In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1854
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARAYL DAVIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cr-0025-1 — Robert W. Gettleman, Judge.
____________________
ARGUED JANUARY 6, 2022 — DECIDED MARCH 29, 2022
____________________
Before SYKES, Chief Judge, and ROVNER and SCUDDER,
Circuit Judges.
ROVNER, Circuit Judge. Darayl Davis created, promoted,
and operated a complex multi-state scheme to defraud money
from people who entrusted him to place their funds in safe
and lucrative investments. Rather than investing the money
as promised, Davis used it to fund a lavish lifestyle, using the
money on entertainment, exclusive clubs, lavish vacations,
mansions, and luxury car rentals. All told, over the course of
2 No. 21-1854
about twenty years, his victims lost approximately $5 million.
As is almost always the case with ponzi schemes and their ilk,
some victims’ lives were devastated by the loss of funds. And,
as is also often the result of these schemes, it eventually un-
raveled and resulted in an indictment. The government
charged Davis with nine counts of mail and wire fraud (18
U.S.C. §§ 1341 & 1343), one count of aggravated identity theft
(18 U.S.C. § 1028A) and six counts of engaging in monetary
transactions in property derived from unlawful activity (18
U.S.C. § 1957). R. 45. Davis was released on bond pending a
spring 2020 trial. 1
As we now know too well, havoc reached the world that
spring, and the day before Davis’ scheduled pre-trial confer-
ence, the district court issued an order creating emergency
procedures to address health and safety in light of the begin-
ning of the Covid-19 pandemic. The court’s First Amended
General Order 20-0012 emphasized that the court remained
open for criminal proceedings that could not be delayed. All
other non-emergent proceedings, including Davis’ trial, were
continued until April 6, 2020. When hopes for a short-lived
pandemic did not come to fruition, on March 30, 2020, the
court entered a Second Amended General Order 20-0012 post-
poning plea hearings until after May 4, 2020. The order pro-
vided that parties in individual cases could request plea hear-
ings held by video or telephone conference pursuant to the
2020 Coronavirus Aid, Relief, and Economic Security Act
(CARES Act), § 15002(b)(2)(A), Pub. L. No. 116-136, 134 Stat.
1Approximately one month after Davis was released on bond, his bond
was revoked for violating conditions of release. After spending approxi-
mately twenty-two months in custody, he was again released on bond and
was out on release at the time of the relevant events.
No. 21-1854 3
281 (2020), which allows for such hearings during the Covid-
19 pandemic if certain preconditions are met. Throughout the
relevant time frames the district court continued to issue Gen-
eral Orders with substantially similar provisions.
Over the next several months, the parties negotiated a plea
agreement, and the court agreed to exclude that time under
the Speedy Trial Act, 18 U.S.C. § 3161, et. seq. During a status
hearing on September 24, 2020, when Davis’ counsel stated
that the parties would be ready for a change of plea hearing
in 30-45 days, the court asked if Davis would agree to conduct
the plea by telephone conference. Davis’ counsel stated “Yes,
Your Honor, that’s agreeable.” R. 187 at 3–4. Davis, who was
telephonically present for the hearing did not object. Nor did
he object when the district court issued the following order:
The government and the Defendant Darayl Da-
vis have agreed to proceed with a telephone-
conference change of plea hearing.
The Court hereby orders that the change of plea
hearing set for November 10, 2020 proceed by
telephone conference. This Order memorializes
the required findings under the CARES Act
§ 15002(b)(2)(A), Pub. L. No. 116-136, 134 Stat.
281.
By order dated June 12, 2020, the Chief Judge
found that felony pleas and felony sentencings
cannot be conducted in person in this district
without seriously jeopardizing public health
and safety.
Under Section 15002(b)(2)(A), the assigned
judge finds that further delay of this hearing
4 No. 21-1854
would cause serious harm to the interests of jus-
tice, because the Defendant wishes to advance
the case so that he may accelerate the designa-
tion to a Bureau of Prisons facility, which offers
more programming and more expansive inmate
resources.
R. 143.
The notification of docket entered in the record that day
setting the plea hearing date also stated that the hearing
would be held telephonically. R. 142. The plea hearing was
reset on several occasions at the request of the parties as they
continued plea negotiations. Each time the order indicated
that the hearing would proceed telephonically. R. 144, 145,
146, 147. Davis never objected to the original minute order or
any of the four that followed, each of which indicated that the
hearing would be held by telephone.
On January 19, 2021, when the parties finally conferenced
by telephone for the change of plea hearing, Davis was pre-
sent in his lawyer’s office and greeted the court. R. 184 at 2.
The district court assured Davis, “[i]f there’s any problem, just
let us know, and … we’ll deal with them,” and he reminded
him “you may consult with your lawyer at any time during
these proceedings for any reason at all. So if you have any
questions or concerns or anything like that, just let us know,
and you and Mr. Cheronis can speak in private.” R. 184 at 3.
The district court, at the government’s request, also confirmed
that Davis was agreeing to hold the plea hearing telephoni-
cally.
GOVERNMENT: I might also just ask, I know
the Court previously entered an order on
No. 21-1854 5
September 24th authorizing that the previously
scheduled plea hearing be conducted by tele-
phone but just wanted to confirm that that’s still
Mr. Davis’s and the parties’ intention and then
have that order updated for today’s date.
THE COURT: All right. Is that agreeable, Mr.
Cheronis?
MR. CHERONIS: Yes, Your Honor. We’ve dis-
cussed it with Mr. Davis and agree to proceed
via telephone pursuant to the CARES Act.
THE COURT: Okay. Thank you.
R. 184 at 4. There is no question that the court and government
went out of their way to make sure that Davis had consented
to the telephonic hearing, both on September 24, when the
agreement was made to proceed telephonically, and on Janu-
ary 19, before the hearing began.
Davis did not have any complaints regarding the tele-
phonic plea hearing that day or at any other time until this
appeal. Pursuant to his plea agreement with the government,
Davis pleaded guilty to one count of mail fraud (Count 6) un-
der 18 U.S.C. § 1341. The government agreed to dismiss all of
the remaining eight counts, and in exchange, Davis signed a
plea agreement that included a provision in which he waived
his appellate rights.
After the court accepted Davis’ plea and entered a finding
of guilt, the district court judge engaged in a back and forth
with Davis’ counsel about scheduling the sentencing hearing,
including a discussion about whether Davis might agree to a
sentencing hearing by video conference. Davis’ counsel, ru-
minating on the question stated, “I guess the issue is just
6 No. 21-1854
whether or not they’re going to call witnesses. … To the extent
that I’d want to cross the witnesses via video, I’d have to think
about that and talk to my client about it. If there weren’t going
to be live witnesses, I would certainly be more amenable to
that.” R. 184 at 27. The district court stated, “[t]he Court will
consider and set an in-person sentencing, if necessary. Would
that be agreeable, Mr. Cheronis? And you know, if there’s live
witnesses, I absolutely agree with you that we’ll have to wait
until we can do it in person.” Id. at 28. Later, the court then
reiterated, “And I can just assure Mr. Cheronis this. If I think
it is necessary for the defense to have in-person proceedings,
that’s the way we’ll do it.” Id. at 29–30. The court then issued
an order memorializing what had occurred during the change
of plea hearing, including the fact that Davis had agreed at
the outset to holding that hearing by telephone. R. 143. Davis
did not dispute the order or that he agreed to proceed tele-
phonically.
During the sentencing hearing, which did indeed proceed
by videoconference, Davis spoke for himself and stated that
he understood that he had agreed to sentencing via video con-
ference. R. 168 at 4–5. The district court sentenced Davis to 160
months imprisonment and a three-year term of supervised re-
lease. He was also ordered to pay $7,171,085 in restitution to
approximately twenty-five victims. Davis now appeals, argu-
ing that the district court erred by holding his plea hearing by
telephone conference.
In the course of the lengthy negotiations between Davis
and the government, Davis signed a plea agreement waiving
his appellate rights. As an appellate court, we review de novo
whether a waiver of appellate rights contained in a plea agree-
ment should be enforced. United States v. Brown, 973 F.3d 667,
No. 21-1854 7
718 (7th Cir. 2020) (multiple denials of cert. omitted from cita-
tion). A plea agreement is a contract between the defendant
and the government, and we interpret it as such, holding all
parties to their bargain, even if they later have a change of
mind. Plunkett v. Sproul, 16 F.4th 248, 256 (7th Cir. 2021);
United States v. Sheth, 924 F.3d 425, 430 (7th Cir. 2019). That
bargain included Davis’ agreement to waive his appeals in ex-
change for the government dropping eight of the nine counts
against him.
The part of the plea agreement addressing appellate
waiver stated as follows:
21. b. Waiver of appellate and collateral
rights. Defendant further understands he is
waiving all appellate issues that might have
been available if he had exercised his right to
trial. Defendant is aware that Title 28, United
States Code, Section 1291, and Title 18, United
States Code, Section 3742, afford a defendant
the right to appeal his conviction and the sen-
tence imposed. Acknowledging this, defendant
knowingly waives the right to appeal his con-
viction, any pre-trial rulings by the Court, and any
part of the sentence (or the manner in which that
sentence was determined), including any term
of imprisonment and fine within the maximums
provided by law, and including any order of
restitution, in exchange for the concessions
made by the United States in this Agreement. …
22. Defendant understands that by pleading
guilty he is waiving all the rights set forth in the
prior paragraphs. Defendant’s attorney has
8 No. 21-1854
explained those rights to him, and the conse-
quences of his waiver of those rights.
R. 149 at 13–14 (emphasis ours). Davis does not dispute that
he signed the agreement knowingly and voluntarily.
Of course some rights are not waivable, such as the right
to effective counsel during a plea negotiation. See Hurlow v.
United States, 726 F.3d 958, 965 (7th Cir. 2013). It is also true,
as Davis notes, that our circuit has held in the past that under
Rule 43 of the Federal Rules of Criminal Procedure, all par-
ties must be present for a defendant’s plea and therefore the
defendant cannot consent to a plea hearing held by vide-
oconference. United States v. Bethea, 888 F.3d 864, 867 (7th Cir.
2018). It is undebatable, however, that the CARES Act cre-
ated an exception to this rule. See United States v. Coffin, 23
F.4th 778, 781 (7th Cir. 2022).
The CARES Act allows felony pleas and sentencing to
proceed by video or telephone conference if the following
conditions are met:
if the Judicial Conference of the United States
finds that emergency conditions due to the na-
tional emergency…with respect to the Corona-
virus Disease 2019 (COVID–19) will materially
affect the functioning of either the Federal
courts generally or a particular district court of
the United States, the chief judge of a district
court covered by the finding … specifically
finds, … that felony pleas under Rule 11 of the
Federal Rules of Criminal Procedure … cannot
be conducted in person without seriously jeop-
ardizing public health and safety, and the district
No. 21-1854 9
judge in a particular case finds for specific reasons
that the plea or sentencing in that case cannot be fur-
ther delayed without serious harm to the interests of
justice, the plea or sentencing in that case may
be conducted by video teleconference, or by tel-
ephone conference if video teleconferencing is
not reasonably available.
CARES Act § 15002(b)(2)(A) (emphasis ours). 2 The Act also
requires that the defendant consent to the telephonic or
video conferencing after consulting with counsel. Id. at (b)(4).
In other words, the holding in Bethea—that pursuant to
Rule 43 a defendant cannot waive his right to be present at a
plea hearing—was revised by the CARES Act. Bethea, 888 F.3d
at 867. In fact, Bethea itself contemplated that its interpretation
of the waivability of Rule 43 could be amended by statute, as
it had been in the past. Id. at 866. The panel in Bethea noted,
for example, that Rule 43 was amended in 2011 to permit vid-
eoconference pleas for misdemeanor offenses, but not felony
pleas, and it also recommended a future “sensible” amend-
ment “to allow discretion in instances where a defendant
faces significant health problems.” Id. at 866, 868. The CARES
Act did just what Bethea predicted—amended Rule 43 to allow
for video or telephonic conferences in the face of significant
2 Davis does not contest the use of the telephonic conference as opposed
to a video conference; thus we ignore that distinction here. He makes only
a brief mention that “the court made no findings about the availability of
video conferencing.” Davis Brief at 18–19. This one sentence observation
without argument is undeveloped and thus waived. Schaefer v. Universal
Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016) (“Perfunctory
and undeveloped arguments are waived, as are arguments unsupported
by legal authority.”).
10 No. 21-1854
health concerns—although in this case the health concerns
were global rather than specific to a particular defendant. Just
as Bethea itself foretold, the holding in Bethea no longer applies
when Rule 43 has been amended to address just the situation
before us. In other words, the district court was operating
pursuant to the requirements and allowances of the CARES
Act.
Davis concedes, as he must, that the CARES Act allows for
telephonic hearings and that he consented to such a hearing,
but argues that his consent was necessary but not sufficient to
allow the court to proceed by telephone conference. He ar-
gues that the court also must have met all of the other prereq-
uisites of the CARES Act, and failed to do so in the case of the
one requirement that we have italicized above—a finding that
for specific reasons the plea or sentencing in Davis’ case could
not be further delayed without serious harm to the interests
of justice. See CARES Act § 15002(b)(2)(A). He argues that the
CARES Act suspended the requirement for in person pro-
ceedings “only in those particular cases where delay is intol-
erable.” Davis’ Brief at 9 (emphasis in original). And in his
particular instance, Davis argues “[t]he district court’s stated
concerns about Mr. Davis’s access to ‘more programming and
more expansive inmate resources’ do not make sense in this
case, where Mr. Davis was not languishing in a county jail,
but out on pretrial release, where he could have obtained any
necessary additional services.” Id. Moreover, Davis argued,
on pre-trial release he was able to earn money for his eventual
restitution payments to his victims, and therefore it was
within the interest of justice to delay his hearing and eventual
incarceration.
No. 21-1854 11
The judge’s order scheduling the telephonic plea stated
that pursuant to the CARES Act, “the assigned judge finds
that further delay of this hearing would cause serious harm to
the public interests of justice, because the Defendant wishes
to advance the case so that he may accelerate the designation
to a Bureau of Prisons facility, which offers more program-
ming and more expansive inmate resources.” R. 143 at 1. It is
certainly possible that the court, inundated with petitions and
confusion during the chaotic beginnings of an unprecedented
pandemic, may have issued an order that could have been
more well-tailored to Davis’ particular situation. But in the tu-
mult of the early days of the pandemic, imprecision could be
expected. The court did indeed make a finding under the
CARES Act that the “further delay of th[e] hearing would
cause serious harm to the interests of justice.” R. 143 at 1. And,
in fact, that is true. The case had languished for three years,
and clearly the public interest in justice is served by incarcer-
ating the guilty, preventing backlog, and having cases move
efficiently and in a timely manner through the justice system.
Davis’ argument on appeal is, in its essence, an argument
that the district court erred in its application of the CARES
Act to his case. Davis, however, waived this error and, in fact,
all district court error. As we explained recently in United
States v. Coffin, 23 F.4th 778 (7th Cir. 2022),
the CARES Act created an exception to the rule
that the defendant must be physically present in
the courtroom. Section 15002(b) of the Act spe-
cifically authorizes plea and sentencing hear-
ings by videoconference if the defendant con-
sents and the three other statutory prerequisites
are met. [The defendant] now challenges the
12 No. 21-1854
judge’s compliance with one of the CARES Act
prerequisites—the requirement of case-specific
“interests of justice” findings. That’s a claim of
CARES Act error—not Rule 43(a) error—and
Coffin waived any claim of CARES Act error by
expressly declining the opportunity to object to
the judge’s findings under the Act.
Id. at 781. This is precisely what happened in Davis’ case. Like
Coffin, if Davis “had any objections to the Judge’s CARES Act
findings, he could and should have brought them to the dis-
trict court’s attention rather than waiting until the appeal to
complain for the first time.” Id. (internal citations omitted).
In this case, however, we need not delve into Davis’
waiver of this specific CARES Act claim (although we will ad-
dress it later below), because Davis waived all appellate
claims of error. Davis entered into a plea agreement which in-
cluded a complete waiver of any issues that might have been
available if he had exercised his right to trial, including the
right to appeal any pre-trial rulings by the court. R. 149 at 13–
14. An alleged error in application of the CARES Act is subject
to this waiver just like any other claim of error.
When a defendant knowingly and voluntarily enters into
a plea agreement to waive his appellate rights, and the terms
of that waiver are express and unambiguous, we will enforce
those terms. United States v. Smith, 759 F.3d 702, 706 (7th Cir.
2014). Davis does not claim that the waiver was ambiguous
and not express, and he does not deny that he entered into it
knowingly and voluntarily, therefore that is the end of the
matter. See United States v. Cavender, 228 F.3d 792, 803 (7th Cir.
2000).
No. 21-1854 13
But even if Davis had not entered into an agreement waiv-
ing his right to appeal any and all errors in the district court,
he certainly waived the right to object to the district court’s
handling of the CARES Act procedure for holding plea hear-
ings by telephone conference. Not only did he not object be-
low, but he affirmatively consented to it. Davis unequivocally
agreed to conduct the plea agreement by telephone on two
occasions. At the status hearing on September 24, 2020, Davis’
counsel, with Davis on the line, explicitly stated in response
to a question from the court that Davis was agreeable to con-
ducting the plea hearing by telephone. R. 14 at 3–4. Second, at
the plea hearing on January 19, 2021, counsel for Davis (with
Davis beside him in his office), stated, “[w]e’ve discussed it
with Mr. Davis and agree to proceed via telephone pursuant
to the CARES Act.” R. 184 at 4. Davis also failed to object to
any of the five minute orders stating that the plea hearing
would be held by telephone, or the order in which the court
memorialized that Davis had agreed to appear by telephone.
R. 143, 144, 145, 146, 147. And when discussing the sentencing
hearing, the court and parties engaged in an extended conver-
sation about whether the sentencing hearing might be held in
person if the government decided to call witnesses (it did not).
R. 184 at 26–28. This colloquy demonstrates that Davis’ coun-
sel knew how to ask for an in person hearing, was prepared
to do so, and considered the strategies for when he needed to
appear in person and when he did not. Davis’ counsel dis-
cussed with the court at length his strategic thinking, noting
that if he needed to cross-examine government witnesses, he
would want to do that in person, otherwise he would be ame-
nable to a video or telephonic sentencing.
Davis intentionally relinquished a known right when he
expressly stated on the record that he had no objection to the
14 No. 21-1854
telephonic change of plea hearing. United States v. Robinson,
964 F.3d 632, 639–40 (7th Cir. 2020). The district court judge
directly asked Davis’ attorney if he had any objection to the
use of the CARES Act procedure. Counsel said he did not.
That is a textbook waiver. Coffin, 23 F.4th at 781. Thus Davis
clearly and unequivocally waived his argument that the dis-
trict court erred when it found that the plea hearing could not
be further delayed without serious harm to the interests of
justice. Had Davis thought that waiting to hold the plea hear-
ing until the pandemic ended or delaying it for some time
would have served his interests better, it was incumbent upon
him to inform the court. Instead, he did the opposite and af-
firmatively consented to the telephonic hearing.
In sum, by signing a plea agreement waiving his right to
appeal, Davis waived his right to appeal all errors, including
any specific errors made in the application of the CARES Act.
Moreover, he waived any error in application of the CARES
Act in the district court. For these reasons his appeal is
DISMISSED.