United States v. Craig Michael Coscarelli, Also Known as John Coscarelli

proving that a burden of nationwide ban is

mandated. respectfully dissent. America,

UNITED STATES of

Plaintiff-Appellant,

Craig COSCARELLI, Michael also Coscarelli,

known as John

Defendant-Appellee.

No. 96-20264. Appeals, United States Court of Babcock, Jeffery Alan Paula Camille Of- Fifth Circuit. fenhauser, Houston, TX, Atty., Asst. U.S. Friedman, Justice, Dept, Richard A. U.S. July 1998. DC, Washington, Plaintiff-Appellant. Ray Goldsmith, Houston, TX, Christopher Defendant-Appellee. POLITZ, Before Judge, Chief GARZA, KING, JOLLY, REYNALDO G. HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, GARZA, DeMOSS, EMILIO M. BENAVIDES, STEWART, PARKER and DENNIS, Judges. Circuit JONES, EDITH H. Judge. Circuit appealed The United States alone from a decision correctly court that apply guide did not money-laundering lines for in this telemark eting prosecution. scam panel opinion government’s position.1 sustained the What court, however, concerned the en banc panel majority’s grant further decision to appellee relief affirmative Coscarelli—who right appeal writing, waived his filed no cross-appeal, notice of and never rehearing, portion opinion. On we reinstate that 343 in from that our recent en banc decision v. for relief his convic- Marts any request made (5th vacating plea Hines, Cir.1997), the tion or 117 F.3d 1504 either sentence — court, entirely. we hold that As an en bane permits or to exercise requires us discretion- appeal notice to file a of Coscarelli’s failure ary appellate jurisdiction notwithstanding receiving precludes from affirmative re- him notice of appeal. Coscarelli’s failure to file a jurisdiction no have lief this court. We interpretation be pure This of Marts would any over such claim. flatly thinking wishful and would contradict narrow Marts to in application of forma of Federal Rule of The first sentence a statute pauperis brought under now cases 4(b) says, “[i]n a crimi Appellate Procedure Litigation superseded by the Prison Reform case, a shall file notice of nal a defendant Marts, In days question within Act. whether an appeal court 10 in the district or entry judgment sponte after either of appellate court could sua determine from, appeal or of a notice of appealed order such cases are dismissals of deemed Supreme by the Government.” prejudice be with unless the district court ten-day filing limit a has described Marts expressly repre- otherwise. declares of case “manda appeal notice in a criminal as develop- an continue our sented effort “to v. tory jurisdictional.” United States procedures dispose of ment to address 220, 229, 282, Robinson, 80 361 U.S. S.Ct. appropriately continually burgeoning aof 288, (interpreting lan L.Ed.2d docket, prisoner pro both at the trial and se rule). guage predecessor current a levels____” appellate at Id. Marts 1504. Adams, also v. 106 F.3d See States United concludes that: Cir.1997) (“This (5th 646, cannot court as involving cases dismissals frivolous [I]n timely a notice of jurisdiction exercise absent pauperis or malicious under the forma wording of the appeal.”) The rule not statute which the defendant has be requires appeal notice of filed with was, therefore, not before been served and applicable in ten defendant’s days is as appel- trial not court and is before cross-appeal as it is when court, court, appellate late notwith- filed notice of appeal. does Coscarelli no standing, authority change has the appeal from the district dismissing judgment district court In a court’s decision.2 case such this, prejudice dismissing no to one appellate court without an claims authority relief grant prejudice, though Coscarelli that would there no with even judgment. expand rights under the non-present his obviously by the “appellee.” to the en banc con- Coscarelli’s brief court point, stating: cedes this 1506. stands or falls on Id. at Marts either though arguments support- Even there sole that when federal courts rationale jurisdiction, ing counsel’s additional re- pauperis finally adjudicate litiga- in forma indicates search on this issue may protect the courts judgments tion their jurisdiction. not have does malicious and frivolous onslaught from of En at 3.3 Banc brief complaints, have nei- where defendants ap- nor ever process ther been served Although does not make Coscarelli in the may peared dissent case. argument, such contend 1989), explains upon which in turn relies Cir. brief decision fol- Coscarelli's case, Supreme lows: United States Torres Oak Co., fact, Scavenger accept Judge 108 S.Ct. In Mr. Coscarelli elected to land 2405, (1988). appropriate punishment Gilmore’s sentence as Torres 101 L.Ed.2d filed, conduct, upon case, of his the advice requirements of the Court held that counsel, undersigned right a waiver jurisdictional mandatory 3 and Rules 4 are (1 appeal February document on R. appeals may although and that the courts 261). strategy a matter was done as This liberally rules to determine construe those force to either or ac- exists, compliance the courts whether cept the sentence as final. noncompliance. at 108 S.Ct. waive See id. at 2409. point support correctly 3. To his Coscarelli relies Petty Ray Geophysical, 888 F.2d Stockstill join majority opinion con- guilty plea. Not all who Coscarelh decided to enter a At Marts, but we share a common hearing curred Coscarelh’s Rule 11 Marts holding. court, opinion’s apparently view that limited ambiguity misled indictment, no accordingly erroneously furnishes basis for a conclu- understated the stat- jurisdiction utory exists here to appellate imprisonment by sion maximum term of grant years, any relief to Coscarelli. fifteen omitted mention money laundering object characterizing when reasons, foregoing For the based on- the charged the offense in count and then panel opinion, partial reinstatement of the require government failed to to establish unassailed, plea remains any factual money basis whatsoever for the but the case is VACATED and REMANDED object laundering charged in that count. resentencing proceedings and further appointed resigned Coscarelh’s first counsel consistent herewith. shortly thereafter. DeMOSS, joined Judge, Circuit Notwithstanding conspicuous absence , GARZA, Senior Circuit REYNALDO G. money object of the laundering in the Rule dissenting: Judge, 11’colloquy, object up that showed in'the case has snake-bit from the This been time presentenee report pivotal factor es- Virtually stage was filed. no indictment tablishing Coscarelh’s considerable sentence. proceeding was conducted (now without represented by ap- Coscarelh his third form of error. I write not counsel) some because pointed objections, stating filed that any am that it will make difference confident money he never intended to commit launder- respect to the substantive outcome on with court, ing. being persuaded by The district appeal, because want to exhort the but argument, simply Cosearelli’s omitted the court, likely which is to become the money object laundering from Coscarelh’s justice court of last resort real sentence calculation. case, untangle to the web of-error that our government appealed, asserting The Cos- deftly today so avoided. guilty plea money laundering earehi’s to the majority I write also because sets argument as the basis for that its forth, in if unremarkable fashion and as it Coscarelh should receive a harsher sentence along, very had been the law all remarka- imposed. than the one The con- proposition ble Coscarelli’s failure file pleaded “guilty tended that Coscarelh essentially from an favorable charged,” directing our Court to the indict- judgment destroys power this Court’s portions hearing. ment and the Rule remedy magnitude. error of constitutional Coscarelh, below, thought who he won did Because I believe that result is inconsistent cross-appeal, not argued but that the Rule 11 authority, controlling goes with un- hearing objections subsequent and his to the majority opinion, mentioned in the I am presentence report established that he did register my forced to dissent. plead guilty conspiracy intend money laundering. commit

L panel held that the sen- AN INTRODUCTION tencing point Assuming was correct. a val- Craig charged idly in an guilty plea Coscarelh was eleven entered as to the count through laundering object multiple object indictment. two Counts elev- con- charged en spiracy, substantive counts of wire fraud Coscarelh’s base level would offense and mail correctly using fraud. The indictment did not con- be determined tain alleging panel count laundering guideline. substantive examined transcript plea offense. Count which is the the Rule to locate the case, inextricably source of the constitutional error in that was intertwined with and charged long, complicated government’s appeal. one of those essential An hydras prosecutors transcript multi-headed love to examination of the Rule 11 did reveal, however, multiple object conspiracy. fashion —the pristine guilty plea decision, therefore, to be harmful. con- dant’s To the government. described Whyte, 3 130-31 F.3d United States therefore hearing, trary, Rule ’ Cir.1993). subsequent ob- Cosearelli’s sought plea upon which jections argu- in the district court and his plain and rely, contaminated establish ment on this Court both magnitude. constitutional error of harmful objects comprehend the that he failed to conspiracy alleged in count 1. II. that, provides when a Rule also AND

RULE ERROR reached, been agreement has OTHER FOLLIES require agree- of that court must disclosure only developed opinion, we record. panel ment for the See Fed.R.Crim.P. ll(e)(2)-(4). egregious to be the most there considered The record states what we rights, by the district plea agreement reached Coscarelli violation of Coscarelli’s was of Coscarelli’s the government. Although rendition the district court’s erroneous and statutory plea sentence at the maximum the existence of the possible court established 11, requires not, required by 11 that the dis- Rule hearing. Rule it did as plea agreement, e con- agreement. inform Coscarelli of personally go requir on to disclosure the trict court 11(d) (e)(2); penalty pro- possible see also cerning “maximum & Santo the Fed.R.Crim.P. (g). York, 257, 495, 11(c)(1) & by law.” Fed.R.Crim.P. v. New 404 U.S. S.Ct. vided bello (“Thé (1971) must, provided 498, plea told that the law was not 30 L.Ed.2d 427 Coscarelli twenty years course, knowing with if it voluntary of maximum sentence be contrary, Coscar- by promises, 1. To the the essence of respect to count was induced way the affirmatively promises misinformed must in some be made elli was those known.”). reasons, respect any prom possible penalty with For obvious maximum respect error is of years. That such the -with count 1 was five ises made existing argument pressed under our the dimension count 1 are material to constitutional Coscarel- precedent cannot be denied.1 —that supports application of the plea colloquy' li’s however, importance, perhaps equal Of Nonetheless, money laundering guideline. erroneous statement court’s district possible because the meaningful review is not 11 re- Rule charge against Coscarelli.2 duty require in its court fáiled showing that the district quires a record plea agreement of the of the terms disclosure concern- personally informed Coscarelli court for the record. charge to which the “nature of the ing the Finally, requires Rule 11 the district 11(c)(1) plea is offered.” Fed.R.CrimP. & a factual by inquiry that there is to establish informed Coscarelli (g). district court The 11(f). plea. for the conspiracy to commit basis charged that count Fed.R.Crim.P. prosecutor articu- court nor the fraud,” thereby omitting Neither the “mail fraud or wire hearing that Rule 11 any facts object and lated a fictitious name both the use of conviction- criminal conspira- support would object of the money laundering money laundering. conspiracy to commit An -mis- in count 1. affirmative cy charged about case, Notwithstanding any confusion charge, as in this of the statement the nature of penalty and possible likely to have affected defen- much more 434, (5th Bernal, 742, States, See, 861 F.2d Brady 2. United States e.g., 1. v. United 1469, (a 1463, 1988) (reversing the de 25 L.Ed.2d 747 conviction because 90 S.Ct. Cir. plea awareness of made without "sufficient nature fendant must understand consequences” likely 173, Corbett, relevant circumstances 742 F.2d charge); States v. United made); intelligently Guer United States v. is'not Cir.1984) (5th (vacating plea be 178 & n. 12 ra, 1996) (“A (5th Cir. 94 F.3d require of the nature disclosure cause failure to must, be a guilty process, a matter of due charge plain that affected the was error act.”); intelligent voluntary, knowing, Unit "fairness, integrity public reputation” of the Rivera, Cir. 898 F.2d ed States judicial proceedings). 1990) ("The requires that a defen Constitution conse and understand dant be advised plea."). quences of a (both 11), simply appended- of Rule core concerns was fourth ob- charges ject. have error if it not might avoided indictment did include either district court 11(f) duty indepen- conjunctive disjunctive performed its Rule “and” or the “or” had respect object. with dently the existence of a factual to that The indictment ascertain object charged. any Coscarelli’s did include substantive laun- basis for each Moreover, accepted dering have been without count. the indictment did plea should not inquiry sup- into facts court’s include citation 18 U.S.C. objects conspiracy 1956(h), § statutory provision that crimi- porting each of conspiracy 1. nalizes to commit in count launder- described ing provides punishable that the crime is sum, affirmatively misin- In Coscarelli by up twenty years imprisonment, possible concerning the maximum formed penalty applicable same to a substantive charge against nature of the penalty and the money laundering Instead, conviction. count addition, plea was not Cosearelli’s him. begins and ends with citations 18 U.S.C. (let sufficient) by any alone a fac- supported generic statutory conspiracy pro- respect to the launder- tual basis vision, provides penalty a maximum conspiracy charged count ing object of the only years imprisonment. five section, I following will discuss In the plain of such be cause government’s argument what believe that Coscarel- to be this and what believe Court’s error li have should been sentenced on the basis of properly advise the district obligation money to laundering guideline places great the such error. courts on to avoid emphasis pleaded how on the fact that Coscarelli Nonetheless,

to the “indictment.” Coscarelli III. judgment was not sentenced nor was entered on terms consistent with the indictment. IN THE INDICTMENT AMBIGUITY example, For the use-of-a-fictitious-name ob- AND JUDGMENT ject completely omitted from the Rule 11 hearing, sentencing hearing, and the Multiple object conspiracy counts are an judgment. places, judgment other inherently ambiguity rich source of that often erroneously ambiguities reflects the created challenges to post-conviction result in both by example, judg- the indictment. For guilty pleas. For exam- verdicts and applicable ment reflects that the conspiracy in statute to ple, multiple object charged 371, § his conviction on count 1 is 18 U.S.C. spanned eight pages, this contained sev- case generic conspiracy providing statute a subparagraphs, named seven oth- enteen and year imprisonment, five maximum term of surprising, er defendants. It is not there- 1956(h), specific § rather than fore, 18 U.S.C. considerable this record reveals statutory provision conspiracy to commit ambiguity concerning the nature of the money laundering.3 charges in count 1. (1) charged conspiracy government to commit Neither

Count could the have (3) fraud, fraud, 1956(h) § by wire and mail use of decided to avoid the effect of objects pleading conspiracy. § a name. These three were fictitious case indicated, conjunctive. guidelines in charged, incorporate The statu- Watch, conspiracy charged tory penalties. Count 1 also to commit United States (5th Cir.1993).4 422, money laundering. laundering why F.3d That is noteworthy judgment pose agreement application 3. The contains other er- was to avoid example, judgment reports rors. For statutorily of a mandated minimum sentence. count(s) "pleaded guilty Coscarelli 1-11 on Although F.3d at 426. the defendant was cor- June date June 1994.” The 1994 was rectly possible penalties apprised of the as the prior some five months to the date on which indictment, charge was framed in the he was indictment case was filed the district this incorrectly respect advised with to the ultimate clerk's office. penalty sentencing guidelines because the incor- porated statutory penalties required government appar- In Watch the and defendant finding quantity. Rejecting the district court’s ently agreed quantity omit reference to finding consequence that Watch understood the alleging drug pur- an indictment offense. The concerning fraud the circumstances of offense level for Cosearelli’s Coscarelli’s the base presence of the Rule 11 until after cur- sentencing, while filed offenses sory objections count hiked the promising to the PSR to de- up Compare level to 23. velop base offense the arguments objections. in’additional § § 2F1.1 with 2S1.1. filed, U.S.S.G. objections Additional were never 1956(h) § court’s failure include proceeded Cosearelli to sentencing. impor- count 1 on added judgment on takes court, sentencing, apparent- At 1956(h) provides case tance because CAC3,- ly arguments responding made twenty year impris- term of for a maximum sentenced on the Cosearelli basis of the fraud onment, statutory basis which serves as guidelines exclusion of the money laundering guideline which the laundering guideline government and the urged apply. our Court to objection appeal. voiced an and intent Inexplicably, notwithstanding the fact IV. that Coscarelli’s sentence could be substan- tially appeal, increased on then coun- ADDITIONAL OF ERROR CAC3 SOURCES his immediately seled client to file a waiver at least other factors that I There are two appeal. en banc brief defends development of believe contributed to the decision, it arguing that was intended to First, ease. I think that error in this “force to either particularly deplorable quality Coscarelli’s course, accept the decision as final.” Of right his counsel the denial of facilitated nothing is nonsense. Coscarelli’s waiver did knowing intelligent make a decision to government’s options. to reduce It was plead represented by guilty. Cosearelli was unnecessary attempt and foolish to influ- attorneys court appointed three different be- appeal, ence the decision to he the time was arrested and time tween banc, being now heralded the en plea. his judgment was Coscarel- entered majority ignore as an excuse lawyer, appointed counsel li’s first court rights. substantial (“CAC1”), number was so inattentive and wrote to the uncommunicative that Cosearelli Second, I no while realize that we have judge asking help. hearing for After a on decisions, authority charging to dictate issue, counsel was nonetheless allowed to patently think it is clear that the plea represent during negotia- Cosearelli capitalize ambigu- has not on the hesitated hearing. his Rule tions and at indictment, ity by the furthered at created hearing, ultimately Rule included and ap- lawyer Coscarelli’s first then failed to prosecutor by judgment. in the stood pear sentencing. Although counsel man- for mutely while the district court mischaraeter- appear for aged the second any charge by omitting ized nature of the date, unprepared. At he announced the sec- money object. laundering mention of the sentencing, conceded that he-had ond CAC1 prosecutor any then failed to articulate well, his client and that Cosearelli not'served laundering support money facts in of the sentencing objections had meritorious Nonetheless, object at 11 hearing. the Rule agreed the lawyer Cosearelli and both need- obtained, once the was requested to be filed. ed CAC1 withdrawal sought higher solely on impose sentence (who attorney and another will be referred to object. money laundering basis of the CAC2) appointed was counsel sides, Perhaps this was carelessness on all appointed suggestion. at CACl’s pay agree I do but Cosearelli should lawyer Coscarelli’s second never took rights. his' with constitutional appears action that the docket sheet. later, disparity a Thirty days appointed the court anoth- Neither is this novel scenario. CAC3, lawyer, years, er Sentencing CAC3. who concedes that For several Commis- -pre- studying disparity talked to result- he never either of Cosearelli’s sion been lawyers ing money laundering no from of the knowledge application vious that he had plea, of his the court vacated the conviction. Id. at 429. multiple object conspiracy object

guideline laundering multiple cases is included in a Coscarelli’s, many pri- of which involve conspiracy. like count I still believe marily criminal fraud of one form or anoth- approach, notwithstanding correct the en Although reported the Commission has er.5 majority’s holding banc on the amendments, out several recommended question, the substantive issue how to deal closely tie the which would more base offense likely with these troublesome counts is money laundering guideline level I hope recur. that the district court bench underlying the nature of the criminal con- following prin- will therefore take note of the duct, Congress has thus far declined to act ciples. pleads When defendant to a Consequently, upon those recommendations. multiple object conspiracy, the district court law, changes Congress until carefully separate multiple objects should guideline proverbial remains the laundering purposes hearing, of the Rule 11 pound gorilla,” which overwhelms the “800 object separate treat each as if it were a guideline produces relatively puny fraud (1) purpose establishing offense for the long it a sentence that twice as would understanding defendant’s nature multiple object conspiracy have been had the (2) charge, potential consequences object. contained a plea, supporting the facts quarrel Congress’ judg- I cannot with While plea. ment, disparities believe that the caused do approach comports appli- Such an with the upon to act Congress’ refusal the Com- guideline principles. Conspiracy con- cable recommendations, together with mission’s using guideline victions are sentenced inherently ungainly in- ambiguous and underlying substantive offense. U.S.S.G. eases, generated that are in such dictments Multiple object § 2X1.1. conspiracy convic- place a more onerous burden on the courts to though tions are treated as the defendant guilty pleas multiple object to a ensure that separate was convicted on a count for each conspiracy money laundering which include a underlying object. U.S.S.G. 1B1.2. If our object truly supported are a sufficient upon plainly district courts will draw required by factual basis as Rule 11. applicable sentencing guidelines by separate- ly addressing object, can each we be sure

V. charged multiple the defendants THE PANEL’S PROPOSED SOLUTION conspiracies count that include a laun- dering apprised unique described, upon the circumstances Based consequences pleas required by of their panel opinion recognized the that Coscarelli’s Rule 11 and Constitution. money object laundering conviction for the sentence, higher justify significantly a would approach unprecedented. This is not In money that on the but also held his ambiguity Watch there was created compli- was not in secured parties themselves as to the substance of the principles 11. with the of Rule Rather ance charge potential penalties. and the We con- simply deny higher the.government than “prudent judge” cluded that a district should justified by mon- sentence that would be any ambiguity by “simply walking] avoid a ey laundering object, panel vacated Cos- through” potential penalties. defendant permit conviction carelli’s and remanded 7 F.3d at 429. Had the district court in this replead tried on Coscarelli be that separated case likewise out the individual object, appropri- which would determine the objects multiple object conspiracy, and ate sentence. through maximum “walked” Coscarelli relief, just affording statutory penalties underlying In addition to for each of the offenses, panel opinion attempted to alert district substantive Coscarelli would have pitfalls money courts to a that a laun- the inherent when been advised there was <http://www.ussc.gov/moneylau/moniIaun.htm>; States Sentencing e.g., See, Commission, United Report Policy Money Sentencing States Sentencing Congress: Commission, to the United Laun- Money 28, 1995) Group Report (Feb. Laundering including Comments dering Working Offenses, 18, 1997) Department Report < (Sept. http://www.ussc.govAegist.htm/laundert ] 1 >. Justice

349 been VII. would object. Coscarélli dering .have conspiracy to commit that advised punishable with a maximum

laundering was THE EN BANC DECISION IS CON- Moreover, the twenty years. sentence TRARY TO AU- CONTROLLING much more would have been court district THORITY AND SENSE COMMON launder- likely, having mentioned Supreme that statutory punish- Court has never held its maximum ing object and ment, required cross-appeal requirement jurisdictional a factual basis to have is object. why is we alerted support that This fact, In only in a criminal case. time the potential pitfalls with re- courts to spoke Supreme directly to the charac- Court drug in spect certain convictions Watch was in a requirement ter of the Rule, remedy prevent proposed a sought dispel it confu- civil case and similarly exercise straightforward A error. by clarifying that requirement sion power would supervisory in this case our practice.” Langnes merely a “rule See way disarming artful go long towards Green, 243, 246, S.Ct. 11 com- charging techniques, improving Rule (1931) (“These L.Ed. decisions litigation pliance, reducing subsequent practice generally a rule of announce which pleas to adequacy of Rule 11 relating the followed; deny has been but none of them object conspiracy counts. multiple objections power to review respondent, urged by although he has not

VI. certiorari, applied for if court deems so.”). good reason to there is do Our THE EN BANC ERROR AVOIDING Langnes of subse- considered and the effect majority of the Court to take the A voted Supreme authority opin- quent on that banc, panel’s disposition en en banc. While Hines, year ago one ion less than Marts spun tangent off on a that the case (5th Cir.1997) (en banc), 117 F.3d 1504 cert. majority panel opin- neither discussed — -, denied, U.S. S.Ct. appended ion covered dissent. nor (1998). ease, majority L.Ed.2d addressing acknowledged Rather than rejected precise position of this Court at Coscar- constitutional error occurred majority by embraced the en banc now hearing, majority now holds elli’s Rule 11 holding cross-appeal requirement that the cross-appeal provision embodied that the jurisdictional be excused 4(b) Appellate Procedure Federal Rule was not certain 1983 cases. That decision mandatory jurisdictional re- up sets approaches to the inadvertent. various quirement, practice rather than a rule of thoroughly cross-appeal requirement were circum- can excused certain narrow be warnings about by the Court. Dire debated view, therefore, In their stances. Coscarel- potential- dangerously free-wheeling from the failure to file a li’s disposi- ly effects of the ultimate disastrous him judgment, granted district court’s clearly tion in Marts v. Hines were before requested, deprives this Court the relief he lengthy Judge dis- the Court Garwood’s except the of-jurisdiction anything to address (Garwood, J., dissent- sent. Id. at 1506-19 by error raised appeal. ing).6 (and cross-appeal presumably re- v. Hines erate and certain" rule that the The Marts dissenters here, supplanted majority opinion quirement jurisdictional, although itself is is respect authority) expressly holding supporting Langnes' that relied reasoned silent Morley Maryland requirement merely of heavily upon Cas. a rule Constr. Co. v. is mention, Co., 185, 325, My colleagues how- practice. L.Ed. 593 300 U.S. S.Ct. failed ever, (1937). portion Morley opening Langnes makes a that the relevant of makes reference in the "power” attempt opinion to characterize the cross^ap- sentence of to the no direct Morley modify requirement, peal that a decree in the absence of well as the fact establishing cross-appeal. Langnes the "in- Id. at 326. The Marts v. Hines cited as one source argued Morley's fleeting qualities there that and soli and certain" of the rule dissenters veterate "power” tary use of the word created an "invet- discussed. by majority now holds that Marts v. the dramatic about face embraced distinguished. disagree. I majority supported indisputable be

Hines can is with the suggest majority seems but immaterial axiom that an initial notice of in Marts v. Hines estab decision Court’s appeal mandatory jurisdictional, is both necessary very narrow and only a lished printed and the fact that the rule does not general rule that the cross- exception to the distinguish appeal between an cross- jurisdictional. is al appeal requirement appeal. points, major- Besides those two jurisdiction, pregnancy, like ways thought ity’s jurisdiction conviction that we have no all-or-nothing proposition. can We supported only by parties’ concession jurisdiction simply we have be decide that this is so. Court are more troubled- cause some of our recognize that stare is not While decisis prisoner pro by “burgeoning se docket” command,” an “inexorable I believe there are 1504, Hines, v. at than in Marts id. discussed very justifiable good some reasons for guilty plea they by the unconstitutional adhering prior to our determination of this principled There is no here in Coscarelli. issue in Marts v. Hines. we When abandon disposition to our excus way for us to adhere precedent, convey message our own we cross-appeal requirement in Marts v. ing the prior ruling that our was in error. Planned Hines, jurisdictiona finding that it is while l Casey, Parenthood S.Ct. I fail to understand how here Coscarelli. (1992). 2791, 2815, 120 L.Ed.2d 674 Fre- uncompromising we can reconcile the Court’s quent reconsideration of difficult issues cross-appeal requirement holding that the public tax good confidence Court’s jurisdictional previous holding with our discourage respect binding faith for the ignore the absence of a we can nonetheless existing precedent. effect of Id. As stated reasons, “prudential” such Supreme Court: docket, prisoner burgeoning as the when we (“This really id. at 1506 limited need to. See There is a limit to the amount of error exception product is the of our effort to make plausibly imputed prior can be Courts! prudential rule announced here effective the exceeded, If that limit should be distur- in.”). prior rulings bance of would be taken justifiable evidence that reexamination of majority explained Nor has the how we principle given way par- had prior precedent, drives will deal with this Court’s cases, which, ticular results in the short term. The clearly in criminal civil and recognized practice approach legitimacy ar of the Court would fade with the rule Langnes. frequency vacillation. Supreme ticulated its E.g., Nethery, American States Ins. Co. addition, prudential Id. there are no Cir.1996) (5th (“Unfortunately, F.3d pragmatic prior pre- reasons to overrule our the franchisor did not file a notice of cross- Supreme cedent Marts v. Hines. The why and has not shown its failure to Court has articulated a number of factors excused.”); Shipp v. do so should be General that should inform the decision to overrule Corp., Motors 750 F.2d 428 n. 12 (1) prior precedent. Those factors include Cir.1985) (“The plaintiffs fact that counsel principles “whether related have so far law in another trial is not an had commitments developed as to have left the old rule no exceptional producing great circumstance[ ] doctrine,” more than a remnant abandoned extra-ordinary inequity nature that on proven “whether the rule has to be reviewing rare occasions has induced practical defying intolerable worka- appellees to afford relief to who did not file a bility.” Id. at 2808. (internal cross-appeal.” quotations and al omitted)); Estelle, suggest Neither of those two factors French v. terations (5th Cir.1982) for of Marts v. need reconsideration Hines. (refusing ig to F.2d cross-appeal requirement may criminal Whether nore clear violation of defendant’s appropriate be excused case continues rights holding that the fail in constitutional cross-appeal preclude generate ure to a conflict both between and with- to file a did not claim). Instead, Compare, e.g., in Inter review of the constitutional our sister circuits. (in government) party depends this case the Corp. Fertilizer v. SGS Control Ore & national Cir.1994) (2d rvs., Inc., empowered upon 38 F.3d 1279 whether Court is Se Bldgs., Corp. Operating party v. American another and EF afford relief to who failed to (3d Cir.1993) Texport (in Coscarelli). Oil 993 F.2d appeal case will be We (2d Cir. Amolyntos, 11 F.3d 361 review, v. only by Co. our obligated to limit M/V 1993) Safety Occupational v. & and Reich scope briefing of the notice of on (3d Comm’n, F.2d 134 Review Health scope appeal, cross-appeal. but also Cir.1993). Surely argument there can be no now, things complex they If are will become conflicting pre interpretation of the that our complex hopelessly required once we are year now so ago less than one is cedent arguments potential run all remedies is a judgment that the of the Court outdated jurisdictional through that strainer. And of an doctrine.” mere “remnant abandoned pull up Only in what will we the net? those absolutely is no indication Similarly, there justice requires unfortunate souls whom we v. is unworkable. our Marts Hines rule accommodate, newly but our crafted rule ex- contrary, allowing ourselves the flexi To the cludes. requirement bility cross-appeal to excuse the Finally, I note that I have been unable to requires proven to work justice so has when which find cases use the See, French, e.g., 696 F.2d at 320 quite well. requirement deny as a sword to a criminal (the authority an issue has to consider Court Indeed, rights. his constitutional defendant court nor on raised neither requirement typically cross-appeal, appeal, and in the absence of a involving been discussed civil cases multi- so in a miscar failure to do will result when power ple government The of defendants. justice or a of the Court’s riage of violation deprive liberty punishment a citizen of his law); duty apply to correct United States criminal conduct is the most awesome Corp., 520 Steel F.2d U.S. by government. our power exercised Under Cir.1975) (“If assume, skepti we somewhat system constitutional we have established cross-appeal is cally, that formal notice of variety power: pro- of restraints on that due necessary bring this class action order cess, innocence, jury- of presumption right to forward, hold that the we would nonetheless trial, proof requirement beyond reasonable are sufficient to circumstances of case doubt, by counsel, representation appel- principle within that the bring the order my view, complete late review. full and ought themselves not be allowed rules requirements of Rule 11 compliance with just result 28 U.S.C. subvert absolutely essential the act of because every obliges appellate court to reach pleading guilty to criminal necessari- conduct lawfully brought it for re cases before waiver some of ly involves the of at least (internal omitted)); quotations see view.” important rights. constitutional these Lennox, 92 S.Ct. also Swarb unique majority opinion ignores (1972) (White, J., 767, 773, 31 L.Ed.2d 138 applicable appeals. to criminal considerations (“the concurring) plain notice a judg of a disposes error the record that CONCLUSION it”). justification There is no ment before abandoning precedent our recent en banc timely in- though Even least, very At the should Marts v. Hines. we appellate jurisdiction this Court voked the summarily change rule without ex filing appeal; though a notice even pressly saying bench and bar inextricably argument inter- being prior precedent is and that a overruled validity plea; twined with place. bright-line new rule will take its brought for- though even part appellate record ward as jurisdictional other approach, on the transcript hearing in complete of the Rule 11 hand, interject unnecessary rigidity and will urged this to review that many prove this case and complexity into cases and a sub- errors, record; many though the omissions impediment to even stantial our review hearing undoubtedly inadequacies cases Rule 11 more. We will face record; where, here, appropriate plain relief to one and obvious the face of Supreme though panel majority even the United States tried to do more than one year panel ago opinion. held that the failure of a has never to file a de- criminal defendant I respectfully dissent. jurisdiction appellate court of the prives the error; plain constitutional never- to address circumstances,

theless, spite of these sitting en has determined banc justice be better

that ends would appellate jurisdiction if our

served confined only party those matters as to each which expressly sought by filing relief an inde- America, My pendent cross-appeal. notice of under- UNITED STATES of Plaintiff-Appellee, standing of the rationale behind this decision “rogue judges” is that we must not have wandering through seeking the records Anthony Quinn PRICE, Defendant- grounds of error. As commendable as that Appellant. abstract, may philosophy be in in this 97-11018, Nos. it form 97-11019. case elevates over substance and gives preventing determinative effect United States Court of Appeals, misconduct in rather imaginary the future Fifth Circuit. addressing reality error in than us. July case before judgment I would adhere to our considered v. Hines that Marts re-

quirement compelling can be excused when require.

circumstances so further would infecting the constitutional errors

hold plea money laundering to the

object made the basis of the justify excusing are sufficient to

cross-appeal requirement in ease. Final- panel’s

ly, original I would reinstate the hold- case, require

ing imposi- in this which would guideline

tion conviction, only if and if a

remand valid free defect,

from constitutional was entered as to on remand. Recognizing

majority path, has chosen another conclude court, the hope that the district remedy

can the constitutional error we find jurisdiction review,

we lack will entertain appropriately phrased motion vacate guilty plea steps and take whatever

required subsequent ensure that which Coscarelli makes will com-

port respects all with the mandates of only

Rule 11. Such a course will work justice,

substantial but render the well

prosecution appeals collateral further is, all,

attacks unnecessary. That after what

Case Details

Case Name: United States v. Craig Michael Coscarelli, Also Known as John Coscarelli

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 30, 1998

Citation: 149 F.3d 342

Docket Number: 96-20264

Court Abbreviation: 5th Cir.