                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-6-2002

USA v. Ebel
Precedential or Non-Precedential: Precedential

Docket No. 01-2229




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PRECEDENTIAL

       Filed August 6, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2229

UNITED STATES OF AMERICA

v.

GARY EBEL,
       Appellant

Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 00-cr-00070)
District Judge: Honorable Gustave Diamond

Argued February 28, 2002

Before: ROTH and FUENTES, Circuit Judges
and KATZ*, District Judge

(Filed: August 6, 2002)
_________________________________________________________________

* Honorable Marvin Katz, District Court Judge for the Eastern District of
Pennsylvania, sitting by designation.


       Mary Beth Buchanan
       United States Attorney
       Bonnie R. Schueter (Argued)
       Assistant U.S. Attorney
       Constance W. Bowden
       Assistant U.S. Attorney
       633 United States Post Office
        & Courthouse
       Pittsburgh, PA 15219

        Attorneys for Appellee

       R. Damien Schorr, Esquire (Argued)
       1015 Irwin Drive
       Pittsburgh, PA 15236

        Attorney for Appellant

OPINION OF THE COURT

ROTH, Circuit Judge:

Gary Ebel pled guilty to conspiring to commit mail fraud.
He now wants to withdraw that plea on the ground that it
was coerced by the District Court’s participation in plea
negotiations. After careful consideration of the full record of
this case, however, we conclude that, despite the District
Judge’s commitment to sentence Ebel at the low end of the
Sentencing Guidelines range, which apparently induced
Ebel to agree to plead guilty, Ebel’s substantial rights were
not affected by the judge’s comments. We will, therefore,
affirm Ebel’s conviction.

I. Background

On April 12, 2000, Gary Ebel was indicted, with nine
other defendants, for conspiring to commit mail fraud in
violation of 18 U.S.C. S 1343. The charges arose from the
operations of two businesses, American Scientific
Technology and American Underground Storage Tank
Testing, owned and operated by Ebel and a co-defendant.
These companies certified to owners of underground
storage tanks that their tanks met federal and state

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environmental requirements. The government alleged that
Ebel and his co-defendants knowingly ignored the proper
testing protocols and thereby defrauded the storage tank
owners.

At his arraignment, Ebel elected to represent himself but
requested stand-by counsel. The District Court set the trial
for November 13, 2000, but Ebel’s stand-by counsel and
counsel for the government both moved for a continuance,
in part because three defendants had already pled guilty
and several of the remaining defendants, including Ebel,
were involved in serious plea negotiations. The continuance
was granted.

Throughout the proceedings, Ebel filed numerous pro se
motions by sending letters directly to the District Court. As
the result of one of these pro se letter-motions, the District
Court scheduled a status conference on November 22. It
was at this conference that Ebel alleges the District Court
coerced his guilty plea.

At the outset of the conference, the District Judge
remarked that he could not become involved in any plea
negotiations due to the restrictions of Rule 11(e)(1) of the
Federal Rules of Criminal Procedure, which provides that,
"The court shall not participate in any discussions between
the parties concerning any . . . plea agreement." The judge
added, however, that plea discussions were a proper matter
for counsel to discuss.

The District Judge then turned to the question of how
soon Ebel and government counsel would be prepared to go
to trial. He commented that serious plea negotiations would
be a basis for another continuance, but that otherwise, the
case should be set for trial. The judge then responded to a
series of issues related to plea negotiations that were raised
by the parties.

At this point, Ebel stated to the District Judge,"As far as
a plea agreement is concerned, due to my horrible
experiences in courtrooms, I have absolutely no trust at all
in anyone in this courtroom, except youself, sir." The judge
assured Ebel that the court would require the government
to adhere to its plea agreement, and asked if the parties
should take a ten minute recess to discuss a plea.

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Because of Ebel’s mistrust of the government,
government counsel then requested that the court explain
how criminal history categories are computed because Ebel
did not understand how his criminal history would be
computed and he did not trust either the prosecutor’s or
his stand-by counsel’s representations. In reaction to this,
Ebel explained what was troubling him: He did not
understand why he could not plead guilty to a 36 month
term, and he did not trust either his stand-by counsel or
the government to explain it to him.

It becomes apparent from the hearing transcript at this
point that Ebel has agreed to plead guilty if a thirty-six
month sentence is guaranteed. He states that he has
instructed his stand-by counsel to bargain for such a
sentence. He explains to the judge that he has rejected the
government’s offer of a range of 37 to 46 months, with a
recommendation that the Court choose the low end of the
range because he fears that, despite the recommendation,
the Court will sentence him at the high end of the range. As
a result, he wants an offer of a specific sentence of 36
months or a range of 30 to 36 months. He states,

       So, I am very confused, and the thing that I am real
       confused with is . . . if [the government counsel] wants
       to give the high end at thirty-six months, then why
       doesn’t she put me in a range that’s from thirty to
       thirty-six months and I will agree to thirty-six months
       if we are only a month apart, and it seemed ridiculous.

The District Judge then asked the government counsel
why it wanted more than a 36 month sentence for Ebel.
The government counsel explained that a range of 37 to 46
months was the best offer she could make. She believed the
Sentencing Guidelines and the facts of this case made the
minimum sentence 37 to 46 months. She also explained
that it was the policy of the U.S. Attorney not to enter into
an agreement for a specific sentence because it deprived
the District Court of discretion.

After government counsel explained her position on the
Sentencing Guidelines, the District Judge said to Ebel:

       If we are talking about a guideline that has a low end
       of thirty-seven months, unless there is something that

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       I’m not aware of in all of this, and which I am
       operating under the assumption that the government is
       aware of, the Court would go along with the thirty-
       seven months. That’s the guideline calculation. That’s
       what you are looking for, isn’t it?

Ebel replied, "Sir, I was looking for thirty-six. But, if
that’s the best I am going to get, I mean, a month is a long
time. The District Judge commented that he would have no
problem with a thirty seven month range.

After discussing the Sentencing Guidelines calculations
with standby counsel, the judge then stated:

       All right. So, there we are. We’re at what appears to the
       Court, to be a sentencing range that would be from
       thirty-seven to forty-six months, with a
       recommendation by the government that the Court
       accept the low end of it, and I cannot believe that it
       would not be in the public’s interest to get a plea in
       this case that would save, I think, tremendous
       amounts of money, and to what end a matter of what,
       nine months?

Ebel responded: "In that case, Your Honor, I would like
to change my plea to guilty." The District Judge replied that
he would not accept the plea of a defendant who insisted he
was innocent. Ebel said that that would be a partial
problem because he "never had the intent." The judge
commented that there was a sufficient basis for"an Alford
Plea."1 Ebel also asked that he be transferred to another
jail. The judge agreed to recommend this and then
commented:

       But, none of this is to induce you to enter a plea. You
       enter a plea because you and your counsel have
       decided this is in your best interest and not because of,
       you are going to be transferred to the Washington
       County Jail, or even that the Court is going to go along
       with the thirty-seven months, though there is no
       problem with that so far as voluntariness is concerned.
_________________________________________________________________

1. See North Carolina v. Alford, 400 U.S. 25 (1970) (holding that, when
facing strong evidence of guilt, a defendant may plead guilty while
protesting innocence to avoid going to trial).

                                5


       If this is what you want to do. I’m not offering you the
       thirty-seven. I’m telling you I’ll go along with it, if that’s
       what you people agreed to.

The parties recessed to complete negotiation of the plea and
then returned to the courtroom for the entry of the plea.

On December 4 and 5, four more of Ebel’s co-defendants
pled guilty. On December 5, the remaining two defendants
went to trial. These two had been hired by Ebel and at trial
they blamed him for their predicament. They were acquitted
by a jury on December 15. On January 16, 2001, Ebel sent
a letter to the District Court, stating: "I wish to withdraw
my Guilty Plea!" The District Court denied the request. Ebel
also sent other letters to the District Court that can be
construed as motions to withdraw his guilty plea. Only the
letters sent after the initial denial of the request to
withdraw the plea mention Rule 11 or coercion by the
District Court.

On May 2, 2001, the District Court sentenced Ebel to 33
months of imprisonment. His term was 33 months, rather
than 37 months, because Ebel had demonstrated that the
government miscalculated the loss caused by his fraud. As
a result, the corrected guideline range was 27 to 33
months. The District Court sentenced Ebel to the high end
of this range. Ebel appealed.

II. Standard of Review

When reviewing an allegation of a Rule 11 violation, we
exercise plenary review. See United States v. Torres, 999
F.2d 376, 378 (9th Cir. 1993).

III. Jurisdiction

The District Court had jurisdiction over this action
pursuant to 18 U.S.C. S 3231. We have appellate
jurisdiction pursuant to 28 U.S.C. S 1291.

IV. Discussion

Rule 11(e)(1)’s prohibition of judicial involvement in plea
negotiations is a "bright line." See United States v. Bruce,

                                6


976 F.2d 552, 556 (9th Cir. 1992). Nevertheless, when Rule
11 error has been committed in the taking of a guilty plea,
we can consider the record as a whole to determine
whether, under Rule 11(h), Ebel’s substantial rights were
affected. See United States v. Vonn, 122 S.Ct. 1043, 1050
(2002).

Rule 11’s prohibition of judicial involvement in plea
discussions is based on a recognition that a judge’s power
over an accused makes his participation in plea
negotiations inherently coercive. See Fed. R. Crim. P. 11
advisor committee’s notes to the 1974 amendments; See
also United States v. Johnson, 89 F.3d 778, 783 (11th Cir.
1996), United States v. Barrett, 982 F.2d 193, 194 (6th Cir.
1992). A coerced plea would not only violate a defendant’s
constitutional rights, it would also increase the chance of
convicting the innocent. See United States v. Bruce, 976
F.2d at 556 (listing reasons for Rule 11’s prohibition on
judicial involvement in plea discussions). Rule 11 protects
against these wrongs by completely removing the judge
from plea negotiations. Fed. R. Crim. P. 11 advisory
committee’s notes to the 1974 Amendments ("The
amendment makes clear that the judge should not
participate in plea discussions leading to a plea
agreement.").

The District Court in this case faced a difficult situation.
The pro se defendant was willing to accept a guilty plea that
would guarantee no more than a thirty-six month sentence
but he trusted neither government counsel nor his stand-by
counsel.

The District Judge then represented to Ebel, before he
entered a plea, that the judge would sentence Ebel to the
low end of the sentencing range if he pled guilty. The judge
indicated his willingness to sentence at the low end of the
Sentencing Guidelines range by stating, "I cannot believe
that it would not be in the public’s interest to get a plea in
this case that would save, I think, tremendous amounts of
money, and to what end a matter of what, nine months?"
Immediately after that statement, Ebel changed his plea to
guilty.

These statements by the judge go beyond discussing how
a possible plea would effect trial scheduling and go beyond

                                7


ensuring that Ebel understood the plea bargain. The issue
before us is whether such a violation of Rule 11(e)(1)
requires automatic reversal of Ebel’s conviction or whether
we can review the whole record before us to determine
under Rule 11(h) whether Ebel’s substantial rights were
affected. In light of the Supreme Court’s recent decision in
United States v. Vonn, 122 S.Ct. 1043 (2002), we conclude
that, when Rule 11 error is claimed by a defendant, the
Rule 11(h) review for an effect on substantial rights
requires us to review the entire record before us. Id. at
1054.

The Disrict Judge’s representation that he would
sentence Ebel to 37 months, the low end of the sentencing
range, clearly did not coerce Ebel. Before the hearing, Ebel
and the government had discussed an 11(e)(1)(B) plea. In
an 11(e)(1)(B) plea, the parties agree to a sentencing range
and allow the Court to set the sentence. Ebel was insisting
on a range that would result in a 36 month sentence. He
eventually accepted a plea with a range of 37 to 46 months
on the understanding that he would receive a 37 month
sentence. He was induced to do nothing beyond what he
had already stated he would agree to do.

Moreover, if we examine the types of plea agreements
provided for in Rule 11, we can see that the District Judge’s
commitment to the 37 month sentence in effect
transformed the plea agreement here to a Rule 11(e)(1)(C)
plea. Under Rule 11(e)(1)(C), the defendant and the
government agree to a specific sentence. When an
11(e)(1)(C) plea is negotiated, it is binding on the District
Court if the court accepts it. Under Rule 11(e)(3), the court
then is required to inform the defendant that the court will
impose the specific, negotiated sentence. Because that
commitment is clearly not considered coercive, see United
States v. Andrade-Larrios, 39 F.3d 986, 990 (9th Cir. 1994),
we conclude that it is similarly not coercive under the
circumstances here where the length of the sentence was
one that the prosecution and the defendant had already
found to be acceptable.

Other parts of the record support our conclusion that
Ebel was not coerced. From arraignment through
sentencing, Ebel displayed a clear understanding of the

                                8


plea and sentencing process. He stated in his plea colloquy
that no threats or promises "whatsoever" had been made to
induce him to plead guilty. The District Judge also
mentioned several times that Rule 11 limited the judge’s
involvement and admonished Ebel that, "I’m not offering
you the 37 months. I’m telling you I’ll go along with it, if
that’s what you people agree to."

The timing of Ebel’s request to withdraw his guilty plea
also indicated that he changed his mind after seeing two
co-defendants acquitted. Moreover, he did not mention
coercion by the District Court as a reason to withdraw his
plea until after his initial request to withdraw his plea had
been denied.

We are therefore convinced from our examination of the
record as a whole that Ebel’s guilty plea was voluntary and
was not coerced by the District Court. His rights were not
substantially affected by the remarks of the judge.
Therefore, under Rule 11(h), any error is harmless.

Conclusion

For the reasons stated above, we will affirm the judgment
of the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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