participate. declined to so See Unit Rule was ty and fairness. In 1975 the Adams, (5th v. 634 F.2d 830 ed States cope with the dan principally rewritten “to Cir.1981). question But when a arises gers accompanied the increased that have agreement, term of the about a material years____” plea bargains in recent use of ascertаin the defend the trial court must Robertson, F.2d United States understanding question of the term in ant’s Cir.1983). (5th As we observed Rob significance and the of that term the ertson: plea decision. guar- purpose of the revisions was to The pleads the conviction and sentence on the defendant who We vacate antee that guilty hold all is informed of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the void subse- or nolo contendere orders, quent including of dis- consequences bring and to the order the of his conviction, a core concern we need not consider counsel’s fail- 1. Because a failure to consider sentencing hearing. guilty plea object requires ure to at the autоmatic reversal bargains missal of Counts 1 and of problems the indictment. Plea create difficult parties are carry perils The returned to the quo status for the both accused and ante the guilty plea. tendеr simply things accuser. But it stretches perils too far to find difficulties and in this

Judgment VACATED and REMANDED. my afterthought record. In view this possible way search the record for some WILLIAMS, JERRE S. Judge, to obtain a reversal should not be allowed dissenting: to bеar fruit. I judgment would affirm the regret I that I am constrained to dissent of the district court. holding Court in this case. reading In my record bargain reached,

was it was well understood parties, agreed person

both the accused it, it, objection was made to and the binding. was

As I read the in the critical words tran-

script reported opinion, in majority concerning America, government’s UNITED STATES of Plaintiff-Appellee, role at time of was no more *5 practices than a clarification of usual had obviously been discussed betweеn the Mary MIZE, Catherine parties at the time the defendant and his Defendant-Appellant. deciding counsel accept were to whether plea bargain or not. The discussion No. 84-2397 complete agreement, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ended in Summary without the Calendar. slightest actually indication that there had Appeals, United States Court of been misunderstanding, objection and no Fifth Circuit. was made. March 1985. Under these objection circumstances the now purely raised seems to me to be an

afterthought. clarifying This informal dis-

cussion of the prosecu- role that the federal might

tor play in the sentencing should not

be used destroy bargain valid parties.

made The fact that object obviously

defense counsel did not is controlling

not objection because is not nec-

essary when the error is fundamental. It show, however,

does there was no

misunderstanding. It also shows that the

institution of the defense

counsel turned out not to for the pur- be

pose adding something to the bar-

gain clarify. but to What is critical is that colloquy nothing the conclusion of the away:

had been taken added

bargain remained as before. Under these overly protective

circumstances it is

rights require accused to that he

again questioned personally as to his

acceptance.