United States Court of Appeals,
Fifth Circuit.
No. 95-30638.
UNITED STATES of America, Plaintiff-Appellee,
v.
Stanley J. GAUDET, Defendant-Appellant.
April 30, 1996.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before REAVLEY, DAVIS and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Stanley Gaudet appeals the denial of his motion under 28
U.S.C. § 2255 for vacatur of his conviction and sentence. He
argues that the court that convicted and sentenced him lacked
jurisdiction to do so because he had not waived his right to be
prosecuted by indictment. He also contends that he received
ineffective assistance of counsel. Concluding that Gaudet's
arguments are without merit, we affirm.
I.
Gaudet pled guilty to twenty-three counts of embezzlement.
See United States v. Gaudet, 966 F.2d 959, 960 (5th Cir.1992)
(Gaudet I ), cert. denied, 507 U.S. 924, 113 S.Ct. 1294, 122
L.Ed.2d 685 (1993). Although he was validly indicted on all of
those counts, he actually pled to a superseding bill of information
for the first twenty-two, and to the original indictment for the
twenty-third. The bill of information differed from the indictment
in only two ways: (1) It did not include the twenty-third count,
1
which continued to survive as the sole count in the indictment;
and (2) it characterized the first twenty-two counts as "continuing
offenses."
Gaudet's retained counsel, Provino Mosca, had requested a
superseding bill of information for the first twenty-two counts as
part of his defense strategy, which was based on Mosca's "straddle
offense" theory: By characterizing the offenses as continuous,
Mosca hoped to argue that none of the offenses was completed until
1989, after the November 1, 1987, effective date of the sentencing
guidelines. Mosca thus hoped to require application of the
sentencing guidelines to every count, which in his judgment created
the probability of a much more lenient sentence.1
Shortly after Gaudet pled guilty, Mosca withdrew from the
case; federal public defender John Craft was appointed to replace
him. At sentencing, the district court applied pre-guidelines law
to the first eighteen counts and applied the sentencing guidelines
to the remaining five counts. See id. at 961. It also ordered
Gaudet to surrender his pension benefits in order to satisfy a
restitution award. See id. Craft did not object to any of these
actions.
On direct appeal, Gaudet argued, inter alia, that (1) the
court should have applied the guidelines to all twenty-three
1
By bringing the offenses within the aegis of the
guidelines, Mosca hoped to minimize the effect that public
sentiment might have had on Gaudet's well-publicized prosecution
and sentencing. Mosca explained to Gaudet that there was no
guarantee that the district court would apply the sentencing
guidelines, but he also advised Gaudet that a sentence based on a
contrary analysis would be vulnerable to challenge on appeal.
2
counts, and (2) the court's order divesting him of pension benefits
was illegal under the Employee Retirement Income Security Act of
1974 ("ERISA"). See id. Because Gaudet failed to object to these
alleged errors, we applied the stringent plain error standard of
review to his claims. See id. at 962-63. Holding that neither of
Gaudet's claimed errors met that standard, we affirmed. See id. at
962, 964.
Proceeding pro se, Gaudet filed this § 2255 motion for vacatur
of his conviction and sentence on the ground of ineffective
assistance of counsel.2 After retaining counsel for the § 2255
proceeding, Gaudet amended his motion to include a challenge to the
court's jurisdiction to accept his guilty plea, based on the ground
that he had not waived his right to be prosecuted by indictment as
required by FED.R.CRIM.P. 7(b). The district court denied his
motion, and Gaudet appeals.3
2
We leave the specific facts of the ineffective assistance
allegations to the legal discussion below.
3
Gaudet also argues that the government violated a purported
"plea agreement" in which the government, in return for Gaudet's
guilty plea, agreed to file a superseding bill of information
characterizing the first twenty-two counts as continuing
offenses. The government did file such a bill of information
with the understanding that Gaudet would voluntarily plead guilty
to such an information, as well as to the sole surviving count in
the indictment. Gaudet acknowledges that the government filed a
bill of information as he requested, but complains that the
government did not take the position that the sentencing
guidelines covered all of the charged counts.
There is no evidence in the record that the government
offered any consideration for Gaudet's guilty plea. Rather,
Gaudet volunteered to plead guilty—all he asked for was a
modification of the charging instrument, a request the
government granted. Gaudet's defense strategy was to have
the government make the requested changes in the bill of
3
II.
" "Relief under 28 U.S.C. § 2255 is reserved for
transgressions of constitutional rights and for a narrow range of
injuries that could not have been raised on direct appeal and
would, if condoned, result in a complete miscarriage of justice.'
" United States v. Segler, 37 F.3d 1131, 1133 (5th Cir.1994)
(quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.1992)
(per curiam)). When raising issues of jurisdictional or
constitutional magnitude for the first time on collateral review,4
a defendant ordinarily must show both cause for his procedural
default and actual prejudice resulting from the error. See id.;
United States v. Shaid, 937 F.2d 228, 232 (5th Cir.1991) (en banc),
cert. denied, 502 U.S. 1076, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992).
This cause-and-actual-prejudice standard is significantly more
information—without telling the government why he wanted
those changes—and to argue at sentencing that the sentencing
guidelines applied to all of the charged counts (under the
straddle offense theory). We find it somewhat ironic that
Gaudet complains of breach by the government when his
defense strategy consisted of trying to deceive the
government.
In any case, we are faced here with more than just the
absence of evidence of a plea agreement. Gaudet testified,
in open court and under oath, that there was no plea
agreement. The prosecutor also stated, in open court and
under oath, that there was no plea agreement. We therefore
do not entertain further the argument that the government
violated a purported plea agreement.
4
Gaudet's argument that he did not validly waive his right
to be prosecuted by indictment does implicate the jurisdiction of
the district court that convicted and sentenced him. See United
States v. Moore, 37 F.3d 169, 173 (5th Cir.1994). United States
v. Montgomery, 628 F.2d 414, 416 (5th Cir. Unit A 1980) (per
curiam). His Sixth Amendment claim of ineffective assistance of
counsel is, of course, constitutional in nature.
4
rigorous than even the plain error standard we applied on direct
appeal. See id.
In this case, however, Gaudet need not show cause and
prejudice, as that standard applies only when the government raises
the procedural bar in the district court. See United States v.
Drobny, 955 F.2d 990, 995 (5th Cir.1992). This is true even when
the government is the appellee (as was the case in Drobny ). In
this case, the government did no more than object to Gaudet's
waiver-of-indictment claim as a "last minute maneuver" coming at
the "11th hour." These remarks are too equivocal to invoke the
procedural bar. See id.
Even if the government had raised the procedural bar,
Gaudet's ineffective assistance of counsel claim would satisfy the
cause-and-prejudice standard. See United States v. Patten, 40 F.3d
774, 776 (5th Cir.1994) (per curiam), cert. denied, --- U.S. ----,
115 S.Ct. 2558, 132 L.Ed.2d 811 (1995); United States v. Pierce,
959 F.2d 1297, 1301 (5th Cir.), cert. denied, 506 U.S. 1007, 113
S.Ct. 621, 121 L.Ed.2d 554 (1992).5 Thus, neither of Gaudet's
claims is procedurally barred, and we proceed to the merits of his
motion.
III.
Gaudet's first claim is that the court lacked jurisdiction to
5
Furthermore, ineffective assistance claims ordinarily are
brought for the first time on collateral review because of the
difficulty of compiling an adequate record by the time of direct
appeal. See Pierce, 959 F.2d at 1301.
5
accept his guilty plea. He argues that FED.R.CRIM.P. 7(b),6
requires an explicit waiver of indictment in open court and that
the failure to obtain an explicit waiver deprived the court of
jurisdiction to accept his plea. The government concedes that
Gaudet did not expressly waive indictment but argues that waiver
may be implicit in a colloquy between the court and the defendant.
Other circuits have held that a waiver of indictment can be
implicit. In United States v. Travis, 735 F.2d 1129, 1131-32 (9th
Cir.1984), the court inferred a waiver of indictment from the
circumstances of the case before it:
The record reveals that Travis was informed of his rights and
the charges against him in open court, he had the assistance
of counsel during plea negotiations, and he entered a guilty
plea to charges of which he had received notice by virtue of
the original indictment. Although there may have been no
explicit waiver, on the basis of the record before this court
we find that waiver was implicit in the entry of Travis'
guilty plea, and affirm.
The court also characterized the alleged defect as a " "technical
violation' of the rule, not a constitutional one." Id. at 1131.
In Ornelas v. United States, 840 F.2d 890 (11th Cir.1988), the
court also inferred a waiver of indictment from the circumstances
of the case before it:
Rule 7(b) authorizes the prosecution of a felony by
information if the defendant waives indictment. The Rule does
not require an express waiver; depending on the circumstances
6
Rule 7(b) reads:
An offense which may be punished by imprisonment for a
term exceeding one year or at hard labor may be
prosecuted by information if the defendant, after
having been advised of the nature of the charge and of
the rights of the defendant, waives in open court
prosecution by indictment.
6
of the case, a waiver can be implied. All that Rule 7(b)
commands is that the defendant waive indictment and that he do
so in open court.
Id. at 892 (footnote omitted).7 The court went on to say that "the
district court's failure to obtain from the appellant an express
waiver of indictment before accepting his plea to an information
constituted ... a mere "technical violation' of Rule 7(b)." Id.
(quoting Travis, 735 F.2d at 1131). The court also noted that "[a]
technical violation of Rule 7(b) is not an error that warrants
relief pursuant to 28 U.S.C. § 2255." Id.
Gaudet tries to distinguish these cases, arguing that the
7
We offer here the Eleventh Circuit's analysis of Ornelas:
Considering the circumstances under which the appellant
chose to change his plea and what transpired at his
rearraignment, we conclude as a matter of law that he
waived prosecution by indictment in this case. During
his plea negotiations with the prosecutor, the
appellant's lawyer apparently indicated that his client
refused to plead guilty to any of the charges contained
in the existing indictment but would be willing to
plead to a less serious charge, e.g., a section 1952
offense. Such a plea could not be entertained,
however, unless the appellant waived indictment and
pled to an information; the parties were in the midst
of trial and the prosecutor simply had no time to
re-present the case to the grand jury and acquire a new
indictment. Because the appellant wanted to abort his
trial and bring his prosecution to an end, his lawyer
advised the prosecutor that the appellant would waive
indictment and plead to an information. Counsel then
agreed that the information would allege a section 1952
offense, and a tentative plea agreement was reached.
The appellant promptly accepted the deal and changed
his plea. At rearraignment, when the appellant
informed the court that he wished to plead to the
information, which superseded his pending indictment,
he effectively waived reindictment within the meaning
of Rule 7(b).
840 F.2d at 892 (footnotes omitted).
7
waivers of indictment in Travis and Ornelas were implied in express
plea agreements entered in open court. We find Gaudet's argument
unpersuasive.
The reasoning of the Ninth and Eleventh Circuits did not
depend on the plea agreements in those cases. Rather, the key to
those cases was that the defendants had already been validly
indicted and had voluntarily chosen, for whatever reason, to plead
guilty to a superseding bill of information. The Travis and
Ornelas cases stand for the proposition that, where a valid
indictment has already been obtained, a defendant's decision to
plead to a superseding bill of information includes an implicit
waiver of indictment that satisfies rule 7(b). We find the
reasoning of these courts persuasive, and we hereby adopt it.
Gaudet's reliance on United States v. Macklin, 523 F.2d 193
(2d Cir.1975), is misplaced. In that case, the grand jury's
statutory term had expired before it had handed down the
indictment. See id. at 195. Thus, the defendant had not been
validly indicted. See id. Macklin did not involve a situation in
which the defendant knowingly and voluntarily chose to proceed by
information.
The Macklin court also found that the only possible predicate
for a waiver of indictment was the guilty plea itself. See id. at
196. The court stated that the guilty plea alone could not satisfy
the formal waiver requirements of rule 7(b). See id. The Macklin
court did not say that a waiver must be express, but only that it
must be made in open court. See id. Furthermore, the Macklin
8
court did not opine that a waiver could never be inferred from the
circumstances of the case—e.g., from a colloquy in open court
between the district court and the defendant.
Unlike the defendant in Macklin, Gaudet had already been
validly indicted when he pled to a superseding bill of information.
Furthermore, the colloquy between the court and Gaudet reveals that
the court informed Gaudet that he was pleading to a superseding
bill of information as to the first twenty-two counts. Even more
probative of an implicit waiver is the stark fact that Gaudet
himself affirmatively requested the superseding bill of
information.
Gaudet places unwarranted emphasis on the district court's
isolated and inadvertent use of the term "indictment" during the
colloquy, when the court in fact was referring to the information.
He argues now that he never understood that he was not pleading to
an indictment on all counts. This argument is meritless. The
district court and the prosecutor used the correct terms—e.g.,
"information," "superseding bill of information," etc.—an
overwhelming percentage of the time during the colloquy. Viewed in
the context of the entire colloquy, the isolated reference to the
information as an indictment is a grossly insufficient basis from
which to argue that Gaudet believed he was pleading only to an
indictment—particularly when Gaudet himself affirmatively requested
a superseding bill of information as part of his defense strategy.
Given these facts, it would be inconceivable to hold that
Gaudet did not knowingly and voluntarily, albeit implicitly, waive
9
prosecution by indictment. Accordingly, we conclude that Gaudet
did implicitly waive prosecution by indictment, and we follow the
Ninth and Eleventh Circuits in holding that an implicit waiver of
indictment satisfies rule 7(b).
IV.
Gaudet also claims that he received ineffective assistance of
counsel. Under Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), a defendant claiming
ineffective assistance must prove (1) that his attorney's
representation was deficient and (2) that he was prejudiced by the
deficiency. In order to satisfy the first prong of the Washington
test, Gaudet must show that "counsel made errors so serious that
counsel was not functioning as the "counsel' guaranteed the
defendant by the Sixth Amendment." Id. Because we ultimately
conclude that Gaudet has failed to demonstrate that Craft's
performance was deficient, we need not address the prejudice prong
of the Washington test. See id. at 697, 104 S.Ct. at 2069.
A.
Gaudet first claims that Craft was constitutionally
ineffective because he failed to object when the pre-sentence
report was presented and when the district court determined that
the sentencing guidelines should not apply to the first eighteen
counts in the bill of information. Gaudet argues that this
constituted an unjustifiable, mid-stream abandonment of his primary
defense strategy.
Gaudet's argument rests on the premise that his straddle
10
offense theory was meritorious. To the contrary, Gaudet has not
pointed to a single decision of any court that had, by the time of
Gaudet's sentencing, accepted the theory that embezzlement was a
straddle offense. The one case that Gaudet does cite in support of
his straddle offense theory, United States v. Young, 955 F.2d 99,
109 (1st Cir.1992), had not been decided at the time Gaudet was
sentenced. The fact that Craft did not pursue the straddle offense
theory at sentencing can therefore hardly be said to be deficient.
Such a "failure" certainly does not lead us to conclude that Craft
"was not functioning as the "counsel' guaranteed the defendant by
the Sixth Amendment." Washington, 466 U.S. at 687, 104 S.Ct. at
2064.
Gaudet also argues that Craft was constitutionally ineffective
when he failed to move to withdraw Gaudet's guilty plea after it
became apparent that the district court had not accepted the
straddle offense theory. At the evidentiary hearing on this § 2255
motion, however, Craft stated unequivocally that he never believed
in the straddle offense theory. He said that he proceeded as he
did—i.e., without moving for withdrawal of the guilty plea—because
he felt there was a possibility that the sentencing court would
follow the public policy embodied in the guidelines and apply the
guidelines anyway.
This is precisely the kind of strategic choice that the
Washington Court instructed us not to second-guess:
Judicial scrutiny of counsel's performance must be highly
deferential. It is all too tempting for a defendant to
second-guess counsel's assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
11
counsel's defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable.... Because of the difficulties inherent in
making the evaluation [of counsel's challenged conduct], a
court must indulge in a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action "might be considered trial strategy."
Id. at 689, 104 S.Ct. at 2065 (citation omitted). Gaudet has not
overcome this presumption. Once again, he has failed to
demonstrate that Craft "was not functioning as the "counsel'
guaranteed the defendant by the Sixth Amendment." Id. at 687, 104
S.Ct. at 2064.
B.
Gaudet also argues that Craft was constitutionally
ineffective because he failed to object to the order requiring
Gaudet to surrender his pension benefits on the ground that the
order violated ERISA. This claim, however, lies outside the scope
of § 2255 because it is a challenge to a cash fine and does not
meet the "in custody" requirement of § 2255. See Segler, 37 F.3d
at 1136-37 (holding that Congress "meant to limit the types of
claims cognizable under § 2255 to claims relating to unlawful
custody"). We therefore do not reach the merits of this claim.
Gaudet, therefore, has failed to demonstrate that Craft's
performance was deficient. Having concluded that Gaudet has not
satisfied the first prong of the Washington test, we need not reach
the second prong.
In sum, Gaudet implicitly waived his right to be prosecuted by
indictment, and this implicit waiver of indictment satisfied rule
12
7(b). Gaudet has not demonstrated that there was ineffective
assistance of counsel. The district court thus correctly denied
his § 2255 motion, and, accordingly, we AFFIRM.
13