     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
12       - - - - - - - - - - - - - - - - - - - -X
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.
21       - - - - - - - - - - - - - - - - - - - -X
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




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