In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2803
United States of America,
Plaintiff-Appellee,
v.
Michael L. Morris,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98 CR 213--Charles N. Clevert, Judge.
Argued May 8, 2001--Decided August 13, 2001
Before Bauer, Posner, and Coffey, Circuit
Judges.
Bauer, Circuit Judge. Michael Morris
comes before the court a second time
seeking to withdraw his guilty plea and
asking the court to strike from his
sentence a district court order that he
may not contact the victim of his crime
or her immediate family while he is in
prison. We remand Morris’s request to
withdraw his guilty plea and affirm the
no-contact order.
I. Background
Because this is Morris’s second appeal,
we outline the necessary (and somewhat
unusual) case history, but leave
interested readers to find further
discussion in United States v. Morris,
204 F.3d 776 (7th Cir. 2000). On the
advice of Lew Wasserman, his attorney,
Morris pled guilty to two counts of
traveling in interstate commerce with the
intent to engage in a sexual act with a
juvenile in violation of 18 U.S.C. sec.
2423(b). Morris claims to have signed the
plea agreement relying on misinformation
Wasserman provided him about its effect.
Specifically, Morris recalls assurances
from Wasserman that the guilty plea would
not waive his ability to appeal the
admissibility of evidence the police
found based on information they obtained
from Morris after he invoked his right to
counsel. The written plea agreement did
not expressly preserve this ground. The
district judge accepted Morris’s guilty
plea and, for reasons not relevant to
this appeal, sua sponte and without
notice to Morris imposed a five-level
upward departure.
Wasserman appealed the sentence
enhancement but made no mention of the
evidentiary issue or the withdrawal of
Morris’s guilty plea. After Wasserman
filed the appellate brief, Morris
petitioned the court to file a pro se
supplemental brief. We allowed Morris to
dismiss Wasserman as his attorney and to
address the court directly. Morris argued
cursorily in the brief that he should be
permitted to withdraw his guilty plea
because Wasserman provided ineffective
assistance in part by misrepresenting the
ramifications of the guilty plea.
When we decided this appeal, we
reconsidered the wisdom of allowing
Morris to dismiss his counsel and to file
a pro se brief. To avoid prejudice to
Morris, we considered both his and
Wasserman’s arguments. Wasserman’s brief
persuaded us to remand the case to a
different district judge for the limited
purpose of reconsidering the five-level
upward departure. We reappointed
Wasserman to represent Morris on remand.
We did not address Morris’s motion to
withdraw his guilty plea, stating that it
had "no bearing on any issue before this
court." Morris, 204 F.3d at 780.
Accordingly, we did not discuss any of
the ways in which Morris claimed that
Wasserman rendered ineffective
assistance.
On remand, Wasserman successfully argued
the sentencing issue. He did not move to
withdraw Morris’s guilty plea, and Morris
again filed a pro se motion to that
effect. Morris reiterated that he should
be allowed to withdraw his plea because
Wasserman provided ineffective
assistance. This time, however, Morris
fleshed out his theory and argued that
his guilty plea was not knowing and
intelligent because Wasserman misinformed
him about the effect the plea would have
on his right to appeal. The judge
admonished Morris to communicate with the
court only through Wasserman, but decided
to consider Morris’s motion anyway
because Wasserman could not, without an
inherent conflict of interest, argue that
due to his misrepresentations, Morris’s
guilty plea was not knowing and
intelligent. Although he recognized the
conflict of interest, the judge took no
steps to explore or alleviate it because
he believed that Morris’s motion to
withdraw the guilty plea was not properly
before him. At the re-sentencing hearing,
the judge found that Morris’s motion to
withdraw the guilty plea was outside the
scope of the remand and that he therefore
lacked jurisdiction to rule on it. But,
for the sake of thoroughness, he
addressed it, explaining to Morris that
the motion was futile because (1) the
plain language of the plea agreement did
not preserve the appeal, (2) Morris told
the original district judge under oath
that no one made promises to him not
contained in the plea agreement to induce
him to plead guilty, and (3) the judge
believed that Morris fabricated
Wasserman’s purported ineffective
assistance.
Also at the re-sentencing hearing, the
prosecution presented evidence that while
imprisoned, Morris persisted in
contacting his victim by calling her
home, asking his friends to relay
messages to her, and writing her a
letter. The court heard testimony from
the victim’s mother, step-father, and
grandmother concerning how the crime
itself and Morris’s repeated attempts to
contact the victim affected her. In
response, the district court imposed a
condition on Morris’s sentence; namely,
that he avoid all contact with his victim
and her family while he was in prison.
This condition applied both to Morris’s
federal sentence and to his consecutive
seven-year state sentence.
II. Discussion
A. Ineffective Assistance of Counsel
Morris claims that he was denied
effective assistance of counsel on remand
when he attempted to withdraw his guilty
plea and requests that we remand the
issue so he can have the benefit of
effective assistance. The government
argues that the effective assistance
argument is irrelevant because the
withdrawal of Morris’s guilty plea was
not properly before the district court on
remand.
When the district court addresses a case
on remand, the "law of the case"
generally requires it to confine its
discussion to the issues remanded. See
United States v. Story, 137 F.3d 518, 520
(7th Cir. 1998) ("Generally, under the
law of the case doctrine, ’when a court
decides upon a rule of law, that decision
should continue to govern the same issues
in subsequent stages of the same case.’")
(citations omitted); see also United
States v. Thomas, 11 F.3d 732, 736 (7th
Cir. 1993). But see United States v.
Buckley, 251 F.3d, 668, 669-70 (7th Cir.
2001) (stating that courts retain
strictly limited discretion to revisit
previously decided issues in some special
circumstances); United States v. Aramony,
166 F.3d 655, 661 (4th Cir. 1999)
(listing special circumstances). The law
of the case doctrine, however, applies
only to issues that have been resolved,
generally leaving a district judge free
to address issues that the appellate
court left undecided. See Moore v.
Anderson, 222 F.3d 280, 283 (7th Cir.
2000); Aramony, 166 F.3d at 661. This
power must be construed in harmony with
our familiar exhortation that parties
cannot use the accident of remand as an
opportunity to reopen waived issues. See
United States v. Jackson, 186 F.3d 836,
838 (7th Cir. 1999) (citations omitted).
Therefore, on remand and in the absence
of special circumstances, a district
court may address only (1) the issues
remanded, (2) issues arising for the
first time on remand, or (3) issues that
were timely raised before the district
and/or appellate courts but which remain
undecided.
The withdrawal of the guilty plea
argument clearly does not fit into either
of the first two categories. The closer
question is whether Morris’s motion to
withdraw his guilty plea could be
categorized as a timely raised issue that
the appellate court did not decide. The
Federal Rules of Appellate Procedure
specify that an adequately briefed
argument must "contain an argument
consisting of more than a generalized
assertion of error, with citations to
supporting authority." Anderson v.
Hardman, 241 F.3d 544, 545 (7th Cir.
2001) (citations omitted); see Fed. R. App.
P. 28(a)(9). We construe pro se appeals
liberally, but we will not hesitate to
dismiss them if they are not adequately
presented. See, e.g., Anderson, 241 F.3d
at 545.
During his initial appeal, Morris
petitioned to withdraw his plea agreement
based on his perception that Wasserman
rendered ineffective assistance by
"misrepresent[ing] the guilty plea and
the ramifications thereof." Morris’s
brief is very cursory and he provides no
legal support for his position, therefore
coming exceptionally close to meriting a
dismissal for failure to comply with
Federal Rule of Appellate Procedure
28(a)(9). However, we are able to
understand Morris’s argument that his
guilty plea was not knowing and
intelligent and we conclude that Morris
has saved this argument from being
considered waived./1 See, e.g., Smith
v. Town of Eaton, Indiana, 910 F.2d 1469,
1471 (7th Cir. 1990) (holding that a pro
se appellant’s brief was adequate because
the court was able to "glean, albeit
faintly--the basic facts and general
lines of argument from the briefs and
record . . . ."); McCottrell v. E.E.O.C.,
726 F.2d 350, 351 (7th Cir. 1984)
(declining to dismiss a pro se brief
which, "though woefully inadequate, sets
forth a discernible, albeit unsupported,
argument."). Because we have held that
Morris preserved the argument and as we
did not address it during Morris’s first
appeal, it falls within the third
category of issues the district court may
properly address on remand.
We now consider whether Morris suffered
the effects of ineffective assistance of
counsel in his attempt to withdraw his
guilty plea. Morris argues that there was
a conflict of interest between
Wasserman’s motivation to protect himself
from a malpractice claim and Morris’s
position that, when he pled guilty, he
relied on Wasserman’s false assurances
that the plea would not impact his
ability to appeal an evidentiary issue.
On remand, the district judge forced
Morris to choose between representing
himself pro se or allowing Wasserman to
make the withdrawal of guilty plea
argument, and Morris claims this deprived
him of effective assistance of counsel.
To determine whether Wasserman rendered
ineffective assistance, we consider
whether his performance was outside the
range of professional, competent
assistance and if so whether it
prejudiced the legal outcome of the case.
See United States v. Strickland, 466 U.S.
688, 690-91 (1984). Morris can
demonstrate a conflict of interest in one
of two ways. First, if the trial judge
was unaware of the conflict of interest,
Morris may prevail if he can show that
the conflict adversely affected
Wasserman’s performance. See Lipson v.
United States, 233 F.3d 942, 945 (7th
Cir. 2000). Second, Morris may prevail if
the district judge knew a potential
conflict of interest existed, but made no
inquiry into it. See id.
Morris has shown that an actual conflict
of interest existed under the second
test. Wasserman would seem to have a
self-interest in protecting himself from
a malpractice claim. However, Morris’s
argument was predicated on Wasserman’s
purportedly false advice. The judge was
aware of this potential conflict. When
the judge agreed to hear Morris’s motion
to set aside the guilty plea for a
hearing he stated:
[O]rdinarily, [a motion to set aside a
guilty plea] should be filed through
defense counsel. However, Morris’s motion
is predicated, among other things, on a
number of alleged failings by his counsel
in connection with his plea agreement.
Because counsel would have an obvious
conflict of interest in filing such a
motion, that motion shall be addressed .
. . .
However, the judge did not inquire into
or remedy the conflict. At the hearing,
Morris requested different counsel, but
the judge refused to appoint one or to
allow Morris time to find a new lawyer.
Morris was forced against his wishes to
choose between allowing Wasserman to
speak for him or arguing the motion pro
se. In situations such as Morris’s,
courts have presumed prejudice. See
United States v. Ellison, 798 F.2d 1102,
1107-08 (7th Cir. 1986) (finding
prejudice due to an actual conflict of
interest that occurred when counsel was
not able to pursue his client’s best
interest free from concern about
potential self-incrimination); Lopez v.
Scully, 58 F.3d 38, 41 (2d Cir. 1995)
(presuming prejudice when arguing in
favor of his client’s motion to withdraw
his guilty plea would force the attorney
to admit a serious ethical breach and
subject him to liability for
malpractice). We hold that Morris has
demonstrated a possible denial of
effective assistance of counsel, and we
therefore remand this case for a hearing
to establish whether Morris should be
allowed to withdraw his guilty plea on
the basis that Wasserman falsely led him
to believe that the plea would not waive
his ability to appeal the admissibility
of evidence issue. In light of this
disposition, we do not address Morris’s
argument that the judge abused his
discretion by denying Morris’s motion to
withdraw his guilty plea.
B. No-Contact Order
Morris last contends that the district
court overstepped its sentencing
authority when it conditioned his
sentence with the no-contact order. The
district court lacks the authority to
impose a sentence that is not
specifically authorized by statute. See
United States v. Sotelo, 94 F.3d 1037,
1040 (7th Cir. 1996) (citations omitted).
The statute under which Morris pled
guilty, 18 U.S.C. sec. 2423(b), empowers
judges to impose imprisonment for not
more than 15 years and/or a fine. Neither
party nor our own research has led us to
any statutory authority that empowers the
court to impose a no-contact order as
part of a sentence for traveling in
interstate commerce with the intent to
engage in a sex act with a minor.
However, our inquiry does not stop with
the sentencing provision. The court
possesses broad powers to "protect the
administration of justice from ’abuses,
oppression and injustice.’" Wheeler v.
United States, 640 F.2d 1116, 1123 (9th
Cir. 1981). The government asks us to use
this power to protect a potential
witness, Morris’s child victim, by
upholding the condition on Morris’s
sentence. The power to protect the
administration of justice "must be
exercised with circumspection. It may be
invoked only when . . . the defendant’s
conduct presents . . . significant
interference with the [administration of
justice]." Id. at 1124 (quoting Bitter v.
United States, 398 U.S. 15, 16 (1967)).
We proceed with caution.
Cases in which courts use their inherent
power to issue no-contact orders are rare
and the factual situation before us is
particularly unusual. We can find only
one circuit case where a court used a no-
contact order to protect a witness after
the defendant had been adjudicated
guilty. See Wheeler, 640 F.2d at 1123-25;
see also United States v. Sotelo, 94 F.3d
at 1040-41 (declaring that the court had
no power to prohibit an imprisoned
defendant from communicating with the
general public, but expressly stating
that the question of whether the court
had the power to prohibit the defendant
from contacting his victim was not before
the court). In Wheeler, after the trial
was over, the district court applied a
no-contact order to protect a witness
against a defendant who threatened to
call the witness’s family and employer to
reveal discrediting information about
her. See Wheeler, 640 F.2d at 1118. The
no-contact order prohibited the defendant
from contacting 10 individuals. See id.
Although it remanded the case on other
grounds, the Ninth Circuit held that the
district court’s power to protect the
administration of justice, which
justified protecting witnesses and jurors
before and during trial, also authorized
courts to use no-contact order to protect
witnesses after the close of trial. See
id. at 1123-24 ("By protecting the
witness after trial, the court is
encouraging that witness, and other
potential witnesses, to come forward and
provide information helpful to the
implementation of justice.").
The facts in our case are slightly
different. The defendant was adjudicated
guilty without a trial, so his victim did
not testify. Nevertheless, because Morris
is endeavoring to withdraw his guilty
plea, a future trial is possible and the
victim would be a most important witness
for the prosecution. Morris has
perpetuated his harmful influence in the
victim’s life by persistently contacting
her indirectly by relaying messages
through his friends, and directly
bytelephone and a letter. The purpose of
all Morris’s communications has been to
prolong his presence in the victim’s life
and to insistently communicate his desire
to have an intimate relationship with her
in the future, the very type of contact
for which he was incarcerated. The victim
is particularly vulnerable because she is
a child. The purpose of the no-contact
restriction is not to punish Morris, but
to protect his victim and her family from
further harassment, and reduce the
possibility of creating a reluctant
witness. We emphasize that the use of no-
contact orders must be reserved for rare
and compelling circumstances, and we find
such circumstances in this case. The
district judge properly exercised his
power to protect the administration of
justice in granting a no-contact order.
We REMAND this matter so that the
district court may determine after a
hearing whether or not Morris’s guilty
plea was based on erroneuos advice by
Wasserman that the evidentiary ruling was
appealable by Morris after the plea
agreement and, if so, whether Morris
should be allowed to withdraw his plea
and stand trial. We AFFIRM the district
court’s no-contact order.
FOOTNOTE
/1 Lest we be seen as contradicting our holding in
United States v. Elizalde-Adame, No. 01-1058,
slip op. (7th Cir. August 13, 2001) we hasten to
distinguish the two. Most issues must be raised
before the district court or they will be consid-
ered waived. However, petitions to withdraw plea
agreements are one of the few exceptions to this
rule. Defendants such as Morris may properly make
such motions for the first time on appeal without
waiving the issue. See Fed. R. Crim. App. 32(e).
In contrast to Morris, Elizalde-Adame appealed
the denial of her motion to suppress evidence,
despite her unconditional guilty plea and raised
other new arguments in her reply brief which we
predictably refused to address. She did not move
to withdraw her plea.