10-4552
United States v. Moses
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 20th day of October, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JON O. NEWMAN,
9 GERARD E. LYNCH,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 10-4552
17
18 RICHARD E. MOSES, JR., AKA DICKY
19 MOSES,
20 Defendant-Appellant.
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22
23 FOR APPELLANT: Arza Feldman, Uniondale, New
24 York.
25
26 FOR APPELLEES: Paul J. Van de Graaf, Heather E.
27 Ross, Assistant United States
28 Attorneys, for Tristram J.
29 Coffin, United States Attorney
30 for the District of Vermont,
31 Burlington, Vermont.
1
1 Appeal from a judgment of the United States District
2 Court for the District of Vermont (Murtha, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Richard E. Moses, Jr. appeals from a judgment of
9 conviction, following a guilty plea to one count of
10 conspiracy to distribute more than five kilograms of
11 cocaine, one count of conspiracy to use and carry a firearm
12 during and in relation to a drug trafficking crime, and one
13 count of attempting to kill a witness. We assume the
14 parties’ familiarity with the underlying facts, the
15 procedural history, and the issues presented for review.
16
17 Moses appeals the district court’s denial of his motion
18 to withdraw his guilty plea. Moses sought to withdraw on
19 the ground that the trial judge impermissibly participated
20 in plea discussions in violation of Federal Rule of Criminal
21 Procedure 11(c)(1). Moses also argues that the trial judge
22 imposed an unreasonable sentence in retaliation for Moses’
23 motion to withdraw his guilty plea. Neither contention has
24 merit.
25
26 [1] “A defendant may withdraw a plea of guilty . . .
27 after the court accepts the plea, but before it imposes
28 sentence if . . . the defendant can show a fair and just
29 reason for requesting the withdrawal.” FED. R. CRIM. P.
30 11(d)(2)(B). When a defendant alleges that a procedural
31 violation should permit withdrawal, the court may assess the
32 merits of the defendant’s argument. If the argument is
33 without merit, the defendant has not shown a “fair and just
34 reason.” Id.; see United States v. Schmidt, 373 F.3d 100,
35 103 (2d Cir. 2004).
36
37 Moses argues that comments made by the district court
38 during sidebar colloquies on August 7 and August 8, 2008
39 violated RULE 11(c)(1) and coerced Moses to plead guilty.
40 However, the rule against court participation in plea
41 discussions “does not establish a series of traps for
42 imperfectly articulated oral remarks.” United States v.
43 Paul, 634 F.3d 668, 673 (2d Cir. 2011) (quoting United
44 States v. Frank, 36 F.3d 898, 903 (9th Cir. 1994)). We
45 therefore consider the court’s comments in context.
46
2
1 Addressing Moses’ attorney at sidebar, the court said,
2 “I think the way this trial is going he’s got some problems.
3 If other witnesses are going to testify in a similar manner
4 to the witnesses I’ve seen so far you’ve got some real
5 problems here.” The court also remarked in reference to a
6 possible plea offer, “15 years is a lot of years . . . . But
7 life is, that’s, as you know, many years.” The context of
8 these comments--and others cited by Moses--makes clear that
9 their purpose and effect was not to pressure Moses to plead
10 guilty: It was to ensure that Moses’ attorney was aware of
11 the prosecution’s plea offers and was communicating them to
12 his client. The defense attorney was Moses’ fourth, and the
13 record of the sidebar suggests counsel was unaware that the
14 prosecution had made plea offers.
15
16 In any event, RULE 11 violations are subject to
17 harmless error analysis. See Paul, 634 F.3d at 673-74.
18 Here, the court made the comments at a sidebar with the
19 prosecutor and Moses’ defense attorney. There is no
20 evidence that these comments were relayed to Moses or that
21 they affected his decision to plead guilty.
22
23 [2] Moses argues that the court imposed a twenty-five
24 year sentence in retaliation for his motion to withdraw his
25 guilty plea. However, the plea agreement that Moses signed
26 stipulated a term of imprisonment of at least twenty years
27 and not more than twenty-five years. Moses presents no
28 evidence that the court sentenced him to the higher number
29 out of vindictiveness or that the sentence was otherwise
30 unreasonable.
31
32 Finding no merit in Moses’ remaining arguments, we
33 hereby AFFIRM the judgment of the district court.
34
35
36 FOR THE COURT:
37 CATHERINE O’HAGAN WOLFE, CLERK
38
3