United States v. Coscarelli ( 1998 )


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  •                            Revised August 17, 1998
    UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    _______________________
    No. 96-20264
    _______________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    versus
    CRAIG MICHAEL COSCARELLI, also known as
    John Coscarelli,
    Defendant-Appellee.
    _________________________________________________________________
    Appeal from the United States District Court
    for the Southern District of Texas
    _________________________________________________________________
    July 30, 1998
    Before POLITZ, Chief Judge, REYNALDO G. GARZA, KING, JOLLY,
    HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO
    M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit
    Judges.
    EDITH H. JONES, Circuit Judge:
    The    United     States   alone     appealed    from   a   sentencing
    decision by the district court that did not correctly apply the
    guidelines     for    money-laundering        in   this   telemarketing     scam
    prosecution.         The   panel   opinion     sustained    the   government’s
    position.1     What concerned the en banc court, however, was the
    panel majority’s further decision to grant affirmative relief to
    appellee Coscarelli     -- who waived his right to appeal in writing,
    filed no notice of appeal or cross-appeal, and never made any
    request for relief from his conviction or sentence -- by vacating
    the guilty plea entirely.       As an en banc court, we hold that
    Coscarelli’s failure to file a notice of appeal precludes him from
    receiving     affirmative   relief   in    this   court.    We   have   no
    jurisdiction over any such claim.
    The first sentence of Federal Rule of Appellate Procedure
    4(b) says, “[i]n a criminal case, a defendant shall file a notice
    of appeal in the district court within 10 days after the entry
    either of the judgment or order appealed from, or of a notice of
    appeal by the Government.”      The Supreme Court has described the
    ten-day limit for filing a notice of appeal in a criminal case as
    “mandatory and jurisdictional.”          United States v. Robinson, 
    361 U.S. 220
    , 229, 
    80 S.Ct. 282
    , 288 (1960) (interpreting language in
    a predecessor to the current rule).          See also United States v.
    Adams, 
    106 F.3d 646
    , 647 (5th Cir. 1997) (“This court cannot
    exercise jurisdiction absent a timely notice of appeal.”)               The
    wording of the rule which requires the notice of appeal to be filed
    within ten days is as applicable to a defendant’s cross-appeal as
    it is when the government does not appeal.           Coscarelli filed no
    1
    On rehearing, we reinstate that portion of the opinion.
    2
    notice   of    appeal   or   cross-appeal   from   the   district   court’s
    sentencing decision.2        In a case such as this, an appellate court
    simply has no authority to grant Coscarelli relief that would
    expand his rights under the judgment.
    Coscarelli’s brief to the en banc court concedes this
    point, stating:
    Even though there are arguments supporting
    jurisdiction, counsel’s additional research on
    this issue indicates that the court does not
    have jurisdiction.
    En Banc brief at 3.3
    Although Coscarelli does not make any such argument, the
    dissent may contend that our recent en banc decision in Marts v.
    Hines, 
    117 F.3d 1504
     (5th Cir. 1997), either permits or requires us
    to exercise discretionary appellate jurisdiction notwithstanding
    2
    Coscarelli’s brief explains this decision as follows:
    In fact, Mr. Coscarelli elected to accept
    Judge   Gilmore’s   sentence  as   appropriate
    punishment for his conduct, and filed, upon
    the advice of the undersigned counsel, a
    waiver of right of appeal document on February
    7, 1996 (
    1 R. 261
    ). This was done as a matter
    of strategy to force the government to either
    appeal or accept the sentence as final.
    3
    To support his point Coscarelli correctly relies on
    Stockstill v. Petty Ray Geophysical, 
    888 F.2d 1493
     (5th Cir. 1989),
    which in turn relies upon a United States Supreme Court case,
    Torres v. Oakland Scavenger Co., 
    487 U.S. 312
    , 
    108 S.Ct. 2405
    , 
    101 L.Ed.2d 285
     (1988). In the Torres case, the Court held that the
    requirements of Rules 3 and 4 are mandatory and jurisdictional and
    that although the courts of appeals may liberally construe those
    rules to determine whether compliance exists, the courts may not
    waive noncompliance. See 
    id. at 317
    , 
    108 S.Ct. at 2409
    .
    3
    Coscarelli’s   failure   to    file       a   notice   of   appeal.   This
    interpretation of Marts would be pure wishful thinking and would
    flatly contradict the narrow application of Marts to in forma
    pauperis cases brought under a statute now superseded by the Prison
    Litigation Reform Act.        In Marts, the question was whether an
    appellate court could sua sponte determine that dismissals of such
    cases are deemed to be with prejudice unless the district court
    expressly declares otherwise.         Marts represented an effort “to
    continue our development of procedures to address and dispose
    appropriately of a continually burgeoning prisoner pro se docket,
    both at the trial and appellate levels . . . .”               Id. at 1504.
    Marts concludes that:
    [I]n cases involving dismissals as frivolous
    or malicious under the in forma pauperis
    statute in which the defendant has not been
    served and was, therefore, not before the
    trial court and is not before the appellate
    court, the appellate court, notwithstanding,
    has the authority to change a district court
    judgment   dismissing   the  claims  without
    prejudice to one dismissing with prejudice,
    even though there is no cross-appeal by the
    obviously non-present “appellee.”
    Id. at 1506.   Marts either stands or falls on the sole rationale
    that when federal courts finally adjudicate in forma pauperis
    litigation their judgments may protect the courts from an onslaught
    of malicious and frivolous complaints, where the defendants have
    neither been served with process nor ever appeared in the case.
    Not all who join this majority opinion concurred in
    Marts, but we share a common view of that opinion’s limited
    4
    holding.    Marts accordingly furnishes no basis for a conclusion
    that   appellate       jurisdiction    exists     here   to   grant    relief    to
    Coscarelli.
    For    the    foregoing     reasons,     based    on   the    partial
    reinstatement     of     the   panel   opinion,    Coscarelli’s       guilty   plea
    remains unassailed, but the case is VACATED and REMANDED for
    resentencing and further proceedings consistent herewith.
    ENDRECORD
    5
    DeMOSS, Circuit Judge, joined by REYNALDO G. GARZA, Senior Circuit
    Judge, dissenting.
    This case has been snake-bit from the time the indictment was
    filed.   Virtually no stage of the proceeding was conducted without
    some form of error.      I write not because I am confident that it
    will make any difference with respect to the substantive outcome on
    appeal, but because I want to exhort the district court, which is
    likely to become the court of last resort for real justice in this
    case, to untangle the web of error that our Court has today so
    deftly avoided.
    I write also because the majority sets forth, in unremarkable
    fashion and   as   if   it   had   been   the   law    all   along,   the   very
    remarkable proposition that Coscarelli’s failure to file a cross-
    appeal from an essentially favorable judgment destroys this Court’s
    power to remedy error of constitutional magnitude.                    Because I
    believe that result is inconsistent with controlling authority,
    which goes unmentioned in the majority opinion, I am forced to
    register my dissent.
    I.
    AN INTRODUCTION
    Craig Coscarelli was charged in an eleven count indictment.
    Counts two through eleven charged substantive counts of wire fraud
    and mail fraud.    The indictment did not contain any count alleging
    a substantive money laundering offense.               Count 1, which is the
    source of the constitutional error in this case, charged one of
    those long, complicated and multi-headed hydras that prosecutors
    love to fashion -- the multiple object conspiracy.                         Coscarelli
    decided to enter a guilty plea.               At Coscarelli’s Rule 11 hearing
    the   district     court,   apparently         misled     by    ambiguity       in   the
    indictment, erroneously understated the statutory maximum term of
    imprisonment by fifteen years, omitted any mention of the money
    laundering object when characterizing the offense charged in count
    1, and then failed to require the government to establish any
    factual basis whatsoever for the money laundering object charged in
    that count.   Coscarelli’s first appointed counsel resigned shortly
    thereafter.
    Notwithstanding       the    conspicuous          absence     of    the     money
    laundering object in the Rule 11 colloquy, that object showed up in
    the   presentence     report      as   the      pivotal    factor        establishing
    Coscarelli’s considerable sentence. Coscarelli (now represented by
    his third appointed counsel) filed objections, stating that he
    never intended to commit money laundering.                     The district court,
    being persuaded by Coscarelli’s argument, simply omitted the money
    laundering object from Coscarelli’s sentence calculation.
    The government appealed, asserting Coscarelli’s guilty plea to
    the money laundering object as the basis for its argument that
    Coscarelli should receive a harsher sentence than the one imposed.
    The   government    contended      that       Coscarelli       pleaded    “guilty    as
    charged,” directing our Court to the indictment and portions of the
    7
    Rule 11 hearing.          Coscarelli, who thought he won below, did not
    cross-appeal,       but    argued      that       the    Rule    11   hearing   and    his
    subsequent objections to the presentence report established that he
    did not intend to plead guilty to conspiracy to commit money
    laundering.
    The panel held that the government’s sentencing point was
    correct.     Assuming a validly entered guilty plea as to the money
    laundering object of the multiple object conspiracy, Coscarelli’s
    base offense level would correctly be determined using the money
    laundering guideline. The panel examined the Rule 11 transcript to
    locate     the    plea    that   was    inextricably            intertwined     with   and
    essential to the government’s appeal.                    An examination of the Rule
    11 transcript did not reveal, however, the pristine guilty plea
    described by the government. To the contrary, the Rule 11 hearing,
    and therefore the plea upon which the government sought to rely,
    was contaminated with plain and harmful error of constitutional
    magnitude.
    II.
    RULE 11 ERROR AND OTHER FOLLIES
    In the panel opinion, we developed only what we considered to
    be   the   most    egregious     violation          of    Coscarelli’s     rights,     the
    district court’s          erroneous     rendition         of    Coscarelli’s    possible
    maximum statutory sentence at the plea hearing.                       Rule 11 requires
    that the district court personally inform Coscarelli concerning the
    8
    “maximum possible penalty provided by law.”          FED. R. CRIM. P.
    11(c)(1) & (g).   Coscarelli was not told that the law provided a
    maximum sentence of twenty years with respect to count 1.       To the
    contrary, Coscarelli was affirmatively misinformed that the maximum
    possible penalty with respect to count 1 was five years.      That such
    error is of constitutional dimension under our existing precedent
    cannot be denied.4
    Of perhaps equal importance, however, is the district court’s
    erroneous statement of the charge against Coscarelli.5         Rule 11
    requires a record showing that the district court personally
    informed Coscarelli concerning the “nature of the charge to which
    the plea is offered.”   FED. R. CRIM. P. 11(c)(1) & (g).   The district
    court informed Coscarelli that count 1 charged conspiracy to commit
    “mail fraud or wire fraud,” thereby omitting both the use of a
    fictitious name object and the money laundering object of the
    4
    See, e.g., Brady v. United States, 
    90 S. Ct. 1463
    , 1469
    (1970) (a plea made without “sufficient awareness of the relevant
    circumstances and likely consequences” is not intelligently made);
    United States v. Guerra, 
    94 F.3d 989
    , 994 (5th Cir. 1996) (“A plea
    of guilty must, as a matter of due process, be a voluntary,
    knowing, and intelligent act.”); United States v. Rivera, 
    898 F.2d 442
    , 447 (5th Cir. 1990) (“The Constitution requires that a
    defendant be advised and understand the consequences of a guilty
    plea.”).
    5
    United States v. Bernal, 
    861 F.2d 434
    , 435 (5th Cir.
    1988) (reversing conviction because the defendant must understand
    the nature of the charge); United States v. Corbett, 
    742 F.2d 173
    ,
    178 & n.12 (5th Cir. 1984) (vacating plea because failure to
    require disclosure of the nature of the charge was plain error that
    affected the “fairness, integrity or public reputation” of the
    judicial proceedings).
    9
    conspiracy charged in count 1.        An affirmative misstatement of the
    charge, as in this case, is much more likely to have affected the
    defendant’s decision, and therefore, to be harmful.           United States
    v. Whyte, 
    3 F.3d 129
    , 130-31 (5th Cir. 1993).                  Coscarelli’s
    subsequent objections in the district court and his argument on
    appeal in this Court both establish that he failed to comprehend
    the objects of the conspiracy alleged in count 1.
    Rule 11 also provides that, when a plea agreement has been
    reached,   the    district    court   must   require   disclosure   of   that
    agreement for the record.       See FED. R. CRIM. P. 11(e)(2) - (4).      The
    record states that there was a plea agreement reached by Coscarelli
    and the government.     Although the district court established the
    existence of the plea agreement, it did not, as required by Rule
    11, go on to require disclosure of the agreement.           FED. R. CRIM. P.
    11(d) & (e)(2); see also Santobello v. New York, 
    92 S. Ct. 495
    , 498
    (1971) (“The plea must, of course, be voluntary and knowing and if
    it was induced by promises, the essence of those promises must in
    some way be made known.”).       For obvious reasons, any promises made
    by the government with respect to count 1 are material to the
    argument pressed by the government on appeal -- that Coscarelli’s
    plea   colloquy    supports    application     of   the   money   laundering
    guideline.   Nonetheless, meaningful review is not possible because
    the district court failed in its duty to require disclosure of the
    terms of the plea agreement for the record.
    10
    Finally, Rule 11 requires the district court to establish by
    inquiry that there is a factual basis for the plea.                 FED. R. CRIM.
    P. 11(f).     Neither the court nor the prosecutor articulated any
    facts in the Rule 11 hearing that would support Coscarelli’s
    criminal conviction for conspiracy to commit money laundering.
    Notwithstanding any confusion about the possible penalty and the
    nature of the charges (both core concerns of Rule 11), the district
    court might have avoided error if it had performed its Rule 11(f)
    duty to independently ascertain the existence of a factual basis
    for each object charged.          Coscarelli’s plea should not have been
    accepted without the district court’s inquiry into the facts
    supporting each of the objects of the conspiracy described in count
    1.
    In sum, Coscarelli was affirmatively misinformed concerning
    the maximum possible penalty and the nature of the charge against
    him.   In addition, Coscarelli’s plea was not supported by any (let
    alone a     sufficient)     factual   basis    with     respect    to   the    money
    laundering object of the conspiracy charged in count 1.                       In the
    following section, I will discuss what I believe may be the cause
    of   such   plain   error   and   what    I   believe    to   be   this   Court’s
    obligation to properly advise the district courts on how to avoid
    such error.
    III.
    AMBIGUITY IN THE INDICTMENT AND JUDGMENT
    11
    Multiple object conspiracy counts are an inherently rich
    source of ambiguity that often result in post-conviction challenges
    to both guilty verdicts and guilty pleas.                    For example, the
    multiple object conspiracy charged in this case spanned eight
    pages, contained seventeen subparagraphs, and named seven other
    defendants.       It is not surprising, therefore, that this record
    reveals considerable ambiguity concerning the nature of the charges
    in count 1.
    Count 1 charged conspiracy to commit (1) wire fraud, and (2)
    mail fraud, and (3) use of a fictitious name.            These three objects
    were charged, as indicated, in the conjunctive.                   Count 1 also
    charged    conspiracy    to   commit    money      laundering.       The   money
    laundering object was simply appended as a fourth object.                    The
    indictment did not include either the conjunctive “and” or the
    disjunctive “or” with respect to that object.                The indictment did
    not include any substantive money laundering count.               Moreover, the
    indictment did not include any citation to 
    18 U.S.C. § 1956
    (h), the
    statutory provision that criminalizes conspiracy to commit money
    laundering and provides that the crime is punishable by up to
    twenty    years   imprisonment,   the       same   penalty    applicable   to   a
    substantive money laundering conviction.             Instead, count 1 begins
    and ends with citations to 
    18 U.S.C. § 371
    , the generic statutory
    conspiracy provision, which provides a maximum penalty of only five
    years imprisonment.
    The government’s argument that Coscarelli should have been
    12
    sentenced on the basis of the money laundering guideline places
    great    emphasis    on   the   fact   that   Coscarelli   pleaded   to   the
    “indictment.”       Nonetheless, Coscarelli was not sentenced nor was
    judgment entered on terms consistent with the indictment.                 For
    example, the use-of-a-fictitious-name object is completely omitted
    from the Rule 11 hearing, the sentencing hearing, and the judgment.
    In other places, the judgment erroneously reflects the ambiguities
    created by the indictment. For example, the judgment reflects that
    the statute applicable to his conviction on count 1 is 
    18 U.S.C. § 371
    , the generic conspiracy statute providing a five year maximum
    term of imprisonment, rather than 
    18 U.S.C. § 1956
    (h), the specific
    statutory provision for conspiracy to commit money laundering.6
    Neither could the government have simply decided to avoid the
    effect of § 1956(h) by pleading the case as a § 371 conspiracy.
    The sentencing guidelines incorporate statutory penalties.           United
    States v. Watch, 
    7 F.3d 422
    , 428 (5th Cir. 1993).7          That is why the
    6
    The judgment contains other noteworthy errors.       For
    example, the judgment reports that Coscarelli “pleaded guilty to
    count(s) 1-11 on June 12, 1994." The date of June 12, 1994 was
    some five months prior to the date on which the indictment in this
    case was filed in the district clerk’s office.
    7
    In Watch the government and defendant apparently agreed
    to omit any reference to quantity in an indictment alleging a drug
    offense. The purpose of the agreement was to avoid application of
    a statutorily mandated minimum sentence. 
    7 F.3d at 426
    . Although
    the defendant was correctly apprised of the possible penalties as
    the charge was framed in the indictment, he was incorrectly advised
    with respect to the ultimate penalty because the sentencing
    guidelines incorporated the statutory penalties and required a
    finding of quantity. Rejecting the district court’s finding that
    13
    base offense level for Coscarelli’s fraud offenses was 6, while the
    presence of the money laundering object in count 1 hiked the base
    offense level up to 23.             Compare U.S.S.G. § 2F1.1 with § 2S1.1.
    The district court’s failure to include § 1956(h) in the judgment
    on count 1 takes on added importance in this case because § 1956(h)
    provides for a twenty year maximum term of imprisonment, which
    serves as the statutory basis for the money laundering guideline
    which the government has urged our Court to apply.
    IV.
    ADDITIONAL SOURCES OF ERROR
    There     are   at     least    two    other    factors    that     I    believe
    contributed to the development of error in this case.                        First, I
    think that the particularly deplorable quality of Coscarelli’s
    counsel facilitated the denial of his right to make a knowing and
    intelligent decision to plead guilty.               Coscarelli was represented
    by three different court appointed attorneys between the time he
    was arrested and the time judgment was entered on his plea.
    Coscarelli’s    first      lawyer,     court    appointed      counsel       number   1
    (“CAC1"), was so inattentive and uncommunicative that Coscarelli
    wrote to the judge asking for help.             After a hearing on the issue,
    counsel was nonetheless allowed to represent Coscarelli during the
    plea negotiations and at his Rule 11 hearing.
    Watch understood the consequence of his plea, the court vacated the
    conviction. Id. at 429.
    14
    Coscarelli’s          first      lawyer       then     failed     to    appear       for
    sentencing.         Although counsel managed to appear for the second
    sentencing       date,     he   announced          unprepared.         At    the    second
    sentencing, CAC1 conceded that he had not served his client well,
    and that Coscarelli had meritorious sentencing objections which
    Coscarelli and the lawyer both agreed needed to be filed.                                CAC1
    requested withdrawal and another attorney (who will be referred to
    as court appointed counsel 2 or CAC2) was appointed at CAC1's
    suggestion.
    Coscarelli’s second lawyer never took any action that appears
    on the docket sheet.               Thirty days later, the court appointed
    another lawyer, CAC3.           CAC3, who concedes that he never talked to
    either    of   Coscarelli’s        previous        lawyers    and     that    he   had    no
    knowledge concerning the circumstances of Coscarelli’s Rule 11 plea
    until    after      sentencing,       filed    cursory      objections       to    the   PSR
    promising      to   develop     the    arguments       in    additional      objections.
    Additional objections were never filed, and Coscarelli proceeded to
    sentencing.
    At sentencing, the district court, apparently responding to
    arguments made by CAC3, sentenced Coscarelli on the basis of the
    fraud guidelines to the exclusion of the money laundering guideline
    and the government voiced an objection and intent to appeal.
    Inexplicably,        and   notwithstanding           the    fact     that    Coscarelli’s
    sentence could be substantially increased on appeal, CAC3 then
    counseled his client to immediately file a waiver of appeal.
    15
    Coscarelli’s en banc brief defends the decision, arguing that it
    was intended to “force the government to either appeal or accept
    the    decision      as   final.”              Of    course,       this    is     nonsense.
    Coscarelli’s waiver did nothing to reduce the government’s options.
    It    was   an   unnecessary        and     foolish      attempt    to    influence       the
    government’s decision to appeal, which is now being heralded by the
    en banc majority as an excuse to ignore Coscarelli’s substantial
    rights.
    Second, while I realize that we have no authority to dictate
    charging     decisions,        I    think     it    is   patently       clear     that    the
    government has not hesitated to capitalize on the ambiguity created
    by the indictment, furthered at the Rule 11 hearing, and ultimately
    included in the judgment. The prosecutor stood by mutely while the
    district     court    mischaracterized             the   nature    of     the    charge    by
    omitting     any     mention       of   the   money      laundering       object.         The
    prosecutor then failed to articulate any facts in support of the
    money laundering object at the Rule 11 hearing.                      Nonetheless, once
    the plea was obtained, the government sought to impose a higher
    sentence solely on the basis of the money laundering object.
    Perhaps this was carelessness on all sides, but I do not agree that
    Coscarelli should pay with his constitutional rights.
    Neither is this disparity a novel scenario.                              For several
    years, the Sentencing Commission has been studying the disparity
    resulting from application of the money laundering guideline in
    16
    multiple object conspiracy cases like Coscarelli’s, many of which
    involve primarily criminal fraud of one form or another.8             Although
    the Commission has reported out several recommended amendments,
    which would more closely tie the base offense level in the money
    laundering guideline to the nature of the underlying criminal
    conduct,     Congress    has   thus    far   declined   to   act   upon   those
    recommendations. Consequently, until Congress changes the law, the
    money     laundering    guideline     remains   the   proverbial   "800   pound
    gorilla," which overwhelms the relatively puny fraud guideline and
    produces a sentence that is twice as long as it would have been had
    the multiple object conspiracy not contained a money laundering
    object.      While I cannot quarrel with Congress’ judgment, I do
    believe that the disparities caused by Congress’ refusal to act
    upon the Commission’s recommendations, together with the inherently
    ambiguous and ungainly indictments that are generated in such
    cases, place a more onerous burden on the courts to ensure that
    guilty pleas to a multiple object conspiracy which include a money
    laundering object are truly supported by a sufficient factual basis
    as required by Rule 11.
    V.
    8
    See, e.g., UNITED STATES SENTENCING COMMISSION, REPORT TO THE
    CONGRESS: SENTENCING POLICY FOR MONEY LAUNDERING OFFENSES, INCLUDING COMMENTS ON
    DEPARTMENT OF JUSTICE REPORT (Sept. 18, 1997) ; UNITED STATES SENTENCING COMMISSION, MONEY
    LAUNDERING WORKING GROUP REPORT (Feb. 28, 1995) .
    17
    THE PANEL’S PROPOSED SOLUTION
    Based upon the circumstances described, the panel opinion
    recognized that Coscarelli’s conviction for the money laundering
    object would justify a significantly higher sentence, but also held
    that his plea on the money laundering object was not secured in
    compliance with the principles of Rule 11. Rather than simply deny
    the government the higher sentence that would be justified by the
    money laundering object, the panel vacated Coscarelli’s conviction
    and remanded to permit Coscarelli to replead or be tried on that
    object, which would determine the appropriate sentence.
    In addition to affording just relief, the panel opinion
    attempted to alert district courts to the inherent pitfalls when a
    money laundering object is included in a multiple count conspiracy.
    I still believe that was a correct approach, and notwithstanding
    the en banc majority’s holding on the cross-appeal question, the
    substantive issue of how to deal with these troublesome counts is
    likely to recur.        I hope that the district court bench will
    therefore take note of the following principles.          When a defendant
    pleads guilty to a multiple object conspiracy, the district court
    should carefully separate the multiple objects for purposes of the
    Rule 11 hearing, and treat each object as if it were a separate
    offense   for   the   purpose   of   establishing   (1)   the   defendant’s
    understanding of the nature of the charge, (2) the potential
    consequences of the plea, and (3) the facts supporting the plea.
    18
    Such    an    approach   comports      with    the   applicable       guideline
    principles.          Conspiracy    convictions        are   sentenced        using   the
    guideline      for    the   underlying     substantive          offense.      U.S.S.G.
    § 2X1.1.       Multiple object conspiracy convictions are treated as
    though the defendant was convicted on a separate count for each
    underlying object.          U.S.S.G. § 1B1.2.        If our district courts will
    draw    upon    the     plainly   applicable         sentencing       guidelines     by
    separately      addressing      each   object,       we   can    be   sure    that   the
    defendants charged with multiple count conspiracies that include a
    money laundering object are apprised of the unique consequences of
    their pleas as required by Rule 11 and the Constitution.
    This approach is not unprecedented.                      In Watch there was
    ambiguity created by the parties themselves as to the substance of
    the charge and the potential penalties.                     We concluded that a
    “prudent district judge” should avoid any ambiguity by “simply
    walk[ing] a defendant through” the potential penalties.                       
    7 F.3d at 429
    .    Had the district court in this case likewise separated out
    the individual objects of the multiple object conspiracy, and
    “walked” Coscarelli through the maximum statutory penalties for
    each of the underlying substantive offenses, Coscarelli would have
    been advised that there was a money laundering object.                       Coscarelli
    would have been advised that conspiracy to commit money laundering
    was punishable with a maximum sentence of twenty years.                      Moreover,
    19
    the district     court    would     have    been    much    more    likely,       having
    mentioned the money laundering object and its maximum statutory
    punishment, to have required a factual basis to support that
    object.    This is why we alerted district courts to potential
    pitfalls with respect to certain drug convictions in Watch and
    proposed   a   remedy     to   prevent      Rule    11     error.        A   similarly
    straightforward exercise of our supervisory power in this case
    would go a long way towards disarming artful charging techniques,
    improving Rule 11 compliance, and reducing subsequent litigation
    relating   the      adequacy   of   Rule     11    pleas    to     multiple       object
    conspiracy counts.
    VI.
    AVOIDING THE ERROR EN BANC
    A majority of the Court voted to take the panel’s disposition
    en banc.   While en banc, the case spun off on a tangent that was
    neither discussed in the majority panel opinion nor covered in the
    appended   dissent.        Rather     than    addressing         the     acknowledged
    constitutional error that occurred at Coscarelli’s Rule 11 hearing,
    the majority now holds that the cross-appeal provision embodied in
    Federal Rule of Appellate Procedure 4(b) sets up a mandatory and
    jurisdictional requirement, rather than a rule of practice that can
    be   excused   in    certain   narrow      circumstances.           In    their    view,
    therefore, Coscarelli’s failure to file a cross-appeal from the
    district   court’s     judgment,     which        granted    him    the      relief   he
    20
    requested, deprives this Court of jurisdiction to address anything
    except the sentencing error raised by the government’s appeal.
    VII.
    THE EN BANC DECISION IS CONTRARY
    TO CONTROLLING AUTHORITY AND COMMON SENSE
    The   Supreme     Court    has   never     held   that   the   cross-appeal
    requirement is jurisdictional in a criminal case.                    In fact, the
    only time the Supreme Court spoke directly to the character of the
    cross-appeal requirement was in a civil case and it sought to
    dispel the confusion by clarifying that the requirement is merely
    a “rule of practice.”           See Langnes v. Green, 
    51 S. Ct. 243
    , 246
    (1931) (“These decisions simply announce a rule of practice which
    generally has been followed; but none of them deny the power of the
    court to review objections urged by respondent, although he has not
    applied for certiorari, if the court deems there is good reason to
    do   so.”).       Our   Court    considered      Langnes   and    the    effect   of
    subsequent Supreme Court authority on that opinion less than one
    year ago in Marts v. Hines, 
    117 F.3d 1504
     (5th Cir. 1997) (en
    banc), cert. denied, 
    118 S. Ct. 716
     (1998).                      In that case, a
    majority of this Court rejected the precise position now embraced
    by   the    en   banc   majority       by    holding    that   the   cross-appeal
    requirement is not jurisdictional and may be excused in certain
    § 1983 cases.        That decision was not inadvertent.                 The various
    approaches to the cross-appeal requirement were thoroughly debated
    by the Court.       Dire warnings about the dangerously free-wheeling
    21
    and potentially disastrous effects of the ultimate disposition in
    Marts v. Hines were clearly before the Court in Judge Garwood’s
    lengthy dissent.   Id. at 1506-19 (Garwood, J., dissenting).9
    The   majority   now   holds    that   Marts   v.    Hines   can   be
    distinguished. I disagree. The majority seems to suggest that the
    Court’s decision in Marts v. Hines established only a very narrow
    and necessary exception to the general rule that the cross-appeal
    requirement is jurisdictional. I always thought jurisdiction, like
    pregnancy, was an all-or-nothing proposition.            We cannot simply
    decide we have jurisdiction because some of our Court are more
    troubled by the "burgeoning prisoner pro se docket" discussed in
    Marts v. Hines, id. at 1504, than they are by the unconstitutional
    guilty plea here in Coscarelli.     There is no principled way for us
    to adhere to our disposition excusing the cross-appeal requirement
    in Marts v. Hines, while finding that it is jurisdictional here in
    9
    The Marts v. Hines dissenters (and presumably the
    majority here, although the opinion itself is silent with respect
    to supporting authority) relied heavily upon Morley Constr. Co. v.
    Maryland Cas. Co., 
    57 S. Ct. 325
     (1937). Morley makes a reference
    in the opening sentence of the opinion to the “power” of the Court
    to modify a decree in the absence of a cross-appeal. 
    Id. at 326
    .
    The Marts v. Hines dissenters argued that Morley’s fleeting and
    solitary use of the word “power” created an “inveterate and
    certain” rule that the cross-appeal requirement is jurisdictional,
    which supplanted Langnes’ expressly reasoned holding that the
    cross-appeal requirement is merely a rule of practice.           My
    colleagues failed to mention, however, that the relevant portion of
    Langnes makes no direct attempt to characterize the cross-appeal
    requirement, as well as the fact that Morley cited Langnes as one
    source establishing the “inveterate and certain” qualities of the
    rule there discussed.
    22
    Coscarelli.    I fail to understand how we can reconcile the Court’s
    uncompromising      holding     that    the   cross-appeal       requirement     is
    jurisdictional with our previous holding that we can nonetheless
    ignore the absence of a cross-appeal for “prudential” reasons, such
    as the burgeoning prisoner docket, when we really need to.                See id.
    at 1506 (“This limited exception is the product of our effort to
    make effective the prudential rule announced herein.”).
    Nor has the majority explained how we will deal with this
    Court’s prior precedent, which, clearly in civil and criminal
    cases, has recognized the rule of practice approach articulated by
    the Supreme Court in Langnes.            E.g., American States Ins. Co. v.
    Nethery, 
    79 F.3d 473
    , 478 (5th Cir. 1996) (“Unfortunately, the
    franchisor did not file a notice of cross-appeal and has not shown
    why its failure to do so should be excused.”); Shipp v. General
    Motors Corp., 
    750 F.2d 418
    , 428 n.12 (5th Cir. 1985) (“The fact
    that plaintiff's counsel had commitments in another trial is not an
    exceptional    circumstance[]          producing     great   inequity    of    the
    extra-ordinary      nature    that     on   rare    occasions    has   induced   a
    reviewing court to afford relief to appellees who did not file a
    cross-appeal." (internal quotations and alterations omitted));
    French v. Estelle, 
    696 F.2d 318
    , 320 (5th Cir. 1982) (refusing to
    ignore clear     violation      of   criminal      defendant’s    constitutional
    rights and holding that the failure to file a cross-appeal did not
    preclude   review    of   the   constitutional        claim).      Instead,    the
    23
    dramatic about face embraced by the majority is supported with the
    indisputable but immaterial axiom that an initial notice of appeal
    is both mandatory and jurisdictional, and the fact that the printed
    rule does not distinguish between an appeal and a cross-appeal.
    Besides those two points, the majority’s conviction that we have no
    jurisdiction is supported only by the parties’ concession that this
    is so.
    While I recognize that stare decisis is not an “inexorable
    command,” I believe there are some very good and justifiable
    reasons for adhering to our prior determination of this issue in
    Marts v. Hines.    When we abandon our own precedent, we convey the
    message that our prior ruling was in error.   Planned Parenthood v.
    Casey, 
    112 S. Ct. 2791
    , 2815 (1992).    Frequent reconsideration of
    difficult issues may tax public confidence in the Court’s good
    faith and discourage respect for the binding effect of existing
    precedent.   
    Id.
       As stated by the Supreme Court:
    There is a limit to the amount of error that can
    plausibly be imputed to prior Courts.      If that limit
    should be exceeded, disturbance of prior rulings would be
    taken as evidence that justifiable reexamination of
    principle had given way to drives for particular results
    in the short term. The legitimacy of the Court would
    fade with the frequency of its vacillation.
    
    Id.
       In addition, there are no prudential or pragmatic reasons to
    overrule our prior precedent in Marts v. Hines.      The Supreme Court
    has articulated a number of factors that should inform the decision
    to overrule prior precedent.    Those factors include (1) “whether
    24
    related principles of law have so far developed as to have left the
    old rule no more than a remnant of abandoned doctrine,” and (2)
    “whether the rule has proven to be intolerable simply in defying
    practical workability.”          
    Id. at 2808
    .
    Neither    of     those    two   factors      suggest      a     need     for
    reconsideration of Marts v. Hines.                 Whether the cross-appeal
    requirement may be excused in an appropriate case continues to
    generate a conflict both between and within our sister circuits.
    Compare, e.g., International Ore & Fertilizer Corp. v. SGS Control
    Servs., Inc., 
    38 F.3d 1279
     (2d Cir. 1994) and EF Operating Corp. v.
    American Bldgs., 
    993 F.2d 1046
     (3d Cir. 1993) with Texport Oil Co.
    v.    M/V   Amolyntos,   
    11 F.3d 361
         (2d   Cir.   1993)   and    Reich    v.
    Occupational Safety & Health Review Comm’n, 
    998 F.2d 134
     (3d Cir.
    1993).      Surely there can be no argument that our interpretation of
    the      conflicting precedent less than one year ago is now so
    outdated that the judgment of the Court is a mere “remnant of an
    abandoned doctrine.”       Similarly, there is absolutely no indication
    that our Marts v. Hines rule is unworkable.                  To the contrary,
    allowing ourselves the flexibility to excuse the cross-appeal
    requirement when justice so requires has proven to work quite well.
    See, e.g., French, 696 F.2d at 320 (the Court has authority to
    consider an issue neither raised in the district court nor on
    appeal, and in the absence of a cross-appeal, when failure to do so
    will result in a miscarriage of justice or a violation of the
    25
    Court’s duty to apply to correct law); United States v. U.S. Steel
    Corp., 
    520 F.2d 1043
    , 1052 (5th Cir. 1975) (“If we assume, somewhat
    skeptically, that formal notice of cross-appeal is necessary to
    bring this class action order forward, we would hold nonetheless
    that the circumstances of this case are sufficient to bring the
    order within the principle that the rules themselves ought not be
    allowed to subvert the just result which 
    28 U.S.C. § 2106
     obliges
    every appellate court to reach in cases lawfully brought before it
    for review.” (internal quotations omitted)); see also Swarb v.
    Lennox, 
    92 S. Ct. 767
    , 773 (1972) (White, J., concurring) (“the
    Court may notice a plain error in the record that disposes of a
    judgment before it”). There is no justification for abandoning our
    recent en banc precedent in Marts v. Hines.   At the very least, we
    should not summarily change the rule without expressly saying to
    the bench and bar that prior precedent is being overruled and that
    a new bright-line rule will take its place.
    The jurisdictional approach, on the other hand, will interject
    unnecessary rigidity and complexity into many cases and prove a
    substantial impediment to our review in many more.         We will
    undoubtedly face cases where, as here, the appropriate relief to
    one party (in this case the government) depends upon whether the
    Court is empowered to afford relief to another party who failed to
    appeal (in this case Coscarelli).    We will be obligated to limit
    our review, not only by the scope of the notice of appeal and
    26
    briefing on appeal, but also the scope of the cross-appeal.                   If
    things are complex now, they will become hopelessly complex once we
    are required to run all arguments and potential remedies through
    that jurisdictional strainer.        And what will we pull up in the net?
    Only those unfortunate souls whom justice requires we accommodate,
    but our newly crafted rule excludes.
    Finally, I note that I have been unable to find any cases
    which use the cross-appeal requirement as a sword to deny a
    criminal defendant his constitutional rights.               Indeed, the cross-
    appeal requirement has typically been discussed in civil cases
    involving multiple defendants.        The power of government to deprive
    a citizen of his liberty as punishment for criminal conduct is the
    most    awesome   power    exercised       by   government.          Under   our
    constitutional system we have established a variety of restraints
    on that power: due process, presumption of innocence, right to jury
    trial, requirement of proof beyond reasonable doubt, representation
    by counsel, and appellate review.          In my view, full and complete
    compliance with the requirements of Rule 11 is absolutely essential
    because the act of pleading guilty to criminal conduct necessarily
    involves   the    waiver   of   at    least     some   of    these    important
    constitutional rights.      The majority opinion simply ignores the
    unique considerations applicable to criminal appeals.
    CONCLUSION
    27
    Even   though   the    government     timely   invoked   the    appellate
    jurisdiction of this Court by filing a notice of appeal; even
    though the government’s argument is inextricably intertwined with
    the validity of Coscarelli’s plea; even though the government
    brought forward as part of the appellate record the complete
    transcript of the Rule 11 hearing in this case and urged this Court
    to review that record; even though the errors, omissions and
    inadequacies of the Rule 11 hearing are plain and obvious on the
    face of the record; and even though the United States Supreme Court
    has never held that the failure of a criminal defendant to file a
    cross-appeal deprives the appellate court of the jurisdiction to
    address plain constitutional error; nevertheless, and in spite of
    these circumstances, this Court sitting en banc has determined that
    the ends of justice would be better served if our appellate
    jurisdiction is confined to only those matters as to which each
    party has expressly sought relief by filing an independent notice
    of cross-appeal.       My understanding of the rationale behind this
    decision is that we must not have "rogue judges" wandering through
    the records seeking grounds of error.                 As commendable as that
    philosophy may be in the abstract, in this case it elevates form
    over   substance   and       gives   determinative     effect   to    preventing
    imaginary misconduct in the future rather than addressing the
    reality of error in the case before us.
    I would adhere to our considered judgment in Marts v. Hines
    28
    that the cross-appeal requirement can be excused when compelling
    circumstances          so   require.   I    would   further   hold   that   the
    constitutional errors infecting Coscarelli’s plea to the money
    laundering object made the basis of the government’s appeal are
    sufficient to justify excusing the cross-appeal requirement in this
    case.      Finally, I would reinstate the original panel’s holding in
    this case, which would require imposition of the money laundering
    guideline on remand if and only if a valid conviction, free from
    constitutional defect, was entered as to that object on remand.
    Recognizing that the majority has chosen another path, I conclude
    with the hope that the district court, which can remedy the
    constitutional error we find we lack jurisdiction to review, will
    entertain an appropriately phrased motion to vacate the guilty plea
    and take whatever steps are required to ensure that any subsequent
    guilty plea which Coscarelli makes will comport in all respects
    with the mandates of Rule 11.          Such a course will not only work
    substantial justice, but may well render the prosecution of further
    appeals and collateral attacks unnecessary.             That is, after all,
    what the panel majority tried to do more than one year ago in the
    panel opinion.
    I respectfully dissent.
    g:\opin\96-20264.ebd                   29
    

Document Info

Docket Number: 96-20264

Filed Date: 8/17/1998

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (24)

Texport Oil Co., Cross-Appellee v. M/v Amolyntos, Its ... , 11 F.3d 361 ( 1993 )

international-ore-fertilizer-corp-plaintiff-appellee-cross-appellant-v , 38 F.3d 1279 ( 1994 )

United States v. George S. (Joe) Corbett , 742 F.2d 173 ( 1984 )

11-fair-emplpraccas-553-10-empl-prac-dec-p-10436-united-states-of , 520 F.2d 1043 ( 1975 )

fed-carr-cas-p-83829-ef-operating-corporation-ta-west-motor-freight , 993 F.2d 1046 ( 1993 )

robert-reich-secretary-of-labor-united-states-department-of-labor-in-no , 998 F.2d 134 ( 1993 )

American States Insurance Company v. Mary Jane Nethery , 79 F.3d 473 ( 1996 )

United States v. Robert Rolando Guerra , 94 F.3d 989 ( 1996 )

United States v. Gary Lanier Watch , 7 F.3d 422 ( 1993 )

United States v. Mario Bernal , 861 F.2d 434 ( 1988 )

Sidney Marts v. Phillip Hines , 117 F.3d 1504 ( 1997 )

terry-wayne-stockstill-v-petty-ray-geophysical-division-of-geosource , 888 F.2d 1493 ( 1989 )

United States v. Elias Gomez Rivera , 898 F.2d 442 ( 1990 )

United States v. Devon Roy Whyte , 3 F.3d 129 ( 1993 )

SWARB Et Al. v. LENNOX Et Al. , 92 S. Ct. 767 ( 1972 )

Langnes v. Green , 51 S. Ct. 243 ( 1931 )

Morley Co. v. Md. Casualty Co. , 57 S. Ct. 325 ( 1937 )

United States v. Curley Adams, Jr. , 106 F.3d 646 ( 1997 )

Holly Shipp v. General Motors Corporation , 750 F.2d 418 ( 1985 )

United States v. Robinson , 80 S. Ct. 282 ( 1960 )

View All Authorities »