United States of America, Plaintiff-appellee, v. Dennis Ray Bell, Defendant-appellant, 776 F.2d 965 (11th Cir. 1986)

Dennis Ray Bell was convicted of conspiracy to import marijuana in violation of 21 U.S.C. §§ 952(a), 963 (1982) and conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1), 841(b) (6), 846 (1982) after pleading guilty to these offenses. In this direct appeal, Bell complains of the trial court's failure to comply with Fed. R. Crim. P. 11(c) (1) in accepting Bell's guilty plea, the denial of Bell's motion to dismiss the indictment, the denial of various post-trial motions, and the eight year prison sentence Bell received. We disagree with Bell's allegations of error and find that the conviction and sentence should stand.

Norman Weir and Charles Kuylen were arrested on June 29, 1983 for conspiracy to import and distribute marijuana.¹  Their arrest was kept secret because they immediately became "confidential informants." As confidential informants, Weir and Kuylen agreed to cooperate with the Drug Enforcement Agency (the "DEA") and Agent Stephen Collins in the investigation of Bell and others involved in two marijuana conspiracies.

Bell was subsequently arrested on July 8, 1983, and charged by complaint with possession with intent to distribute a quantity of marijuana.²  Following Bell's arrest, his attorney Joel Dick met with Agent Collins on at least two separate occasions. During these meetings they discussed the charges against Bell that would be contained in the indictment, the fact that the indictment would be sealed for thirty days, and the possibility that Bell might provide the Government with information in exchange for a reduction or a dismissal of charges. Collins indicated that sealing the indictment would provide Bell with time to covertly cooperate with the Government should he decide to do so. Collins also informed Dick that Weir and Kuylen would be named as co-defendants in the indictment. Bell, Weir and Kuylen were indicted on July 13, 1983 for conspiracy to import and for conspiracy to possess and distribute marijuana. The indictment was sealed at the Government's request.

Thereafter, Bell approached Weir and Kuylen to inform them that they would be arrested in the near future.³  Bell suggested that Weir and Kuylen join him for a meeting scheduled with his attorney, Joel Dick, to decide what course of action the three should take. This meeting took place on July 14, 1983 and was recorded in its entirety by the Government.⁴  During the meeting, the three co-defendants discussed the type of information they might provide to the Government during plea negotiations. The question of whether Dick would represent Weir and Kuylen was also discussed, but remained unsettled at the conclusion of the meeting.⁵ 

On July 28, 1983, Bell, Weir and Kuylen met with Dick a second time to discuss the charges pending against them. This meeting was also recorded by the Government. During this meeting Dick recommended that Weir and Kuylen take a trip to Belize. The motive underlying Dick's suggestion was disputed by the parties⁶  and became the focus of a separate complaint charging Dick and Bell with obstruction of justice. References to Weir and Kuylen's retention of another attorney were also made during this meeting.

Later that morning, Bell and Dick attended the scheduled arraignment where they first learned that the indictment had been unsealed and that the indictment also named Weir and Kuylen. Thereafter, Dick and Bell were arrested and charged by complaint with obstruction of justice.

Bell filed numerous pre-trial motions in this case including a motion to dismiss the indictment. A hearing on several of the motions, including the motion to dismiss, was held January 31, 1984 before G. Kendall Sharp, United States District Judge for the Middle District of Florida. These motions were denied.

On February 21, 1984, Bell entered into a written plea agreement in which he agreed to enter a conditional⁷  plea of guilty to both counts in the indictment in the marijuana case. That same day, Judge Sharp presided over jury selection in the obstruction case.

One week later, on February 27, 1984, a jury trial in the obstruction case commenced before Richard B. Kellam, Senior District Judge for the Eastern District of Virginia.⁸  On February 29, 1984 the jury found Bell not guilty of either obstruction count. Subsequently, Bell moved to transfer his renewed motion to dismiss and to transfer his sentencing hearing from Judge Sharp to Judge Kellam. In support of this motion, Bell argued that Judge Kellam was in the best position to reconsider the motion to dismiss in that he presided at Bell's obstruction of justice trial. Judge Sharp denied the motion.

On April 4, 1984 Bell filed a motion to postpone sentencing pending receipt of transcripts in the obstruction of justice case and a motion to supplement the record in this case with the record from the obstruction of justice trial. Judge Sharp rescheduled the sentencing hearing for May 21, 1984 and granted the motion to supplement the record. A second motion to continue sentencing pending completion of the statement of facts was denied.

On May 21, 1984, Judge Sharp sentenced Bell to a period of incarceration of eight years and revoked his bond.

Bell raises the following points of error at the trial court level. First, Bell claims that there was a complete failure by the trial court to address a core concern of Fed. R. Crim. P. 11 when it accepted Bell's guilty plea. Bell argues that this failure to comply with Rule 11 requires that his guilty plea be set aside and the case remanded for another hearing at which he may plead anew. Second, Bell argues that the trial court erred when it denied the motion to dismiss. Third, Bell claims that the eight year sentence was improperly imposed because, among other things, the trial court failed to comply with Fed. R. Crim. P. 32. Bell argues that the mandatory language of the rule requires that the sentence be vacated. Finally, Bell claims that the trial court erred by denying his request to transfer his motion to dismiss and his sentencing to Judge Kellam and by denying his second motion to continue sentencing. After considering Bell's third and fourth claims of error, we find that they are without merit and warrant no further discussion. We consider the remaining two issues below.

A. Rule 11.

In United States v. Dayton,⁹  604 F.2d 931, 934 (5th Cir. 1979) (en banc), cert. denied, 445 U.S. 904, 100 S. Ct. 1080, 63 L. Ed. 2d 320 (1980), this court's predecessor made a "clear and definitive statement of how trial courts should conduct guilty plea hearings." Dayton recognized that three core concerns underlie Rule 11: (1) the guilty plea must be free from coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know the consequences of his plea. 604 F.2d at 939. A court's failure to address any one of these three core concerns requires automatic reversal. Id. (citing McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969)).

In this appeal, Bell claims that the district court "complete [ly]" failed to establish that he understood the nature of the charges against him. He argues that this failure requires automatic reversal and entitles him to replead. We disagree with Bell's assertion that the district court completely failed to establish Bell's understanding of the nature of the charges and find no violation of Rule 11.

It is well established that the nature of the inquiry required by Rule 11 will vary from case to case. McCarthy, 394 U.S. at 467 n. 20, 89 S. Ct. 1166, 1171 n. 20. Courts have declined to set forth a simple or mechanical rule for determining whether or not a defendant is informed of and understands the nature of the charges against him. Dayton, 604 F.2d at 937-938. See also McCarthy, 394 U.S. at 467 n. 20, 89 S. Ct. 1166, 1171 n. 20. Instead, this inquiry is committed to "the good judgment of the court, [and] to its calculation of the relative difficulty of comprehension of the charges and of the defendant's sophistication and intelligence." Dayton, 604 F.2d at 938 (footnote omitted).

In the present case, Bell had the benefit of a written plea agreement which clearly and concisely set forth the charges.¹⁰  The charges to which Bell pled guilty were "simple" ones. Accord Dayton, 604 F.2d at 942 (possession of marijuana with intent to distribute found to be a "simple charge"). Before accepting the guilty plea, the district court, at Bell's request, granted a recess to afford Bell the opportunity to read and to discuss the plea agreement with the three attorneys representing him at the hearing. Upon reconvening, after the recess, the court proceeded to inquire into Bell's educational and professional background:

THE COURT: What is your educational background?

THE DEFENDANT: I have two credits in college.

THE COURT: What is your trade or occupation?

THE DEFENDANT: Real estate.

Through this inquiry, we are satisfied that the district court established that Bell was a sophisticated and intelligent person who was fully able to understand the nature of the charges against him.¹¹  The court then moved on to inquire into the remaining two "core concern" areas of Rule 11.¹² 

After this colloquy between the court, Bell, and his counsel, the Government presented a factual basis for the guilty plea by calling Agent Collins to testify.¹³  Thereafter, in commenting upon Agent Collins' recitation of the facts, Bell's attorney stated:

I believe that recitation is exactly what the Government would offer as proof in this case, that it would support a conviction for conspiracy to import marijuana and a conviction for conspiracy to possess marijuana with the intent to distribute it, and we have no evidence to offer contrary to the proffered testimony by the Government.

The district court then accepted Bell's guilty plea.

In reaching our decision on the Rule 11 issue, we have given close attention to the facts of this case. As outlined above, we are presented with a situation where the charges were simple; the defendant, a sophisticated and intelligent person, was represented by three attorneys; and, finally, the defendant was given ample opportunity to discuss the charges and to read the written plea agreement during the proceeding. This case is unlike McCarthy where the Supreme Court was able to point out several specific, "conceivable" ways in which the defendant may have misunderstood the elements of the crime with which he was charged. See McCarthy, 394 U.S. at 471, 89 S. Ct. 1166, 1173; see also, Dayton, 604 F.2d at 936. In the present case, there is no conceivable way that Bell could have misunderstood the nature of the charges involved.

Admittedly, it would have been preferable for the district court to have read the indictment to Bell and thereafter given him the opportunity to ask questions about the indictment. See Dayton, 604 F.2d at 938. However, in this instance, to permit Bell to replead would be to raise form over substance. It is established that when reviewing a Rule 11 proceeding, " ' [m]atters of reality, and not mere ritual, should be controlling.' " McCarthy, 394 U.S. at 468 n. 20, 89 S. Ct. at 1171 n. 20 (quoting Kennedy v. United States, 397 F.2d 16, 17 (6th Cir. 1968), cert. denied, 394 U.S. 1018, 89 S. Ct. 1636, 23 L. Ed. 2d 43 (1969)). Consequently, based on the facts of this case, we find no violation of Rule 11.

B. Denial of the Motion to Dismiss the Indictment.

Bell also contends that the district court erred by denying his motion to dismiss. In support of this motion, Bell argues that the Government improperly interfered with the attorney-client relationship, in violation of the sixth amendment, by monitoring the meetings with his attorney, Joel Dick, and the two cooperating defendants, Weir and Kuylen. This unlawful intrusion, Bell claims, warrants dismissal of the indictment. We disagree.

It is undisputed that the standard enunciated in United States v. Melvin, 650 F.2d 641 (5th Cir. Unit B 1981)¹⁴  is applicable to the present case to determine whether the Government unlawfully interfered with the attorney-client relationship of Bell and Dick. In Melvin, the court stated that a communication is protected by the attorney-client privilege and protected from Government intrusion by the sixth amendment if it is (1) intended to remain confidential and (2) under the circumstances was reasonably expected and understood to be confidential. Id. at 645. Thus the relevant inquiry is not whether Bell expected his discussion with Dick, Weir and Kuylen to remain confidential, but rather, whether his expectation was reasonable.

The district court made explicit findings of fact on the question of the reasonableness of Bell's expectation of confidentiality at these meetings. The relevant facts are set forth below:

The facts indicate that after Dick's initial contact with Agent Collins on behalf of his client, Dick advised Bell of the impending indictments against Bell, Weir and Kuylen. Bell, whether on his own initiative or at Dick's urging, contacted Weir and Kuylen and suggested they meet. It is unclear whether Dick sought to represent all three for their collective benefit or merely to elicit from Weir and Kuylen any useful information he could extract from them while they were not accompanied by their attorney. At their meeting on July 14, 1983, neither attorney Dick nor his client, defendant Bell, inquired about Weir and Kuylen's arrangements for representation until the conversation was more than half concluded. Bell and Dick may have desired Weir and Kuylen's assistance, or hoped that Weir and Kuylen would acquiesce to a suggestion of the advantages of a common defense based upon Mr. Dick's legal experience and reputation; however, no inquiry was made to determine if Weir and Kuylen would also retain Mr. Dick as their counsel until much of the conversation about unrelated tangential criminal matters had been discussed among the four of them.

Until this point, neither Dick's nor or [sic] Bell's expectation that their conversation with Weir and Kuylen would remain confidential was reasonable. Thereafter, when Weir and Kuylen did not agree to become confederates for purposes of their collective defense, but merely suggested they were looking into other representation, Dick and Bell chose to continue further discussion at their peril.

United States v. Bell, No. 83-83-CR-ORL-18, slip op. at 6-7 (M.D. Fla . Feb. 23, 1984) (emphasis added).

The standard of review to be applied to the district court's factual findings is the "clearly erroneous" standard. See United States v. Penn, 721 F.2d 762, 765 (11th Cir. 1983) (it is generally agreed that in criminal cases the clearly erroneous standard should be applied to factual findings on matters other than guilt). After examining the record and the facts as set forth by the district court we hold that the district court's determination that Bell's expectation of privacy was unreasonable was not clearly erroneous. It was clear from the initial meeting between Bell, Dick, Weir and Kuylen that Weir and Kuylen had not yet retained Dick.¹⁵  Moreover, the next day, Weir indicated to Bell that he and Kuylen would probably be unable to retain Dick for financial reasons.¹⁶  During the second meeting with Bell and Dick, Weir and Kuylen clearly stated that they had retained another attorney to represent them. Nevertheless, Dick and Bell continued to discuss a defense strategy with Weir and Kuylen. Given these facts, we cannot say that the district court's findings were "clearly erroneous" with respect to Bell's expectations of confidentiality. As our predecessor court has held " [t]here is no confidentiality when disclosures are made in the presence of a person who has not joined the defense team, and with respect to whom there is no reasonable expectation of confidentiality." Melvin, 650 F.2d at 646 (emphasis deleted).¹⁷ 

Even assuming, for the sake of argument, that there was a violation of Bell's sixth amendment right to counsel, dismissal of the indictment would still be inappropriate absent demonstrable prejudice to the defendant. United States v. Morrison, 449 U.S. 361, 365, 101 S. Ct. 665, 668, 66 L. Ed. 2d 564 (1981). Thus for example, dismissal of an indictment was inappropriate where the motion was based solely upon the egregious behavior of the agents. Id. at 363, 101 S. Ct. at 667. See also Melvin, 650 F.2d at 643 (in Morrison the Supreme Court held that "there is no per se rule requiring dismissal of the indictment as the sanction for intrusion into the attorney-client relationship by government agents"). Moreover, even where the violation is deliberate, dismissal of the indictment as the sanction for governmental intrusion into the attorney-client relationship is inappropriate, absent prejudice. Morrison, 449 U.S. at 365, 101 S. Ct. at 668. "Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation...." Morrison, 449 U.S. at 364, 101 S. Ct. at 667. The proper approach is to identify and then neutralize the taint by suppressing the evidence or by ordering a new trial if the evidence has already been wrongfully admitted. Id. at 365, 101 S. Ct. at 668.

The district court specifically found that Bell's case was not prejudiced by Agent Collins' actions. United States v. Bell, No. 83-83-CR-ORL-18, slip op. at 7-8 (M.D. Fla . Feb. 23, 1984). We hold that the district court's finding of no prejudice to Bell's case is not clearly erroneous. First, the incriminating taped evidence was obtained after the institution of adversary proceedings.¹⁸  The indictment against Bell, therefore, was not based on information gathered by recording Bell's meetings with his attorney. Id., slip op. at 7. Second, the Government indicated that it would not introduce the recording of the July 14, 1983 conversation in the marijuana case. Id. Therefore, although we do not condone Agent Collins' behavior, we conclude that because Bell suffered no adverse impact as a result of the alleged sixth amendment violation, dismissal of the indictment is an inappropriate remedy.

In support of the motion to dismiss, Bell also contends that the Government, through a "promise" to his attorney to seal the indictment in the marijuana case for thirty days, caused such "substantial performance" by him that the Government should be estopped from denying the existence of a binding contract to dismiss this criminal prosecution. Therefore, Bell argues, dismissal is the only remedy that vindicates his due process rights.

In making this argument Bell relies, in part, on Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). Bell's reliance on that case is misguided. Santobello held that a defendant's due process rights were violated when the prosecutor, contrary to the terms of a previously negotiated plea agreement between the defendant and the state, recommended to the judge that the maximum sentence be imposed. Integral to the Court's decision was the fact that the defendant entered his guilty plea on condition that the prosecutor make no recommendation as to a sentence. Id. at 262, 92 S. Ct. at 498. Under those circumstances, the Court held "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id. Unlike the defendant in Santobello, Bell did not plead guilty in reliance on any promises made by the Government. The District Court established that Bell's plea was entered without reliance on any "promises or inducements," other than those contained in the written plea agreement.

Moreover, Bell's reliance on the principle of "scrupulous fairness" in plea bargain negotiations, as enunciated in Johnson v. Mabry, 707 F.2d 323, 330 (8th Cir. 1983), rev'd, 467 U.S. 504, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984) is also misplaced. In reversing the Eighth Circuit's decision in Mabry, the Supreme Court stated " [a] plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest." --- U.S. at ----, 104 S. Ct. at 2546 (footnote omitted). In Mabry, the prosecutor withdrew an offer of a plea bargain after the defendant had communicated his acceptance of that offer but before the defendant had entered his guilty plea with the court. Ultimately, the defendant did plead guilty to a second offer made by the prosecutor. Finding that the defendant's due process rights had not been violated, the Supreme Court stated " [i]t is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired." Id. at ----, 104 S. Ct. at 2547. See also Spann v. Wainwright, 742 F.2d 606 (11th Cir. 1984) (a defendant's mere acceptance of a prosecutor's proposed plea bargain does not create a due process right to have the bargain specifically enforced). Insofar as Bell does not dispute the voluntary nature of his guilty plea, we conclude that the denial of the motion to dismiss was proper.

For the foregoing reasons, Bell's conviction and sentence are

AFFIRMED.