UNITED STATES OF AMERICA v. DARAYL DAVIS
No. 21-1854
United States Court of Appeals For the Seventh Circuit
Argued January 6, 2022 – Decided March 29, 2022
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:18-cr-0025-1 — Robert W. Gettleman, Judge.
ROVNER, Circuit Judge. Darayl Davis created, promoted, and operated a complex multi-state scheme to defraud money from people who entrusted him to place their funds in safe and lucrative investments. Rather than investing the money as promised, Davis used it to fund а lavish lifestyle, using the money on entertainment, exclusive clubs, lavish vacations, mansions, and luxury car rentals. All told, over the course of
As we now know too well, havoc reached the world that spring, and the day before Davis’ scheduled pre-trial conference, the district court issued an order creating emergency procedures to address health and safеty in light of the beginning of the Covid-19 pandemic. The court‘s First Amended General Order 20-0012 emphasized that the court remained open for criminal proceedings that could not be delayed. All other non-emergent proceedings, including Davis’ trial, were continued until April 6, 2020. When hopes for a short-lived pandemic did not come to fruition, on March 30, 2020, the court entered a Second Amended General Order 20-0012 postponing plea hearings until after May 4, 2020. The order provided that parties in individual cases could request plea hearings held by video or telephone conference pursuant to the 2020 Coronavirus Aid, Relief, and Economic Security Act (CARES Act),
Over the next several months, the parties negotiated a plea agreement, and the court agreed to exclude that time under the Speedy Trial Act,
The government and the Defendant Darayl Davis have agreed to proceed with a telephone-conference change of plea hearing.
The Court hereby orders that the change of plea hearing set for November 10, 2020 proceed by telephone conference. This Order memorializes the required findings under the
CARES Act § 15002(b)(2)(A), Pub. L. No. 116-136, 134 Stat. 281 .By order dated June 12, 2020, the Chief Judge found that felony pleas and felony sentencings cannot be conducted in person in this district without seriously jeopardizing public health and safety.
Under
Section 15002(b)(2)(A) , the assigned judge finds that further delay of this hearingwould causе serious harm to the interests of justice, because the Defendant wishes to advance the case so that he may accelerate the designation to a Bureau of Prisons facility, which offers more programming and more expansive inmate resources.
R. 143. The notification of docket entered in the record that day setting the plea hearing date also stated that the hearing would bе held telephonically. R. 142. The plea hearing was reset on several occasions at the request of the parties as they continued plea negotiations. Each time the order indicated that the hearing would proceed telephonically. R. 144, 145, 146, 147. Davis never objected to the original minute order or any of the four that followed, each of which indicated that the hearing would be held by telephone.
On January 19, 2021, when the parties finally conferenced by telephone for the change of plea hearing, Davis was present in his lawyer‘s office and greeted the court. R. 184 at 2. The district court assured Davis, “[i]f there‘s any problem, just let us know, and ... we‘ll deal with them,” and he reminded him “you may consult with your lawyer at any time during these proceedings for any reason at all. So if you have any questions or concerns or anything like that, just let us know, and you and Mr. Cheronis can speak in private.” R. 184 at 3. The district court, at the government‘s request, also confirmed that Davis was agreeing to hold the plea hearing telephonically.
GOVERNMENT: I might also just ask, I know the Court previously entered an order on
September 24th authorizing that the previously scheduled plea hearing be conducted by telephone but just wanted to сonfirm that that‘s still Mr. Davis‘s and the parties’ intention and then have that order updated for today‘s date. THE COURT: All right. Is that agreeable, Mr. Cheronis?
MR. CHERONIS: Yes, Your Honor. We‘ve discussed it with Mr. Davis and agree to proceed via telephone pursuant to the CARES Act.
THE COURT: Okay. Thank you.
R. 184 at 4. There is no question that the court and government went out of their way to make sure that Davis had consented to the telephonic hearing, both on September 24, when the agreement was made to proceed telephonically, and on January 19, before the hearing began.
Davis did not have any complaints regarding the telephonic plea hearing that day or at any other time until this appeal. Pursuant to his plea agreement with the government, Davis pleaded guilty to one count of mail fraud (Count 6) under
After the court accepted Davis’ plea and entered a finding of guilt, the district court judge engaged in a back and forth with Davis’ counsel about scheduling the sentencing hearing, including a discussion about whether Davis might agree to a sentencing hearing by video conference. Davis’ counsel, ruminating on the quеstion stated, “I guess the issue is just
During the sentencing hearing, which did indeed proceed by videoconference, Davis spoke for himself and stated that he understood that he had agreed to sentencing via video conference. R. 168 at 4–5. The district court sentenced Davis to 160 months imprisonment and a three-year tеrm of supervised release. He was also ordered to pay $7,171,085 in restitution to approximately twenty-five victims. Davis now appeals, arguing that the district court erred by holding his plea hearing by telephone conference.
In the course of the lengthy negotiations between Davis and the government, Davis signed a plea agreement waiving his appellate rights. As an appellate court, we review de novo whether a waiver of appellate rights contained in a plea agreement should be enforced. United States v. Brown, 973 F.3d 667, 718 (7th Cir. 2020)
The part of the plea agreement addressing appellate waiver stated as follows:
21. b. Waiver of appellate and collateral rights. Defendant further understands he is waiving all appellate issues that might have been available if he had exercised his right to trial. Defendant is aware that
Title 28, United States Code, Section 1291 , andTitle 18, United States Code, Section 3742 , afford a defendant the right to appeal his conviction and the sentencе imposed. Acknowledging this, defendant knowingly waives the right to appeal his conviction, any pre-trial rulings by the Court, and any part of the sentence (or the manner in which that sentence was determined), including any term of imprisonment and fine within the maximums provided by law, and including any order of restitution, in exchange for the concessions made by the United States in this Agreement. ...22. Defendant understands that by pleading guilty he is waiving all the rights set forth in the prior paragraphs. Defendant‘s attorney has
explained those rights to him, and the consequences of his waiver of those rights.
R. 149 at 13–14 (emphasis ours). Davis does not dispute that he signed the agreement knowingly and voluntarily.
Of course some rights are not waivable, such as the right to effective counsel during a plea negotiation. See Hurlow v. United States, 726 F.3d 958, 965 (7th Cir. 2013). It is also true, as Davis notes, that our circuit has held in the past that under
The CARES Act allows felony pleas and sentencing to proceed by video or telephone conference if the following conditions are mеt:
if the Judicial Conference of the United States finds that emergency conditions due to the national emergency...with respect to the Coronavirus Disease 2019 (COVID–19) will materially affect the functioning of either the Federal courts generally or a particular district court of the United States, the chief judge of a district court covered by the finding ... specifically finds, ... that felony pleas under
Rule 11 of the Federal Rules of Criminal Procedure ... cannot be сonducted in person without seriously jeopardizing public health and safety, and the districtjudge in a particular case finds for specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice, the plea or sentencing in that case may be conducted by video teleconference, or by telephone conference if video teleconferencing is not reasonably available.
In other words, the holding in Bethea—that pursuant to
Davis concedes, as he must, that the CARES Act allows for telephonic hearings and that he consented to such a hearing, but argues that his consent was necessary but not sufficiеnt to allow the court to proceed by telephone conference. He argues that the court also must have met all of the other prerequisites of the CARES Act, and failed to do so in the case of the one requirement that we have italicized above—a finding that for specific reasons the plea or sentencing in Davis’ case could not be further delayed without serious harm tо the interests of justice. See
Davis’ argument on appeal is, in its essence, an argument that the district court erred in its application of the CARES Act to his case. Davis, however, waived this error and, in fact, all district court error. As we explained recently in United States v. Coffin, 23 F.4th 778 (7th Cir. 2022),
the CARES Act created an exception to the rule that the defendant must be physically present in the courtroom. Section 15002(b) of the Act specifically authorizes plea and sentencing hearings by videoconference if the defendant consents and the three other statutory prerequisites аre met. [The defendant] now challenges the
judge‘s compliance with one of the CARES Act prerequisites—the requirement of case-specific “interests of justice” findings. That‘s a claim of CARES Act error—not Rule 43(a) error—and Coffin waived any claim of CARES Act error by expressly declining the opportunity to object to the judge‘s findings under the Act.
Id. at 781. This is precisely what happened in Davis’ case. Like Coffin, if Davis “had any objections to the Judge‘s CARES Act findings, he could and should have brought them to the district court‘s attention rather than waiting until the appeal to complain for the first time.” Id. (internal citations omitted).
In this case, however, we need not delve into Davis’ waiver of this specific CARES Act claim (although we will address it later below), because Davis waived all appellate claims of error. Davis entered into a plea agreement which included a complete waiver of any issues that might have been available if he had exercised his right to trial, including the right to appeal any pre-trial rulings by the court. R. 149 at 13–14. An alleged error in application of the CARES Act is subject to this waiver just like any other claim of error.
When a defendant knowingly and voluntarily enters into a plea agreement to waive his appellate rights, and the terms of that waiver are express and unambiguous, we will enforce those terms. United States v. Smith, 759 F.3d 702, 706 (7th Cir. 2014). Davis does not claim that the waiver was ambiguous and not express, and he does not deny that he entered into it knowingly and voluntarily, therefore that is the end of the matter. See United States v. Cavender, 228 F.3d 792, 803 (7th Cir. 2000).
Davis intentionally relinquished a known right when he expressly stated on the record that he had no objection to the
In sum, by signing a plea agreement waiving his right to appeal, Davis waived his right to appeal all errors, including any specific errors made in the application of the CARES Act. Moreover, he waived any error in application of the CARES Act in the district court. For these reasons his appeal is DISMISSED.