                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              APR 24 2000
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.

 RAMIRO HERNANDEZ, GRADY LEE
 BILLINGTON, GREGORY BROWN,                       Nos. 98-2311, 98-2312, 98-2324,
 CHARLES TERRY BIGGERS, also                           98-2331, 98-2332, 98-2346,
 known as T-Bone, MARSHALL                             98-2350, 98-2351, 98-2352,
 SINGLETON, EDWARD SINGLETON,                              98-2354, 98-2355
 SAMUEL SINGLETON, JOHN L.                             (D.C. No. CR-96-411-BB)
 SINGLETON, MAURICE HAMM,                               (District of New Mexico)
 CLARENCE SINGLETON, CARLTON
 BIGGERS, also known as Keith Smith,
 also known as Charles Brown, also known
 as C.B.,

          Defendants-Appellants.


                                ORDER AND JUDGMENT*


Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and BROWN**,
Senior District Judge.


      On July 17, 1996, a Grand Jury sitting in the State of New Mexico returned a 28-

      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      **
         Honorable Wesley E. Brown, Senior District Judge, United States District Court
for the District of Kansas, sitting by designation.
count indictment naming 26 defendants. All were charged with various drug and drug

related violations. In this consolidated appeal we are concerned with 11 of those 26

defendants, namely, Ramiro Hernandez, Grady Lee Billington, Gregory Brown, Charles

Terry Biggers, Marshall Singleton, Edward Singleton, Samuel Singleton, John L.

Singleton, Maurice Hamm, Clarence Singleton and Carlton Biggers (hereinafter referred

to as “the appellants” or by individual names). Pursuant to a plea agreement, the

appellants pleaded guilty to Count 1 of the indictment.1 On July 13, 1998, before

sentencing, Carlton Biggers filed a Motion to Vacate Sentencing and to Withdraw Guilty

Plea. On July 20, 1998, Biggers filed an addendum to his motion. Some of the remaining

appellants later joined in Carlton Biggers’ motion. Others joined in Biggers’ motion and

filed their own motions. Still others simply filed their own motions to vacate sentencing

and to withdraw their guilty pleas. All motions paralleled Carlton Biggers’ motion, about

which more will be said later.

       Biggers’ motion to vacate sentencing and to withdraw his guilty plea was pursuant

to Fed.R.Crim.P. 32(e). That rule provides as follows:

          (e) Plea Withdrawal. If a motion to withdraw a plea of guilty or nolo
       contendere is made before sentence is imposed, the court may permit the


       1
        Hernandez pled guilty on February 18, 1998 to Count 1 charging a conspiracy to
possess and distribute methamphetamine. Billington, Charles Biggers, Hamm, Brown
and Marshall Singleton pled guilty to Count 1 on February 9, 1998. John Singleton and
Edward Singleton pled guilty to Count 1 on February 18, 1998. Samuel Singleton pled
guilty to Count 1 on February 20, 1998. Clarence Ray Singleton and Carton Biggers pled
guilty to Count 1 on February 25, 1998.

                                           -2-
       plea to be withdrawn if the defendant shows any fair and just reason. At
       any later time, a plea may be set aside only on direct appeal or by motion
       under 28 U.S.C. § 2255.

       In support of the motion to vacate sentencing and withdraw Biggers’ plea of guilty,

counsel for Biggers stated that he had recently informed Biggers “of the U.S. v. Singleton

decision in which the Tenth Circuit required the suppression of testimony by informants

who were promised leniency in exchange for testimony.” United States v. Singleton, 144

F.3d 1343 (10th Cir., July 1, 1998)(Singleton I). In the motion counsel also stated that he

and Biggers both recognized that the panel opinion in Singleton I had been vacated by the

court, sitting en banc, on July 10, 1998 and had been set for rehearing en banc at the

November 1998 term of court. In Biggers’ motion, counsel went on to allege as follows:

                  Defendant entered a guilty plea to conspiracy to distribute
              more than one kilogram of methamphetamine. He has
              consistently denied each and every allegation contained in the
              Indictment but entered his plea after lengthy discussions with
              counsel regarding the elements of aiding and abetting a
              conspiracy and the fact that his acts could have arguably
              benefitted the conspiracy. His discussions of cocaine were
              recorded on the wire tap and he also used cocaine. His acts
              are also arguably only evidence of his own cocaine habit. He
              states that his admission to the charge as set out in the
              Indictment was based on his understanding of the potential
              interpretation of his acts as aiding the conspiracy. He pled
              guilty to the charge because he did not want to face a life
              sentence which could result if he could not convince a jury
              that the informant’s allegations were untrue. Defendant asks
              for an evidentiary hearing in which he may introduce his
              sworn testimony to assert his innocence. If an evidentiary
              hearing is denied, Defendant asks that he be permitted to file
              an affidavit before this Court rules on this motion, in which
              he can assert his innocence as required.

                                            -3-
                  One complete redacted Plea Agreement and selected pages
              from the other redacted plea agreements of informants which
              the Government provided as discovery (Bates #’s 20404-
              20416, 20439, 20451, 20464, 20465, 20477 and 20478) are
              attached hereto as Defendant’s exhibit A. The Government’s
              promises contained in these agreements are almost identical to
              the promises in the plea agreement criticized by the Tenth
              Circuit in the Singleton case. The suppression of the
              informants’ testimony would reverse the reason Defendant
              entered his plea. In order to demonstrate the extent and
              importance of informant testimony and the suppression of that
              testimony, Defendant incorporates herein the D.E.A. Agent’s
              affidavits in support of the wire tap, filed in support of
              Defendant’s discovery motions as Exhibits A and B (Doc.
              No.’s 389 and 390).
                  Defendant asks that the Court vacate his sentencing date
              until after the Tenth Circuit makes a final decision in
              Singleton in November, 1998, because after sentencing he
              will have a much higher burden to establish his right to
              withdraw the plea under Rule 32(e) if permissible at all. If
              Defendant is permitted to argue this motion after the decision
              is upheld, Defendant will have a greater chance of convincing
              this Court he would prevail at trial absent the suppressed
              testimony.
                  Wherefore, Defendant prays the court vacate his present
              sentencing date, continue his sentencing until a final decision
              is rendered by the Tenth Circuit in U.S. v. Singleton, and after
              that opinion is available, rely on that decision to order the
              withdrawal of Defendant’s guilty plea.
                  Defendant believes the Government will oppose this
              request. (emphasis added).

       In an addendum filed on July 20, 1998 to his motion to vacate and withdraw his

plea, counsel alleges that Biggers’ motion is “based on his belief that his entry of the

guilty plea was pursuant to an unknowing and involuntary waiver of his right to trial

under the Sixth Amendment to the U.S. Constitution. Had he known that Title 18 U.S.C.


                                            -4-
§ 201 prohibited the Government from offering anything of value to its witnesses in

exchange for their testimony and that all of the witnesses against him would be unable to

testify, he would not have entered his plea.”2

       The district court held hearings on the appellants’ motions to vacate sentencing

and to withdraw their guilty pleas on July 16, 1998, August 10, 1998 and September 24,

1998. As indicated, all motions were based on Singleton I, filed on July 1, 1998 and

vacated by the court, sitting en banc on July 10, 1998 and reset for oral argument before

the en banc court at the forthcoming November term of court. In Singleton I a panel of

this court held that 18 U.S.C. § 201(c)(2) precluded the government from promising

leniency to an accomplice in exchange for his truthful testimony against his co-

defendants. 144 F.3d at 1358. The case was argued before the en banc court at the

November 1998 term of court. On January 8, 1999, the court, en banc, disagreed with the

panel’s opinion and held that § 201(c)(2) did not apply to the United States acting in its

sovereign capacity and thus did not preclude a United States attorney from offering an

accomplice leniency in exchange for truthful testimony, with two judges concurring and

three judges dissenting. United States v. Singleton, 165 F.3d 1297 (10th Cir.

1999)(Singleton II).

       In the district court, the appellants argued, inter alia, that even though Singleton I


       2
         In his affidavit in support of his motion to continue sentencing and withdraw his
guilty plea, Carlton Biggers stated that “[h]ad I known that these witnesses could not
testify against me I would not have entered my guilty plea.”

                                            -5-
had been vacated by the time any motion to vacate sentencing and withdraw guilty plea

was filed, the fact that Singleton I was filed, and then vacated, indicated such uncertainty

in the law of the Tenth Circuit at that point in time that any sentencing should be vacated

and continued “until a final decision is rendered by the Tenth Circuit in U.S. v. Singleton

and after that opinion is available, rely on that decision to order the withdrawal of

Defendant’s guilty plea.” The district court eschewed counsel’s suggestion that it delay

its ruling and on September 24, 1998 denied all motions to vacate sentencing and at the

same time denied the appellants’ further request that they be allowed to withdraw their

respective guilty pleas.3 The appellants were all eventually sentenced and these 11

notices of appeal were thereafter duly filed.

       In this court, the 11 separate appeals were, on motion, consolidated for briefing

and oral argument. By further agreement, Marc Robert, the attorney for Charles Terry

Biggers and Marshall Singleton, was designated to make the oral argument in this court

for all 11 appellants. At oral argument Robert stated that he had not participated in the


       3
         In this regard, the district court on September 24, 1998 spoke as follows:
            As I indicated at the last hearing, unless there was something exceptional in the
           briefs, I will deny the motions to withdraw the pleas. I think they are all clearly
           voluntarily made with knowledge of the facts, with the exception of the
           Singleton case, which has now been withdrawn. That will give you the basis to
          go to Denver and preserve your appeal on the basis of the Sonia [sic] Singleton
         case, if indeed it is reinstated in some fashion.
         At an earlier hearing held on July 16, 1998, the district court opined that “[m]y
prediction abilities tell me Singleton is not likely to be a problem in this case, and I’m
willing to take that chance . . . .” (Singleton II validated the district court’s “prediction
abilities.”)

                                             -6-
briefing process and only entered his appearance at about the same time appellants’ reply

brief was filed in this court.

       The United States initially argues that this court has no jurisdiction to hear

appellants’ appeals. In thus arguing the government points out that the appellants’

respective guilty pleas were all unconditional pleas, not conditional pleas as permitted by

Fed.R.Crim.P. 11(a)(2), and that each was based on a plea agreement with the

government wherein the appellant agreed not to appeal any sentence within the guideline

range. The United States asserts that a defendant who knowingly and intelligently pleads

guilty to a criminal offense waives all possible non-jurisdictional challenges to his

conviction.4 It is quite correct that in United States v. Wright, 43 F.3d 491, 494 (10th Cir.

1994) we spoke as follows:

               A defendant who knowingly and voluntarily pleads guilty
               waives all non-jurisdictional challenges to his conviction.
               Having pleaded guilty, a defendant’s only avenue for
               challenging his conviction is to claim that he did not
               voluntarily or intelligently enter his plea. (citations omitted).

       However, Wright recognized that although a defendant may have entered an

unconditional plea of guilty, he could still thereafter challenge his conviction on the

ground that his plea was not voluntarily and intelligently made. All of the motions to

withdraw the guilty pleas here entered were based on the premise that each plea was not



       The United States suggests that the appellants in the present case are somehow
       4

attempting to suppress the testimony of their accomplices and argues that such has been
waived by their unconditional pleas of guilty. That is not our view of the case.

                                              -7-
made intelligently, and therefore was, in that sense, involuntary. Certainly no motion was

based on an event or occurrence which had taken place prior to the entry of the guilty

plea. Rather, the gist of the motions to withdraw was that Singleton I had pronounced the

law of the Tenth Circuit as something different than the advice given the appellants by

their counsel leading up to the guilty pleas. In short, the district court denied the

appellants’ motions to withdraw their respective guilty pleas, and under the described

circumstances, we have jurisdiction to review the propriety of such denial.5

       Fed.R.Crim.P. 32(e) states that if a motion to withdraw a guilty plea is made

before sentencing, the district court may permit the plea to be withdrawn “if the defendant

shows any fair and just reason.” A district court’s order denying a motion to withdraw a

guilty plea is reviewed by us for abuse of discretion and will not be reversed absent a

showing that the district court acted “unjustly or unfairly.” United States v. Graves, 106

F.3d 342, 343 (10th Cir. 1997), (citing Barker v. United States, 579 F.2d 1219, 1223

(10th Cir. 1978)). It is noted that in the instant case there is no suggestion that any of the

guilty pleas here involved were not in compliance with Fed.R.Crim.P. 11. In the motions

to withdraw their respective guilty pleas filed in the district court, the appellants argued

that their pleas were not “voluntary” in the sense that they were not made knowingly and



       5
        We deem United States v. Hernandez, 134 F.3d 1435 (10th Cir. 1998), relied on
by the government, to be distinguishable from the instant case. In that case we simply
enforced a plea agreement wherein the defendant agreed to waive his right to appeal a
sentence within the guideline range. That is not this case.

                                             -8-
intelligently. Such is so, say counsel, because of Singleton I. As above stated,

Singleton I was filed after the appellants’ guilty pleas were entered, and thereafter

Singleton I was vacated by the court, sitting en banc, nine days later, before any motion to

withdraw a guilty plea was filed. So, in the district court, the appellants’ position was

that, because of Singleton I, even though vacated, the district court, in denying their

motions to defer sentencing and withdraw their respective guilty pleas, abused its

discretion. We do not agree with that position.

       Once Singleton I was vacated by the court sitting en banc, Singleton I was a nullity

with no precedential value. In legal effect, it was as though it was never filed.6 Such

being the case, the district court did not abuse its discretion in denying appellants’

motions to withdraw their guilty pleas where appellants’ only ground was a panel opinion


       6
         See Franklin Sav. Ass’n. v. Office of Thrift Supervision, 35 F.3d 1466, 1469 (10th
Cir. 1994) (“A judgment that has been vacated, reversed, or set aside on appeal is thereby
deprived of all conclusive effect, both as res judicata and as collateral estoppel.”) See
also United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950), where the Supreme
Court stated that “[t]he established practice of the Court in dealing with a civil case in the
federal system which has become moot while on its way here or pending our decision on
the merits is to reverse or vacate the judgment below and remand with directions to
dismiss.” In J. B. O’Connor v. Donaldson, 422 U.S. 563, 577 n.12 (1975), the Supreme
Court, citing Munsingwear, said: “Of necessity our decision vacating the judgment of the
Court of Appeals deprives that court’s opinion of precedential effect, leaving this court’s
opinion and judgment as the sole law of the case.” In Durning v. Citibank, 950 F.2d
1419, 1424 n.2 (9th Cir. 1991), the Ninth Circuit, citing Donaldson, said: “A decision
may be reversed on other grounds, but a decision that has been vacated has no
precedential authority whatsoever.” And in Zeneca Ltd. v. Novopharm Ltd., 919 F. Supp.
193, 196 (D.Md.) that court, citing, inter alia, Munsingwear, observed that “[a]s a general
rule, a vacated judgment and the factual findings underlying it have no preclusive effect;
the judgment is a legal nullity.”

                                             -9-
which had been vacated by the en banc court.

       In their reply brief, and at oral argument, there is the suggestion that appellants are

now relying, in part, on language in Singleton II. (For obvious reasons, Singleton II was

not considered by the district court.) In that opinion we did state:

              Our conclusion in no way permits an agent of the government
              to step beyond the limits of his or her office to make an offer
              to a witness other than one traditionally exercised by the
              sovereign. A prosecutor who offers something other than a
              concession normally granted by the government in exchange
              for testimony is no longer the alter ego of the sovereign and is
              divested of the protective mantle of the government. Thus,
              fears our decision would permit improper use or abuse of
              prosecutorial authority simply have no foundation.

United States v. Singleton, 165 F.3d 1297, 1302 (10th Cir. 1999).

       At oral argument, there was a suggestion that government witnesses had possibly

been coerced in one form or another by threats, including the loss of custody of their

children, if they did not cooperate. Such was not in any way raised in the district court

and will not be considered in these appeals.7 The only issue before the district court was

whether appellants were entitled to withdraw their guilty pleas because of Singleton I.

       In sum, we hold that the appellants failed to show “any fair and just reason” to


       7
        Generally we do not consider on appeal an issue not raised in the district court. In
re Walker, 959 F.2d 894, 896 (10th Cir. 1992). Also, we generally do not consider issues
raised for the first time in oral argument and not raised in the briefs. Thomas v. Denny’s
Inc., 111 F.3d 1506, 1510 n.5 (10th Cir. 1997) (citing Durham v. Xerox Corp., 18 F.3d
836, 841, n.4 (10th Cir. 1994)). Further, matter, though perhaps mentioned in a brief, but
not “adequately briefed,” is deemed waived. Gross v. Burggraf Const. Co., 53 F.3d 1531,
1547 (10th Cir. 1995)

                                            - 10 -
withdraw their guilty pleas, as required by Fed.R.Crim.P. 32(e).

      Judgment affirmed.8



                                         Entered for the court,



                                         Robert H. McWilliams
                                         Senior Circuit Judge




      8
        Subsequent to oral argument, appellants Brown and Hamm on February 23, 2000
filed a motion to dismiss their respective appeals, to which the United States filed a
response objecting thereto. The motion to dismiss is denied as untimely.

                                          - 11 -
