UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD J. REINERS,
Defendant-Appellant,
IBM CREDIT CORPORATION; GAIL
REINERS; BANK OF MONTREAL; SIGNET
BANK, NA; CREDITANSTALT
No. 98-4433
CORPORATE FINANCE, INCORPORATED;
HITACHI CREDIT AMERICA
CORPORATION; NATIONSBANK, NA;
THE LONG-TERM CREDIT BANK OF
JAPAN LIMITED; CORESTATES BANK
NA; THE UNSECURED CREDITORS
COMMITTEE OF NELCO, INCORPORATED;
SHERMAN B. LUBMAN; EZRA H.
COHEN,
Parties in Interest.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CR-96-61)
Submitted: July 6, 1999
Decided: July 28, 1999
Before WIDENER, WILLIAMS, and MOTZ,
Circuit Judges.
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Affirmed in part and dismissed in part by unpublished per curiam
opinion.
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COUNSEL
Robert V. Roussos, ROUSSOS & LANGHORNE, Norfolk, Virginia;
John B. Amrod, AMROD & RICCI, Garden City, New York, for
Appellant. Helen F. Fahey, United States Attorney, Justin W. Wil-
liams, Assistant United States Attorney, John J. Klein, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Edward J. Reiners pled guilty to bank fraud, 18 U.S.C. § 1344
(1994) (Count One), and money laundering, 18 U.S.C.A.
§ 1956(a)(1)(A)(i) (West Supp. 1999) (Count Two). He contends on
appeal that his guilty plea was involuntary because the district court
failed to comply with Rule 11 of the Federal Rules of Criminal Proce-
dure. He further asserts that he received ineffective assistance of
counsel in connection with his guilty plea and his sentence, that the
government breached the plea agreement at sentencing, and that he
was the victim of judicial bias. He also challenges the 202-month sen-
tence of imprisonment imposed by the district court on a variety of
grounds. We affirm the conviction. We find that Reiners waived his
right to appeal his sentence and therefore dismiss that portion of the
appeal.
Reiners worked for Phillip Morris Company for about twenty
years, leaving the company in July 1992. By September 1993, he was
involved in an elaborate scheme to defraud NationsBank and Signet
2
Bank by posing as the "Chief Operations Officer" of a secret Phillip
Morris project which allegedly required millions of dollars worth of
computer equipment. Reiners entered into a confidential lease agree-
ment with Nelco, Ltd., a Richmond, Virginia, computer leasing
company.1 With Reiners' help, Nelco borrowed a total of
$289,430,687.81 from Signet Bank to buy computers for leasing to
Phillip Morris. The computers were to be purchased from CCS, Incor-
porated (CCS), a New York computer supplier. CCS was controlled
by Reiners' co-conspirator, John Ruffo. Nelco sent most of the money
received from Signet Bank to two companies that had been created by
Reiners--Park Business Forms and Worldwide Regional Exports.
None of the money received by these companies was used to buy
computers; instead, it was used to buy stock and other securities. In
October 1995, Reiners assisted Nelco in obtaining a $70,000,000
loan, this time from NationsBank in Richmond, Virginia. Some of the
money was disbursed to CCS and some to Nelco, which kept a por-
tion of the money as its profit but sent most of it to Reiners' compa-
nies.
In March 1996, because of discrepancies in the NationsBank loan
documents, the deception was discovered and Reiners was arrested.
In July 1996, he pled guilty to an information charging bank fraud
and money laundering, and cooperated in the investigation of Ruffo.
Reiners' plea agreement provided that he agreed to waive his right to
appeal his sentence or the manner in which it was determined "on any
ground whatever."
Reiners contends on appeal that his guilty plea was not knowing
and voluntary because the district court failed to advise him about the
effects of supervised release and failed to inform him of the manda-
tory minimum sentence he could receive. We note that a challenge to
the validity of the guilty plea is not precluded by the waiver of appeal
rights concerning his sentence. See United States v. Wiggins, 905 F.2d
51, 53 (4th Cir. 1990). The adequacy of a Rule 11 proceeding is
reviewed de novo, see United States v. Good, 25 F.3d 218, 219 (4th
Cir. 1994), but violations of Rule 11 are subject to a harmless error
standard of review. See United States v. DeFusco , 949 F.2d 114, 117
(4th Cir. 1991).
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1 Nelco's participation in the scheme was innocent.
3
Reiners first argues that his plea is invalid under United States v.
Thorne, 153 F.3d 130 (4th Cir. 1998), because he was not advised of
the effects, terms, and conditions of supervised release. Thorne was
not informed that he would be subject to a mandatory five-year term
of supervised release until after his guilty plea had been accepted. He
tried unsuccessfully to withdraw his plea before sentencing and ulti-
mately received a sentence which was greater than the maximum sen-
tence he had been told he might receive at the Rule 11 hearing. We
held that the error was not harmless. See Thorne , 153 F.3d at 132-34.
However, Reiners' case is distinguishable. His plea agreement
spelled out the nature of supervised release and the consequences of
violating it, namely, that he could then be required to serve the whole
supervised release term in addition to the prison term. The district
court informed him about supervised release before he entered his
guilty plea and his sentence including the five-year supervised release
term was less than the thirty-year maximum he was told he might
receive. In fact, his sentence of 202 months plus sixty months super-
vised release totals 262 months--the high end of the guideline range.
Thus, even if the court erred in not explaining supervised release
more fully, the error was harmless.
Reiners' claim that the district court erred in failing to inform him
about the mandatory minimum sentence he could receive is meritless.
The trial court's failure to advise a defendant before accepting his
guilty plea that he is subject to a statutory minimum sentence is
reversible error if it is clear at the time that a mandatory minimum
sentence will apply and there is no evidence that the defendant is oth-
erwise aware of it. See United States v. Goins , 51 F.3d 400, 402-05
(4th Cir. 1995). Reiners was not subject to a mandatory minimum
sentence. Therefore, no Rule 11 violation occurred.
A number of the remaining issues Reiners raises relate to his sen-
tence. If the waiver was valid, review of these issues is precluded by
his waiver of appeal rights concerning the sentence or the manner in
which it was determined. Reiners asserts that it was not valid because
the district court informed him, both at the Rule 11 hearing and at
sentencing, that he could appeal despite the waiver, and because the
district court did not adequately question him about the waiver.
4
A defendant's waiver of his appeal rights is valid if it is "a knowing
and intelligent decision." United States v. Broughton-Jones, 71 F.3d
1143, 1146 (4th Cir. 1995) (citations omitted). Whether the waiver
has been knowingly and intelligently made is a question of law which
we review de novo. See United States v. Marin , 961 F.2d 493, 496
(4th Cir. 1992). An examination of "the particular facts and circum-
stances surrounding [the] case, including the background, experience
and conduct of the accused," is necessary in determining whether a
waiver is valid. See Broughton-Jones, 71 F.3d at 1146 (citation omit-
ted). Usually, if the district court fails to question the defendant about
the waiver provision during the Rule 11 hearing and the record does
not otherwise indicate that he understood the significance of the
waiver, it is not knowing and intelligent. See Marin, 961 F.2d at 496.
We are satisfied that the waiver was knowing and intelligent.
Although the district court did not question Reiners until after his plea
had been accepted, the facts and circumstances of Reiners' plea, as
disclosed in the record, indicate that he understood the significance
of the waiver. He was represented by two attorneys, had attended col-
lege, and had held a responsible position at Phillip Morris for about
twenty years. His active participation in the offense alone demon-
strates that he was not an unsophisticated defendant who might fail
to understand the effect of the waiver. And he unequivocally
informed the court, when asked, that he understood that he had agreed
to forego an appeal of the sentence.
Moreover, we are not persuaded that a knowing and intelligent
waiver of appeal rights may be nullified by the district court's subse-
quent statement that the defendant has a right to appeal his sentence.
The district court in this case accepted the plea agreement when it was
submitted for the court's approval with the waiver provision included.
To now hold the waiver provision unenforceable would frustrate the
purpose of the Rule 11 hearing. Once a defendant has knowingly and
intelligently waived his appeal right and the waiver is confirmed at
the Rule 11 hearing, the waiver is enforceable. See United States v.
Attar, 38 F.3d 727, 731 (4th Cir. 1994); Marin, 961 F.2d at 496.
Therefore, we find that the waiver was effective. As a consequence,
we do not address Reiners' contentions that the district court erred in
applying the sentencing guidelines, and in determining his role in the
5
offense, or that his sentence was disproportionate as compared to
Ruffo's sentence.
Reiners alleges that the government breached the plea agreement
by (1) not objecting to the recommended four-level role adjustment
at sentencing despite its stipulation to a three-level adjustment, and
(2) disclosing to the probation officer and thus to the district court that
he had been involved with CCS in a scheme to defraud Phillip Morris
while he was still working for the company. Both claims are without
merit.
Reiners' attorney told the court at sentencing that the government's
decision to move for a substantial assistance departure mooted his
objections to the presentence report and that the court need not
resolve them. Because Reiners abandoned his objection to the four-
level role adjustment, the government's failure to argue against it
could hardly constitute a breach of the plea agreement. Moreover, the
plea agreement properly did not prohibit the government from dis-
closing to the probation officer or the district court any relevant infor-
mation in its possession concerning Reiners' past conduct. The only
restriction was on the use of information provided by Reiners under
the agreement to enhance his guideline range. This provision of the
agreement was not breached because the information about Reiners'
prior scheme to defraud Phillip Morris did not enter into the calcula-
tion of his guideline range.
Reiners claims that his attorneys rendered ineffective assistance by
(1) failing to advise him about the mandatory minimum sentence and
the effect of supervised release before his guilty plea, (2) failing to
pursue the objections to the presentence report, (3) failing to ensure
that he had reviewed the presentence report before sentencing and
failing to attach an amended psychological evaluation, (4) failing to
object to the government's breach of the plea agreement, and (5)
allowing him to plead guilty to money laundering.
The first and last claims challenge the validity of Reiners' guilty
plea and are not waived. However, ineffective assistance of counsel
is not considered on direct appeal unless the record conclusively dem-
onstrates that the attorneys' representation was ineffective. See United
States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992). Here, the record
6
does not conclusively establish that Reiners' attorneys provided inef-
fective assistance to him. The other claims challenge the sentence.
Review of these claims has been waived because the plea agreement
did not provide any exception for ineffective assistance claims relat-
ing to the sentence.
Reiners next contends that the district court's sentencing decision
was affected by bias exhibited toward him by the court. Reiners also
argues that the judge's prospective employment, following retirement,
with a law firm representing NationsBank, Signet Bank, and Phillip
Morris was cause for recusal under 28 U.S.C. § 455(a) (1994).
Because Reiners did not move for recusal in the district court, we
review this claim under the plain error standard. See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 732 (1993) (defendant
must show that error occurred which was plain, affected his substan-
tial rights, and requires correction to protect fairness, integrity, or
public reputation of judicial proceedings).
A defendant cannot waive his right to appeal a sentence based on
"a constitutionally impermissible factor such as race." Id. A judge
should recuse himself if a reasonable person, with knowledge of all
the facts of the case, would question the judge's impartiality. See
United States v. Mitchell, 886 F.2d 667, 671 (4th Cir. 1989). How-
ever, bias must result from an extra-judicial source. See id. If the
judge's perceived bias is based solely on evidence from the case
before him, it will not disqualify him.
As evidence of bias, Reiners cites comments by the district court
which reflect the district court's distaste for his conduct in the offense
and its initial suspicion that Reiners might know the location of $13
million which was not recovered.2 The remarks complained of do not
show that the court relied on any impermissible factor in determining
the sentence, nor do they establish any extra-judicial source of bias.
Moreover, the record does not reflect that either of the banks or Phil-
lip Morris were represented by lawyers from the law firm in question
in connection with this case. We do not find that either the judge's
comments or his future employment brought his impartiality into
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2 The government informed the court that it was satisfied that Reiners
had not concealed the money.
7
question to such a degree that failure to recuse himself amounted to
plain error.
We therefore affirm Reiners' conviction and dismiss that portion of
the appeal which contests his sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED IN PART, DISMISSED IN PART
8